Article 1.-Introducense the following modifications in the Decree No. 900, of the Ministry of public works, from 1996, which sets the text revised, coordinated and systematized the decree with force of law N ° 164, of the Ministry of public works, 1991, law of concessions of public works: 1) replaced the article 1, by the following: "article 1.-the execution, repair, preservation or exploitation of public works tax" by the system established in article 87 of the Supreme Decree No. 294, the Ministry of public works, 1985, tenders and awards to be granted, whether it's the exploitation of works and services; use and enjoyment on national public use or fiscal, goods destined to develop the service areas that are agreed upon; the provision of equipment or the provision of associated services, they are governed by the rules established in this decree with force of law, its regulations and the bases of the invitation to tender for each contract in particular, to the Ministry of public works develop to the effect.
Awards that are granted will include the obligation of the concessionaire comply, during all the duration of the concession, with the levels of service, technical standards, or both, set out in the respective bidding rules, stages and conditions of the award. "."
(2) Insert the following article 1 bis, new: "(Artículo 1º bis.-Habrá un Consejo de Concesiones, de carácter consultivo, integrado por: 1) Minister of public works, who will chair it;"
(2) a counselor of free appointment and removal by the Minister of public works;
(3) four counselors. The first will be an academic from a Faculty of Civil Engineering; a second, belonging to a Faculty of economics or economics and management, a third, belonging to a Faculty of legal sciences, and a fourth, belonging to a Faculty of architecture, having studies or specialization in urban planning. All of them of any of the universities who have obtained their institutional accreditation for a period of at least four years, in accordance with the provisions of the law No. 20.129. At least two scholars must belong to universities based in different regions of the Metropolitan. Their appointment and removal will be freely made by the Minister of public works.
This Council shall be responsible for reporting the type of infrastructure that will be developed on the basis of this law, projects and modalities of concession regime, taking into account, among other information, and in case that they exist, regional urban development plans and communal, intercommunal and metropolitan regulatory plans, and social evaluation approved by the competent planning body.
Shall be heard in this Council ministries constituents of works delivered in concession, in the case of affable subjects to these. Additionally, the Council will request the opinion of other Ministers and other authorities of Government and administration of the State, if it so deems it suitable in accordance with the nature of the issue concerned, in order to collaborate in the coordination that should exist between the public bodies involved in different types of concessions.
The authorities referred to in the preceding paragraph shall attend meetings that are required by the Council personally or through a representative appointed for these purposes, invested with full powers.
Advisors appointed in accordance with paragraphs 2 and 3 of this article, shall apply to the rules on disabilities and administrative incompatibilities laid down in articles 54, 55 and 56 of the Act No. 18.575, on General Bases of the administration of the State constitutional organic. If any of the appointed directors in accordance with this subsection commits, during the charge, in any of the inhabilitantes mentioned above, he shall cease immediately in its functions.
Unless the Minister of public works, the permanent members of the Council shall be entitled to receive a monthly fee of 30 monthly tax units. In addition, they will receive a fee of 30 monthly tax units by their attendance at each session of the Council. However, the maximum that can be levied by both concepts will be 90 monthly tax units per each calendar month.
The Ministry of public works shall be required to report in advance of the awards Council, in the following cases: to) declare public interest projects of private initiative;
b) determine a private project to be executed with a mechanism different from the concession, according to article 2;
(c) analyse the projects of public initiative to be considered to run through the system regulated by this law;
d) set the exception contained in article 19 fifth paragraph, final part;
e) hire new investments and works under exceptional conditions which article 20 bis, and f) analyse modalities of the concession regime of the projects to be submitted to public tender, and must consider the social evaluation approved by the competent planning body.
Without prejudice to the provisions of the preceding paragraph, the Ministry of public works may request report to the Council of concessions regarding the following matters: a) met the deadline of a concession, analyze the origin of their rebidding;
b) modify the characteristics of the works and services contracted according to article 19;
(c) modify the characteristics of the works and services contracted according to article 20, in which case the report of the Board of concessions shall relate to the cost of upgrades and their compensation;
d) declared a breach grave in accordance with article 28, analyse the appropriateness of a new tender and its conditions, for the period that subtract you or continues as the fiscal public works;
e) anticipated term granted pursuant to article 28 ter), and (f) any other matter that the Minister of public works to submit for consideration to the Council of concessions.
The reports of the Council of concessions will be founded and public and must be evacuated within the time limit set by the Minister of public works, which shall not exceed 60 days from the date of your request. If the expired the respective report, has not been evacuated will proceed without the Advisory opinion of the awards Council.
The regulations under this law shall establish the rules on citation of the awards Council, quorum for constituting and adopt agreements and other regulations on their operation. "."
((3) modifying article 2, in the following way: to) add, in the second paragraph, then of the separate dot (.), that happens to be followed dot (.), the following sentence: "the rules shall lay down the criteria for the qualification of these nominations.".
