The president of the Court of Auditors (TdC) clarifies that the institution is “not against” a change in the rules for the prior inspection of public contracts, as long as the changes do not leave the management of public expenditure “in the wild”, without control.
In an interview with the Lusa agency, Filipa Calvão clarifies that, as the Government is considering a change in the court organization law and public procurement rules, it is necessary to “consider carefully” what changes.
“It is worth leaving higher-value contracts subject to a regime of prior control” and those that “extend over time and link future generations”, such as public-private partnerships (PPP), he suggests.
“The Government wants to review the court’s legal regime and wants to review the prior inspection regime. And the court is not against this review, contrary to what it may seem”, he states, clarifying that the TdC understands that the regime “is a few years old” and that, as it is “broken in some aspects”, it needs to be revisited.
The prior inspection regime “has already had so many exceptions, exemptions and different regimes” that “it is no longer clear which one is [seu] the rational”, he admits.
Therefore, “it is better to review the regime”, but it is necessary “to see where it makes sense to have prior inspection and where, from the perspective of political or legislative power, it is justified” to eliminate it, he says.
If the option is to reduce preventive control and focus on a model of concomitant and successive inspection, “it may happen that there is [em curso] illegal contracts – which translate into financial infractions”, he notes. In these cases, when the TdC comes to inspect, “it arrives too late to correct the loss to the public treasury”, he warns.
“We also cannot eliminate everything that could cause delays in public activity, under penalty of leaving public financial management ‘free’ and, then, having actual losses to the public treasury that cannot be corrected, irremediable”, insists Filipa Calvão.
In this last type of inspection, if a contract is not in accordance with the law and this results in illegal public expenditure, the accountability regime applies, in which public managers are called upon to reinstate a value into the State’s coffers.
However, financial accountability “has limitations”, says Filipa Calvão. “If the contracts have more than one million or two million and if the damage to the public treasury is of that order, there is no public manager who has the financial capacity to reintegrate the State”, he says.
Asked whether the award of large-scale works, such as the TGV or the new Lisbon airport, could take longer if they are monitored using a model of concomitant control and not prior approval, the president of the court admits that this “could happen”.
Filipa Calvão also understands that shortening the court’s decision deadlines, in itself, will not solve the problem.
At this moment, the TdC has 30 working days to make a decision on preliminary visas and, according to the president, the average is 12 days.
In cases of greater complexity, where the TdC has a lot of documentation to analyze, “the mere shortening of deadlines will probably make the decision less considered or less considered”, he says.
The person responsible for the TdC also warns of two other potential problems of changing the logic from prior inspection to concomitant or successive.
The first involves the risk of “paralysis of public administration”, if public managers do not act “for fear of liability”. This is a problem that says it has been studied in other parts of the world. “When in doubt”, if managers are not sure about the legality of a contract, they do not act, he explains.
Another consequence is the international perception of the “court’s mandate”, due to the influence it has on the assessment of rating agencies and the assessments of the International Financial Action Group (FATF), a body that evaluates money laundering prevention policies.