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MECHANISM FOR FOLLOW-UP ON IMPLEMENTATION OF THE INTER-AMERICAN CONVENTION AGAINST CORRUPTION Tenth Meeting of the Committee of Experts

December 11 to 16, 2006Washington, D.C.

COMMITTEE OF EXPERTS OF THE MECHANISM FOR FOLLOW-UP ON IMPLEMENTATION OF THE INTER-AMERICAN CONVENTION AGAINST

CORRUPTION

OBSERVATIONS AND EXPLANATIONS OF THE ARGENTINE REPUBLIC ON THE DRAFT PRELIMINARY REPORT1 ON IMPLEMENTATION IN THE ARGENTINE

REPUBLIC OF THE PROVISIONS OF THE CONVENTION SELECTED FOR REVIEW IN THE SECOND ROUND, AND ON FOLLOW-UP ON THE RECOMMENDATIONS

FORMULATED TO THE COUNTRY IN THE FIRST ROUND

Working methodology used in this document:

- The comments of the Argentine Republic are each numbered and preceded by the title “COMMENT...”

- Next, the relevant paragraph in the DRAFT PRELIMINARY REPORT prepared by the Technical Secretariat is cited, first mentioning the page of the Draft where the relevant paragraph appears.

- Finally, under the heading “OBSERVATION OF THE ARGENTINE REPUBLIC”, comes the comment of Argentina.

COMMENT 1

DRAFT PRELIMINARY REPORT:

()

1 Document prepared by the Technical Secretariat (Office of Legal Cooperation, Department of International Legal Affairs, General Secretariat of the OAS).

“The Committee wishes to note the cooperation that it has received from the Republic of Argentina throughout the review process, and, in particular, from the Anticorruption Office of the Ministry of Justice, Security, and Human Rights...”

OBSERVATION OF THE ARGENTINE REPUBLIC:

The current title of the Ministry of Justice is “Ministry of Justice and Human Rights.” (Delete the word “Security.”)

COMMENT 2


(Page 4)

“El Decreto No. 993/1991 (Texto Ordenado aprobado por Resolución SFP No. 299/95), sobre el Sistema Nacional de la Profesión Administrativa – SINAPA, que en sus Títulos I y II (artículos 1 a 17) establece tres agrupamientos para dicho Sistema, denominados General, Científico-Técnico y Especializado, los cuales subdivide en “niveles” escalafonarios ordenados según la complejidad, responsabilidad y requisitos de capacitación que requiere el cargo, y desagrega en distintos “grados” ordenados también conforme a dicha la complejidad”

OBSERVATION OF THE ARGENTINE REPUBLIC:[Translator’s note: This observation does not affect the English text as it concerns a typo in the Spanish text that was appropriately addressed when it was translated into English.]

En donde dice “dicha la complejidad”, debe decir “dicha complejidad”.

COMMENT 3


(Page 4, last paragraph)

“These provisions are supplemented by the provisions on remedies for challenging administrative acts in general, as contained in the Law on Administrative Procedures, No. 19,549, and the Regulation of Administrative Procedures (Decree No. 1759/71), which establish the appeals known in Spanish as de Consideración (Articles 84 to 88), Jerárquico (Articles 89 and 90), and Alzada (Articles 94 to 96).”

OBSERVATION OF THE ARGENTINE REPUBLIC:En donde dice “contenidas la Ley”, debe decir “contenidas en la Ley”.[Translator’s note: The above observation does not affect the English text as it concerns a typo in the Spanish text that was appropriately addressed when it was translated into English.]

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Where it says “Consideración”, it should say “Reconsideración.”

COMMENT 4


(Page 8)

“La Acordada de la Corte Suprema de Justicia de la Nación del 3/III/1958, que dispone que las Cámaras de Apelaciones designarán y promoverán al personal de sus respectivos fueros, estableciendo en relación con las promociones unas normas de carácter general, sin perjuicio de las especiales que pueda establecer cada Cámara, y expresando en relación con las propuestas de designación del personal que las mismas deberán mencionar el cumplimiento de los requisitos de nacionalidad y edad y acompañarse del certificado de salud”


En donde dice “del certificado”, debe decir “el certificado”.

