The decline of the Public-Private Partnership (PPP)
regime in Colombia
..........................................
El decaimiento del régimen de las Asociaciones
Público-Privadas (APP) en Colombia
Priscila Sánchez Sanabria
Diego
Andrés Beltrán Hernández
ABSTRACT
The main objective of this research is to
identify the main causes of the current decrease in the use of Public Private
Partnerships (PPPs) in the development of the country's infrastructure, since
the issuance of Law 1508 of 2012 to date. To this end, a mixed type of research
was carried out with a causal correlational scope, as it sought to explain the
relationship between the problems that PPPs have had in Colombia and their lack
of use in recent infrastructure projects. In addition, from a quantitative point
of view, information was collected from the Registro Único de Asociaciones Público-Privadas (RUAPP) and the Sistema Electrónico
para la Contratación Pública (SECOP) to identify PPP
projects and their duration.
Key words: Public-Private Partnerships (PPP), Public
Initiative, Infrastructure, Project Financing.
RESUMEN
El objetivo
principal de esta investigación es identificar las principales causas de la
actual disminución en el uso de las Asociaciones Público Privada- APP- en el
desarrollo de la infraestructura del país, desde la expedición de la Ley 1508
de 2012 hasta la fecha. Para logar tal fin, se llevó a cabo una investigación
de tipo mixto con un alcance correlacional causal, en tanto se buscó explicar
la relación que existe entre las problemáticas que han tenido las APP en
Colombia y su falta de utilización en los últimos proyectos de
infraestructura. Además, desde el punto
de vista cuantitativo se recolectó información del Registro Único de
Asociaciones Público-Privadas (RUAPP) y del Sistema Electrónico para la
Contratación Pública (SECOP) para identificar los proyectos de APP y su
duración.
Palabras clave: Asociaciones
Publico Privadas (APP), Iniciativa Pública, Iniciativa Privada,
Infraestructura, Proyecto de Financiación
Introduction
The importance of
infrastructure in a country lies in the fact that it enables its economic
growth, competitiveness and social development. Thus, in the opinion of the
former President of Mexico, Enrique Peña Nieto (2014), international experience
shows that the more and better the infrastructure, the greater and better the
opportunities for investment, job creation and income for the population.
Consequently, in order to achieve these objectives, countries must be concerned
about having state-of-the-art facilities in airports, roads, ports,
telecommunications, among others.
Colombia is no stranger to the need to develop its infrastructure and achieve
the social and economic benefits that this entails. In this regard, the World
Bank (2023) indicated in April of this year that Colombia continues to be one
of the most unequal countries in the world and that, in order to reduce
poverty, it needs to improve the quality of education, health and
infrastructure.
From this context, public-private partnerships (PPP) have been considered a
tool that for more than thirty (30) years has been used worldwide to develop
the infrastructure of the countries. In Colombia, specifically, with the
issuance of Law 1508 of 2012, the legal framework for its implementation was
created.
Before the issuance of
the referred law, Colombia had a significant delay in the development of its
infrastructure, as indicated by the Colombian Chamber of Infrastructure -CCI-
(2011) when mentioning that, despite the fact that by that date the investment
in transportation infrastructure had doubled, it was not enough (from 1.2% to
2%), since, for example, it had the same quality in road structures as
countries such as Zambia, Bolivia, Zimbabwe and Cameroon. Thus, by 2011, a
greater investment in infrastructure was required to overcome the backwardness
in spite of public investment, as shown in the following graph, where the
projected investment for 2020 in Colombia did not exceed 2.3 % of the gross
domestic product (GDP).
Within this framework, Law 1508 of 2012 was issued with the purpose of
attracting private investment in infrastructure, since public investment was
not enough to achieve development in electric power, communications, basic
sanitation, hydrocarbons, transportation, among others.
However, after reviewing
the information of the Single Registry of Public-Private Partnerships (RUAPP)
as of the year 2023, it became evident that there is a trend in the decrease in
the filing of projects carried out under this modality, since in the first
years of Law 1508 of 2012, an average of more than one hundred (100) projects
were filed per year under the PPP modality and, subsequently, after the year
2021, it decreased significantly to an average of thirty (30) per year.
