Título III. Regimen de licitacion y cotizacion publica

When the total amount of the goods, supplies and works exceeds the amounts established in Article 38, the purchase or contracting shall be made by Public Bidding, except for the exception cases indicated in this Law in Chapter III of Title III. If it does not exceed said sum, it shall be subject to the quotation or direct purchase requirements, as established in this Law and its regulation.

To carry out the Public Bidding, the following documents shall be prepared, as applicable:

1.Bidding Bases.

2.General specifications.

3.Technical specifications.

4.Special provisions, and

5.Construction plans, when it involves works.

The bidding bases, as applicable, shall contain at a minimum the following:

1.Conditions that bidders must meet.

2.General and specific characteristics, in the case of goods and services.

3.Place and manner in which the work shall be executed, the goods delivered, or the services rendered.

4.List of documents that the bid must contain, in original and required copies, one of which shall be made available to the bidders.

5.Statement that the bidder shall furnish, as applicable, the guarantees referred to in Title V, Single Chapter of this law.

6.In special cases and when the superior authority deems it appropriate, the guarantees to be furnished by the contractor, indicating the risks to be covered, their validity and amounts.

7.Form of payment for the work, goods and services.

8.Percentage of advance payment and procedure for granting it, when granted.

9.Place, exact address, date and time at which the proceeding for submission, receipt and opening of bids shall be held.

10.Sworn Declaration that the bidder is not a delinquent debtor of the State nor of the entities referred to in Article 1 of this law, or failing that, formal commitment that, in the event the negotiation is awarded to the bidder, prior to signing the contract the bidder shall evidence having made the corresponding payment.

11.Statement of the method for the breakdown of unit prices by line item.

12.Criteria to be followed by the Bidding Board in evaluating the bids received.

13.Statement of the requirements deemed fundamental; and

14.Model bid and draft contract.

The foregoing requirements shall also apply as applicable for purposes of quotation, preparation of terms of reference and contracting in the exceptional cases covered by Article 44 of this law. The regulations shall develop the requirements for specific cases.

The contracting entity in the course of a bidding proceeding and before the submission of bids, may modify the bidding bases, for which it must publish the modifications in GUATECOMPRAS. From the publication of the modification, interested persons shall have a time limit of not less than eight (8) working days to submit their bids.

The superior authority shall ensure that the general, technical specifications, special provisions or construction plans are consistent with or conform to the content of the bases and to the needs motivating the procurement. The regulation of this law shall determine everything relating to this matter.

The bidding or contracting entity shall not establish technical specifications or special provisions that require or make reference to specific brands, trade names, patents, designs, types, specific origins, producers or suppliers, unless there is no other sufficiently precise and comprehensible way to describe the requirements of the bidding or procurement, and provided that in such cases expressions such as: or equivalent, are included in the specifications, requirements and bidding or procurement documents, the award corresponds will disqualify that bidder,

The documents referred to in Article 18 of this law shall be approved by the superior administrative authority of the agency, following the technical opinions prescribed by the regulation. In any case, the International Agreements and Treaties agreed between the parties shall be respected, if applicable.

The requiring entity must publish the bidding documents for the events in GUATECOMPRAS, from which interested persons may obtain them free of charge. In the case that the works, property or services require documents that cannot be included in GUATECOMPRAS, such as plans not prepared by electronic means or any other that by its nature does not allow it, the place where the documents will be made available shall be indicated in the GUATECOMPRAS portal.

The corresponding payment for the attached documents that cannot be prepared by electronic means may be charged at the cost of their reproduction, funds that shall be considered private, to be used exclusively for the institutional modernization of the entity.

Calls to bid must be published in the State Contracting and Procurement Information System, called GUATECOMPRAS, and once in the official journal. Between both publications there must be a period of no more than five (5) calendar days. At least forty (40) calendar days must elapse between publication in GUATECOMPRAS and the day set for the presentation and receipt of bids.