COMMENT 5


(Page 10)

“En lo que hace relación a las disposiciones de orden constitucional y legal referidas a los principales sistemas para la contratación de funcionarios públicos en el país analizado, en el orden federal, que ha examinado el Comité con base en la información que ha tenido a su disposición, puede observarse que las mismas conforman en su conjunto un cuerpo de medidas pertinentes para la promoción de los propósitos de la Convención.”

OBSERVATION OF THE ARGENTINE REPUBLIC:[Translator’s note: This observation does not affect the English text as it concerns a style error in the Spanish text that was appropriately addressed when it was translated into English.]

En donde dice “En lo que hace relación a”, debería decir “Con relación a”.

COMMENT 6


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(Page 11)“En tercer lugar, el Comité observa que en el artículo 15 del Anexo I de la Resolución ex-SFP No. 481/94, se prevé que el proceso de selección podrá estar integrado por las etapas de Evaluación de Antecedentes, Evaluación Laboral, Evaluación Técnica y Evaluación de Personal,...”

OBSERVATION OF THE ARGENTINE REPUBLIC:[Translator’s note: This observation does not affect the English text as it concerns an error in the Spanish text that was appropriately addressed when it was translated into English.]En donde dice “de Personal”, debe decir “de personalidad”.

COMMENT 7


(Page 13)

“With respect to the federal legislature and the federal Legislative Branch, the Committee offers the following considerations:

First, the Committee observes that while Parliamentary Decree DP-43/97 regulates Article 5 of Law 24,600 (Statute and Regime for the Personnel of the National Congress), that regulation, by establishing among the selection criteria, “preference for the status of temporary worker of the Honorable Congress of the Nation of the applicant,” “in order to determine the suitability for entry to the permanent staff,” is equating the status of those who seek to become permanent staff with the status of those who seek to become part of the temporary staff, even though they are two opposite situations, with totally different effects, insofar as joining the permanent staff entails rights of stability in employment and the administrative career service, from which the temporary staff members are expressly excluded, and they carry out tasks which in no case can be attributed to the temporary staff, as arises clearly from the Articles 4 and 49 of the aforementioned law.


The purpose of this paragraph is not clear from the way it is worded. Given that this passage provides the basis for a recommendation (1.1.2 (a) in Chapter III, section 1.1) -which is also not readily comprehensible- we suggest that it be rephrased in a more concise and straightforward manner.

We understand that the sense of the paragraph is to suggest that temporary staff in Congress should not be given precedence when applying for a permanent position (this interpretation is consistent with the quotation chosen by the Secretariat to illustrate its position, taken from the document of Fundación Poder Ciudadano and the Centro de Implementación de Políticas Públicas para la Equidad (CIPPEC), cited on page 13 of the Draft Preliminary Report). If indeed that is the idea we suggest that it be expressed in that way and that the sense of the relevant recommendation also be amended accordingly.

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COMMENT 8


(Page 16)

“Given their usefulness for the purposes of the Convention, especially as regards preventing corruption, the Committee considers it advisable for the country under review to consider implementing programs or induction courses so that those who have recently entered the public service can learn their duties of probity; their responsibility and obligations; ...”


We understand the sense of persuasion and promotion encapsulated in the word “induction”. However, in this instance, since the courses in question concern “learning…” it might perhaps be more appropriate to use the word “training.”

COMMENT 9


(Page 17)

“Finally, the Committee, considering it does not have information on the federal Legislative Branch, the federal Judicial Branch, and the Public Ministry of the Nation, processed in such a way as to allow for a comprehensive evaluation of the results in this field, will make a recommendation in this regard (see general recommendation 4.2. of chapter III of this report).”

