New element that feeds the shadow of suspicion on the tender for beach services promoted by PSOE and Gent per Formentera in the last term and culminated by Sa Unió in this one. And is that the Consell de Formentera prevented bidders from accessing the information of the other bids and thus could present and document their resources systematically despite having an internal legal report of a technician of the Coastal Area that leaves no doubt. Moreover, the allegations presented in this regard were never answered. For this, it would have been necessary a counter-report, at least, that discredited with superior legal arguments the aforementioned report that is in possession of La Voz de Ibiza and of which we reproduce some fragments. The administration acted far from the principles of transparency and impartiality, since with its obstruction it hindered the resources of some bidders and made it easier for others to win the tender, avoiding being audited by opponents.
Helplessness
“All the time they told us that they could not give us access to the projects by decision of a lawyer, but there is a legal report that says that access cannot be denied, because it would fall into legal defenselessness.” The complaint corresponds to a former concessionaire of beach bars in Formentera, one of several who, over the past two years, have filed requests for access to information and legal appeals, motivated by multiple irregularities in which the mega-contest of beach kiosks on the island has been involved. The legal report referred to was prepared in February 2023 by Marta Vila Soriano, then a lawyer for Litoral de Formentera. The legal report states that the “contracting body” (in this case the Governing Board) must guarantee access to the requested documents once the award resolution has been made “since the purpose of access is to obtain the information for the filing of an appeal”. However, this report and the requests of the former concessionaires were systematically ignored. In effect, the Governing Board created a legal defencelessness. Vila Soriano justified the report on the basis of “the presentation of allegations, as well as of the opportune appeals, to the bidders not proposed by the Contracting Committee, with the result that some of the documents presented contest in detail the content of the offers that have been the object of evaluation by the technical services”.
In fact, the lawyer drafted this report in response to successive allegations submitted by former concessionaires to the Contracting Committee, and to the then President of the Consell and Councillor for the Environment. In response to each of these requests for access to information, the response was administrative silence. The bidders only became aware of the existence of this relevant report when, through the courts, they had access to the file. “Everything is public, it is in the file. And, above all, the Contracting Committee was aware of the existence of the report,” complained one of the former concessionaires consulted by La Voz de Ibiza. This lack of response to the successive demands for access to information contrasts with what happens in other parts of the Balearic Islands. For example, in Calvià the documentation required by a bidder, who has been claiming for the same in Formentera, has been delivered without delay. “They told us that there was no problem and that we had the right to see the whole file and in Formentera nobody has ever wanted to receive us and they do not answer our requests for access to information”, he complained to La Voz de Ibiza.
Right to access information
On the other hand, the text dismisses the argument, outlined in response to a request for access by Secretary Angel Custodio Navarro, that the information requested is confidential. “While it is noted that there are bidders who have declared the confidential nature of their bids, this is not sufficient, in the opinion of the undersigned, to deny access to bidders who so request,” the report concludes. In addition, the text clarifies that “access to the file will be limited to the information requested”, and that this “must omit personal data or other data that are irrelevant for the formulation of the corresponding appeal”. According to the report, in the event that the Governing Board considers rejecting the right to access the information “must communicate to the applicant the reasons for such refusal and indicating the appropriate remedies”. Something that never happened.
Complaints
“The legal report was made on the basis of our allegations, and if it had been heeded, it would have made many things easier for us, it would have saved us from having to file administrative appeals,” complains the former concessionaire mentioned at the beginning of this text. The text also emphasizes that in all the writings presented by former concessionaires “a view and copy of the file is requested”, in order to “file the appropriate appeal against the award agreement that may fall”. Since 2022, contentious appeals and complaints about the outcome of the tenders for kiosks and beach services in Formentera have been accumulating. One of the irregularities revealed by La Voz de Ibiza is that there were changes in the evaluation criteria (made with the bids already open) that impacted the winner of seven out of eight lots, otherwise they would not have won. In parallel, former concessionaires claim that the Contracting Committee evaluated the technical offers knowing the economic offers in at least 22 of 50 lots, which would have affected fifty companies. In this context, the Consell has refused to provide the “time trace” of the opening of the envelopes of the mega-contest under suspicion. Faced with repeated requests from one of the bidders, who points out that the change of criteria was made once the economic offers were known, the secretary of the Consell has responded that the Public Sector Contracts Law contains a specific regulation that excludes the application of the Transparency Law. An allegation that is ruled out according to the legal report of February 2023.
Irregularities
To raise further suspicions, the Consell has confirmed to La Voz de Ibiza the mysterious disappearance of a key Excel file. Not surprisingly, it gave an account of the scores of the bidders. The tables are only partially reproduced by fragments that appear in the minutes of the contracting portal. This document is key to tracing the modus operandi of the official in the spotlight and who scored the bids. It has also been denounced lack of documentation to prove, for example, economic solvency. These complaints, which led to legal appeals -and for which it was essential to have access to the files- are in addition to other allegations that have accumulated in recent months in relation to non-compliance with the requirements established in the bidding specifications. For example, it is claimed that many concessionaires did not submit a proposal with sufficient personnel to comply with the required opening and closing hours without violating labor laws. Already in season, former concessionaires have targeted current beach service providers for the lack of qualified lifeguards.
