2.1. Entities and institutions.
To what public entities and institutions does public sector procurement apply?
Section 2 of Decree Number 5,720/72 and amendments, which regulates Chapter 6 of Accounting Decree-Law Number 23,354/56, subjects the central administration and official banks, decentralized entities and State-owned companies to the provisions of government procurement, which had to adjust their respective regulations to that of the national administration, except in the cases in which such adjustment was incompatible with their corresponding bylaws or organizational laws.
Central government, local government, governmental agencies and ministries, statutory corporations and institutions wholly owned by the Government.
Procurement policies apply directly to purchases by Central Government and its departments but does not include statutory bodies or municipalities.
The Basic Rules of the Goods and Services Administration System (GSAB) approved by Supreme Resolution Number 216,145 of August 3, 1995, apply to every entity that belongs to the public sector, central administration, decentralized entities, public companies, prefectures and municipal governments. Likewise, the administrative departments of the legislative and judicial branches must use the procedures established for the procurement of goods and services.
Government procurement procedures are applicable to all government levels (federal, state and municipal) and to all branches (executive, legislative and judicial) including government entities at the three levels of government.
Government procurement is generally defined in terms of purchasing for the direct benefit and use of government entities. However, subcentral levels of government have full autonomy for their procurement. The answers in this questionnaire apply only to federal government procurement policies and procedures for federal entities (departments and agencies).
In Chile, public sector procurement is part of the supply function of the State, through the procurement of goods and services for consumption or production, and construction services. Public services, public companies and municipalities are included.
Law 80 of 1993 fostered the unification of government procurement regulations. Consequently, this law applies to every public organization and entity, at both centralized and decentralized levels: nation, departments, regions, provinces, indigenous territories, districts, municipalities, metropolitan areas, municipality associations and public establishments, commercial and industrial companies and mixed economy corporations, as well as entities linked to the above mentioned territorial entities, save the exceptions set forth by the law itself or by special laws.
In the scope of the national legislation, Section 1 of the Administrative Procurement Law, Act Number 7,494, published in the Official Newspaper on June 8, 1995, first in force in May of 1996, and Section 1 of the Administrative Procurement Regulation Law, Executive Decree Number 25038-H, published in the Official Newspaper on March 28, 1996, where it is established that the regulations apply to the procurement activity of the executive branch (ministries and entities related to the Central Government), of the Judicial and legislative branches, as well as to the Supreme Elections Court, the General Comptroller of the Republic, the People?s Defense Office, the institutional and territorial decentralized sector, to non state-owned public entities and to public companies. Regarding public companies, it specifically regulates that those companies with 50% or more corporate capital owned by the State or by any other public entity are included.
In addition, if public resources are used, either in a partial or total way, contractual activities of any kind must be governed by the principles of such regulation.
Regarding the concession of public works, Section 3 of Act Number 7,404, authorizes the executive branch, decentralized entities and municipalities, to award concessions for the construction, repair, expansion, conservation and restoration of public works and their corresponding operation. In addition, in the Regulation to that legislation, the Executive Decree Number 23,878-H, published in the Official Newspaper on January 6, 1995, in its Section 5, specifies the above mentioned statement, and authorizes that, pursuant to national convenience, the awarded concession can include the whole or part of the new or existing public works, and the authorization to develop complementary services, which should be set out and defined in the bidding documents.
Likewise, through Labor Corporation Act Number 7,404, published in the Official Newspaper on May 12, 1994, and its corresponding regulation, Executive Decree Number 24,202-MTSS, published in the Official Newspaper on May 16, 1995, a different modality within the Costa Rican legal framework was regulated with the main purpose of facilitating the participation in the government-related production activities of people who work in the public sector, while it ensures that the government is capable of reducing the number of officials and amount of fixed expenses, remaining empowered to contract such services. This legislation, which will be presented later, established a high-priority and special contracting authorization, with those organizations, in the terms indicated in the answers to this questionnaire.
