CATALINA BINDER Lawyer, member of the Infrastructure Policy Council (CPI)
The construction of public works is an activity prone to conflicts, especially due to aspects of its development and execution. Often these arise in issues such as the adjustments that the projects require to be executed, the extension of the deadlines that are normally insufficient, additional works for the fulfillment of the objective, etc.
In Chile, these conflicts are brought before the ordinary courts, which take an average of 10 years to resolve. This not only generates uncertainty, but the lack of a timely solution to disputes about works in progress often paralyzes them, or at least delays them, with all the social cost that this entails, in addition to increasing project costs. Even more, it can interfere with free competition within this market, making it difficult for smaller construction companies to enter, since only large companies have their backs to resist the costs that all this apparatus carries with it. This has been declared by the Court of Defense of Free Competition itself in its Normative Proposition 20/2020.
The successful solution that has occurred in international institutions such as FIDIC, ICC, NEC and in numerous countries, is the incorporation of Early Dispute Resolution Mechanisms (MRTC), creating “disputes” or technical panels of experts. These accompany the parties from the beginning of the contract, to follow the progress of the project execution, in order to solve the discrepancies as soon as they occur, urging the parties to have a collaborative spirit and resolve the differences in a way efficient, that is, early and with solutions that generate benefits for the work.
In Chile, MRTCs have been used in Codelco and Metro, and with some variants in the public works concession system. Today there seems to be a consensus that the ambitious and necessary program for the development of direct or non-concessioned sectorial public works -including not only the construction of public works MOP, but also those tendered by the Health Services and the Serviu-, requires, For its adequate compliance, of contracts with new collaborative standards, which include, at least, MRTC.
This has been demonstrated with the serious work of a transversal table, under the wing of the Construction Institute -with representatives of the MOP, the CChC and various academics and experts with a great professional trajectory-, which resulted in a proposal to modify the Contract Regulations of Public Works, incorporating the mechanism of expert panels, the text of which has been in its final stage of validation in the MOP for some months.
This project is of great importance, since it is necessary to generate greater confidence and interest in the participation of private parties in the construction of public works, and even more than that, so that the public and social interest involved in the execution of works of this nature do not be unnecessarily delayed due to the lack of mechanisms to resolve disputes early.
We hope that the MOP can soon implement this initiative, which was the fruit of long, serious and independent work. We are sure that this will be done, for a better and more timely development of the public infrastructure of our country, also in line with the recommendations that the Pacific Alliance delivered to said ministry in December 2020.