(b) add the following paragraph third, new, becoming their current third subparagraph, fourth, fifth, sixth and seventh subparagraphs fourth, fifth, sixth, seventh and eighth, respectively: "Without prejudice to the above, the qualification of these applications should be considered the compliance with provisions in the regional urban development plans and communal, intercommunal and metropolitan regulatory plans, provided they exist.".
(c) add, in the third paragraph that happened to be fourth, then the separate dot (.), which happens to be followed dot (.), the following sentence: "Without prejudice to the foregoing, the Ministry of public works may require the joint financing of the necessary studies, in the article accordance with 6 ° bis, in the event that decide to use the mechanism of prequalification.".
(d) replace, in its final paragraph, the phrase "the pre-investment studies and projects" by "Projects".
(4) repealed article 5.
(5) Insert the following article 6 bis, new: "article 6 bis.-the Ministry of public works may be a call for pre-qualification of bidders in order to select, through a process made up of one or several stages, stakeholders who comply with the uniform, objective and reasonable requirements established in the respective foundations of prequalification, which can only refer to legal aspects financial and technical capacity of experience, results in other works commissioned in the past, historic compliance with labour regulations and social security and responsibility of the person concerned or its related parties.
In addition, in the case of public or private initiative which are multifunctional and projects that are of a high degree of complexity, such as prisons, hospitals, urban motorways or other similar, prequalification databases may require other objectives and requirements necessary to participate in such projects, as long as they do not constitute arbitrary elements and safeguard equal treatment among the participants in this process. In addition, prequalification databases may provide a procedure and a period of time for which the prequalified propose to the Ministry of public works improvements, additions or adjustments that they consider suitable to include in the design of the final project, through presentations that will have public. During this process, within the period specified in the bases of prequalification, the prequalified and the Ministry of public works may be made enquiries and requests for clarification. The Ministry of public works may ask the effect of additional studies, which will be governed by the provisions of the following paragraph. With all this background, the Ministry of public works can improve and harmonise the levels of service and technical standards of the project. The Ministry of public works, within the time limit fixed in prequalification databases, information about additional content or settings which will be incorporated in the bidding rules.
The bases of prequalification may establish the pre-qualified to apply equally to the financing of studies that the Ministry of public works deems necessary to develop the foundations of tender, individualizing studies and its value. Such studies shall be hired by the Ministry of public works to separate entities with competence in the matter in question.
The Ministry of public works will draw up the bid bases within the period specified in the bases of prequalification, and will proceed to the selection of the successful tenderer pursuant to the provisions of article 7 and its complementary norms.
The successful tenderer in the tender shall reimburse the amount contributed by these for the financing of studies that have been hired in accordance with the provisions of the third paragraph of this article, in the manner, mode and time established on the bases of prequalification to bidders. Such refund will be in charge of the Ministry of public works, if this is waive the tender after pre-qualification or find deserted the tender for well-founded reasons. "."
((6) Introducense following modifications in article 7: to) replace, at the end of the letter k), the expression ", and", by a separate dot (.), and add the following second paragraph: "also considerations on the implementation of the established regional plans of urban development, communal, intercommunal and metropolitan regulatory plans, and".
((b) replace the letter l), with the following: "l) total concession income calculated according to the bid bases." This tender factor may not be used in conjunction with none of the factors indicated in letters to), b) or i) former. "."
(7) replacements articles 19 and 20, by the following: "article 19.-the dealer may apply for compensation in the event of Act sobreviniente of authority with the public power that thus justifies it, only when, copulativamente, meets the following requirements: the act occurs subsequent to the award of the concession;" you have not been able to be foreseen at the time of adjudication; does not constitute a legal or administrative rule dictated with General effects, which exceed the scope of the industry of the concession in question, and significantly alter the economic arrangements of the contract.
The investment of the licensee to comply with the levels of service and technical standards set out in the bidding rules and the concession contract, will not be susceptible to additional financial compensation to the considered in these instruments, except for exceptional cases in which has thus provided in the bidding rules.
The Ministry of public works may change the characteristics of the works and services contracted in order to increase the levels of service and technical standards established in the bidding rules, or for other reasons of public interest duly informed. As a result, must compensate for economically dealer where appropriate, for the additional costs that this incur such charges.
The bidding rules will establish the maximum amount of the investment that the concessionaire may be required to perform pursuant to the preceding paragraph, as well as the maximum period within which the Ministry may order modification of works concession. In any case, the maximum amount of these investments may not exceed fifteen per cent of the budget officer of the work, or may be required at a later date to the fulfillment of three quarters of the total term of the concession, except in the cases of express agreement in writing with the company.
