Rules and Procedures for the Organization, Functioning, and Authority of the Advisory Commission for Concessions

The purpose of these Standards and Procedures is to establish the provisions for the operation and competence of the Advisory Commission for technical advice and assistance to the Secretary of State in the Offices of Public Works, Transportation and Housing (SOPTRAVI), in matters of concessions.

To provide advisory and technical assistance to the Secretary of State in the Offices of Public Works, Transportation and Housing (SOPTRAVI) in relation to evaluation processes regarding the viability and advisability of proceeding with requests submitted.

The Advisory Commission shall be headquartered in the offices of the Secretary of State in the Offices of Public Works, Transportation and Housing (SOPTRAVI), which shall provide the necessary support for its operation, and shall meet when convoked by its President, in order to fulfill its duties.

Support and Technical Advice: Assistance on matters that require specialized knowledge or technologies.

• 1)

  Consultative: Any matter that must be consulted, serves only to inform and not to decide.

• 2)

  Ad honorem: A function performed without any compensation.

• 3)

  Substitute: Replacement of one representative by another.

• 4)

  Ad referéndum: To issue an opinion prior to consultation and authorization with a superior authority.

The Advisory Commission shall ensure that the following principles are observed in its actions:

• 1)

  GRATUITY.- Means that all actions performed by the Commission within its competence shall be free of charge.

• 2)

  TRANSPARENCY.- The Commission shall act in a manner that implies conduct in accordance with ethics and morality.

• 3)

  PUBLICITY.- The Advisory Commission shall ensure publicity in concession processes to highlight good faith, transparency, fair competition, and compliance with ethical conduct rules.

• 4)

  FUNCTIONAL INDEPENDENCE.- The Commission enjoys independence in its functions, so in its conduct, it must demonstrate that it does not receive influence from any other public or private power.

• 5)

  EXPEDIENCE.- A principle that induces action with due diligence, particularly in the facts that give rise to the Commission's actions.

The human and technical support assistance that the Advisory Commission provides to the Secretary of Public Works, Transportation and Housing (SOPTRAVI) may consist of:

• a)

  Proposing the services of experts.

• b)

  Organizing and directing seminars, professional training programs, demonstration or practical teaching work.

• c)

  Suggesting study scholarships and for their expansion.

• d)

  Preparing and executing experimental programs, tests, or research work. CHAPTER II ADVISORY COMMISSION ORGANIZATION, OPERATION, PROCEDURE AND COMPETENCE

The Advisory Commission shall be composed of personnel with experience or knowledge in the matter, as follows: a. A representative of the Secretary of State in the Offices of Public Works, Transportation and Housing (SOPTRAVI), who shall preside over it and shall be responsible for convening working meetings. b. A representative of the Superintendence of Concessions and Licenses. c. A representative of the Secretary of State in the Office of Finance. d. A representative of the Secretary of State in the Presidential Office. e. A representative of the Mining Promotion Directorate, a division of the Secretary of Natural Resources and Environment (SERNA). The representations shall be held by persons with knowledge and experience in technical, administrative, financial, and legal matters applied in concession processes, who shall serve in an ad honorem capacity. In cases of absence of the principal representatives, they shall delegate their functions to substitute representatives, who must comply with the same requirements and obligations as the principal representative. The represented institutions shall accredit their principal and substitute representatives before the Secretary of State in the Offices of Public Works, Transportation and Housing (SOPTRAVI), within the first two months at the beginning of the government period or within fifteen (15) days following the end of their duties. The representative of the Superintendence of Concessions and Licenses shall act as Secretary of the Advisory Commission.

The Advisory Commission is a body with illustrative and non-binding functions, to provide advisory and technical assistance in matters of concessions, as follows:

• a)

  To the Secretary of State in the Offices of Public Works, Transportation and Housing (SOPTRAVI), regarding processes and requests for granting concessions for the provision and indirect management of public services, contracting of professional training and national infrastructure, in the different award modalities and phases contemplated by Article 6 of the Law on the Promotion and Development of Public Works and National Infrastructure, and in the following fields: i. Preparation of bidding documents, in accordance with the content specified in Article 23 of the Regulation of the Law on the Promotion and Development of Public Works and National Infrastructure; ii. Compliance with legal regulations and preconditions to award; iii. The analysis and adjustments of the contractual content of contracts, prior to their execution, particularly in aspects concerning their administration by the State, their extension, expiration, rescue, extinction, conflict resolution; iv. Provide assistance to the Commissions that are established to carry out the evaluation and award processes of concessions and licenses; v. The process of documentation, execution, validation, registration, and entry into force of contracts; and, vi. Provide advisory and technical assistance during the concession contract administration process;

• b)

  Provide advisory and technical assistance in matters of Concession when so determined by the Municipalities;

• c)

  Provide advisory and technical assistance in other processes contemplated in the Law on the Promotion and Development of Public Works and National Infrastructure;

• d)

  Conduct its internal affairs; and,

• e)

  Others designated by the Law on the Promotion and Development of Public Works and National Infrastructure, other laws, and related regulations.

