Excess of public
procurement in emergency situations
La extralimitación de la contratación pública en
situaciones de emergencia
Karina Moreno [*]
ABSTRACT
The
general objective of this research was focused on carrying out an analysis
related to the overreaching of public procurement in emergency situations,
taking into consideration that in this type of contexts multiple procurements
are carried out in which the law allows a de-formalization of the usual
requirements for the purpose of purchasing goods and services to ensure the
main needs of the population. In order to comply with the purpose of this
research, a methodology based on a legal, economic and financial legal analysis
was chosen, linked to the overreaching of public procurement in emergency
situations. The results of the research allowed us to determine that in
emergency situations, in most cases the de-formalization of contracting
requirements, instead of benefiting the acts to be carried out in a better way,
lead to acts of corruption, since public officials end up awarding contracts to
people close to them for their own benefit.
Keywords: corruption, emergency,
control, contracting, pandemic
RESUMEN
El objetivo general de la
presente investigación, estuvo centrado en efectuar un análisis vinculado a la
extralimitación de la contratación pública en situaciones de emergencia,
tomando en consideración este tipo de contextos se efectúan múltiples contrataciones
en las cuales la ley permite una desformalización de los requisitos habituales
a los efectos de realizar compra de bienes y servicios para garantizar las
principales necesidades de la población. A los fines de dar cumplimiento al
objeto de la presente investigación, se optó por una metodología sustentada en
un análisis jurídico económico y financiero jurídico, vinculado a la
extralimitación de la contratación pública en situaciones de emergencia. Los
resultados de la investigación permitieron determinar que en situaciones de
emergencia, en la mayoría de los casos la desformalización de los requisitos de
contratación, en lugar de beneficiar que los actos se realicen de una mejor
manera, se producen actos de corrupción ya que los funcionarios públicos terminan
adjudicado contrato a personas cercanas para su propio beneficio.
Palabras clave: corrupción, emergencia, control,
contratación, pandemia
INTRODUCTION
The purpose
of this research is to carry out an analysis related to the overreaching of
public procurement in emergency situations, since it has been evidenced that in
most cases, direct awards are made taking into consideration that there is a
relaxation of the form of contracting established by the Ecuadorian legislator,
in order to proceed with the acquisition of goods and services in a simpler
way, However, the problem that arises and that is addressed in this research is
that the vast majority of cases this informalization of most of the procedures
for the acquisition of goods and services in emergency situations, ends up
generating acts of corruption by public officials, since they benefit both
themselves and people in their immediate families, generating in the end a
detriment to the population, who is the recipient of these economic resources.
On the other
hand, the research makes a comparative law study analyzing how the neighboring
countries of Colombia and Peru, regulate contracting in emergency situations,
as well as what was their experience in relation to the Covid-19 pandemic and
to determine if this lack of formalization of public procurement in emergency
situations, resulted in acts of corruption as in the Ecuadorian state.
The problem
addressed by the present investigation is determined by the excessive
relaxation of the rules in emergency situations, since article 57 of the Organic Law of the National Public Procurement
System , is based on the criterion that in emergency situations
contemplated in said legal provision, The Minister of State or the highest
authority of the entity must issue a resolution which must be motivated, with
the purpose of being able to contract directly, this situation has brought as a
consequence multiple cases of corruption, since there is an exploitation of the
facilities contemplated by this regulation in emergency situations, generating
in this way acts of corruption that end up damaging the State.
The above
was directly reflected in Ecuador as a result of the COVID-19 pandemic, in this
regard it should be noted that firstly on March 16, 2020 the President of the
Republic at that time Lenin Moreno signed Executive Decree No. 1017 in which a
state of emergency for calamity was established throughout the national
territory, which was ratified on March 19 by the Constitutional Court of
Ecuador, in opinion No. 1-20-EE/2. Subsequently, the President of the Republic
issued Executive Decree 1052, on May 15, 2020, renewing the state of exception
for public calamity, which was ratified by the Constitutional Court of Ecuador
on May 22 of the same year by means of opinion No. 2-20-EE/206. 2-20-EE/206,
one of the most important aspects of which is that the Court reminded the
authorities of their obligation to make public procurement processes
transparent in order to prevent, combat and punish acts of corruption, thus
promoting social control of the management of public resources.
