Argentinian Buy And Develop Suppliers Reach - Full Text Of The Norm

Original Language Title: LEY DE COMPRE ARGENTINO Y DESARROLLO DE PROVEEDORES ALCANCES - Texto completo de la norma

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COMPREHENSIVE LAW AND PROVEED DEVELOPMENT

Law 27437

Alcances.

The Senate and Chamber of Deputies of the Argentine Nation assembled in Congress, etc. sanction with force

Law:

COMPREHENSIVE LAW AND PROVEED DEVELOPMENT

CHAPTER I

Subjects achieved

ARTICLE 1. The following subjects shall give preference to the acquisition, location or leasing of goods of national origin, in the terms provided by this law and in the forms and conditions established by the regulation:

(a) The entities covered by article 8 of Law 24,156 and its amendments;

(b) Human or legal persons to whom the national State has granted licences, concessions, permits or authorizations for the provision of public works and services;

(c) The direct contractors of the subjects of the preceding subparagraph (b), by such understanding those who are immediately recruited on the occasion of the contract in question;

(d) The Legislative Power of the Nation, the Judiciary of the Nation and the Public Ministry of the Nation;

(e) The S.A. Electrical Majority Market (CAMMESA);

(f) The S.A. Electrical Majority Market Administrator Company (CAMMESA), excepting the benefits of the regime established by law 26.190 and its amendments.

In accordance with article 15 of Act No. 26,741, the subjects covered by the Act are excluded from the scope of this Act. Such subjects shall implement a program for the Development of National Suppliers, in the terms set forth in Article 25 of this Law.

For the subjects referred to in subparagraph (c) of this article, preference shall be granted only in the framework of licences, concessions, permits or authorizations for the provision of public works and services in which they participate as direct contractors.

CHAPTER II

Preferences for national property

ARTICLE 2. Preference shall be accorded to offers of goods of national origin when the estimated amount of the selection procedure subject to this law is equal to or greater than the amount established by the current regulation of article 25, paragraph 1 (d), of the delegated decree 1.023/01 and its amendments and supplements.

Preference to offers of goods of national origin shall be granted in accordance with the following guidelines:

(a) When for identical or similar benefits, on payment terms, the price of offers of goods of national origin is equal to or below that of goods offered that are not of national origin, increased by fifteen percent (15%), when such offers are made by Micro, Small and Medium-sized Enterprises (MiPyMEs), according to Law 27,264 and its amendments, and by eight percent (8%) for the rest of the companies;

(b) Where a price comparison between non-national offers is provided under this Act, a preference margin of one per cent (1%) per five (5) percentage points of local integration on the gross production value of the goods reached shall be granted up to a maximum preference margin of eight per cent (8%), according to the calculation criteria that defines the authority of application for that purpose.

In all cases, for the purposes of comparison, the price of non-national property shall include, inter alia, existing import duties and all taxes and expenses that require its nationalization to a particular non-privileged importer, in the forms and conditions established by the regulation.

Cooperatives registered in the Registry of the National Institute of Associations and Social Economy (INAES) of the Ministry of Social Development and comply with the provisions of this Act shall have the same benefits and shall be accorded the same preferences as those for small and medium-sized enterprises.

In contracting entities referred to in article 8 (a) of law 24,156 and its modifications, for the provision, location or leasing of goods by up to the sum of modules twenty thousand (M 20.000), the companies offerings of goods of national origin that qualify as MiPyMEs according to the law 27,264 and their modifications that, applying the best price provided for in the present paragraph, have not been exceeded.

ARTICLE 3. In the selection procedures that are estimated to be less than that established by the current regulation of article 25, paragraph 1 (d), of the delegated decree 1.023/01 and its amendments and supplements, the application of the preference provided for in article 2. The decision to apply the margin of preference shall be provided in the respective folds of particular bases and conditions applicable to the selection procedures.

If its application is not foreseen, the preference for the national property will be limited to the case of equal prices.

ARTICLE 4. The contracting entities referred to in article 8 (a) of law 24,156 and its amendments and article 1 (d) of the present law shall award their contracts to local enterprises, in accordance with law 18,875, which shall offer goods or works of national origin, as provided for in article 5 of the present law, and shall classify as Micro, Small and Medium-size Enterprises, as provided for in the following Acts.

(a) Contracts for the acquisition of location or leasing of goods in amounts less than one thousand three hundred modules (M 1,300), when the price of the awarded bid does not exceed by twenty per cent (20%) the estimated amount of the procurement, in the terms of article 27 of Decree 1,030/2016;

(b) Public work intended exclusively for the construction of public housing and buildings, under the terms of law 13,064, for amounts less than one hundred thousand modules (M 100,000), when the price of the bid awarded does not exceed twenty per cent (20%) to the estimated amount of the contract, in the terms of article 27 of Decree 1,030/2016.

