| Work Detail |
There is no doubt that public-private partnership is essential to carry out public infrastructure projects, especially in the current context, given that a few weeks ago the current presidential leader stated that the National State is in a delicate economic and financial situation to currently face this type. of projects.
In that sense, recently in the Argentine Republic, much has been studied and said - especially since 2016[1] - regarding the Public Private Partnership (hereinafter, “APP”) or Public Private Participation (hereinafter, “PPP”) regime. hereinafter, “PPP”) -particularly with respect to its benefits for the purposes of attracting investors[2]-.
Now, the truth is that it is also of utmost importance to analyze the private initiative regime, which is the main objective of these lines, since both regimes (PPP and private initiative) are closely linked.
To this end, it is interesting to compare it with the regime established in this regard in the Republic of Chile insofar as a priori it can serve as a guide (as suggested by the current President of the Nation) for the purposes of introducing the necessary improvements in our legal system aimed at to be updated and in line with the reforms that must also be carried out to the PPP regime[3], together they serve as a key tool to attract investments and be able to implement public infrastructure.
First of all, it is necessary to highlight that in the Argentine Republic, the regime in question is generically enshrined in the Public Works Concession Law[4] and in the aforementioned PPP Law, while there is a specific regime enshrined in the Decree No. 966/05[5].
In this last norm we find the specific regulation regarding the private initiative procedure applicable to the various public procurement systems governed by Laws No. 13,064, No. 17,520 and No. 23,696, which basically consists of the possibility for an individual to present a project linked to public infrastructure to the National State who will analyze its merit and convenience and if it is deemed to be of public utility, it will proceed to carry out a contractor selection procedure granting certain advantages and recognitions to the author of the project. In this way, it is the private sector who, faced with an unmet public need, proposes a solution. The norm in question is very clear regarding the mechanism to be followed and the benefits stipulated in favor of the author of the private initiative[6].
Notwithstanding this, although the private initiative regime is established at the national level in the regulatory framework referred to here, few infrastructure projects have been approved and carried out under this regime[7].
Likewise, and as mentioned above, there are generic mentions of the possibility of presenting infrastructure projects under a private initiative modality in the Public Works Concession Law - in which the importance of this possibility is highlighted but no specific instructions are provided. mechanism in particular nor is the issue fully regulated - and in the PPP Law - which in its article 17 contemplates the compatibility of the PPP regime with that of private initiative but this article was not even regulated -.
To this must be added the fact that only at the end of 2021 was the Commission for the Evaluation and Development of Private Initiatives created on an ad-hoc basis[8] created in Decree No. 966/05 and which is of utmost relevance in the regime as it is responsible for analyzing and approving private initiative projects that individuals present.
Possibly, the issues stated in the preceding paragraphs (legislative dispersion, lack of formation of the ad-hoc Commission) are some of the reasons why at the national level - unlike what happens in some provinces - the private initiative regime has had little relevance and practical application[9]. This is despite the fact that the regime enshrined in Decree No. 966/05 is self-sufficient and regulates the issue in considerable detail.
Now, given the delicate economic and financial context that the National State is going through and in particular the need to develop public infrastructure projects, the resurgence of the private initiative regime becomes inevitable, which (i) must be modernized and adapted to some recent comparative experiences , (ii) and be inserted and made compatible with the PPP regime as long as this currently seems to be the most suitable tool to develop and manage public infrastructure.
For the first point mentioned in the preceding paragraph, and particularly in light of public statements by the current President of the Nation, we understand that it is necessary to carry out a brief analysis of the private initiative regime of the Republic of Chile[10] and compare it with the of our country in order to make a series of suggestions that may be useful to achieve the goal of this work.
