On March 1st the Corporate Criminal Liability Law will become effective and, in this context, the Argentine Transport Agency (Dirección Nacional de Vialidad), has moved forward by requesting parties interested in highway PPP projects to prepare an integrity plan and to accept being monitored during the whole execution of the PPP Agreements.
Only a few days before the entry into force of the Corporate Criminal Liability Law No. 27,041, which under certain circumstances attributes criminal liability to private corporations for the crimes of (i) local or international bribery (“cohecho”) and influence peddling (“tráfico de influencias”); (ii) negotiations that are incompatible with public office; (iii) illegal payments made to public officials under the guise of taxes or fees owed to the relevant government agency (“concusión”); (iv) illegal enrichment of public officers and employees; and (v) falsification of balance sheets and reports to conceal local or international bribery or influence peddling (for further information please visit Corporate Criminal Liability Regime), the Argentine Transport Agency regulated certain aspects related to its application within the scope of the “Network of Highways and Safe Routes – PPP Project – Stage 1 Project (the “Highway PPP Projects”).
Thus, by means of Argentine Transport Agency Resolution No. 300/2018, issued on February 21 2018, a paragraph was incorporated to the Highway PPP Agreement template pursuant to which PPP contractors must (i) accept the monitoring of their integrity program during the whole execution of the relevant PPP Agreement: and (ii) undertake to demand their subcontractors to implement and fulfill an integrity program, while making them accept the monitoring of such plan.
In this way, the Highway PPP Projects’ contractual framework aligns with Corporate Criminal Liability Law by establishing not only the condition of having an adequate integrity program as a prior requisite to execute the corresponding PPP Agreement, but also demanding PPP Contractors and their subcontractors to accept the monitoring of such integrity programs by public authorities.
This represents an improvement for transparency in public procurement and a challenge for its implementation to be predictable and to grant legal certainty to all involved parties.
This insight is a brief comment on legal news in Argentina; it does not purport to be an exhaustive analysis or to provide legal advice.