In a second instance ruling, the Council of State denied the claim for annulment of reestablishment of rights through which the multinational Vitalogic wanted the Municipality to pay it $574 billion.
After more than six years, the Third Section Subsection B of the Council of State dismissed the lawsuit through which the Unión Temporal Vitalogic RSU demanded payment by the municipality of Bucaramanga of compensation of $574 billion. This is due to the non-contracting of the multimillion-dollar contract for the treatment of solid waste in Bucaramanga with new technologies for the next 30 years, by the administration of Rodolfo Hernández.
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In the judicial process, Vitalogic demanded the legality of the administrative act by which Emab declared the public invitation void and, therefore, demanded the payment of compensation for damages caused in the amount of $579,546 million that would correspond to the net profit: after of costs, expenses, interests and taxes projected for the year 2043.
Similarly, Vitalogic demanded as a subsidiary claim for consequential damages a payment of compensation for reestablishment of rights for the value of the guarantee established in the contract, that is, for $3,709 million.
“According to the appellant, the city of Bucaramanga was deprived of a foreign investment close to 250 million dollars. He affirmed that it was a ‘Macondian’ fact that Bucaramanga rejected that investment ‘that could have put the city at the forefront among the cities of Latin America’, all ‘on the basis of absolute submission to a norm foreign to private law, even in “contrary to what is stated in the specifications,” reads the respective demand.
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Sentence
In the second instance ruling, the Council confirmed the ruling issued in June 2019 by the Administrative Court of Santander, TAS, which denied Vitalogic’s claims, considering that Emab did not incur any irregularity in declaring the public invitation void. IP-001-EMAB-2017, since the proponent did not fully comply with the requirements of the bidding process, by presenting a bond, when what was required in the specifications was clearly an insurance policy.
“According to the plaintiff, the EMAB’s “specifications” allowed for the presentation of a guarantee of seriousness of the offer other than an insurance contract, as was the case with the bond, although ‘after that the entity retracted and did not ‘he applied what was obligatory’. This understanding of the appellant is wrong, since, as the Court concluded in the first instance ruling and the Public Ministry warned in its intervention, the entity did not allow the seriousness of the offer to be guaranteed through a surety contract. . From the analysis of the evidence, it is concluded, without difficulty, that there was no ambiguity or equivocation in the provisions that were part of the public invitation, with regard to the requirement of the guarantee of seriousness of the offer,” the high court considered.
In the same way, the Council of State pointed out that the Emab contracting manual (which was part of the selection process, in accordance with the provisions of the specifications), in its article 22, paragraph 17, specifically states that The “guarantee of seriousness of the offers made” establishes that “the guarantees will consist of policies issued by insurance companies legally authorized to operate in Colombia or bank guarantees, and all those established by Decree 4828 of 2008,” a rule that According to the high court, in any case, it did not consider bail as a possibility to guarantee the seriousness of the offers.
In this sense, the Council of State denied the claims of the Vitalgoic RSU Temporary Union, so the municipality will not have to pay the million-dollar compensation. On the contrary, Vitalogic was sentenced to pay a fine of close to $16 million for the costs of the judicial process of the lawsuit.
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The scandal
In 2017, Vanguardia revealed the irregularities that occurred at the time and that gave rise to the scandal known as Vitalogic, which ended with the leader of the League of Anti-Corruption Rulers and who was on the verge of being president of Colombia, convicted. for the crime of improper conclusion of contracts.
The former mayor of Bucaramanga, Rodolfo Hernández Suárez, and his son, Luis Carlos Hernández, are involved in a national scandal for an alleged brokerage agreement, that is, a type of ‘lobby’ linked to the process of awarding a contract for treatment of alternative technology with the management of solid waste in El Carrasco, valued at nearly 250 million dollars and which was ultimately not awarded.
A brokerage agreement is a type of agreement through which a person becomes an intermediary to put two or more people in contact, with the aim of them entering into a business deal. Whoever carries out this intermediation, lobbying or lobbying receives compensation in exchange.
On November 14, a disciplinary complaint was filed against the former president of Bucaramanga before the Second Delegate of Contracting Attorney General’s Office, where they accuse his son, Luis Carlos Hernández, of allegedly signing a brokerage agreement in the signing of the million-dollar contract. between the Bucaramanga Cleaning Company, Emab, and Vitalogic RSU, to build a plant that would transform solid waste into electrical energy, in a 30-year concession. Agreement that was not concluded due to a request from the Attorney General’s Office to postpone the award of that contract and that the mayor complied with.