In that way, the executive branch and decentralized entities are authorized to contract or grant, with those organizations, the provision of fundamental or auxiliary public services.
In the first case, the State or the decentralized agency is authorized to participate in up to 20% of the corporate capital, for a maximum period of three years. Afterwards, the sale must take place, as set forth by Section 11 of that law. In the second instance, public participation is prohibited (Section 6).
Government procurement procedures are applicable to public sector entities which, according to Section 72 of the Codified Political Constitution of the Republic, are formed by:
Likewise, companies that are the exclusive property of the State are part of the public sector.
It is worth clarifying that the independent sectorial regime refers to Municipalities and to Provincial Councils.
State-owned public companies
The Public Administration enters into contracts with:
The public sector entities and agencies with capacity to enter into contracts on behalf of the Administration are the:
In the Central Public Administration:
In the Decentralized Public Administration:
The procurement policies and guidelines as set out by government apply to central government, statutory bodies, local authorities and all public enterprises.
The provisions of the law apply to Federal Government agencies (which include Secretariats of State and their administrative departments) and the quasi-governmental entities (defined as decentralized organizations, state majority-owned companies and public trusts).
Government procurement procedures are applicable to all levels of the government: the State, that is to say, the central government, and its independent and semi-independent entities. In the case of procurements made by municipalities, local and communal boards and, as a rule, in the case of procurement governed by special laws, this law will apply in supplementary form. Likewise, those corporations effectively controlled by the State or where the State has economic participation or ownership will be governed by their incorporation laws or by the provisions of the private law set forth in the Commercial and Civil Codes and complementarily by the provisions set forth in this law.
All procedures for the procurement of goods and/or supplies, and public works set out in the legislation in force, encompass mostly all agencies of the central administration, as well as decentralized entities.
There are exceptions to these regulations in reference to decentralized organizations whose by-laws include the corresponding procurement rules and, consequently, are not governed by the procurement provisions.
These procedures are applied to the following entities:
Including the following budgetary terms of the organizations that represent the Legislative, Executive and Judicial State Powers:
Budgetary terms of decentralized public institutions and charitable organizations are included.
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Public sector procurement defined broadly includes purchasing by federal, state and municipal governmental authorities. However, the US procurement system is not centralized, except with respect to US federal executive agencies. The answers provided in response to this inventory generally refer to procurement by federal executive agencies.
Section 2 of the TOCAF sets forth who is included, in their capacity as Administrative Agencies for Finance and Equity, notwithstanding the attributions, powers, rights and liabilities granted by the Constitution and the laws:
As a rule, it refers to all agencies, services and state entities. In the case of commercial or industrial entities of the State, this provision will apply whenever its internal rules and regulations do not expressly set forth a special regime. This provision arises from Section 451 of Act 15,903 of November 10, 1987, and Section 1 of Decree 144 of April 2 , 1992.
2.2. Methods of Procurement (e.g. purchase, lease, rental)
Which methods of procurement are included in the definition (e.g. purchase, lease, rental)?
Section 55 of Accounting Decree-Law Number 23,354/56 ? ratified by Law 14,48 7 ? defines government procurement as any purchase or sale, as well as any lease, rent, work or supply contract on account of the Nation.
Purchase, lease, rental, contracting, subcontracting, etc., as outlined under budget head expenditure accounts.
As a rule, it refers to purchases.
All methods are applied.
Methods of procurement in the Brazilian law include purchases, sales, rent or leasing of goods and services including advertising and construction services.
The definition provided includes acquisition of materiel, services and public works through purchase, lease and rental.
All procurement methods that entail a purchase by the State: procurements, leases, etc.
All contracting methods are included. Section 32 of the aforementioned Law 80 establishes: "State contracts are all legal acts resulting in liabilities of entities referred to in these by-laws, and in private law or special provisions, or derived from carrying out autonomous will,?"
