Declaration of The Emergency State
1. Declaration of the emergency state
It is a system of exemptions regulated by the Article 137 of the Peruvian Constitution, which is offered by the President of the Republic with the Council of Ministers Agreement, which applies for a specified period, throughout the national territory, or part of it, and reporting to the Congress or the Permanent Commission, in case of peace or internal order disturbance, a catastrophe or serious circumstances that affecting the life of the nation.
The applications and procedures must be generated timely and within the parameters of the procedures established by Law.
All DEE, are official only by the President of the Republic with the consent of the Ministers Council.Procedure for the requirement of the Emergency State Declaratory
It must follow the procedure given by the DS N º 058-2001-PCM, according to the Article 8º of the Law Regulations of SINADECI and amending the DS N º 069-2005-PCM, which sets out the of technical and legal conditions to be followed by the Local Authority under the DC Committee of the critical area or affected jurisdiction.
In relation to the l D.S Nº 058-2001-PCM, according to the article 1º:
Extension of State of Emergency and budget measures
- DC Committee Authority of the Local Government (Provincial or District): Canalize its request through the DC Regional Committee.
- DC Regional Committee: Through the respective authority, evaluates the feasibility of the application and, if it´s justified raises it to INDECI.
- EVAR or EDAN Report: Application that must attach the Risk Estimates-EVAR in cases of imminent danger (high risk) and EDAN Damage Evaluation, in case of occurrence of post-impact damage provided by the Civil Defense Regional Committee and of entities and sectors involved. Includes specific details of the requirements for rehabilitation.
- INDECI: With opinion of the national sectors involved, where the application comes from, refers to the PCM the DS project which states: DEE time limit, geographical scope and sector entities that must be exempted from the selection processes. It attaches Technical Report about the actions to face the emergency.
- In relation to the DS N º 058-2001-PCM, according to the Article 2º:
- Ministries and OOPPDD Titular: can request the DEE and canalize it it through INDECI.
- PCM: Exceptionally due to circumstances or major disasters, officially will present the DEE application to the Council of Ministers.
They can be requested by the entities responsible for executing the actions to deal with the emergency, rehabilitation and / or reconstruction, accompanied by technical reports of each entity in support of the request before it expires 60 days of the time limit.
Process Diagram of DEE
Emergency Situation Declaration-DSE
The Emergency State is a legal and administrative connotation figure, included in the state legislation on acquisitions matter, which brings the establishment of an exoneration regarding the selection processes established to facilitate the goods or services acquisition that enable meet the emergency occurred.
This legal provision which empowers the State Entities (Sectors, OPD\\\\\\\\\\\\\\\\´s, Regional Governments, Local Governments) which is contemplated in the Article 128 of Chapter XIII Exonerations of the Selection Process of the Legislative Regulation Decree No. 1017 which approved the Government Procurement Law (01.01.09)
In the case of Regional and Local Governments will be approved through Regional Agreements and the correspondent Municipal Council ones.
In the case of Sectors and OPD\\\\\\\\\\\\\\\\´s will be approved by Departmental Ministerial Resolutions and Departmental Resolutions.
In this case, the entity is exempt from the administrative record processing and can order the execution of what is strictly necessary to remedy the event occurred and satisfy the need that has occurred, without executing the formal requirements of the current Supreme Legislative Decree.
“ In case of catastrophic events, situations that involve a serious danger, or that affect the national defense and security, the Bank must immediately have what is strictly necessary to prevent and abid the requirements generated as a direct consequence of the event occurred and also satisfy the supervening needs. Subsequently, must convene the respective selection processes. When is not appropriate to make a further selection process in the respective Legal Technical Report it should be based the reasons that motivate the final contract.
All the contracts made to deal with an emergency situation shall be regularized within the ten next (10) working days after completed the goods delivery or the first goods delivery or the first delivery in the case of supplies, or the beginning of the service provision or the beginning of the work execution, including the process in the Annual Procurement Plan of the Entity, publishing the resolution or correspondent agreement and the technical and legal reports supported on SEACE, this information must be referred to the Republic General Comptroller and also referring the other contractual documents that correspond according to the services execution state.
Declaratory of the Emergency State and Emergency Situation
Taking into consideration the normative basis of both institutions of law, it is noted that the emergency
is a mechanism provided by the contracting and procurement rules state that an entity can apply you have to act immediately because of catastrophic events purchase or hire directly what is necessary to alleviate the situation and satisfy the need that has occurred, which is referred to in Article 128 of Chapter XIII Waiver of Selection Process of the Rules of Legislative Decree No. 1017 which adopted the Law on Government Procurement (01.01.09)
Instead, the Emergency State
is an Exception Regime that emanates from the Constitution, prepared by the President of the Republic through Supreme Decree, which applies for a specified period that can be extended, in whole or part of the country in case of peace disturbing or the internal order, a disaster or serious circumstances that affect the Nation life. Consequently, too immediatelyabid an emergency situation and deal with it properly is not necessary to declare it as an State of Emergency so that an entity can hire the services or acquire the assets that are necessary because to do so must only use the legal mechanisms provided to hire (understood as emergency exemption)Declaratory of the Emergency State Approved between 2001 – up to now
(See the relation of DEE
The Consolidated Table attached as situational state model of the State of Emergency Declarations in the respective year, must keep the same structure, but we recommend to add a LINK to the website about the Legal Regulation of the Official Journal El Peruano to see the published legal device.