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Peru

Published on Thursday 2nd March 2017

    Applicability of international treaties and conventions

    • Peru

      Peru is party to several bilateral agreements that include provisions for reciprocal treatment of the other nation. Some of these treaties were signed with the United States, the European Union, Mexico and other Latin American countries. Provisions typically stipulate that both nations will treat investment from each other under similar terms and promote commerce in equal conditions.

      Last verified on Friday 17th November 2017

    • Peru

      Yes. As part of our plurilateral agreements we have a regional agreement with the Andean Community which, similar to the other treaties mentioned above, promotes equal treatment among member countries. 

      Besides the reciprocal treatment of the other nation there is an additional benefit for both regional and non-regional treaties when they include government procurement provisions. This benefit is related to the capital assigned to local branches of foreign companies.

      Local corporate law requires that branches state an amount assigned for their local operations when establishing in Peru. The general corporate rule is that this amount does not need to be effectively deposited in Peru, just stated in the corporate documents of the branch.

      Local construction companies complained that this rule affected procurements as a company’s capital is taken into account during certain evaluations and while local companies had to commit resources for this purpose, branches of foreign companies just needed a statement without any real local commitment of resources (as there was no need to have those funds in Peru). An exception to the general corporate rule was then enacted and branches of foreign companies need to have the amount stated in their establishment documents deposited in a local bank; unless they come from a jurisdiction with which Peru has a treaty that includes procurement provisions. In these latter cases the exception is not applied and the branches do not need to have funds deposited in local banks.

      As the evaluation of capital is only a factor for construction projects, it is not a concern for other types of businesses. Being only one factor in the evaluation, a precise calculation cannot be made, but it is common for foreign branches to require having US$3 million–US$5 million in Peru to be able to compete in major projects. As the funds need to be in Peru and cannot be withdrawn, coming from a jurisdiction with which Peru has a treaty that includes procurement provisions gives you an advantage.

      Major countries with which Peru has these treaties include the United States, Canada, the European Union, Switzerland, Norway, Iceland, Japan, Singapore, South Korea and several Latin American countries. 

      Last verified on Friday 17th November 2017

  • Local preferences; tax and tax penalties

    • Peru

      Peru used to have regulations that provided for a bonus score to local companies, but these are no longer in force. There are two rules, however, that may benefit local companies in certain cases:

      • In the event of a tie between two or more participants where one of them is a small company or small entrepreneurship, the contract will be awarded to such company (the ‘small company’ status must be obtained from a local registry). However, this only applies in tender processes up to approximately US$114,000 when providing goods or services, and US$514,000 when civil works are involved.
      • When providing services or consultancy up to US$57,000 or performing works up to US$257,000, bidders may ask for a 10 per cent bonus over their total score if the contracts are to be performed in a province other than Lima and Callao. This benefit is both for the bidders domiciled in the province where the contract will be executed and its adjacent provinces. As the benefit applied to any company domiciled in those areas according to their information in the National Suppliers Registry (RNP), technically the benefit is not for local companies but for the companies registered for that area. A foreign company may be able to receive this bonus if registered in such an area.

      Last verified on Friday 17th November 2017

    • Peru

      There is no local requirement that some portion of the procurement be awarded or subcontracted to local firms. However, there are rules limiting the participation of foreign companies in certain sensitive industries, the direct or indirect control by foreign companies of land and natural resources within 50km of Peru’s borders, and the number of foreign workers a company can employ (although companies can ask to be exempted from this rule).

      These three provisions do not deal with government procurement directly, but they may affect foreign ownership and control of local companies. As a general rule included in the Peruvian Constitution and other legislation, there is a no-discrimination policy and both foreign individuals and foreign investment must be treated in the same way as local individuals and investment. There are few exceptions to this general policy.

      Last verified on Friday 17th November 2017

    • Peru

      There is no need to have a local company participating in tender processes or to supply through a domestic company; a foreign company can do so directly. There is the requirement, however, to be registered as an official supplier before the RNP, which allows for both domestic and foreign companies to be registered. The procedure for foreign companies is somewhat longer as they need to have an appointed representative in Peru (who does not need to be a local person, he or she can be a foreign citizen), have all documents required for these procedures officially translated (if they are not in Spanish) and have all documents issued abroad legalised.

