By: Omar J. Candia Aguilar.
Contents: 1. Preliminary notes explanatory. 2. Important feature and function of the principles in administrative law. 3. The principle of presumption of veracity. 4. The principle of checks. 5. The entity responsible for the subsequent inspection. 5.1. Prior consent of the bid. 5.2. After the consent of the bid. 5.3. During the challenge procedure. 6. The correlation between the principle of presumption of truth and privilege checks.
1. Preliminary notes explanatory.
procurement processes and public procurement, regulated by the TUO of the Law of Contracts and Procurement, DS 083-2004-PCM (the Act) and Regulation of the Law on State Procurement, DS 084 - 2004-PCM (hereinafter regulation), among other rules of special character, have established that the procurement processes with the State are governed by the following principles: i) principle of morality, ii) the principle of free competition, iii) the principle of impartiality, iv) the principle of efficiency, v) the principle of transparency, vi) the principle of economy, vii) the principle of technological validity, and viii) the principle of fair and equal treatment.
The regulation does well in pointing out that the application of the principles numbered in the preceding paragraph is without prejudice to the validity of other general principles of administrative law and common law. We understand, in a practice match analysis, which is applicable in paragraph 2 of Article II of the Preliminary Title, consistent with the third and final supplementary provision of the General Administrative Procedure Act, Law No. 27444, which provide, inter alia, that "special procedures established and regulated as such by the law states, based on the uniqueness of the subject, additionally governed by this Act in those areas not covered and which are not explicitly treated differently, "adds that" this bill is supplementary to the laws and regulations and other existing procedures when not contradict or conflict, in which case special provisions prevail. "
It is because of all the above, the various Chambers of the Tribunal of State Procurement, have been applying the principles that are the subject of study of this work, and form part of the general principles of administrative law.
2. Important features and functions of administrative law principles.
In the Common Law as Administrative Law, there are principles that are applied additionally in contracting and procurement, as we implied in Article 3 of the Act the common law general principles are not fully listed and / or collected in positive rules. Therefore, the teacher says Marcial Rubio, general principles of law are concepts or propositions axiological or technical nature, that inform the structure, mode of operation and content of standards, regulatory groups, sub-assemblies, assemblies and the law itself as a whole. Can be collected or not the legislation but we are not not preclude the existence or operation.
Administrative Law In contrast, the principles are explicitly numbered (although these are not exhaustively as established by the General Administrative Procedure Act), these principles are the inspiration of the order which they belong, and become, shall we say , on the substantive essence of it, with different functions that further studies. In this regard, Dr. Juan Carlos Morón, we required that the principles are two inherent characteristics that are unchanging: a) precedence over other legislation to which it relates, and b) have a dynamic potential, on the bases of the qualities of elasticity, expansion and protection which make it applicable to any present or future reality for which the legislature has not provided an express rule that is required to give affirmative.
It follows the rules in force in administrative law principles conform to the following functions: i) as interpretative approach to resolve issues that may arise in applying the rules of procedure, ii) as parameters for the generation of other general administrative provisions, and iii) to address gaps in the administrative system. Also, contracting and procurement, in addition to the above functions, we consider the following: iv) as parameters of performance of officials and agencies responsible for procurement, and v) ensuring that public sector entities to obtain goods quality services and work required in a timely and appropriate price or cost. In this regard, the Tribunal Procurement and Procurement, by Resolution No. 934-2005-TC-SU, dated September 14, 2005 teaches us that, "glossed standards, we can infer that the provisions of the bases must be consistent with the principles underlying the state procurement system, so it is not enough to accept those that have been expressly provided for in the foundation, simply by being part of this, without analyzing any way in connection with a specific question, its nature, reasonableness and relevance in the selection process, aspects that can not be ignored, because these principles serve as criteria for resolving interpretive issues that may arise in the application Law and Regulations, as parameters for the conduct of officials and agencies accountable. "
3. The principle of presumption of veracity.
This is a proper principle of administrative procedure through which the public a-priori, rebuttable presumption that the act of the administration in the presentation of documents and statements responding to the truth of the facts they assert .
