GuraSOS denounced this morning that the builders of the Zubieta incinerator can owe EUR 21 million for failing to comply with several standards contractuales.Por on one side, denounced the failure to comply with the deadline for the construction and commissioning of the incinerator. Following the conclusion of the contract, a period of 26 months was set for the completion of the work of the Zubieta incinerator and a further four months for its implementation. These deadlines have not been met. According to the data offered by GuraSOS, the contract for the design, construction and financing of the incinerator and the TMB plan was completed on 3 April 2017. The Zubieta incinerator was to launch on 3 October following four months of testing.

At present, however, it should not be forgotten that the planned date for the incineration plant to be set up is 3 March. The delay in both construction and ignition process is evident. Mr GuraSOS has warned that this entails a corresponding penalty.

GuraSOS has therefore argued that the agreement approved at the meeting of the Gipuzkoa Waste Consortium (GHK) on 16 December last "is certainly illegal". It approved the extension of construction works until 3 March.

GuraSOS says that GHK’s decision is illegal, as the works were due to end on 3 June, when the contract was terminated. Although in fact it had to have been done before, almost 4 months after the completion date of the works, the construction companies requested to extend the period of the works. "The request for the extension of the execution period should be requested by the contractor within 15 days of the occurrence of the delay". Among the reasons for the continuation of the work are the rains recorded in 2017 and the breakdown of the transformer that occurred on June 11. Therefore, this cause of delay of the works is mentioned two years after the rains occurred and almost four months after the breakdown.

GuraSOS points out that if the successful tenderer does not request the extension of the works within the time limits indicated, "it shall be understood that he renounces his right. This is clearly laid down in Article 100 of that Regulation. The contract shall be terminated at the end of the scheduled period, i.e. 3 June, unless the extension is requested and agreed by the Administration. And in any case with the penalties laid down in the specifications of special administrative clauses".

Agree an extension of 5 months where the delay is 9 months

But there are also more details that GuraSOS shows in terms of deadlines. The agreement of the GHK of 16 December allows the work of the incinerator to be extended for five months and put into operation, "but what really calls our attention is that the period of execution of the works is actually extended by 9 months and not by 5 months, since the period of completion of the works ended on 3 June 2019, as laid down in the contract".

GuraSOS stressed the efforts of the incinerator's promoters to reduce the period of 9 months to 5 months. To do so, they have combined the end of the works and the phases of their implementation. But, according to GuraSOS, "the intention is to extend a deadline that was completed 6 months ago", added the platform.

Mr GuraSOS asked a number of questions about this situation. If they were to complete the work by 3 June, knowing that they would not be able to complete the work on time, how is it that the request for an extension is not dealt with until 27 September and "the worst thing is that GHK has not made any request or made any decision? Why has GHK yet again had to lie about the reason for the delay? ".

The aim of GHK, according to GuraSOS, is "to prevent the concessionaire from having to pay a contractual charge of EUR 20 million and have to publicly acknowledge the mismanagement of the contract and its termination".

EUR 21 million for delays

GuraSOS has brought this whole story to the numbers. The group of parents has calculated that, due to the delay in the works, the business group in charge of construction should pay a minimum penalty of EUR 21 million.

"In accordance with the applicable law (Article 242 LCSP), in such cases the penalty scheme set out in the contract's special administrative clauses (PCAP) shall be applied, in particular Article 36.2.2.5 LCAP provides for the imposition of a penalty of EUR 60,000 per day in the event of non-compliance with the deadline for completion of works".

This penalty of EUR 60,000 per day (a total of EUR 14,520,000) is added to a further EUR 30,000 per day for failure to comply with 5.1.2 of the third clause of the contract, EUR 3.6 million. Penalty of EUR 18.12 million until 31 January. Bearing in mind that the closure of the works and the incinerator's ignition is announced for 3 March, from 31 January it is necessary to add "32 more days, 90,000 euros a day", another 2,880,000 euros. In total, according to GuraSOS estimates, the penalty amounts to EUR 21 million.

And the amount can continue to grow. "To this should be added up to EUR 20,000-30,000 per day in clause 51.2 (i) for the serious infringement" of subparagraph (r). Specifically, "for the construction and commissioning of the transformer without complying with the regulations of the industrial policy".