*Unofficial Translation* New Law DOF 11-06-2012
FEDERAL ANTICORRUPTION LAW ON PUBLIC PROCUREMENT CURRENT TEXT New Law published in the Official Journal of the Federation on June 11, 2012
The margin a seal with the national emblem, which reads: United Mexican States. - Presidency of the Republic. FELIPE DE JESUS CALDERON HINOJOSA, President of the United Mexican States, its inhabitants: That the Congress of the Union, has sent me the following DECREE "THE GENERAL CONFERENCE OF THE UNITED MEXICAN STATES, DECREES: ISSUE THE FEDERAL CORRUPTION IN PUBLIC CONTRACTING. Article One. Issuance of the Federal Anti-Corruption in public procurement.
Federal Anticorruption Law on Public Procurement Chapter One General Provisions Article 1. This Act is of public and general interest and is: I. Establish responsibilities and penalties to be imposed on individuals and corporations, a Mexican national and foreign, for infractions incurred by reason of their participation in the federal procurement under this Act and those to be imposed to individuals and corporations of Mexican nationality, for infractions incurred in international business transactions under this Act, and II. Regulate the procedure for determining responsibility and penalties, and III. Set the competent federal authorities to interpret and apply this Act Article 2. The subjects of this Law: I. The natural or legal persons of Mexican or foreign, to participate in public procurement at the federal,
as stakeholder, bidders, guests, suppliers, awarded, contractors, licensees, licensors or the like; II. Individuals or corporations, Mexican or foreign, in their capacity as shareholders, partners, associates, representatives, principals or agents, attorneys, brokers, agents, managers, advisers, consultants, subcontractors, employees or any other character involved in public procurement subject matter of this Act on behalf of, or interest of persons referred to in the preceding section;
III. The natural or legal persons of Mexican nationality to participate, directly or indirectly in the development of international commercial transactions under the terms of the this Act, and IV. Public officials who participate directly or indirectly in the procurement of federal, who will be held responsible in terms of Title Four of the Constitution of the United Mexican States. Article 3. For purposes of this Act, shall apply: I. Competent authorities: The Secretariat, the holders of the Control Internal Organs and the holders of their respective areas of complaints and responsibilities and bodies to determine effect of Senators and Deputies of the Congress, the Supreme Court Justice of the Nation, the Federal Judicial Council, the Electoral Tribunal of Judicial Power of the Federation, the Federal Court of Fiscal and Administrative Justice, the Conciliation and Arbitration the Federal Court of Conciliation and Arbitration, land tribunals, the Federal Electoral Institute, the Superior Audit of the Federation, the National Commission on Human Rights, the Institute National Statistics and Geography, the Bank of Mexico and other public bodies, under the terms set out in Articles 4 and 5 of this Act; II. CompraNet: The electronic system of public government information referred to in the Act Procurement, Leasing and Services of the Public and the Law of Public Works and Services Related to the same. III. The federal procurement: All contracts, its preliminaries, and those arising from the conclusion, execution and delivery of procurement contracts, leases, services, public works and services related thereto, to carry out Contracting public institutions referred to in section VIII of this article, both in terms of legal regulations regarding procurement and special regime independently of the contract or scheme is used for its realization. Be considered including the acts and proceedings relating to competition or bidding or request for granting permits and concessions of federal or extension thereof, and any other authority or procedure related to public procurement; IV. International conventions for the prevention and combating corruption: The Inter-American Convention against Corruption of the Organization of American States, the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions of the Organization for Economic Cooperation and Development and the United Nations Convention against Corruption, and the other in terms of the applicable legal provisions are underwritten by the Mexican State in the matter; V. Dependencies: The ministries and their decentralized bodies and the Legal Counsel of the Federal Executive and administrative units of the Presidency of the Republic; VI. Entities: decentralized public agencies, the majority state-owned enterprises and public trusts having 2