CHAPTER III

Definition of good and public work of national origin

ARTICLE 5. It is understood that a good is of national origin when it has been produced or extracted in the territory of the Argentine Republic, provided that the cost of the nationalized raw materials, inputs or imported materials does not exceed forty percent (40%) of its gross production value.

It is understood that the provision of public works is of national origin when at least fifty per cent (50%) of the materials used in the work meets the requirement of goods of national origin and the company also meets the requirements to be considered as a local company of internal capital, as set out in Law 18.875.

ARTICLE 6. In the contracts reached by this regime, property not of national origin shall be delivered in the same conditions and in the same place as the property of national origin, and shall comply with all the rules applicable to the property originating in the national market, as well as be nationalized with all the taxes and corresponding expenses included. The application authority shall, within fifteen (15) working days of request, provide a certificate verifying the value of non-national property to be acquired.

CHAPTER IV

Publication of recruitments and intervention of the enforcement authority in fold projects

ARTICLE 7. The publicity of recruitments carried out by the individuals referred to in article 1 (a) of this Act shall be in accordance with the general rules of each contracting regime in particular.

The other subjects under this Act shall publish their recruitment procedures as provided by the regulations, in order to provide all potential offerers with timely access to the information that allows their participation.

ARTICLE 8. Projects of specific bases and conditions necessary to carry out any of the contracts reached by this law shall be developed by adopting technically viable alternatives that permit the participation of the supply of goods of national origin. The technically feasible alternative is that which fulfils the desired function at an appropriate level of technology and in satisfactory conditions in terms of its provision.

The contracting entities referred to in subparagraphs (a) and (b) of article 8 of Act No. 24,156 and their amendments shall refer to the implementing authority for its approval, the projects of the particular bases and conditions of the selection procedures that are intended to acquire, locate or leasing of goods in an estimated amount equal to or greater than eighty thousand modules (M 80,000), accompanied by a national feasibility report,

The application authority shall be issued within a period not exceeding fifteen (15) administrative working days from the receipt of the draft fold of particular bases and conditions. In the event that the deadline is not issued, no objection shall be considered as to the guidelines set out in the preceding paragraphs.

CHAPTER V

Demand for productive cooperation agreements

ARTICLE 9 In the forms and conditions established by the regulation, the productive cooperation agreements shall consist of a certain commitment by the grantor to contract local goods and services linked to the contract under the tender.

The purchase of shares of local companies, expenses associated with marketing, advertising or similar activities shall not be considered productive cooperation for the purposes of this article.

In all cases, the agreements should promote the participation of companies considered MiPyMEs by law 27.264 and its amendments.

Article 10.- Where the entities reached by this regime covered by Article 8(a) and (b) of Law 24,156 and their modifications proceed to the acquisition, location or leasing of goods not produced in the country that represent a value equal to or greater than two hundred and forty thousand modules (M 24,40,000), the corresponding percentage of bases and conditions of the procurement shall be expressly included in the corresponding amount of one hundred or more than one hundred of the contracting. For supplies under these cooperation agreements, the largest aggregate value component of these cooperation agreements should be promoted. In cases where it is not feasible to reach the required amount through the above-mentioned procurement, the implementing authority may authorize that amount to be completed through the establishment of investments in the national territory, technological transfer, investments in research or development and technological innovation.

In the event that the amount of such agreements was higher than the minimum required in the preceding paragraph, the value of that surplus may be used by the same grantor in future contracts to integrate that minimum value, provided that the percentage of the productive cooperation of such contracts is at least twenty per cent (20%), in the forms and conditions established by the regulation. The surplus may not be computed when the percentage of the Productive Cooperation Agreement is reduced as provided for in article 15 of this Act.

ARTICLE 11. The approval of the solicitation documents for the contracting of Article 10 of this Law shall also be subject to the prior conformity of the enforcement authority with regard to the productive cooperation agreement.

The enforcement authority shall be issued at the time of the intervention set out in article 8 of this Act. Prior to the award, the proposal for a productive cooperation agreement should be approved by the implementing authority.

ARTICLE 12. In the forms and conditions established by the regulation, the enforcement authority shall require the awardee to establish guarantees on the total amount of the commitments made in the productive cooperation agreements.

CHAPTER VI

Module value

ARTICLE 13. For the purposes of this law, the value of the module (M) shall be one thousand ($1.000), which may be modified by the application authority, with the approval of the Chief of Staff of Ministers.