The problem
that arises in emergency situations is that, due to the extraordinary situation
that arises, a much faster procedure is sought in order to solve the situations
that may arise with the purpose of being able to acquire goods or services that
are essential to overcome a given crisis, consequently, Consequently, the law
currently allows a select number of suppliers to submit their bids, a situation
that ultimately limits the normal competition that should exist to contract
with the public administration, which results in a higher risk of contracting
bidders who may have direct or indirect relationship with officials who are
part of the contracting entity, thus generating acts of corruption.
This could
be demonstrated in multiple cases of corruption that materialized during the
national emergency as a result of the COVID-19 pandemic, since as a result of
the flexibility in the way of contracting goods and services in emergency
situations, many institutions were allowed to contract with suppliers that did
not comply with the minimum requirements for transparent and responsible
contracting, thus generating acts of corruption such as overpricing in which
there was a direct link or relationship between the contracting parties and the
entities representing the State.
Among the
emblematic cases is the case of the N-95 masks in which the Ecuadorian
Institute of Social Security contracted with the company ALMANTOP S.A. for an
amount of $1,0455.322.05, which when compared with the data provided by the
Superintendence of Companies had never been dedicated to the sale of health
implements, since its dedication was the sale of food and beverages, in
addition to this it could be evidenced that the N-95 masks were placed at a
price 400% higher than that found in the market at that time, thus
demonstrating that the lack of formalities in this type of situation allows
acts of corruption to be generated.
In the same
vein, it is worth noting another of the most notorious cases, which was the
case of the Ceibos Hospital of the Ecuadorian Institute of Social Security,
since 4,000 body bags were purchased for a unit price of $148.50 when at that
time the price quoted in the commercial market was $12 dollars, thus
demonstrating the overpricing that was handled on many occasions in health
contracts in the COVID-19 pandemic, a situation that shows that there must be
an adaptation of the rules that currently exist in such situations, as it
facilitates the realization of crime in which the State is directly harmed.
Contracting
in health emergency situations in comparative law
Now, this
situation of corruption that has arisen in Ecuador as a result of the sanitary
emergency derived from COVID 2019, has also arisen in other countries of the
Latin American continent within which it is important to refer to the Republic
of Colombia, since in emergency declarations the legal system of that country
is very discretionary, in relation to the form of contracting that public
officials can carry out, a situation that results in an increase in the levels
of corruption.
In relation
to the above, it is valuable the opinion of Ayala
In Colombia,
it has been demonstrated that most of the declarations of emergency due to
natural disasters, and the corresponding declarations of public calamity made
by mayors and governors, have led to even worse consequences, such as loss of
resources related to acts of corruption.
An analysis
of the study carried out by the previous author shows that in the Colombian
case the declarations of emergency that have been made in situations of public
calamity, in the end the results have been totally contrary, because instead of
improving public contracting so that in emergency situations goods and services
can be acquired by the State in a faster and more efficient way than in normal
situations, The consequence of this has been that the discretion of public
officials in contracting in this type of situations has generated multiple acts
of corruption, causing the economic resources destined for this type of works
and services to end up in unscrupulous hands.
In the same
vein, it can be demonstrated that it is necessary and even in emergency
situations there must be a set of formalities to ensure that procurement is
carried out in accordance with the provisions of the law, although it is true
that these are exceptional circumstances that may allow a reduction of certain
formalities, it is no less true that they can be relaxed in such a way that may
cause an opposite effect, such as increasing the levels of corruption in public
institutions, since in such situations an effect totally contrary to the
essential reason for the rule created by the legislator was generated.
