A Differentiated Penalties Regime Has Been Approved For Road Infrastructure Project Contractors In Costa Rica

Author:Ms Kathya Araya
Profession:Dentons
 

It is true, the new provision of the Government Procurement Act, we refer to article 100 ter, according to its final wording obtained from the Legislative Assembly website, generates a certain legal unease for those of us who defend the Rule of Law.

A differentiated sanction has been established for a specific social group, that of individuals and legal entities that contract with the State in relation to road infrastructure projects.

The group is not only made up of construction companies, but also companies that carry out the administration, supervision or inspection of these types of projects, on behalf of the State or municipalities.

The responsibility of imposing this sanction is delegated by the legislator exclusively to the Administration. That is, it excludes from the provision what the other rules of the sanction regime to the contractors of the State in general provide, in the sense that the sanction can also be imposed by the Comptroller General of the Republic.

According to this rule, the Comptroller's Office will have only two responsibilities: i) it will recommend to the Administration the opening of a procedure when it deems there is a possible breach and ii) it will keep updated the registry of unfit declared contractors so that the Administration declares inadmissible any offer that comes from a company disabled for the reasons indicated. The philosophy behind this reform is to pursue with greater efficiency and effectiveness the serious breaches and manage to exclude those unfit persons from State contracts. Will the Administration have the capacity to implement this legal provision with the same, or less resources, given the fiscal situation? How will the Ministry of Transportation and Public Works with its few legal advisors resolve the need to initiate more administrative procedures as provided by the application of the standard? We don't know the answers.

In addition to the odious differentiation that this recently approved legal provision contains, there are two things that that offer deep concern. There are considered as serious offenses whose consequence will be the disqualification to engage y government contracts, four specific and determined assumptions of fact, and a fifth one that is an open statement: "Other serious offenses that are thus established in the terms of reference and in the contract." This assumption does not exist for the disqualification sanction of the rest of the contractors.

This means that...

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