In quotation and bidding processes, the contracting entity must publish in GUATECOMPRAS, at a minimum, the following information: quotation or bidding terms, technical specifications, evaluation criteria, questions, answers, list of bidders, award records and the contracts for contracting and procurement.

With regard to what is provided in agreements and international treaties to which the Republic of Guatemala is a party, the provisions contained therein shall apply in a supplementary manner, provided they do not contradict the content of this article.

Bids and other bidding documents shall be delivered directly to the Bidding Board, at the place, address, date, time and in the manner indicated in the bidding terms. Thirty (30) minutes after the time set for the submission and receipt of bids, no further bids shall be accepted and the public act of opening of sealed bids shall proceed. A corresponding record of all proceedings shall be drawn up simultaneously.

For any purchase modality regulated in this Law in which offers are solicited electronically, the provisions established in the regulation and the rules for use of the GUATECOMPRAS system shall be complied with.

Each natural person or legal entity, national or foreign, may submit a single offer. In no case shall an appearing party be allowed to represent more than one offeror. Whoever acts on his or her own behalf may not participate representing a third party. If the existence of collusion among offerors is determined, the offers involved shall be rejected, without prejudice to the adoption of the measures provided for by the law on competition.

Bidders participating in bidding proceedings, quotations and those covered by the exception cases contemplated in this law shall submit together with the bid a sworn declaration of not being covered by any of the cases referred to in Article 80 of this law. If falsity in the declaration were discovered, the authority to which total official estimated, are established at ten percent classify successively. In the case that the awardee without prejudice to bringing the fact to the knowledge of the tribunals of justice.

In the event that falsity of the declaration were discovered while the respective service or work is being performed or being completed, the awardees shall be liable for the damage or losses caused on such grounds, with the sanctions provided for in the present law being applied to them and referring what is appropriate to the tribunals of justice.

The Board may request from the bidders such clarifications and samples as it deems pertinent, provided that they refer to requirements and conditions related to the purchase or contracting in question, that were requested in the bidding documents, and that it is economically and physically possible.

To determine which is the most convenient and favorable bid for the interests of the State, the following criteria shall be used: quality, price, time, characteristics and other conditions set forth in the bidding terms, in which the percentage at which each of said elements shall be assessed shall also be determined, unless only price is requested therein, in which case the decision shall be made on the basis of the lowest price. When dealing with public works, the Board shall take into account the official estimated total cost.

* For medicinal products, medico-surgical material, medical devices, medical gases, infant formulas, imaging-diagnostics material and breast-milk substitute products acquired through open contract or reverse electronic auction, once compliance with the requirements established by the Regulation for the Sanitary Control of Medicines and Related Products has been qualified, with regard to safety, efficacy and quality, the lowest price shall be used as the qualification criterion, provided that such price is not equal to or greater than the reference price provided by the National Institute of Statistics -INE-.

In the case of works, after the opening of bid envelopes, the Bidding Board shall definitively calculate the total estimated official cost that shall serve as the basis for setting the fluctuation range and shall make it known immediately to the offerors. For this calculation it shall take forty percent (40%) of the cost estimated by the interested entity, to which shall be added sixty percent (60%) of the average of the cost of the bids submitted that meet the fundamental requirements of the bidding documents and that are comprised within the range of twenty-five percent (25%) above and twenty-five percent (25%) below the cost estimated by said entity.

The maximum fluctuation limits with respect to the cost shall be ten percent (10%) upward and fifteen percent (15%) downward.

The percentages indicated above and below with respect to the total estimated official cost shall give the limit range within which the bids must be comprised in order to be accepted by the boards for their evaluation. Bids received that are outside the established range shall be disqualified.

The estimated cost by the interested entity shall be approved by the superior administrative authority of said entity, which must be made known after the submission of bids and before opening the first bid envelope. Those who prepared it shall be liable for errors detected in the calculation of this cost. These violations shall be punished in accordance with the provisions of Articles 83 and 87 of this law.