the character of parastatal entity referred to in articles 3, 45, 46 and 47 of the Organic Law of Federal Public Administration; VII. Not quasi-public trusts: The public trusts constituted by the Ministry of Finance, as sole trustee of the Federal Public Administration Centralized or any entity of the Public Parastatal in terms of laws and administrative provisions, and not considered parastatals; VIII. Public contracting: The agencies of Public Administration Federal public trusts no parastatal, mandates and similar contracts, the Agency; the states and municipalities, including public bodies of women and men as well as political and administrative organs of the territorial boundaries of Mexico City, conducting procurements under full or partial federal funding, in terms of the applicable legal provisions , and areas or bodies of the authorities under Sections II to XI of article 4 of this Act, responsible for the procurement of federal character; IX. Intermediary: The persons referred to in Section II of Article 2 of this Act; X. Mandates and similar contracts: Mandates and similar contracts entered into by, entities and, where appropriate, the Agency, in terms of laws and administrative provisions that involve federal public funds; XI. Legal regulations on public procurement: The Law of Acquisitions, Leasing and Services of the Public Sector, Law of Public Works and Related Services Same, Law of Petr贸leos Mexicanos and other legal systems establish a system, scheme or special mechanism procurement; XII. Internal Organs of Control: The internal organs of control in the agencies and of the Agency; XIII. Attorney: The Attorney General's Office; XIV. Ministry: The Ministry of Public Service; XV. Foreign public official: Any person holding or holding an office, position or commission public concerned and the respective foreign law in the legislative, executive or judicial a foreign state, including agencies or public corporations, in any order or level of government, as well as any body or international public organization, and XVI. International Business Transactions: The acts and procedures related to contracting, implementation and compliance with procurement contracts, leases, services of any kind, public works and services related thereto and the acts and procedures for the granting and renewal of permits or concessions, or any other authority or procedure relating to such transactions, to conduct any public body or agency of a foreign state or involving the participation of a foreign public server and whose development involved, directly or indirectly, natural or legal persons of Mexican nationality. Article 4. Within the scope of its powers, authorities will be empowered to implement this Act, issue the necessary administrative arrangements for the proper discharge of the same and interpret its provisions for administrative purposes in connection with the procurement of federal nature carried out by: I. The Secretariat, in the field of Public Administration and the Federal Attorney as well as the states, municipalities and political and administrative organs of river Federal District land to carry out the 3
federal procurement; II. The Senate and Chamber of Deputies of the Congress; III. The Supreme Court's Office, the Federal Judicial Council and the Court Election of the Judiciary of the Federation; IV. The Federal Court of Fiscal and Administrative Justice; V. The Boards of Conciliation and Arbitration, the Federal Court of Conciliation and Arbitration and agrarian tribunals; VI. The Federal Electoral Institute; VII. The Supreme Audit Office of the Federation; VIII. The National Commission on Human Rights; IX. The National Institute of Statistics and Geography; X. The Bank of Mexico, and XI. Other public autonomous bodies established by law. The authorities referred to in Sections II to XI of this article, in accordance with the provisions that are applicable, identify areas or bodies responsible for investigating the possible commission of the offenses referred to in Article 8 of this Act, determine the responsibilities that follow from them and apply the corresponding sanctions. Article 5. The Secretariat and the holders of the Control Internal Organs and the holders of the areas of complaints and responsibilities of these bodies, shall be competent authorities for investigation, prosecution, conduct and resolution, where appropriate, the procedure and remedies set in this Act The Secretariat shall be the sole competent authority responsible for investigating the possible commission of the offense referred to in Article 9 of this Act, determine the responsibilities arising therefrom and apply the corresponding sanctions. The Ministry may request a foreign state information required for the investigation and conduct of administrative disciplinary proceedings referred to in Chapters Three and Four of this Law, the terms set forth in international instruments to which both States are parties and other applicable ordinances. Article 6. The provisions contained in Chapters Three, Four and Six of this Act shall apply in all cases to be investigated and, where applicable, substantiate the administrative penalty proceedings resulting from the commission of the offenses set out in Article 9 of this Act, whether for such effects using the mechanisms of international cooperation and assistance provided by international conventions for the prevention and combating corruption, which the Mexican state is a party.
Article 7. The responsibilities and penalties referred to in this Act shall be determined and applied irrespective of other responsibilities and penalties provided for in applicable laws. Chapter Two Infractions Article 8. Any of the subjects referred to in sections I and II of Article 2 of this Act, will incur in liability when in the federal procurement, directly or indirectly, perform one or more of the following offenses: I.
