Conferencia online I Ley N° 32069 - Ley General de Contrataciones Públicas ¡Lo que debes saber!

Introduction to the Event

Welcome and Overview

• María Casas introduces the event, welcoming participants on behalf of the School of Government.

• The event is part of a series of conferences related to a specialization program in public procurement management and the new Law 32069.

• Key speakers include Mijail Vizcarra (public procurement consultant), Laura Gutiérrez (executive president of OSE), and Cristian Albán (expert in administrative law and arbitration).

Discussion on New Public Procurement Law

Insights from Mijail Vizcarra

• Professor Vizcarra emphasizes the significance of discussing changes in public management, particularly regarding state purchases.

• He highlights that Law 32069 aims to transform public procurement by enhancing efficiency and effectiveness rather than merely following administrative processes.

• The law incorporates about 75% of proposals made by the executive last year, with improvements introduced by Congress.

Key Topics for Discussion

• Seven relevant topics will be discussed concerning challenges, objectives, and changes brought by the new law.

New Specialized Organization for Efficient Procurement

Laura Gutiérrez's Contributions

• Gutiérrez discusses the rebranding of OSE to focus on efficient public procurement, highlighting new responsibilities aimed at strengthening oversight functions.

• She notes that OSE previously supervised only under general purchasing regulations but now expands its oversight capabilities to special regimes as well.

Importance of Oversight Expansion

• Approximately 24 special regimes exist alongside general regulations; this change aims for better integration within the entire system.

• The goal is to enhance security in purchases while reducing costs associated with managing multiple overlapping systems.

Role of National Supplier Registry

Enhancements in Supplier Management

Enhancements in Supplier Information and Oversight

Importance of Providing Valid Information

• The discussion emphasizes the need to provide comprehensive and valid information to suppliers, which is crucial for their operations.

• A new initiative, the "unique supplier record," is highlighted as a significant change that will benefit suppliers.

Expanded Role of National Supplier Registry

• The transition from merely supervising legality to enhancing efficiency in public procurement is noted as a key shift in perspective.

• There’s an emphasis on aligning regulations with programming, acquisition, and management processes to ensure public spending effectively reaches citizens.

Technical Assistance and Supervision

• Technical assistance is identified as a critical function that supports entities in meeting executive compliance.

• The expanded supervisory role aims to strengthen preventive measures through technical support, which has become a mandatory duty for public institutions involved in supervision plans.

New Perspectives on Public Procurement Oversight

Comparison of Old vs. New Functions

• The speaker notes minimal differences between the functions outlined in the new law compared to existing ones but highlights the focus on technical assistance.

• Changing the name of the oversight body reflects a shift towards emphasizing efficiency rather than just legality in procurement processes.

Challenges Ahead

• While there’s optimism about focusing on technical assistance, concerns are raised regarding budget allocation for these initiatives.

• Effective implementation of technical assistance depends heavily on available resources and proper execution strategies.

Addressing Contractual Impediments

Complexity of Public Management Restrictions

• Discussion points out complexities surrounding restrictions that limit market participation due to potential conflicts of interest or undesirable practices.

Changes Under New Legislation

• The current law imposes strict impediments based on distrust; however, recent changes aim at simplifying these regulations while addressing underlying issues effectively.

Legal Foundations for Changes

Discussion on Contractual Freedom and Public Procurement Challenges

Impediments in Public Procurement

• The right to contractual freedom is limited, affecting only certain actors. Implementation of these limitations often leads to media scandals in public procurement.

• Simpler situations may lead to future media impacts that could create a backlash against the current system, highlighting the need for normative safeguards.

Legal Framework and Technical Reasonability

• Reference to multiple landmark court rulings indicates that restrictions on business rights have led to various measures being taken through legal protections (amparos).

• There is a significant list of impediments in the region, which complicates proving conflicts of interest due to their complex nature.

Risks and Control Mechanisms

• The convoluted list of impediments poses risks for both private and public sectors, as insufficient mechanisms hinder the detection of conflicts.

• The new General Law on Public Procurement aims to provide tools for logistics personnel to identify impediments more effectively.

Changes in Supplier Verification Process

• A shift from requiring sworn declarations from suppliers towards utilizing an established list of impeded suppliers enhances transparency.

• This transition presents challenges due to the extensive databases that must be cross-referenced for accurate supplier information.

Clarification of Impediments

• While many impediments remain unchanged, they are now better organized, providing clarity regarding participation restrictions in state contracts.

• Previous ambiguities around familial relationships impacting contract eligibility have been addressed, allowing for more rational participation without undue harm to businesses.

Positive Developments and Future Challenges

• The relativization of certain restrictions is seen as positive; however, some limits may still be too lenient regarding family connections with public officials.

• Establishing verification measures for identifying when someone is impeded represents a significant improvement in accountability within procurement processes.

Implementation Considerations

Regulation of Minor Contracts and Transparency in Public Procurement

Integration of Minor Contracts into General Regime

• The discussion emphasizes the need for minor contracts to be integrated with other systems, ensuring that they provide relevant information within the public procurement framework.