The record drawn up shall set forth the matters to which this article refers, in their order.

The Bidding Board shall reject, without liability on its part, bids that do not conform to the fundamental requirements defined as such in the bases or when the prices, qualities or other conditions offered are inconvenient for the interests of the State. Non-fundamental requirements contemplated in the bases may be satisfied in the bid itself or within the common time limit set by the Board. Within this same time limit, formal requirements that were not satisfactorily fulfilled upon submission of the bid shall be fulfilled.

If only one bidder appears in response to the call for Bidding, the same may be awarded to such bidder, provided that in the judgment of the Bidding Board the bid satisfies the requirements set forth in the bidding bases and that the proposal is favorable to the interests of the State. Otherwise, the Board is empowered to refrain from awarding.

In the event that no bidder appears in response to the call for Bidding, the Board shall draw up the corresponding record and shall bring it to the knowledge of the respective superior administrative authority, so that the time limit for receiving bids is extended. If even then no bidder appears, the superior authority shall be empowered to carry out the direct purchase referred to in Article 43 of this law.

Within the time limit indicated in the bases, the Board shall award the bidding to the bidder that, conforming to the requirements and conditions of the bases, has made the most convenient proposal for the interests of the State. The Board shall also make a qualification of the bidders that nonconformities, if any, the Board shall remit contradict the content of this article. If he does not sign the contract, the negotiation may be carried out with only the next one classified in its order.

* In the case of the open contract, the award shall not be carried out if the price of the offer is equal to or greater than the reference prices provided by the National Institute of Statistics -INE-.

In no case shall awards be carried out if there is overvaluation of the supply, good or service offered. For the purposes of this Law, overvaluation means offering a product, good, service or supply at a price higher than that which the same have in the national private market, taking into account the technical specifications and the brand thereof.

The Board, when applicable, shall partially award the Bidding: a) If so established in the bases; b) Whenever it serves the interests of the State; c) Considering the nature of the goods, supplies, works or services; d) If it does not form part of a unitary work.

Notifications arising from acts in which this Law is applied shall be made electronically through GUATECOMPRAS, and shall take effect on the day following their publication in said system.

Persons dissatisfied with any act that contravenes the procedures regulated by this Law, its regulation or the regulations of the registries may file their objections through GUATECOMPRAS.

Objections related to the award by the Board may only be filed within the time limit of five (5) calendar days following publication of the award in GUATECOMPRAS.

Both the Board and the contracting entity that receives an objection must answer it through GUATECOMPRAS within a time limit of no more than five (5) calendar days from its filing.

As a result of an objection, the Board may modify its decision only within the stated time limit. No appeal shall lie against this decision as it is not a final act.

An objection may be filed, at the respective stage, against the definitive decision issued by the contracting entity. The regulation shall regulate matters relating to this subject.

Once the award has been published in GUATECOMPRAS and any challenges have been answered, the file shall be forwarded to the superior authority within the two (2) following working days. The superior authority shall approve or disapprove the actions taken by the Board, for justified cause, in accordance with the provisions of the law, within five (5) days of receipt of the file. The superior authority shall leave written record of the actions taken.

If the superior authority disapproves the actions taken by the Board, it shall return the file for its review within the time limit of two (2) working days following adoption of the decision. The Board, on the basis of the observations made by the superior authority, may confirm or modify its original decision in reasoned form, within the time limit of five (5) working days from receipt of the file, shall review the actions taken and shall make the award in accordance with the law and the bases.

Within the two (2) working days following the decision, the Board shall return the file to the superior authority, which within the five (5) subsequent working days may approve, disapprove or dispense with the negotiation. In the event of disapproval, notice shall be given electronically through GUATECOMPRAS within the two (2) following working days, thereby concluding the event. In the event of dispensing, the provisions of Article 37 of this Law shall apply. In cases in which the superior authority decides to disapprove or dispense, it shall state the grounds for its decision in the corresponding decision.