Article 32 states work, consulting and concession contracts services rendered, fiduciary and public trustees. For those exceptional contracting systems, public entities have included in their manuals, among others, association contracts, risk participation contracts, and special contracts called turnkey contracts including the design, financing, procurement, setup and installation of equipment and machinery.
The Administrative Procurement Act includes every kind of procurement, such as supply of goods, procurement of services, sale, lease and purchase of real estate, grant of public facilities, grant of management of public services and lease of equipment (Section 63 and subsequent Sections, and those in accordance with the Law). Regarding the grant of public works, the legal institution of concession should be applied.
The modalities established in the Ecuadorian law are:
Financed purchases, lease with or without an option to buy, and any combination of goods or services.
Purchase, contracting and rental with or without an option to purchase.
Methods of public sector procurement included in the definition are the purchase, lease, rental and hireage of: goods; works; services or any combination thereof, as well as concessions.
The methods defined by law correspond to the purchase of personal and real property; provision of services of any nature, as well as of public works and services related therewith.
Purchase of goods and administrative procurement.
Procurement methods include:
Purchase, supply, rentals, and lease of goods and services.
The definition includes the following procurement methods:
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All methods apply .
According to US obligations under the GPA and NAFTA, procurement by any contractual means, including through such methods as purchase or as lease, rental or hire purchase, with or without an option to buy, including any combination of products and services is included in the definition of procurement.
Procurement methods include those mentioned in the question, but in the case of our country, the legal provisions and, especially the TOCAF, are based on the fact that, if operating or investment expenses for the State will be derived from the contract, such contract will be subscribed after the public bidding process, and after an auction or public bidding when income or resources for the State are derived from them. Notwithstanding these provisions, procurements may take place through other established methods for which purpose it is necessary to mainly consider the thresholds that are reviewed every four months.
Venezuela?s legislation considers only the purchase as the method to acquire goods and services.
2.3. Distinction among the procurement of goods, services, public works and "other procurements".
Does the procurement regime distinguish among the procurement of goods, services, public works, and "other procurements?" If so, please identify in the following sections of the inventory wherever such distinctions occur and how they affect the procurement process.
The Argentine government procurement regime distinguishes, on the one hand, between the procurement of goods and services and, on the other, the procurement of public works, which is different from the concession regime.
Does not answer to the question.
There is only one regime of public sector procurement, "The Basic Norms of the Administration System of Property and Services", which applies to all public entities who contract goods, services or public works. However, these Basic Norms contain different specifications in some articles for each area when necessary.
A bigger difference appears in the complementary regulations describing the proposals, in which three types of relational procedures exist with the areas of the construction of goods, consulting services and insurance services. See also the response under number 3.1 (iii, iv and v).
The Brazilian legislation does not distinguish between the acquisition of goods, services, public works and "other procurements", with exception of the limits applied to each tendering modality, as described in the response to question 3.2.
The Canadian procurement regime distinguishes between the procurement of goods, services, construction and real property. Procurement by federal government departments and agencies for goods, services and construction is subject to Treasury Board Contracting Policy. The procurement of real property is subject to Treasury Board Real Property Policy. The procurement of services and real property is decentralized to federal departments and agencies. The procurement of goods and construction is generally centralized with the Department of Public Works and Government Services Canada (PWGSC).
In Chile, the regulation on government procurement distinguishes among the procurement of goods, services and public works. In the cases of mixed procurement, the application of the regulation will depend on the nature of the procurement. As a rule, both regulations are applied, dealing with the procurement of goods and services separately. This is due to the fact that the regulation for procurement of goods is not opposed to the regulation related with the procurement of services or public works.
The driving principles, requirements and procedures public entities must follow to contract goods, services, and works are the same with no exceptions for "other purchases". However, some differences are established, for example, services and activities of telecommunications rendered by contract of concession.
