Castellán

Under the paradigm of Electronic Government or E-Gov, whose essential purpose is to increase efficiency in the field of Public Administration through the use of Information and Communication Technologies (ICT), with the promulgation of Law 18,834 -specifically, its article 22- in November 2011, this innovative contracting modality with the State emerged.

Despite having joined in the normative field this innovative trend of public procurement already established in various countries in the region such as Chile, Paraguay, Peru, Colombia, Ecuador, and Costa Rica, the truth is that only some years later Uruguay is taking its first steps in the experience of Framework Agreements.

What is a Framework Agreement?

According to the definition contained in article 1 of Decree No. 367/018 (published in the Official Gazette on November 13, 2018), regulatory of article 22 of Law 18,834 and substitutive of Decree No. 42/015, the Framework Agreement is a procedure for the procurement of goods, services, and works to be offered to all state public bodies in a virtual store and for a certain period of time.

Can any good, work, or service be the subject of a Framework Agreement?

No. Article 22 of Law 18,834 establishes that goods, works, and services \"commonly used in State Public Administrations\" may be the subject of Framework Agreements, also providing that said object must be \"uniform and clearly defined.\" Likewise, the aforementioned article 1 of Decree 367/018 refers to goods, works, and services \"widely used in the State.\"

Consequently, goods, services, or works that are useful only for the fulfillment of specific tasks of one or some organizations, such as the acquisition of medical technology or supplies for water purification, cannot be contracted through the Framework Agreement modality.

Selection procedure of the supplier(s) of the good, service, or work subject to the Framework Agreement

In accordance with section B) of article 22 of Law 18,834, one of the conditions that every Framework Agreement must meet is the conduct of a public call for the selection of suppliers through a competitive procedure.

As provided in articles 2 and 14 to 16 of Decree No. 367/018:

A) Authorization of the State Purchasing and Contracting Agency (ACCE)
One of the particularities of this regime regarding other modalities of public procurement is the requirement, established in the second paragraph of article 22 of Law 18,834, of the authorization of the ACCE to the agency that is preparing to develop a Framework Agreement. Once the aforementioned authorization is obtained, the agency acquires the status of Administrative Unit of the Framework Agreement to be developed (article 2 of Decree No. 367/018).

B) Market Study and Special Conditions Specification
As provided in article 4 of Decree No. 367/018, the Administrative Unit of the Framework Agreement must carry out a market study, analyzing the supply and demand of the good, service, or work that is intended to be acquired through this modality, its viability, economic convenience, impact of the implementation of the Framework Agreement on the market.
Likewise, according to article 5 of the Decree, the Administrative Unit of the Framework Agreement must proceed to draw up the Special Conditions Specification that will govern the competitive selection procedure of the supplier(s), seeking the participation of as many bidders as possible.
One of the aspects in which Decree No. 367/018 innovates with respect to its predecessor Decree No. 42/015 is in the establishment of certain indications that the Special Conditions Specification must contain. In this sense, it is highlighted the possibility that suppliers may temporarily or permanently improve the prices of their products during the validity of the Framework Agreement -subject to a favorable technical report-, as well as the determination of the incident and/or complaint management modality by the acquiring administrations of the goods, works, or services concerned.
Both the Market Study and the Special Conditions Specification must be submitted to the ACCE for analysis and to determine whether to recommend the continuation of the procedure.

C) Publication of the call
In case the ACCE recommends the continuation of the procedure, article 6 of the Decree establishes that, without prejudice to other means of advertising, the Administrative Unit must publish the call on the ACCE website, with a minimum advance notice of 20 business days before the opening date of the bids.
Additionally, the Administrative Unit of the Framework Agreement, as the agency responsible for carrying out the contracting procedure, will provide clarifications requested by interested parties, making public the queries and their respective answers on the ACCE website.

D) Submission of bids
In accordance with the provisions of article 7 of the Decree, the submission of bids by potential suppliers must be done online, through the ACCE website, from the date of publication of the call until the date and time set for the opening of the bids. For this purpose, interested parties must access the platform with the corresponding user registration in the Unique State Suppliers Registry (RUPE), which is a mandatory requirement, according to article 8 of the regulatory Decree of the Framework Agreements regime and articles 2 and 3 of Decree No. 155/013.
On the other hand, the aforementioned article 7 of the Decree establishes that bidders must specify the minimum quantities they undertake to provide based on the periodicity established in the Specification, while article 10 allows that the Specification may establish the possibility for interested parties to present a price structure associated with purchase volumes.