In the same
vein, it is worth mentioning the study conducted in Colombia by Rojas
Direct
contracting in emergency situations is problematic because its speed and the
lack of bidders makes it impossible to select multiple companies to compete
among them, generating the existence of links with the officials who award this
type of contracts. Consequently, corruption has been a worse pandemic than
Covid in Colombia.
The above
paragraph demonstrates the need for greater control in emergency situations,
since it has been shown that in this type of situation, given the specific
circumstances of each case, if there are no procedures in the legislation that
guarantee transparency and contracting, it will be very easy for corruption to
occur, since the high level of discretion of public officials allows for
contracting and the practice of handpicking, and in many circumstances the
selected companies have links with the officials who award these types of
contracts.
According to
the aforementioned criteria, it is shown that allowing direct contracting in
emergency situations may make possible the materialization of certain acts of
corruption, since taking into account the urgency of the emergency crisis
condition, the contracting processes must be as fast and efficient as possible,
in this type of circumstance, the discretion of the public official in charge
of carrying out the contracting processes plays an essential role,
consequently, if minimum requirements are not established to guarantee the
administrative transparency of the resources, the possibilities of generating
acts of corruption in this type of situations are very high.
In the same
vein, among the countries in Latin America that experienced episodes of
corruption during the Covid-19 pandemic, it is pertinent to refer to Peru. In
this regard, the opinion of Alfaro
Peru, as a result of the state of sanitary
emergency decreed by the national government through decree No. 008-2020-SA of
March 11, 2020, which simplified public procurement processes, which in the end
became a tool that allowed contracts that facilitated the commission of crimes
such as embezzlement, collusion, incompatible negotiation, bribery and
embezzlement.
According to
the above criteria, it is demonstrated that the simplification of public
procurement processes in emergency situations in Peru, as evidenced in the
COVID 2019 pandemic, far from becoming a positive element that allowed to
guarantee in a fast and timely manner the purchase of goods and consumables
related to the health sector, it became a tool that favored the increase of
corruption levels as a result of the facilities provided for contracting with
companies, which in most cases had a direct or indirect link with public
administration officials who had the power to award this type of contracts.
In this type
of situation, it is important that the legislator should be very careful,
because although it is true that it is justified that there is a reduction of
certain formalities in the public procurement processes, since we are facing an
emergency that requires the State to act with greater diligence, more
effectively, but it is also true that there is a risk that this type of
procurement processes can generate acts of corruption, product that there are
not enough controls that are usual in normal situations. In this situation,
there must also be a set of specific measures that in this type of situations
guarantee administrative transparency, and there must be an adequate prior
control that limits the materialization of acts of corruption that in the end
will directly harm the desert victims that occur in emergency situations.
In the same
vein, it is important to quote Buleje
It is
necessary that in emergency situations, as can be seen in the COVID-19
pandemic, it is necessary for Peru to strengthen each of the mechanisms of
prevention, control and supervision, when contracting goods and services, since
the facilities for contracting that are given in this type of context in most
cases, encourage the commission of corruption offenses.
As evidenced
in the previous quote, it is shown that in emergency situations, due to the
relaxation of controls in terms of supervision, when contracting goods and
services, instead of favoring faster contracting, it ends up favoring scenarios
for acts of corruption to materialize in the awarding of contracts, Since there
is not the necessary supervision and control, nor the time to locate as many
suppliers as possible, at the time of awarding these contracts, companies that
may have a direct or indirect link with the officials who hold positions
related to contracting in the public administration are favored.
In this
sense, it is evident the importance of administrative measures such as prior
control, which allows to analyze as quickly as possible if there are elements
that can generate acts of corruption, this can be evidenced for example,
analyzing the relevance of the activity of the company that will make the sale
of a product, or the provision of a service, In this type of situation, acts of
corruption tend to occur, and it is also necessary to determine whether there
is a direct or indirect relationship between the public officials in charge of
the contracting process and the natural or legal persons with whom they are
contracting.