Although logically it is a regime similar to that of the Argentine Republic, the main differences occur in that the Chilean regime[11] (i) three categories of works valued in Development Units are contemplated with respect to which a percentage is stipulated. prize for each category (to be used in the subsequent public tender when evaluating the offers) ranging from 3% (in the lowest category) to 8% (in the highest category)[12] -while in The national regime contemplates a single 5% premium for any private initiative declared to be of public interest[13]-; (ii) the method of calculating the prize is carried out by increasing the score of the applicants economic offer by the percentage of the prize (mentioned in the previous point) while in the national regime the prize is applied under the principle that in case of A tie will be in favor of the offer of the author of the project and any difference between offers that does not exceed that of the promoter of the project by 5% is classified as a tie; (iii) the possibility is contemplated for the author of the project to participate in the bidding procedure as part of a bidding group to which the aforementioned benefit will be transferred, which ultimately implies the possibility of transferring and negotiating said prize[14]. ; (iv) the possibility is contemplated for the National State to reimburse the study expenses of the project to the author of the initiative[15] while in the national regime only the possibility of reimbursement of 1% is contemplated by whoever is awarded with hiring[16]; (v) discretionary action is reduced when evaluating the value of the offer and selecting one project over another; (vi) a specific procedure is contemplated with deadlines and different established stages that must be carried out by the General Directorate of Public Works Concessions[17]; (vii) State intervention occurs only in the execution stage of the project, controlling that it adjusts to the applicable technical parameters.
In this way, as can be seen, although there are some differences with the national regime, the truth is that these do not take place in terms of the private initiative regime itself but rather the role played by the State as a difference. What happens in our country, the works carried out under this regime in the Republic of Chile are paid for entirely by private individuals, but not by the State, which only has the power to control the works and services in the terms mentioned in the preceding paragraph[18]. This circumstance is clearly not linked to the private initiative regime itself but rather to the mechanisms contemplated in the Argentine Republic aimed at financing the cost of public works and services and their subsequent management.
On the other hand, another difference that also exceeds the technical issues of the regime itself is what concerns legal stability and transparency in Chilean public contracting for approximately thirty years, which generates legal certainty and therefore motivates private parties to invest and be interested in this type of projects in which they know that the agreed conditions will not be modified.
The result of this is clear, in the Republic of Chile numerous public works have been carried out as well as concessions for their exploitation through the private initiative regime from the end of the 90s to the present[19].
Therefore, beyond the technical aspects and differences contemplated in the Chilean private initiative regime that can be used as a guide in our country for the purposes of making the regulatory modifications that are pertinent, the key today is the inclusion and private participation in the financing and implementation of public infrastructure not only in an initial phase such as the private initiative itself but also in the financing and implementation of the project, and that is where the main challenge facing our country occurs, especially in the current economic and financial context.
Thus, it is of utmost relevance to find mechanisms that encourage the participation of the private sector in the development of public infrastructure, and to this end a series of considerations can be made in this regard as a conclusion.
(i) There is no doubt that the private sector must be considered a fundamental partner of the public sector for the creation and management of public infrastructure as well as for the provision and development of special technical services in which the National State does not have experience, such as digital services[20].
(ii) The existing national legislation on the private initiative regime must be unified as well as the Enforcement Authority thereof, in particular the role of the Commission for the Evaluation and Development of Private Initiatives - which must be the only Body with jurisdiction in the subject-, and for this purpose a framework standard must be developed to which the different regimes that contemplate mechanisms for the realization of infrastructure such as the PPP and Public Works Concession regime must refer.
(iii) Introduce the necessary modifications to the PPP regime[21] - including what pertains to the private initiative regime, referring to the specific norm that regulates the issue in a unified manner as proposed in the preceding point - in order for it to become even more attractive for individuals and is a very useful tool for the purposes pursued here.
(iv) Finally, with respect to what is mentioned in point (ii), and specifically with respect to what concerns the private initiative regime, the unified regulatory framework that is issued in this regard or even if modifications are introduced to the existing one, must (a ) determine exhaustively the scope of the intervention and the parameters that the Commission for the Evaluation and Development of Private Initiatives must analyze to declare or not a project of public interest in order to limit its margin of discretion; (b) improve the compensation ceiling for expenses and fees, which is recognized to the bidder in the event that its offer is not awarded as happens in the Chilean regime; (c) classify private initiatives according to their size and increase the competitive advantage of the proponent by a few percentage points in the future bidding process – while 5% is a low amount – in accordance with Chilean legislation; (d) avoid financial sanctions for those who present an initiative and then withdraw from it; (e) stipulate the possibility of transferring to any private party the aforementioned percentage advantage obtained by the author of the private initiative project. |
