Although Mr. Hernán Yaipén Arestegui was appointed head of the National Infrastructure Authority (ANIN) on 12 November 2023, and it is expected that more personnel will be integrated in the coming weeks for the ANIN to begin operations, there are still several aspects relevant to the proper management of this entity, which should have been considered in the ANIN Regulations, approved by Supreme Decree No. 115-2023-PCM, some of which are listed below:
- It is necessary to establish deadlines for the inclusion of investment projects or programs in ANIN's infrastructure portfolio to ensure order and efficiency in the proceedings. Thus, for example, the following should be stipulated: i) the deadline for the holder of the national (NG), regional (RG) or local government (LG) portfolio to send the ANIN its proposal of the projects or programs to be included in each year; ii) the deadline for the issuance of the prior favorable opinions of the OPMI and the Budget Office of the NG, RG or LG portfolio; and, iii) the deadline for the ANIN itself to send the said list to the presidency of the Council of Ministers for approval by supreme decree.
- The content of the Infrastructure Portfolio Management Plan and the deadline for the ANIN to prepare and approve it have not been stated.
- No parameters or guidelines have been established to ensure the quality of the designs (pre-investment studies, technical files or equivalent documents), nor for the execution of the works or the contracting of their maintenance. For example, it should have been foreseen that in the selection procedures, the bidders will be rated or assigned points based on their proposals for project optimization (alternatives for the best use of physical space, implementation of technology to reduce operation and maintenance costs, among others), and not to select the supplier based on mere compliance with formal aspects.
- No regulations have been considered as to when it is necessary to have privately owned land or real estate to achieve a faster expropriation procedure. Nor have options or mechanisms been foreseen for the case of interference by public utility networks or other specific needs of each project, such as electricity, water for industrial or domestic use, or access through easements, among other aspects.
- A procedure should be established for the transfer of the projects or programs executed to the entities receiving the NG, RM or LG to avoid contingencies and delays in case they make observations or question the infrastructure that is delivered to them. This procedure should be harmonized for cases in which the ANIN is in charge of the maintenance of such infrastructure, and regulations on the operation of such infrastructure once the handover has taken place should be foreseen.
- The use of the Digital File Computer Platform of the Invierte Project or Program (PED) has been foreseen, so it is important to establish what type of information will be registered on this platform and the free access to it by the citizens should be considered. In addition, the obligation to register in the SEACE the information on the preparatory acts, the selection procedures and acts of the contractual execution should be established for greater transparency of the contracting that the ANIN will carry out, whatever the modality used for it (resource management agreements or government to government contracts).
- The creation of a (computerized) system of suppliers has been established, where it aims to record historical information on the projects executed by them (cost of the service, execution term, observations, term extensions, international certifications, accredited experience in the preparation of technical files detailing the cost of the project and/or investment program, and level of performance). Much of this information is already registered in the SEACE and in the National Registry of Suppliers (prices and experience), so the relevance and real usefulness of creating this new registry of supplier information is not appreciated, generating unnecessary expenses to the Public Treasury for the creation of this computer system.
- The projects of ANIN's Infrastructure Portfolio will not be executed through public-private partnerships or under the Works for Taxes regime, so it is very likely that government-to-government contracts will be generalized or resorted to more frequently, without making an analysis of the real benefits and/or particular efficiencies that can be taken advantage of in each project.
The selection of suppliers and execution of projects by the ANIN imposes great challenges to suppliers and contractors to learn and adapt quickly to the new mechanisms to be used by this institution, so we offer our specialized legal advice in public procurement, government-to-government contracts and construction law, so that your company has greater opportunities for success and efficiency in the projects in which it participatese.
We hope that this information will be of relevance to you and your company. If you require any further information, do not hesitate to contact us.