If the value of these additional investments, during the exploitation phase, exceed five per cent of the budget officer of the work or correspond to an amount exceeding 100,000 units of building, its execution shall be tendered by the concessionaire, under the supervision of the Ministry of public works, in the form that establishes the rules of procedure, in which case the value of the investments to be compensated to the concessionaire is the result of the tender , to which an additional amount will be added to title of administration costs of the contract, which will be determined in the bidding rules. The Ministry will have 60 days to approve or express their observations to the respective bases, counted from the receipt of these. After that deadline unless the Ministry has spoken, they shall be accepted. However, for reasons founded, contained in the bidding rules, report of the awards Council, may establish an exception to the obligation of the tendering of additional works in the conditions described above.
The financial compensation referred to in the preceding subparagraphs, should be expressed in the following: subsidies provided by the State, voluntary payments made directly to the dealer by third parties who are interested in the development of the work, modification of the present value of the total revenues of the granting, alteration of the period of the concession, modification of the rates or other factor of the economic regime of the concession agreement. One or more of these factors may be used at the same time.
In the case of paragraphs third, fourth and fifth of this article, the calculation of the compensation and the setting of the parameters mentioned in the preceding paragraph, shall always be made so get that the net present value of the additional project is equal to zero, all this considering the applicable discount rate and the economic effect of the additional project in the original project including the increased risk that can be added to it. The applicable discount rate will be calculated on the basis of the current average rate for debt instruments consistent with the term of the investment, adjusted by the relevant risk of additional project and that appropriate mechanisms for compensation that apply. If there is disagreement over the applicable discount rate, the parties may resort to the bodies laid down in articles 36 and 36 bis. For these purposes, the derivative means additional project directly of the modification of the characteristics of the works and services contracted.
All amendments to the original contract to include additional works, which separately or in combination exceed five percent of the official budget of the work, and always that that percentage corresponds to an amount exceeding 50,000 units of development, must have a report of the respective Directorate of the Ministry of public works on the impact of the change in the originally committed service levels in the valuation of the investments to be carried out, and the respect for proportionality and equivalence and mutual economic benefits of tariff levels and structures provided for in the concession contract.
Amendments incorporated in the award pursuant to this article shall be made by founded Supreme Decree of the Ministry of public works, which must carry, in addition, the signature of the Minister of finance.
Article 20.-The Ministry of public works and the dealer may agree to modification characteristics of works and services, in order to increase the levels of service and technical standards set forth in the bidding rules, by subscribing to the corresponding complementary to the concession contract agreement.
The bidding rules will establish the maximum amount of the investment that the Ministry of public works and the dealer may establish by common agreement, as well as the maximum period within which may be modifications of the works concession. In any case, the maximum amount of these investments in the construction phase, may not exceed twenty-five per cent of the official budget of the work. However, during the exploitation phase, when the value of these investments exceed five per cent of the budget officer of the work or correspond to an amount exceeding 50,000 units of promotion, execution shall be carried out in accordance with the provisions of the third and following paragraphs of the preceding article. This restriction shall not apply to new investments which are financed entirely by the concessionaire and which do not give rise to compensation.
Offsets which are concerned in the favour of the concessionaire shall be governed entirely by the provisions in paragraphs sixth and seventh article 19.
The approval of the respective additional agreement will be by Supreme Decree of the Ministry of public works, will have, in addition, the signature of the Minister of finance, following a report of the respective address on the impact of changing levels of service originally committed, in the valuation of the investments to be carried out, and in the respect of the proportionality of the mutual economic benefits and structures and tariff levels foreseen in the concession contract. "."
(8) add an article 20 bis, new, read as follows: "article 20 bis.-exceptionally, during the stage of construction and for duly justified reasons of public interest, when a concession work requires of redesign or complementation, in such a way that the total of the additional investments needed during this stage, including the costs of maintenance, operation and conservation, exceed twenty-five per cent of the official budget of the work" (, such additional investments and modifications of works will be contracted by the Ministry of public works with the dealer, once fulfilled the following conditions: 1) that the facts and circumstances giving rise to the need for redesign or complementation occur subsequent to the award of the concession and have not been able to be foreseen at the time of adjudication;
(2) for reasons of experience, behavior, performance, environmental, and social impacts of management economies or economies of scale, be more efficient to allocate new works to the original dealer;
(3) that it has been agreed specifically design, technical features and service levels that meet the work object of redesign or complementation;
((4) which were agreed offsets by execution works object of redesign or complementation and that such compensation are governed entirely by the sixth and seventh subparagraphs of article 19, and 5) Technical Panel, established in article 36, to explicitly rule with its favourable recommendation to the agreement between the Ministry of public works and the dealer (((, on the basis of the concurrence of the requirements set out in paragraphs 1), 2), and 4) of this article, and the differences that would occur in case of application of the provisions of article 28 ter. In any case, the technical Panel can make recommendations prior to its final decision.
Satisfying the above requirements, all the background must be made available of the awards Council, so report to the Ministry of public works, on the advisability of proceeding to agree on new investments and works under the above-mentioned conditions.