(Page 26)

“The Committee considers that the information on the federal Judicial Branch and the Public Ministry of the Nation does not allow it to make an objective and comprehensive assessment of the results in the matter being reviewed. In addition, taking into account that Argentina has not provided information in its response on those entities, the Committee will formulate a recommendation in this regard (see general recommendation 4.2. in chapter III of this report).”


This is a general observation that we suggest be taken into account for all country reports. Its aim is to create favorable conditions and incentives for states to present indicators and statistical information on application of their public policies against corruption (item “results of the legal framework and/or other measures” of the country reports).

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The usual practice of the Committee to make more recommendations to those states, branches of government and/or agencies that make a greater effort to collect objective and measurable information could deter the production of such information and encourage behavior to the contrary, given that if one provides less information to the Committee for consideration one receives only general recommendations.

The Draft Preliminary Report of the Argentine Republic is a case in point, given that, as a result of the fact that the Executive Branch has submitted detailed statistical reports on various matters, the Committee has made two recommendations that specifically target that branch of government (1.1.1 (e), 1.1.1 (f), and 1.2.1 (c)).

Accordingly, we invite the Committee to look for ways to encourage states parties to produce and divulge objective information.

COMMENT 10


(Page 18, first paragraph)

“…principios generales a los que deberá ajustarse la gestión de las contrataciones, entre los cuales los de publicidad,…”

OBSERVATION OF THE ARGENTINE REPUBLIC:[Translator’s note: This observation does not affect the English text as it concerns an error in the Spanish text that was appropriately addressed when it was translated into English.]

En donde dice “entre los cuales los”, debería decir “entre ellos”.

COMMENT 11


(Page 19)

“- Law No. 24,156 on Financial Administration and Oversight Systems of the Federal Public Sector, which provides that the lead agencies of the internal and external oversight system are the Sindicatura General de la Nación (SIGEN) and the Office of the Auditor General of the Nation (Auditoría General de la Nación, AGN), respectively. This law is supplemented by Law 25,233, which at Article 13 creates the Anticorruption Office of the Ministry of Justice and Human Rights, whose powers and authority arise from Articles 25, 45, and 50 of Law No. 24,946, which is involved as inspector in procedures for the procurement of goods and services.

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Simon Walter, 11/17/06,

The text says two recommendations but there are three in brackets at the end of this sentence.


The powers and authority of the Anticorruption Office arise not from Law 24,946, but from Law 25,233 and Decree 102/1999.

Article 13 of Law 25,233 mentions the following with respect to Law 24,946:

“... the Anticorruption Office (...) concurrently with the Administrative Investigations Office shall have use of the powers and authority set out to in the Articles 26, 45, and 50 of Law 24,946.”

Therefore, we suggest that the paragraph be reworded as follows:

“-Law No. 24,156 on Financial Administration and Oversight Systems of the Federal Public Sector, which provides that the lead agencies of the internal and external oversight system are the Sindicatura General de la Nación (SIGEN) and the Office of the Auditor General of the Nation (Auditoría General de la Nación, AGN), respectively. This law is supplemented by Law 25,233, which at Article 13 creates the Anticorruption Office of the Ministry of Justice and Human Rights – whose powers and authority arise from said Law, and from Decree 102/1999 – which is involved as inspector in procedures for the procurement of goods and services.”

COMMENT 12


(Page 28)

Based on the foregoing, the Committee will formulate a recommendation to Argentina (see recommendation in section 2, chapter III of this report), to the effect that it consider the adoption, by the appropriate authority, of a comprehensive regulation on the protection of public servants and private citizens who in good faith report acts of corruption, including protecting their identities, in keeping with its Constitution and the fundamental principles of its domestic legal system, which could include, among others, the following aspects:

Coverage for those who report acts of corruption that may or may not be defined as criminal offenses, but which could be subject to judicial or administrative investigation.