      The registry has several chapters (provision of goods, services, civil works and consultancy): registration in the first two chapters (goods and services) is quite straightforward, but registration in the other two chapters (civil works and consultancy) requires more documents, as previous experience in those areas is required to be evidenced. This means that foreign companies need to legalise and translate (if required) their supporting documents.

      Last verified on Friday 17th November 2017

    • Peru

      Peru has no controlled currency exchange. Points awarded for experience in sales depend on the supporting documents presented by the participants. Our law allows for foreign documents in currency other than nuevos soles to be filed. The exchange rate applied to convert the foreign currency into nuevos soles will be the one reported in our National Superintendency for Banks and Insurance (SBS), which only reflects the market value of the exchange rate.

      Last verified on Friday 17th November 2017

    • Peru

      Foreign and local companies have basically the same tax treatment. There is no particular tax burden or penalties that apply to non-local contractors, nor are there limits on the amounts that can be transferred abroad, either as consideration for a contract or as dividends (in the case of domestic companies controlled by foreign companies). 

      Last verified on Friday 17th November 2017

  • Procurement procedure

    • Peru

      Our conflict of law rules provide that Peruvian law applies to contracts to be fulfilled in Peru, so in most cases, Peruvian law should apply. On the other hand, our Procurement Law states the situations in which it will not be applicable (for example when no local suppliers are identified and the contract needs to be entered with a foreign company abroad), but even in these situations when the Peruvian government is able to directly negotiate a contract with a foreign company (and not through a tender), Peruvian law is usually chosen. It is common, however, for an international dispute resolution mechanism to be chosen (such as the ICC).

      Last verified on Friday 17th November 2017

    • Peru

      Our procurement provisions are not based on the UNCITRAL model procurement code or any other international model. They do, however, contain some similar provisions, such as the rules about objective criteria when evaluating an offer or similar bidding mechanisms to reverse auctions. A more thorough comparison highlighting the similarities and differences would be rather extensive.

      Last verified on Friday 17th November 2017

    • Peru

      The provisions of our Procurement Law contain general principles that call for objective and verifiable criteria when awarding points to participants during tenders. Among these principles and other specific provisions of the law, a tender: (i) needs to be objective; (ii) needs to allow as many bidders as possible to participate within the limits of the basic requirements stated by the entity calling the tender; (iii) needs to be public; (iv) cannot call for specific trademarks or products (there is a legal exception to this); and (v) allows bidders to challenge the papers of the bid as well as the results of the bid. 

      Besides being able to file complaints regarding any infringement to local procurement law before the Procurement Court of the National Bureau of Government Procurement (OSCE), as of January 2016 there is a new committee in charge of analysing any cases involving corruption or fraud and informing the relevant authorities of their findings.

      Recent legislation enacted in January 2017 provides that companies that have admitted conducting corruption actions or that have been criminally condemned (in Peru or abroad) for such actions, will not be allowed to participate in public tenders. This same impediment applies for related parties of such companies.

      Last verified on Friday 17th November 2017

    • Peru

      There are no minimum or maximum numbers of bidders that need to participate. It may be the case, however, that if the government identifies only one suitable company for a specific contract and there are no other companies that may provide the same (or a similar) good or service, the government may file for an exemption from calling a bid and contract such company directly. This exemption procedure is regulated and all previous investigations and reports required by law need to be in place for the exemption to be valid.

      Our law does not provide for negotiations outside the official rounds of bidding. Before calling the bid, the governmental entity calling it will do market research to identify which goods are available and determine the selection criteria, which must be objective and, if possible, broad enough to allow the largest number of bidders possible. During this market research, potential bidders will be asked for quotes to establish the value of the contract to be awarded, but this is not a negotiation procedure as the contract value will be determined based on the average price obtained from the different quotes. Prior arrangements among the potential bidders to fix the contract value is penalised by law and can result in both administrative fines and a prohibition on entering into contracts with the government for up to several years.

      A company may not participate twice in the same bid – if, for example, it participates individually, it cannot also participate as part of a consortium that bids in the same tender.

      Tenders are usually carried out in a single round. Only in the event that there are no valid bidders left (either because no one bid or because the existing bidders were disqualified during the tender) will the tender be called again at a lower price.

