The Administration, once the due process is concluded, shall debar from participating in administrative procurement (contratación administrativa) procedures related to public road infrastructure projects, for a period of three to ten years, depending on the severity of the fault, any natural or legal person who, without just cause, incurs a serious breach of contract, for any of the grounds established in this article. The sanction provided for herein shall prevent the contractor from participating in future administrative procurement procedures related to public road infrastructure projects.
The debarment shall be communicated to the Contraloría General de la República, which shall keep a record thereof, which shall be publicly accessible.
The application of the warning (apercibimiento) sanction indicated in Article 99 of this law shall not be necessary as a prerequisite for the application of the debarment sanction, in the case of serious breaches in contracts related to public road infrastructure projects.
Public road infrastructure projects shall be understood as those involving the construction, reconstruction, conservation, maintenance, and rehabilitation of national and cantonal roads, executed by the State or local governments respectively, including any type of works related to bridges and other related road structures, as well as contracts awarded for quality control of the works, administration, supervision, or inspection of this type of project on behalf of the State or municipalities.
The debarment is not extinguished by the merger (fusión), transformation, or change of corporate name or business name of the sanctioned company. In the event that the merger gives rise to a new company, or the sanctioned company is absorbed by another or forms a consortium to participate in new contracts with the State, the effects of the sanction shall fall upon the one that remains.
The establishment of a new company with the purpose of evading the effects of the debarment sanction shall be considered a fraud of law (fraude de ley), in which case the effects of the sanction shall fall under the same conditions upon the company so established.
For the purposes of the debarment sanction provided for in this article, any of the following shall be understood as serious faults:
- a)Actions or omissions by the contractor that cause breaches in the public road infrastructure project, endangering the life or safety of persons.
- b)Conduct attributable to the contractor that causes unforeseen delays and cost increases to the work that cannot be fully compensated through the execution of other sanctioning mechanisms regulated in the bidding terms (cartel) and the contract.
- c)Repeated breaches by the contractor in the execution of the contractual purpose for which they have previously been sanctioned through other mechanisms regulated in Law No. 7494, the Administrative Procurement Law (Ley de Contratación Administrativa), of May 2, 1995, and its regulations.
- d)Grounds attributable to the contractor that lead to the contractual resolution (resolución contractual) in a judicial setting, when such action is brought by the administration and there is a firm ruling against the contractor.
- e)Other serious faults as established in the bidding terms and in the contract.
In those cases where a public official, by reason of their position, becomes aware of the presumed existence of a contractual breach, they must immediately inform the corresponding head, in order for a preliminary investigation to be carried out to determine if there is merit to open a sanctioning procedure, under penalty of incurring a serious fault, without prejudice to the other responsibilities established by the legal system.
When the Contraloría General de la República, in the exercise of its powers, points out a possible contractual breach, it shall recommend, through its technical opinion to the competent administrative authority, the opening of the respective procedure, to determine whether the application of the debarment sanction is appropriate, as provided in this article. The Administration shall guarantee at all times sufficient opportunity for a hearing and defense.
It shall be the responsibility of the Contraloría General de la República to keep the record of contractors who have been debarred up to date, and it shall be the obligation of the Administration and the Contraloría General de la República to verify this record during the bid analysis phase of those procurement procedures whose purpose is as provided for in this article; this in order to declare inadmissible any offer that comes from a company debarred for the grounds indicated herein.
(As added by the sole article of Law No. 9743 of November 5, 2019, "to debar the contractor who fails to comply with the construction, reconstruction, conservation, maintenance, and rehabilitation of public road infrastructure projects") ---
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