Promise, offer or give money or any gift to a public servant or a third party, in order that the public servant or refrain from doing any act related to his functions or those of other public servant, to obtain or retain a benefit or advantage, regardless of acceptance or receipt of money or the gift or the result achieved. It also incur liability, when the promise or offer of money or any gift is made to a third party in any way involved in the design or manufacture of the call for tender or any other act related to the procedure the federal procurement;
Run one or more subjects referred to in Article 2 of this Act, actions that imply or have as their object or effect or gain unfair advantage in the procurement of federal character;
Perform acts or omissions which have as their object or effect of participating in public procurement federal, notwithstanding that by operation of law or administrative decision is unable to be present;
Perform acts or omissions which have as their object or effect of circumventing the requirements or rules established in the procurement of federal or simulating the performance there of;
Involved in his own name but in the interest of another person or persons who are disabled to participate in the federal procurement, in order that this or these last obtained in whole or in part, the benefits of the procurement;
Force without being entitled to it, a public servant to give, sign, execute, destroy or deliver a document or any property, in order to obtain for himself or a third party an advantage or benefit;
Promote or use their influence, economic or political power, real or fictitious, for any public servant, in order to obtain for himself or a third party a benefit or advantage, irrespective of the acceptance of the server or public servants or the result, and
Present documentation or false information or altered in order to realize a profit or advantage. When the infringement was made through an intermediary for the purpose of the individual or legal entity referred to in Section I of Article 2 of this Act to obtain a benefit or advantage in the procurement in question, both will be punished before procedure administrative penalty to be decided under terms of this Act
Article 9. Shall be liable to the subjects set forth in paragraph III of Article 2 of this Law, when any international trade transaction, by itself or through a third party, promise, offer or give money or any other improper gift to a foreign public official or third, in order that the public servant or refrain from doing any act related to their duties or those of other foreign public official, in order to obtain or maintain a benefit or advantage, regardless of acceptance or result. When the Mexican State also other States or foreign having jurisdiction over the infringement referred to in this Article, the competent authorities of those States, one request, shall consult to coordinate actions and measures to pursue and punish. Chapter Three Investigations Article 10. The investigation preceding the start of sanctioning administrative procedure own motion or on complaint. The competent authorities may take cognizance of the alleged offenses committed by persons subject to this Act, among others, through the following means: I. CompraNet, through the reports section under that system; II. Complaint by the public contracting or any other authority, which shall be forwarded to the Secretariat or, where appropriate, the authorities referred to in Sections II to XI of article 4 of this Act and the documents or information that it is sustained and other evidence with which, if any, is counted; III. Individual complaints on that point, under oath, the alleged violations. The statement made falsely is punishable in terms of the applicable criminal law; IV. Anonymous complaints received through the means provided for that purpose, and V. International complaint made by a foreign state or public international body or organization, in which shall specify the alleged violations and follow the evidence where it is sustained. Authorities shall keep confidential the identity of persons reporting alleged offenses under this Act, as well as those seeking to avail of the benefit provided for in Article 31 of the same. Article 11. All public servants have a duty to report in writing the acts or omissions in performance of their duties, have knowledge and which may be penalized in terms of this Act breach of this obligation shall be grounds for sanctions under the Federal Accountability Act Management of Public Servants or 6
the legal system applicable to the states in the case of federal procurement performed by the states, municipalities, including public authorities and others about political and administrative organs of the territorial boundaries of Mexico City. Article 12. The written complaint must contain the following: I. The facts and other information that will allow the commission notice of alleged violations; II. The particulars of the alleged offender, III. The marking of evidence proving the alleged violations. In the case of the denunciations referred to in sections II and V of Article 10 of this Act, institutions Article 13. Upon receipt of the complaint, if the competent authorities warn of possible infringements, initiated the investigation phase to which this Act Article 14. Requests for information are subject to the following rules: I. Individuals or legal entities, public or private, that are subject to investigation for alleged irregularities in the procurement of federal, requirements that must Attender duly founded and motivated, we formulate the relevant authorities within the time limits established in this law and without prejudice to the competence of other authorities and the rights of users of the financial