The purpose
of the principle of efficiency within the public administration is to establish
that the officials who have within their competence the administration of
economic resources must do so in the most suitable way possible in order to
guarantee their rational use and thus provide optimal services to the citizens.
In this sense, the opinion of Pérez
The
principle of administrative efficiency is based on the criterion that each of
the entities that are part of the State must manage economic resources in a
rational and adequate manner, thus seeking to manage them in an optimal and
adequate manner, avoiding unnecessary costs and the squandering of public
resources.
An analysis
of the above definition shows that public officials are required by law to use
the economic resources of the State in the most appropriate manner possible,
based on the criterion that the beneficiaries are the citizens, and therefore,
in order to comply with and guarantee their rights, the economic resources must
be spent in the most beneficial manner possible, to ensure the effectiveness of
their use.
The public
administration must act to guarantee the effectiveness of all contracting
processes, and this implies that even in emergency situations it must ensure
that there are administrative processes that contemplate the basic measures for
the processes to be carried out in a coherent, harmonious and effective manner,
on the one hand, time controls must be established, but on the other hand, to
guarantee the correct administration of public resources, since there is no
point in establishing quick procedures that guarantee immediate contracting if
this generates the possibility of an increase in acts of corruption.
García de Enterría's definition is also valuable,
Administrative
efficiency is one of the fundamental principles that governs public
administration and which establishes that the available economic resources must
be managed in the best way in order to achieve effective results based on the
needs of the citizens, thus reducing public expenditure and the efforts and
time that must be spent.
From the
above definition, it is shown that the administration must be efficient, and
for this to materialize, it must show that each of its actions are carried out
within the shortest possible time, as well as with the use of fewer economic
resources and efforts of officials, in order to effectively materialize the obligations they have for the benefit of citizens.
Efficiency is a north that the State must have, in each of its actions, for
such reason it must dictate the general guidelines to the ends of each one of
its dependencies to carry out the activities within the maximum levels of
efficiency, to guarantee to the population that he addressee of the public
policies the best results.
Supply and
demand in emergency situations State obligations
The law of
supply and demand plays an essential role in any economy, since it is the basis
for determining the price of certain goods and services. In this regard, it is
important to note the definition of Mankiw
The law of
supply and demand states that in any free economy the price of a good or
service will be determined by the quantity demanded by consumers, therefore for
there to be a true equilibrium this quantity must be equal to that offered by
producers in those situations in which supply far exceeds demand, product
prices tend to fall, but when demand is much higher than supply, prices tend to
rise.
This is
important, because when demand exceeds supply, prices rise sharply, in this
sense it is valuable to note that the State has an obligation from the economic
point of view, to ensure price stability specifically in emergency situations,
such as what happened in the pandemic in Ecuador, it was evident for example
the increase in the cost of medicines, masks, in the health emergency situation
experienced in this country as a result of the Covid-19, in this type of
situation the State must intervene to ensure the supply of health inputs,
either in the case of the Covid-19, or in the case of the Covid-19, In this
type of situation, the State must intervene in order to guarantee the supply of
health inputs, either by generating a national production of these, or by
generating greater imports that allow for a balance in the price of the good or
service.
The State,
as the highest authority, is responsible for guaranteeing the effectiveness of
economic policies in emergency situations. Therefore, it is the responsibility
of those in charge of economic and financial matters to establish the necessary
measures to maintain a balance between supply and demand, and to intervene
directly in those situations in which an economic imbalance can be evidenced
that places both the State and the population at risk, thus guaranteeing the
rights of the population affected by the emergency.
MATERIALS AND METHODS
In order to
comply with the objectives of this research, we have chosen a methodology based
on a legal, economic and financial legal analysis, linked to the overreach of public procurement in emergency situations which
will be developed as follows.
