News on the Public Private Partnership Contracts Regime
On 15 November 2017, National Decree No. 936/2017 (the Decree) was published, modifying Decree No. 118/2017, which regulated Law No. 27,328 of Public Private Partnership Contracts (PPP Contracts).
The Decree introduced the following main modifications:
- Substitutes the Public-Private Partnership Unit with the Public-Private Partnership Under-secretariat as the consulting, operating and technical supporting body of PPP Contracts.
- Modifies the payment method of the PPP Contractor's consideration when it shall be paid by the users or the State, and allows the use of trusts for such purposes.
- Allows the participation of provinces and municipalities in the execution of interjurisdictional PPP Contracts.
- Includes under the PPP regime the projects which purpose is the provision of workforce, the supply and provision of goods and the construction or execution of works substantially financed with National Treasury funds.
- Authorizes partial receipt by stages and the right to receive the corresponding consideration for those stages, even if the partial receipt occurs before the date foreseen in the PPP Contract.
- Includes the delivery of recognition instruments of the investments under the contractor's charge when the appropriate milestones are reached.
- Eliminates the right to challenge the offers or the opinions issued by the assessment committees, with the sole possibility of objecting the award.
- Establishes as a condition for international arbitration agreement that contractors shall have foreign shareholders for the minimum percentage established in the bid specifications of each Project.
On 21 November 2017, the following regulations were published in the Official Gazette: (i) Decree No. 944/2017, which approved the "Regulation for the Transparent Procedure of Consultation" allowing the discussion, debate and opinion exchange with the interested companies, allowing them to share their experience, technical knowledge and best practices in the draft of the bid specifications whenever the complexity or amount of the PPP project justifies so; and (ii) Disposition No. 1-E/2017 of the PPP Under-Secretariat, which approved the "Guide for the Transparency in Public Contracting Management", identifying the best international transparency and ethical practices in force regarding PPP projects, and which shall be included in the bid specifications in PPP Contracts.