The Sindicatura de Comptes has detected 44 possible cases of “undue division” of contracts in the last five years, according to what the Agència Catalana de Notícies (ACN) has counted. This represents one in four reports, since they represent 28.38% of the total of 155 that the Receivership has published since February 7, 2018 until now. The supervisory body points out breaches of the rules for minor contracts, the maximum amount of which is 15,000 euros for supplies and services, and 40,000 for works.
Among those mentioned are the Institució de las Lletres Catalanes (ILC) directed by Laura Borràs, judged last week precisely because of it, the Sindicatura de Greuges, the Antifraud Office of Catalonia (OAC), Line 9 of the metro, the Department of Justice and various municipal bodies.
In many cases, the Receivership considers that the separate hiring should have been carried out in a single contract because it deals with “recurring or foreseeable needs”. Something that, according to the supervisory body, “means avoiding the advertising requirements or those related to the adjudication procedures that would have corresponded.” In some cases, the reports also warn that “the prohibition of signing smaller contracts that individually or jointly exceeded the maximum values ??authorized for this type of contract was breached.”
At the municipal level, there are several reports that detect possible irregularities in minor contracts: Barcelona Parks and Gardens, Tarragona Water Consortium, Garraf County Council, Aran General Council, Alt Urgell County Council, City Council of ‘Argentona, Environmental Services of Vallès Oriental, Tourism Board of the Provincial Council of Tarragona, Waste Collection d’Osona SL, Depuradores d’Osona SL, Aigües d’Osona SA, Barcelona Education Consortium, La Plana Voluntary Intermunicipal Association , Barcelona Metropolitan Area, Garrotxa County Council, Solsonès Water Supply Association, Castelldefels Health Agents Consortium, Vallès Oriental Waste Management Consortium, Osona County Council, Lleida City Council, Consortium of the Costa Brava-Local Water Authority and the Metropolitan Taxi Institute.
And also different bodies that depend directly on the Generalitat such as the Center for Telecommunications and Information Technologies (CTTI), the Meteorological Service of Catalonia, the entity that publishes the Official Journal of the Generalitat of Catalonia (DOGC), the Catalan Institute of ‘Energia, the School of Public Administration of Catalonia, the Catalan International Institute for Peace, the Agency for Management of University and Research Grants, Public Airports of Catalonia, the Consorci Museu Nacional d’Art de Catalunya, the Board of Montserrat Mountain and Ports of the Generalitat.
The senior trustee of the Sindicatura de Comptes, Miquel Salazar, recommends to the administration that there be “more qualified personnel” dedicated to hiring, taking into account that the legislation in this area is “complex.” “It is a law that requires certain preparation of legal knowledge and planning when hiring. Immediacy cannot be the excuse to justify one contract or another. Contracts require planning and qualification of personnel,” he summarized in statements to ACN .
According to Salazar, if the deadlines for bids are shortened, it would be to the detriment of the bidder because the laws “have the objective of preserving the principle of free competition.” “If we limit the terms, could we be more effective? I don’t know. What I know is that we would limit this principle and the law is not designed for it. The law is designed to guarantee the principle of free competition,” he insists.
For his part, the president of the administrative law section of the Barcelona Bar Association (ICAB), Alejandro Jiménez Marconi, explained to ACN that the administration may be “tempted” to divide contracts to avoid a tender, which they follow a longer process than minor hiring. And he pointed out that one reason that can explain the division of contracts is to avoid “excessive deadlines.” Likewise, he also affirms that “efficiency is requested in the administration but that sometimes the tools are not given.” And, in this sense, he has added that if there were more flexibility so that the administration can assess the urgency and the need to hire quickly, it would allow “shortening the terms” of a bidding process.
According to Jiménez Marconi, if the administration knows from the first day that it is making a decision against the norm for “unfairly favoring one person or harming another”, in this case it could go from administrative law to criminal law.
Article 99.2 of the state law 9/2017 on public sector contracts says that contracts cannot be divided “in order to reduce the amount thereof and thus avoid the advertising requirements.” And in article 118 it is established that minor contracts are those whose estimated value is less than 40,000 euros, when it comes to works contracts, or 15,000 euros, when it comes to supply or service contracts.
Next, the law specifies that in the case of minor contracts, a report from the contracting authority will be required justifying the need for the contract and that it is not being altered to avoid the law. In addition, in development of this law, the Government later approved that in the case of minor contracts, it must be required, as a requirement, that three different budgets be presented. The objective is to guarantee the plurality of offers.
