Draft bill 70.

Summary.

The draft bill adds to Law 93 of 2019 a definition of private initiative: a project proposed to the National PPP Secretariat (Secretaría Nacional de APP) by one or more private-sector legal persons. It provides that public-private partnership (PPP) projects may originate through either public or private initiative and that their objectives must align with the Government Strategic Plan. The Cabinet Council (Consejo de Gabinete) could identify by decree projects it considers suitable for this arrangement, subject to approval under the law. To proceed as a PPP, a project would need to appear in the Five-Year Investment Plan, be on the Cabinet Council’s list, or be declared of national interest by the Governing Body (Ente Rector). A private initiative also could not concern a PPP project already in any stage or phase when submitted.

The bill authorizes the Governing Body to declare projects of national interest even if absent from the plan and the list, provided they meet the law’s purpose and principles and have a significant innovative element in their design, development or operation. It assigns the National PPP Secretariat, attached to the Ministry of the Presidency (Ministerio de la Presidencia), responsibility for receiving private initiatives, reviewing their admissibility and forwarding admitted initiatives to competent public entities. The Secretariat could also receive, invest and manage proceeds from any submission fee established by regulation to strengthen its operations.

Contracting public entities would prepare the technical report addressing the socioeconomic impact and feasibility of selected projects, with a view to obtaining Governing Body authorization and starting procurement. They could seek assistance from the National PPP Secretariat or the private sector and conduct open, free-of-charge market assessments. They would assess forwarded private initiatives to decide whether to incorporate them as projects of their entity. The Ministry of Economy and Finance (Ministerio de Economía y Finanzas), in coordination with the National PPP Secretariat, would assess firm and contingent commitments for the fiscal years in which the PPP contract would be awarded and performed, supported by a reasoned valuation of quantifiable contingent commitments.

Private initiatives would be submitted to the National PPP Secretariat with at least the elements required by Article 27 of Law 93 of 2019. Regulations could set a submission period of no less than 30 calendar days and a variable, nonrefundable fee payable on submission, capped at 0.5% of the minimum value for a PPP project. Failure to comply with those regulatory requirements would cause rejection. The Secretariat would check whether the documentation is sufficient, the project can lawfully be developed as a PPP, and the proponent is not disqualified under Article 69. It would forward an admitted initiative to the competent entity, which would assess its substance, feasibility and suitability and could reject it. A favorable assessment would place the project in that entity’s portfolio, subject to the same stages and conditions as a public initiative. The Secretariat or entity could request written clarifications without charge. The entity would deepen the studies, could hire advisers unrelated to the proponent, or request specific feasibility studies from the proponent under public supervision.

The proponent could seek documented reimbursement of preparation costs and requested specific studies. The Secretariat would determine the amount from supporting records and market value, subject to a ceiling of 2% of the project’s total investment cost. Reimbursement would require procurement of the initiative and a valid bid from its proponent. If another bidder won, that bidder would pay within twenty calendar days after endorsement of the PPP contract; if procurement were canceled, the procuring entity would pay once the cancellation decision became final. The bill excludes reimbursement following rejection, an award to the proponent, failure to bid or submit a valid bid, or interruption attributable to the proponent. It gives the proponent the same rights and obligations as other bidders. Finally, it lists the amendments and additions to Law 93 of September 19, 2019, and sets commencement six months after promulgation. The public bodies concerned are the named PPP authorities, the Cabinet Council and the cited ministries; contracting entities, private proponents, advisers and bidders could be affected.