Amendments incorporated in the award by virtue of the provisions of this article, shall be made by founded Supreme Decree of the Ministry of public works, which must carry, in addition, the signature of the Minister of finance. "."
((9) amending article 21, in the following way: to) be inserted following paragraph third, again, passing the current paragraph third to be fourth, and so on: "However, concessionaires, monthly, required the Ministry of public works information on payments made to contractors. The same obligation will weigh on contractors with respect to subcontractors. This information shall be posted on the Web site of the Ministry of public works and updated monthly. "."
(b) add, in its fifth paragraph, that happens to be sixth, ahead of separate point (.), that happens to be followed dot (.), the following sentence: "If the pledgee does not comply with these requirements, must have a qualified operator in deadlines and terms established in the bidding rules".
(10) Agreganse as paragraphs second and third, new, number 2 of article 22, the following: "without prejudice to the foregoing, the concessionaire's contractors must be registered in the records of the Ministry of public works contractors. Contractors or subcontractors of a dealer may not be who are in the situation referred to in article 28 bis of this law. Both contractors and their subcontractors may not start work without their respective contracts are signed, registering, by the concessionaire, a copy of them to the Ministry.
Disputes that may arise between the dealer and the contractors or between them and their subcontractors, on the occasion of the application, interpretation or execution of the contracts concluded between them on the occasion of the execution of the work, may be known and resolved by arbitrators to be determined by its rules of procedure, guaranteeing a just and rational procedure or due process , and will give final judgment with strict application of the law. In this case, the arbitrators only may be appointed, agreed by the parties, from among those that are part of an entity's mediation, conciliation and arbitration existing in the country or, failing that, will serve as arbitrator who is appointed pursuant to article 232 of the organic code of courts. "."
(11) be replaced with article 28, the following: "article 28.-the Declaration of gross breach of the concession contract must be requested, based on any of the grounds set out in the respective contract or bidding rules, by the Ministry of public works to the Arbitral Commission established in article 36 bis."
Declared a serious breach of the contract by the Arbitration Commission, the Ministry of public works shall appoint an auditor, which will only have the powers necessary to ensure compliance with the concession contract, to be applicable standards of article 207, paragraphs 1 to 5, of book IV of the commercial code. This controller will be liable for slight negligence.
Within a period of 120 days, counted from the Declaration of serious non-compliance, the Ministry of public works, prior approval from the Ministry of finance, will determine if it will proceed to publicly bid the concession contract for the term that subtract you.
The bidding process, in case that is optare by it, must be performed within the period of 90 days since it is determined to be relicitará the contract, and the amount raised product it will be owned by the original dealer, subject to stated in the sixth paragraph of this article. The bases of the invitation to tender shall establish requirements that will meet the new concessionaire, which, in any case, may be more burdensome than those imposed to the original dealer, unless, by ruling of the awards Council, and under new background, these requirements prove insufficient to undertake the work. In the first call for tender, the minimum of the positions may not be less to two-thirds of the debt contracted by the dealer. In the absence of stakeholders will be a second tender, without a minimum, within a period of 90 days since has been declared deserted the first bid.
If it is determined to not publicly tendering the concession contract for the term remaining to him, the Ministry of public works, without prejudice to in the sixth subparagraph of this article, you must pay the dealer the value of the investments needed for the provision of the service, that have actually been made by the dealer, and that have not been redeemed more normal financial costs of the market relevant to such investments, duly accredited, including the resets and interest accrued up to the time that payment is made effective. The amount of the payment will be fixed by agreement between the Ministry of public works and the licensee, prior approval from the Ministry of finance, within 60 days of the date on which the non-relicitacion of the contract are determined. In the absence of agreement, total or partial, the determination of the controversial payment amount will be led to the recommendation of the technical Panel established in article 36, within 10 days following the expiration of the deadline to fix the amount by mutual agreement. If the recommendation was not welcomed by the parties, the amount to be set by the Arbitration Committee, in accordance with the procedure of article 36 bis, provided that the licensee requires in writing its intervention within a period of 10 days from the notification of the recommendation of the technical Panel. If agreement arises in a partial amount, payment of that amount may be agreed immediately written, prior approval from the Ministry of finance, reserving the knowledge of disputed for the Arbitration Committee. Not having reached agreement, if the dealer requires no technical Panel, or the Arbitration Committee, within the time limits in this paragraph, the highest amount that the Ministry of public works has offered shall be accepted by the licensee in the manner referred to in the regulation during the course of the negotiation.
Serious breach Declaration will make enforceable loans that are guaranteed with the garment established in article 43. These loans will be made effective on the product of the tender or payment that shall make the Ministry of public works, as the case may be, in preference to any other credit.
