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The decision of the Superintendency of Industry and Commerce covers the Brazilian construction company, Corficolombiana, Episol, and the Ruta del Sol concessionaire. The fine amounts to $ 295,000 million.
A few days before the end of 2020, one of the most anticipated judicial decisions arrived: the superintendent of Industry and Commerce, Andrés Barreto, sanctioned the construction company Odebrecht, as well as Corficolombiana, Episol; and the Ruta del Sol concessionaire and four individuals for the bribes paid for their role in the bribery scheme with which the Brazilian giant managed to win the Ruta del Sol 2 contract. The fines of the ten sanctioned total $ 295,000 million .
(In context: Odebrecht case at the SIC: they suggest sanctioning Odebrecht and Corficolombiana)
According to the SIC decision, Constructora Norberto Odebrecht SA; Odebrecht Participações E Investimentos SA (jointly Odebrecht); the Corporación Financiera Colombiana SA (Corficolombiana); Estudios Y Proyectos Del Sol SAS (Episol); Concesionaria Ruta Del Sol SAS in Liquidation (concessionaire) and former Deputy Minister of Transportation Gabriel Ignacio García Morales devised and deployed a restrictive system of free competition to award and execute the Ruta del Sol 2 contract.
This illegal scheme, “in a first phase, included an anticompetitive agreement that allowed them to guarantee the award of the Concession Contract No. 001 of 2010 in favor of the concessionaire.” And, in a second phase, “it consisted of a dynamic of irregular reimbursements and payments, which materialized through the instrumentalization of different contracts, which allowed them to divide the costs derived from the payment of the anticompetitive agreement and, concomitantly, to deploy a compensation strategy through a contractual addition, “the SIC said in a statement.
That is, they not only made the contract at the point of bribes, but they paid these from additions that they made to the contract awarded to them by the Instituto Nacional de Vías (Invías), which at that time was in charge of the vice minister of Transportation Gabriel García Morales. In the SIC ruling, García Morales was also sanctioned along with Luiz Antonio Bueno Júnior (former president of Odebrecht for Colombia), Luiz Antonio Mameri (former head of Odebrecht for Latin America), Yezid Arocha (legal officer of Odebrecht in Colombia) and José Elías Melo ( former president of Corficolombiana and the only high profile convicted in criminal justice).
However, García Morales was exonerated from paying the $ 26,000 million to which the SIC sanctioned him, as he agreed to a benefits program in exchange for exposing everything that happened in the aftermath of this bribery scheme in Colombia. In turn, the SIC makes it clear that this “system devised and implemented to violate free competition had as a context the corruption scheme deployed by Odebrecht worldwide that lasted for more than a decade and resulted in the payment of hundreds of of millions of dollars in bribes in different countries ”.
Bribes
According to the SIC, Odebrecht, Corficolombiana and Episol, “once established that Gabriel García Morales was in a privileged position”, from which he could influence the result of the bidding process for Ruta del Sol 2, “they directed all their efforts with the purpose of bribing it and using it to ensure its direct participation in the deployment of its anti-competitive system ”. They met with him and with other key figures in the case, specified how the bribes would be paid to keep the billionaire contract and once García Morales agreed, they specified how they would pay him.
The Superintendency established that Odebrecht and Corficolombiana “devised and planned that directly in the execution of the concession contract —through the construction consortium, CONSOL— the costs of paying the agreed economic retribution would be divided, which amounted to the sum of USD $ 6,500 and which was initially paid by Odebrecht ”. And, later, the Structured Operations Division of the Brazilian construction company, which was the agency in charge of paying the bribes, sent the money to former Vice Minister García Morales through offshores.
“In this way, it became clear that Odebrecht’s modus operandi in the first phase of the anticompetitive system was deployed through a complex and sophisticated illegal structure that, conveniently making use of its pre-established business organization, contemplated a specific distribution of various roles and different tasks or functions, created so that it existed and functioned in a concerted and fully coordinated manner, in order to commit different illegal behaviors unequivocally aimed at limiting free economic competition ”, assured the SIC.
Likewise, the decision adds, Odebrecht, Corficolombiana and Episol, “through the instrumentalization of different contracts that as a common feature lacked support or due justification, diverted resources from the execution of the concession contract, to make the reimbursement of the payment derived from the anti-competitive agreement ”that they had agreed with García Morales. These irregular payments were identified at the time by the controller of the concessionaire, Jorge Pizano, and warned José Elías Melo, president of Corficolombiana at the time. But nothing happened.
The SIC explains that Odebrecht replicated this complex scheme a second time in the same project: once they established that they would pay the bribes with an unnecessary addition to the contract, they agreed and issued more bribes to get that addition approved. This is the section of the road that would connect Ocaña with Gamarra and that was not foreseen in the original designs. To achieve the green light on this highway, says the Superintendency, “contracts were instrumentalized and the action of Otto Bula Bula was entrusted to him, who was entrusted with ‘steps’ to obtain the contractual addition, avoiding the risk that the concessionaire represented in competing in a stage of free competition for additional works ”.