In
accordance with the nature of this research, a qualitative approach was chosen,
which was applied throughout the research at the time of conducting the
specific analysis of the rules related to the legal norms related to the
overreaching of public procurement in emergency situations, as well as their
economic and financial impact in Ecuador.
This method
was used at the time of performing a specific analysis of Article 57 of the
Organic Law of the National Public Procurement System related to contracting in
emergency situations.
This method
was used in the present investigation when comparing the form of contracting in
emergency situations in Peru, Colombia and Ecuador.
This method
was applied in this research study, at the time of conducting an analysis both
from a constitutional and legal point of view, of the norms related to
contracting in emergency situations in the Ecuadorian legal system, as well as
in Colombia and Peru.
This method
was applied at the time of conducting an analysis of the corruption events that
occurred during the COVID-19 pandemic in Ecuador and the extent of the economic
losses for the Ecuadorian State.
This
collection technique was used when compiling and studying the legal norms
related to the overreaching of public procurement in emergency situations in
Colombia, Peru and Ecuador.
This
technique was applied when comparing the current legal regulations related to
contracting in emergency situations as well as their advantages and
disadvantages in Colombia, Peru and Ecuador.
RESULTS
Referring to comparative law, it is valuable to
determine that in Peru, according to the special report "Corruption during
the state of emergency by Covid-19 in Peru
An emblematic case of overpricing is the procurement
of N95 type masks by the National Center for the Supply of Strategic Health
Resources - CENARES. In this case, it was reported that for each N95 type mask,
CENARES paid S/ 19.60 soles to the supplier PMI Medicas
S.A.C. without having consulted other companies in the market.
An analysis of the above case shows that it was very
similar to what happened in Ecuador, in which on many occasions there was an
overpricing of the material related to COVID 2019, a situation that occurred
due to the health emergency that existed at that time and the facility granted
by law in terms of public procurement in emergency situations, in the above
case shows how this ease of contracting what generates are acts of corruption.
The above quote reaffirms the central idea that has
been maintained throughout this research, since if the necessary prior controls
do not exist, it is very difficult to establish a de-formalization in public
procurement in emergency situations, since the opposite effect is generated,
which is the possibility of the materialization of acts of corruption, taking
into consideration that by reducing administrative controls , the official has
a broad power that, in the absence of adequate prior controls, can facilitate
the materialization of acts of corruption.
In this same vein, it is valuable to refer to another
essential point that occurred during the sanitary emergency situation, such as
the direction of contracting in favor of certain suppliers. In this regard, the
special report "Corruption during the state of emergency due to Covid-19
in Peru
It has become evident that the preparatory stage of
the contracting process has become a favorable scenario for irregular actions,
in which certain officials in charge of formulating and defining the
requirements prepare documents in favor of a specific supplier.
As evidenced in the previous quote, it is shown that
in emergency situations, contracting can become irregular situations since the
officials in charge of carrying out this type of procedures in many
opportunities, given the high levels of discretion granted to them by the
legislator, can decide in favor of the suppliers they determine, which
generates many opportunities for acts of corruption since they are decided by
legal entities that have a direct or indirect relationship with the officials
who grant this type of contracts in emergency situations.
The above shows that in order for there to be a
process of de-formalization of controls in emergency procurement, there must be
a strict prior control to ensure that in this type of actions, companies that
have the necessary relevance to the required activity, as well as the
experience and that the prices are in line with the commercial market will be
hired in a suitable manner, as what usually happens in many opportunities, is
that as a result of the speed resulting from the emergency, companies are hired
that have a direct or indirect link with the officials who have this power,
generating acts of corruption that end up harming the people who should be
benefited in this type of situations.