In the event that during the procedure the concessionaire has contracted credits with the approval of the creditors listed in the previous paragraph, and these credits are required, they will be effective in the product of the tender or payment referred to earlier with preference to those guaranteed with the special public works concession pledge. In your case, and after deductions appropriations referred to in this subsection, the product of the tender will be deducted Additionally accredited expenses that the Ministry of public works has been incurred to carry out the same. "."
(12) Agreganse the following items 28 bis and 28 ter, new: "article 28 bis.-declared a serious breach of the contract of concession, in accordance with the previous article, the respective concessionaire and its related persons may not apply for tenders or participate in a new concession. Refers to persons related to the concessionaire the referred in article 100 of law 18,045, unless the relatives indicated in its letter c).
Shall be understood also as people associated with the company, those that have been at any time during the two years prior to the date of application for a serious breach Declaration.
The inability of the concessionaire and its related persons shall remain in force for 5 years, from the date that is handed down the judgment that declares the serious breach, in which case the resources that engage against suspended not the computation of the period of disability and its effects.
Article 28 ter-public interest cause such, the President of the Republic, following a report of concessions Council and founded Decree of the Ministry of public works, which must carry, in addition, the signature of the Minister of finance, may terminate prospectively to grant when a change of circumstances do unnecessary work or service for the satisfaction of public needs , or demand his redesign or complementation in such a way that the additional investments needed to adapt the work to the new conditions exceed twenty-five per cent of the official budget of the work. This authority may be exercised only during the construction phase.
The Supreme Decree stating the anticipated term, designated the term and conditions in which dealer must deliver the work to the Ministry of public works.
The dealer shall be entitled to compensation equivalent to the value of investments that actually they made for the provision of the service in accordance with the concession contract, excluding financial expenditure, carried to future value when you remember the payment; its formula, components and methodology of calculation shall be established in the bidding rules. A percentage of the present value of expected net profit of business concession, corresponding to the proportion of the investment of the project carried out by the dealer until the anticipated end date will be added to this.
To the total amount of the agreed payment, joins the readjustments and interest to date this payment is made effective.
For the determination of the future value of investments will be considered as discount rate, the rate of capital cost weighted relevant business in accordance with the criteria laid down for the purpose in the bidding rules. For the determination of the present value of expected net benefits of the concession business is used the adjusted discount rate, so consider the risk inherent to grant future workflows and distribution at the time. The procedure to be applied and the corresponding calculation formula will be established in the bidding rules.
The amount of the compensation shall be fixed by agreement between the Ministry of public works and the dealer, and approved by the Ministry of finance, within 60 days of the date of publication of the respective Decree.
In the absence of agreement, total or partial, on the amount of compensation or any of its calculation factors, the controversy will be carried to the recommendation of the technical Panel established in article 36, within 10 days following the expiration of the deadline to fix the amount by mutual agreement. If the recommendation was not welcomed by the parties, the controversy will be resolved by the Arbitration Committee, in accordance with the procedure of article 36 bis, provided that the licensee requires in writing its intervention within a period of 10 days from the notification of the recommendation of the technical Panel. If agreement arises in a partial amount, payment of this amount will be immediately agreed in writing, reserving the knowledge of disputed for the Arbitration Committee. Not having reached agreement, if the dealer requires no technical Panel, or the Arbitration Committee within the time limits in this paragraph, the highest amount that the Ministry of public works has offered shall be accepted by the licensee in the manner referred to in the regulation during the course of the negotiation.
The early termination of the concession will be payable loans secured by the pledge established in article 43, to be made effective on the compensation received by the concessionaire in preference to any other credit.
When appropriate, the Ministry of public works, report of the Board of concessions, determine whether the reformulated project will be again given concession or executed in the way established in article 86 of the decree with force of law N ° 850, of the Ministry of public works, 1998. Having put term anticipated the granting by a change of circumstances that demand your redesign or complementation through additional investments that exceed twenty-five per cent of the official budget of the work, and always that the public works Ministry resolved to run it within the three years following the date of the early term, the reformulated project shall be given in concession by public tender. "."
(13) be replaced with article 29, the following: ' article 29.-the bidding rules should explicitly indicate the service levels required for the exploitation phase, their respective indicators and sanctions. "
It will be up to the Ministry of public works, inspection and monitoring of the compliance by the licensee of its obligations, both the construction phase and the exploitation of the work.
In the event of non-compliance, the Ministry may impose on the licensee penalties and fines that the regulation and the bidding rules to establish, without prejudice to the right of the concessionaire to resort to the mechanisms referred to in article 36 bis. "."
((14) amending article 30, as follows: to) replace, in its heading, "Conciliatory" expression by "Arbitration", and the reference to "article 36" other "article 36 bis".
(b) delete the number 1, becoming the current numbers 2 and 3 1 and 2, respectively.
