Is compensation for delay in the construction trust automatic?

The entry into force of the General Public Procurement Law (Law No. 32069)  and its Regulations (Supreme Decree No. 009-2025-EF) has reconfigured the institutional and operational framework of state procurement in Peru. With the creation of the Specialized Agency for Efficient Public Procurement (OECE) to replace the OSCE, a stage characterized by the search for efficiency and value for money has been inaugurated. In this new ecosystem, contractors face stricter rules where procedural formalism and preventive analysis play a decisive role. A paradigmatic example of this is found in the recent Opinion No. 090-2026-OECE-DTN, issued by the Technical Regulatory Directorate of the OECE. This opinion analyzes the regulatory referral between the trust and the compensation for delay, resolving a recurring controversy for the executors of public works. Next, we look at this technical criterion. 1.When does the right to compensation for delay in the trust arise? The conflict arises as a result of the consultations raised by UICET-MINCETUR [2] regarding the systematic application of two key articles of the Regulation. On the one hand, article 184 (numeral 2) establishes that, if the Entity does not complete the procedures for the constitution of the trust within 20 business days following the contractor's request for advance, the latter is entitled to the compensation contemplated in numeral 176.4 of article 176 of the Regulation. While article 176.4 establishes that the compensation is equivalent to 0.05% of the contract amount per day, up to a limit of 3%. However, this article incorporates a prior procedural condition: the contractor must request the Entity in writing to comply with the obligation, granting it a period not exceeding ten (10) calendar days to remedy the breach. The commercial and legal question was obvious: after the 20 working days have elapsed without the Entity constituting the trust, is the right to economic compensation generated automatically (by the mere passage of time), or does it require the contractor to previously submit the request for correction for 10 days? 2. The OECE Criterion

By means of Opinion No. 090-2026-OECE-DTN, the OECE has clearly established that the referral made by article 184.2 is of a comprehensive nature. This means that it is not limited to importing the quantum or mathematical formula of the compensation (0.05% per day), but incorporates the entire regime and its procedural conditions. For the right to compensation to be enforceable, two budgets must concur copulatively. At a substantial level, it implies the expiration of the ordinary term of twenty (20) business days for the Entity to process the trust. While, from a procedural point of view, the contractor must formulate the written request (to the Entity) granting the correction period of ten (10) calendar days. The Regulatory Technical Management points out that this requirement is not an empty formality. Its purpose is to allow the Entity to officially become aware of the persistence of the breach and have one last opportunity to remedy it. This interpretation is consistent with the Principle of Efficacy and Efficiency (Art. 5.1, letter b of the Law) , which seeks to safeguard public purposes and maximize the value of state resources, avoiding the automatic activation of penalties harmful to the public treasury when the breach is correctable in the short term. 3. Practical Implications for Contractors

Ignoring the comprehensive nature of this regulatory referral can cost supervisory and enforcement companies millions. If your company is in a design and construction contract under the new framework of Law No. 32069, you must immediately implement the following risk management protocols:

The term of 20 business days for the Entity to constitute the trust must be strictly registered in its contractual milestone schedule. Do not assume that the right to 0.05% daily compensation runs on its own. On the business day following the expiration of the deadline (Day 21), your legal team must issue a formal written request (via notarial channel to guarantee public faith). The communication must expressly cite article 184.2 and Opinion No. 090-2026-OECE-DTN, requiring the constitution of the trust and granting the peremptory term of ten (10) calendar days for the correction. Only if the Entity persists in the breach after the expiration of the 10 calendar days of grace, the right to compensation will be considered fully configured and enforceable.