Transparency delayed: Officials published at least half of 2020's emergency contracts late
Reporting: Eva Belmonte, Data: David Cabo, Visualisation: Antonio Hernández, English editing: Lucas Laursen, Lucas Laursen, March 25, 2021
Story originally published in Civio
Emergency procurement fits like a glove in a pandemic: it allows you to buy something, hire a service or order construction orally, for an immediate start, without wasting one second. It requires no prior paperwork and skips the usual procedures. But public procurement rules do require reporting emergency contracts after the fact. The most important rule is transparency: the award must be published within 15 days. However, in the emergency contracts awarded during 2020 and published up to February 2021 that transparency was delayed an average of 43 days, almost three times the limit.
All published emergency contracts from all public entities
We analysed all emergency contracts awarded in Spain during 2020 and published that year and in January and February of 2021 on the Public Sector Contract Portal and from the linked platforms of the autonomous communities, excluding minor contracts. We calculated the publication times by comparing the award date of each contract with the first day it appears in the Public Sector Contract Portal. We excluded the days from March 14 to May 7, since public entities were paralysed during the initial state of alarm, although it is not clear that legally this exempts them from the requirement to publish contracts awarded then.
We excluded the autonomous community of Galicia from this analysis because they did not send their emergency contracts to the national portal. And we also excluded the autonomous community of Madrid because it does not publish the award dates of its contracts, just the date on which the award was made public. This is our methodology.
An example: on 23 March 2020, the Ministry of Health awarded an emergency contract for 271,000 euros to improve its information technology and manage its videoconferencing. As the epicentre of pandemic management, they needed more hands on deck. Telefónica took the big lot, some 243,000 euros. But this information did not appear on the Public Sector Contract Portal until 30 December 2020, nine months later.
This was by no means an isolated case. In 2020, thousands of contracts were awarded using emergency procedures. Of those published by February 2021 (included), more than half exceeded the 15-day reporting limit. That does not count the almost two months during which administrative deadlines were suspended. What’s more, we cannot include contracts whose publication is even more delayed because they remained unpublished at the time of our analysis, February 2021: the true delay and number of overdue emergency contracts could still grow a lot.
Here’s another example: officials published two contracts at the beginning of March 2021 -hence, not includes in our database- awarded almost a year before. Both contracts were for charter flights to repatriate Spaniards abroad. One of them, with the company Wamos Air, for a single flight to Central America, signed on 27 March 2020, cost more than half a million euros. The other, with Iberia, totalled nearly seven million euros but included dozens of flights to countries such as Peru, Argentina, Poland and Morocco. Both contracts were signed in March 2020 but remained unpublished until March… 2021.
The time that public entities took to document and publish their emergency contracts changed over the course of the year, of course. During the first weeks of the state of alarm, the chaos and saturation in some public entities could justify delays, but as the months went by and especially in entities with fewer emergency contracts, ongoing delays of transparency are harder to justify. Contracts signed in March 2020, the first month of the initial state of alarm, took - on average - two months to appear on the Public Sector Contract Portal. Contracts signed in April 2020 averaged a month and a half’s delay before publication, a little less, but things didn’t improve in June, July or August 2020.
Days of delay before publication for contracts awarded, by month
Cantabria, Navarra, Ceuta and the Ministry of Culture and Sports, the slowest off the mark
The municipality of Pinto, in the autonomous community of Madrid, is the slowest entity on the list: it took nine and a half months to publish its only emergency contract. The public entity Mercazaragoza took eight months on average to publish its five emergency contracts on the Public Sector Contract Portal. The municipality of Teguise in the autonomous community of the Canary Islands, averaged eight and a half months to publish its 40 contracts. But local entities were not the only ones to delay transparency.
Among the autonomous communities, Cantabria takes the cake: it took it an average of almost four months to publish its emergency contracts, well over the 15 days established by law. Navarra, Ceuta and the Canary Islands averaged more than two and a half months. The Balearic Islands, meanwhile, was the fastest: it took an average of just 13 days to publish its emergency contracts.
