According to the Procurement Laws, the public entities are bound to include in the tender rules, all the legal, technical and economic requirements that the bidders shall meet for purposes of evaluation, and to award the contract. Based on these requirements, the bidders shall prepare their technical and economic proposals.

Yes, it is an option as prequalification helps the bidders to prepare their own proposals in a less formally manner than the normal proposals.

In the prequalification stage, the calling entities will review all the technical and legal requirements that the applicant must comply, as well as financial conditions.

For instance, a prequalification stage is regulated under the PPP Law.

On the other hand, within the energy sector, it is common that tender processes include a pre-qualification stage allowing the calling agency to determine if the interested bidders meet the criteria regarding technical, financial, performance and experience requirements prior to the formal submission of the corresponding proposals. In the event that the interested bidders do not meet such criteria, they would not be able to submit a proposal and continue participating within the corresponding bid. Within the prequalification stage, the interested bidders submit the required prequalification documentation, as requested in the tender rules. The calling agency will have a period of time to review and validate if the submitted documents comply with the prequalification requirements provided in the tender guidelines. In the event that the calling agency determines that some information or requirement is missing, such agency will require to the interested bidders to submit additional documentation or clarifications. On the other hand, if the calling agency considers that the prequalification documents meet all the requirements, the corresponding agency will issue a prequalification certificate, allowing the interested bidders to submit proposals.

Prequalification is becoming more commonly used by all agencies, in many different projects.

Yes, as stated above, the SFP may temporally impose penalties or even impose a ban on companies that breach the Works Law or the Acquisitions Law. The blacklist period shall not be less than three months and not more than five years, and the SFP will publish the blacklist in the Official Federal Gazette and in CompraNet. The SFP publishes in its web page the bidders’ blacklist (http://directoriosancionados.funcionpublica.gob.mx/SanFicTec/jsp/Ficha_Tecnica/SancionadosN.htm).

Yes, the companies that are involved in the set-up of a procurement procedure will be excluded due to a conflict of interest.

In principle, the following companies are excluded from the procurement procedure: (i) companies that are linked by a partner or common associate and that submit proposals in the same bidding process, (ii) companies that were involved in the set-up of the procurement procedure, and (iii) companies that have used privileged information.

Yes, participation in the form of a consortium is allowed in tender procedures but not in restricted invitations and direct award procedures. The bid rules regulate, in accordance with the consortium provisions contained in the law, how two or more parties may combine to submit a bid and develop the project or operate a contract and how many offers they can present in the same process. For instance, under the Acquisitions Law a bidder may only present one offer; a bidder may only participate in one consortium.

Also, competition issues will also arise if the consortium parties affect fair competition by submitting a joint proposal.

If the bid call is a national one, then only Mexican incorporated entities may participate in the bid process. If the bid call is international, then Mexican and non-Mexican entities may participate in the process.

Pursuant to the Works Law and the Acquisition Law, there is no need to incorporate a new legal entity to participate in a public bid or once the contract is awarded, if participating through a consortium.

On the other hand, the PPP Law establishes that a new legal entity must be incorporated (a special purpose vehicle or “SPV”), but after the contract is awarded. In some projects, such as tenders to award gas transportation service contracts, and port concessions, bidders must obtain clearance from competition authorities to be able to submit a proposal.

In case of a bidder consortium, the preliminary registration will apply to all the members. If the members of a bidder consortium change, the new member shall submit the technical proposal again, including all the documents and information required.

Furthermore, the members who separate from the bidder consortium could participate individually and may present all the documents and the information in the technical offer.

In connection with tenders called by the public agencies involved within the Mexican energy sector, the rules governing the changes of the bidder consortiums are typically set forth in the respective tender rules. Such changes usually require the consent of the calling agency.

Yes, the limitation for participation of related bidders in the same procedure with competitive bids applies and is established in the Procurement Laws and in their regulations; also the limitation shall be stipulated in the tender rules. 

For instance, in terms of the Works Law, the limitation applies for the companies that are linked by a partner or common associate and that submit proposals in the same bidding process. 

In another example, in accordance with the Hydrocarbons Law, the tender rules to the award hydrocarbons exploration and extraction contracts provide as a cause to reject proposals when a company submits more than one proposal for the same contractual area, either (i) individually; (ii) through the direct or indirect participation in more than one joint bidder (i.e. a consortium); or (iii) individually through companies, either directly or indirectly, over which a different bidder has the control or belong to the same business group of a different bidder. Also, in this case, a bidder may not participate in more than four consortiums.

In principle, there is no special regulation or a special requirement for a foreign company to participate in a procurement procedure. However, in some cases, public tenders are called under FTAs in which case only companies that belong to a FTA country can participate. In other cases, tender processes are national meaning that only Mexican companies (companies established under Mexican laws) can participate.

Nevertheless, for instance, the PPP Law establishes that the public-private partnership agreements can only be entered with Mexican companies. In a more specific way, the tender rules will indicate other requirements that the company must meet. This is also applicable under the Hydrocarbons Law since, notwithstanding that foreign companies are allowed to participate in a tender the CNH is only entitled to enter into the respective contracts with companies incorporated under Mexican laws.

Furthermore, all documents to be submitted before the corresponding public agency and which are signed by foreign public officers, must be legalized or apostilled in order to be deemed valid in Mexico. As a general rule, any document in another language must be translated into Spanish and certified by an expert translator in Mexico.