The Court of Instruction number 13 of Seville has accepted for processing the complaint filed by the Andalusian PSOE against the Government of Juan Manuel Moreno for alleged embezzlement and prevarication in the hand-picked award 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procedure enabled by the central government to speed up the health response to the pandemic when it was already repealed.
The order, announced by Cadena SER and confirmed by this newspaper, represents the opening of the first judicial investigation into the Moreno Government, after six years in power, and part of the complaint by Juan Espadas’ team, registered in the court on last June 20.
On March 12, 2023, elDiario.es Andalucía exclusively announced that the emergency contracts of the Andalusian Health Service (SAS) 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 confront the pandemic. 24 hours later, the Andalusian Executive was quick to announce that it would cancel this contracting system after having approved four consecutive extensions that in two years tripled the expenditure initially approved for hand-picked awards, from 70 to 243 million.
For months, the Socialists have been announcing the filing of a complaint against free-for-all contracts in the SAS and dribbled at journalists when they asked when they would do so. The reality is that, due to “procedural strategy” and the recommendation of their lawyers, they have kept the secret of a complaint already registered three months ago.
The PSOE presented the complaint in June through its 30 deputies, in their personal capacity, with a signature and ID, but for now the party is not appearing as a private accusation. This Wednesday the court informed the legal representative of the socialists of the opening of proceedings and warned them that in order to be part of the proceedings they would have to present a document of private accusation, which they did immediately, according to party sources.
In that request letter, the Espadas team mentions new writings registered on July 4 and 31 for “expansion of the complaint” filed a month earlier. Now the judge must decide whether to accept the PSOE as a private accusation.
The leader of the socialists explained this Thursday, in the corridors of Parliament, that his lawyers will decide whether the complaint for the fragmentation of minor contracts “in fraud of law” uncovered by the SAS auditors – and advanced this week by elDiario.es – will be attached to this complaint, so that the same judge can investigate all public procurement of the Board, or if a separate complaint is filed.
“The Moreno Government generated a work system outside of legality, causing a deterioration of 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,” Espadas 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.
The modus operandi from 2021 to 2023
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.
Source: www.eldiario.es
