Modification in the form and deadline for the presentation of the Transparency and Business Ethics Program

The following are the aspects that must be considered:

What is the Business Ethics and Transparency Program - PTEE? 

As of the issuance of Law 2195 of 2022, ESALs are part of the entities required to have a Business Ethics and Transparency Program. This program contains the mechanisms and internal auditing standards to identify, detect, prevent, manage, and mitigate the risks of corruption or transnational bribery (C/ST) that may affect them.

Thus, the PTEE is a tool that strengthens organizational models based on integrity and ethics, while developing a risk management scheme or articulating with the existing one, to prevent the possible use of the ESAL for illegal purposes by its administrators, collaborators, associates or third parties. Finally, it allows to act diligently in the face of possible corruption or cases of transnational bribery. 

Adopting this plan is an obligation for all ESALs. For this reason, entities should bear in mind that this new requirement should be taken as an opportunity to adapt or adopt internal mechanisms to protect them and prevent them from being used for the development of illegal operations or actions. corruption or cases of transnational bribery.

It is then up to each ESAL to carry out an introspection and recognition exercise on its sector and the activities it carries out, its usual donors or cooperants, its projects and, in general, on the dynamics that allow it to develop its corporate purpose, as well as the risk factors inherent to or related to its activities. From there, it must formulate its own compliance policy and design the final contents in order to have the Program that best suits its context and institutional reality within the basic contents indicated in the standard. 

Types of Transparency and Business Ethics Programs 

Based on the criteria of total assets and the previous existence of a risk management system, two (2) different types of programs are considered:

1. Transparency and Integral Business Ethics Program (PTEE-I)

Scope of application: Entities whose total assets as of December 31 of each fiscal year are equal to or greater than one thousand (1,000) legal monthly minimum wages and/or have implemented a risk management system.

Responsible for implementation: The person in charge may not be the legal representative, nor belong to the corporate or administrative bodies of the entity, nor may it be the statutory auditor, in cases where one exists. In those non-profit entities (ESAL) that already have a person in charge of the risk management system, he/she may also assume the function of implementation and compliance with the PTEE-I.

Program content: The comprehensive program must contain, at a minimum:

• Compliance policy.
• Risk matrix that incorporates the identification and evaluation of corruption and transnational bribery risks detected and the controls to be implemented.
• General policies and procedures for C/ST risk management.
• Protocol that includes rules for the giving and offering of gifts or benefits to third parties, the authorization or recognition, to any person, of expenses related to entertainment, food, lodging and travel activities and political contributions of any nature made with ESAL resources, whether monetary or of any kind.
• Due diligence mechanisms to verify the origin of donor or cooperant resources, whether regular or occasional.
• Self-control and auditing mechanisms and standards.
• For transnational bribery risks, a procedure should be defined for the filing and preservation of documents related to international business, donations or transactions in which the ESAL is involved or is a beneficiary.Establecer los mecanismos para la divulgación y seguimiento al programa.

2. Simplified Business Ethics and Transparency Program (PTEE-S).

Scope of application: Entities whose total assets as of December 31 of each fiscal year are less than one thousand (1,000) legal monthly minimum wages and which have not implemented a risk management system.

Responsible for its implementation: The person in charge may belong to the corporate and/or administrative bodies. In any case, the legal representative and the statutory auditor may not act as responsible for compliance with the simplified Business Ethics and Transparency Programs (PTEE-S).

Program content: The comprehensive program must contain, at a minimum:

• Compliance policy.
• Risk matrix that incorporates the identification and evaluation of corruption and transnational bribery risks detected and the controls to be implemented.
• Due diligence mechanisms to verify the origin of donor or cooperant resources, whether regular or occasional.
• Self-control and auditing mechanisms and standards.
• Establish mechanisms for disclosure and follow-up of the program. 

Once the Transparency and Business Ethics Program (PTEE) is approved, it must be implemented by ESALs and when assets exceed 1,000 minimum wages, it must be updated by migrating from the simplified program to the comprehensive program.

Modification of the form and deadline for its presentation 

Circular 013 extended the deadline for the presentation of the Business Ethics and Transparency Program for one more year, in accordance with the schedule established in Circular 016 of 2022, starting the first week of May 2024, taking into account the last two digits of the NIT, together with the information for the closing of the 2023 fiscal year, as follows:

The program must be signed by the legal representative of the entity, and submitted together with a copy of the approval minutes, which must be taken from the minutes book registered in those cases where such approval is made by the highest body of the entity.

For non-profit entities (ESAL) that are incorporated as from January 1, 2024, the presentation of the PTEE shall be made in the following fiscal year within the terms defined above, together with the documentation for the end of the fiscal year. In this case, for the determination of total assets, the cut-off date shall be December 31 of the year immediately preceding the year established for its presentation.

Verification of compliance and effectiveness of transparency and business ethics programs.

Pursuant to Article 9 of Law 2195 of 2022, the statutory auditors, in those entities that have defined this figure, must assess the Business Ethics and Transparency Programs - PTEE and issue an opinion on them. To this effect, within the documentation for the end of the annual fiscal year, the opinion of the statutory auditors shall include a specific item with such assessment and the opinion on the approved program.

For entities that do not contemplate the figure of statutory auditor in their bylaws, the inspection, surveillance and control authorities will verify compliance and effectiveness of the program through a concept issued by the person in charge of its implementation and compliance, which must be submitted annually as part of the documentation at the end of the fiscal year in accordance with Circular 016 of 2022.

Failure to implement the Transparency and Business Ethics Programs could result in sanctions such as:

• Suspension and cancellation of the legal status of the ESAL.
• Successive fines from 1 to 500 SMLMV.