“Emergency contracts were the only option.” The Government of Juan Manuel Moreno has justified this Tuesday the continuation of the system of direct contracting in the Andalusian Health Service (SAS) throughout the year 2021, for an amount of almost 300 million euros to private companies, ignoring the criteria of its own auditors.
The Central Intervention of the SAS, in a final “unfavorable” report on the control of emergency contracts in 2021, censures the Junta for abusing direct awards, without publicity or competitive bidding for works, services and purchase of supplies to companies linked to the health sector: 3,669 files that mobilized 296.3 million euros that year. The sample analyzed by the auditors is about 126 files, with a budget of 56.6 million, 19% of the total.
The report, revealed by this newspaper, concludes that the Ministry of Health made “improper” and “unjustified” use of contracts in 2021, relying on the extraordinary legal framework of the pandemic when it had already been repealed, and skipping a dozen articles of the Law on Public Sector Contracts. “Significant and repeated inaccuracies have occurred over time,” it says.
This Tuesday, after the weekly meeting of the Governing Council, the Minister of Finance and spokesperson for the Junta, Carolina España, defended these contracts with the same arguments that the SAS Managing Directorate already uses in its objections to the provisional report of the Intervention, which were rejected in almost all in the final report.
“We have to put ourselves in the moment. We are talking about 2021. Covid was in a very complicated situation, the important thing in 2021 was to save lives, that is why urgent action was taken,” said the minister.
The report, however, categorically rejects that the pandemic serves as an excuse for the SAS to extend contracts without publicity or competition throughout 2021, although in reality the Board continued to do so after receiving the first warnings from the Intervention: at least until the summer of 2023, as this newspaper reported in March of that year.
The body that audits the accounts of the Ministry of Health flatly rejects the justification of the health crisis in 2021 and the impact it still had on the response capacity of the administrations. It does so by downplaying the impact of the pandemic at that point, but above all, by highlighting that the Board made untimely use of the Covid legislation – now repealed – and a forced interpretation of the Law on Public Sector Contracts, violating several of its articles.
“The pandemic was already very moderate” in 2021, the report stresses, it was more “predictable” than in 2020 and, therefore, “contracts should have already been made under the ordinary procedure”. And above all because, in May of that year, the central government had already repealed the exceptional legal framework that it enabled during the worst of the pandemic to speed up the response of the administrations to the health crisis.
The SAS auditors consider that the state of alarm at that time no longer responded to an “imperious urgency resulting from unforeseeable events for the contracting body and not attributable to it”, the three requirements demanded by the Public Sector Contracts Law (LCSP) to justify multi-million-dollar awards without publicity or competition.
“Lives had to be saved”
The SAS presented objections to all these criticisms, already included in the provisional report of the Intervention of which it was warned on March 15, 2023, but the auditors rejected its arguments, calling them in some cases mere “value judgments.” The spokesperson for the Junta has reiterated some of these allegations, and has also assured something that contradicts the aforementioned report: “We have implemented all the recommendations of the Intervention,” said Spain.
However, the auditors’ work also includes the report on the “degree of compliance with the recommendations” that the Intervention sent to the SAS management in a previous report, corresponding to the emergency contracts of 2020, and concludes that none of these measures to correct deficiencies in management had been implemented.
The Comptroller’s Office reproaches the SAS, in fact, for having responded late and in a “clearly untimely” manner – on May 15, 2023 – with a report on “the degree of implementation of the recommendations” that the supervisory body had submitted much earlier. The SAS’s response comes “a few days after the expiration of the legal period of six months” since it received the recommendations. “Despite the untimely nature of its submission,” the Comptroller’s Office analyses whether they have been complied with and decides that all the proposed measures, except one, “have not been implemented.”
Asked by this newspaper about the contradiction between the arguments in defence of the contracts awarded by the Junta and the criticisms of those same arguments that appear in the Intervention report, the spokesperson for the councillor responded: “You are very concerned about that report, we were concerned about saving lives, we tried to resolve it as best we could, with emergency and urgent contracts because it was the only option.”
From the revelation of elDiario.es to the Intervention call
He Sunday, March 12 In 2023, elDiario.es exclusively published that the SAS had been awarding million-dollar contracts to private clinics for two years – to refer patients on the waiting list – under the now-repealed legal framework of the pandemic.
