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Puerto Rico

Published on Thursday 2nd March 2017

    Applicability of international treaties and conventions

    • Puerto Rico

      Puerto Rico is a territory of the United States, which is a member of the WTO Agreement on Government Procurement. However, Puerto Rico is not included in the coverage schedules for the United States. As a result, procurements conducted by Puerto Rico governmental entities are not covered by the provisions of the GPA.

      Last verified on Thursday 9th March 2017

    • Puerto Rico

      Although the United States has entered into many agreements that provide for the reciprocal treatment of the other nation’s products or services, only the United States–Peru Trade Agreement (US–Peru FTA), the Dominican Republic – Central America Free Trade Agreement (DR-CAFTA), the United States–Colombia Free Trade Agreement (US–Colombia FTA) and the United States–Panama Free Trade Agreement (US–Panama FTA) explicitly apply to Puerto Rico. The government procurement provisions of the aforementioned free trade agreements apply to the following subdivisions of the government of Puerto Rico: Department of State, Department of Justice, Department of the Treasury, Department of Labor and Human Resources, Department of Natural and Environmental Resources, Department of Consumer Affairs, Department of Sports and Recreation and Department of Economic Development and Commerce. All agreements specifically exclude construction services from the application of the government procurement provisions. 

      The US–Peru FTA covers the procurement of goods and services, or both, by any means for a value that exceeds US$193,000, which is conducted by a procuring entity and is not specifically excluded. The US–Peru FTA does not cover, among other things, non-contractual agreements, governmental provisions of goods and services to persons, the hiring of government employees and the procurement of banking, financial or specialised services related to the incurring of public indebtedness or public debt management.

      The DR-CAFTA covers the procurement of goods and services by any contractual means for which the value exceeds US$58,500, which is conducted by a procuring entity and is not specifically excluded. The DR-CAFTA does not cover, among other things, non-contractual agreements, governmental provisions of goods and services to persons, the hiring of government employees and the procurement of banking, financial or specialised services related to the incurring of public indebtedness or public debt management, purchases funded by loans or grants made to a party of the DR-CAFTA by international entities or parties, or purchases made under exceptionally advantageous conditions that only arise in the very short term, such as the disposal of assets by a business in liquidation or receivership.

      The US-Colombia FTA covers the procurement of goods and services by any contractual means for which the value exceeds US$64,786,500, which is conducted by a procuring entity and is not specifically excluded. The US-Colombia FTA does not cover, among other things, non-contractual agreements, governmental provisions of goods and services to persons, the hiring of government employees, purchases for the direct purpose of providing foreign assistance, purchases funded by international grants, loans, or other assistance, where the provision of such assistance is subject to conditions inconsistent with the US–Colombia FTA or the acquisition of fiscal agency or depository services, liquidation and management services for regulated financial institutions, and sale and distribution services for government debt.

      The US–Panama FTA covers the procurement of goods and services by any contractual means for which the value exceeds US$193,000, which is conducted by a procuring entity and is not specifically excluded. The US–Panama FTA does not cover, among other things, non-contractual agreements, the hiring of government employees, purchases funded by loans or grants made to a party of the US–Panama FTA by international entities or parties, to the extent that the conditions of such assistance are inconsistent with the US–Panama FTA, acquisition of fiscal agency or depository services, liquidation, and management services for regulated financial institutions, and sale and distribution services for government debt, goods or services made by an entity not listed in the US–Panama FTA or purchases made under exceptionally advantageous conditions that only arise in the very short term, such as the disposal of assets by a business in liquidation or receivership. 

      Last verified on Thursday 9th March 2017

  • Local preferences; tax and tax penalties

    • Puerto Rico

      Yes. In certain cases, Puerto Rico law requires government agencies to favour local goods and services during their procurement processes. Specifically, Act No. 109 of 12 July 1985, as amended, requires the use of locally produced products in construction projects being procured or sponsored by a government entity. A government entity would be exempt from complying with this requirement if the cost of the local product exceeds a certain threshold or the local product is not available in sufficient quantity or lacks the quality required for the project. Act No.14-2004, as amended, also requires that a Puerto Rico government agency, department, subdivision or instrumentality reserve at least 15 per cent of its purchases and service contracts for services rendered in Puerto Rico or items extracted, produced or manufactured, assembled or bottled in Puerto Rico, or by non-profit entities that employ blind or disabled persons, or small, medium or cooperative businesses. The law also requires that contracts for professional services contain provisions imposing these contracting requirements on the private party providing the service, subject to availability. Although there are no specific exceptions to these requirements, the Board for the Investment in the Industry of Puerto Rico (the Board) may waive or reduce these requirements in certain circumstances.

