Implementación y operación de escáneres en puertos delegados en Ecuador y su incidencia en la ejecución de los contratos de Asociación Público-Privada (APP)

Abstract

This paper seeks to analyze the implementation and operation of scanners in ports delegated to foreign investment and how it affects the execution of Public-Private Partnership (PPP) contracts. To this end, a review of the clauses of such contracts, applicable legal regulations, comparisons between the delegated ports in the country, as well as interviews with experts, were carried out in order to learn about the contractual obligations of the delegate and the State. Some contracts, such as the one signed by Autoridad Portuaria de Puerto Bolivar (Appb) and Yilport Terminal Operations (Yilportecu) S.A., did not provide for investment in the estimates and/or technical and quantity conditions required by the Government. Other delegated ports are operating scanners, such as DP World Posorja S.A. and Terminal Portuaria de Manta TPM S.A (TPM); and those that are still in process, such as Yilportecu, expressed their concern about the operation of these scanners so that it is not the delegated manager who operates such equipment, despite the fact that this is a non-delegable attribution of the National Customs Service of Ecuador (SENAE). In addition, it was verified that in cases such as Contecom Guayaquil S.A., an addendum to the contract was made and in Andipuerto Guayaquil S.A., a renegotiation process is underway. It is concluded that the implementation of this non-intrusive technology is necessary, however, the mechanisms used violate the contractual rights of some PPPs, due to the requirement of an investment not contemplated; and, for the provision of a service that cannot be attributed to the delegated manager.