It is true, the new provision of the Government Procurement Act, we refer to article 100 ter, according to its final wording obtained from the Legislative Assembly website, generates a certain legal unease for those of us who defend the Rule of Law.
A differentiated sanction has been established for a specific social group, that of individuals and legal entities that contract with the State in relation to road infrastructure projects.
The group is not only made up of construction companies, but also companies that carry out the administration, supervision or inspection of these types of projects, on behalf of the State or municipalities.
The responsibility of imposing this sanction is delegated by the legislator exclusively to the Administration. That is, it excludes from the provision what the other rules of the sanction regime to the contractors of the State in general provide, in the sense that the sanction can also be imposed by the Comptroller General of the Republic.
According to this rule, the Comptroller's Office will have only two responsibilities: i) it will recommend to the Administration the opening of a procedure when it deems there is a possible breach and ii) it will keep updated the registry of unfit declared contractors so that the Administration declares inadmissible any offer that comes from a company disabled for the reasons indicated. The philosophy behind this reform is to pursue with greater efficiency and effectiveness the serious breaches and manage to exclude those unfit persons from State contracts. Will the Administration have the capacity to implement this legal provision with the same, or less resources, given the fiscal situation? How will the Ministry of Transportation and Public Works with its few legal advisors resolve the need to initiate more administrative procedures as provided by the application of the standard? We don't know the answers.
In addition to the odious differentiation that this recently approved legal provision contains, there are two things that that offer deep concern. There are considered as serious offenses whose consequence will be the disqualification to engage y government contracts, four specific and determined assumptions of fact, and a fifth one that is an open statement: "Other serious offenses that are thus established in the terms of reference and in the contract." This assumption does not exist for the disqualification sanction of the rest of the contractors.
This means that the Administration may regulate beyond what the law has established, and will then define, at its discretion, what reasons it considers qualify as a serious offense, and that merit a disqualification penalty. This power delegated by the legislator to the Administration, besides being dangerous, could be unconstitutional for violation of the principle of typicity by which this kind of legal norms that regulate penalties and sanctions, must be governed. The Constitutional Chamber in its case law has said that the specificity of the administrative work and the consequent diversity of behaviors that can be developed in the course of a relationship with the Administration, require the application of the principle of typicity in a tempered or nuanced way. This seems clear when the offense involves a warning or even a suspension. But when it comes to a disqualification that can reach up to 10 years, that nuance requested by the Chamber, can become arbitrary to the detriment of those individuals and entities and, again, to the detriment of our tradition of respect for the rule of law.
From now on, it is very important to be alert about the stipulations in the bids' terms of reference in relation to the penalties regime because it may well happen that faults that do not have a significant degree of seriousness are going to be sanctioned with the disqualification. This requires the necessary challenge through the remedies available.
The second concern is that it left a gap over the statute of limitations that governs the assumptions that this regulation provides. Article 100 bis of the Government Procurement Act provides for the rest of the contractors two terms depending on the infringement in question, which will be of three or five years. The legislator, in the case of road infrastructure project contractors, has left the legal operator the responsibility of interpreting what the statute of limitations may be. The interpretation, we suppose, should be in favor of contractors and not to their detriment (pro homine principle). It is regrettable that this was not defined in the reform, but we will be vigilant about the way in which this gap will be resolved.
We hope that there are no more odious differentiations for this social group, and that no others are generated, in relation to other social groups, as it would be a very difficult pattern to assimilate in our environment and in the framework of legality that characterizes us Costa Ricans.
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