      Last verified on Thursday 9th March 2017

    • Puerto Rico

      Yes. Act No.14-2004, as amended, requires that a Puerto Rico government agency, department, subdivision or instrumentality reserve at least 15 per cent of its purchases and service contracts for services rendered in Puerto Rico or items extracted, produced or manufactured, assembled or bottled in Puerto Rico. The law defines a product as “local” based on the amount of work performed in Puerto Rico and not by the place of incorporation or the amount of foreign control over the company producing the product. Although the threshold for being considered a “local” product may differ based on the type of product, in general, a company will be found to have substantial operations in Puerto Rico if, in the board’s judgement, it has operations of a nature and complexity that generate investment and employment in Puerto Rico and represent a substantial contribution to the Puerto Rico economy.

      Last verified on Thursday 9th March 2017

    • Puerto Rico

      No, there are no tax penalties for non-local contractors. Non-Puerto Rico entities operating in Puerto Rico are taxed in a similar way to local companies, except that earnings are subject to a 10 per cent branch profit tax (instead of a similar tax on actual distributions) or, if the entity operates in Puerto Rico as a flow-through entity, the net income attributable to the owners is subject to a 29 per cent tax rate if the owner is not a citizen of the United States, and 33 per cent if the owner is a citizen of the United States. The difference in tax rate is due to the fact that a US citizen will be able to file a local Puerto Rico income tax return in order to claim certain deductions allowable to individuals, while an owner that is not a US citizen will not. Like most jurisdictions, Puerto Rico will not impose an income tax on services rendered by a non-Puerto Rico company that is not directly engaged in a Puerto Rico business and, therefore, services associated to the project in Puerto Rico rendered by the main office or parent or affiliated entity from outside of Puerto Rico will not be subject to Puerto Rico income tax. Moreover, the sale of equipment or materials by a company not doing business in Puerto Rico to a company undertaking a project in Puerto Rico is not subject to Puerto Rico income tax.

      Last verified on Thursday 9th March 2017

  • Procurement procedure

    • Puerto Rico

      Yes. In general, a government entity’s enabling act includes the legal requirements applicable to that entity’s procurement processes. Government entities usually then adopt regulations governing these procedures. In turn, these procedures are governed by the provisions of the Puerto Rico Administrative Procedures Act, which provides for adjudicative proceedings before an agency and subsequent judicial review of agency decisions. Certain types of contracts, however, are governed by specific statutes. For example, Act No. 237-2004 provides specific guidelines for the use of professional or consulting services agreements and the content of such contracts.

      Last verified on Thursday 9th March 2017

    • Puerto Rico

      The corresponding enabling act and the Puerto Rico Administrative Procedures Act will govern procurement processes in Puerto Rico. It is unusual for Puerto Rico government agencies to enter into a contract where a law other than Puerto Rico governs and, to the extent that Puerto Rico law does not govern, the governing law will be that of a particular state of the United States. Irrespective of the governing law of the contract, the procurement must be conducted following the provisions of Puerto Rico law in order to ensure the validity of the process and the due execution of the contract.

      Last verified on Thursday 9th March 2017

    • Puerto Rico

      Although legal requirements may vary depending on the particular government entity engaged in the procurement, the public procurement process typically requires the publication of a notice or invitation in order to inform as many interested bidders as possible of the procurement. The government entity will typically hold a meeting that all interested bidders are invited to and notified of in advance. Any change to the procurement process is notified to all participants and final bids are opened simultaneously at a public meeting in which all bidders are present and the final bids submitted are read aloud. However, there may be exceptions to this standard procurement process. For example, the procurement process may not be required if there is only one source for the goods required or in case of an emergency. The procurement process may also not apply to the contracting of specialised services, although the particular contracting process depends on the particular public entity’s current regulations.

