Law 1882 of 2018 (“Law 1882” or the “Law”) was issued on January 15, whereby various provisions relating to public contracting in Colombia, Law 1682 of 2013 or the “Transportation Infrastructure Law”, among others, were amended and supplemented. Law 1882 has three core areas, namely, reforms in: (i) public procurement, (ii) transport infrastructure projects and (iii) Public-Private Partnerships (“PPP”) projects. However, this article will focus on the changes related to Law 80 of 1993 and Law 1150 of 2007, i.e. in relation to public tenders.

One of the main changes stated in the Law is that, from January 15, 2018,¹  bidders in public tender processes to select construction contractors must submit their bids in two envelopes.²  The first envelope must contain the documents referring to the qualifying requirements and all others to which a score is assigned; and the second envelope must only contain the financial proposal.

The Law also established a new term for the bidder to deliver the information and additional documents requested by the public agency. Said term is 5 business days after the date on which the public agency had published the evaluation report of the qualifying requirements.³  It is important to bear in mind that the envelope containing the financial bid may only be opened at the award hearing and, therefore, will only be evaluated at that time.

On the other hand, one of the major changes implemented by the Law is the adoption of standard documents for public works tenders, public works auditing, studies and design consultancy auditing for public works and engineering consulting for works.⁴ However, it should be noted that the qualifying conditions and the technical and economic factors incorporated in these specifications may vary according to: (i) the type of selection in question, (ii) the nature and amount of the contracts, and (iii) the characteristics of the regions in which they are developed.⁵ 

Finally, article 5 of the Law implemented: (i) a new cause for the rejection of bids, according to which the fact that the bidder has failed to deliver, along with its bid, the bid bond thereof, cannot be corrected. In this case, the bid must be rejected;⁶  and (ii) established that in public procurement procedures, the experience that bidders have acquired through the performance of contracts with private individuals must be accepted.⁷ 

In short, the changes applied by means of Law 1882 to the public tenders are the following: (i) the implementation of two envelopes for the submission of proposals; (ii) the term of 5 days from the publication of the evaluation reports to deliver the additional documents and information requested by the public agency; (iii) the adoption of standard documents for the specifications of certain public procurement procedures related to public works; (iv) that the failure to deliver the bid bond of the proposal will be grounds for the rejection of the bid; and, (v) the acceptance of the experience acquired by bidders in the performance of contracts with private individuals.

Moreover, we consider it important to indicate that the Law delimited the civil, fiscal, penal and disciplinary responsibility of both the auditors and external consultants and advisors, to the facts or omissions that may damage or harm the entities, provided that it refers exclusively to the breach of obligations derived from the contracts that have actually been entered into and under which they carry out their auditing, consulting and advisory activities, respectively.⁸  This will be of special importance for those who wish to continue participating in public procurement procedures for the contracting of this type of activities.

1. Date on which Law 188 of 2018 became binding.
2. Congress of the Republic of Colombia. Law 1882 of 2018. Art. 1.
3. Ibid
4. Congress of the Republic of Colombia. Law 1882 of 2018. Art. 4.
5. Ibid. 
6. Congress of the Republic of Colombia. Law 1882 of 2018. Art. 5.
7. Congress of the Republic of Colombia. Law 1882 of 2018. Art. 5.
8. Congress of the Republic of Colombia. Law 1882 of 2018. Art. 2.