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FRAUD in MEXICO's GOVERNMENT PROCUREMENT SECTOR By FRAUD IN MEXICO’S GOVERNMENT PROCUREMENT SECTOR By Gerardo Centeno García To obtain the degree of Master of Laws At University of Ottawa Ottawa, Ontario January, 2019 © Gerardo Centeno García, Ottawa, Canada, 2019 DEDICATION This is for my parents (Rosa and Gerardo), who sacrificed many things so I could travel to Canada to complete this work. To my four brothers (Beto, Christian, Fer and Arantza) and all of my friends back in Mexico and the United States (special mention to Freddy, Luz Esperanza, Alejandra, Fernanda, Adniel, Max, Eloy, Mirian, Vicente and Gaston; who emotionally supported me throughout this whole process). ACKNOWLEDGMENTS First and foremost, I would like to address my eternal gratitude to Prof. Colleen M. Flood who, as my thesis supervisor, has played an essential part in the development of this text. A special thanks to Dr. Deidre DeJean, and Dr. Bryan Thomas, who helped me editing this work. As well, I want to thank LLM. Luz María Guzmán Lozano and Ph.D. León Arturo Castellanos Jankiewicz, for encouraging me to take this step outside of Mexico. II TABLE OF CONTENTS I. Introduction.……………………………………………………………………………….1 II. Defining Corruption and Government Procurement………………………….…..6 III. Government Procurement Legal Framework………………………………….…..23 IV. Common symptoms of corruption within public procurement………………………………………………………………………………63 V. Measures against corruption in public procurement…………………………...94 VI. Solutions………………………………………………………………………….……..121 VII. Conclusions……………………………………………………………………………..147 III Abstract: This thesis analyzes the problem of corruption in the Mexican government procurement system, aiming to provide a mix of legal and policy solutions to combat and prevent it. Comparing the policies and laws that make up the regulatory framework of public procurement in Canada and Mexico, this study seeks to extract the best practices that can improve the Mexican system. This text illuminates how the weaknesses within Mexico’s procurement system has provoked the current exploitation of alternative procurement methods (known as “adjudicación directa” and “invitación a cuando menos tres personas”) to embezzle public resources through fictitious contract awards. Although we have seen a tendency towards including requirements for “transparency” and “accountability” into Mexican procurement law, this on its own is insufficient to combat corruption. Consequently, I argue that procurement units have to enhance these transparency policies by disclosing the rationale behind every procurement and contract award prior to the disbursement of the resources; having competition as the maximum principle to fulfill while doing so. This will allow auditing bodies (and Mexican citizens) to scrutinize the rationale behind these disbursements. The Public Function Secretary could oversee this process to validate the legality and the social benefit justifications claimed by the procurement units prior to utilizing alternative procurement methods. IV INTRODUCTION Corruption in Mexico claims approximately 9% of the country’s GDP each year.1 Between 2007 and 2016, the amount of public debt as a percentage of GDP almost doubled, from 27% to 50.2%, according to data from the Ministry of Finance and Public Credit.2 The National Commission of Human Rights of Mexico recently pointed to a correlation between corruption and violations of human rights (notably, the rights of education, life and public health). The National Commission has argued that corruption correlates with the right to health in three of their four indicators: less access to health, child mortality and lower life expectancy.3 Despite the fact that the Health Ministry of Mexico’s budget grows year by year, the Commission argues that, in part due to the prevalence of corruption, this increase does not reflect in available health infrastructure nor in other forms of enhancement of access to the right to health care. The health sector is an area particularly ripe for corruption due to the relatively large amount of government funding that flows to it. Indeed, corruption within the health sector is a problem found in several countries. Taiwanese researchers Mon-Chi and Ming-Hsuan state: "For example, according to the Global Corruption Report 2006 published by Transparency International, it is estimated that 5–10% of the budget of Medicare and Medicaid, the two largest [United States'] public healthcare programs, is lost to “overpayment”. In Cambodia, more than 5% of the health budget is lost to corruption. In the Philippines, poor and middle- income municipalities report a higher frequency of people being denied vaccines when corruption is rampant. Investigations by Nigeria’s Food and Drug Authority found cases of water being substituted for lifesaving adrenaline and of active ingredients in medications being diluted by counterfeiters, triggering drug-resistant strains of malaria, tuberculosis and HIV."4 1 Lilia Aguilar Gutiérrez. Causas y soluciones para la corrupción en México in Pedro Salazar Ugarte, Francisco A. Ibarra Palafox, Imer B. Flores, ¿Cómo combatir la corrupción?, 1st ed. (Mexico City, Universidad Nacional Autónoma de México, 2017), at 33. 