The “unfavorable” report of the intervention of the Junta de Andalucía on the private contracts of the Andalusian Health Service in 2021 concludes that almost 300 million euros were awarded privately “without any justification” and using emergency treatment in an “inappropriate” way, without advertising or competitive attendance. The auditors question the procedure because “the pandemic was already very moderate”, and because the health crisis was more “predictable” than in 2020, so “they should have already been hired under the ordinary procedure”.
But the most serious complaint of the control body is the one that highlights the violation of the legislation on contracts, both in the “abuse” of the extraordinary legal framework that was activated during the pandemic, which the Council continued to use after its repeal in May 2021, as the forced interpretation it makes of the national law on public sector contracts.
The case of the military hospital of Seville
At this point, a file of emergency works stands out in the intervention report that is of particular importance: the renovation of the Military Hospital of Seville, which the executive of Juan Manuel Moreno has transformed into a symbol of management in the face of the “inefficiency” of the socialist governments, which left the works unfinished and the facilities closed for ten years.
The SAS used an emergency contract for the renovation works of the military hospital (Vigil de Quiñones) – for an amount of 15.6 million euros, which ultimately amounted to 18.1 million. The Intervention maintains that this is the most “incongruous” contract of all, because the Council concluded it “in stages” and with a deadline of 13 months, which contradicts the very nature of the notion of “urgency” and the legal requirements to justify a hand-picked price, without advertising or competition.
Throughout their 138-page report, the auditors repeatedly state that the individual contracts for works, services and the purchase of health supplies that the SAS entered into in 2021 circumvented a dozen articles of the public procurement law, but when they analyze the military hospital file, they go even further.
“The exception created in 2020 with the appearance of the pandemic was not the same in 2021, and the use of this type of contractualization, the long duration of which [13 meses] It cannot be considered as linked to the resolution of an imperative and immediate need, which allows to dispense with the essential principles of public procurement, because the situation has become more predictable and, therefore, not in conformity with the nature of emergency public procurement, it is said. the report.
“Value judgments”
The SAS management tries to defend this contract in its allegations, but the Intervention does not accept its criteria and in one of the responses it directly accuses the Board of Directors of breaking the law. “The existence of an emergency contract by phases is incongruous, a division that implies a forecast, which violates the characteristics of this type of contract,” considers the control body.
What is mainly violated here is Article 120 of the Public Procurement Act, which includes the requirements necessary to justify the award of public funds on a contractual basis, ignoring the usual control procedures to respond to “catastrophic events” and “situations that present a serious danger.” “The contracting authority, without the obligation to process a procurement file, may order the execution of what is necessary to remedy the event that has occurred or satisfy the unforeseen need, or freely contract its object, in whole or in part, without being subject to the formal requirements established in this Act,” the aforementioned article reads.
The military hospital in Seville had been abandoned and closed for more than a decade. The SAS, in its allegations, explains this level of negligence, attributable to the previous socialist administration, and defends that the legal framework of the pandemic and the emergency treatment constituted an “inevitable opportunity” to reopen these facilities at a time of serious health crisis. “Thus, it would not have been understood that, given this possibility, it would not have been used,” argues the Commission. But the interveners respond that these arguments respond to “a series of value judgments” that have nothing to do with their “non-compliance with the regulations.”
The Public Procurement Act establishes that in an emergency contract – by hand – “the deadline for the start of execution of the services may not exceed one month, from the adoption of the envisaged agreement”. Not only did the works at the military hospital not meet the deadline, but the SAS provided for a period of execution “in phases” of 13 months. The regulation specifies that if the deadline of 30 days to start the works is exceeded, “the award of said services will require the conduct of an ordinary procedure”, with advertising and competition, which the SAS ignored in this case.
Four inaugurations of the military hospital
The object of contract 12/2020 was the partial completion of works in the hospitalization areas of the old military hospital of Seville, in response to the need for an emergency plan in the province of Seville due to the resurgence of the Covid 19 pandemic.
A first phase of works was approved by hand in early 2021, but in March the SAS drew up a justification report for “a second phase of works”; and in May another emergency procedure for “the renovation and redevelopment of spaces” in the hospital, “as well as conventional hospitalization units”. The Intervention denounces here that there is “no evidence of what actions would be strictly essential to alleviate the most urgent needs, prevent or repair the damage derived from the emergency situation”.
That is, the reasons that would justify (from a legal point of view) this new phase of emergency works within the hospital, “given that we are in May 2021, with a very moderate pandemic and that they should have been contracted in accordance with the ordinary treatment. In the documentation on the military hospital, there are emergency contracts for the development of the project and the management of the construction (May 2021) and another for the “expansion of electrical energy (July 2021),” referring to this intervention without documentation.
The President of the Junta de Andalucía, Juan Manuel Moreno, has inaugurated the Military Hospital of Seville four times, each time taking an official photo in front of its facilities. The first time was in February 2021, when neither the first phase of the works had been carried out nor the second phase had been authorized. Moreno then presented the reopening again in February 2022, in April of the same year and in March 2023.
In April 2022, the Andalusian president estimated the investment for the renovation and reopening of the military hospital at “more than 72 million euros”, highlighting “its key role in the worst moments of the pandemic, when it became a Covid-19 emergency hospital”, and acknowledged that “with the two phases of work completed, the army has eight new hospital floors, 320 hospital beds and a spinal trauma unit “unique in Andalusia”.
An increase in spending of 2.5 million without a contract
The SAS resolution by which the final value of the emergency works of this hospital is set and approved is dated December 22, 2021, for an amount of 18.1 million euros, “which means an increase in the estimated value of the initial contract of 2.5 million euros, without any evidence having been sent demonstrating that these are new necessary benefits covered by the Public Procurement Law”, denounces the subsequent audit report.
The works cost more than what was manually forecast for the award, but the auditors do not find – because it did not exist or the SAS did not present it – the other emergency contract on this increase in expenses of 2.5 million, which appears in the resolution of the final settlement. “There is not even evidence of the development of the procedure provided for emergency contracts, in reference to the new services that led to an increase in the cost of the contract” of the military hospital, the report indicates.
The SAS general management presented a battery of allegations to counter the harsh criticism of the tax body, trying to justify, above all, that it had resorted to an emergency contract for works that did not allow the imminent opening of the military hospital, but scheduled an execution period of more than a year.
The law requires that a “compelling need” be proven for this type of contract. The director of SAS defends that at that time “there was no room for emergency works that would only involve the execution of what was necessary to remedy the event that had occurred or to satisfy the unexpected need, since it was a question of completing the installations (…).
The auditors reject this argument: “These statements simply violate what is expressed in Article 120 of the Contract Code.” They also warn that the European Commission, on April 1, 2020, sent a written communication to member countries with indications on the use of the public procurement framework in the emergency situation due to Covid-19, requiring that “recourse to this procedure is exceptional” and that “all conditions must be met cumulatively and must be interpreted restrictively.”
The Andalusian Ministry of Finance itself, in a directive sent at the time to other ministries, reiterated that the “use of emergency contracts” aimed at “facing COVID-19” should have “an exceptional and residual character.”