The General Administration of the State performed no better: it averaged 38 days between the adjudication and its publication. Here too there are notable differences between ministries. The Ministry of Culture and Sports averaged more than four months. The ministries of Education and the Interior -averaging over two months- and the ministries of Transport and Territorial Policy took longer than the ministry bearing the biggest burden of the pandemic: the Ministry of Health, which averaged 51 days. The Ministry of Social Rights and the 2030 Agenda was the fastest: its average was only two days and none of the six emergency contracts it awarded were late to the Public Sector Contract Portal, if we don’t count the period of mandated administrative paralysis during the initial state of alarm.
It is not the first time that the transparency of emergency contracts has been late. In fact, early in 2020 the Government published a contract for some repairs in its Hamburg consulate that it had awarded in April 2018. The slowest contracts of 2020, signed early that year and unpublished until 2021, were pre-Covid contracts (one for a CT scanner for Elda Hospital and another for construction at the Ministry of Culture headquarters, for example). But the massive use of emergency procurement to manage the pandemic has brought with it, in parallel, a massive delay in the publication of these thousands of contracts.
The rules of transparency are the same for everyone, even in emergencies
The transparency of emergency contracts is not only important because it is the only, usually limited, information we have on those contracts, but because all public contracts can be appealed. If it remains unpublished, however, nobody can know about the contract or the deadline for filing an appeal. Therefore, even if the emergency contract is oral, it is mandatory to document and publish it.
The State Public Procurement Advisory Board reiterated this in an informative note, in which it noted that although it is not necessary to open a file when issuing an emergency contract, or to announce the decision to procure something, the Law “does not include, on the other hand, exceptions for these contracts in relation to the publicity of their awarding and formalisation in public contractor profiles.” That is: in terms of transparency, emergency contracts have the same rules as the rest, established by the Law in its articles 151.1 and 154.1: the award and formalisation must be published in the public procurement portals within 15 days.
The Independent Office for Procurement Supervision (OIRESCON) also insisted on this idea. It has done so in various reports on transparency in emergency contracts, where it also denounced the lack of data and incoherence and public access problems in many public contracts. It also put a bigger problem on the table: we can analyse what has been published, but we cannot - neither they nor anyone - analyse what does not exist, what has not yet been made public. Considering the delays that we do know about, it is more than likely that there are many emergency contracts awarded in 2020 that have not yet seen the light of day.
Esteban Umérez, a lawyer specialised in public procurement, agrees: the use of emergency procurement does not exempt public entities from the publishing rules that apply to all public contracts. What about the almost two months during which administrative deadlines suspended, from 14 March 2020 to 7 May 2020? From his point of view, public contracts signed during that state of alarm - despite the suspension of administrative deadlines -, are subject to the requirement of publication within 15 days: “If public procurement is possible, so is publishing the contract”.
Despite that, we have not counted that time in this analysis. Even forgiving that period, the delays to transparency were substantial.
This article is part of Tenders Guru, a project funded by the European Union.
The data used in this article comes from the Public Sector Contracting Platform (PLCSP), where the majority of Spanish public entities publish procurement data. We have downloaded all contracts published from January 1 to December 31 from 2020. They total 119,976. In addition, we have also added the contracts that some regional administrations (such as Madrid and Catalonia) publish on their own websites and only summarise on the PLCSP. We found 53,838 such contracts. The goal was to create a comprehensive database for understanding emergency procurement in 2020 and detect potential abuses of the rules.
All amounts exclude value added taxes and we excluded so-called minor contracts, subject to less demanding transparency and publication rules.
We calculated the publication times by comparing the award date of each contract with the first day it appears in the Public Sector Contract Portal. We do not count days between 14 March 2020 and to 7 May 2020, when administrative procedures suspended, although it is not clear that the suspension changes publication requirements for contracts awarded during the state of alarm. In fact, it is more than reasonable that if the suspension of administrative deadlines did not stop the emergency procurement then it should not have stopped publishing emergency contracts. We have preferred to be generous and, given the legal uncertainty, not count that extra time. Still, the delays are substantial.
In this specific report, we excluded autonomous community of Galicia because it did not send its emergency contracts to the national portal and we excluded the autonomous community of Madrid because it lists contract publication dates but not when it signed its contracts.
