The control report of the Audiencia de Cuentas de Canarias on the minor contracts carried out by the municipalities in the 2018 financial year clearly reveals that they have failed to comply with the law applicable to minor contracts. And this despite the fact that the information provided for its study by the municipalities audited has been scarcely reliable and complete.
The City Council of La Laguna heads, ahead of those of Las Palmas, Telde and Santa Cruz, the number of minor contracts awarded by the consistories with respect to the total number of contracts signed, with 1,502 (98.9%).
The Audiencia de Cuentas makes it clear that “the minor contract is of an exceptional nature and its purpose is to enable public administrations to quickly satisfy the needs that, due to their small amount and temporary duration, make it necessary to award them directly.” And he adds that it is exceptional, because “it lacks publicity, which limits the freedom of access to bidding procedures, restricts free competition and equal treatment and leads to a lack of transparency that affects the reduction of effectiveness and efficiency in management of public funds.
La Laguna also leads the absence of justification of the need and suitability of minor contracts. In 93% of their contracts, what appears is a sentence with the title of the object of the contract or at most a description of what is intended to be acquired, done, or the service that needs to be provided, or the justification provided is generic and lacks the required degree of precision.
Nor is the suitability of the object of the contract precisely justified, in 77.8% of the total sample and in 93% of those examined in La Laguna.
This circumstance constitutes not only a breach of the Public Sector Contracting Law, but also a contract management problem, since without the justification of the reason that gives rise to the contract, it is not possible to know what the need to cover is and if that The need can be covered only through minor contracts or through another contracting procedure that facilitates a more effective and efficient use of public resources. The lack of own means to execute the provision without the need to outsource the service (in 62.3% of the sample) has not been recorded in the service contracts either.
Justification
The municipalities do not justify the procedure either, specifying the non-ordinary and urgent nature of the contracting (92.2% of the contracts in the sample compared to 93.9% in the case of La Laguna).
In none of the files examined does the adequacy of the general market price in the determination of the estimated value of the contract appear. And the same happens with respect to a base budget of the tender (by 82.4%). This supposes a legal breach and is a reflection of an inefficient management of resources, since it implies that there is no minimum verification that the price offered is adjusted to the market.
There has been no record of the justification that the object of the contract is not being altered to avoid the application of the general contracting rules (in 89.8% of those examined in La Laguna).
On the other hand, the approval of the expenditure does not occur at the appropriate procedural moment in any of the contracts studied in La Laguna and although it is not legally mandatory, in 81.4% of the contracts in La Laguna the offers that are recorded are lower to three.
There has been no record of notification of the award by electronic means in 95.4% of the contracts examined in La Laguna, as provided for in the Public Sector Contracts Law, a relevant fact since minor contracts are perfected with its award. In 11.6% of them there is no certificate of conformity and/or the certificate received on the invoice, which means, in addition to weaknesses in the internal control system and legal breaches, something that should have prevented the payment of the benefit .
In short, the report highlights that there has been a lack of programming of the contractual activity due to the fact that the contracting file was not processed with due diligence or the development of actions of a necessary, repeated and foreseeable nature, or the performance of benefits of a similar nature that could serve a single purpose. This has led to the completion of the contract prior to the start of the file and/or the approval of the expenditure in almost 35% of those reviewed in La Laguna. As well as the separate hiring of actions that could have been held jointly. La Laguna leads once again, with 44.2% of its contracts, the subdivisions detected by the Audiencia de Cuentas.
Closely related to the amounts is the prohibition of dividing the object of the contract with the aim of not exceeding the figures. Section 3 of article 118 of the LCSP requires that the file justify that the object of the contract has not been altered in order to avoid the application of the general contracting rules. The importance of this issue is evidenced by two criminal convictions that consider the division of contracts to be prevarication; or Opinion 128/2016, of April 21, of the Consultative Council of the Canary Islands, which has urged the purging of responsibilities for the repeated use of minor contracts for permanent needs and through fraudulent and illicit division of the object of the contract.