system. For the purposes of such requirements the competent authority shall set a deadline for the attention of the respective request and will not be less than 5 days nor more than 10 working days from the day following the date of service of the order concerned, subject to to expand to 10 additional working days, when, for good cause, it is requested by stakeholders. Failure to meet the requirements without justification, the competent authority may impose a fine in accordance with Article 25 of this Act II. Contracting public institutions which are formulating requests for information, will be required to provide it within ten working days from the notification takes effect in question. When derived from the complexity of information requirements formulated contracting public institutions require more time to their attention, they must request an extension in writing to the competent authority duly substantiated. The extension of the term in his case is granted can not be extended and shall not exceed 20 working days. When public officials do not meet the requirements referred to in this article will be imposed a fine in terms of the provisions of Article 25 of this Act, unless there is legal or judicial mandate or cause the opinion of the competent authority they are prevented and whether they are initiated actions to public servants fincar administrative liability that may apply. III. The Competent Authority shall have access, in terms of laws on the subject, the information needed to clarify the facts, including that which the laws regarded as confidential, confidential or to be kept secret, when related to the commission of offenses covered by this law, the obligation to maintain the same reserve or secrecy, until pending the result of its review to determine appropriate sanctions. The information obtained in the terms of this Article will evidence in the administrative procedure for 7
sanctioning. For the purposes of sections I and II of this Article, repeatedly breach of requirements is punishable by a fine of up to twice that which had been imposed in terms of these fractions, subsisting notwithstanding the obligation to comply the respective requirement. Article 15. During the investigation phase, the competent authorities may also require information in terms of article 14, perform the other steps that may be necessary to provide better, including requests for documentation and information to any other person or entity, tending to prove the alleged violations. For the investigation of the offense referred to in Article 9 of this Act, the Secretary may initiate actions arising from the mechanisms of international cooperation and assistance provided by international conventions for the prevention and combating corruption. Article 16. Public servants of the competent authorities on the occasion of the investigations carried out have access to information classified as secret or confidential, shall not disclose or provide any means unduly low, otherwise, shall be punished in terms of the Act Federal Administrative Responsibilities of Public Servants and other applicable ordinances. Article 17. Concluded the investigation procedures, the competent authorities proceed to the analysis of information gathered, in order to determine the origin of the sanctioning of an administrative proceeding. If you can not be found sufficient evidence to prove the existence of the violation and the alleged responsibility of the offender will be issued under completion and closure of the case, without prejudice to the investigation can be reopened if new evidence and have not prescribed the powers to sanction. Undo edits Chapter Four Sanctioning Administrative Procedure
Article 18. If the initial research shows sufficient evidence for suspecting the existence of the offenses set out in Chapter Two of this Law, the competent authority shall issue a resolution of initiation of administrative disciplinary proceedings, which shall be notified in terms of article 19 of this law. The agreement referred to above must contain at least: I. Name of the alleged offender or offenders; II. File identification data to be integrated to mark the start of the procedure and place to be available; III. Clearly identified, objective and precise offenses against him and, if applicable, who has acted as an intermediary; IV. The provisions of this Act relied upon by the procedure, noting those that are deemed transgressed;
V. The indication of the benefits provided in this Act for people who confess their responsibility for the charge that they make, and VI. Name and signature of the competent authority, and date and place of issue. Article 19. Communications shall be made: I. Personally, when performing the subjects referred to in Article 2 of this Act, and II. For office, when performing authorities. For the practice of personal notifications outside the residence of the competent authority, it may draw on any federal, who carried out according to the applicable normative and will be required to transmit the individual recordings, within three days following that in which it was performed. For the purposes stated in the preceding paragraph, the competent authority also may draw on state or municipal authorities, under the collaboration agreements or instruments to be established for this purpose. All notices shall be effective the day following that on which it is made. Article 20. Within fifteen working days after the notice takes effect agreement sanctioning of an administrative proceeding, the alleged offender may express what serves his interests in writing signed under oath or by appearance before the competent authority responding to each and every one of the acts he is accused of providing and presenting the evidence it deems relevant and, where