The initial file for these contracts – File 110/2021 – is one of those analysed and harshly questioned in the Intervention’s report on emergency contracts for 2021.
He Monday, March 13 In 2023, this newspaper published a new installment: The Andalusian Government’s contracts with private clinics end in June 2023 with an expenditure of 243 million. The initial budget for that file was 70 million euros in direct contracts, but the Ministry of Health extended those contracts four times for almost two years, with successive spending addendums, until reaching 243 million in the summer of 2023.
The SAS then acknowledged that it had authorized two new extension resolutions until the end of 2022, extending emergency contracting with private healthcare for two and a half years until that time.
He Tuesday, March 1424 hours after the news was published in this newspaper, the Moreno Executive announced the cancellation of the emergency contracts and assured that the SAS would return to ordinary contracting, with publicity and competition, as of June 30, 2023, when the last extension of the contracts expired. “The objective is that they are not extended any further” (the emergency contracts), confirmed the then spokesman of the Junta, Ramón Fernández Pacheco, to questions from journalists after the Government Council.
That same Tuesday, March 14SAS sources confirm, the Andalusian Health Service’s auditor sends in writing to the managing director “a prior notification before issuing the provisional report” on the contracts awarded during the 2021 financial year. This letter is a prior warning to the SAS that it will receive an unfavorable report, which includes non-compliance with the regulations or “exceptions of special relevance.” It is like a warning signal, which is regulated in the Eighteenth section of the Resolution of October 27, 2021, of the General Intervention of the Andalusian Government.
From there, the SAS is on alert about the objections of the Intervention, which finally reach it in the provisional report on the 2021 finger-pointing contracts, and which is dated June 12, 2023 (even with the emergency contracts with private clinics in force). The SAS presents allegations that are rejected by the Intervention and the fiscal body reiterates all its criticisms against the abuse of emergency contracts in the final report, which the deputy intervenor signs on November 21, but the managing director does not receive it until December 14, 2023sources from the ministry confirmed.
From pre-inspection to post-inspection
The Andalusian Government has defended this Tuesday the system of direct contracting in 2021, which the PSOE has been denouncing for a year and a half as a “sieve” for irregularities and threatening to file a complaint in court. Sources from Moreno’s Executive have recalled that, before the Intervention, the Court of Auditors issued a favorable report on the SAS direct contracts.
However, this report is about emergency contracts from 2020, the first year of the pandemic, for which there is also a favourable audit by the Intervention, with some notable reservations, namely: that the SAS used a third of its contracts that year to meet needs prior to the pandemic, with “defective planning”.
The Junta makes it obvious, beyond the considerations on whether the pandemic was strong or not in 2021, that the Intervention reproaches the SAS for its use of the Public Contracts Law. “The improper processing through an emergency procedure in those files in which the impossibility of resorting to other ordinary procedures is not justified or the actions are not limited to the time strictly indispensable to resolve the risk situation, has meant (for the Junta de Andalucía) the failure to verify by the managing body the conditions of aptitude (articles 65 and 66 LCSP) capacity (article 84 LCSP) and non-occurrence of prohibitions to contract (articles 71 to 73) economic and technical solvency (articles 74 to 83), compliance with tax obligations, social security required by any contractor of contracts”, the document reads.
On 6 October 2020, the Governing Council approved an agreement to replace the prior control of certain expenses, bodies and services of the Administration – including SAS contracts – with permanent financial control, in order to speed up contracting.
That is, seven months after the pandemic was officially declared, the Regional Government’s Intervention went from supervising and authorising each expenditure file a priori – before the money was released – to “an annual compliance audit”, that is, checking a posteriori that the contracts had been made in accordance with current legislation and recording this in a report.
A few weeks ago, the Andalusian Executive has authorized a new extension of the use of permanent financial control over other types of Administration expenses, relegating prior auditing. This, which depends directly on the Ministry of Finance, was raised today by journalists to the head of this department. That is, if given the devastating report that the Intervention has made a posteriori on the contracts awarded by the SAS, it would be worth reconsidering permanent financial control.
Spain has responded “I am not familiar with the issue, I was not there in 2020”, in relation to the October 2020 agreement to replace prior auditing with permanent control, although this system has been subsequently and recently extended to other expenses and departments of the Junta, already under her mandate. The minister has stressed that subsequent auditing is an “essential necessity” when it comes to “urgent” contracts.
Source: www.eldiario.es
