Public Bidding Procedure
PUBLIC BIDDING PROCEDURE
Concept
It is an administrative procedure relating to the manner in which certain contracts are entered into, the purpose of which is to determine the person who offers the Administration the most advantageous conditions. It is an invitation to interested parties, by means of bidding documents, to submit proposals.
Two aspects stand out: a- public bidding is a procedure, which means that it differs from the contract, the act, or the way contracts are entered into; and b- the principles of equality in the treatment of bidders and compliance with the bidding structure are incorporated. Art 149 of TOCAF
Preparatory stage [INTERNAL].
It is internal to the administration and includes technical, legal, economic-financial and political feasibility studies of the contracting to be carried out, provisional allocation of the expenditure, preparation of the specifications, and their approval.
A budget appropriation must be available; it is the preventive allocation or provisional imputation by means of which the future expenditure is to be faced. This allocation is provisional and not definitive since it will be definitive when the awarding act is issued. Article 14 of the TOCAF.
It is forbidden to split the expenditure. Art 32 of TOCAF.
Before March 31 the purchase plans must be published, a date was set, that the annual purchase plans must be published on the website, and consequence that if the purchases are not published the terms for the purchases will be extended, this was done so that the bidders can prepare themselves better. Urgent Consideration Law and Decree 339/21 . The sanction, in the case of public bidding is between 15 and 20 days, the term will be 60 days. The terms of the call for bids are extended.
BIDDING DOCUMENTS.
A set of unilaterally elaborated clauses will be drafted to specify the object (supply, work or service to be bid), establish conditions (legal relationship) and determine aspects of the process (procedure).
Classification according to its content. Art 47 and 48 of the TOCAF:
- General bidding documents. Art 48 of TOCAF.
Supplemented with specific bidding documents for each contract.
- Particular bidding documents. Art 47 of TOCAF, Art 28 of Law 18.834. For contracts for:
Supplies and non-personal services
Public work.
Classification according to the criterion of greater or lesser completeness of its stipulations:
Analytical specifications. All the conditions relating to the object, the legal relationship and the procedure are established in detail, leaving only the price as a variable element .
Synthetic specifications. The bases are established in an abbreviated form. The variable elements are price, form, term and other specifications.
Classification based on substantivity:
Administrative specifications. They contain legal clauses.
Technical specifications. They are characterized by clauses of a technical nature.
Essential stage
This stage comprises acts aimed at achieving the manifestation of the common will of the Administration and a third-party co-contractor. It begins with the call for bids and ends with the adjudication. The most important elements are the presentation and opening of bids, the comparative study of the admissible proposals -pre-adjudication- and the manifest period when applicable. Other institutes such as negotiation and bid improvement may also appear at this stage.
CALL FOR BIDS.
It is an administrative act that involves a request for bids, requires publicity according to Article 51 of the TOCAF, and must be published in the Official Gazette and on the website of State Procurement and Contracting. The advertising must be made no less than 15 days prior to the bid opening date or no less than 20 days when it is deemed necessary or convenient the concurrence of bidders located abroad, the beginning will be counted from the business day following the publication on the website of State Procurement and Contracting. For reasons of urgency they may be reduced to 5 or 10 days. These are minimum terms, the administration may set longer terms.
The publications must contain the requirements of art 55 of the TOCAF (administration that formulates the call, object of the call and synthetic specification, place, date and time of opening, web site where the bidding documents are available).
Presentation of the bids, particular and unilateral legal acts of the bidder. The bids must meet three requirements: a- SUBJECTIVE REQUIREMENTS, which are the capacity, legal standing, and absence of impediments; b- OBJECTIVE REQUIREMENTS, related to what the bid deals with, work, supply or service; c- FORMAL REQUIREMENTS, which concern the instrumentation of the proposal, for example, that it is in Spanish, that it is well written, it may be in paper or digital format. It must be registered in the supplier's registry. It must be registered in Rupe, once submitted in Rupe the information in the bid cannot be changed. Art 63 of TOCAF. Guarantee of bid maintenance, so that the bid cannot be changed because in the opening the bids of the other bidder are seen. Art 64 of TOCAF. The presentation of the proposal must be made in person against receipt or in digital format in the state procurement system. The bid is digital.
