The final interlocutory decision by the High Court of Justice of Catalonia (TSJC) does not nullify the contract entered into between the Government of Catalonia and the consortium led by BTG Pactual and ACCIONA Agua.
The TSJC has only ruled on the precautionary measures, therefore it does not prejudice the substance of the case, or pass final judgement.
In view of the various information published with respect to the judgement passed by the High Court of Justice of Catalonia (TSJC), which rejects the appeal made against dismissing the request of precautionary measures filed by the ATLL concession company of the Government of Catalonia (ATLL), in relation to the adjudication of the management contract to provide a public water supply between Ter-Llobgregat, BTG Pactual and ACCIONA Agua, as leading partners of the adjudicatory consortium of the current contract, the following is stated:
- The above-mentioned legal ruling was passed on processing the requests for precautionary measures considered by the parties in the judicial proceedings, initiated in relation to the adjudication of the above-mentioned contract and, therefore, does not pass judgement on the legality of the adjudication or the validity of the contract and it does not prejudice the substance of the case or pass final judgement, as it is subject to appeal before the Supreme Court.
- Of particular significance, is the particular opinion of one the judges of the above-mentioned Court, who expressly states that the OARCC valuations are not adjusted to the content of the call to tender, that neither of the parties have interpreted the terms in the meaning intended by the OARCCC and that the OARCC ruling being appealed incurs manifest errors.
- The judge considers it necessary to grant the precautionary measures requested due to the essential nature of the services provided in the contract, the huge impact that the OARCC ruling valuations would have for the Government of Catalonia and the consequential breach of requirements covered by the adjudication by the bid tendered by the Societat General d'Aigües de Barcelona (Agbar).
- BTG Pactual and ACCIONA Agua ratify that the winning bid of the consortium scrupulously complies with the legal requirements of the tender procedure and with all the terms and conditions of the call to tender and are therefore confident that this will be apparent at the end of the legal proceedings in progress, which they have undertaken and will continue to undertake to prove this; the final judgements are currently pending.
- As recognised by the High Court of Justice of Catalonia, during these proceedings, the regularity of the bid made by Agbar must be reviewed, together with the call to tender in question. Consequently it will be necessary to review the flaws this represents in relation to the conditions established by the tender procedure and the competition law.
- Therefore, the contract signed on 27 December 2012 between the Government of Catalonia and ATLL at present remains a legally effective contract, binding the parties, as recognized by the High Court of Justice of Catalonia itself by rejecting the request for precautionary measures filed by the company Agbar, which tried to terminate the contract.
- As a result, ATLL reaffirms its commitment to complying with its contractual obligations and its interest in continuing to provide the services contracted during the fifty years of concession.
- Continuing the contract and the service will also ensure important public and social benefits are obtained, as a consequence of the bid tendered by ATLL, which were correctly valuated by the Government of Catalonia during the concession tender procedure, deserving the adjudication of the call to tender, in view of the comparable disadvantages that the bid of the main competing company, Agbar brings. These benefits include a commitment to water rates which will result in an estimated saving of 900 million euros during the entire period the services are provided.