Public Procurement. NICARAGUA Alvarado y Asociados

Transcription

1 Public Procurement NICARAGUA Alvarado y Asociados CONTACT INFORMATION: Yuri Fernando Cerrato Espinoza Alvarado y Asociados Planes de Altamira III Etapa De los Semáforos de Enitel Villa Fontana 2c. al Este, 2 1/2c. al Norte. Managua, Nicaragua ycerrato@alvaradoyasociados.com.ni A. Overview of Public Procurement 1. What are the principal elements of Public Procurement regulation in your jurisdiction? As defined in the Law 737 "Ley de Contrataciones Administrativas del Sector Público", the principal elements are: the efficiency, publicity, and transparency, equality, control, due process, and integrity. B. Legal Framework for Public Procurement 1. What are the basic principles applicable to Public Procurement? According to the article 6 of Law 737, there are 8 principle: Efficiency Principle Publicity Principle Transparency Principle Equality and free competition Principle Effective Technology Principle Control Principle Due Process Principle Integrity Principle.

2 2. What are the main regulations applicable to Public Procurement in your jurisdiction? The Law 737 and its Regulations. Also the Law 279 Law of Organization, Competence and Procedures of the Executive Power and its Regulations. 3. What public agencies are subjected to the general Public Procurement regime? 1. The executive power, including the Presidency and the Vice Presidency, Ministries of State and Decentralized Bodies. 2. The others government powers, when they perform administrative functions. 3. The autonomous entities created by the Constitution of the Republic, when performing administrative functions. 4. Decentralized entities by function. 5. Councils and governments of the Autonomous Regions of the North Atlantic (RAAN) and South Atlantic (RAAS). 6. The State Companies, unless they are in competition. 7. Financial Public Sector, meaning, the Nicaraguan Central Bank and the Public Financial Institutions regulated by the Superintendence of Banks and Other Financial Institutions. 8. Public Universities. 9. Private Universities, in the administration of funds coming from the General Budget of the Republic. 4. What public agencies are not subjected to the application of the general Public Procurement regime? 1. The following public contracts: a. International contracts celebrated by the executive power that require approval of the National Assembly, pursuant to article 138 of the Nicaraguan Political Constitution. b. Administrative licenses or concessions of any kind, which are subject to the provisions of special laws. c. Public employment contracts. d. Operations of brokerage and other contracts regulated by banking law. e. Contracting with International Funds. f. The agency or government entity who hires subject to the above procedure will have the sole responsibility to ensure compliance with the provisions of such international legal instruments and this Act. 2. The abroad recruitment made by the institutions providing the Foreign Service. 3. In the case of public services provided to users in exchange for an undetermined fee or fee of general application including transportation. 4. Recruitment by the municipal sector and municipal governments. 5. State Companies only in relation to its ordinary and related contracts.

3 5. Are there any non-public entities subjected to the application of the general Public Procurement regime? Yes, as mentioned above, the private universities, in the administration of funds coming from the General Budget of the Republic. 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? No, they are not. 2. Are there any reciprocity regulations? Only those mentioned in the international treaties, according to the article 118 of Law Are there any contracts or matters from which foreign companies are restricted (eg. national defense, hazardous waste disposal, security services, etc)? No, there are not. D. Procedures for Awarding Public Procurement Contracts 1. Is there a Bidders Registry? Law 737, article 11 provides it. 2. Is electronic procurement fully implemented? Law 737 articles 62 and followings provides the SISCAE Sistem of Electronic Public Procurement, that allows the management and dissemination of state procurement and conducting electronic transactions. 3. What steps and measures should be addressed for a bidder to be able to present a bid in an electronic procurement procedure? The bidder must be registered in the SISCAE and follow the applicable current instructions to use the SISCAE. We recommend visiting the website of SISCAE ( and revise the guides for the use of this system.

4 4. What are the possible ways of association for participating in public procurement proceedings? The participants can participate under the figure of consortium demostrating that they have the agreement of creation of consortium to participate in a public procurement. 5. What type of procurement procedures exist? There are four types of procurement procedures: 1. By tender (public and selective tender); 2. Simplified procurement; 3. Minor Contracts; 4. Por concurso (by competition.) 6. What are the modes of selection processes and when are they applicable? There are no special processes for the selection, but, all the offers has to be analyzed by the evaluation team, which responsibilities are: Evaluate the tenders submitted in the appropriate procurement procedures in accordance with the provisions of the bidding terms and conditions, terms of reference, the Law and its Regulations. 7. Is the bidding company required to post any bond or insurance? Only those that are proper of the contract to execute. 8. What are the criteria for evaluation and comparison of bid proposals? The evaluation team will analyze the provisions of the bidding terms and condition which has to include the terms of evaluation, and also the solution in case of draw. 9. What are the requisites for execution of contracts after awarding? The oferrer and the contractor have to sign the respective contracts, then it works as a normal contract. E. Private Initiative Projects 1. Are there any regulations for Public Procurement of projects proposed by private companies? No, there are not.

5 2. Does the private company proposing the project have any advantage for purposes of bidding? N/A. F. Review Procedures 1. Are there any judicial review procedures applicable to the bidding processes? There can be 3 possible Judicial Review: 1. The clarification action: by the committee of the assessment act and recommendation of award. 2. Action of objection: by the General Attorney. 3. Nullity action: By the General Attorney. 2. Are there any judicial review procedures applicable when the contract has been executed? No, there are not. G. Overview of Public Procurement Contracts 1. What are the regulations applicable to contract terms and its extension? The provisions of article 87 of the Regulations of Law Are there any guarantees that have to be posted for the performance of the contract? Chapter six of Law 737 establishes the guarantees that have to be posted: a. Seriousness of the offer: by public notary that guarantee, that the offer is valid for the period specified in the bidding terms and conditions; b. Contract Performance Guarantee: before the formalization of the contract, except on leaser contract; it is a guarantee of the 5 to 10 percent of the contract amount for services or goods contracts; and a guarantee of the 10 to 20 percent of the contract amount for the building work; c. Guarantee of Quality assurance and / or performance for the case of goods and services; d. Guarantee Against hidden defects and crippling to the case of construction; e. Advance Payment Guarantee: a guarantee of the 100% of the contract amount; f. Any other Guarantee that shall be necesary. 3. Are there any special powers upon the State? 4. Can fines or penalty clauses be agreed upon?

6 5. Can the contract be assigned? No, the contract cannot be assigned, except with the prior written authorization of the corresponding entity. 6. Can advance payments be established? 7. How is dispute resolution regulated? The disputes can be submitted to Mediation and Arbitration. Any legal resolution considered as "res judicata" must be respected by the parties. 8. Can international arbitration be agreed upon? 9. Is there any procedure for liquidation of the contract? H. Applicable Regulation 1. Please list any relevant regulation and, if possible, web links to up-to-date versions of the same.