(Page 38)

B. CONCLUSIONS AND RECOMMENDATIONS APPLICABLE TO THE FEDERAL GOVERNMENT

2. SYSTEMS TO PROTECT PUBLIC SERVANTS AND PRIVATE CITIZENS WHO IN GOOD FAITH REPORT ACTS OF CORRUPTION (ARTICLE III, PARAGRAPH 8 OF THE CONVENTION)

(...)

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Adopt, through the respective authority, a comprehensive regulation on protection of public servants and private citizens who in good faith report acts of corruption, including protecting their identity, in keeping with the Constitution of Argentina and the fundamental principles of its domestic legal order, which could include, among others, the following aspects:

- Coverage for those who report acts of corruption that may or may not be defined as criminal offenses, but which may be subject to judicial or administrative investigation.


It might be more appropriate to use the word “protection,” rather than “coverage.”

COMMENT 13


(Page 30)

“En relación con la anterior información, el Comité observa que la relativa a las denuncias recibidas por la Oficina Anticorrupción del Ministerio de Justicia y derechos Humanos, en la que se discrimina el número de denuncias anónimas y el número de denuncias con reserva de identidad,…”

OBSERVATION OF THE ARGENTINE REPUBLIC:[Translator’s note: This observation does not affect the English text as it concerns an error in the Spanish text that was appropriately addressed when it was translated into English.]

En donde dice “y derechos Humanos”, debe decir “y Derechos Humanos”.

COMMENT 14


(Pages 30 to 37)

3. ACTS OF CORRUPTION (ARTICLE VI(1) OF THE CONVENTION)

3.2. Adequacy of the legal framework and/or other measures.

“The provisions criminalizing the acts of corruption provided for in Article VI(1) of the Convention, which the Committee has examined based on the information made available to it, constitute a set of measures relevant to promoting the purposes of the Convention.

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Nonetheless, the Committee considers that Argentina should adapt and supplement certain provisions of its legal framework, taking into account the following observations:...”


En primer lugar, existe un error material en la frase:

“En lo que hace relación a las disposiciones relativas a la tipificación como delitos de los actos de...”

Debería expresarse: “En lo que hace a” o “En relación con”[Translator’s note: The above observation does not affect the English text as it concerns a style error in the Spanish text that was appropriately addressed when it was translated into English.]

As regards the substantive issue, all the recommendations contained in the chapter concerned with Article VI(1) of the IACC (Acts of Corruption) in the Draft Preliminary Report, are plainly based on the text of Dr. Andrés José D’Alessio published in “Adapting Argentina’s Criminal Legislation to the Inter-American Convention against Corruption.”2

Perhaps the Secretariat should take appropriate note of what the author says in said text, in a paragraph cited by the Secretariat on p.38 of the Draft Preliminary Report, which reads:

“There is no similar condition as regards crimes against the public administration. Conspiracy should be defined so as to satisfy what is provided for in the Convention. It is the only situation in which our law proves insufficient in relation to the definitions of the Convention, as all the others, as we have just seen, are contained in the national legislation.”

Accordingly, we suggest that the above-cited text (point 3.2 on page 33 of the Draft Preliminary Report) be amended as follows:

“The provisions criminalizing the acts of corruption provided for in Article VI(1) of the Convention, which the Committee has examined based on the information made available to it, constitute a set of measures relevant to promoting the purposes of the Convention.

2 Office of Assistant Secretary for Legal Affairs, Department of Legal Cooperation and Dissemination of the OAS, 2001 (JL969.5.C6 A3 2001 -Arg- /// OEA/Ser.D/XIX.3 Add.6). This publication contains the reports of the workshop held in Buenos Aires on October 10 and 11, 2000, in the context of the “Project of Support for Ratification and Implementation of the IACAC” (which emerged from the cooperation agreement signed by the OAS and the IDB on March 26, 1999). The workshop was organized by the OAS, the IDB, and the Anticorruption Office of the Republic of Argentina. The complete reports of this workshop can be consulted at the web site of the Anticorruption Office, www.anticorrupcion.gov.ar, by entering “actuación internacional” / “OEA”. The relevant passages of the book cited may be consulted at the following page of the Technical Secretariat of the MESICIC: http://www.oas.org/juridico/spanish/mesicic2_arg_sp.htm

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http://www.oas.org/juridico/spanish/mesicic2_arg_sp.htm

http://www.anticorrupcion.gov.ar/

Nonetheless, the Committee considers that the country under review, in order to improve said provisions in its legal framework, could supplement them, taking into account the following observations:...”