In Ecuador it is important to make reference within
the contracting processes that took place within the COVID 2019 pandemic to the
case of the IESS Ibarra Hospital, in this regard the Observatory of Rights and
Justice
The Attorney General's Office conducted a search of
the health center's facilities. Among the information collected were documents,
order notes and a sample of the body bags purchased. Upon corroborating the
information in the public procurement portal, it was found that within the
process registered with code DG-AL-2020-032-RFDQ-00006147, contract No.
EMERGENCY- 011-HGIB-2020148 was signed for the acquisition of 200 body bags for
a unit value of $75.00, whose final amount was $15,000.00, when in the trade market
its average price was $12.00
An analysis of the Observatory of Law and Justice
shows that in emergency situations and specifically in Covid 2019, the wide
discretion of public officials in charge of contracting, as well as the lack of
formalization of the usual ways of contracting in emergency situations ends up
causing corruption, since the requirements and demands are lower.
Ecuador was one of the most affected countries in
Latin America, as a consequence of the COVID-19 pandemic, taking into
consideration that the health system was not prepared for the effects that a
pandemic of this nature would have on the population, which overwhelmed the
health system, consequently, in order to guarantee the right to integrity, life
and health of the citizens, Consequently, in order to guarantee the right to
integrity, life and health of the citizens, it was decided in most cases to make
contracts through direct awarding to ensure the protection of the rights of
Ecuadorians, however, the results show that there were multiple cases of
corruption resulting from the acquisition of goods and services in totally high
amounts and overpriced, due to the lack of adequate prior control.
Similarly in Ecuador, it is important to refer to the
case of Hospital General del Juan Sur-Ministry of Public Health in this regard
it is valuable to quote the report issued by the Observatory of Rights and
Justice
On May 4, 2020, the Anti-Corruption Secretariat of the
Presidency of the Republic announced on its Twitter account the identification
of a possible case of overpriced purchases of medical supplies at the General
Hospital of Guasmo Sur; specifically in the
acquisition of body bags. Upon corroborating the information presented by the
institution, the health entity would have acquired 300 bags for corpse
packaging at a value of $145.26 per unit, generating a total cost of $43,578.00
only for this item
The above shows how in emergency situations such as
the Covid-19 pandemic, many public officials take advantage of the needs of
citizens, as well as use the procedures provided by law for such situations to
promote acts of corruption, taking advantage of the fact that the controls are
minor, taking into consideration the extraordinary situation that is being
experienced at that time, consequently, the laxity of controls in emergency
situations ends up promoting corrupt situations.
In the same vein, there is a need for special
procedures to speed up contracting in emergency situations, but they must
provide the necessary guarantees to avoid excessive discretion on the part of
officials, In the absence of controls and the speed with which contracting must
be carried out, the lack of specific criteria or guidelines to guarantee
contracting within the framework of the law play an important role. In this
sense, it is evident that it is necessary to increase controls in the
contracting processes in emergency situations in Ecuador.
Performing an analysis of contracting in the COVID-19
pandemic in Colombia, it is valuable to highlight the
report of Transparencia por Colombia
A majority use of the direct contracting modality is
evidenced throughout the country. About "61.9% of the resources invested
to address the pandemic were contracted through direct contracting. This
mechanism was prioritized from the beginning of the pandemic, as evidenced in
the follow-up conducted in May 2020, when it was identified that the direct
modality already represented 65.3% of the total contracts
The above quote shows that the direct contracting
mechanism is the one used in most cases in which there is a situation of
fortuitous event or force majeure, as was the case of the Covid-19 pandemic.
Now, the mechanism itself is not bad, nor the intention of the legislator has
been negative, but what is intended is that the contracting is carried out in a
faster way, but unfortunately the results show that in this type of
circumstances the informalization of procedures and direct contracting, end up
encouraging acts of corruption.
