New Procurement Rules For The Federal Public Administration

The National Executive regulated the Federal Procurement Regime.

On June 7, 2012, the National Executive issued Decree No. 893/2012, implementing regulation of Delegated Decree No. 1023/2001, which in turn approved the Federal Procurement Regime (the "Implementing Decree" and "Decree 1023"). The Implementing Decree expressly derogates the former implementing regulation approved by Decree No. 436/2000 (the "Derogated Decree") and the General Bidding Terms and Conditions for the Procurement of Goods and Services by the Federal Government, approved by Decree No. 834/2000, among others. The aim of this article is to outline some of the most important differences between the Implementing Decree and the Derogated Decree.

The scope of the Implementing Decree presents the first modification with respect to the Derogated Decree. All jurisdictions and entities of the Federal Executive Branch are still comprised within the scope of the regulation for their goods and services' procurement operations, except for those cases expressly excluded by the regulations. To those existing exclusions, the Implementing Decree added the exclusion of public works contracts, public works concession agreements and utilities and license agreements. However, the Implementing Decree can be applied to exclude contracts, jurisdictions and entities on a voluntary adherence basis.

Contracts covered by the Implementing Decree are governed just as they used to be under the Derogated Decree by said Implementing Decree; by the Bidding Terms and Conditions; by the contract, agreement or purchase order, as applicable. Additionally to those sources, the remaining administrative law norms are to be applied and, lastly, private law rules through analogy. The inclusion of private law rules is an innovative feature of the Implementing Decree, whose true extent will be known as the new rules are actually applied in specific cases.

Along the same lines, the Implementing Decree has modified the obligation to keep filed bids into effect. In contrast to what the Derogated Decree had established, under which each jurisdiction or entity was empowered to determine the timeframe of such obligation, the new Implementing Decree establishes as a default rule a 60-day term as of the opening of the bids throughout which the bid must be maintained and guaranteed, except in those cases where said default rule is expressly left aside by the jurisdiction or entity in the Bidding Terms. The term so...