Under this principle the government is in a legal duty to give accurate credit to the performances of the run, rest upon procedural good faith. However, it is necessary to specify that this presumption is not absolute, but it is a rebuttable presumption that rebutted, when informed by other managed or through checks and information handled by the administration, it can prove that the performance of managers ( in the presentation of documents and statements) is not true, in this hypothetical case affect the principle of presumption of veracity.
is necessary to clarify that for the involvement of this principle necessarily requires evidence to the contrary "that the manager's performance are not consistent with the truth of the facts stated" it is not enough evidence, conjecture or evidence of probability.
However, this noble principle that our thinking is crucial in the administration, has been generating an improper use of different bidders in the procurement processes and acquisition of state who in order to achieve the rating of or technical proposals in order to get a better score or rating in its technical proposal, have been adulterating pay stubs, letters, contracts, among others. Hence, there is the need without affecting the principle field of study, you can put a stop to the abuse of that principle to strengthen the mechanisms of checks.
regard, The Court of Contracts and Procurement, by Resolution No. 1120-2008-TC-S2, dated April 16, 2008, states that although the public administration must assume that the statements of the administered respond to truth of the facts they assert, it is also true that the principle of material truth, referred to in paragraph 1.11. Article IV of the Law No. 27444, General Administrative Procedure Act, the College must consider the provisions of this Act, regulating "(...) when holding trilateral administrative authority is authorized to verify by all available means the truth of the facts which are proposed by the parties, without this meaning a place of duty appropriate to them as evidence. "
4. The principle of checks.
for rule of law, by this principle, the power is given to the public of the implementation of the subsequent audit, which implies in turn that the government makes a triple assignment: i) check accuracy of the information presented; ii) to verify compliance with the substantive regulations, and iii) apply the sanctions in case the information submitted is not accurate.
share with Dr. Juan Carlos Morón when he asserts that further controls unlike the ex ante controls, are based on respect for individual freedom and trust given that the State deposited on the accuracy of their actions and statements, and furthermore, it becomes a contribution to the consolidation of constitutional rule and law.
In order to give functionality to this principle has been legislated, the entity to which it is made an automatic approval procedure or appraisal, is required to verify on its own through the sampling system, the authenticity of the statements of the documents, information and translations provided by the citizen. However, in relation to contracts and procurement of the state, the fragility of government institutions, to oversee a-posteriori information submitted by the administrators, which has generated administrative impunity administrators who dazzled by obtaining a good pro, forged documentation.
The Court of the State Procurement, in Resolution No. 1193-2007.TC-S2, dated August 21, 2007, indicates in relation to the first treaty that "for questioning by the objecting of the authenticity of the work presented by the winner of the Award, it is noted in paragraph 1.16. Article IV of the introduction of Law No. 27444, Administrative Procedure Act (the LPGA), expressly recognizes the validity of the principle of further checks, according to which the public sector entities must give priority to further control techniques rather than preventive control techniques in the proceedings taking place under its jurisdiction. In this sense, the Administration has the duty to check the veracity of the documents submitted by citizens and by punishing their falsity, after completion of the procedures leading. "
5. The entity responsible for the subsequent inspection.
The government has legal obligation to self-initiate the subsequent inspection of documents and statements made by the administrators. Now this subsequent inspection is performed by the entity with which it performed a procedure for automatic approval or appraisal, the administration uses the sampling system to meet this legal requirement. In
contracting and procurement, the subsequent inspection is given as follows:
5.1. Prior consent of the bid as required .- Under the regulation, Article 45, the selection processes are conducted by a Special Committee, which is responsible for its organization and implementation, competent, inter alia, to: i) develop the bases ii) convening the process; iii) answer inquiries and observations; iv) evaluation of proposals; v) give good pro vi) declare the process; vii) check or propose amendments to the technical characteristics and reference value and, viii) any act necessary for the development of the selection process until the consent of the bid.