COMMENT 15


(Page 38)

Recommendation 1.1.1 (a), Chapter III, Section 1.1:

“Modify Article 21 of Decree No. 993/1991 (as amended, approved by Resolution SFP No. 299/95), on the National System of the Administrative Profession (SINAPA), and the relevant consistent provisions, so as to rule out the possibility of servants who belong to the non-permanent and temporary staff in the jurisdiction in which a vacancy is to be filled, from participating in the general selection systems, without prejudice to their right to participate in the open selection systems (see section 1.1.2, chapter II of this report).”


The recommendation of this measure is based on a particular opinion of the Technical Secretariat, which the experts of Argentina do not share, that the “general” selection system provided for filling vacancies in the General Grouping of the National System of the Administrative Profession (SINAPA) is not fair because it permits “[…]those who have not entered the public service through a merit-based selection process […] participate in […] the same conditions as those who obtained their jobs through a competitive hiring process.”It should be recalled that SINAPA has three Groupings: (1) General, (2) Scientific and Technical, and (3) Specialized. In these groupings administrative career positions are subdivided vertically into six classification “levels” (represented by letters of the alphabet); these, in turn, are subdivided into different horizontal “grades” (represented by numbers).In the case of the General Grouping, which is the largest in terms of number of employees, the career is divided into 6 levels lettered in descending order from “A” to “F”, the higher letters corresponding to the positions of greatest responsibility (without prejudice to the assignation of executive functions), for which, therefore, greater requirements are set in terms of experience, training, and education; and the lower letters to the positions of less responsibility, for which the experience and training requirements are less demanding. There are also intermediate positions for which greater weight is given to professional training requirements than experience, and vice versa.In this connection, we should draw attention to the fairness of SINAPA and the complementarity of its hiring systems. Given that entry to the civil service is via an open system (level F and level C with a university degree), it is reasonable that vertical promotion (levels E, D, C without a degree, B and A) should not be by an open system but by the general system, at least up to certain levels (candidates to executive positions may apply from both the public and the private sector).

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Nonetheless, the general system also allows persons who have not entered the civil service by the open system to compete for positions: permanent employees of the national (apart from SINAPA), provincial, or municipal administration and nonpermanent members of contractual or temporary staff of the jurisdiction in which the vacancy is to be filled.According to the Technical Secretariat, the fact that competitions are open to nonpermanent staff creates “[…]a privilege […] that facilitates, without justification, entry to the public service of those who, when initially employed in it, were not subject to a competitive process among candidates.” However, it should be noted that the participation of nonpermanent staff from the jurisdiction in which the vacancy is to be filled, and also of permanent staff from other jurisdictions, finds full justification in the need to increase the number of candidates who can apply, so that participation is not restricted exclusively to permanent staff in the respective jurisdiction.Therefore, given that it would be irrational and contradict the idea in the civil service career that open competitions should be held to fill each and every vacancy, it is more than reasonable also to allow the participation of persons who might be equally suitable, whether for their experience as nonpermanent employees in the jurisdiction or because of their experience as permanent employees in other jurisdictions.Indeed, the aim is merely to increase the number of possible applicants in order to make the selection procedure more efficient, thereby seeking to ensure that competitions are not declared void, making it necessary to resort to an open selection process (with the added expense that would incur in financial and human resources).In any case, in the general system, all participants have to undergo the appropriate evaluation to demonstrate their aptitude and that they meet the requirements for the position. In other words, whether or not the permanent employees of the jurisdiction who entered by the open system are the best suited for the positions in contention is something that they will have to show in a general competition.In light of the foregoing, we consider that the recommendation analyzed here is not adequate for meeting the purposes of the IACC, for which reason we suggest its elimination and that Chapter II, Section 1.1.2 of the Report be amended accordingly.