The above contrasts with the diagnosis presented by the National Planning
Department -DNP- (2022) regarding PPPs in Colombia. In this report, the entity
highlighted that during the last 10 years around 835 PPP projects have been
presented, which indicates the great acceptance it has had in the country and
its use as a tool to achieve infrastructure development.
In that order of ideas,
and after a background search on the subject, no work, analysis or approach is
found that addresses the decline of PPPs in Colombia. On the contrary, these
works highlight their progress, which is not in accordance with the trend in
the decrease of projects registered in the RUAPP in the last four (4) years, as
well as the fact that some of the last major infrastructure projects, such as
the first and second lines of the Bogotá Metro and the Canoas WWTP, will not be
developed through PPPs but through traditional concessions, as well as the 80th
Street Metro in Medellín and the 13th Street in Bogotá, which will be developed
through public works contracts.
Therefore, the purpose of this article is to expose the main causes identified
for the current decrease in the use of PPPs for the development of the
country's infrastructure. To achieve this objective, the main projects
developed through PPPs in Colombia since the date of issuance of Law 1508 of
2012 were first identified. Subsequently, the main difficulties encountered in
PPP projects were identified. Finally, the infrastructure projects that were
not developed through PPPs and the reasons why they were not developed through
this modality were identified.
The development of these
objectives was carried out through a mixed type of research with a causal
correlational scope in that it sought to explain the relationship between the
problems that PPPs have had in Colombia and their lack of use in recent infrastructure
projects.
From a
quantitative point of view, information was collected from the Single Registry
of Public-Private Partnerships (RUAPP) and the Electronic System for Public
Contracting (SECOP), in order to establish the PPP projects that have been
presented, both public and private initiatives, and the average duration
(prefeasibility, feasibility and awarding) of each project. Information from
the Ministry of Finance and Public Credit was also consulted to analyze the
progress of PPPs.
From a qualitative point
of view, the advantages and disadvantages that have been presented in the use
of PPPs were identified, as well as the reasons why this tool has not been used
in recent infrastructure projects.
Thus, this article will be developed through the following sections: (i) main PPP projects in Colombia since the creation of Law
1508 of 2012, (ii) main difficulties presented in PPP projects, (iii) main
infrastructure projects in Colombia and their move away from the PPP modality.
Law 80 of 1993
establishes that the public service seeks to satisfy collective needs, which is
based on Articles 1, 2, 334 and 365 of the Political Constitution of Colombia.
Article 1 of the Political Constitution establishes that Colombia is a social
rule of law, which implies guaranteeing the effectiveness of citizens' rights,
which can be achieved through the adequate provision of public services.
According to Article 2 of the Constitution, one of the essential purposes of
the State is to serve the community, promote general prosperity and “guarantee
the effectiveness of the principles, rights and duties” enshrined in the
Constitution. In that order of ideas, according to the Constitutional Court
(2002), when it seeks to satisfy collective needs, the general interest is
being considered above individual interest.
Therefore, in a social
State under the rule of law, the satisfaction of collective needs is a matter
of great relevance, since according to Article 334 of the Political
Constitution, the State will intervene in a special way to ensure “in a
progressive manner, that all persons, particularly those with lower incomes,
have effective access to all basic goods and services”.
In this sense, the
public service must be in accordance with the real needs of the population and
seek to satisfy the general interest. To achieve these objectives, state
contracting is established as a tool for state entities that allows them to do
so, to the extent that it provides the goods, services or works required by a
community. State contracting, as a tool, must be in accordance with the reality
and current needs of the community, in order to be able to respond to the new
challenges presented by the social, economic, technological and cultural
changes it is undergoing.
One of the ways of providing public services is through the participation of
private parties. Thus, PPPs are a modality used to achieve this objective. The
IDB (2010) has indicated that PPPs are long-term investment schemes to develop
productive infrastructure, which incorporate techniques, risk sharing,
objectives and resources between private parties and the Government.