The State bodies and the entities referred to in Article 1 of this law, through the authorities specified in Article 9 thereof, may withdraw from the negotiation at any stage thereof, provided they do so before the signing of the respective contract.

Under the responsibility of the corresponding authority, the decision to withdraw may only be adopted if a duly proven fortuitous event or force majeure occurs that gives rise to the impossibility of continuing with the negotiation. If the decision to withdraw is adopted after the submission of bids and before the award, the board shall make an assessment for the purpose of compensating the bidders occupying the first three places for the expenses incurred in the preparation of their bid. Such compensation shall be for the equivalent of two and a half per thousand (2.5 0/000) of the amount thereof.

If the decision to withdraw is adopted after the award and before the signing of the respective contract, the winning bidder who occupied first place shall be compensated for the expenses incurred in the preparation of his bid and other procedures for the equivalent of five per thousand (5 0/000) of the amount thereof.

With respect to what is provided in agreements and international treaties to which the Republic of Guatemala is a party, the provisions contained therein shall apply supplementarily, provided that they do not The specific public procurement modalities are:

When the price of the goods, works, supplies or remuneration for services exceeds ninety thousand quetzales (Q.90,000.00) and does not exceed the following amounts, the purchase or contracting may be carried out under the quotation system as follows:

a)For the municipalities, where it does not exceed nine hundred thousand quetzales (Q.900,000.00);

b)For the State and other entities, where it does not exceed nine hundred thousand quetzales (Q.900,000.00).

Under the quotation system, the presentation of the bidding documents, designation of the Board and approval of the award fall within the competence of the administrative authorities next in hierarchy after those named in Article 9 of this Law. If the goods, supplies or remuneration for services are acquired through open contract, then quotation shall not proceed. If it is nevertheless carried out, the public official who authorized it shall be liable.

The quotation procedure consists of requesting, through public competition via GUATECOMPRAS, firm offers from suppliers legally established for that purpose and who are in a position to sell or contract the goods, supplies, works or services required. Interested parties shall acquire the bases in paper or in electronic medium by downloading them from GUATECOMPRAS.

In the event that the works, goods or services require documents that cannot be included in GUATECOMPRAS, such as plans not prepared by electronic means or any other which by its nature does not allow it, only the cost of reproduction thereof shall be paid.

Between the publication of the call and bases in GUATECOMPRAS and the day set for the presentation and receipt of offers, a minimum time limit of eight (8) working days shall elapse.

The contracting entity shall not set technical specifications or special provisions that require or make reference to specific brands, trade names, patents, designs, types, specific origins, producers or suppliers, unless there is no other sufficiently precise and understandable way to describe the requirements of the procurement and provided that in such cases the specifications, requirements and quotation documents include expressions such as: or equivalent, or like, or similar or analogous.

The contracting entity, in the course of a quotation and before the submission of offers, may modify the quotation bases, for which it must publish the modifications in GUATECOMPRAS. From the publication of the modification, interested persons shall have a time limit of not less than eight (8) working days to submit their offers.

The form and the documents indicated in the preceding article shall be approved by the superior administrative authority of the contracting entity before offers are requested.

Interested parties shall submit their bids electronically, on a form to be provided by the GUATECOMPRAS system, and the bid may be accompanied by physical documentation and other requirements and formalities. The unit and total prices stated in the bids shall be fixed, expressed in quetzales, in both figures and words. No bid shall be accepted outside the time limit stipulated.

The quotation board shall evaluate all bids received.

In the event that no bids are received, the quotation board shall inform the superior administrative authority one business day after the date established for receipt of bids, which shall publish in GUATECOMPRAS an extension of eight days to the time limit for receiving bids. If no bids are received within this time limit, the superior administrative authority shall be at liberty to carry out a direct procurement, provided that it is conducted using the same quotation bases used in the voided event, and the bidder complies with all the requirements requested therein.