COMMENT 16


(Page 38)

Recommendation 1.1.1 (b), Chapter III, Section 1.1:

“The adoption, by each of the political authorities to which reference is made in Article 5 of Resolution ex-SFP No. 481/94, of a Manual of Requirements with respect to the job descriptions for all staff positions of the respective entity, and make any adjustments needed for this purpose to the provisions of that Resolution and the consistent provisions (see section 1.1.2, chapter II of this report).”


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With respect to the suggestion of this measure, the experts of Argentina consider that the existence of a manual of requirements such as the one mentioned is adequate for meeting the purposes of the IACC. Nonetheless, it should be noted that this recommendation principally takes account of Resolution ex-SFP 481/94, which only applies to hiring processes in the SINAPA and, supplementarily, to other labor collectives.In that connection, it should be mentioned that the necessary consideration has not been given to the “General Collective Labor Agreement for the National Public Administration” (ratified by Decree 214/06 of February 27, 2006), in the legal framework that governs hiring systems in the executive branch.Particular note should be made of the provisions of article 58 of said decree: “The State, as employer, shall establish common profiles containing the minimum requirements, and designed to demonstrate a basic set of knowledge, skills and aptitudes, to cover vacancies of a similar or equivalent functional nature. The vacancy profile must specify the psychophysical skills and aptitudes necessary for performance of the work, in order to facilitate candidacy applications by workers with disabilities.” It is also worth noting that the aforesaid General Collective Agreement encompasses a large number of groupings of public-sector employees, including those in the SINAPA system and that, according to Article 5 of that agreement, “in any conflict of rules between the Collective Agreement and Sectoral Agreements, the rule in force in the General Collective Agreement, which is recognized precedence, shall apply.”It should also be pointed out that the federal executive branch, through the Office of the Undersecretary of Public Management, has been occupied with the important task of defining job profiles for administrative positions in SINAPA, which are borne in mind not only before the vacancy is announced but before it even arises.3 As a result of the aforesaid General Collective Agreement, therefore, we expect to see even more progress in the preparation of job description manuals. Accordingly, we consider that the recommendation on this measure should be eliminated or amended.

COMMENT 17


(Page 38)

Recommendation 1.1.1 (e), Chapter III, Section 1.1:

“Adopt the measures necessary to ensure the effective use of merit-based selection procedures (see section 1.1.3, chapter II of this report).”


With respect to the suggestion of this measure, we should mention that while it is indeed based on the information provided by the Argentine state on the problems encountered by the executive branch in

3 The “families of profiles” for the areas “Legal Affairs and Investigations”, “Financial Administration Service,” and “Personnel and Human Resources” are available for consultation on the Internet at: http://www.sgp.gov.ar/contenidos/onep/facilitadores/paginas/seleccion/seleccion.html

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http://www.sgp.gov.ar/contenidos/onep/facilitadores/paginas/seleccion/seleccion.html

ensuring the effective application of the selection systems provided for in the legal framework, the broad and imprecise reference to this issue does not reflect the special circumstances that were involved, nor that, following approval of legal framework, the system was effectively applied in the majority of cases. Furthermore, since those circumstances were overcome the situation is gradually being normalized and new competitions have been opened for filling vacant positions in the public administration.Based on the foregoing we believe that it would be appropriate to reformulate the wording of this recommendation so that it refers more specifically to the need to continue to move forward with the regularization of the position of public-sector employees, as the economic crisis that gave rise to the prohibition against filling vacancies in the public administration passes.

COMMENT 18


(Page 39)

Recommendation 1.1.1 (f), Chapter III, Section 1.1:

“Adopt the measures needed to promote the preferential use of the selection systems that Article 21 of Decree No. 993/1991 (as amended, approved by Resolution SFP No. 299/95), on the National System of the Administrative Profession (SINAPA) calls “open” to fill vacancies within the purview of the SINAPA (see section 1.1.3, chapter II of this report).”