It corresponds to the President to:

• a)

  Convoke sessions and establish the agenda for the day for their conduct;

• b)

  Preside over sessions, open and close the session, maintain order, conduct and conclude discussions; the president may apply a tiebreaking vote;

• c)

  Authorize with his signature and that of the Secretary, the records and resolutions of the Advisory Commission;

• d)

  Assign matters to sub-commissions or members of the Commission;

• e)

  Include substitute members in session when the principal member does not attend;

• f)

  Sign Commission correspondence; and,

• g)

  Other activities related to his representation.

It corresponds to the Secretary to:

• a)

  Verify the quorum, keep attendance records of members and invitees and the results of the votes;

• b)

  Keep the record of each session containing the order of the day, dates, and incidents of the matters discussed and of the resolutive aspects;

• c)

  Authorize jointly with the President the records, reports, and resolutions issued by the Commission;

• d)

  Read aloud the correspondence received;

• e)

  Manage the documentation of each session, keeping the books or indexes of records, resolutions, and other actions;

• f)

  Open files for each case that is subject to consultation or advisory;

• g)

  Sign the communications and resolutions of the Advisory Commission;

• h)

  Send to the head of the represented entities a report of the matters discussed, records, resolutions, and copies of supplementary documentation; and,

• i)

  Other activities related to his position.

The attributes of members are:

• a)

  Present initiatives, receive assignments of personal work or in specialized sub-commissions;

• b)

  Justify their vote or save their vote against, requesting that it be recorded in the record;

• c)

  Refrain from participating in matters that pose conflicts of interest with the actions of their represented entities or that generate grounds for legal recusal;

• d)

  Act ad referéndum, when the matters discussed require decision or consultation with their superior authority;

• e)

  Inform their represented entity about the matters discussed in each session of the Advisory Commission, without prejudice to the reports that the Commission sends;

• f)

  Attend sessions with the right to speak and vote;

• g)

  Excuse themselves from attending sessions when there are justified reasons.

The advisory and technical assistance provided by the Advisory Commission is mandatory in cases so designated, although it does not have binding character with respect to the assisted entity. This assistance is aimed at the perfecting and remedying of administrative, financial, technical, and legal conditions prior to the execution and validity of contracts resulting from the processes to grant concessions. It shall be the result of examining, investigating, opining, and recommending on the situations presented to it. Once the concession contract enters into force, the Superintendence of Concessions and Licenses shall assume the duties designated in Article 26 of the Law on the Promotion and Development of Public Works and National Infrastructure.

Sessions shall be held when convoked by the President, who shall act on his own initiative or at the request of any member of the Commission in those cases where the Commission's action is required by law. The convocation made at least twenty-four (24) hours in advance shall indicate the date, time, and place of the session and shall be accompanied by the agenda of matters to be discussed and supporting documentation. The attendance of members is mandatory, except in cases of unforeseen circumstances or force majeure, and in this case must notify the substitute members to attend the session. The quorum to hold a session is three (3) members. Invitees shall have the right to speak when the President grants it.

For the effectiveness of the work of the Advisory Commission, it may organize sub-commissions to address in a specialized manner matters of a legal, technical, and financial nature. The Advisory Commission may likewise resort to the support of experts, the holding of hearings, conduct investigations, and allow the attendance to sessions of persons who make illustrative presentations.

The resolutions of the Commission shall be adopted by simple majority of the total number of members of the Commission; however, the search for consensus shall be broadened. In those cases involving specialized technical opinions, they shall be signed by the professionals responsible for issuing them. The resolutions shall be classified and numbered consecutively and the respective records and indexes shall be kept by:

• a)

  General Resolutions;

• b)

  Reports, communications, and Technical Opinions.

Limitations. In no way and at no time shall the advisory and technical assistance compromise the independence of action or interfere in the fulfillment of the attributions and legal provisions by the represented entities. The Consultative Commission shall not be able to provide advisory and technical assistance directly to any private or state entity regarding the subject matter of its functions and attributions.

Reference Frameworks. The actions of the Consultative Commission shall be framed within the provisions of the Law for the Promotion and Development of Public Works and National Infrastructure, its Regulations, the present norms and legislation related to concession processes. The recommendations of a technical nature shall be based on prudent scientific practices and substantiations. CHAPTER III FINAL PROVISIONS

Information and Documentation Center. Under the responsibility of the State Secretariat in the Offices of Public Works, Transportation and Housing (SOPTRAVI), and as part of the logistical support to the Consultative Commission, the Information and Documentation Center for Concessions and other processes contemplated in the Law for the Promotion and Development of Public Works and National Infrastructure shall operate.

Responsibility of Public Officials. Public officials shall be responsible administratively, civilly and criminally when their actions give rise to acts constitutive of violations or crimes. In the case of members of the Consultative Commission, responsibility shall be attributable if, having knowledge of irregularities, they do not issue the corresponding warnings or present the respective complaint before the competent authority if the irregularity is confirmed.