The provisions regarding bidding shall govern suppletorily in the quotation regime insofar as they are applicable.

a)Low-value purchase: The low-value purchase modality consists of the direct acquisition of goods, supplies, works and services, exempt from the requirements of the competitive processes of the other public acquisition modalities contained in this Law, when the acquisition is for an amount of up to twenty-five thousand quetzales (Q.25,000.00). The low-value purchase shall be carried out under the responsibility of the person authorizing the public acquisition. Low-value purchases must be published in GUATECOMPRAS, once the good, service or supply has been received, with the supporting documentation to be published, in accordance with the administrative file supporting the negotiation carried out, as it constitutes ex officio public information. Each entity shall determine the procedures for the application of this modality.

b)Direct purchase: The direct purchase modality consists of the acquisition of goods, supplies, works and services through an electronic offer in the GUATECOMPRAS system, dispensing with bidding or quotation procedures, when the acquisition is for amounts greater than twenty-five thousand quetzales (Q.25,000.00) and not exceeding ninety thousand quetzales (Q.90,000.00).

Between the publication of the competition in GUATECOMPRAS and the receipt of offers there must be a time limit of not less than one (1) working day. For the award, price, quality and other conditions previously defined in the electronic offer shall be taken into account, where applicable. This purchase modality shall be carried out under the responsibility of the person authorizing the acquisition.

The electronic offer shall be published in GUATECOMPRAS and must include at a minimum: detail of the good or service offered, tax identification number and name or business name of the bidder and the amount of the offer. After the award, there shall be published in GUATECOMPRAS, at a minimum, the tax identification number and the name or business name of the awarded provider and the awarded amount.

c)Acquisition from sole provider: The acquisition modality with a sole provider is that in which the good, service, product or inputs to be acquired, due to its nature and conditions, can only be acquired from a single provider.

To establish the matter referred to in the preceding paragraph, the interested agency, department or entity shall make one publication in the Official Journal, another in one of the newspapers of widest circulation in the country and in GUATECOMPRAS, inviting those interested in offering the contracting of the requested goods, supplies or services, indicating day, time and place to submit their willingness to offer.

Said invitation shall specify the characteristics of what is to be acquired and the time limit for submitting the expression of interest, which may not exceed five (5) working days from the last publication.

A receiving commission formed by three members appointed by the superior administrative authority of the department interested in the negotiation shall be designated. If at the appointed time no interested parties appear or only one appears, it shall be stated in the record of receipt, and the competent authority may contract with the sole provider.

If more than one bidder appears, the receiving commission, after drawing up the respective record, shall proceed immediately to render a written report to the superior authority of the entity interested in the negotiation so that it may proceed to carry out the applicable acquisition modality.

In this process the documentation and information required by the GUATECOMPRAS system must be published.

d)Leases: Leases of movable property or equipment shall be subject to the applicable contracting modality, according to the amount to be contracted. To establish the amount that determines the contracting modality, the annual value of the lease or the total value thereof if for a shorter time limit shall be taken as reference.

In any case, contracting bases and technical specifications must be prepared, which must require at a minimum:

1.Purchase value of the good to be leased;

2.Total value of the contract or sum of the installments and the purchase option where applicable;

3.Monthly value of the rents or installments;

4.Grounds for termination of the contract;

5.If there is a purchase option, it may in no case exceed the value of one monthly installment;

6.Detail of the composition of the installment or rent, specifying charges for use or enjoyment, maintenance, insurance, implicit costs or other charges, where applicable; and,

7.The necessary insurance and guarantees.