(Note Infoleg: by art. 8° of the Resolution No. 185/2019 of the Industry Secretariat B.O. 27/09/2019, it is stated that the value of the module (M) as stated in this article amounts to the sum of PESOS TRES MIL ($ 3,000). Watch: from the day after the date of publication in the Official Gazette)

CHAPTER VII

Implementation authority

ARTICLE 14. The authority for the implementation of this Act shall be appointed by the National Executive and shall have the following powers and powers:

(a) Issue the verification certificates provided for in article 6 of this Act;

(b) To adopt the draft folds of particular bases and conditions, in accordance with article 8 of this Act;

(c) Verify the inclusion of the productive cooperation agreements referred to in article 10 of the present Act in the draft folding of particular bases and conditions, proposing modifications where it deems relevant, as well as the effective implementation of such agreements;

(d) Collaborate with the contracting agency for the design and implementation of the productive cooperation agreements referred to in article 10 of this Act;

(e) Require the subjects reached in article 1 of this Act for information concerning the acquisition, location or leasing of property, as well as any other information that it deems relevant, within the framework of the provisions of this Act.

ARTICLE 15. Where the provisions for the acquisition of goods referred to in the second paragraph of Article 8 of this Law include goods of high scientific-technological content, as established by the regulation, at the request of the enforcement authority, and with the intervention of the contracting agency and the Chief of Staff of Ministers, the following conditions may be amended through the mechanisms established by the regulation:

(a) Raise or decrease the percentage referred to in Article 5 of this Law to a total of seventy per cent (70%) and thirty per cent (30%), respectively, of the gross value of production;

(b) Reduce the margin of preference referred to in Article 2 of this Law to a minimum of 5 per cent (5%);

(c) Raise or decrease the percentage referred to in Article 10 of this Law to a total of thirty percent (30%) and ten percent (10%) respectively of the total value of the contract.

In all cases, the implementing authority should produce a technical report that would support the amendments proposed in the terms of this article. In the cases provided for in subparagraphs (a) and (c), the enforcement authority must justify that the proposed amendment favours the increased possibility of participation of national production. In the case provided for in subparagraph (b), the enforcement authority shall verify that the conditions of competitiveness of the production of goods of national origin justify the proposed modification. Such a report shall be sent to the Bicameral Commission referred to in article 16 of the present report and given to publicity, as established by the regulation.

The application authority may not reduce the margins of preference applied to MiPyMEs, according to Law 27.264 and its amendments, for the term of three (3) years since the validity of this Law.

CHAPTER VIII

Bicameral Commission for Legislative Follow-up

ARTICLE 16. Incorporate the Bicameral Commission for the Monitoring of Contracts for Public-Private Participation, created by article 30 of Law 27,328, the function of verifying compliance with the obligations and requirements of this Law by the obligatory subjects, in particular the effective participation of national production.

The Bicameral Commission:

(a) Receive any information and documentation that it deems relevant from the implementing authority;

(b) It shall convene the holder of the enforcement authority on a biannual basis for the purpose of providing a well-founded report on the implementation of the provisions of this Act;

(c) Request technical advice that it creates appropriate by associations of industrial entrepreneurs;

(d) To inform the implementing authority and its respective bodies of any observations, proposals and recommendations it deems relevant.

CHAPTER IX

Sanctions and resources

ARTICLE 17.- In the event of the configuration of non-compliance with the obligations set forth in this Act and its regulation by the entities covered by Article 1 (a), (d) and (e) of the present Law, the authorities of such entities, the General Assembly of the Nation and the General Audit of the Nation shall be notified.

ARTICLE 18.- In the event of the establishment of the non-compliance with the obligations set forth in this Act and its regulation by persons covered by article 1 (b) and (c) of this Act, the following penalties may apply:

(a) Perception;

(b) A fine of between five percent (5%) and fifty percent (50%) of the contract amount, in which the breach is verified. Such a fine may be reduced by up to fifty per cent (50 per cent) if the penalty rectifies its failure to comply immediately with the present regime;

(c) Suspension for future contracts, concessions, permits or licences, for a period of three (3) to ten (10) years. The administrative act implementing this sanction will be communicated to the Providers Information System (SIPRO) which administers the National Contracts Office of the Ministry of Modernization Administrative Modernization Secretariat.

ARTICLE 19. The penalty imposed on the verification of an offence shall be graduated in the light of the seriousness of the offence, the economic capacity of the offender and the degree of involvement in the public interest.

