- Interpretation of the Office of the Comptroller General of the Republic (CGR) on Transitory I is not in accordance with the General Public Procurement Law (LGCP).
- The CGR is competent to hear the objection against the bidding terms of specific minor bids of the CCSS.
As is public knowledge, on May 31st, 2021, the LGCP was published in the official gazette La Gaceta. This Law established two important milestones:
- It came into effect 18 months after its publication, i.e. December 1, 2022 and,
- Contracting procedures and contracts initiated before its entry into force will be concluded in accordance with the provisions in force at the time of the initial decision of the bidding process.
First controversial decision.
On December 23, 2022, i.e. 23 days after the entry into force of the LGCP and until the last working day of the CGR in 2022, the CGR announced on its website its interpretation of Transitory I of said Law, contained in Official Communication No. 22698 (DCA-3199) dated December 15, 2022.
In the first place, it is noteworthy that the interpretation of the CGR was communicated until that moment and not during the 18-month period before the law came into force. Complementarily, it is striking that a rule whose text is very clear is interpreted: "TRANSITORY I- The contracting procedures and contracts initiated before the effectiveness of this law shall be concluded in accordance with the provisions in force at the time of the initial decision of the bidding process".
In its interpretation, the CGR concluded the following: "(...) both for the filing of objections and appeals, the rules set forth in the LGCP shall be applied for those acts published or issued under the LGCP; while harmonizing with Transitory I, those objections or appeals against acts published or issued before the entry into force of the LGCP must be processed under the rules of the former LCA", i.e. the application of the objections and appeals under the LGCP, according to memorandum No. 22698 (DCA-3199), does not depend on the moment of the adoption of the initial decision of the bidding process (as established in Transitory I of the Law) but on the publication of the challenged act, whether it is the bidding conditions or the final decision of the procedure.
Such interpretation not only produces a great deal of legal uncertainty but also frustrates the efforts of different Administrations to adopt initial decisions before December 1, 2022, in the understanding that, as from the decision of the CGR, the appeal regime applicable to the bidding documents or final acts published from December 1, 2022 onwards, is the one regulated in the General Law on Public Procurement, regardless of the date of adoption of the initial decision of each bidding process.
An additional fact, the second paragraph of Article 7 of the Regulation on the reception and attention of consultations addressed to the Office of the Comptroller General of the Republic establishes the following regarding the binding opinions of that comptroller body: "Binding opinions constitute legal doctrine when they define a legal position reiterated in more than two offices, guiding the application of the control and inspection system of the Public Treasury".
The fact is, as stated in official communication DCA-0145 of February 20, 2023, that the CGR has only issued official communication No.22698 (DCA-3199) regarding the application of Transitory I of the LGCP, therefore, in theory and in accordance with the Regulation referred to in the previous paragraph, such official communication should not constitute legal doctrine defining a legal position in relation to Transitory I of the LGCP.
Second controversial decision.
By means of Resolution R-DCA-SICOP-00137-2023, the CGR solved the objection to the bidding terms and conditions of the Minor Bidding proceeding No. 2022LE-000001-0001102208 to purchase "Detergent and rust and corrosion remover to wash surgical instruments", fostered by the Costa Rican Social Security (Cala Costarricense de Seguro Social, CCSS).
In its resolution, the CGR rejected the objection arguing lack of competence, in the understanding that article 95 paragraph a) of the LGCP establishes that the CGR is competent to hear the objection appeals against the bidding documents of the major bids.
The CGR's decision is true, but the grounds for its decision are insufficient; it certainly misses an additional and mandatory analysis based on articles 60 paragraph d) and 95 paragraph c) of the LGCP in the case of a bidding procedure of the CCSS.
The CGR had to argue whether it was competent or not due to the concurrence of two assumptions: the estimation of the bid (even if it is a minor bid), and the review of the object of the bid, that is, to check whether or not the "Detergent and rust and corrosion remover for washing surgical instruments" falls within the category of medical-surgical implements, medicines, reagents and biologicals, raw materials and conditioning and packaging materials required in the manufacture of medicine.
What is certain is that if the criteria set forth in Resolution R-DCA-SICOP-00137-2023 is reaffirmed by the CGR without making the review required by Articles 60 (d) and 95 (c) of the General Public Procurement Law, it is expected that the vast majority of objections filed against the bidding terms and conditions of minor bids promoted by the CCSS will be rejected by the CGR, with the aggravating factor that the CCSS would not be competent to hear the objection, i.e., the bidding documents would be consolidated without challenge.
We hope that the CGR will review both decisions with a self-critical spirit, due to the unquestionable importance of their future effects, particularly on the legal certainty of the Administration and the bidders.