E) Opening of bids
Article 11 of the Decree determines that the opening of bids must be electronic in all cases. From a practical point of view, this means that, when the scheduled date and time for the opening arrives, the electronic platform will not accept any more bids and will automatically generate the Opening Report, which will also be automatically sent to all bidders at their respective email addresses registered in RUPE.

F) Evaluation of bids
The bids will be analyzed for their admissibility and suitability by a Bidding Advisory Committee that will operate within the Administrative Unit of the Framework Agreement, applying the criteria and weighting factors established in the Special Conditions Specification. The conclusions reached by the Bidding Advisory Committee must be reflected in a report with a list of ratings of the bidders (article 12 of the Decree).

G) Manifestation period of the file
In accordance with the reference of article 12 of the Decree to article 67 of the TOCAF, after the pronouncement of the Bidding Advisory Committee, the file in which the procurement procedure is processed will be made available for 5 business days, so that bidders can examine it and make in writing all the observations that the course of the procedure deems appropriate.

H) Award
Having elapsed the manifestation period without any of the bidders making observations or, if made, after they have been analyzed and subject to the opinion of the Court of Auditors regarding the legality of the procedure, the Administrative Unit will proceed to award the Framework Agreement (article 13 of the Decree). The winning supplier(s) will have the right for their products, services, or works to be included in the Virtual Store, which operates on the ACCE website, as established in article 16 of the Decree.

Execution of the Framework Agreement

During the validity of a Framework Agreement, any agency that needs the products, services, or works covered by it may acquire them directly from the Virtual Store, very similarly to how any person makes their online purchases. In this way, the purchase order will be automatically generated, which must also be reviewed by the Court of Auditors to certify the legality of the expenditure.

Another novelty brought by the issuance of Decree No. 367/018 is the possibility, established in article 21, that the goods included in a Framework Agreement can be replaced by others with equal or superior characteristics, as long as the original price is not exceeded. For this purpose, the supplier must submit their proposal, through the platform enabled for this purpose, to the Administrative Unit, which must issue an opinion on said request within a maximum period of 10 business days, subject to a favorable technical report.
In case the Administrative Unit of the Framework Agreement accepts the proposal to replace the goods, prior to the publication of the new products in the Virtual Store, it must notify the Court of Auditors.
According to the provisions of article 22 of the Decree, the Administrative Unit may remove a supplier from a Framework Agreement in the following cases:

- Non-compliance with their obligations;
- If their representatives or dependent personnel have not observed the highest ethical standards, or committed acts of fraud, bribery, extortion, coercion, and/or collusion;
- If it is found that they offer the goods, services, or works included in the Framework Agreement with prices and/or other characteristics noticeably different from those they usually offer in the market, to the detriment of what is established in the Framework Agreement.

Adjudicated Framework Agreements

According to information obtained from the ACCE website, the following Framework Agreements have been awarded:

Framework Agreement No. 1/2015: Acquisition of Desktop and Laptop PCs: Administrative Unit: Agency for the Development of Electronic Government Management and the Information and Knowledge Society (AGESIC).

Framework Agreement No. 1/2016: Acquisition of Desktop and Laptop Computer Equipment: Administrative Unit: Agency for the Development of Electronic Government Management and the Information and Knowledge Society (AGESIC).

Framework Agreement No. 1/2017: Acquisition of Tires for Cars and Vans: Administrative Unit: Presidency of the Republic.

Framework Agreement No. 1/2017: Acquisition of Desktop and Laptop Computer Equipment: Administrative Unit: Agency for the Development of Electronic Government Management and the Information and Knowledge Society (AGESIC).

Framework Agreement No. 2/2017: Acquisition of Office Supplies and Accessories: Administrative Unit: State Purchasing and Contracting Agency (ACCE).

Framework Agreement No. 1/2017: Acquisition of Construction Materials: Administrative Unit: Ministry of the Interior.

Final Considerations

 

Despite the fact that, as previously mentioned and as can be seen, our country is just beginning the experience of Framework Agreements, the implementation of this innovative contracting modality shows an increase in the state apparatus as a consumer of goods and services, resulting in greater opportunities for suppliers, who, in turn, face the challenge of an increasingly competitive market.

 

Dr. Juan Pablo Díaz

 

Montevideo, August 1, 2019