2 Manuel Hernández Borbolla. Corrupción y deuda pública acaparan 20% del PIB de México, Huffington Post Mexico, (12th July 2017), online: <http://www.huffingtonpost.com.mx/2017/07/12/corrupcion-y-deuda-publica-acaparan-20- del-pib-de-mexico_a_23025631/>, accessed 14th February 2018. 3 Daniel Vázquez, Luz Cardona, Horacio Ortiz. Los Derechos Humanos y La Corrupción en México: Análisis de las tendencias en las entidades federativas entre el 2000 y el 2014 (2017), online: <http://www.cndh.org.mx/sites/all/doc/OtrosDocumentos/Doc_2017_036.pdf>, accessed 23rd January 2018, at 25-26. 4 Lio Mon-Chi, Lee Ming-Hsuan. Corruption costs lives: a cross-country study using an IV approach (2015) 31:2 The International Journal of Health Planning and Management, at 176. V Corruption can take many forms: bribery, patronage, influence peddling, nepotism, amongst others. All of these forms of corruption are strongly present in Mexico. Moreover, new means have been employed to embezzle public resources via public procurement in the health sector; practices that go far beyond splitting large procurement processes into smaller ones. This thesis aims at denouncing them and proposing reforms to prevent them. Here are the most famous and recent cases of corruption within the Mexican procurement system: On April 15, 2017, the former governor of Veracruz, Javier Duarte de Ochoa, was arrested while hiding in Guatemala. Two days after requesting and receiving permission from his State's Congress to leave his post, he fled the country in an official aircraft and landed in Guatemala. Afterwards, he was captured in a combined effort between the Guatemalan and the Mexican governments; as well as a timely intervention by Interpol.5 Duarte has the following charges against him: noncompliance with duties, abuse of authority, organized crime, money laundering, influence peddling and peculate.6 This case is currently before the First District Court of Amparo in Criminal Matters in Mexico City. The public was firstly informed about this fraudulent activity by Animal Político (with the help of the Mexican NGO Mexicanos Contra la Corrupción y la Impunidad), with the article "El caso de las empresas fantasma de Veracruz" (the case of the shell corporations of Veracruz).7 In that article, this news portal denounced the award of public contracts to companies that did not deliver the products and services agreed on those contracts. They noted that the government institutions involved in the fraud lacked the supporting documentation to validate compliance with the contracts. The fraud began in 2010 when the promoters of the Partido de la Revolución Institucional (Institutional Revolution Party) collected the signatures of civilians, ostensibly for legitimate purposes but, in fact, used these signatures to create shell corporations on their behalf. The fiscal addresses of 5 BBC News. Javier Duarte, former Mexican governor, extradited from Guatemala (18 July 2017), online: <http://www.bbc.com/news/world-latin-america-40639480>, accessed 17th August 2018. 6 Luis Pablo Beauregard. Javier Duarte llega a México para ser juzgado por corrupción, El Pais (18 July 2017), online: <https://elpais.com/internacional/2017/07/17/mexico/1500303963_032946.html>, accessed 17th August 2018. 7 Arturo Ángel, Víctor Hugo Arteaga. El caso de las empresas fantasmas de Veracruz, Animal Político (24th May 2016), online: <http://www.animalpolitico.com/2016/05/desaparece-el- gobierno-de-veracruz-645-millones-de-pesos-entrega-el-dinero-a-empresas-fantasma/>, accessed 18th August 2018. VI these companies were falsely registered. Once created, the companies were listed as government providers, using the Registro Único de Proveedores y Contratistas (Single Registry of Suppliers and Contractors) regulated by the Ley de Adquisiciones, Arrendamientos y Servicios del Sector Público (Acquisitions Act) and its bylaw.8 Subsequently, these shell corporations began to receive public contracts through procurement processes known as "Adjudicación Directa" (Direct Award) and "Invitación a cuando menos tres personas" (Invitation to at least three people). These are alternative fast-track methods to the standard “Licitación Pública” (Public Tender). Through these alternative procedures, the former Governor of Veracruz and his clerk of minions awarded 73 public contracts to 21 shell companies: 16 contracts awarded
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