appropriate, recognizing their responsibility for the offense in question in the terms and for the purposes specified in this Act If the alleged offender confessed his responsibility, he shall immediately issue a resolution, unless the competent authorities have the receipt of evidence to prove the veracity of the confession. In case of full acceptance of the validity of the confession, shall apply in Article 32 of this Law If the alleged offender will not show in writing that his rights or fails to appear within the period specified in paragraph one of this article or fails to meet any of the acts or facts against him, they are deemed to be correct, except evidence to the contrary. Article 21. After the deadline for the alleged offender to manifest what his interests, the competent authority shall provide on the admission and sufficiency of the evidence offered by it, observing the rules for this purpose provided for in Title IV of the Federal Code of civilians. The competent authorities may cleave of the evidence they deem necessary, without other limitations than those established in the Federal Code of Civil Procedure. Article 22. Once the evidence shall be given to the alleged offender within five working days to make allegations. After that time, will close the investigation and issue the corresponding resolution in a period not to exceed forty days. Article 23. The decision handed down decision on the lack of responsibility or the imposition of sanctions, must notify the person concerned no later than ten working days. 9
Article 24. Subjects punished in terms of this Act may lodge the appeal provisions of Title VI of the Federal Administrative Procedure Act. Article 25. Within the research stage or in the administrative disciplinary proceedings, the competent authorities may impose coercive measures, in order to enforce its determinations. The coercive measures are as follows: I. Warning, and II. Fine of 100 to 2000 days of general minimum wage in Mexico City. Any coercive measures must be duly founded and motivated. Article 26. In all matters relating to administrative penalty proceedings not included in this Act, shall follow the provisions of the Federal Administrative Procedure Act. Chapter Five Administrative Sanctions
Article 27. Administrative sanctions to be imposed for the commission of the offenses referred to in Articles 8 and 9 of this Act, shall be: I. In the case of natural persons: a) A fine equivalent to the amount of one thousand to fifty thousand times the current general minimum daily wage for the Federal District. In the case of permits, concessions, authorizations and procedures related to federal procurement or international business transactions, the maximum fine under the preceding paragraph may be increased by fifty percent, when objective factors to determine by the competent authority that the benefit to the offender was over the maximum fine. In the case of federal procurement made in terms of legal regulations concerning public procurement, if the maximum fine under the first paragraph of this subsection is less than thirty percent of the contract amount shall be imposed a fine of thirty-to thirty-five percent of the contract amount if the latter was awarded to the offender, b) Ineligibility to participate in the federal procurement for a period of not less than 3 months nor more than 8 years; II. In the case of legal entities: a) A fine equivalent to the amount of 10 thousand to 2 million times the current general minimum daily wage for the Federal District.
In the case of permits, concessions, authorizations and procedures related to federal procurement or international business transactions, the maximum fine under the preceding paragraph may be increased by fifty percent, when objective factors to determine by the competent authority that the benefit to the offender was over the maximum fine. In the case of federal procurement made in terms of legal regulations concerning public procurement, if the maximum fine under the first paragraph of esteinciso is less than thirty percent of the contract amount shall be imposed a fine of between thirty to thirty-five percent of the contract amount if the latter was awarded to the offender, b) Ineligibility to participate in the federal procurement for a period of not less than 3 months nor more than 10 years. The fines to be determined in terms of this Act, shall have the status of tax credits and fixed in liquid amount, subject to the administrative procedure established by implementing legislation. In the case of the offense under Section II of Article 8 of this Act, only be applicable penalty of disqualification, without prejudice to other provisions established. The term of the sanction of disqualification shall commence on the day following that on which the competent authority to publish the respective resolution in the Official Journal of the Federation, unless the disqualification resulting from the participation of the offender in the federal procurement whose acts should be disseminated in CompraNet in terms of the provisions, in which case the period shall run from the date of its distribution in the system. When in terms of the provisions of this Act, impose the same person two or more disqualifications in procurement of various federal, these prohibitions apply in succession, so that once it is exhausted within the first will begin the implementation of the second disqualification and so on. The same rule applies in the case of international commercial transactions. In no case of a suspension of the disqualification, even if the offender chooses an administrative judgment against the acts of authority that ordered or executed. Article 28. For the imposition of administrative penalties provided for in this Act shall take into account the elements are indicated below: I. The severity of the infraction incurred; II. The economic circumstances of the offender. For purposes of the provisions of this subparagraph, it may consider information from the contracts that the offender has concluded and registered in CompraNet, or, if such information became available, we may consider the amount of the contract, permit, concession or transaction giving rise to disciplinary administrative procedure in question; III. The background of the offender, including their procurement behavior of previous federal character or, where appropriate, in international business transactions;
