For seven years, between 2009 and 2016, the municipality of Lima signed two contracts and four addenda with OAS and Odebrecht for the Yellow Line and Rutas de Lima concessions, including 18 tolls in the capital. According to Enzo Defilippi, former Deputy Minister of Economy during the government of Ollanta Humala (2015-2016), these documents did not have the approval of the Ministry of Economy and Finance (MEF), although the law has required it since 2008.
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During that period there was not only one rule that required, but four. The first was Legislative Decree 1012, whose legal basis served to sign the contracts of Línea Amarilla in 2009 (led by former Mayor Luis Castañeda) and Vías Nuevas de Lima – day Rutas de Lima in 2013 (with the former mayor Susana Villarán) .
It was pointed out in paragraph 9.3 of that decree that the final draft of the contracts required the "favorable opinion" of the MEF. According to Defilippi, also a teacher at the Pacífico Business School, the problem with this rule was that the power to declare the contract invalid for lack of approval "came from the judiciary or superior authority of the person who signed it; in in this case the city council ".
That is why two amendments were published in 2014: Law 30167, which required the favorable opinion of the MEF "without exception and on pain of nullity", and Law 30264, which stipulated that not having this requirement required the contracts "void and invalid "and were without effect.
Emergency legislation 006-2015 was added to this legal framework, which set a special deadline for all contracts that did not meet this requirement for exceptional assessment.
"But none of the Lima municipality contracts [de concesión de peajes] nor the addendum that extended the OAS concession term from 30 to 40 years [firmada en el 2013] they were sent to the MEF, "said Defilippi.
In this regard, Rutas de Lima (acquired in 2016 by Brookfield, Canada) stated that the legal framework in force at the time of awarding the project "did not oblige the contract to express an opinion" from the MEF. "The project did not involve state resources or the provision of financial guarantees by the state," he said.
-Points of sight-
For Julio Cesar Castiglioni, a lawyer who specializes in municipal matters, the lack of this requirement in contracts is a factor that can be used by the municipality to assess disability. As explained, compliance with legal requirements is not optional, although the rule does not specify the obligation in text. "The MEF's lack of opinion is an element to at least request a precautionary measure in arbitration to suspend contracts," he said.
Johnny Zas Friz, doctor in public law, is of the opinion that it is arguable that this requirement is binding, since the contracts are still valid.
-For review of
The President of the Republic, Martín Vizcarra, considered it valid to revise the concession agreements and their legal basis. "The toll is a strictly municipal competition. […] It is absolutely valid and responsible to review the history of this toll and make the best decision, "he said.
On Wednesday, the mayor of Lima, Jorge Muñoz, said they would assess the nullity of the contracts with OAS and Odebrecht due to their links to corruption cases. According to the prosecutor, Villarán received US $ 10 million with preventive detention in exchange for signing agreements with the construction companies. Castañeda is also being investigated by the Prosecution.