“In (Puerto Rico Department of) Health nothing is done without ____ approval,” that was the main reaction of multiple sources consulted by the investigative team of NUESTRO, informants with direct knowledge of the actions of the Puerto Rico Department of Health (PRDH) that since the beginning of the COVID-19 pandemic in the island have collaborated anonymously, risking their jobs or contracts with the leading agency implementing the health public policy that shall be follow, established by the administration commanded by the Governor Wanda Vázquez Garced.
On June 20, 2020, 36% of users chose #Nuestro’s first report to revolve around government contracts. In second place was the issue of COVID-19 on the island, with 35% of the votes.
Exactly two weeks ago, on June 22, 36% of users selected to have PRDH contracts investigated. Since then, several of our journalists and collaborators have held conversations with at least seven people, which have revealed a substantial amount of data that calls into question the purity of the selection process for the personnel in charge of managing the pandemic, which gave way to the declaration of a State of Emergency 121 days ago, on March 12, 2020.
“A state of emergency is declared throughout Puerto Rico regarding the outbreak of coronavirus or COVID-19 that currently afflicts the world population. The foregoing, in order to carry out all efforts and implement all those measures to safeguard the health, welfare and public safety of our citizens, in order to minimize or avoid the risk of any situation that represents or constitutes a threat to public health or safety as a result of the COVID-19 outbreak,” reads the Executive Order 2020-20, which remains in force through amendments.
What do we know? That in the PRDH a name is repeated as a common denominator when managing the contracting budget that serves to shape the main efforts to stop the novel coronavirus that, at the closing of the writing of this report, has registered a total of 9,366 cases totals. Of these, only 2,435 (26%) have been confirmed with molecular tests or PCR+, while 6,931 (74%) of these have not received the certainty that a confirmatory or diagnostic test provides, for reasons unknown to both the scientific community and the Puerto Rican population. Just on Saturday, a total of eight deaths were recorded on the data panel or “Dashboard”.
On May 13, the PRDH Secretary announced at a press conference that he will designate $150 million to buy more “tests and tracking” of contacts. This figure would come out of the $2.2 billion that the federal government allocated to Puerto Rico to deal with COVID-19. The “contact tracing” initiative that was supposed to start on July 1 has not started as of today as publicly anticipated.
“The $150 million are not just in tests and tracking, we are also talking about personnel, we are also talking about infrastructure. One of the things that we find in the Health Department is an infrastructure that needs significant changes, particularly servers, cloud, and the necessary equipment to be able to keep up with this pandemic and this era. We are in that process,” the head of the PRHD assured the press and the public.
What are we investigating?
A document held by NUESTRO reveals that since the implementation of the first curfew and total closure of businesses decreed on March 15 by Governor Vázquez Garced as a result of the impact of COVID-19 in the United States, the PRDH has signed a total of 109 contracts and 265 amendments to existing agreements. The information, which is consistent with the Comptroller’s Registry of Contracts, shows that millions of dollars have been invested in contractors who have billed for their services for months. In some cases, truly little is known about the results of their efforts.
At the moment, the investigative team of this news media examines a large part of these contractual agreements, one by one, to identify the delegated functions, the salary accrued and the origin of the budgeted items that are used to pay the contracts. At the same time, it is investigated if there is duplication of efforts between the contractors and the career employees of the public agency or other dependency of the Executive Branch and it is investigated whether the operational organizational chart of the PRHD has been altered to divert the main responsibility of decision-making that the secretary of the PRHD has by mandate of law to transfer it to other people, through a parallel managerial structure.
No contracts? No problem
On May 6, 2020, the undersigned journalist had revealed in collaboration with Caribbean Business and CB en Español the instructions given by the Comptroller of Puerto Rico, Yesmín M. Valdivieso Galib, through Circular Letter 2020-20, which gave a touch of the transparency to the contracts of all public dependencies of the Government of Puerto Rico.
In summary, its guideline extended “up to 15 days after the end of the curfew, the term to register and send, through the Contracts Registration application, all the contracts awarded which term expires during said period.” In addition, it made possible that any contractor could sign agreements with the Government, even if they do not meet the requirements imposed by law to provide goods and services in the middle of the coronavirus emergency on the island.