Our legal system distinguishes between the regime governed by the Administrative Procurement Act and the Public Works Concession Act with respect to the purpose and specialty of the applicable legislation. However, we must highlight that in the last case, the law requires that the public bidding procedure be always applied (Section 12). Furthermore, some particular aspects regarding the procurement of Labor Corporations are considered, as well as regarding their purpose and specifications, even though the general regulations on administrative procurement are applied in such cases.
The Ecuadorian legislation, as a rule, makes a distinction between procedures for the contracting of consulting services and all other procurements.
There is no distinction between the purchases of goods or services, it is understood that services include public works, construction and professional services. There are no other purchases that are not regulated in the national legislature.
The Government Contracts Law is of general application, it does not make any distinction between the procurement of goods, works or services. Also, the law takes into account other acquisitions, such as public auctions, public offer or other similar procedures for expropriation of State goods. For public services, provided that there is no threshold because of its nature or by legal or constitutional disposition, its allowed the contracting of third parties or the concession of services to individuals.
The procurement of goods and services, public works and other purchases are carried out within the government through budget allocation described in the budget methods, by means of which any transaction is formulated, presented, executed, controlled and evaluated.
Every procurement is identified by programming units, providing classification of expenses according to their purpose; the goods, services, etc. are classified in groups, sub-groups, and line.
The procurement regime does not distinguish among the procurement of goods, services public works and "other procurements".
No. The Procurement and Public Works Law constitutes the regulatory framework applicable to the procurement of goods and contracting of services, public works and services relate therewith. This Law does not recognize "other kinds of procurements". The "concession" is not included within the definition of government procurement and such type of contracts is subject to a different law.
There is no distinction.
Our legislation includes goods, services or works within the government procurement system. Nevertheless, for the purposes of the contract, it makes a distinction among:
Contract for works: the contract entered into by state entities for the construction, maintenance, repair, installation or any other material work on personal or real property.
Contract for the provision of services: the contract for the provision of consulting services, specialized services or personal services for works of art.
Contracts for supply: the contract for the procurement of personal or real property (including delivery and/or installation and/or repair and/or maintenance).
The Paraguayan legislation in matters of procurement and supplies only considers the following modalities:
Act Number 25/91 that regulates the procurement, supply, and lease of consumer goods by the public administration;
Act Number 26/91 that regulates the procurement, supply, lease of works and services of decentralized, independent, self-sufficient and mixed economy entities.
Act Number 1,045/83 that sets forth the regime of public works
In the Peruvian government procurement regime, the following are distinguished:
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The procurement of goods, services, public works and "other procurements" are done on the basis of competition and in accordance with the procedures outlined in the Central Tenders Board Ordinance. However, the hire of consultants differs in that the contract price is negotiable as opposed to fixed for contractors and suppliers.
The United States generally does not distinguish among procurement of goods, services public works and "other procurements" in terms of competitive and transparent procedures. The same transparent procurement regulations apply to all types of contracts listed above. Please see response to Question 3 below. The United States does have some specialized rules for services, construction, major systems, utilities, purchases under $100,000 and commercial item acquisitions, which are set forth in specific provisions of the Federal Acquisition Regulations (FAR), but even these specialized rules are still within the general umbrella of procedures and requirements on transparency and competition.
Not concerning the form of procurement, that is to say, distinction among the procurement of goods, services, public or other purchases are not considered.
From a formal point of view, however, we can conclude that regulations or general bidding terms that take into account the object to be contracted do exist. This is established in Section 44 of the TOCAF, which provides that the Executive branch, with the agreement of the Accounts Court, will create regulations or sole bidding terms and conditions for contracts for:
a. Supplies and non personal services.
b. public works and projects.
c. personal services.
At present, these general bidding terms and conditions are applied according to the above mentioned rules, but there are minimal requirements for its application, to wit:
There are no differences as to acquisition methods, although different thresholds are established. However, the concessions for the construction, exploitation, conservation and maintenance of public works, are regulated by a decree on Concessions of National Public Works and Services, which establishes open tenders as the method to award concessions (Extraordinary Decree Number 10 G.O. 4.179 of April 26, 1994).