ANI has taken a several measures regarding to its administrative procedures, contractual obligations and selection procedures undertaken by this entity, by means of Resolution No.471 of 2020.
This was done driven by different the national regulations that have been issued by the Health Ministry, the Labor Ministry and the President of the Republic, with respect to the health emergency, and considering the force majeure condition, exterior, unforeseeable and irresistible that the COVID-19 health emergency has generated.
Firstly, regarding the administrative procedures that ANI undertakes, term suspension of 21 actions has been ordered from March 24th at 23:59 until April 13th at 00:00. Among the administrative actions whose terms will be suspended, we can highlight the following:
- Sanctions Administrative Procedures.
- Cure Periods in course and the procedure for new requests.
- Coercive Collection Procedures.
- Contract Liquidation.
- Revision and evaluation of Private Initiative PPP projects (Law 1508 of 2012) in prefeasibility and feasibility stage, including the maximum term for delivering the project in feasibility stage.
- Procedures regarding port concession request (Law 1 of 1991), wharfs requests and contractual modifications in port matters.
- Modification request in concession contracts for any transport method, in Rail Public Work contract and Supervision Contracts, except for those that are recommended by the ANI’s Contractual Committee, prior request by the expenditure officer.
- Reversion Procedures
- Procedures for liability exclusion events and land, environmental and networks force majeures.
- Verification of functional units for termination minutes or partial termination minutes, and work progress verification for milestones or sections termination minutes.
- Procedures related to compensation by contingency funds and other ANI’s accounts.
- Prior Consultation procedures in all it stages, in accordance to what the Ministry of Interior establishes.
Authorities requests, response to requests made by petitions (derecho de petición) and any other procedure that involves the guarantee of fundamental rights are excluded from the abovementioned suspension. Additionally, ANI has established the possibility to continue with the suspended procedures that can be undertaken through virtual media, aiming to avoid the affectation of third parties’ rights and interests.
Secondly, regarding contractual obligation of contract entered into with ANI, the suspension of the following obligations has been ordered, in Concession Agreements for roads, rails, ports and airports, in Rail Public Work Contracts and in Supervision Contracts, from March 24th at 23:59 until April 13th at 00:00:
- Land Management obligations.
- Environmental Management obligations and environmental activities different from the ones established by the Environmental Authority.
- Social Management obligation.
- Network Transfer obligations.
- Works Plan.
- Investments Plan in Port Concessions.
- Equity Transfers.
- Subaccount founding, unless it is necessary to guarantee the necessary resources for paying the Supervision and Interventoría and for complying any other non-suspended obligation.
However, please note that the suspension of contractual obligations does not include the operation obligations of roads, airports, ports and rail networks, nor does it include maintenance obligations that are of the essence for the provision of the transport public service. For the compliance of said obligations, concessionaires must establish work protocols in safe conditions, according to the parameters set forth by the National Government.
Furthermore, the Resolution establishes the possibility that ANI and the Concessionaires agree on the development of procedures and activities that can be undertaken through virtual media, such as, guaranties approval, minutes approval, contractual committees, execution of amendments, execution of liability exclusion events minutes, authorizations for the disbursement of resources from the Trust Fund, among others.
Lastly, ANI has also established some measures regarding the contractors’ selection procedures that are underway. Among these measures, the following can be highlighted:
- Public hearings that were foreseen during the period of preemptive mandatory isolation or any measures that limits the mobility, must be rescheduled (respecting the terms of the law) or terms must be suspended, for which the corresponding administrative acts must be issued.
- The offers’ evaluation that must be done during the period of preemptive mandatory isolation or any measures that limits the mobility, will be done digitally through the SECOP II platform.
- The expenditure officers must assess the need to undertake contracts of any nature and must only undertake those that are strictly necessary to fulfill the functions assigned to them.
- Alternative measures must be sought to process the collection accounts and payments to the contractors. Likewise, efforts must be joined with the fiduciary companies to process the bills, collection accounts and payment of supervisors and contractors whose fees are supported with the Trust Funds of the Concession Agreements.