At the beginning of 2021, seven autonomous communities did not publish their procurement data directly on the national portal, but rather on their own portals: Andalusia, Catalonia, Euskadi, Galicia, Madrid, Navarra and La Rioja. The Region of Murcia published incomplete data on the national portal in 2020. Although in theory these regional portals are connected to the national one and the information should match, in practice there are problems. Not all contracts are available, and fundamental information is lacking, such as the award date and the urgency of the contract. Therefore, we have completed the contracts of these external platforms with additional details extracted from their web pages.
Unfortunately, each autonomous platform has its peculiarities. While Catalonia and Euskadi always indicate the urgency of their contracts in a clearly labelled field, Andalusia often leaves it blank, as does Galicia. La Rioja adds “Emergency” to its file code. Navarra does not always mention the emergency, but classifies the contract as “without procedure”, implying that something unusual is happening. Madrid labels its extraordinary contracts as “Other procedures”, but to find the level of urgency you have to look at the notes: “Emergency”, which it might spell “EMRGENCY” (sic) or “Emergeincy” (sic) or … Galicia classifies everything correctly but has not sent its emergency contracts to the national platform, so we had to add them by hand. (The Galicia web search engine also insists that there are no emergency contracts, although there clearly are.) Madrid does not send all its contracts to the PLCSP either, although we have not discovered the pattern: some arrive, others do not. So, we downloaded all the contracts from its website and added the ones missing from the PLCSP. Furthermore, Madrid is the only platform that does not publish the award date of its contracts, but rather the “award publication date”, which is not the same thing. Murcia published its health systems’ procurement in a spreadsheet separate from the normal contracting information. We combined all the purchases from that file and its non-health procurement to our database. Catalonia published a series of “umbrella” contracts with multiple awards in an attached spreadsheets, plus a separate summary file for the entities of the Generalitat itself. We have reviewed and cross-checked all these files and added the results to our database. Asturias already officially publishes directly in the PLCSP but continues to send some contracts to its own external platform, and some contracts have invalid URLs that do not seem to be accessible even in the Asturian platform.
In general, both for contracts published on external and national platforms, we have found many contracts where the winner of the tender was “See notes” or “See award”, which we have had to add manually. We also found many contracts where the award amount was empty or was clearly incorrect when compared to the budget. We have corrected the errors that we have detected by verifying the original award certificates. A special shout-out to this maintenance contract for six vehicles issued by the city of Oviedo, budgeted at EUR 37,200 and awarded to a local company for -supposedly- 251.52 billion euros, 6.7 million times the original contract budget and 143 times Asturias’ entire health budget. It does not seem to have attracted the attention of any of the officials involved in publishing the clearly mistaken information. (It is also surprising that the other bid did not win, for “only” 50 billion euros.)
The end result is what we believe is the most comprehensive public contracts database available in Spain. This does not mean that it contains all 2020 emergency contracts: although by law all public bodies must send their information to the PLCSP, not all platforms do it consistently, as the Independent Office for Regulating and Supervising Procurement (OIRESCON) has already reported. Some contracts must still be on the long journey (sometimes many months long) from award to publication.
Once we created the database, we reviewed it for possible errors: duplicate files, mis-classified procedures, lots with the wrong prices, mistaken fiscal identification numbers (especially in the case of non-EU companies, which tend to be inconsistently filled in) or names written differently each time, and separate contracts published together that we have had to extract and separate…
The most important revision has been in the award prices, which we always record without taxes. We have looked at what happened with those contracts that did not have any amount or reported an amount of 0. We have filled in as many gaps as possible. In the case of the -few- framework agreements, we have used the bidding price, that is, the budget, since the final expense will depend on the final amount purchased from each supplier, and that has not yet been published.
In all these cases, we have had to dig up the original award documents when needed. And, sometimes, we couldn’t even find basic information in those documents, such as what had been bought from whom and for how much money. The two main barriers have been missing information and inconsistency and typos in the data.
You can download and reuse the clean files we used in this analysis from the Civio open data website here:
If you find errors, please notify us
We know that the original source, the Public Sector Contracting Portal, contained errors, probably from data entry into the systems by the public entities. We have fixed the errors we found. We have worked on the data with the greatest possible rigor, but if you find any flaws in them or in our analysis, please write to us at email@example.com and we will be happy to correct it.