Procuring Infrastructure Public-Private Partnerships

Panama does not have a standalone regulatory framework for PPPs However, Law 22 of 2006 (as last modified by Law 15 of 2012) that regulates public procurement in Panama governs the procurement of "6. Concessions and all other contract not regulated by special Law". Further regulation is contained in Law No 5 of 1988 of Concessions (as last modified by Law 128 of 2013 and Law 76 2010). Certain sectors, such as energy and telecommunications, have other specific laws that handles the PPP relationships within said sectors. In 2011, there Law Project 349 which created the public-private association regime was introduced, however, the Cabinet Council requested that this project be withdrawn for further review and consultation.

In June 2016 President Varela veto the Law project 305 of 2016 and send back to Legislative Assembly for reviewing. It is expected that the project will be discuss in the coming months however it is uncertain. Also, according to some contributors, Panama plans to work with the World Bank to create a new Concessions law applying the best practices in PPPs.

Each Ministry and public entity conducts its own contracting process. The authority that oversees the public contracting process is the General Public Procurement Directorate (Dirección General de Contrataciones Públicas). Their website is www.panamacompra.gob.pa

Article 24 of the Law 22 of 2006 requires certification of the Ministry of Economy and Finance to enter into contracts that implies expenses more than one year.

Article 70 of the Law 22 of 2006 requires approval of either the National Economic Council or the Cabinet depending on the amount of the contract. Also, article 74 of the same Law 22 of 2006 requires the ratification of the Contract by the General Comptroller.

Each authority developing its project reviews the project against its own pipeline of investments. Additionally, all projects must contemplate the norms established in Law 34 of 2004 “Fiscal social responsibility” and the Law of the General Budget of the Republic of Panama (approved annually for the next year).

Contributors answering the question confirmed that the prioritization of PPPs is done in consistency with government priorities in practice.

Article 23 of the Law 34 of 2008 (Ley de Responsabilidad Fiscal) as last amended by Law 25 of 2014 requires preforming cost benefit analysis for investment projects whose investment value is over 0.1 % of the annual budget.

Title IV Chapter II of Law 41 of 1998 (General Environmental Law of Panama) establishes the process for environmental impact assessment in Panama. Article 23 states that the projects that could create environmental risks are required to go through an environmental impact assessment ; Regulatory Decree 123 of 2009 regulates Title IV Chapter II of Law 41 of 1998. Article 16 determines the list of projects that need to go through an environmental assessment, including for example the construction of highways.

Article 24 of Law No. 6 of 2002 (transparency law) states that both the state and the federal government must allow the participation of citizens in every public administration act that could potentially affect private interests. The construction of infrastructure is mentioned as one of those public administration acts.

Law No. 6 of 2002 (transparency law) requires that all projects that have an impact in private interest must have public participation instance. The method that is used more frequently is the public consultation (consulta pública), whereby the public entity makes public information about the project and requests the citizens and organizations to provide their suggestions, opinions or proposals.

Article 25 subsection 9 and Article 30 of Law 22 of 2006. Article 25 establishes that the procuring authority has to include a draft contract in the solicitation documents. Article 30 goes over the different documents which has to be included as solicitation documents to create equality among bidders; the draft contract is one of those documents.

Second to last paragraph of article 25 of Law 22 of 2006 affirms that the consultation documents are public to any individual interested and that they may get those by electronic means of communication. Also, article 7 subsection D of Executive Decree 366/2006 states that the solicitation documents and other relevant information should be available right after the publication of the tender notice in PanamaCompra.

Article 15 subsection 5 of law 5/1988 states that private partners have the right to request from the procuring authority the necessary permits. According to this the private partner is the party responsible to obtain the permits but can request help to get them from the procuring authority.

Article 15 subsection 5 of law 5/1988 states that private partners have the right to request from the procuring authority the necessary permits. According to this the private partner is the party responsible to obtain the permits but can request help from the procuring authority.

Article 15 subsection 5 of law 5/1988 states that private partners have the right to request from the procuring authority the necessary permits. According to this the private partner is the party responsible to obtain the permits but can request help from the procuring authority.

Article 15 subsection 5 of Law 5/1988 states that the private partners have the right to get from the procuring authority the necessary rights of way for the execution of the project.

Article 54 of Law 22/2006 states that the bid evaluation committee has to be comprised of competent professionals from either the public or the private sector.

Article 32 of the Law 22 of 2006 requires the publication of the procurement notice in the electronic portal "panobacumab"

Article 33 of the Law 22 of 2006 establish different minimum periods to submit the bids depending on the object of the contract and the value of the contract Given the case study assumptions, when works are included and the value is over B/.5,000,000 the minimum period is 40 days (this same minimum period applies for service contracts when the value is over B/.175,000).

Article 51 of Law 22/2006 states that the Cabinet Council can apply restricted tendering in those cases in which the quantity and complexity of the project requires so.

Available when the projects are financed by international organizations based on the provision of articles 6 and 7 of Law 22/2006

Article 25.6 of the Law 22 of 2006 requires to include in the tender documents: The circumstances of time, manner and place as deemed necessary to ensure objective, clear and complete rules

Article 65 of the Executive Decree 366 of 2006 requires to include the prequalification criteria in the tender documents.

