Public Health Emergency: Direct Contracting of Goods, Services and Equipment

I. Introduction

On March 18, 2020, through Emergency Decree No. 287/2020 ("Decree 287/20") and Administrative Decision No. 409/2020, the Argentine Executive introduced amendments to Emergency Decree No. 260/2020 ("Decree 260/20"), which extended the public health emergency established by Law No. 27,541, following the pandemic declared by the World Health Organization in relation to the coronavirus COVID-19 and its increasing spread in Argentina.

Subsequently, through Provisions No. 48/2020, No. 53/2020 and No. 55/2020, the Argentine Procurement Office approved a complementary procedure to hasten the practical implementation of the Emergency Procurement Framework and to facilitate the management of all stakeholders involved in such procedure.

II. Main amendments

Decree 287/20 authorizes the direct contracting of goods, services and equipment necessary to attend to the public health emergency for jurisdictions and entities that comprise the Argentine Public Sector in light of article 8, paragraphs a) and b) of Law No. 24,156, namely:

• Central administration and decentralized agencies; and

• Companies and enterprises owned or controlled by the State.

Because of this measure, during the term of the public health emergency, such entities and jurisdictions will not be subject to the Federal Public Administration Procurement Framework approved by Decree No. 1,023/2001 (“Decree 1023”) or other specific procurement regimes, which establish public bidding as a rule.

Decree 287/20 provides that any direct contracting must be afterwards published in the Official Gazette and on the Federal Contracting Office’s website.

Moreover, the Chief of the Cabinet of Ministers –within the framework of the faculties granted in the emergency regulations– provided that the principles and guidelines that will govern the Emergency Procurement Framework will be those enshrined in Decree 1023:

• Reasonability and efficiency;

• Competitive biddings;

• Transparency;

• Publicity;

• Responsibility of the officials who authorize, approve or manage the tender procedure; and

• Fairness and equal treatment.

This measure reinforces and expands the powers conferred by Law 27,541 and the original text of Decree 260/20 to the Argentine Ministry of Health, with the same scope and effects, to proceed with the direct contracting of goods, services or equipment necessary to deal with the public health emergency.

Finally, Administrative Decision No. 472/2020 established that all purchases made under the Emergency Procurement Framework would be limited to the maximum prices set by the Secretariat of Domestic Trade of the Ministry of Productive Development.

III. Conclusions

Through Decrees 260/20 and 287/20, the Argentine Government has reinforced the mitigation of the coronavirus COVID-19 outbreak and its consequent public health impact within the framework of the public health emergency as a main priority, for which the Argentine Government has enabled direct contracting mechanisms.

It will be important to monitor closely the evolution and effective operation of this measure.