Following an order of ideas, it is shown that in this
type of contracting, a set of parameters must be guaranteed to ensure that
regardless of the form of contracting, even if it is direct, to ensure that
suitable suppliers of goods and services are chosen, as well as to guarantee a
fair and adequate price to market conditions and not that because of the
existence of an extraordinary situation, totally disproportionate prices must
be placed. The above was evidenced in Ecuador and in most Latin American countries
in relation to the COVID-19 contracting processes, it was evident how all the
implements related to health increased disproportionately and the response of
the State was not adequate to ensure the presence of medical and surgical
material in a timely manner.
In the same vein, the Transparencia
por Colombia report
In some press records and official pronouncements, the
government speaks of 117 billion pesos, as opposed to what the National Agency
of Public Contracting - Colombia Compra Eficiente - says, which speaks of up to 17 billion pesos.
Notwithstanding the above, Transparencia por Colombia found that in SECOP I and II only 5 trillion
pesos in expenditures and investments are recorded
The above shows that the lack of transparency in
contracting processes in emergency situations, shows that there are situations
that in many cases are obscure, which cast doubt on the contracting processes
in situations of fortuitous events or force majeure, so if there is no
transparency and management of public resources in such situations, product of
the contracting facilities, in the end this type of benefit ends up being
negative and are unfeasible for the purpose of ensuring a transparent procurement,
since the opposite happens, procedures are simplified, but increase the levels
of corruption.
Another essential element that is evident in emergency
situations is that there is no publicity for contracting, which means that
there is no clarity and transparency in the contracting processes and in many cases corruption occurs, which is not even reported, because
the contracting processes are not known as they should normally be published in
public portals, for this reason it can be said that there must be the necessary
controls in emergency situations to avoid corruption.
Finally, it is important to make reference to the
research conducted by CONVOCA
Ecuador allocated US$ 664.8 million to address the
health crisis, according to official figures. In only three months, from March
to May 2020, the Comptroller's Office had begun 53 audits of public
purchases of medical supplies, and cases of alleged corruption in Ecuador
increased to such an extent that the Attorney General's Office had to create a
specialized Task Force to investigate them.
An analysis of the above shows that the high levels of
corruption that materialized in Ecuador generated high economic losses to such
an extent that the Comptroller General's Office had to initiate multiple
audits, as well as so many acts of corruption that the Attorney General's
Office had to create a specialized task force, i.e., it is clearly evident that
in emergency situations, if the procedures are simplified excessively, far from
contributing to solve the problems generated by fortuitous cases, it is not
possible to solve them, In other words, it is clearly evidenced that in
emergency situations, if the procedures are simplified excessively, far from
contributing to solve the problems generated by acts of God, force majeure or a
pandemic such as Covid-19, the opposite effect is generated, since the acts of
corruption are enhanced.
The results of this research allowed to determine that
the relaxation of public procurement regulations in emergency situations, has
been created by the legislator with the purpose of allowing this type of
scenarios to purchase or acquire goods and services in a faster way. However,
it has been determined that in this type of situation, if the necessary
controls are not in place, the opposite can occur, i.e. the rules in relation
to benefit the victims in this type of situations of fortuitous event, force majeure
or pandemic, become a tool that facilitates acts of corruption.
In order to make a comparison with other Latin
American countries, which like Ecuador suffered the consequences of the
Covid-19 pandemic, it was observed that the statistics in Colombia showed that
the application of contracts under the direct modality generated multiple acts
of corruption, since in this type of situation most of the contracts in the
COVID-19 pandemic were carried out, and ended up benefiting directly or
indirectly the officials who facilitated this type of contracts.
In this same order of ideas in this country, it could
be evidenced that there were very few levels of transparency, since the State
on the one hand gave some figures of public expenditure, but that were very
different from those published by the National Agency of Public Contracting, a
situation that showed that there was no coordination in relation to the form of
public contracting in Colombia, This situation showed that there was no
coordination in relation to the form of public contracting in Colombia, during
the time of the Covid-19 pandemic, a transaction that generated, as pointed out
by the report of Transparencia por
Colombia, the materialization of a set of corruption crimes generating that the
totality of resources destined to alleviate the effects of the COVID-19
pandemic did not reach their recipients.