(DNP) (2016 a) in the
document Guía de Asociaciones Público Privadas allows understanding the notion of a PPP and why
its implementation has been important in other countries to develop
infrastructure and the provision of public services, to the extent that it has
been an instrument to attract private investment when the State does not have
sufficient resources, Therefore, the private party can finance the
construction, operation and maintenance of the project, being remunerated with
the economic exploitation of the infrastructure and with resources from the
State, having the right to it when the works have been completed and the
standards of quality and availability of the infrastructure in the maintenance
and operation of the infrastructure are met.
He also indicated that
these projects require investing more time to define the levels of services and
greater rigor in their structuring, i.e., it requires public entities to invest
more time in the planning and structuring of the project.
The definition of PPP is found in Article 1 of Law 1508 of 2012 for the case of
Colombia. According to said article, the purpose of PPPs is: (i) the design and construction of an infrastructure and its
associated services, (ii) construction, repair, improvement of an infrastructure,
(iii) equipment of the infrastructure. The above activities must involve the
operation and maintenance of the infrastructure.
In accordance with Law
1508 of 2012 the characteristics of Public Private Partnerships are the
following: (i) instrument of linking private capital,
(ii) it is materialized in a contract to be entered into with a natural or
legal person, (iii) retention and transfer of risks between the parties, in
order to perform an adequate administration thereof, (iv) projects exceeding
6000 SMMLV, (vii) the retribution consists of the economic exploitation of the
infrastructure and contributions of the State, and (viii) application of the
principles of the administrative function, contracting and fiscal
sustainability.
The difficulties presented by PPPs have been identified by Hall (2015) in the
work entitled Why Public-Private Partnerships (PPPs) do not work, an analysis
from which we will start to identify whether the decline of PPPs in Colombia is
explained from the reasons exposed by the aforementioned author and which are
summarized below.
Among the main causes exposed by Hall (2015) regarding the non-functioning of
PPPs is the fact that they lend themselves to corruption. This is evidenced by
indicating several cases, especially what happened in Albania, Nigeria, India
and El Salvador, where this type of projects generate
numerous resources for periods of 25 to 30 years, which leads to the use of
corruption to guarantee large resources and for long periods of time. He also
indicated that corruption also occurs in the governmental sectors, where this
type of contracts are entered into to grant gifts to
relatives and friends, as well as a way to pay political favors.
Likewise, the same
author indicated that PPPs are full of lies and exaggerations. Regarding the
former, since they do not indicate the real costs in the subscriptions of the
contracts, which in many cases are high; therefore, it is necessary to
celebrate later substantial additions to continue with the execution of the
project. Regarding the latter, PPPs exaggerate the real demands of the projects
so that they can be awarded, but later, during execution, the number of users
of the service does not exist, and the projects are wrongly sized. In the same
sense, Hall (2015) expressed that this type of projects go against transparency
because not much information of the projects is disclosed under the cover of
commercial confidentiality.
Another criticism of PPPs has to do with the fact that, if they are not
commercially viable, they are not subscribed by individuals, which generates
that political decisions are focused on that premise and that sometimes
projects are not executed because they do not meet that condition.
He also indicated that
these projects have a negative impact on the environment and trade union
rights, since environmentally friendly resources are not used in order to
optimize the profits generated by these projects. As for union rights, since
the service is not provided by a single entity, as, for example, when it is
carried out by the public sector, but by several companies, union power is
spread and minimized. In addition, in the private sector, in order to obtain
higher profits, they sometimes resort to downsizing.
On the other hand, another of the reasons presented is related to the fact that
the private sector does not really generate additional resources to finance the
projects, but that the resources come from the treasury and from the rates or
charges made to the users, therefore, the benefit in terms of the generation of
additional resources is not true.
He also indicated that one of the justifications for developing projects
through PPPs is the transfer of risks to the private party, but that this
transfer is in no case free, but rather the private party charges a high value
for the assumption of the risks in the project.
Finally, there have been several failures of PPPs, which is why he does not
recommend this modality.
In summary, Hall (2015)
pointed out that PPPs do not work because of corruption issues, the
exaggerations and lies surrounding PPPs are limited to their acceptance by
private parties, the high costs that must be paid to the private party to
assume the project risks and there are several cases of failure of PPPs.