“During this emergency period, they can proceed with the benefits or considerations established in any contract duly formalized by all the parties. If the contractor does not have available the documents required by law for the formalization of the contract, they must provide them within 60 days of the end of the curfew.”
Does this also include purchase orders? We question the Comptroller.
“Government procurement and contracting processes cannot be classified in the same way. A purchase order is not a contract per se (that is why they are not registered), although a purchase order can originate from a contract. Government contracts have to comply with some form, mandatory clauses and documentation requirements established by law and regulations different from those of a purchase order,” said Valdivieso Galib.
Why does the Comptroller not register purchase orders, which are contracts according to the Financial Oversight and Management Board for Puerto Rico (Fiscal Control Board) and the Civil Code of Puerto Rico? we insisted.
“In a contract, clauses and conditions are agreed subject to not being contrary to law, morality and public order and to the consent of the contracting parties, an object that is the subject of the contract, and cause of the obligation established. Therefore, a purchase order cannot be considered a contract because the purpose of the purchase order is only to oblige a payment. “Obligations arise from the law, from contracts and quasi-contracts. In addition, it must be considered that the legal regulations applicable to government procurement are rigorous. See, by way of example, Law 237-2004, as amended, regarding the contracting of professional services by government entities, and the case of Rodríguez Ramos v. ELA, 190 D.P.R. 448 (2014),” added Valdivieso to justify the reason why the purchase orders are not registered, even though they have all the requirements to be considered as a valid contract, as emerges from her own expressions for the record.
In full, we reproduce the next question and the Comptroller’s response:
In view of the fact that the enabling law of the Comptroller establishes that the agency enjoys the fullest administrative, budgetary and fiscal autonomy, how is it explained that the term of 60 days after the end of the curfew, which was granted to all the government agencies to correct any error in the requirements by law that a contractor must comply with are exactly the same that Governor Wanda Vázquez Garced granted to the Executive Branch by means of an Executive Order on March 16, which is valid until May 15?
“We wanted to be consistent with the Governor’s order. The 60 days are NOT to correct errors in the hiring. They are granted so that contractors who cannot obtain the debt certifications of ASUME, Treasury, CRIM, State Insurance Fund etc. or that they do not find a notary public for the sworn statements that should be in the files, provide them. Contracts should NOT have errors and if they do, they should be amended as soon as possible. Any mistake should not make a contract void, but certain clauses could void it.
Efforts are being made within the emergency to be flexible, reasonable, and uniform. This, to the extent possible, to fulfill the duty to keep the Government as functional as possible, taking the necessary control and execution measures within the possibilities of each government agency or entity.
I do not understand what our administrative, budgetary, and fiscal independence has to do with the 60-day question. For me absolutely nothing. It is Law 18 of 1975 that gives the Comptroller the responsibility of regulating how the registry works.”
In her explanation on May 7, the Comptroller alleged that she was trying to be consistent with the Governor’s Executive Order, a decree that became invalid 57 days ago. Her directive, unlike that issued by the Governor, has not yet been amended or revoked.
NUESTRO will go to Court
40 days ago, the undersigned journalist made several requests for information to the PRHD through its press Director, Michelle De La Cruz Valencia. In an email dated June 1, 2020, a series of invoices submitted to the agency were requested, which summarize the tasks that had to be carried out by the Office of Epidemiology and Research to control the spread of COVID-19 in Puerto Rico. In addition, the responses provided by the PRDH secretary to requests from that operational unit were requested.
“Good morning, we are working with your request,” replied the PRHD Office of Communications and Public Affairs on June 4. Twenty days later, on June 24, NUESTRO sent its last communication via email to both De La Cruz and the generic press email that the agency uses, announcing that we will go to court, as empowered by the “Transparency and Expedited Procedure for Access to Public Information Act, Law No. 141 of August 1, 2019, ” in order to obtain these data, which has the highest public interest.
“It is regrettable that I have to resort again to the Court to assert the rights of citizens enshrined in the laws, in the Constitution of Puerto Rico and in the State’s own public policy, which says it is transparent. Honestly, I wish I did not have to, but I have no choice. I am deeply sorry for the situation,” was said in writing. Immediately afterwards and to our surprise, De La Cruz Valencia replied that “today we follow up on this request and I will tell you the status of it in the morning.”
As of yet, we have not received a response.