That is, one can easily deduce (from the last competition of the Special Committee) that the administrative body competent to perform the subsequent inspection prior consent of the bid is the Special Committee provided they do not contravene the principles of efficiency and economy set out in Article 3 of the Act
5.2. After the consent of the bid spoiled .- Once the bid, the Special Committee ceases to hold office from the entire process documentation (rules, resolutions of appointment of the Special Committee and approval of bases, etc.) To dependence responsible for procurement and contracting entity, which will assume jurisdiction since then to implement actions designed to formalize the contract.
We can therefore say that the unit responsible for procurement and contracting entity, which should automatically perform the audit sample referred to the General Administrative Procedure Act, the same comprising at least 10% of all records subject to automatic approval mode, with up to 50 cases per semester.
5.3. During the challenge procedure .- The regulation is clear in stating that the appeal is filed with and resolved by the Court of Contracting and Procurement. In other words, is the Court, the Board basically competent, who would have performed the post, if any, which is the subject of inquiry, by one or more bidders, the documents or statements submitted in the procurement and acquisition process state.
That is, contrary to questioning the credibility of the documents and / or statements made by a particular bidder, the Court by the competent Chamber would have to perform ex-post audit. Thinking about it, the legislator provided for in Article 160 of the Regulations, that "all entities, whether or not parties to the appeals procedure are required to submit the information required by the Court within the time granted them under the responsibility ". However, in a case where the object of dispute was the alleged false filings by a particular bidder, the Court through the Second Board discussed the following fundamento “ahora bien, respecto a la presunta falsedad de la Factura 001-N° 000241, este Colegiado dispone que toda la información contenida en la propuesta técnica presentada por el postor (…) debe ser materia de una fiscalización posterior, con la finalidad de tener la certeza de que, en efecto, toda la información proporcionada por el citado postor, es veraz; y cuyos resultados deben ser comunicados al Tribunal en un plazo no mayor a los treinta (30) días hábiles de notificada la presente resolución, bajo responsabilidad del Titular o máxima autoridad administrativa de la Entidad ”
Entendemos, que la decisión del Tribunal de trasladar la responsabilidad de control o fiscalización after the entity which organized the recruitment process and state acquisition, is based on the short time you have to solve, especially when the entities required to submit the required information ignored.
6. The correlation between the principle of presumption of truth and privilege checks.
rebuttable presumption that the administration made public all documents and / or statements made by managers are credible, it must necessarily be accompanied by the subsequent control based on the principle of privilege checks. We believe that the principles of presumption of veracity and privilege of further controls complement, integrate, and one can not exist without the other. Such is the case, it would be very risky to be considered, or only existed, the presumption of correctness, because the managed, could rampant misuse of this principle, without which the State may make further checks . On the other hand, no sense that the government carries out the ex post facto if, previously performed the control of documentation and / or statements of the governed.
However, as we have pointed out, despite being instituted in our post-audit system is have denounced the procurement, significant events of tampering with invoices, contracts or other documents, in order to achieve the production of the bid in a given process. Against this, we note the ineffectiveness of public administration or a low efficiency, exemplary punishment to these facts.
In this context, we consider wise to the promulgation of Supreme Decree 093-2007-PCM, published on December 14 of last year, which provided, among other things, the creation of the Central Administrative Risk of exclusive access public entities, which must be registered to people who have been guilty, information or false documents or fraudulent under the automatic approval procedures or prior ASSESSMENT. In that regard, on February 16, 2008 has been published Resolution No. 048-2008-PCM, the same as that adopted Directive No. 001-2008-PCM "Guidelines for the implementation and operation of the Central Administrative Risk "the same possession, the obligation of public entities to designate persons who transmit the data given in missing, officials may use the registry and the questioning and contesting the run against the information contained herein.
Consistent with above, we consider it necessary within the Central Administrative Risk can be a unique data managers responsible for the submission of fraudulent documentation in the procurement processes and procurement.
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