Contributors are not aware of cases in which the specified criteria were not respected. Bidders will have legal resources to defense their rights in other cases

Article 35 of the Law 22 of 2006 regulates a "Homologation" act and meeting where the bidders can formulate reservations and questions to the bidding documents that is required for any contract of value higher than 175.000 balboas

Article 35 of the Law 22 of 2006 requires to elaborate minutes of the "homologation" meeting to e signed by all the participants and include it in the procurement files. Also, according to article 38 any modification to the tender documents must be published in the electronic portal.

Article 35 of Law 22/2006 states that for projects worth more than $175,000.00 a pre-bidding conference will be conducted.

Article 35 of Law 22/2006 states that the final certificate with the resolutions of the pre-bidding conference has to be included in the solicitation documents.

In certain procurement processes, financial models or information is required. However, no specific provision require always the submission of a financial model.

Article 28 of the Law 22 of 2006 requires the inclusion among the special conditions of the evaluation criteria and the methodology to evaluate the proposals. Also, according to article 45 of the same Law 22 of 2006 (regulating tenders with separated technical evaluation) the evaluation will be preformed according to the criteria and methodology included in the tender documents and the contract will be awarded to the bidder to the bidder who obtains the highest rating according to the methodology specified in the tender documents.

Article 42 of Law 22/2006 states that the procuring authority will accept sole proposals when the proposal meets all the requirements established in the tender documents and the bidding price is convenient for the Government.

Articles 43, 45, 46 and 48 of the Law 22 of 2006 regulating the different awarding procedures require in all cases to publish the evaluation of the proposals on the electronic portal "panobacumab". Also article 129 in general requires all resolutions in the process to be published.

Article 129 of the Law 22 of 2006 considers that the publication in the electronic portal constitutes notification to the bidders, being their responsibility to frequently check the information available.

Article 74 of Law 22/2006 states that all the contracts -no matter the price- have to be published in Panobacumab (online website)

Article 72 subsection 1 of Law 22/2006 states that the procuring authority will have the right to control and supervise the execution of the contract. Further, article 12 of law 22/2006 determines that the procuring authority can perform inspections in the areas where the contract is being executed. Finally, Art. 13.4 of the Law 22/2006 includes among the obligations of the procuring authority to periodically review information on the situation of the works and the delivery of the services.

Article 12 and 13 of the Law 22 of 2006 regulate the rights and obligations of the parties in public contracts. Article 12 indicates specifically for Concessions that the procuring authority is empowered to conduct inspections on areas, goods or services covered by the contract to verify compliance with the obligations undertaken by the concessionaire. Article 13.4 also includes among the obligations of the procuring authority to periodically review information on the situation of the works and the delivery of the services.

Art. 13.4 includes among the obligations of the procuring authority to periodically review information on the situation of the works and the delivery of the services.

According to article 76 of the Law 22 of 2006 requires that the substituting entity meets the requirements of the original contractor.

The Law 22 of 2006 mentions the modification of the contract as a possibility to be regulated in the contract and that may imply the need to reestablish the financial balance of the contract (article 21 and article 27)

Contracts must be approved by the General Comptroller of the Republic in order to be effective, in accordance to article 74 of Law 22 of 2006. As stated in Article 77 of the same Law, amendments are considered part of the contracts, which means they are subject to the same requirements and formalities established for the contracts by the law. Therefore, any modification to a contract must be approved by the General Comptroller.

Article 21 of Law 22 of 2006 determines that when an economic balance clause is not expressly included in construction contracts, it can be considered to be part of the agreement in the case of force majeure, or when the conditions of the contracts have been substantially modified to the extent that the object of the agreement would be impossible to be fulfilled.

Article 77 point 5 of Law 22 of 2006 states that in the case the agreement wants to be modified on a public interest basis, the price of the contract can be revised only when the modifications would alter more than 25% of the agreement's initial value.

Article 72 subsection 2 of Law 22/2006 states that the procuring authority have the right to agree on exceptional clauses including the unilateral modification of the contract.

Force majeure is included as a potential cause for reestablishment of the financial balance (article 31 of the Law 22 of 2006) and extension of the contract (article 109).

Article 88 of law 22/2006 states that unless the contract says the opposite, there is always the possibility of including subcontractors in the project.

Law 131 of 2013 regulating commercial arbitration (domestic and international) and Law 5/1983 approves the New York Convention and introduces it as part of the national legislation of Panama.

Law 131 of 2013 regulating commercial arbitration (domestic and international). Further, law 5/1983 approves the New York Convention and introduces it as part of the national legislation of Panama.

Article 24.A of the Law 5 1988 as modified by the Law 76 of 2010 indicates that the financial institutions can subrogate in the rights and obligations of the Concessionaire.

Article 24.A of the Law 5 1988 as modified by the Law 76 of 2010 indicates that the financial institutions can subrogate in the rights and obligations of the Concessionaire.

Breach of contract provisions, death of the contractor, bankruptcy of the contractor, physical incapacity of the contractor and dissolution of the contractor are causes for termination of a public contract. Article 113 of Law 22 of 2006

Article 115 of Law 22 of 2006 regulates the effect of the resolution of the contract in case of breach of contract by the contractor.

The Law 5 of 1988 of Concessions permits, due to its flexibility, to consider or award a contract to an unsolicited proposal, but in practice, it is not common that the government uses this figure