As regards this measure, first it should be noted that a certain contradiction exists with the measure recommended in subsection a), to the extent that the latter proposes the closure of the general system, while in this instance it is suggested that all the selection procedures be “open”.Second, we refer back to our observations in connection with recommendation 1.1.1 (a), in particular with respect to: (1) the fairness and complementarity of the “general” and “open” systems for filling vacancies in the SINAPA; (2) the need to implement an administrative career system that ensures both the efficiency of hiring procedures and the suitability of the persons selected; and, (3) the irrationality of holding open competitions for filling each and every vacancy in the public administration.Third, we note that the vagueness of the recommendation, inasmuch as it suggests promotion of the preferential use of open selection systems, would constitute a serious obstacle to its practical implementation, since neither the open system nor the general system are exempt from the discretion or preferences exercised by those responsible for carrying out said procedures, whose use is imposed as a mandatory requirement by the legal framework. Based on the foregoing, we believe it would be appropriate to eliminate this recommendation.

COMMENT 19

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(Page 40)

Recommendation 1.1.5., Chapter III, Section 1.1:

“Implement programs or induction courses so that those who have recently entered the public service can know their duties of probity; their responsibilities and obligations; and the consequences they face for breaching them (see section 1.1.2, chapter II of this report).”


As regards this recommendation, we note that it could exceed the framework of the provisions contained in Article III(5) of the IACC selected for this Second Review Round. Rather, this recommendation would appear to have more to do with the substantive contents of Article III(3) of the IACC, which was not selected for review either in this or the previous round.Based on the foregoing considerations, we believe it would be appropriate to eliminate this recommendation.

COMMENT 20

(Page 40)

Recommendation 1.2.1 (c), Chapter III, Section 1.2:

“Adopt, by the appropriate authority, the measures needed to favor the use of public tenders or competitive public biddings as a general rule for selection of the co-contractor in the federal Executive Branch (see section 1.2.3, chapter II of this report).”


With respect to this measure, we believe that it would be appropriate to reword it by adding the following clarification: “bearing in mind the provisions contained in Article III(5) of the IACC, which establishes that one of the principles to be assured by government systems for procurement of goods and services is efficiency, and in Decree 1023/01, which expressly governs the situations in which procurement through direct contracting is permitted.”

“Adopt, by the appropriate authority, the measures needed to favor the use of public tenders or competitive public biddings as a general rule for selection of the co-contractor in the federal Executive Branch, bearing in mind the provisions contained in Article III(5) of the IACC, which establishes that one of the principles to be assured by government systems for procurement of goods and services is efficiency, and in Decree 1023/01, which expressly governs the situations in which procurement through direct contracting is permitted (see section 1.2.3, chapter II of this report).”

COMMENT 21

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(Page 41)

Recommendation 1.2.2 (c), Chapter III, Section 1.2:

“Adopt, by the appropriate authorities of the Senate and Chamber of Deputies measures necessary to favor the use of public tenders as a general rule for the selection of the co-contractor in the Legislative Branch (see section 1.2.3, chapter II of this report).”


With respect to this measure, we believe that it would be appropriate to reword it by adding the following clarification: “bearing in mind the provisions contained in Article III(5) of the IACC, which establishes that one of the principles to be assured by government systems for procurement of goods and services is efficiency, and in Decree 1023/01, which expressly governs the situations in which procurement through direct contracting is permitted.” “Adopt, by the appropriate authorities of the Senate and Chamber of Deputies measures necessary to favor the use of public tenders as a general rule for the selection of the co-contractor in the Legislative Branch, bearing in mind the provisions contained in Article III(5) of the IACC, which establishes that one of the principles to be assured by government systems for procurement of goods and services is efficiency, and in Decree 1023/01, which expressly governs the situations in which procurement through direct contracting is permitted (see section 1.2.3, chapter II of this report).”

