An alternative to accelerating standard procedures
Under normal conditions, public procurement is generally carried out by means of a public bid in accordance with the regulations set forth in Executive Order No. 1023/2001 of Regulation of Contracts of the National Public Administration and by Executive Order No. 1030/2016, regulatory of Executive Order No. 1023/2001, as well as other complementary regulations (“Standard Procurement Procedure”). These regulations provide that the standard proceeding for public procurement is the public bid, which tends to be an extensive, multistage procedure that includes the submission of offers, the contesting or challenge of other offers, an evaluation of offers and the preselection of the potential winners, among other stages.
However, regulations enacted by the Argentine government in light of the SARS-CoV-2 pandemic do not provide a mechanism to accelerate the Standard Procurement Procedure. Instead, they implement a specific direct purchasing procedure for goods and services that are necessary to attend to the declared sanitary emergency or that are procured within the framework of the declared emergency (“COVID-19 Procurement Procedure”). These specific regulations are analyzed in points (2) and (3) below.
Executing contracts directly for the provision of goods and services
Emergency Decree No. 260/2020 states that, for the duration of the sanitary emergency, the jurisdictions, organisms and entities included in article 8°, subsections (a) and (b) of Law No. 24.156, are empowered to execute contracts directly for the provision of goods and services that are necessary to attend to the declared emergency, without being subject to the contracting regime applicable to the National Public Administration, i.e., mainly public bids, or to their specific contracting regimes. All contracts executed under this special regime must be published on the official website of the National Office of Contracts and in the Official Bulletin, Emergency Decree No. 260/2020, article 15 ter. Furthermore, article 15 ter indicates that the chief of cabinet will establish the principles and guidelines that will regulate the procedure to execute contracts regarding goods and services within the context of the declared emergency.
The chief of cabinet issued Administrative Decision No. 409/2020, which further regulated the Procurement Procedure for Goods and Services within the Emergency declared by Emergency Decree No. 260/2020, i.e., the COVID-19 Procurement Procedure, as follows:
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The COVID-19 Procurement Procedure is exclusively applicable to the procurement of goods and services required in the framework of the emergency provided for by Decree No. 260/20, and such circumstances must be duly justified within the procurement documents.
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For a call for bids, the Procurement Operating Unit will consult the list of suppliers corresponding to the goods and services to be acquired who are registered in the Supplier Information System (SIPRO) associated with the Electronic System for Procurement of the National Administration (COMPR.AR), at the time of the call for bids.
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The procuring entity will have to summon at least three suppliers, unless SIPRO shows that there are less than three possible suppliers, in which case such circumstance must be duly contemplated in the corresponding procurement file.
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Under the rules of the COVID-19 Procurement Procedure, the invitation to potential bidders must contain a minimum amount of information, including: (a) technical specifications, providing the catalog code, if it exists; (b) the term to deliver; (c) partial and total amounts; (d) the place and method of delivery; (e) the place, date and time for the submission of the bids; (f) the institutional email address where the offers will be received; (g) selection criteria for the offers; (h) the term and means of payment; and (i) information establishing that a contract compliance guarantee must be provided.
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If it is necessary, the procuring entity can request the most convenient offer to improve the offered price.
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In the event the call for bids under the COVID-19 Procurement Procedure is unsuccessful or deserted, the procuring entity may directly select the supplier or suppliers who shall satisfy the demand for a certain good or service.
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Furthermore, the administrative decision states that the competent authority to approve expenses for public procurement under the COVID-19 Procurement Procedure will be determined by the parameters set forth in the annex to article 35, subsection (b) of Executive Order No. 1344/200
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Finally, it establishes that the applicable procurement procedure will be determined in accordance with the parameters set forth in the annex to article 9 of the regulations approved by Executive Order No. 1030/2016. This annex will also be applicable to determine the competent authority to: (a) authorize the call for bids and choose the applicable procedure; (b) approve the tender terms and conditions and the preselection in multiple stages; (c) leave the tender without effect; and (d) terminate the procurement procedure.
Other options available to contracting authorities
The COVID-19 Procurement Procedure described above allows the authority to request bids from several potential sellers.
Alternatively, the Standard Procurement Procedure can also be implemented, either through public bid or through direct purchase in case the exceptions provided by such regime apply.
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Baker McKenzie's Public Procurement World contains more information about the world's most important public procurement laws and guidance in light of the global COVID-19 pandemic.