(15) Insert the following article 30 bis, new:
"Article 30 bis.-during the term of the concession contract, the Ministry of public works, in order to verify the operation of the concession and the proper performance of the obligations of the concessionaire, may require this delivery information of the subcontracts concluded for the execution of the work and the provision of the service, and certain information related to your accounting business management and systems of care to users. The received history must be kept under reserve. Refusal or undue delay in the delivery of the required background and reliable delivery of manifestly inaccurate information or not will be sanctioned with penalties laid down in the regulation.
Also the Ministry of public works, founded resolution, may require the dealer that takes place, under penalty of fines, audits to check the truthfulness and accuracy of the information that has been provided to you. The auditor must be approved by the Ministry of public works, and their recruitment and financing will correspond to the required dealer.
As soon have news of its occurrence, the dealer shall inform the Ministry of public works of any fact or circumstance relevant to that affect or may affect the normal development of the works, in the phase of construction, or the proper provision of the service compliant with the levels of service and technical standards laid down in the respective bidding rules , in the phase of exploitation. The breach of this obligation shall be punished with the penalties laid down in the regulation. "."
(16) added, in the heading of chapter X, after the word "Compensation", the phrase "and dispute resolution".
(17) be replaced with article 36, the following: "article 36.-the discrepancies of technical or economic arising between the parties during the execution of the concession contract, may undergo consideration by a technical Panel at the request of any of them."
The technical Panel, which shall not exercise jurisdiction, shall issue, under the public procedure established in the rules of procedure, a recommendation technique, properly established, within a period of 30 calendar days, renewable once, counted from the filing of the discrepancy. The recommendation shall be notified to the parties and will not be binding for them.
The recommendation of the Panel shall be without prejudice to the Faculty of the concessionaire to operate subsequently before the Arbitration Commission or the Court of appeals of Santiago, although the controversy falls on the same facts. In such a case, the recommendation will be held by the Arbitration Committee or the Court of appeals as a precursor to the enactment of his sentence.
May be submitted for consideration by the technical Panel discrepancies that occur in relation to: 1. technical and economic evaluation of the investments made by the concessionaire, of its state of progress, costs and deadlines, in accordance with the levels of service and technical standards established for the respective concession.
2. the determination of the existence of additional costs and causes economic, technical or management, or other facts or circumstances that technically affect or may affect the normal development of the works during the construction stage.
3. the definition of the value of investments has exceeded any of the limits laid down in articles 19, 20 and 28 ter.
4. the determination of the economic effects which would grant additional works.
5. the technical determination of the rate of discount, risk of the business, financial costs and other economic factors that is necessary to calculate the economic compensation to the concessionaire in the event of early termination of the concession contract, realization of additional works or any other event that contemplate the law and requiring these calculations.
6. any other technical or economic discrepancies that parts of a concession contract with each other on the occasion of the execution of the contract or the technical or economic application of the regulations applicable to the contract and that, by mutual agreement, subject to consideration, as well as others indicated by law.
The presentation of a discrepancy before the technical Panel concerning the enactment of a resolution of the Ministry of public works, will not suspend its effects.
Technical Panel may request to dealers and the public works Ministry those records deemed necessary in relation to the technical and economic aspects of the concession contracts during the construction stage.
The technical Panel will be integrated by the following professionals who must have an outstanding track record professional or academic, in technical matters, economic or legal entities of the sector of concessions of infrastructure, according to the case: two lawyers; two engineers, and a professional specialized in economic or financial Sciences. These professionals may not be or have been in the twelve months prior to his appointment, related to public works concessionaires companies, whether as directors, workers, independent advisors, shareholders or holders of rights therein or its parent, subsidiaries, affiliated companies, or coligantes or construction companies or engineering subcontractors of grantees; They may be, or have been in the twelve months prior to his designation, related to the Ministry of public works, be dependent on the same or other public services or services paid to the Ministry of public works or other public services linked directly or indirectly to the activity of concessions. Disabilities and incompatibilities provided for in this subsection, shall remain with respect to each Member, up to one year after completion of their period.
The members of the technical Panel shall be appointed by the Council of senior public management, established by the law N ° 19.882, through public contest of history, based on objective, transparent and non-discriminatory conditions. In the framework of the competition, the Council of senior public management must verify the suitability of the chosen professionals and the absence of disabilities and incompatibilities that affect them. The contest shall comply with the procedure laid down in the regulations under this law, and develop within a maximum of 60 calendar days. The appointment of the members thus appointed shall be by resolution of the Ministry of public works.
The members of the technical Panel, will stay six years in office, and may not be appointed for successive periods. Your renewal will be partially every three years, starting with the two lawyers. The designations must be made to single lists by the Council of senior public management, with agreement of four fifths of its members.
The Panel will have a lawyer Secretary which will have the functions that set the rules and will be full-time, being able to exercise academic activities in universities recognised by the State.
