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The business law resource for Latin America
Select specific jurisdictions to filter on. Alternatively select no jurisdictions and select questions below to see all jurisdiction answers for them.
Select specific questions to filter on. Alternatively select no questions and select jurisdictions above to see all question answers for them.
Is your jurisdiction a member of the WTO Agreement on Government Procurement (GPA)? If so, what products and services are covered?
What government ministries and other agencies are covered by the commitments under the GPA? To what extent are provincial or local governments covered?
Does your jurisdiction have bilateral or plurilateral agreements with other nations providing for reciprocal treatment of the other nation
Are there regional treaties that affect procurements?
Does your jurisdiction have preferences for goods produced and services performed domestically? What are they and when do they apply? Are they subject to exceptions?
Does your jurisdiction have requirements that some portion of the procurement be awarded or subcontracted to local firms, bidding preferences for local companies or requirements that in-country work be done by local companies? If so, what is the definition of a local company? Are there limits on the amount of foreign ownership and control?
Is there any requirement for a supplier or contractor to have a local registered office, or to supply through a domestic company? Are there other local requirements?
Is cross-border contracting affected by any currency rules?
Are there tax burdens or penalties for non-local contractors? Are there traps for the unwary in the tax code or regulations that apply to international procurements? Are there common ways of structuring procurements to accommodate tax issues of international suppliers?
Does your jurisdiction have a law or administrative code that governs procedure for the award of contracts?
Does the local administrative code govern procurement procedure even if foreign law governs the resulting contract? If another jurisdiction
Are your jurisdiction's procurement provisions based on the UNCITRAL model procurement code, or any other international model?
What procedures are mandated to promote transparency and a fair and objective award process?
Are there specified numbers of bidders that must participate, a minimum or maximum number of rounds of bidding, or limits on negotiations or meetings with potential bidders outside the official rounds of bidding?
Are bid bonds, performance bonds, advance payment bonds or other bonds required? For what types of contracts? Are there meaningful exceptions or permitted waivers? How do they affect the bidding process?
Are there laws or rules against waste of government assets that apply to the procurement process? Are officials subject to civil or criminal penalties for wrongful conduct of procurements? How do such provisions affect the procurement process in practice?
Must the lowest price tender submitted by a qualified bidder be selected? Or do procurement agencies or commercial companies have flexibility to choose a more attractive (higher quality, more functionality) but higher-priced bid? Is there mandatory weighting of specific factors (such as price, technical attributes and other terms of the bid)?
Are official records kept of the procurement and do they need to be certified by the officials conducting the procurement, by participants or by the winning bidder?
To what extent is corruption a problem in the award of public contracts? Are there civil or criminal penalties for bribery or the improper exercise of influence in regard to the award of public contracts?
To what extent do anti-corruption laws or practices influence procurements? What anti-corruption provisions apply to bidders, as opposed to public officials? Are there any traps for the innocent but unwary bidder?
What judicial or administrative procedures are available for tenderers to challenge the award of a public contract?
What are potential grounds for overturning an award?
How common is it for awards to be challenged, and how receptive are the adjudicators to such challenges? To what extent has a body of legal precedent regarding public procurement developed?
Are bid protest decisions published or otherwise publicly available?
Does your jurisdiction specify any standard terms for procurement contracts? To what extent are they subject to negotiation? Are any standard terms considered particularly business-friendly or difficult to comply with as a matter of commercial practice?
What standard public contract terms depart from usual commercial practice or pose noteworthy costs or risks for suppliers or contractors?
Are there any rules of liability or standards of performance for public contracts that differ from the civil law rules generally applicable to commercial contracts?
What do you consider the most important challenges facing a company that seeks to contract with public entities in your jurisdiction?
Must public contracts use local law as the governing law? Are there exceptions?
If local law is not mandated, is it often used in practice?
If foreign law may be used for procurement contracts, what laws are most often used as a matter of practice? Is there a practice of specifying the law as part of the procurement, or may the choice of law be negotiated by international bidders?
Are the rules substantially different for commercial companies that are wholly or partly government-owned?
Are disputes involving the performance of public contracts subject to the same courts' jurisdiction as commercial contracts, or are there distinct fora or procedural rules? Do international contracts typically authorise or require arbitration? If so, in what forum and subject to what set of rules?
Do most international bidders retain lawyers for procurement transactions in your jurisdiction? Or is it more common to use non-legal consultants? Which roles are typically performed by lawyers and which by other consultants?
Are lawyers generally involved in negotiating public procurement contracts on behalf of bidders?
Are there any restrictions on the involvement of foreign lawyers in procurement negotiations?
Are local lawyers subject to rules regarding conflicts of interest? What practical effect do they have on procurements?
Do lawyers have a role in ensuring the transparency of the process? Are official records kept of the procurement and do they need to be certified by the officials conducting the procurement, by participants or by the winning bidder?
and Steven Kaufman
Hogan Lovells LLP
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