The Anti-Corruption Prosecutor’s Office has decided to take charge of the investigation opened by the Court of Instruction number 13 of Seville against the government of Juan Manuel Moreno for alleged embezzlement and prevarication in the hand-picked allocation of 243 million euros to private clinics – without advertising or competitive competition – by taking advantage of the emergency procurement procedure permitted by the central government to accelerate the health response to the pandemic when it was already repealed.
Judge Francisco Javier Santamaría, who is investigating the complaint of the Andalusian PSOE for a possible crime of prevarication, has already requested documents on the suspicious contracts from the General Intervention of the Government of Andalusia, the Court of Auditors and the Central intervention of the Andalusian Health Service (SAS). The requirement for individual contractual files, which the Commission has extended four times – from 2021 to June 2023 – already appears in the order to open preliminary proceedings for an alleged offense of administrative prevarication, even if the advancement of the Investigation into the cause may lead to a more serious scenario.
The opening of the first judicial investigation affecting the Moreno government, after six years in power, is based on the complaint filed by Juan Espadas’ team, registered in court on June 20. The socialists paid bail of almost 5,000 euros to be able to appear as a popular accusation. The Andalusian Executive assured that, for the moment, it does not plan to appear in this case.
Background of the case
On March 12, 2023, elDiario.es Andalucía revealed that SAS emergency contracts with private clinics were still in force – “until June 30, 2023” – two years after the repeal of the extraordinary legal framework authorized by the Central executive. the pandemic. 24 hours after publication, the Andalusian executive was quick to announce that it would cancel this system of contracts after having approved four consecutive extensions in two and a half years, tripling the expenses initially approved for hand-picked allocations, from 70 to 243 million euros. .
The PSOE presented the complaint last June through its 30 deputies, in a personal capacity, with signature and identity document. In the document requesting appearance as popular accusation, the Espadas team includes an “extension of the complaint” registered one month after the complaint was filed, on July 4 and 31.
The opening of this judicial investigation coincided with the publication, also in this newspaper, of the final report of SAS Central Intervention which accused the Board of Directors of having expanded emergency contracts (by hand) during the 2021 financial year “without any justification”. , when the pandemic “was already very moderate”. SAS auditors in the eight provinces then also questioned the SAS contracting procedure, revealing in their reports “a massive and unjustified splitting” of contracts, and the abuse of the figure of the minor contract “in procurement fraud under suspicion.” the allocation of more than 1.225 million euros.
The Andalusian PSOE led the strategy of opposition to the Moreno executive, questioning the management of health and, particularly, the abuse of exceptional procurement procedures – by hand -, emergency contracts to minor contracts or, currently, to contracts negotiated without advertising. Espadas directly accused the Andalusian president of having allowed “a work system outside of legality, causing a deterioration of public coffers”.
“He knowingly used an irregular contractual formula, with amendments and extensions to previous contracts covered by the exceptional pandemic legislation when it had already been repealed, and we believe that this is an offense of prevarication. These are not specific files, we are talking about a modus operandi,” underlined the socialist leader.
In their complaint, the Socialists manually processed the initial file for emergency contracts, starting in 2021, the four extensions that extended the award until mid-2023, and extensive internal documentation with warnings – including including an instruction from the Ministry of Finance – that they stop using the legal framework of contracts for the pandemic because it had already been repealed and because the health crisis had become something “predictable” from the point of view of management. Also included is the report from the Chamber of Auditors, relating to the 2020 emergency contracts, which seriously warns the Council to stop using this formula in 2021, as well as several reports from the auditors in the same meaning.
From 70 to 243 million in two years
The origin of these 79 contracts with private clinics can be found in file 110/2021, an emergency agreement dated January 20, 2021 signed by the Director General of the SAS, Miguel Ángel Guzmán. [luego viceconsejero de Salud]with an initial budget of 70 million euros, and an execution period from February to December of the same year.
Concerning this framework agreement, the Andalusian Government has continued to add amendments to each contract (with extensions of expenditure) and resolutions to extend the initial file by at least a year and a half. “Due to the increase in infections following the sixth wave of the pandemic,” sources from the Ministry of Health told this newspaper.
The emergency deal, of 70 million euros, added a further 55.7 million throughout 2021 and a further 100.9 million in 2022. Until September 2022, the Council has tripled the budget initial in joint allocations with private clinics: 156.7 million above the initial offer. In March 2023, when elDiario.es published this news, the total number of contracts awarded through this procedure reached 248 million euros.
In total, four extension resolutions were approved by the SAS, between 2021 and 2023, covered by two legal provisions: Article 120 of the Public Sector Contracts Act for emergency contracts. [que ya existía antes de la pandemia pensado para responder a situaciones de crisis]; and Article 16 of Royal Decree-Law 7/2020, approved by the central government during the first state of alarm to “justify the need for immediate action” and respond to the economic impact of Covid-19.
This regulatory framework has allowed autonomous communities to contract hand in hand with health companies with a more agile procedure to contain the spread of the virus without having to go through all the contractual procedures of the Public Administration at the height of the crisis . In practice, this shortcut allowing governments to deal with the emergency has resulted in less control and monitoring of public money by stakeholders. Article 16 of the Royal Decree reads as follows: “The adoption of any type of direct or indirect measure by the General Administration of the State to deal with Covid-19 will justify the need to act immediately, within the framework of the provisions of Article 16. 120 of the Public Sector Contracts Act.
The SAS resolution aimed at extending and extending individual contracts with private clinics long after the end of the state of alarm makes direct reference to this article 16. [aunque evita citar su número]and reproduces part of it in its explanatory memorandum, arguing that it “reinforces the application of the emergency procedure” for contracts without competition or advertising.
Immediately afterwards, the Ministry of Health justified its validity and its application at the time of the extension: “Although this article refers to the General Administration of the State, it is also applicable to the award of contracts with other administrations and the entire public sector with the same goal.” But this article was repealed eight months ago, i.e. on May 9, 2021.
And the Andalusian government was fully aware of this, because on June 18, the General Directorate of Markets of the Ministry of Finance had sent a written instruction to all ministries warning them that Article 16 was “totally repealed”; that the justification of the coronavirus was no longer a sufficient reason to regularly resort to article 120 of the law on public procurement, and that the “recourse to emergency contracts” aimed at “dealing with Covid-19” should have “exceptional and residual scope”. Despite this, the Commission granted tens of millions of euros to private health care, without competition or control, according to documentation to which elDiario.es Andalucía had access.
The SAS resolution states that it was “impossible to have concluded contracts with private clinics for the referral of patients through ordinary emergency channels.” This premise is in force from January 2021 until the end of 2022, during which time the Andalusian government continued to rely on the pandemic and avoided returning to the ordinary procedure of awarding contracts to private clinics. Instead of opting for open competitions, Moreno’s executive extended an exceptional figure for a year and a half, without advertising or public presence and with practically no intervention controls.