• The goal is to maintain flexibility in minor contract procedures while enhancing transparency and alignment with public finances, avoiding overly complex processes.

• Proposals include presenting offers for minor purchases through a dedicated system rather than email, facilitating direct connections with multi-year needs planning.

Ensuring Traceability and Flexibility

• It is crucial to ensure traceability of expenditures related to minor contracts while maintaining their flexible nature as outlined in Article 34, which states these do not require selection procedures.

• Key milestones include connecting with multi-year programming for goods and services and ensuring budgetary certification (CCP), highlighting the importance of tracking financial flows.

Challenges in Current Practices

• Current practices face challenges due to basic information availability; establishing clear guidelines is essential for effective monitoring and control over expenditures.

• There are concerns about the lack of professionalization among public buyers, leading to complications in applying regulations consistently across different entities.

Need for Clear Guidelines

• A platform should be developed that guarantees both flexibility and oversight, allowing for better reporting on contracting activities while ensuring accountability.

• The regulation of minor contracts is seen as necessary since previously they operated without clear guidelines, often leading to inconsistent practices across institutions.

Importance of Regulation

• While aiming for efficiency in non-competitive processes, many entities created complex directives that contradicted the objective of simplifying minor contract procurement.

Innovations in Standardized Contracts

Introduction to Standardized Contracts

• The new procurement regulations introduce the use of standardized contracts, which are internationally recognized engineering contracts. These have primarily been used in Peru for mining projects.

Government-to-Government Contracts

• The success of the Pan American Games and government-to-government contracts has made standardized contracts more appealing. The new law aims to provide tools for using these standard contracts without needing a government-to-government agreement.

Challenges with Standardized Contracts

• There is concern about the widespread adoption of standardized contracts, as currently only a few entities (around five or six) have successfully implemented them. Learning curves exist for these organizations.

Pilot Programs and Implementation

• The law encourages pilot programs where public entities can experiment with standardized contracts. This involves collaboration with stakeholders who already utilize such contracts, like NEC, which is translating its standards into Spanish.

Gradual Adoption and Training Needs

• While there is potential for growth in using standardized contracts, it will be a gradual process requiring training and capacity building among professionals involved in procurement.

Concerns About Public Procurement Solutions

Historical Context of Procurement Tools

• There is skepticism regarding new procurement solutions being seen as panaceas for all issues. Past experiences show that even seemingly effective tools can fail under certain circumstances.

Risks Associated with Standardized Contracts

• New instruments often come with high expectations but may not deliver results across different contexts. For instance, while NEC contracts worked well during the Pan American Games, they failed during reconstruction efforts in northern Peru.

Importance of Contextual Application

• It’s crucial to understand how and when to apply these standardized tools effectively. Misapplication could lead to wasted resources and missed opportunities for improvement in public contracting processes.

Capacity Building and Technical Skills

Need for Professional Development

• Developing technical skills among those utilizing these new tools is essential. Without proper training, there’s a risk that valuable resources may not be utilized effectively.

Avoiding Political Misuse

Discussion on Legal Guarantees in Public Procurement

Changes to Guarantee Limits and Implications

• The current legal framework sets the guarantee for public procurement at 3%, with a high cap of approximately 1.5 million soles, which may act as a barrier to contesting selection procedures.

• The limit for appealing selection processes has been reduced to around 250,000 soles, which is seen as a positive change that could enhance access to appeal mechanisms.

• While the maximum limit has decreased, the percentage of the guarantee has also been lowered significantly; for example, a process valued at 100,000 soles now requires only a 500 sole guarantee instead of 3,000 soles.

• There are mixed feelings about these modifications; while reducing the upper limit is beneficial, lowering the percentage might lead to increased litigation and delays in procurement processes.

• Concerns arise regarding excessive litigation due to lower guarantees potentially hindering timely public procurement and affecting governance standards in Peru.

Balancing Access and Litigation Risks

• It’s crucial to monitor how these changes impact access to appeals without compromising defense rights against administrative decisions.

• Acknowledging that while reduced guarantees allow more parties access to appeals, they may also lead to complex litigation scenarios that could disrupt state operations.

• Rational actors typically avoid losing money on guarantees; however, sometimes it can be strategically advantageous if it leads to winning contracts despite initial losses.

• The legislative shift appears aimed at facilitating appeals but raises questions about whether this will result in frivolous claims or unnecessary delays in procurement processes.

Historical Context and Future Considerations

• Historically, there were no guarantees required for appeals; thus multiple challenges could occur within selection processes leading to inefficiencies.

• The introduction of guarantees was intended as a deterrent against malicious appeals; however, discussions continue regarding their adequacy based on empirical studies or arbitrary decisions by lawmakers.

• International criticism highlights concerns over excessive litigation stemming from poorly regulated appeal systems; thus reducing burdensome guarantees aims at striking an equilibrium between accessibility and responsible use of legal recourse.

