After the Organic Law of the National Public Procurement System -LOSNCP- was published in the Supplement to the Official Gazette 395 of August 4, 2008, that is, after approximately 14 years, we can establish that there is a change within government procurement, for some it has been positive and for others negative, taking into account each particularity of the contracting processes.
This norm brought concepts and technical criteria that were little known in the public sector but were of mandatory compliance, such as the establishment of Dynamic Procedures (Electronic Catalog, Electronic Reverse Auction, Low Amount) and Common Procedures (Low Amount, Quotation, Bidding) for the acquisition of goods, provision of services and execution of works, However, this regulation went further and introduced Special Regime processes, which at first sight may seem to be direct or directed contracting, but although they are faster in terms of time saving, they follow the common rules for all contracting processes established in the LOSNCP.
Establishing that there are standardized and non-standardized goods and that from this classification dynamic and common processes are born, made it mandatory for public sector institutions to be trained and certified in public procurement issues, especially in the management of the portal, since with them they could access it and create and carry out procurement processes in a more transparent manner, since by being public they leave aside those bad practices of secrecy and obscurity when awarding a process.
It should also be clear that, as mentioned above, there are special regime processes that can be confused with direct contracting, thus violating the principle of transparency and concurrence, but nevertheless, they must be governed by all the rules of the LOSNCP and other regulations, and it is necessary to state that these are carried out specifically for the acquisition of established goods and services, such as correspondence services, legal advice, works of art, pharmaceuticals, etc.
We will refer briefly to the latter, since the General Regulations to the Organic Law of the National Public Procurement System -RGLOSNCP- have been amended by Executive Decree No. 377 of January 27, 2021, by the President of the Republic.
Since pharmaceuticals are goods of vital importance for the public health system, their acquisition is contemplated in numeral 1 of Article 2 of the LOSNCP which establishes that: “The acquisition of pharmaceuticals and other strategic goods determined by the national health authority entered into by the authorities that provide health services, including public social security agencies. When its acquisition is made through international organizations and optimizes public expenditure, guaranteeing the quality, safety and efficiency of the goods, it may be privileged over the national procedures for the acquisition of goods”.
The LOSNCP has always been clear in establishing who are the parties obliged to purchase drugs intended to provide health services (Ministry of Public Health, Social Security Institute of the Armed Forces, National Institute of Social Security of the Police, Ecuadorian Institute of Social Security); however, the RGLOSNCP has varied over the years in terms of the way in which these drugs are purchased.
Thus, this reform establishes several significant changes in the purchase of drugs. For example, Article 76 establishes the obligation to create a planning at the time of purchase of medicines for the entities belonging to the Integral Public Health Network -RPIS- focused on the principles of quality, safety, efficacy, ensuring the users of public health systems access to them, in a convenient time without delays due to unusable processes, prioritizing the needs of the citizens.
Another of the reforms that can be found is in article 79 of the aforementioned legal body, since it deals with the control of the traceability of the drug and establishes that when the product is going to be acquired, it must be monitored that the quality and sanitary controls are complied with throughout the transfer of the good; However, article 77 of the amended Regulation established that the transfer of the product will be monitored and the compliance with the quality controls in the storage, distribution, delivery or dispensation of the drug will be verified, which at first sight could be understood as a greater control of the good; however, the intention of the executive is to include all these aspects in the concept of ACQUISITION.
While it is true that pharmaceuticals, being a good that is acquired by Corporate Reverse Auction, because they are considered standardized goods (i.e. they have specific characteristics), their technical committee was made up of the highest authorities or their delegates from the Ministry of Public Health, Social Security Institute of the Armed Forces, National Institute of Social Security of the Police, Ecuadorian Institute of Social Security, in which the Legal Director of the National Public Procurement Service - SERCOP - acted as secretary; However, with the last amendment to the RGLOSNCP, the Interinstitutional Committee for executing Corporate Procurement procedures was created, which will be integrated by the aforementioned institutions, with only one change, that this committee will be chaired by the highest authority or his delegate from SERCOP.
In the reform of this RGLOSNCP it is mentioned in a technical and positive way that the technical specifications of the drugs and strategic health goods will be elaborated by the National Health Authority - ARCSA - and that they will be incorporated in a mandatory way to the model specifications that will be elaborated by SERCOP, making it clear that the competent authority is the one that will provide the necessary input to this inter-institutional committee to verify the form of the purchase process, since the substance, i.e., the characteristics of the drug, will be prepared by the professional experts in the subject of the institution specialized in the subject.
The above will serve to obtain a catalog of drugs that are available to the institutions that make up the -RPIS-; however, what happens when a drug is not in this catalog? Institutions may make centralized purchases as long as the drug is approved and included in the National List of Basic Medicines and may opt for an institutional reverse auction or purchase from a single drug supplier, depending on the characteristics of the drug.
With this we can conclude that since the Organic Law of the National Public Procurement System and its General Regulations entered into force, government procurement, especially in the area of medicines, has been transformed and will continue to be transformed, since it must adapt to new technological trends and to the need of citizens to obtain their requirements in a more immediate and transparent manner, Therefore, this reform gives the institutions that make up the -RPIS the opportunity to supply all the necessary medicines to provide a better health service to citizens in a more agile, timely and transparent manner, thus complying with the constitutional principles of public administration established in the Constitution of Ecuador.
