The Andalusian Government (PP) had already considered last spring that one of the emergency health contracts drawn up by the Andalusian Health Service (SAS) investigated by the Seville court did not comply with the law. The Executive had planned to pay the 47.5 million for the second reform of the Vigil de Quiñones hospital in the Andalusian capital with European funds from the Feder, but the expenditure inspector of the Ministry of Economy, Finance and European Funds deemed the emergency formula used by SAS to award the works without the necessary publicity for a public work to be inadequate. Faced with this refusal, the regional government avoided turning to the European Commission and ultimately paid that sum from its own funds.
Judge José Antonio Gómez, head of the Court of Education 13 of Seville, is investigating the emergency contracts for 242 million signed by SAS with private companies between 2020 and 2024. The magistrate indicts the current director of SAS, Valle García, and his two predecessors, Miguel Ángel Guzmán and Diego Vargas, but the case does not yet contain concrete evidence indicating an alleged appropriation undue. Now the criteria of the verifier of the work of the Seville hospital and the critical reports of the General Intervention of the Council in this regard could go in this direction, due to a misuse of public funds, an issue that the Andalusian Government has ignored since the beginning of the case more than a year ago.
“The urgent nature of the action is not sufficiently demonstrated, within the terms established by the aforementioned Article 120 of Law 9/2017 (on public sector contracts). We would be faced with the hypothesis included in irregularity number 1 (…) in the event of failure to comply with the rules applicable to public procurement”, states the verifier in charge of approving the works of the former military hospital in Seville in his report from the beginning of 2023. The Council has inaugurated this center up to four times between 2021 and 2023 to praise the management of the covid-19 pandemic after a total investment of 74 million. The Andalusian president, Juan Manuel Moreno, cited the Vigil de Quiñones Hospital as an example of his management and defense of Andalusian public healthcare, in the face of the shortcomings of the socialist era. Today the center has all its intensive care units closed and some of its material has been taken to the Virgen del Rocío hospital in the Andalusian capital.
The verifier of the company KPMG, appointed by the Andalusian General Directorate of European Funds and whose criteria are assumed by the Ministry of Economy, disapproved the expenditure of 47.5 million, a fifth of the total expenditure investigated by Judge Gómez, because it is contrary to the law on public sector contracts. This is the key to the entire judicial proceeding: verifying whether the decision to contract 242 million with private healthcare and SAS works through emergency contracts due to the pandemic was justified or not, whether it was fraudulent as the accusations estimate, or legal as SAS defends.
A spokesperson for the Ministry of Economy, Finance and European Funds confirmed on Wednesday that the Council has finally paid the 47.5 million for work and clinical equipment invested in 2021 and 2022 in the former military hospital and which it intended to include in the Feder funds. “The second phase of the work was self-financed,” he reported in writing.
The sequence of facts is as follows: the Andalusian Health Service asked to pay for the second renovation of the old military hospital in Seville with the Feder 2014-2020 European funds. When the Directorate General of European Funds authorized the money, the Executive paid for the necessary work and clinical equipment. Subsequently, the expenditure verifier canceled the expected European subsidy because it was granted with the emergency bargaining formula. And, finally, the Board of Directors accepted the ruling which revoked the provision to charge the 47.5 million to Brussels and paid for the work with its own funds.
The verifier rejected 100% of the expenditure and deemed zero euros of the total used to be eligible because, although SAS invited nine companies to bid for the works, “no adequate advertising measures were adopted to guarantee the participation of companies from other states”. That is to say, these works, valued at almost 50 million, were not clearly marked or advertised.
The figure of the verifier “constitutes the first obstacle to spending to reach Europe in the cleanest way possible”, explain sources in the case. After the verification carried out by the autonomies, the Secretariat of State for European Funds of the Ministry of Finance collects the funds proposed by the 17 regions to present them to the European Commission and, after having certified them by Brussels, the audits of the operations are carried out. in retrospect. “Due to the high sum of 47 million, if it had been collected it would certainly have been included in the verification of the General Intervention”, these sources specify.
The only condition that justifies emergency bargaining, according to the law, is when the Administration is obliged to act “immediately due to catastrophic events, situations involving grave danger or needs affecting national defense.” Only then will it be possible to contract “freely” and ignore public sector contract law. But the verifier and the Ministry of Economy considered that SAS could not take advantage of a catastrophic situation to renovate the old military hospital in Seville for the second time.
Faced with the rejection of the spending, the former director general of Economic Management and Services of the SAS, José Antonio Miranda, who was fired last March, denied that the proposal to correct the spending at 100% – and not 25% – should be contested. Miranda asked the supervisory bodies to be “rational” in interpreting the application of emergency contracts in accordance with “the context and social reality in which this health crisis, unknown to our generation, is found”, and which has influenced the action of the Ministry of Health and Consumer Affairs. “The evolution of the pandemic has shown that the predictions were mere expectations, but the reality was truly unpredictable (…) The extraordinary performance represented by the Covid-19 pandemic has shown that, even for emergency procurement, the general rules are not up to par,” he said in his June 2022 report.
The Ministry of Economy, Finance and European Funds rejected Miranda’s arguments and ultimately considered that the expenditure should not be brought to Brussels because it was inadequate and financed by the budget of the Andalusian executive. At the same time, the General Intervention Council, made up of an elite body of officials to supervise all Executive Branch expenditure, sanctioned the second phase of work in two different reports.
“The exceptionality created in 2020 with the appearance of the pandemic was not the same in 2021, and the use of this type of contracts, the long duration of which cannot be estimated as linked to the resolution of a peremptory and immediate necessity, which allows for ignoring the essential principles of public procurement, is not justified, since the situation has become more predictable and therefore does not comply with the nature of emergency procurement,” criticized the SAS permanent financial control report on emergency procurement. of the year 2021. And the report corresponding to the years 2022 and 2023 elaborated: “Due to the exceptional nature of emergency contracts, these cannot be subject to extensions or subsequent phases, which imply a violation of the requirement of immediacy and the obligation to resort to the ordinary procedures provided for by the law on public sector contracts”.
In December 2022, the European Commission carried out a horizontal audit on several Spanish programs in relation to the use of the emergency procedure for the award of public contracts. Brussels established that by resorting to the emergency procedure “competition is seriously limited or absent” because there was no prior publication, and it was justified only in cases of urgency due to unforeseeable events to be compatible with European Union directives, for which it withdrew several subsidies provided for community funds.
In the emergency contracts court case, last week the PSOE requested as a charge that the judge ask the SAS to provide the full dossier on the works on the former military hospital. And last Monday the investigating judge signed an order ordering the Andalusian Health Service to hand over the missing documentation in the file and thus dispel the doubts. This request from the judge shows that SAS did not send all the documentation relating to the emergency contracts to the court, which the Andalusian government has denied.
At the same time, after two weeks ago the PSOE had reported that the SAS had eliminated evidence of alleged falsehoods and had asked the Guardia Civil to enter the headquarters of the public body to seize all possible documentation, the Anti-Corruption Prosecutor’s Office postponed the decision on the matter. The Public Prosecutor believes that the statements of witnesses and defendants should take place first on 18 and 25 November, then “the relevance of the (PSOE’s) requests can be assessed more appropriately” and decide whether it is necessary for the Central Operations Unit to seize the SAS computers, we read in last Friday’s Anti-Corruption letter.
