Companies in Mexico should enhance their compliance programs in light of the criminal reform.
February 20, 2018.
Dear clients and friends,
On February 2nd the international public bid number LT/SENER-01-2018 (the "Bid") issued by the Ministry of Energy ("SENER") was published in the Official Federal Gazette. The Bid aims to award a Contract for Management and Operation (the "Contract") of the Transmission Infrastructure to Interconnect the Baja California Interconnection System (BC) with the National Interconnection System (SIN).
Below you will find the most relevant aspects of this Bid:
1.- The Bid aims to award the Contract for the construction and installation of a in high voltage direct current (HVDC) transmission line, with an approximate length of 1,400 circuit kilometers and with 1,500 MW of transmission capacity. Additionally, the Bid is for the construction and installation of two voltage converter stations (VSC) that will be located in Seri, State of Sonora and Cucapah, State of Baja California. Both stations will have a transformer ratio of ±500 kV to 400 kV.
2.- International and domestic companies are entitled to participate in the Bid provided that they demonstrate their experience and technical and financial capacity. In this regard, participants are subject to a prequalification process.
3.- To register as a prequalified participant in the Bid, the participant must meet, inter alia, with the following requirements: (i) its corporate purpose includes its direct participation in construction, operation, and maintenance of energy infrastructure projects or the funding of infrastructure projects, (ii) it has a minimum net capital of $6'000,000,000.00 (Six billion of Mexican pesos, (iii) during the last 10 (ten) years, it has executed a contract that evidences its experience in infrastructure projects.
4.- In the event the prequalified participant submits its technical and economic proposal, it must post a bid bond in the of $462'500, 000. 00 pesos (Four hundred sixty-two million five thousand pesos).
5.- The most relevant dates included in the Bid calendar are the following:
Activities Date or Period Call to bid February 2,2018 Publication of the Bidding Guidelines Basis and the Contract February 2,2018 Registration of Participants From February 8 to April 23, 2018 Access to the Data Room From February 12 to August 10, 2018 Registry of Prequalified Participants From May 2 to May 25, 2018 Receipt of Technical and Economic Proposals August 17,2018 Opening of Technical and Economic Proposals August 17,2018 Publication of the Opinion regarding the Technical Proposals September 12,2018 Opening of Economic Proposals and Award September 14,2018 Deadline to execute the Contract November 16,2018
For more information, please contact our experts:
Edmond Grieger, Partner:
+ 52 (55) 5258-1048, email@example.com
Ariel Garfio, Senior Associate:
+ 52 (55) 5258-1048, firstname.lastname@example.org
On February 10th, 2014, section A of article 102 of the Mexican Constitution was amended in order to transform the Procuraduría General de la República (Attorney General's Office) into an independent public entity called Fiscalía General de la República ("FGR"). Unfortunately, after almost 4 years, it hasn't yet come into force.
On January 31st, 2018, more than 300 civil society organizations, through a group called #Reforma102, presented in Congress a citizens' amendment initiative to modify the same section A of article 102 of the Mexican Constitution. Such amendment aims to promote the creation of an FGR that effectively addresses Mexican challenges in terms of impunity, autonomy, competence, and impartiality of the criminal justice system stakeholders.
Specifically, the proposals of the citizen initiative that we consider of special interest to our clients are the following:
i) That the Attorney General in charge of the FGR has real independence and autonomy, so that he or she can (a) responsibly exercise the FGR's legal power, (b) resist political pressure, and (c) be guided by truth and legality;
ii) That the current Attorney General of the Procuraduría General de la República does not automatically become the Attorney General of the FGR, but that such position be filled as established in the Mexican Constitution. This is in order to ensure that the new FGR is not just a change of name that does not change Mexico's legal system;
iii) That the Attorney General has an operational efficiency that ensures an effective investigation and prosecution of crimes that can meet the challenges of Mexico's criminal reality; and
iv) That the Attorney General of the FGR can be removed for criminal liability or serious administrative misconduct, in accordance with the National Anticorruption System ("NAS").
In light of this proposal, it is relevant that companies have in mind that they could be subject to corporate criminal liability.
The National Code of Criminal Procedures provides that companies will be liable for crimes committed on their behalf or for their benefit by their legal representatives or agents (de facto or de jure); or when people under the authority of the companies engage in criminal conducts when the company did not exercise proper control over them.
Proper control is the principal defense of companies against criminal liability. It is understood that companies do not have proper control when they: i) do not have mechanisms to prevent and detect crimes; ii) in spite of having such mechanisms, they are not adequate; and iii) do not adopt effective and appropriate control mechanisms that aim to prevent the commission of crimes.
Therefore, the Federal Criminal Code provides that a company can now be liable for, among other things, drug trafficking, influence peddling, bribery, fraud, concealment, money laundering, environmental crimes, copyright crimes, kidnapping, human trafficking, and tax fraud.
In order for companies to mitigate these risks, we highly recommend that our clients update and strengthen their compliance programs to ensure proper control inside their companies, and to avoid the occurrence of any conduct sanctioned by the criminal law. This prevention is also closely related to risk mitigation regarding corruption matters.
To obtain additional information contact our experts:
Diego Sierra, Partner:
+ 52 (55) 5258-1039, email@example.com
Pablo Fautsch, Associate:
+ 52 (55) 5258-1027, firstname.lastname@example.org
To read more, please download PDF