ARTICLE 20. Where the offender who has been awarded in a selection procedure for the application of the preference established in this Act does not comply with the terms of the procurement or with the percentages of national integration declared in the goods offered, he shall refund the amount equivalent to the obtained preference, consisting of the difference of the percentage by which he obtains the award of the contract, without prejudice to the other penalties that may correspond to him.

ARTICLE 21. Any person, human or legal, who contends a subjective right, a legitimate interest, a defamous interest or a collective right, may resort to acts that are in violation of the provisions of this law, within ten (10) working days counted since they took or were able to take notice of the alleged act of injury.

The appeal shall be submitted to the same judge who formulated the requirement of recruitment, which may result in the petitioners or, failing that, shall transmit it together with all the corresponding actions within five (5) working days counted from their interposition, any of its hierarchy within the public administration or its legal nature, to the authority of application which shall be the competent organ for its substance and resolution and which shall be issued within thirty administrative days.

The decision of the enforcement authority shall establish the ratification, rejection of the appeal filed, or the proceeding thereof, and, where appropriate, annulment of the contested procedure or act or of the procurement in question and exhaust the administrative route.

ARTICLE 22. Article 249 of the Criminal Code shall be deemed to have an offence punishable by a higher penalty, public officials and administrators and employees, irrespective of their hierarchy and function, of the entities referred to in article 1 subject to this law or similar laws issued by the provinces, insofar as they omit or act to omit, refuse to comply, do not adequately comply with the rules declared to be binding,

ARTICLE 23. Any person who, by false or reluctant reports, incorrect statements, forged documentation, machinations of any kind or any other form of deception, obtains unduly or does obtain another, or in any way, not yet for profit, will facilitate someone to obtain the undue benefits set out in this law or in the concordant rules dictated by the provinces and/or the Autonomous Government of the City of Buenos Aires.

CHAPTER X

Provider development

ARTICLE 24. Consider the National Supplier Development Programme, whose main objective will be to develop national suppliers in strategic sectors, in order to contribute to the momentum of industry, the diversification of the national productive matrix and the promotion of competitiveness and productive transformation.

In order to achieve its objectives, the National Supplier Development Programme will promote the articulation between the supply of products and services, existing and potential, with the demand of the National Public Sector and legal entities operating in the strategic sectors demanding of such goods, with the aim of channeling demands and developing suppliers capable of supplying them.

The National Suppliers Development Programme will identify opportunities for local suppliers through the refurbishment of existing supply or the technical feasibility of local supply of such products and/or services with the assistance of technical and financial tools to promote the improvement of national suppliers.

ARTICLE 25. The subjects covered by law 26,741 should implement a National Suppliers Development Programme aimed at expanding the impact of local suppliers on the supply chain for the purpose of improving their productivity, competitiveness and quality (providence competitiveness), identifying and articulating opportunities to improve the competitiveness, efficiency and productivity of the productive activities of the subjects covered by law 26,741 (competitiveness of demand).

The implementing authority, with the participation of the agencies that the regulation establishes, will approve the National Suppliers Development Programs in order for the Ministry of Production to develop the corresponding public policies and competitiveness plans. National vendor development programmes should have a minimum duration of three (3) years, without prejudice to the annual follow-up as determined by regulation.

CHAPTER XI

General provisions

ARTICLE 26. The national executive branch will invite the provinces and the Autonomous City of Buenos Aires to join the regime of this law.

Property produced in the provinces that adhere to the regime in all its terms shall, in the first three (3) years since its entry into force, have an additional preference of one per cent (1%) with respect to the preference established in Article 2 of this Law.

ARTICLE 27. Decree-Law 5,340 dated 1 July 1963 and Law 25.551. In all those rules in which reference is made to the application of Act No. 25.551, as well as the National State Procurement and Public Service Concessionaries " Purchase Argentine Work " and the “Argentine Purchase, National Purchase and National Contract” regimes, the present law shall be applied.

Keep the force of law 18,875 in all that is not contrary to this law.

CHAPTER XII

Regulation and validity

ARTICLE 28. This law shall be regulated by the national executive branch within the period of ninety (90) days of its promulgation.

ARTICLE 29. This law will begin to rule at 90 days of publication.

ARTICLE 30. Contact the national executive branch.

IN THE SESSION OF THE ARGENTINE CONGRESS, IN GOOD AIRES, TO THE DAYS OF THE MONTH OF APRIL OF THE YEAR DOS MIL DIECIOCHO.

— REGISTRATE BAJO N° 27437 —

MARTA G. MICHETTI. - EMILIO MONZO. - Eugene Inchausti. — Juan P. Tunessi.

e. 10/05/2018 No. 32318/18 v. 10/05/2018