      Last verified on Thursday 9th March 2017

    • Puerto Rico

      No, Puerto Rico law does not provide or dictate the number of bidders or rounds of bidding for any particular process. Generally, the agency leading the procurement will provide interested bidders with information of this nature in the invitation documents or in the initial communication. Although an agency may also impose a limit on negotiations, they will usually listen to bidder comments and suggestions when finalising the agreement.

      Last verified on Thursday 9th March 2017

    • Puerto Rico

      The particular government agency conducting the procurement may require those bonds that it deems appropriate for the type of goods or services it is procuring. It is typical for a government agency to request bid bonds together with final bids and to request performance bonds in connection with construction projects. Any exception or waiver of this requirement would be provided in the particular procurement documents published by the government entity. Failure to submit any type of requested bond will usually result in disqualification from the procurement process.

      Last verified on Thursday 9th March 2017

    • Puerto Rico

      There are no specific laws against waste of government assets, although government officials may incur civil or criminal liability for the misuse of public funds or public property. Procurement officials are also subject to the provisions of Act No. 1-2012, as amended, known as the Government Ethics Act, which imposes civil and criminal liability for wrongful conduct in the performance of an official’s responsibilities. There are also certain crimes included in the Puerto Rico Criminal Code that may apply to wrongful or illegal conduct by a public official during a procurement process. The usual effect that these provisions have on a procurement is that the officials involved in the procurement will limit any communication with interested or participating bidders while the process is ongoing. 

      Last verified on Thursday 9th March 2017

    • Puerto Rico

      In most standard procurement processes, the winning bidder will be the one that provides the lowest-priced tender. The procurement process for more complex projects or transactions may provide some additional flexibility to choose a more attractive but higher-priced alternative. These procurement processes are usually conducted by public corporations to provide public infrastructure by publishing requests for proposals. In these cases, the government entity conducting the process will provide for any weighting of specific factors, as these are not legally mandated.

      Last verified on Thursday 9th March 2017

  • Anti-corruption

    • Puerto Rico

      Puerto Rico has addressed corruption in the awarding of public contracts and in government contracting in general through the implementation of various measures. The Puerto Rico Criminal Code includes bribery and improper exercise of influence as punishable offenses. Also, Act No. 1-2012, as amended, also known as the Puerto Rico Government Ethics Act, prohibits this type of conduct by public officials and imposes civil and criminal sanctions for violations. Moreover, Act No. 458-2000, as amended, prohibits a public entity from awarding a public contract to anyone convicted of certain corruption and fraud-related crimes. The law is broad in scope because convictions of key employees for crimes of this nature are attributed to the bidding entity for purposes of the prohibition. Finally, compliance with this law is ongoing and a violation of its provisions may lead to the termination or rescission of a public contract. In cases where the violation is related to the particular public contract, the law requires the return of all amounts paid by the public entity to the violating contractor under such contract. 

      Last verified on Thursday 9th March 2017

    • Puerto Rico

      In Puerto Rico, bidders are subject to the provisions of Act No. 84-2002, as amended, also known as the Contractors Code of Ethics. A violation of the provisions of this code may expose a bidder to civil and criminal penalties. It is important to note that the provisions of this code are broad and impose many obligations on a bidder. For example, providing anything of value that belongs to a member of an agency or such member’s family may constitute a violation of the code. A bidder that is found guilty of violating the code may also be subject to a 10-year government contracting ban. 

      Last verified on Thursday 9th March 2017

  • Challenging awards

    • Puerto Rico

      Depending on the scope and amount of the public contract in question, a party would have the opportunity to challenge an award of a public contract. In most cases, the aggrieved party must file a challenge before the entity issuing the award or a designated panel named to review such challenges. If this initial challenge is unsuccessful, the aggrieved party has the right to seek review before the Puerto Rico Court of Appeals.

      Last verified on Thursday 9th March 2017

    • Puerto Rico

      Awards can be overturned for a bidder’s failure to comply with material bid or request for proposal requirements, the agency’s failure to abide by its own regulations or bid criteria in its award, bias, incorrect or arbitrary evaluation of the bidders’ offers, and abuse of discretion, among other reasons.