Eurodad
(2018) also mentions several causes why PPPs fail. Among them, he indicates
that PPPs carry excessive risk for public entities to the extent that it has to
assume the costs when the project is not working. In addition, he points out
that they had major environmental and social problems due to the lack of
adequate socialization with the communities.
Taking into account Hall's (2015) arguments, one of the great evils suffered by
state contracting is corruption. According to the Comptroller General of the
Republic in a publication of the magazine Semana (2021), corruption affects 18%
of public procurement in the country.
According to data from
Monitor Ciudadano de la Corrupción
(2021), corruption in public procurement corresponds, in the years from 2016 to
2020, to 42% of the cases in administrative corruption and 17% of political
corruption. To that extent, corruption is an evil that corrupts public
procurement, without being attributable to a single contracting modality, as is
the case of PPPs.
In Colombia, both in
PPPs or similar modalities and in the traditional contracting of companies and
public entities, there have been cases of corruption that affect finances and
the provision of public services.
For example, before the entry into force of Law 1508 of 2012, one of the most
recent cases was the Ruta del Sol 2, which, according to Nuevo Siglo (2020),
was carried out through a concession, a modality very similar to PPPs, and
where one of the biggest corruption scandals occurred due to the payment of
bribes for the award of the contract made by the company Odebrecht.
Likewise, in Colombia it
was known the contracting carousel of Bogota (La República (2023), the
surveillance (Attorney General's Office (2015) and school meals (LA FM (2015),
which mostly corresponded to contracting modalities other than PPPs or similar models,
where the traditional contracting modalities were used by public entities and
generating serious damages to the State and, above all, to the provision of
services.
In conclusion, corruption cannot be attributed to a single contracting
modality, but covers each one of them, where the problem is a society that must
be more radical and not tolerate this type of behavior by strictly applying the
principle of administrative morality and severely punishing these crimes.
However, corruption has
also affected PPP contracts entered into under Law 1508 of 2012. Of the
fifty-one (51) contracts entered into to date, three (3) have been terminated
early, and where, in addition, one was affected by the corruption cases of the
company Odebrecht, majority partner of the company Navelena
SAS that executed the concession for the navigation of the Magdalena River.
Last September 13, 2014, between Cormagdalena and the
company Navelena SAS entered into PPP contract 01 of
2014, the purpose of which was to recover the navigability of the Magdalena
River. Among the obligations that the contractor had to comply with was to
obtain the financial closure, that is, to obtain the financing resources for
the project. On this matter, W Radio (2016) stated that, due to the corruption
scandals, Odebrecht was seeking to cede its shareholding to achieve the
financial closure, for which it presented three (3) possible candidates to Cormagdalena.
Subsequently, the assignment of its shareholding was not carried out and the
financial closing, which it had initially achieved with Sumitomo Bank, did not
materialize, as this financial entity pointed out that it had not managed to
obtain all the internal authorizations to make the disbursements, for which reason,
since the financial closing was not achieved, Cormagdalena,
through resolution 078 of March 23, 2017, declared the expiration of the
contract.
In summary, it can be evidenced how corruption cases have affected PPP
contracts regulated by Law 508 of 2012 and, for this particular case, how this
led to the early termination of the project for the recovery of the Magdalena
River without having been re-hired to date and achieving the objectives that
were set out with the execution of the contract.
Conclusions
From the research
carried out, it was concluded that there is a decline in the use of PPPs in
terms of the number of projects filed, awarded and investment amounts, being,
to date, very little used this modality by public entities and concentrating
most of this type of projects in the hands of ANI.
Among the main
difficulties presented by PPP projects are the increase in structuring and
contracting times. Regarding the other difficulties, such as environmental
issues, corruption, costs and cases of successes and failures are common to any
type of infrastructure project, regardless of the contracting modality.
Therefore,
comparing the requirements to be met by a project that is structured and
contracted under the PPP modality and another through the Concession of Law 80
of 1993, it can be indicated that in the latter case there are fewer
requirements, activities and approvals, which results in less time to carry out
and execute the project.