Final Thoughts on Arbitration Regulation

• There are ongoing debates about whether Congress adequately assessed the implications of setting new guarantee percentages like 0.5% versus alternatives such as 0.6%.

• Appeals should be integrated into overall contracting strategies rather than viewed solely as obstacles; effective planning must account for potential disputes arising from contract negotiations.

• Emphasizing the need for measurable outcomes from these regulatory changes is critical—without proper metrics, it's challenging to evaluate their effectiveness or make necessary adjustments moving forward.

Regulatory Challenges in Arbitration

Quality of Arbitrators

• The regulation is a step forward, but there remains a challenge regarding the quality of arbitrators. It is essential to establish mechanisms for arbitration centers to select qualified arbitrators effectively.

Cost Regulation in Arbitration

• There is a need to regulate arbitration costs rather than leaving it solely to individual centers. This ensures fairness and transparency in the arbitration process.

Accountability of Arbitration Institutions

• The responsibility of arbitration institutions includes ensuring that their appointed arbitrators fulfill their duties. There are concerns about accountability and whether these institutions are adequately monitored.

Supervision Over Arbitration Institutions

• Discussion on the importance of supervision over arbitration institutions, particularly concerning sanctions against non-compliant arbitrators. This highlights ongoing debates about whether arbitrators should be considered public officials.

Professionalization of Public Procurement

• Emphasis on the professionalization of public procurement roles, recognizing the need for specialized training and improved decision-making skills among public buyers.

Challenges in Public Procurement Management

Enhanced Certification for Public Buyers

• New regulations aim to improve certification processes for public buyers, incorporating both technical knowledge and soft skills necessary for effective procurement decisions.

Integration with State Logistics

• The integration of profiles, competencies, and responsibilities within state logistics is crucial as part of the broader effort towards professionalizing public procurement management.

Comprehensive Change Required

• A radical change is needed in how public procurement operates, including developing new roles and activities that align with updated legislation and systems like SERVIR.

Future Discussions on Public Contracting

Need for Extended Dialogue

• Acknowledgment that discussions around new contracting laws require more time to explore all implications thoroughly.

Importance of Current Legislation

• Highlighting the relevance of current laws as they apply to ongoing programs related to specialization in contract management.

Final Recommendations from Experts

Addressing Participant Concerns

Overview of Upcoming Regulations and Specialization Program

Introduction to New Regulations

• The Executive has set a timeline of 180 days for the regulation and an additional 90 days for its implementation, expected to commence around March-April 2025.

• The program will explain the current regulations while also addressing changes introduced by the new law, particularly focusing on impediments outlined in both existing and upcoming legislation.

Current vs. Future Legislation

• There will be limited depth on certain topics due to pending regulations from the Executive, which creates a content gap; however, current applications will be integrated with future expectations.

• Emphasis is placed on attending this specialization program to gain insights into present practices while preparing for future changes anticipated in 2025.

Program Details

• Wendy Quiñones introduces information about the specialization program in state contracting management starting July 16, highlighting it as one of the last calls for enrollment this year.

• The program consists of 150 hours of distance learning led by experienced faculty members who have held significant positions in public institutions like MEF and Contraloría General.

Academic Structure

• The curriculum includes five modules plus an integrative workshop taught by recognized educators; links to brochures and registration are provided in chat.

• The institution is ranked as Peru's number one university according to World University Ranking 2024, offering high-level academic instruction with digital certification upon completion.

Learning Format and Certification

• Classes feature live synchronous sessions complemented by asynchronous activities, fostering networking opportunities among students nationally and internationally.

• A digital badge will be awarded for academic achievements that can be shared on platforms like LinkedIn; requirements include a minimum passing grade and attendance.

Program Duration and Investment

• The course lasts approximately three months with classes scheduled three times weekly: Tuesdays and Thursdays from 7 PM to 10 PM, Saturdays from 9 AM to noon.

Payment Options and Group Discounts

Overview of Payment Benefits

• A unique payment option is available, allowing participants to complete a form via a shared link in the chat or contact through WhatsApp for assistance with this benefit.

• The special early payment rate is valid until Thursday, July 4th, at 5 PM, applicable only for groups of two or more; it does not apply to service orders.

Group Discount Promotion

• Several attendees expressed interest in joining the group discount promotion. Participants are encouraged to share their details in the chat for coordination.

• Individuals interested in grouping together can leave their information to facilitate registration and access the special discounted rate.

Communication and Contact Information

• Attendees are reminded to provide their contact numbers for direct communication regarding the benefits. Rodrigo has already shared his email and is encouraged to provide his phone number as well.

• This exclusive benefit is offered as gratitude for attending the conference series on contracting programs.

Payment Methods Available

• Payments can be made through various banks using mobile applications, at bank counters, or via an online store with debit or credit cards.

• Special financing options include interest-free payments: up to 9 months with BBVA credit cards and up to 12 months with Diners Club cards, applicable only if paid through the virtual store.

Support and Final Remarks

• For any questions or concerns, attendees can reach out directly via phone (992966374) or email (Wquinones@pedrogarcia).