The opening act, which may be electronic or in person, is a stage in which the bids are made public and documented in an automatic opening act. Article 65 of the TOCAF. At the end of the act, the minutes are drawn up and signed by the acting officials and the bidders, who may record any evidence they deem necessary. Decree 142/2018.
Examination of admissibility, through this study the proposals will be rejected or admitted. Those that do not comply with the subjective, objective or formal requirements set forth in the bidding documents will be rejected. The constitutive verification of rights and obligations is the admission, with a protected interest.
Examination of convenience is the study and comparison of the admitted proposals. Art 66 TOCAF. Here the evaluation criteria of the offers are important, as well as the preferences in favor of a certain proposal.
The only two mechanisms that allow changing the offer are a- improvement of the offer when there are two that have the same price with +/-5% if it is the difference that affects the selection score. b- negotiation. Art 66 of TOCAF.
EVALUATION CRITERIA.
The most suitable offer will be determined, applying art 65 and art 68 of TOCAF, which distinguishes:
1- QUALITATIVE ELEMENT. They point to subjective considerations, such as background, quality, experience, presentation of better technical assistance, etc.
2- QUANTITATIVE ELEMENT. They refer to measurable parameters, such as price, volume, quantity, etc.
3- PREFERENCES. Preference will be given to national goods, services, and works. Art 58 and 45 of TOCAF. As well as companies in the department that performs the work, art 117 of law 13.728 of 1968. As well as proposals that offer favorable solutions for the placement of exportable national products. Art 62 of TOCAF, and of goods and services and public works provided by micro, small and medium enterprises. Art 69 of TOCAF, art 136 of Law 18.046, art 46 of Law 18.362.
Pre-adjudication it is a report from the formal point of view that contains grounds for the selection of the award, although it is not binding. It is an opinion (qualified opinion), it is not an administrative act in the formal organic sense, it cannot be challenged by means of administrative appeals and is not subject to nullity action through the TCA.
Manifest of 5 days, art 67 of the TOCAF, it is notified to the interested parties in person or by telegram within 24 hours of the decree.
Considerations, the bidders may formulate in writing the considerations they deem convenient within the five-day period. The writings formulated as a petition will be considered. Art 30 and 318 CN.
Adjudication is an administrative, pre-contractual act. It is the decision of the competent authorizing officer, a manifestation of the administration's will. It translates into a discretionary act of the administration. The adjudication generates a subjective right in favor of the successful bidder, who has the right to the conclusion of the contract, a right excluding the other bidders during the process. Likewise, the adjudication produces the correlative legal duty to contract with the successful bidder on the part of the administration. The bidding documents will be part of the contract. If the administration withdraws before entering into the contract, the successful bidder must be indemnified. Non-awardees have the right to withdraw all documents submitted as well as the guarantees offered. The adjudication is an administrative act and may be challenged by means of administrative appeals. Art 73 of the TOCAF.
Integrative stage
The integrative stage is the formalization of the contract, if the signature or any other formality is not required, the contractual relationship is perfected after the adjudication resolution. Following Carbajal, who separates the adjudication from the contract, understands that the adjudication is a unilateral administrative act of the pre-contractual administration, and a contract is a bilateral act in the concurrence of two wills.
When the contract is not concluded in writing, the majority opinion is that the agreement of wills occurs with the notification of the act of adjudication. Art 69 of TOCAF, Art 37 of Law 18.834.
Art 74 of TOCAF may extend up to 20% of the contract or reduce it. This is the hypothesis of the mutability of the contract.
OTHER PROCEDURES FORESEEN
A restriction system is established that recognizes multiple contracting procedures.
Abbreviated Bidding
Art 33 of TOCAF. It is a procedure in which it is limited to establish procedural characteristics, such as the minimum number of invitees, the required publicity, and the time between the call and the opening. It is not necessary to publish in the official gazette, the terms of publication are 10 days, it is not mandatory to put the mandatory manifest until the three million.
