Through Executive Decree No. 458 of June 18, 2022, published in Official Gazette Supplement 87 of June 20, 2022 (“RGLOSNCP“), the new Regulations to the Law of the National Public Procurement System were issued, effective as of August 20, 2022.The main changes concerning the previous regulation are the following:
- The National Public Procurement Service (“SERCOP“) must manage the data and information of the “COMPRASPÚBLICAS” Portal under open data and information concepts.
- In addition to the physical procurement file, contracting entities shall maintain an electronic file.
- Under no circumstances the electronically signed documents may be required to be printed. Once printed, they lose their legal validity.
- To encourage and promote local and national participation, a margin of preference must be granted to local and national suppliers. Therefore, SERCOP should establish the margins for each public procurement procedure.
- Disclosing the beneficial owners shall not be required in small-amount procedures.
- The supplier selection procedures for electronic and inclusive dynamic catalogs do not require the Relevance Report by the Comptroller General of the State, which aims to determine the relevance and favorability of the procurement according to the law.
- Suppliers interested in being included in the electronic and inclusive dynamic catalog may do so on a permanent and uninterrupted basis throughout the term of the respective framework agreement.
- The reverse auction procedure is divided into electronic reverse auctions and simplified reverse auctions. In the first case, the economic bids must be qualified prior to bidding. In the second, the qualification will be done a posteriori.
- Rules are established to apply the disqualifications set forth in Article 62 of the Organic Law of the National Public Procurement System (“Law“).
- Subcontracting is defined as “…the contractual practice under which the contractor, entrusts to another, called subcontractor, the performance of a part of the contract, prior authorization of the contracting entity.”
- Subcontracting shall not be considered as “…the acquisition or leasing of raw materials, inputs or indispensable means necessary for the development of the contractor’s activities to comply with the object of the contract…”
- The application of the price adjustment system shall be based on the principle of the economic equilibrium of the contract. Such application shall only be for reasons beyond the parties’ control that were not foreseen when the contract was signed.
- Rules are established to determine the commencement of contractual performance, depending on the type of contract or form of payment.
- The procedure to be followed by contractors to request extensions of the contractual term is regulated.
- The procedure for the termination of contracts by mutual agreement and the content that such agreement must contain are established.
- In the acquisition of goods, the contractor, the receiving committee, and the warehouse keeper of the contracting entity must sign the receiving act referred to in Article 81 of the Law.
- SERCOP shall implement technological tools in an open and easily accessible format on public procurement subject to the Law to facilitate subsequent control by the competent authorities.
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