Transparency in Public Procurement

Decree N° 202/2017 (the “Decree”), published on March 22, 2017 in the Official Gazette, provides the obligation of filing a “Sworn Declaration of Interests” for every individual aiming to participate in a public procurement procedure or in the process of being awarded with a license, permit, authorization, or right over a state owned goods or goods pertaining to the public domain, carried out by any of the Federal Government’s authorities or agencies.

In the Sworn Declaration of Interests, individuals must disclose if they have any relation with the President, Vice-president, Chief of Cabinet, other Ministers and authorities of the same hierarchy that fall within certain categories (partnership, association, being debtor or creditor, having received importance benefits, amongst other categories). This disclosure obligation is extended to cases involving public employees of a lower hierarchy than ministers who have the authority to decide on procurement processes or certain acts which are of interest of the declaring party.

In relation to legal entities, the Decree takes into account the links between the relevant public officers and the representatives of the relevant legal entity, their controlling or controlled companies or companies with direct interest, their directors and their partners or shareholders that have enough participation to form the social will or that have a dominant influence over the legal entity.

When the Sworn Declaration of Interests discloses the existence of any of the links identified in the Decree, the entity in which area the corresponding procedure is carried out must notify the Anti-Corruption Office and the General Audit Office and must ensure that publicity is given to the proceedings according to the rules of access to public information. The following mechanisms must also be adopted:

1. Execution of integrity agreements
2. Involvement of social witnesses
3. Special monitoring from controlling agencies
4. Public Hearings

The Anti-Corruption Office must approve the regulations and the necessary forms for the implementation of these mechanisms. Likewise, it will be able to issue clarifying and complementary rules, and will elaborate plans, manual protocols and/or standards to be applied by the entities reached by the Decree.

The Decree seeks to ensure the highest standards of integrity, rectitude, transparency and defense of the general interest. It will be important to follow up the rules and procedural manuals to be issued by the Anti-Corruption Office to implement the mechanisms provided for in the Decree, as well as its concrete enforcement.