In public tendering processes, there is a legal vacuum that permeates those companies that are born or consolidated through a corporate merger in accordance with Article 172 of the Commercial Code, regarding the transfer of "experience" between merging companies, which is a requirement for contracting with public entities.
Given the above, the Superintendence of Companies has stated, through Concepts 220-121399 and 220-095721, that there is the possibility of recognizing the "contractual experience" that the absorbed company has had, in the absorbing company, since the merger process of companies includes the transfer of obligations, rights, liabilities, and assets of the absorbed company in favor of a new company or the absorbing company. However, this possibility of recognizing "contractual experience" is subject to the position that the state entity takes in a tendering process.
Given the above, it is important to note that in this situation of "State interpretation," there are no requirements or guidelines that allow me to identify on what elements the entity bases its decision to accept or not the experience obtained by the bidder through a merger process by creation or absorption. Therefore, we will make some conceptual clarifications that allow a broad interpretation of compliance with the "experience" requirement.
The first clarification in this regard is to keep in mind the definitions of company merger and experience, and how they can be valid for a public tendering process: We understand merger, under the guidelines of Article 172 of the Commercial Code, as: "A merger occurs when one or more companies are dissolved, without being liquidated, to be absorbed by another or to create a new one." This merger includes all rights, obligations, assets, liabilities, know-how, goodwill, and any other matter inherent to the activities of the absorbed company, as stated in Article 178 of the Commercial Code: "(...) the absorbing company acquires the assets and rights of the absorbed companies, and undertakes to pay their internal and external liabilities. These rights and obligations include, among other things, the transfer of employees, debts, tangible and intangible assets, licenses, contracts, legal actions, distinctive signs, patents, works, goodwill, know-how, experience in the development of the corporate purpose. Therefore, the merger grants the absorbing company all the direct and indirect elements that the absorbed company had when it was operational.
Experience, on the other hand, according to the manual of qualifying requirements issued by Colombia Compra Eficiente, is defined as: "Experience is the knowledge of the bidder derived from their prior participation in activities equal or similar to those provided in the object of the contract." Therefore, experience corresponds to that account of activities executed by the entrepreneur that are similar, related, or equal to the object of the state contract, without there being a maximum limit on such activities. However, these activities can be understood as public or private contracts, whether national or foreign, and as proof of this, we would have the various executed contracts, as well as the documents attached to them, financial statements, business reports, and the employees who participated in such activities.
Now, according to Law 1150 of 2007, in its Article 5, numeral 1, it states that the legal capacity, experience, and financial capacity of bidders to a tender will be taken into account:
1. The legal capacity and the conditions of experience, financial capacity, and organization of the bidders will be subject to verification of compliance as qualifying requirements for participation in the selection process (...)" From the account analyzed above, we can infer that, from corporate mergers, all the elements of one company are gathered into another, from its activities, corporate purpose, employees, debts, assets, goodwill, know-how, experiences that the company has had, and that, given the above, it is clear that the experience of the absorbed company is subsumed into the absorbing company, allowing it to increase or acquire knowledge, legal position, know-how, and good name, having a greater impact on the market. Therefore, the public entity, taking into account the above, can support the acceptance of experience resulting from a merger without affecting principles or legal orders of public tendering.
Prepared by: Luis Carlos Ramírez Satizabal. Consulting Attorney.