Castellán

Professional practice in advising companies and organizations that usually contract with the State reveals the frequent lack of knowledge of the various tools and resources offered by the administrative procedure in its different stages in order to make the offers more viable, defend the interests of the company during the process, and in the event of being awarded the contract, achieve better performance in its execution. Often, professional legal advice and assistance are sought only after the offer is rejected or not awarded; with bidders unaware of the quantity of suitable legal tools and resources to implement in the pre-award phase. Similarly, if the company is awarded the contract, professional support is sought only when a conflict of interests with the Administration arises; such as, for example, the notification of fines or retentions. Not realizing that timely advice could have mitigated the damage.

Therefore, the purpose of this article is to analyze and provide a brief overview of the different legal tools and instruments available to companies and organizations that deal with the State, both in the stage of preparing these contracts, to achieve the desired result; as well as during their execution, to achieve successful performance.

Given the extent of the topic, we will limit ourselves to providing these guidelines in relation to the Public Tender procedure, which is as known the general rule in administrative contracting (without prejudice that this rule allows exceptions depending on the amount of the operation, which may enable contracting by Abbreviated Public Tender or directly).

STAGES TO CONSIDER

From the perspective of companies and organizations that intend to contract with the State, three main stages can be distinguished in the administrative contracting process by Tender. A first preparatory phase between the Administration and the participants, which includes: the tender call, submission of offers, opening of these and the Report of the Advisory Commission on Adjudications. Secondly, we can place the award and perfection stage. And finally, the stage of execution of the administrative contract.

WHO SETS THE CONTRACTING CONDITIONS?

The state entity is the one who publicly invites interested parties to submit their offers; and these must prepare them respecting the conditions and formalities established by the tender specifications, unilaterally elaborated by the Administration; their correct compliance can often determine success in the tender. For this purpose, it is good practice for the company, prior to preparing the offer, to conduct a thorough study of the tender specifications applicable to the call. This will allow, on the one hand, to refine the offer by eliminating formal or mathematical errors that could lead to disqualification. And on the other hand, it will allow to determine if the specifications have omissions or contain mentions or requirements that admit more than one interpretation; or worse, there is the possibility that they are illegitimate. This could happen, for example, in the hypothesis that the specifications introduce as a substantial condition of the offer, some clearly secondary aspect that only one bidder in the market is able to provide.

For all these reasons, timely advice is essential for the written formulation of binding queries about the doubts or gaps that the specifications may contain. Every instance of prior clarifications is essential; since, once the offers have been submitted, and they have been opened, no modifications can be made to the offers presented. Only a period of two days can be granted to rectify obvious or minor errors that may be detected at the opening.

WHAT ROLE DOES THE ADVISORY COMMISSION ON ADJUDICATIONS REPORT PLAY?

The bidder will try to prepare and draft their proposal adapting it to the object and procedure required in the specifications. And it will be the Advisory Commission on Adjudications (CAA) that will report on the compliance by bidders with the conditions. Its specific task is to report on the most convenient offer in a reasoned manner, as well as to analyze the positive and negative elements of the different proposals submitted.

The CAA Report may eventually be previewed by the bidders. Although it is not binding, reality indicates that it plays a very prominent role when deciding the award. It may happen that the report contains errors, or gives substantial importance to formal deviations of lesser importance that should not be suitable for the rejection of an offer. Or conversely, the opinion may have omitted considering substantial deviations in the offers of competitors. Bidders will have, in this single opportunity, the possibility to provide their defenses; and although the filing of a defense does not necessarily require the legal signature of an advising lawyer, having appropriate advice at this stage is absolutely key. This can determine a correct resolution of the objections raised, and thus determine the viability of the offer and its continuation in the award process.

WHAT HAPPENS IF THE TENDER IS NOT AWARDED?

The award of the Tender is a unilateral act of the Administration, and as such, it can be challenged. For this purpose, the affected bidder has a period of 10 consecutive days from the notification of the award resolution to file the corresponding administrative appeal(s). These appeals require a legal signature. Similarly, the resolution that declares the tender frustrated can also be challenged.

PERFECTION AND EXECUTION STAGE.

Whoever is awarded the call will enjoy, in the best case scenario, a negotiation and perfection stage of the contract to be signed, with advice being essential at this time. What happens, in the vast majority of cases, is that a particular contract is not signed, but the mere acceptance of the specifications or notification of the purchase order serves as the completion of the transaction. Or even signing a document, it does not allow adjustments to its clauses. What is absolutely necessary at this stage and assumes imperative relevance, are the communications between the parties, both regarding abnormal events that occur during the course of the contract, and in relation to modifications to it (possible extensions or reductions). In this sense, it is highly recommended to correctly and formally document these communications. Assuming these practices will determine, for example, the possibility of avoiding or mitigating administrative sanctions (fines) for partial or total deadline breaches; as well as allowing the preparation of valuable documentary evidence of the facts and factual development of the contract. We are forced to highlight the importance of formally requesting in writing deadline extensions when force majeure causes or other situations that may require a longer execution of the contracts occur. On the other hand, and in the same sense, it is also necessary to correctly document or formally request the recognition of additional tasks that may be carried out, as well as any other relevant modification to the original contract. These formal requests or communications will be recorded in an administrative file related to the tender; and will be fundamental elements that companies and organizations can rely on in the face of any potential client claims.

On the other hand, any type of Resolution that the Administration may issue during the course of the contract and in relation to it; will be subject to the filing of the corresponding administrative appeals if it entails grievances for the contractor. The formal filing of appeals in a timely manner is the only possibility that the administered party has to assert its interests against an unfounded or illegitimate resolution of the Contracting Entity.

Final Reflection

It should be emphasized the importance for individuals in all stages of administrative contracting, of knowing the tools offered by the administrative procedure and the applicable regulations; and in this sense, using the appropriate legal instruments to assert their interests in a timely manner. Just as, in the specific case, a thorough understanding of the applicable specifications is essential; which serve a dual function; before the completion of the administrative contract they establish the conditions (object and procedure) that the offers must contain and once completed they become part of it.

Montevideo, August 12, 2014.