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Peru will lose international arbitration for the Gasoducto del Sur , which will mean a loss of more than 2 billion dollars, warned César Gutiérrez , former president of Petroperú and an expert in hydrocarbons, recalling the lawsuit filed by Enegas , owner of the 25 % of shares of the Gasoducto del Sur Peruano (GSP) consortium , composed of Odebrecht , 55%, and Graña y Montero , with 20%, before the International Center for Settlement of Investment Disputes (ICSID). However, the presage of Gutiérrez did not remain there and explained one of the reasons that increases the probability of the Peruvian defeat: Emergency Decree 001 -2017, signed by Pedro Pablo Kuczynski and his ministers Fernando Zavala, as premier; Alfredo Thorne, as head of Economy, and Gonzalo Tamayo, of Energía Minas. SEPA MÁS DE Peritaje confirms 5 adulterations in the failure of the TC This norm was published just as the deadline for the expiration of the tender for the Southern Pipeline project was nearing completion, which meant that the GSP consortium had to leave the land and take their equipment. TRANSFER However, the resolution, dated January 2017, which states that it was intended to dictate urgent and exceptional measures necessary to preserve the value of the projects concession assets. Improvements to the Energy Security of the Country and Development of the Southern Peruvian Gas Pipeline , Meant a message of hope from the government for the GSP consortium. The decree also ordered the Supervisory Body for Investment in Energy and Mining (Osinergmin) to contract the company that was in charge of the administration, on behalf of the Peruvian State, of the assets of the concession. For the expert on energy issues, this decree meant opening the Pandoras box, since the State assumed, by itself and before itself, the responsibility for the pipeline project and kept the equipment left by the consortium. In this way, the GSP did not even worry about removing or transporting their equipment that was left in a safe place and even with a little delay it can more than recover its investment, even more so if the pipeline is not among the four projects in which Odebrecht accepted to have given bribes, according to the collaboration agreement signed with Peruvian authorities. What the State is saying is: I am going to dispose of the gas pipeline assets and I am going to administer them, which gives rise to the consortium understanding that the State is committed to delivering the amount of the goods within the maximum term one year; and, if it was not sold to a third party, the State was obliged to pay 72.25% of the book value net of the goods, Gutiérrez explained. ADMINISTRATOR OF THE PROPERTY With that resolution, Gutiérrez adds, a value to the assets left by the concessionaire, since the other position was that, once the concession was completed, the consortium had to take its equipment and assets and tender the project again. The State makes this their own; Plan B was: Its over, take your tubes, compressors, I have nothing to do with you; but that option was taken. Moreover, from the letter of guarantee that had charged US $ 280 million to the consortium, he says: take the money for the administration of this; 47 million dollars are paid and a company is hired to do the administration of the goods, Gutiérrez explained. It should be noted that in April 2017, the committee in charge of the selection process granted the good pro to guard and administer the gas pipeline assets for one year to the Colombian Technical Studies SAS, which presented an economic offer of US $ 46,899,003; Gutiérrez points out that with the government of Martín Vizcarra the contract was renewed. CHANGE OF OPINION However, with the change of ministers in the Energy and Mines portfolio -sale Gonzalo Tamayo and Cayetana Aljovín in July 2017- the government changes its position and says that the consortium must withdraw its assets. This situation generated the rejection of the Spanish Enagas that initiated a direct deal with the government, as a previous step to take the issue in arbitration to the ICSID. Enagas represents 25% of a consortium and they are claiming US $ 511 million; then the impact is that if Enagas wins -and there are reasons to believe that they will win it- the other companies that are members of the consortium will also claim the same right and that will become, at least, the payment by the Peruvian State of US $ 2 thousand million, said the former head of the state oil company. However, the contract with Estudios Técnicos expired in May 2018 and the Vizcarra government has renewed it, he reiterated. RESPONSIBILITIES For César Gutiérrez, there is not only a political responsibility for the expected defeat in the ICSID by the then President