      Last verified on Friday 17th November 2017

    • Peru

      Local law calls for: (i) performance bonds (10 per cent of the contract value); (ii) a bond in case the amount bid is less than 10 per cent or more than 20 per cent of the contract value stated in the papers of the bid (the bond being for 25 per cent of the difference between the amount bid and the contractual value stated in the papers of the bid); and (iii) bonds for any advance payment (100 per cent of the advance payment). There are some provisions in our Procurement Law that exempt a company from presenting these bonds.

      Last verified on Friday 17th November 2017

    • Peru

      We have provisions in our legislation that call for the efficient use of public funds and require governmental entities to establish a yearly budget. Any misuse of public funds is penalised by law both under civil law (damages) and criminal law.

      Last verified on Friday 17th November 2017

    • Peru

      The winner of the bid is selected by weighing the different criteria set out in the papers of the bid. As of January 2016, the price offered by the bidder when offering goods or services will count for a minimum of 50 cent up to 100 per cent of the bidder score. As such, although a company may win the contract if the lower points awarded by high price are offset by the higher points obtained during the technical evaluation of its proposal, this has become less likely than before when procuring goods or services (as opposed to consultancy and civil works). As this has been fairly recently enacted it is yet to be seen how often entities choose to assign a high percentage of the score to the price.

      The criteria to be used to evaluate the technical aspects of the proposal need to be objective. The different types of criteria that can be used are provided in the regulation. It may be the case that additional score is granted for improvements over the minimum requirements stated in the papers of the bid, but such additional score needs to be clearly specified in the papers of the bid (how much additional score will be granted for each specific improvement over the minimum required).

      Last verified on Friday 17th November 2017

    • Peru

      There is an official file for each bid that can be accessed by any citizen. All documents will be signed by the members of the panel in charge of the bid and, if the type of bid requires it by law, by the public notary present during the bid. Neither the winning nor the losing bidders are required to sign the documents, although they can ask to include a statement in the minutes of the hearings where the bids are presented or the winner is announced.

      Last verified on Friday 17th November 2017

  • Anti-corruption

    • Peru

      The acceptance of bribes by public officers and servants is considered a crime under local criminal law. Other more subtle ways of affecting a bid (such as tailoring the papers and requirements to a specific bidder) can be challenged during the tender as bidders have the chance to challenge the papers of the bid if they consider that they contain a provision that infringes the law. Although there is always the risk of corruption, we are a jurisdiction in which companies can abide by their anti-corruption policies and laws while developing their businesses and contracting with the government.

      Last verified on Friday 17th November 2017

    • Peru

      It is a criminal offence to offer a bribe to a public officer or servant. For the crime to exist the private party should have engaged the public officer or servant. If a bidder participates under good faith in a tender and later it is proved that the bid was fixed, such bidder will not be liable unless it is proven that it was him or her that fixed the bid. The most frequent case is where the papers of the bid favour a particular bidder, but this is usually corrected after such bias has been challenged (this challenge occurs before the bidders bid).

      As mentioned in question 13, recent legislation enacted in January 2017 provides that companies that have admitted conducting corruption actions or that have been criminally condemned (in Peru or abroad) for such actions, will not be allowed to participate in public tenders. This same impediment applies for related parties of such companies.

      New legislation that is still to come into force during the first quarter of 2017 provides that Contracts that are proven that have been obtained as a result of bribery or other similar practices may be declared null. New contracts signed once this legislation comes into force will be required to have anti-corruption clauses.

      Last verified on Friday 17th November 2017

  • Challenging awards

    • Peru

      A bidder can challenge the award of a contract under an administrative procedure. Depending on the amount of the contract, the challenge is reviewed either by the governmental entity that called for the bid or the National Bureau of Government Procurement (OSCE). A challenge usually takes two to three months. The decision in either case is final, and it can only be subject to further review by the judiciary under a regular procedure used whenever a private party considers that an administrative action has been wrongfully enacted. A challenge before the judiciary does not suspend the contract (as opposed to an administrative challenge, which does stop the contract from being executed), but an injunction may be obtained from the judiciary ordering the governmental entity to stop the execution of the contract until the matter is resolved. A judicial process of this type can take one to two years.