COMMENT 22


(Page 41)

1.2.3. Strengthen the systems for the procurement of public works in the federal Executive Branch, the federal Legislative Branch, the federal Judicial Branch, and the Public Ministry of the Nation, supplementing the provisions in that area. To carry out this recommendation, the Republic of Argentina could take the following measures into account:

a) “Consider the preparation of preliminary studies on the impact of the public works to be carried out, considering aspects such as the valuation and devaluation of neighboring properties; the environmental consequences; and the cost-benefit ratio of such works.”

b) “Consider the adoption and implementation of rules and mechanisms that ensure that the State will collect the appropriate tax for the valuation of properties adjacent to the works, and that

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guarantee the payment of any costs it should bear for the devaluation of surrounding properties and possible environmental degradation.”


In the matter of measures a) and b) suggested by the Secretariat for implementing recommendation 1.2.3 and in keeping with the observation of the Republic of Honduras in the review of the Draft Preliminary Report, the Argentine Republic proposes that the inclusion of said measures be reconsidered since, insofar as they refer to planning policies for public works and their impact on the value of nearby properties, they could involve aspects that exceed the framework of analysis of the points addressed in this round.

COMMENT 23


(Page 41)

1.2.4. Strengthen the systems for the procurement of public works in the federal Executive Branch, the federal Legislative Branch, the federal Judicial Branch, and the Public Ministry of the Nation, supplementing the provisions in that area. To carry out this recommendation, the Republic of Argentina could take the following measures into account:

(...)

d) Consider provisions that make it possible to guarantee that the public works to be executed will have the necessary authorizations in a timely fashion, such as licenses or permits for construction, land use or use of public space, and environmental impact, such that the execution of the work not be delayed by failure to secure them, and that there be no increase in costs on account of this.


In relation to this measure suggested by the Secretariat for implementing recommendation 1.2.3, we should mention that the power to inspect and monitor compliance with standards on the use of public spaces and the soil, and to approve local projects and environmental impact plans, rests with the various local authorities

Therefore, given that the power to issue the necessary approvals is in the hands of local authorities, the federal state would be unable, without trespassing on the jurisdiction recognized to local systems by the National Constitution, to adopt “provisions that make it possible to guarantee” that those approvals are issued.

COMMENT 24

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(Page 48)

“The Committee takes note of the satisfactory consideration by Argentina, of the measure in the recommendation that refers to using sworn statements on net worth to detect cases of illicit enrichment, as regards the actions carried out in this regard by the Anticorruption Office.”


We suggest the addition of “and conflicts of interest”.

“The Committee takes note of the satisfactory consideration by Argentina, of the measure in the recommendation that refers to using sworn statements on net worth to detect cases of illicit enrichment and conflicts of interest, as regards the actions carried out in this regard by the Anticorruption Office.”

COMMENT 25


(Page 53)

“El Comité toma nota también de la necesidad de que el Estado analizado de atención adicional a la citada recomendación, en cuento se refiere a la primera de las medidas que la conforman.”


Error material. Cambiar “en cuento” por “en cuanto”.

COMMENT 26


(Page 53)

“The Committee also takes note of the need for Argentina to give additional attention to that recommendation, as regards the first measure to which it refers.”


17

We do no understand the reason (which is not expressed elsewhere in the Draft Preliminary Report) for this draft recommendation of the Committee concerning the need to give additional attention to the recommendation.

COMMENT 27


(Page 53)

- “El Proyecto de Plan de Acción constituye una propuesta de políticas de Estado elaboradas a través de una amplia deliberación y con activa participación de numerosos actores sociales.

OBSERVATION OF THE ARGENTINE REPUBLIC:[Translator’s note: This observation does not affect the English text as it concerns a style error in the Spanish text that was appropriately addressed when it was translated into English.]

Error material. Cambiar “elaboradas” por “elaborada” (se refiere a “una propuesta”).

18

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