      Last verified on Thursday 9th March 2017

  • Contract terms

    • Puerto Rico

      Puerto Rico law does not provide standard terms for procurement contracts. Typically, the government agency that is undertaking the procurement will set out the terms of the contract as part of the procurement documents. Although the provisions may be negotiated, the government entity will usually insist on the use of its form document, which typically includes terms that are not considered business friendly. Local laws and regulations do, however, require that government contracts include certain provisions aimed at ensuring that government contractors are current on thier obligation to pay taxes and their registration obligations before government entities. Specifically, these provisions will require certifications that tax returns have been filed, taxes have been paid, there are no outstanding debts with government entities, all government-required insurance and certifications have been obtained, there are no convictions for crimes involving corruption, and other similar certifications.

      Last verified on Thursday 9th March 2017

    • Puerto Rico

      In Puerto Rico, government entities usually include certain clauses that may be causes for concern for suppliers or contractors. For example, many government contracts include very favourable payment terms for the government, such as allowing 60 days for the payment of invoices and providing that late payment of invoices is not a cause for cancellation of the agreement. Certain government entities also include termination for convenience clauses that allow termination with 30 days’ notice without any penalty.

      Last verified on Thursday 9th March 2017

    • Puerto Rico

      Currently, the most important challenge for a company that seeks a contract in Puerto Rico is the government’s credit quality. The Puerto Rico government is facing a challenging financial and economic situation that may limit its ability to honour its payment obligations on time. Puerto Rico also has a complex system of certifications required to enter into a contract with the government that may impose administrative and timing obstacles on a party trying to finalise a contract with the government.

      Last verified on Thursday 9th March 2017

  • Governing law for public contracts

    • Puerto Rico

      Local law is typically used in practice and government entities will typically insist on its use. As an exception, certain government entities may agree to have an agreement governed by the law of a state of the United States, such as the State of New York, but will not agree to the use of a law from a foreign jurisdiction.

      Last verified on Thursday 9th March 2017

    • Puerto Rico

      Foreign law is not used in public procurements in Puerto Rico. If the law of another jurisdiction is chosen, it will typically be that of the State of New York. Although the choice of law is typically specified as part of the procurement documents, the parties may try to negotiate this provision with the government entity during the procurement process.

      Last verified on Thursday 9th March 2017

    • Puerto Rico

      Commercial companies that are wholly or partly government owned may be treated differently based on the nature of their operations. For example, an agency may contract with a government-owned enterprise if it is deemed to also constitute the government (a public procurement process would not be required). However, if the enterprise is run like a private entity, it has to comply with all bidding requirements imposed on all interested bidders. The Puerto Rico Comptroller’s Office will treat as a public entity any private enterprise in which any government entity has an ownership of 50 per cent or more.

      Last verified on Thursday 9th March 2017

    • Puerto Rico

      Disputes involving the performance of public contracts are subject to the jurisdiction of the same courts in Puerto Rico that review commercial contract disputes. There are no distinct forums or procedural rules applicable to public contracts. Contracts with international entities will typically be governed by Puerto Rico law and the government will usually prefer judicial review to arbitration. However, to the extent that an arbitration provision is included in the agreement, public contracts will typically choose a local or US forum and use the rules of the American Arbitration Association.

      Last verified on Thursday 9th March 2017

  • Role of the lawyer in procurement procedures

    • Puerto Rico

      International bidders usually retain local attorneys for procurement transactions in Puerto Rico. The Puerto Rico attorney will typically assist the bidder through all stages of the procurement and also provide assistance in the negotiation of the agreement. Other consultants usually provide specialised services, such as financial or accounting services, and assist in the process to the extent required by the nature of the procurement.

      Last verified on Thursday 9th March 2017

    • Puerto Rico

      Although there are no specific restrictions, the practice of law in Puerto Rico may only be carried out by lawyers licensed to practise in Puerto Rico. Where a foreign attorney is involved in the negotiations, bidders will also hire local counsel in order to assist with Puerto Rico law issues.

      Last verified on Thursday 9th March 2017

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