Subcontracting in Public Procurement

Table of contents

Context and regulation of subcontracting

Analysis of the comptroller's resolution

Importance of evaluating technical capacity

Implications for public contract management

Context and regulation of subcontracting

Subcontracting in public procurement is regulated by Article 49 of the General Public Procurement Law (LGCP) and Article 133 of the Regulation to the Public Procurement Law (RLGCP). According to these regulations, the bidder is required to indicate the list of subcontractors, the object of the subcontracting, and the percentage it represents within their offer. Subcontracting is only permitted for the execution of specialized tasks, which implies that not every activity within a public contract can be subcontracted.

Analysis of the comptroller's resolution

Resolution R-DCP-00074-2024 from the Office of the Comptroller General addresses specific case where the capacity of the awarded company to execute specialized activities without subcontracting was questioned. In this case, the awarded company stated in its offer that it would not subcontract any part of the project, including specialized activities such as LP gas systems, fire detection, and voice and data systems.

The Comptroller highlighted that, although these activities are considered specialized, it cannot be automatically assumed that they must be subcontracted. It is essential that the public administration evaluates whether the bidder has the technical capacity and resources necessary to carry out these activities on its own. In this case, the awarded company claimed to have the technical capacity and trained human resources to execute these tasks directly.

Importance of evaluating technical capacity

The resolution underscores the importance of the administration verifying the bidder's technical capacity to carry out specialized activities. This involves a detailed analysis of the mechanisms, equipment, and personnel that the bidder has at its disposal to effectively execute the project without resorting to subcontracting.

The lack of exhaustive analysis by the administration can jeopardize the investment of public funds, as it is essential to ensure that the awarded company can achieve the objectives of the contract efficiently and effectively. The Comptroller pointed out that the administration was remiss in not sufficiently investigating the awarded company's capacity to perform these activities, which could compromise the satisfaction of public interest.

Implications for public contract management

The Comptroller's resolution has several implications for public contract management. First, it emphasizes the need for public administrations to conduct detailed evaluations of bidders' capabilities, especially regarding specialized activities. This stance not only seeks to ensure efficiency in contract execution but also protects public interests by ensuring that funds are appropriately utilized.

In conclusion, the resolution confirms the importance of guaranteeing transparency and objectivity in public procurement processes. By upholding the appeal and annulling the award decision, it is acknowledged that the procuring administration failed to thoroughly verify and clarify fundamental aspects of the bidding terms, particularly those related to laboratory testing. The lack of precision regarding whether these tests should be conducted by a laboratory hired by the administration, subcontracted by bidders, or provided by suppliers revealed an omission that affected equal conditions among participants.

Moreover, the instruction to the administration to consult the Costa Rican Accreditation Entity (ECA) aims to ensure that the required tests comply with the quality standards established in Article 39 of the National Quality System Law. Additionally, verifying the awarded company's accreditation reinforces the necessity to align with legal and technical requirements. This ruling highlights the relevance of clear, well-founded, and fair administrative processes that provide confidence to both bidders and the general public.

Conclusion 

Resolution R-DCP-00074-2024 emphasizes the importance of not automatically assuming that specialized tasks must be delegated to third parties. It is crucial to thoroughly evaluate whether the contractor has the capacity to execute these tasks independently. This approach not only safeguards collective interests but also ensures that financial resources are managed appropriately and effectively, fostering a more efficient administration of contractual agreements.

The lack of a detailed analysis of the bidder's competencies can compromise the investment of state capital. The resolution underscores the importance of ensuring that the selected company has the capacity to fulfill the agreement's objectives efficiently, which is essential to meet general interest requirements. By confirming that participants possess the necessary technical ability and resources, clarity is promoted, and the optimal use of public funds is safeguarded.

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