Kuczynski, his chief of staff, Fernando Zavala, and his ministers of Economy, Alfredo Thorne, and Energy and Mines, Gonzalo Tamayo There is also a criminal responsibility, because, according to Gutiérrez, the figure of incompatible negotiation would be configured. There is a responsibility to have created a contingency for the State that will end 2020 or 2021 running, he says. ALIGNMENT According to the expert, this emergency decree was aligned with a statement made by the company Graña y Montero, before the Lima Stock Exchange, in the vicinity of the expiration of the concession in January 2017 and the value of the shares of G & M They had fallen to historic lows. Gutiérrez remembers that at that time the company announced that they would recover at least, precisely, 72.25% of the investment in the gas pipeline. What would end up being confirmed thanks to DU 001-2017. For Gutiérrez, this situation requires an investigation by the Office of the Prosecutor to evaluate whether the incompatible criminal figure is configured. One of the ways of looking at this, that is to say, that there is a kind of protection for Graña y Montero, and that could configure the figure of incompatible negotiation of the Council of Ministers in full and of Kuczynski himself, Gutiérrez said. Commitment to Enagas As for the signing of the contract on the pipeline the rules required a qualified international operator, and Odebrecht did not have this condition, was forced to resort to Enagas, which is qualified. But in anticipation, this Spanish firm would have had it sign a document stating that if there were any illegality or acts of corruption, Odebrecht promised to pay all damages to Enagas. Chronology: January 23, 2017: The financial term expires, which promotes the dissolution of the contract that the concessionaire of the Gasodcuto del Sur project maintains with the State. January 31, 2017: Emergency Decree 001-2017. April 28, 2017: Osinergmin informed that the company Estudios Técnicos SAS obtained the good proposal to custody and temporarily manage the assets of the Gasoducto Sur Peruano (GSP) project, after the award process that took place that day. October 13, 2017: The minutes to agree the terms for the delivery of the goods from the Gasoducto del Sur project to the Peruvian State - in compliance with Emergency Decree 001-2017 - was signed by the Ministry of Energy and Mines (Minem) and Gasoducto Sur Peruano SA (GSP). Through the document, the Minem receives the goods as possession for custody and conservation through the company Estudios Técnicos SAS, administrator hired by the Supervisory Body of Investment in Energy and Mining (Osinergmin). IF BRIBES ARE CHECKED, EVERYTHING CAN GO TO HANDS OF THE STATE There is anti-corruption clause in the contract with Odebrecht This is the reason why in the case of the gas pipeline, Odebrechts will never accept bribes, says Manuel Romero Caro. One of the contract experts of the State, Manuel Romero Caro, has reiterated the improbability that there has not been an act of corruption in the Gasoducto del Sur. As is public, this issue of the pipeline has not been properly investigated by the prosecutors of the Lava Jato case, who have been more interested in the contributions to the campaigns of political parties in Peru, which do not exceed 10 million dollars , that in the overvaluation of the works, where there are billions of dollars at stake, or in the bribes to the high authorities, where there would also have been a lot of money. For the aforementioned economist, the consortiums Enagas and Graña y Montero were out of the game since Odebrecht could not get the resources (the financial closing) that was dated on January 23, 2017. That was the end of the gas pipeline project in the middle of the Lava Jato case scandal and the termination of the contract came. As a result, Enagas and Graña y Montero were only entitled to be paid 72.25% of the book value, less the expenses incurred to carry out an eventual new auction. The failed Odebrecht project, according to Romero Caro, was plagued by serious irregularities and perhaps some crimes, such as being grossly oversized, without even having a market study, or having met [Jorge Barata], before the award of the good pro, with ProInversión officials in charge of the tender , But it is also necessary to bear in mind that the gas pipeline is the only contract with an anti-corruption clause that establishes that if there were crimes of this nature, Odebrechts goods and services would pass into the hands of the Peruvian State, he affirms. This is why, in the case of the pipeline, Odebrecht will never accept bribes. The opposite would be a catastrophe for creditors, who must have taken as a pledge the equipment currently administered by the State, said the expert in statements to EXPRESO . |
