The Office of the Comptroller General of the Republic (CGR) admitted on May 12 an appeal filed by International Container Terminal Services, Inc. (ICTSI), a company irregularly excluded from the tender process for the Puerto Caldera port terminal in Costa Rica, in order to conduct a thorough review of a series of possible irregularities in the award process.
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“The appeals filed are hereby admitted for processing, and a hearing is granted for the non-extendable period of five business days counted from the day following notification of this order, to the administration and the awarded party so that they may submit in writing whatever they deem appropriate regarding the allegations raised by the appellant company in its appeal filings, and likewise provide or offer the evidence they consider relevant,” stated the oversight body.
For his part, Bart Wiersum, Director, Business Development, Americas at International Container Terminal Services, Inc., welcomed the CGR’s decision: “We welcome the CGR’s decision as a first step toward correcting a process plagued by irregularities and lack of transparency.”
On February 18, the Costa Rican Pacific Ports Institute (INCOP), without properly substantiating its criteria, excluded ICTSI merely stating that it exceeded the maximum Debt-to-Equity ratio established in the tender specifications, despite the fact that one week earlier the same entity had confirmed that ICTSI complied with this requirement.
ICTSI’s exclusion resulted in the process continuing with the sole participation of the Sunset Consortium (comprised of APM Terminals B.V. and HGT Inversiones Costa Rica S.A.), which was ultimately awarded the contract.
Lack of transparency in the financial evaluation
The process presents serious transparency deficiencies reported by ICTSI in its appeal before the Office of the Comptroller General of the Republic. During the evaluation stage, the Evaluation Committee modified the methodology for calculating the debt-to-equity ratio without documented technical justification, causing ICTSI’s indicator to shift from 1.33 (compliant) to 2.16 (non-compliant), even though the financial information submitted remained unchanged. Added to this are allegations made by former congressman Eli Feinzaig: more than 60% of the Sunset Consortium’s financial information is illegible in the case file, preventing independent verification of how compliance with the same requirement was validated for the awarded bidder.
Technical deficiencies in Sunset’s design
Independent port engineering experts have identified substantial issues that the Evaluation Committee failed to detect: the configuration of the new docks does not comply with the international safety regulations required by the tender specifications for the simultaneous operation of vessels, and the actual dock availability times, due to weather and wave conditions, would be far below those indicated by Sunset, compromising the service levels required by the tender.
Possible anticompetitive practices and INCOP noncompliance
The formation of the Sunset Consortium, composed of two competitors with the capacity to participate separately, could constitute an absolute monopolistic practice. The matter was also included in the appeal before the CGR, showing that INCOP failed to comply with its legal duty to inform Costa Rica’s anti-trust authority COPROCOM about these indications.
What comes next?
Company attorney Víctor Mora explained the next steps in both proceedings. According to Mora:
The Office of the Comptroller General of the Republic granted INCOP and the Sunset Consortium a hearing so they may respond to the facts contained in the appeal and must issue a ruling within forty business days, which may be extended by an additional fifteen business days. Regarding the preliminary investigation into possible violations of competition law, the competent authority must complete the investigation and proceed with the opening of the instruction phase should it so recommend.