Public Procurement. CHILE Claro y Cía.

Transcription

1 Public Procurement CHILE Claro y Cía. CONTACT INFORMATION: Jorge Martín Claro y Cía. Apoquindo 3721, 14th floor Santiago, Chile jmartin@claro.cl A. Overview of Public Procurement 1. What are the principal elements of Public Procurement regulation in your jurisdiction? In terms of infrastructure, the Public Works Concessions Law which has allowed a strong development of public infrastructure in the last 15 years, attracting an important flow of foreign investment, thus permitting an dramatic upgrade of highways, airports and other type of public infrastructure by way of granting concession rights for the construction, refurbishment, maintenance and operation of public works B. Legal Framework for Public Procurement 1. What are the basic principles applicable to Public Procurement? Mainly: both public and private initiatives, transparent bidding processes, transparent mechanisms for investment in additional works, flexible ways of compensation, a concession right that can be pledged, a special tribunal for resolution of controversies, and except in certain specific cases, a mechanism for fair compensation for additional costs incurred by the developer of the project.

2 2. What are the main regulations applicable to Public Procurement in your jurisdiction? The Public Works Concessions Law, contained in Supreme Decree 900 (as amended) and the Public Works Concessions Regulations, contained in Supreme Decree 956 (as amended). 3. What public agencies are subjected to the general Public Procurement regime? No public agency is mandatorily subjected to the regime mentioned above, but they can voluntarily use it. Some agencies that have used it so far are: Ministry of Public Works, Ministry of Health, Ministry of Justice, Airport Authority, Ministry of Transportation, Customs Authority. 4. What public agencies are not subjected to the application of the general Public Procurement regime? See answer above. No public agency is mandatorily subjected to the regime. 5. Are there any non-public entities subjected to the application of the general Public Procurement regime? C. Requirements for Foreign Companies to Participate in Public Procurement Processes 1. Are foreign companies required to set up branches or subsidiaries or otherwise enter into any commercial agreements with local partners in order to participate in Public Procurement Processes? Foreign companies must necessarily incorporate a special purpose vehicle according to the Public Concessions Law. No local partner is required. 2. Are there any reciprocity regulations? 3. Are there any contracts or matters from which foreign companies are restricted (eg. national defense, hazardous waste disposal, security services, etc)? Not in principle. As this is a voluntary system, sensitive matters will not be included in Public Procurement processes.

3 D. Procedures for Awarding Public Procurement Contracts 1. Is there a Bidders Registry? For each specific project a Bidder's Registry is open. There is no general registry. 2. Is electronic procurement fully implemented? 3. What steps and measures should be addressed for a bidder to be able to present a bid in an electronic procurement procedure? See above. 4. What are the possible ways of association for participating in public procurement proceedings? The awarded bidder has to incorporate a corporation that will be subject to the rules of publicly held corporations. During construction, it has to be the controller of such corporation; therefore it can include other partners or shareholders, but only to the extent it retains control. 5. What type of procurement procedures exist? The ones resulting from private initiative and the ones resulting from public initiative, always in public bids. 6. What are the modes of selection processes and when are they applicable? Public bid, as the general rule. In case an awardee does not execute the relevant agreement with the authority within the statutory term, then the authority can call for a new public bid or make a private re-bid with the bidders that were not awarded the first time. 7. Is the bidding company required to post any bond or insurance? Yes, usually (i) one to guarantee the seriousness of the offer, (ii) one for construction stage, (iii) one for operation stage and (iv) one to guarantee the adequate return of the infrastructure to the State. 8. What are the criteria for evaluation and comparison of bid proposals? A mix of technical and economic.

4 9. What are the requisites for execution of contracts after awarding? The awarded bidder has to countersign a copy of the awarding decree and incorporate a corporation. Then the Bidding Documents become the actual agreement. E. Private Initiative Projects 1. Are there any regulations for Public Procurement of projects proposed by private companies? Yes. 2. Does the private company proposing the project have any advantage for purposes of bidding? Yes. That advantage is determined in the relevant Bidding Conditions, so it may vary from one project to another. F. Review Procedures 1. Are there any judicial review procedures applicable to the bidding processes? Not a specific one. General rule of law may apply if necessary. 2. Are there any judicial review procedures applicable when the contract has been executed? G. Overview of Public Procurement Contracts 1. What are the regulations applicable to contract terms and its extension? The term is regulated in the Bidding Documents. it may be a fix term or the term can be subject to obtaining a certain maximum income, thus making the term variable. The maximum term by law is, in any case, 50 years. 2. Are there any guarantees that have to be posted for the performance of the contract? Yes. 3. Are there any special powers upon the State? - The State can oblige the project company to maintain the levels of service set forth in the Bidding Documents, with no compensation. - Only during the

5 construction stage, the State can unilaterally terminate the project, and shall compensate the project company. 4. Can fines or penalty clauses be agreed upon? -The fines are specifically set in the Bidding Documents for each type of breach. 5. Can the contract be assigned? Yes, but always with the previous approval of the State and only to a qualified successor. 6. Can advance payments be established? Yes, but it is not usual. 7. How is dispute resolution regulated? There is a Technical Board in charge of the settlement of technical matters. If the matter is not solved by the Technical Board (or if the controversy is not technical) it can be sent to a special Arbitral Tribunal, in charge of matters related to the Public Works Concessions Law only. The parties can also submit the controversy to the Santiago Court of Appeals. 8. Can international arbitration be agreed upon? No 9. Is there any procedure for liquidation of the contract? Yes, in case of early unilateral termination by the State. H. Applicable Regulation 1. Please list any relevant regulation and, if possible, web links to up-to-date versions of the same. Public Works Concessions law and Public Works Concessions Regulations uments/nueva%20ley%20y%20reglamento% pdf