It establishes a quantitative limit for this procedure, art 52 of TOCAF. It starts with an administrative act to seek to enter into a contract, it will be published on the website of State Procurement and Contracting a minimum of 3 days prior to the opening of bids, and may be reduced up to 48 hours prior to the opening for reasons of urgency.
Licitación Privada
Art 33 lit c num 2 de TOCAF. Procede cuando la licitación pública, abreviada o remate resultan desiertos o no se presentan ofertas válidas, la contratación se hará con las bases y especificaciones del procedimiento que fracasó y se invitarán a los oferentes originales. Cuenta con una naturaleza de procedimiento subsidiario y de excepción, ya que nunca será un procedimiento principal
Price Competition
Three firms from the industry I am contracting must be invited. 5-day publications.
--Direct Contracting
The procedure through which the administration chooses the co-contractor at its discretion and then enters into the respective contract with it. It is the application of the administration's legal power to select the co-contractor at its discretion. It is an exceptional mechanism and can only be verified in certain hypotheses for reasons of the amount or other reasons. It has no special formality or established term; above 40 thousand pesos it must be published on the state procurement site.
Pregón or low bid
In application of Law 18.834, it is a main procedure and a mechanism to put an end to a better offer. Art 34, Art 19 of TOCAF. It objectifies the procedure, so the object must be precise, concrete and easily determinable. Art 54 of TOCAF applies in that the advertisement must be not less than 10 days prior to the date set for the bidding. New technologies may be used according to Decree No. 196/015 of 2015. When it is a product that can be accessed materials for general use. The bid can be a maximum of one hour, it is automatic. It is used for fairly simple products.
Auction
Pursuant to Article 35 of TOCAF when income or resources are derived for the administration, there is a precise, concrete, and easily determinable object. Article 53 of TOCAF establishes that the advertisement must be circulated on the website of State Procurement and Contracting and in a newspaper of national circulation no less than 15 days prior to the date set for the auction. Decree Law 15,508 of 1983 and Regulatory Decree 495/984 of 1984. Law 18,834 provides for the auction to be held not only in person but also electronically.
Framework agreements
Pursuant to Article 36 of the TOCAF, the Executive Branch may create the advice of the State Procurement and Contracting Agency, subject to the opinion of the Court of Auditors a regime of framework agreements for goods, works and services of common use in the State Administrations. Decree 42/015 of 2015 will be published in a store items for the procurement of bids from partner suppliers. There are two procedures: one for the subscription of the framework agreement and one for the purchase through the framework agreement. This regidio by 367/2018 which repeals that of 2015. Instead of adjudication to one, it is adjudicated to many suppliers, with a period of up to 24 months with the possibility of extending that term. There is no need to make specific calls to purchase office supplies, it is possible to make successive purchases and it reduces the management terms. Suppliers can give discounts, partial or general. Products can be substituted under certain conditions. The agency uses the Boston matrix, using the most efficient way of purchasing. IT supplies. They are managed by agesic and the procurement regulatory agency.
PROCEDURES:
In the market study, there must be several purchasing administrations.
The bidding documents are drawn up. The call for bids is published in the same way as a bidding process.
They will entrust the authorizing officer of the expenditure, it must be the primary authorizing officer.
There is no fractioning of the expenditure. The general criterion is the price.
The quotations are by the department.
SUBSCRIPTION OF THE FRAMEWORK AGREEMENT. With the existence of the administrative unit, a particular bidding document is prepared and a call for bids is made. Art 3º, Art 6º, Art 7º. Bidders must submit their bids online through the State Procurement and Contracting website, Art 8, with a price structure based on wholesale bonuses. Art 8º, Art 10.
PURCHASE THROUGH FRAMEWORK AGREEMENT. Any state public administration may purchase from the supplier under the established conditions, without the need to manage a new procedure. Art 20.
Disposal of real estate
According to Article 81 of TOCAF, authorization is required for the disposal or encumbrance of the State's real estate assets and those of the Nation's cultural treasury, as well as for trusts. A legislative act is required, these may be of a specific or generic nature.