IV. The degree of participation of the offender; V. The means of implementation; VI. Recidivism in the commission of offenses under this Act, and VII. The amount of the benefit, profit or loss or damage resulting from the infringement, when they caused. For purposes of this Act, the offender shall be considered a repeat offender who, having been found liable for the commission of any of the offenses referred to in this Act, incurred again in one or more of them, within a period of ten years from the notification becomes effective the first penalty. Article 29. The powers of competent authorities to impose administrative penalties prescribed in this Act within ten years, counted from the day following that on which the offenses were committed or from the time they have ceased, if these are continuous. For purposes of this article the prescription is interrupted by the notice of initiation of disciplinary or administrative proceeding challenging the respective decision by the offender. Article 30. The agencies and the Attorney General may not grant to persons who have been sanctioned in terms of this Act, during the period in which they are disabled, grants, gifts and other benefits under the Federal Budget and Accountability Fiscal, Federal Law for the Administration and Property Disposal Public Sector and other applicable ordinances. Chapter Six Reduction of Penalties
Article 31. A person who has done any of the offenses under this Act, or that it is participating in its implementation may confess to in order to qualify for the benefit of reduction of penalties established in this article. The application of the benefit referred to above, shall result in a reduction of between fifty and seventy percent of the amount of penalties imposed on the responsible. For its origin will need to additionally meet the following requirements: I. Has not been notified of the alleged infringers either the initiation of the administrative penalty; II. That the person seeking to qualify for this benefit, is among those involved in the infringement, the first to provide the sufficient evidence that the judgment of the competent authorities to verify the existence of the infringement; III. The person entitled to the benefit intended to cooperate fully and continuously with the competent authority conducting the investigation and, where appropriate, with substantiating the leading sanctioning administrative procedure, and IV. That the person immediately suspend its participation in the infringement.
Individuals applying for this benefit will be subject to administrative disciplinary proceedings referred to in this Act shall be established in which compliance with the requirements referred to in this article and the veracity and validity of the confession made and decide on the merits of that benefit. Article 32. Once the administrative disciplinary proceedings to which this Act if the alleged offender admits his responsibility for the acts alleged against him, he shall pay a fifty percent reduction in the amount of sanctions to be imposed, provided that they made within the period referred to in Article 20 of this Act
Chapter Seven Prevention
Article 33. The Secretary may enter into cooperation agreements with individuals or entities engaged in procurement of federal and international business transactions, as well as chambers of commerce or trade or industrial organizations, in order to guide them in establishing mechanisms self-regulation to include the implementation of internal controls and integrity program that would ensure the development of an ethical culture in your organization. In the design and supervision of the mechanisms referred to above, is considered international best practice controls, ethics and integrity in business, and includes measures that inhibit the practice of misconduct, to guide members, officers and employees of companies on compliance and integrity program containing tools complaint and whistleblower protection.
First. This Act shall take effect the day following its publication in the Official Journal of the Federation. Second. The implementation of this Act shall be made with the human, material and budget allocated to the Ministry of Public Service, to agencies of the Federal Public Administration and the Attorney General's Office and the other authorities empowered to implement this order, so that will not involve additional expenditure. Mexico, DF, on April 25, 2012. - Dip. Guadalupe Acosta Naranjo, President. Sen. Jose Gonzalez Morfin, President. - Dip. Martin Garcia Aviles, Secretary. - Sen. Martha Leticia Sosa Govea, Secretary. - Headings. " In compliance with the provisions of Section I of Article 89 of the Constitution of the United Mexican States, and for due publication and observance, I issue this Decree at the Residence of the Federal Executive in Mexico City, Federal District to 8 June, two thousand twelve. - Felipe de Jesus Calderon Hinojosa. - Heading. - The Secretary of the Interior, Alejandro Alfonso Poire Romero. - Heading.
CURRENT TEXT Chapter One That the Congress of the Union, has sent me the following Federal Anticorruption Law on Public Procurement Article...