The second reform provision of the Organic Reform Law of the Comprehensive Criminal Code on Anti-Corruption Matters states the following as a process improvement measure or option: “Certify public servants of contracting entities as operators of the National Public Procurement System, and individuals interested in joining the public service, in endorsing their knowledge and skills. According to this provision, every public servant participating in the procurement procedure phases must be certified.”
Accreditation as SERCOP operators is mandatory for public servants. However, for private contractors or state providers, training the company’s personnel who manage and generate the necessary documents to participate in pre-contractual stages and perform activities during the contract execution in coordination with the contracting entity’s administrator is optional. These actions are of vital importance when safeguarding the contractor’s interests.
Regarding this, the regulations do not prohibit participation in public procurement processes for State contractors who do not have the SERCOP operator certificate. Nevertheless, the purpose of the accreditation issued by the National Public Procurement Service is to ensure sufficient knowledge of public procurement of the actors involved in the different stages.
The lack of knowledge about the obligations of a State provider can cause strategic process deficiencies, severe economic losses, and sanctions for the contractor. This can be overcome by prior training that observes the principles governing this matter, its legal bases, its sanctioning regime, and, generally, the legal implications that a State contractor may have.
- In our opinion, the essential concepts that personnel representing the provider or contractor in public procurement with the State must know are:
- Use the SERCOP platform and accreditation as a State Provider for natural and legal persons, including holdings and specific requirements for the latter.
- Strategies for reviewing bidding documents, technical specifications, and terms of reference.
- Correct calculation in the application of fines does not only apply to breaches of deadlines or terms.
- Responsibility of private contractors before the General Comptroller’s Office of the State and the Financial Analysis Unit.
- Responsibility with subcontractors and co-responsibility with the State.
- Application and scope of cases of force majeure and fortuitous event regarding obligations with the State.
- Unilateral termination of contracts with the State.
- Prevention of the Declaration of Non-Compliant Contractor or Failed Bidder.
- The challenge of resolutions of the contracting entity, deadlines, and strategies.
- Payment agreements recognize the payment of obligations generated by acquiring goods and services provided by State providers.
Therefore, SEIKLA offers advice on the different stages where State contractors act, as well as training the State providers’ personnel to prevent unnecessary losses or legal inconveniences for the company and its representatives.
