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 prevarication in the hand-picked awarding of 243 million euros to private clinics – without advertising or competitive competition – taking advantage of the emergency contracting procedure enabled by the central government to expedite the health response to the pandemic when it was already repealed.
Judge Francisco Javier Santamaría, who is investigating the complaint by the Andalusian PSOE for a possible crime of prevarication, has already requested documentation on the contracts under suspicion from the General Intervention of the Government of Andalusia, the Court of Accounts and the Central Intervention of the Andalusian Service. of Health (SAS).
The requirement for individual contract files, which the Board extended four times – from 2021 to June 2023 -, already appears in the order to initiate preliminary proceedings for an alleged crime of administrative prevarication, without prejudice to what may arise. of the investigations during the investigation phase of the case.
The opening of the first judicial investigation that affects the Moreno Government, after six years in power, is based on the complaint for alleged crimes of prevarication and embezzlement by Juan Espadas’ team, registered in court on June 20. The socialists have paid a bail of close to 5,000 euros to be able to appear as a popular accusation. The Andalusian Executive has assured that, at the moment, it is not contemplating appearing in the case and that it has not yet received any complaint.
Background of the case
On March 12, 2023, elDiario.es Andalucía revealed that the SAS emergency contracts with private clinics were still in force – “until June 30, 2023” – two years after the repeal of the extraordinary legal framework enabled by the central Executive. to face the pandemic. 24 hours after the publication, the Andalusian Executive was quick to announce that it would cancel this contracting system after having approved four consecutive extensions in two and a half years, tripling the expenditure initially approved for hand-picked awards, from 70 to 243 million euros.
The PSOE presented the complaint last June through its 30 deputies, in their personal capacity, with a signature and ID. In the document requesting appearance as a popular accusation, the Espadas team includes an “extension of the complaint” registered one month after presenting the complaint, on July 4 and 31.
The opening of this judicial investigation coincided in time with the publication, also in this newspaper, of the final report of the SAS Central Intervention that accused the Board of having expanded emergency contracting (by hand) in the 2021 financial year “without no justification”, when the pandemic “was already very tempered.” The SAS auditors in the eight provinces subsequently also questioned the SAS contracting procedure, uncovering in their reports “a massive and undue splitting up” of contracts, and the abuse of the figure of the minor contract “in fraud of law.” placing under suspicion the award of more than 1,225 million euros.
The Andalusian PSOE has led the opposition strategy to the Moreno Executive, questioning health management and, singularly, the abuse of exceptional contracting procedures – by hand -, from emergency contracts to minor contracts or, currently, contracts negotiated without advertising. Espadas has directly accused the Andalusian president of having allowed “a work system outside of legality, causing a deterioration of the public coffers.”
“He knowingly used an irregular contracting formula, with addendums and extensions to previous contracts covered by the exceptional legislation of the pandemic when it had already been repealed, and we believe that this is a crime of prevarication. They are not specific files, we are talking about a modus operandi,” the socialist leader stressed.
In their complaint, the socialists have handled the initial file of the emergency contracts, from 2021, the four extensions that extended the award by hand until mid-2023, and extensive internal documentation with warnings – including an instruction from the Ministry of Finance – to that they stop using the legal contracting framework for the pandemic because it had already been repealed, and because the health crisis had become something “foreseeable” from a management point of view. Also included is the report from the Chamber of Accounts, relating to the 2020 emergency contracts, which provides serious warnings for the Board to stop using this formula in 2021, and several reports from the auditors in the same sense.
From 70 to 243 million in two years
The origin of these 79 contracts with private clinics is in File 110/2021, an Emergency Agreement of January 20, 2021 signed by the managing director 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 that year.
Regarding this framework agreement, the Andalusian Government continued to chain addenda to each contract (with expenditure extensions) and resolutions to extend the original file for at least a year and a half. “Due to the increase in infections from the sixth wave of the pandemic,” sources from the Ministry of Health then justified to this newspaper.
The Emergency Agreement, of 70 million euros, added another 55.7 million throughout 2021 and 100.9 million more during 2022. Until September 2022, the Board tripled the initial budget in joint awards with private clinics: 156.7 million above the initial tender. In March 2023, when elDiario.es publishes this news, the total number of contract awards through this procedure reached 248 million euros.
In total there were four extension resolutions approved by the SAS, between 2021 and 2023, covered by two legal provisions: article 120 of the Public Sector Contracts Law 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 to act immediately” and respond to the economic impact of Covid-19.
This regulatory framework allowed the 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 contracting procedures in the Public Administration during the worst of the crisis. In practice, this shortcut for governments to deal with the emergency meant fewer controls and oversight of public money by the interveners. 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, under the provisions of the provisions in article 120 of the Public Sector Contracts Law.”
The SAS resolution to extend and expand individual contracts with private clinics long after the state of alarm waned refers directly to that article 16 [aunque evita citar su número]and reproduces a part in its explanatory statement, arguing that it “reinforces the application of the emergency procedure” for contracts without competitive competition or advertising.
Immediately afterwards, the Ministry of Health justified its validity and application at the time of the extension: “Although this article refers to the General Administration of the State, it is equally applicable to the contracting of other administrations and the entire public sector with the same purpose.” But that article had been repealed for eight months, since May 9, 2021.
And the Andalusian Government was fully aware of this, because on June 18, the General Directorate of Contracting of the Ministry of Finance had sent a written instruction to all the ministries warning them that article 16 was “fully repealed”; that the justification of the coronavirus was no longer sufficient reason to regularly use article 120 of the Public Contracts Law, and that “recourse to emergency contracting” aimed at “coping with Covid-19” should have “an exceptional and residual”. Despite this, the Board awarded tens of millions of euros to private healthcare without competition or controls, according to the documentation to which elDiario.es Andalucía has had access.
The SAS resolution alleges that it was “impossible to have carried out 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, a period in which the Andalusian Government continued to rely on the pandemic and avoided returning to the ordinary procedure for 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 publicity or public attendance, and with hardly any Intervention controls.
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