Once constituted, the technical Panel shall elect from among its members the Member who will chair it for the next three years. The President shall be full-time, being able to exercise academic activities in universities recognised by the State. The minimum for meeting quorum shall be three members, at least two of whom must not be attorneys case discrepancies generated during the construction period, and agreements shall be adopted by a simple majority, deciding the vote of the President in the event of a tie.
The Ministry of public works will finance the costs of administration and operation of the technical Panel and the half of the amount of the fees of its members, including them in the appropriate headings of the budget law. The remaining half of the listed fees will be supported by the concessionaires governed by this law, according to the proportion defined in regulation. The monthly salary of the President shall be a sum equivalent to 150 monthly tax units, more twenty-five monthly tax units per session, with a total stop of three hundred monthly tax units; that of the other members of the Panel, will correspond to a monthly amount equivalent to 100 monthly tax units, more twenty tax units monthly by each session, with a total cap of two hundred tax units per month, and his attorney Secretary, will correspond to a sum equivalent to 150 monthly tax units.
The technical Panel will be constituted and will dictate the rules of its operation. "."
(18) Insert the following article 36 bis, new: "article 36 bis.-disputes or claims arising on the occasion of the interpretation or application of the concession contract or that result in his execution, can be carried by parties to the knowledge of an Arbitration Commission or of the Court of appeals of Santiago. The Ministry of public works may only appeal to the Arbitration Committee once was authorized the final commissioning of the work, except the Declaration of serious breach referred to in article 28, which can be requested at any time. The economic or technical aspects of a dispute may be brought to knowledge of the Arbitration Commission, or the Court of appeals, only when they have been previously submitted to the knowledge and the technical Panel recommendation.
The Arbitration Commission shall be integrated by three academics, of which at least two will be lawyers and one of these will preside over it. They will be appointed by common accord by the parties from two payroll experts, the first composed of lawyers and made for the purpose by the Supreme Court, and the second, comprised of professionals appointed by the Court of the free competition, through public contest of background, conditions-based objective, transparent and non-discriminatory. In the framework of the competition, both the Supreme Court and the Court of the free competition, shall verify the suitability of the chosen professionals and the absence of disabilities and incompatibilities that affect them.
The contest shall comply with the procedure laid down in the regulations under this law, and develop within a maximum of 60 calendar days.
Experts payroll will be formed, the first of them, twenty lawyers and, second, by ten academics of areas linked to the economy, engineering, or construction, and may only appear and remain in them who have an outstanding academic or professional activity in their respective areas of performance, credited at least ten years of professional practice and are not related to public works concessionaires companies whether as directors, workers, independent advisors, shareholders or holders of rights therein or its parent, subsidiaries, affiliated companies, or coligantes or construction companies or engineering subcontractors of dealers, or have been in the twelve months prior to their appointment. Also may be linked to the Ministry of public works, dependent on the same or other public services or services paid to the Ministry of public works or other public services linked directly or indirectly to the activity of concessions, not be have been in the twelve months prior to their appointment. The regulation will establish the formalities for his appointment.
Two experts payroll was remade partially every five years through a new public tender of background, and may not appear no professional in it for more than fifteen years consecutive or discontinuous, without prejudice to the provisions of the following paragraph. In the absence of agreement of the parties to one or more members, their appointment shall be made by drawing with the clerk of the Court of the free competition among the candidates included in the payroll.
The members of the Committee shall be appointed at the beginning of the respective grant and at the same time, the Commission must be made within 30 days of such designation. Its members will remain in office during the entire period of the respective concession agreement. They may nonetheless be replaced by mutual agreement, when it is necessary or it deems necessary, or at the request of either party, a one-time, always over three years that have elapsed since the date of his appointment and they are unaware of a claim. This without prejudice to disabilities and disabilities mitigating that may affect any of the members, in which case the procedure set out in the foregoing paragraph shall apply for the appointment of his replacement.
The members of the Commission will be paid by the respective concessionaire and the Ministry of public works, by equal parts, in the form and with the limits established the regulations.
The Commission, insofar as its members to designate and will constitute, shall determine the mode in which will be formulated her claims and the notification mechanism that will be used to bring to the attention of the parties resolutions or decisions issued by, and dictate the other rules of procedure that it deems appropriate. These last will be the hearing of the parties and those corresponding to the mechanisms which regulate to receive tests and background that the parties provide.
Unless otherwise provided in this law, parties must make their claims to the Commission within a period of two years from the commissioning of work, if the fact or execution of the Act that makes them tick occurs during the phase of construction, and two years since the occurrence of the fact, since they have had news of it if so be shown convincingly If this happens in stage of exploitation.
Without prejudice to the foregoing and the provisions of articles 28 and 28 ter, the claim against resolutions of the Ministry of public works will be one year, to be reduced to 120 days in the case of resolutions that impose fines, term which in any case shall be suspended by the interposition of the corresponding replacement resources or hierarchical , until its resolution. These time periods it will prescribe the action.