In this regard, it
should be noted that in the development plans, infrastructure is an important
issue to achieve the welfare objectives of a community, therefore, in the
periods of four (4) years of government, the ideal is that such infrastructure
projects can be structured and contracted to give continuity to them, However,
as presented in the findings of this work, in recent years PPPs have taken more
than four (4) years for their structuring and development, so that the
concession of Law 80 of 1993 becomes an alternative so that in the period of a
Mayor, Governor or President of the Republic their projects can be contracted.
As it was
identified, PPP projects must comply with additional requirements to those of
the concession established in Law 80 of 1993, such as: registration in the
RUAPP; concept on its evaluation and prioritization according to sectorial
policies; prior approvals to establish units and functions; approval of
financial conditions; justification for the use of the PPP model; payment of
fees for additions and extensions of PPP contracts. In addition, the
requirements for the amounts of the PPP projects and that of the functional
units, the terms of execution of the contract, the opportunity and terms of the
additions and extensions, the form of establishing the retribution, the
management of the resources through an autonomous patrimony, identification of
the beneficiary and formulas for early termination of the project must be
complied with.
In spite of this,
it has been maintained that PPPs bring several advantages such as the rapid
availability of infrastructure; the optimization of public resources due to
their adaptation to fiscal frameworks; bringing together the strengths of the
public and private sectors;
incentives that
allow projects to be delivered on time and according to budget; the use of better quality standards, accounting, risk analysis, costing
systems and resource management systems; adequate allocation and management of
project risks and stability in the quality and maintenance of infrastructure,
because, in most cases, they are long-term contracts.
Despite the
aforementioned advantages inherent to PPPs, it is identified that they can also
be incorporated in traditional concessions under the principle of private will
autonomy enshrined in Article 40 of Law 80 of 1993, as happened in the cases of
the first and second line of the Bogotá metro and Regiotram
de Occidente.
The World Bank
(2015) in the lessons learned in Latin America and the Caribbean
recommends the
review of the legal framework of PPPs, in order to verify that it adapts the
best practices and detect their strengths and weaknesses, for which, for our
case, it would be relevant to improve the structuring and contracting
processes, so that their duration does not continue to increase over time. On
the subject, Jaramillo (2019) mentions that PPP projects must be subject to
constitutional and civil service principles such as efficiency, speed, and
economy, among others, therefore, the legal framework must be reviewed and
verified that these principles of the administrative function are being
complied with.
The above is also
in line with what was indicated by the Inter-American Development Bank (IDB)
(2015) when analyzing the case of Honduras, in which it makes recommendations
to improve PPPs in that country, one of them being to improve project planning.
Gamboa, et al.
(2017) described the aspects of Law 1508 of 2012 that, according to their
criteria, provides legal uncertainty, including the definition, which was not
broad enough by not including the PPP modalities, financing mechanisms and the
obligatory nature of sponsors. In addition, it established recommendations to
adequately structure a project, highlighting compliance with the planning
principle and its interaction with the market, in order to know its acceptance
and if there are companies interested in participating in its execution.
Regarding the
acceptance of the project by the market and the establishment of financing
mechanisms, it was observed that the common element in the structuring and
contracting of infrastructure projects is the project finance model.
Consequently, it
is recommended that the requirements and the longer terms required for a PPP be
reviewed in order to simplify and streamline them so that this modality does
not continue to decay, since otherwise the option of using a traditional
concession of Law 80 of 1993 is the most convenient due to its lower
requirements and terms to develop infrastructure projects.
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SECOP I, búsqueda de procesos de contratación https://www.contratos.gov.co/consultas/resultadoListadoProcesos.jsp#
Semana. 2021. Esta es la reforma a la
contratación pública que radicará el Gobierno https://www.semana.com/economia/articulo/exclusivo-esta-es-la-reforma-a-la-contratacion-publica-queradicara-el-gobierno/202103/
W Radio (2016) Odebrecht cede su participación
mayoritaria en Navelena
Zamojcin Rodríguez María Teresa (2019), la financiación de las
“vías 4g”: debilidades y contratiempos en un programa ambicioso de concesiones
de infraestructura vial ejecutado en Colombia, estructurado bajo un marco
jurídico comparado e interdisciplinario que, impacta al derecho económico
internacional, maestría en derecho económico con énfasis en derecho económico
internacional, comercio, transacciones e inversión, Universidad Externado de
Colombia.