In the same sense as it happened in Colombia, similar
results were evidenced in Peru since the Covid 2019 pandemic, public
procurement procedures were simplified in order to acquire more goods and
services related to the health sector, a situation that resulted in an
overvaluation of price, for example the acquisition of mask type N 95,
Likewise, a special report on corruption during the state of emergency in the
Covid 2019 pandemic allowed demonstrating that all the preparatory stages of
contracting during this period in most cases violated the contracting law,
because although it is true that this simplified the contracting mechanisms of
public officials, in most cases they sought to generate their own benefit with
this type of contracting.
This was reflected in Ecuador, since, as in Colombia
and Peru, there is a regulation that allows facilitating public procurement in
emergency situations in order to be able to carry out in a faster and more
effective way the purchase of weak goods and services in this type of health
situations, in order to guarantee the purchase of masks together for corpses
and certain essential medicines, but like the previous countries, the opposite
effect instead of facilitating public procurement, increased the levels of
corruption in the country, to such an extent that a Specialized Task Force had
to be created with the purpose of carrying out the necessary investigation for
acts of corruption within the Covid-19 pandemic.
Consequently, when making a comparison between the
Latin American continent and Ecuador's neighboring countries, which experienced
the pandemic situation and which have very similar regulations, it is necessary
to highlight that in the medium and long term, the emergency regulations must
be modified in such a way that they allow for the procurement of goods and
services, but also that there are the necessary prior controls in order to
ensure that there is still a certain rigor at the time of contracting that
allows to avoid acts of corruption, because if they are not done at the end the
simplification of this type of procedure leads to negative consequences such as
acts of corruption instead of meeting the needs of citizens by making a much
faster procurement.
At the same time, it is necessary for the State to be
more diligent and efficient in emergency situations and thus guarantee goods
and services, if it does not have the capacity to produce them, as in the case
of the pandemic in relation to masks, body bags, certain specific medicines, it
must initiate the necessary import processes in the shortest possible time, in
order to guarantee the basic requirements of the citizens in a situation of
fortuitous event, force majeure or pandemic.
CONCLUSIONS
At the
conclusion of this research, the general objective of which was to analyze this
limitation of public procurement in emergency situations, the following
conclusions have been reached:
Emergency
situations are characterized by the fact that they occur unexpectedly and
seriously affect the national population. In this sense, the State has the responsibility
to act immediately and guarantee to the citizens the efficiency of each of the
public services and the essential rights contemplated in the Constitution and
the law.
In emergency
situations it can be pointed out that there is an overreach in public
contracting, when a set of negotiations are carried out for the performance of
works and services that are not necessary, as well as in those situations in
which it is evidenced that the contracts carried out do not materialize in
reality in the way they were planned in the contract, thus generating a loss
for the State and for society, becoming acts of corruption that ultimately harm
the rights of citizens.
The research
showed that the reduction of formalities in public procurement in emergency
situations according to the provisions of Article 57 of the Organic Law of the
National Public Procurement System as well as in comparative law by analyzing
the cases of Colombian and Peruvian legal regulations, which is quite similar
to the Ecuadorian in relation to procurement in emergency situations, allowed
to demonstrate that if the necessary controls do not exist, in the end instead
of facilitating the purchase of products and services necessary to alleviate
the crisis, in the end the opposite effect was generated, which generated
greater acts of corruption and that the resources of the State do not reach the
most needy people, therefore it is necessary to make an amendment to Article 57
of the Organic Law of the National Public Procurement System in order to ensure
greater control over the works and services contracted in emergency situations.
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[*] Msc. University of
Guayaquil, posgrado.derechoadministrativo@ug.edu.ec, posgrado.derechoadministrativo@ug.edu.ec,
https://orcid.org/0000-0002-9148-3479