El anillo insular pende del hilo de la “rectificación de un error material o de hecho”

Las últimas actuaciones ponen en riesgo la obra, pero no es tarde para enmendar.

La última decisión dictada por el Tribunal Administrativo del Gobierno de Canarias en relación a la obra conocida como Cierre del Anillo Insular está basada en un importante error material  por parte de los Servicios Jurídicos del Gobierno de Canarias, en relación a una parte del informe de la oferta presentada por la UTE adjudicataria: Obrascon Huarte Lain, Sociedad Anónima de Trabajos y Obras, Excavaciones Bahillo y Asfaltos Bahillo.

Se trata de un error material que convierte 14.277.522,43 euros en casi un tercio de ese valor. El hecho de que el Tribunal Administrativo de Canarias haya  emitido su fallo en 48 horas y sin haber permitido a la empresa adjudicataria hacer alegaciones complementarias, tal y como se solicitó, ha impedido aclarar un error que ahora puede colocar el anillo insular en la cuerda floja, si bien es cierto que la UTE OHL, en su afán por emprender la obra en tiempo y forma para que no haya ningún problema, ha solicitado hoy mismo ante el Tribunal Administrativo de Contratos Públicos de Canarias la “rectificación de error material o de hecho” que podría dejar aclarado este penoso incidente.

La cuestión es que el segundo informe de los Servicios Jurídicos que determina suspender la adjudicación otorgada en primer lugar lo hace, según transcripción literal, porque “la propuesta presentada por la UTE OHL (por importe de 5.579.700 euros) no justifica el cumplimiento de las obligaciones establecidas en materia social o laboral por la normativa y el Convenio Colectivo del sector de la Construcción de la provincia de Tenerife 2017-2021, al ser el coste laboral mínimo del Convenio Colectivo 6.449.969,97 euros”.

Esto sería correcto si no fuera porque a alguien se le olvidó que dicha obra, tal y como está recogido en el anexo 11 de la memoria justificativa, tiene dos plantillas de empleados tal y como recoge  claramente el informe: la de los trabajadores en general por el importe anteriormente citado y la de los trabajadores de los túneles, cuyo coste ascenderá a 8.697.822,43 euros, con lo cual el total de las obligaciones laborales será de 14.277.522,43 euros, más del doble de lo estimado en el Convenio de la Construcción al que se hace referencia.

La decisión de la UTE adjudicataria de solicitar al Tribunal Administrativo la rectificación del error supone la posibilidad de que el Anillo Insular empiece a construirse en noviembre. De no ser así, el procedimiento seguiría su curso, es decir, se propondrá la adjudicación de la obra a la segunda empresa mejor puntuada y, en caso de adjudicarse nuevamente, dicha decisión puede ser recurrida por el resto de las empresas, lo cual haría inviable la construcción del anillo insular. No olvidemos que la DIA caduca el 12 de diciembre de 2019.

Por otra parte, está también la posibilidad de que la UTE OHL inicie un procedimiento contencioso administrativo en defensa de sus derechos que habrían quedado vulnerados y que obviamente conllevaría medidas cautelares.

CRONOLOGIA:

2 DE ENERO DE 2019: Anuncio de licitación de la obra

13 DE MAYO DE 2019: Propuesta de Adjudicación a la UTE Obrascon Huarte Lain, Sociedad Anónima de Trabajos y Obras, Excavaciones Bahillo y Asfaltos Bahillo.

5 DE JUNIO DE 2019: Adjudicación de la obra a la denominada UTE OHL

26 DE JUNIO DE 2019: Recurso presentado por la segunda empresa licitadora

19 y 31 DE JULIO DE 2019: Informe de la Consejería de Obras Públicas. En este informe los Servicios Jurídicos no encuentran razón para el recurso de FCC.

13 DE AGOSTO DE 2019: El Tribunal Administrativo de Contratos Públicos del Gobierno de Canarias traslada los informes a la UTE ganadora para que ésta haga las alegaciones que considere oportunas.

19 DE AGOSTO DE 2019: la UTE OHL presenta sus alegaciones

15 DE SEPTIEMBRE DE 2019: El Tribunal Administrativo del Gobierno de Canarias solicita a los Servicios Jurídicos de la Consejería de Obras un nuevo informe aclaratorio. Una solicitud sorprendente por lo inusual de una segunda petición de informe.

22 DE SEPTIEMBRE DE 2019: Los servicios de la Consejería emiten informe según el cual la empresa adjudicataria no cumple con las obligaciones establecidas en materia social y laboral. Este informe se sustenta en un error material o de hecho al haberse tenido en cuenta sólo un tercio de los importes laborales.

24 de SEPTIEMBRE DE 2019: en 48 horas y sin haber dado lugar a alegaciones complementarias ni haber trasladado el informe a la adjudicataria tal y como se había pedido, el Tribunal Administrativo falla estimar  parcialmente el recurso administrativo de la segunda empresa.

30 DE SEPTIEMBRE y 1 de OCTUBRE DE 2019: la UTE OHL solicita a la Consejería de Obras Públicas y el Tribunal Administrativo de Canarias la “rectificación de error material o de hecho” con cuya corrección se desestimará el recurso presentado y todo quedaría resuelto.

 

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