The secured creditors of the garment without movement established in article 43, will be admitted in proceedings to which the functioning of this Commission, give place in independent third-party.
Having an issue on their knowledge and prior to the citation to hear sentence, the Commission may call reconciliation, ex officio or at the request of any party, and propose bases of agreement within 30 calendar days following the day in which the resolution calling for conciliation is notified orally or in writing.
The Arbitration Commission shall have the powers of the arbitrator with regard to the procedure and you will appreciate the test in accordance with the rules of healthy criticism, admitting in addition to the means test indicated in article 341 of the code of Civil procedure, any other means, indicate, or background, the Commission, is suitable to establish the substantial facts relevant and controversial. The Commission will have a period of 60 working days, counted since you cite parties to effect, to issue final judgment pursuant to law, which will be established, and shall enunciate considerations indeed, right, has spoken out on the basis of economic and technical.
The final decision will not be susceptible of appeal.
The final sentence and all the writings, documents and actions of any kind which arise or check in the course of the proceedings, shall be published in the form that establishes the rules of procedure.
In the event that optare by appeal to the Court of appeals, according to the provisions of this article the first paragraph, shall apply the procedure laid down in articles 69 to 71 of the law N ° 18.840, constitutional organic of the Central Bank of Chile, and shall apply the following provisions: 1.-will not be enforceable Bill of consignment.
2. the transfer of the resource will be the Director-General of public works.
This article is without prejudice to the powers of the judiciary and the Office of the Comptroller General. "."
(19) add the following article 36 ter, new: "article 36 ter-the licensee may only request the suspension of the effects of the administrative act claimed before the Commission on Arbitration since it is constituted in accordance with article 36 bis, or before the Santiago Court of appeals, where appropriate."
Such a request will be dealt with hearing of the Ministry and to enact it must be qualified and serious reasons, proof that constitutes at least a presumption must be accompanied severe right claimed.
Without limiting the foregoing, the Arbitration Committee may not, if any, authorize or provide the cessation of the construction of works or the provision of the service for a period exceeding sixty days, either directly or through the suspension of the effects of an act of the Ministry of public works, unless there is agreement between the parties with regard to maintain such stoppage. "."
((20) amending article 37, in the following way: to) replace, in the first paragraph, the expression "conciliatory" by "Arbitration".
(b) replace the third subparagraph by the following: "authorized the appointment of the external auditor, means have gross breach of the concession contract and will proceed according to the provisions in the second and subsequent paragraphs of article 28.".
(c) delete the fifth paragraph.
((21) modified the second paragraph of article 38, in the following way: to) delete the phrase ", or less than half of the said amount at second auction".
(b) replace "third" voice with "second".
((22) amended article 39, in the following manner: to) replace, in the first paragraph, the phrase "to develop service areas" by "to the development of service areas, the provision of equipment or the provision of associated services".
(b) Insert, in the second paragraph, after the expression "any public work", the phrase "the provision of equipment or the provision of associated services,".
(23) be replaced with article 42, the following:
"Article 42.-When the user of a work given in concession does not comply with the payment of your fare or toll, the dealer may charge him Court, re-designed according to the variation of the index of prices to the consumer, more conventional maximum interests and coasts." It shall have jurisdiction to hear judicial recovery, according to the procedure established by law Nº 18.287, the judge of local police in the territory of the domicile of the user. You will be deemed user the person in whose name the vehicle is registered and your home will be listed in the registry of motor vehicles. Also will be considered the user's domicile that it has registered in the use of the electronic payment of fees or tolls system contract to that referred to in article 114 of the decree with force of law No. 1 of the Ministry of Justice, of 2007, which sets the text revised, coordinated and systematized law N ° 18.290, which may be not limited to any Region or commune of the country your location may be no commercial incentive.
When the judge sentence the payment in the terms laid down in the previous paragraph, as well as it should, the amount of the convicted person shall apply a fine of five times. In the event of recidivism, this fine will increase to fifteen times the amount of the convicted person. In both cases, the fine may not exceed twenty monthly tax units. For purposes of recidivism shall be considered only the ordered sentence sentences in the period of three years prior to the date of commencement of the respective process. If the fines are not paid, shall be entered in the register of fines of transit do not pay, in the form, terms and for all purposes the law Nº 18.287. In no case applied fines may be paid if previously paid the principal sum more certain in the respective judgement against the interests and coasts.
However, the debtor may exempt from the application of the fines provided in the paragraph above, if you pay the amount you actually owe more common interests and coasts to the dealership, until the cars are for failure.
Fifty percent of these fines will enter the Municipal pool, passing fifty per cent remaining for the benefit of the municipality to which the Court of local police in which the conviction has been given strength belongs.
In the prosecution of these offences, shall constitute evidence photographs, films and any other technical means that the Ministry of public works had been authorized for the control of non-tariff payments. "."