      Last verified on Friday 17th November 2017

    • Peru

      The most common grounds for challenges are: there is evidence in a bidder’s proposal that he or she has breached local law or regulations; and there are false or inaccurate statements in a bidder’s proposal. The papers of the bid cannot be challenged, as there is a stage prior to the submission of the bids where the parties are able to question the papers. Once that stage is closed, the papers are final and cannot be challenged.

      Last verified on Friday 17th November 2017

    • Peru

      Challenges are very common. There is an extensive body of legal precedent going back more than 10 years, but legal precedents are not mandatory so whoever is deciding the case (the adjudicator or the OSCE) is not bound to follow the same reasoning. This allows for some contradicting decisions in some cases, but usually legal precedents are taken into account when deciding a case.

      Last verified on Friday 17th November 2017

  • Contract terms

    • Peru

      There are standard terms that can be used but any governmental entity can provide for its own clauses if it is deemed suitable for that specific contract. Clauses still need to be in accordance with our Procurement Law and Civil Code rules (eg, they cannot ask for bonds guaranteeing higher amounts than those required by law and they need to include arbitration as the mechanism to solve any dispute). Technically they are not subject to negotiation, but during the stage where the bidders can review, comment and object to the papers of the bid, they can ask for changes that may or may not be accepted by the entity. Should the requested change be based on an infringement to local law and the government entity does not accept the change (thus continuing to infringe the law), the decision can be reviewed by the OSCE.

      Contracts tend to be straightforward and business friendly. 

      Last verified on Friday 17th November 2017

    • Peru

      Yes, although technically it is a problem with our local Procurement Law and not with the contracts per se. Under our Procurement Law, the government has several mechanisms to ensure the contract is fulfilled (including collecting from the performance bond that needs to be in place for each contract). Private parties, however, are not in the same position. Whenever the government is in breach of payment, the private party has only two options: insist on being paid; or terminate and seek to collect damages via arbitration. 

      Last verified on Friday 17th November 2017

    • Peru

      A review made during challenges does not always have the expected result, as the reasoning behind the decisions sometimes shows that the commercial or legal analysis conducted during the review was not as thorough as it should have been. As the review is final there is no second chance to review any faults in the reasoning given for a decision. 

      Last verified on Friday 17th November 2017

  • Governing law for public contracts

    • Peru

      Choice of law can only be negotiated if the contract is directly negotiated with a foreign company under one of the exceptions of the Procurement Law. As mentioned before, however, it is very unlikely that a foreign choice of law will be agreed.

      Last verified on Friday 17th November 2017

  • Role of the lawyer in procurement procedures

    • Peru

      Lawyers are typically involved once the contract is awarded and the client has not won the contract. It is highly advisable, however, to involve legal counsellors at an earlier stage in case the papers of the bid include provisions that need to be changed (given that, once the final version of the papers is agreed, they cannot be later challenged). It is unusual for other consultants to be involved unless the process is calling for regulated or highly technical goods or services (eg, pharmaceutical or medical products, hi-tech machines). When involved they usually collaborate in preparing the documents and if the award is challenged, they provide information and support to the legal team. Although the procedure for filing an appeal is basically all conducted in writing, there is a public hearing where both the legal defence and the technical defence can be presented to the court. 

      Last verified on Friday 17th November 2017

    • Peru

      Only in direct negotiations. If there is a legal issue with the model contract included as part of the papers of the bid, such issue will be questioned and challenged as part of the review of the papers rather than entering into negotiations.

      Last verified on Friday 17th November 2017

    • Peru

      Lawyers are subject to rules of conflict of interest as part of the ethical code of the Lima Bar Association. There is no specific reference to this in our Procurement Law. The law regulating the activity of civil servants and government officials does state, however, that such civil servants and officials cannot work in the private sector for a period of time after leaving their positions in the government. What usually happens is that they can act as advisers, but not formally take a case and represent a client.

      Last verified on Friday 17th November 2017

    • Peru

      Local lawyers do not have a major role in this respect. There is an official file of the process and all documents need to be signed by the members of the panel overseeing the procurement process (and a notary public if the type of process requires it). Bidders and their representatives can request that the records include certain statements, but their active role is not required to be present in the official file.

      Last verified on Friday 17th November 2017

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