In all contracts for the lease of movable property or equipment whose time limit is at least one year, the obligation to conduct physical inspections of the good shall be included, at a minimum, once (1) a year. The inspections shall be carried out by the lessee through a delegate. Such inspections shall contain, at a minimum, a general report on the condition and operation of the leased goods, as well as compliance with the maintenance program. The inspections shall be accompanied by the documentation necessary to verify the veracity of the report, such as photographs and video recordings, among others.

When the purchase option is exercised, the guarantee established in Article 67 of this Law must be requested.

The time limits shall be established based on the nature of the good and the utility and need of the requester. The time limit of the lease may only be extended, a single time, if provided for in the respective contract and there is no increase in the contracted value.

Leases with a sole provider shall be governed in accordance with the acquisition modality with a sole provider.

e)Lease and acquisition of immovable property: The lease of immovable property may be carried out provided that the interested agency, department or entity lacks it, holds it in insufficient quantity or in inadequate conditions. To that effect, the interested department or entity must justify the necessity and advisability of the contracting, at reasonable prices in relation to those existing in the market. With this background, if it deems it appropriate, the corresponding authority of the interested entity shall approve the contract or record, as applicable, in accordance with the law and the regulation, without prejudice that any purchase modality may be applied according to the amount.

Bidding or quotation shall not be mandatory in the purchase of immovable property that is indispensable due to its location, for the performance of works or provision of public services, which can only be acquired from a single person, whose price is not greater than the appraisal conducted by the Ministry of Public Finance.

f)Dredging: The cleaning of the bed of rivers, ports and navigable areas required by the entities referred to in Article 1 of this Law may only be carried out by administration; except for situations arising from states of exception declared in accordance with the Public Order Law, Decree Number 7 of the National Constituent Assembly.

The following exception cases are established:

a)Bidding and price quotation shall not be mandatory in contracting by public agencies and entities, in accordance with the procedure established in the regulation of this Law, for the acquisition of goods, supplies, works and services indispensable to resolve situations arising from the states of exception declared in accordance with the Public Order Law, which have caused the suspension of public services or where such suspension is imminent;

b)The Ministry of Public Health and Social Assistance and the Guatemalan Institute of Social Security -IGSS- may acquire, directly, vaccines, antiretroviral medicines, family planning methods, pharmaceuticals, micronutrients, surgical and laboratory supplies, under agreements or international treaties entered into with the following organizations: the Pan American Health Organization/World Health Organization -OPS/OMS-; agencies of the United Nations System, the Global Fund -FM-; the United Nations Population Fund -UNFPA- or through regional price negotiation conducted by the Executive Secretariat of the Council of Ministers of Health of Central America and the Dominican Republic -SE-COMISCA-. The implementation of these negotiations shall be subject to the terms of the contractual instruments entered into;

c)State entities may carry out, directly, acquisitions made abroad;

d)The Bank of Guatemala, due to the nature of its functions, may directly contract for the minting of finished metal currency, the purchase of metals necessary for the minting of currency, the purchase of systems, equipment and the printing of banknote forms and securities. The purchase of gold and silver shall be made at the prices of the day, or at a lower price, according to the international quotation of the London Stock Exchange;

e)Obligated subjects in accordance with this Law may directly contract individual technical and professional services in general; and,

f)The Supreme Electoral Tribunal may, during the fiscal year in which electoral processes and popular consultation processes are held, directly carry out public acquisitions directly linked to the holding of such events.

*g) Obligated subjects in accordance with this Law may directly contract basic services of electrical energy, drinking water, garbage collection and fixed telephone line services.

*h) The Recreation Institute for Workers of Private Enterprise of Guatemala, due to the nature of its functions, may contract directly, with its own resources, for the performance of works and the acquisition of goods, supplies and services; likewise, it may directly dispose of its own goods; these operations may be carried out in national and international markets.

Acquisitions in which any of the specific State acquisition modalities is applied, or in cases of exception, shall be subject to the other provisions contained in this Law and its regulation.

In each process, the documentation and information required by the GUATECOMPRAS system shall be published.