It has been 9 years without complying with the Public Companies Law. It has a single public shareholder of a private nature.
Specialized Technical Services of Electricity Sercoel S.A. not only has been signaled by the National Electricity Corporation (CNEL) for the erratic reading of electricity consumption that has caused the complaints and claims of thousands of customers for unjustifiably inflated bills, but also has been working for several years without complying with the law. Now, it is in the sights of the Office of the Public Prosecutor and Comptroller, following the request of the Ministry of Energy to investigate irregularities in its operation.
One of them started in 2010, when the Electricity Corporation of Ecuador CELEC EP acquired 100% of the shares of Sercoel, which until then formally consisted as a private company. The Law on Public Enterprises of that year, in its transitional provision 2.1.1, established that public limited companies in which the State is a sole shareholder will be forcibly dissolved, without liquidation, and will transfer their assets to the new public companies. who believe. However, this did not happen and Sercoel continued to register as a private company with the Superintendence of Companies, but with a single public shareholder that allowed it to contract as such and, therefore, access the Special Regime (without competition). This is stated in an internal management report of Sercoel, to which EXPRESO agreed.
The term established by the Law to make the change was 90 days. It’s been nine years.
“The Transitory Law also establishes the creation of a new public company, by presidential decree, to which all of Sercoel’s assets had to be transferred. But, they have not created the public company, nor have they started the dissolution process. Here what has been is a breach by the Executive. The President of the Republic, then Rafael Correa, had to issue a decree creating the new public company to replace Sercoel, “explains Juan Carlos Carmigniani, contract lawyer. Likewise, it emphasizes that CELEC, its sole shareholder, had to report to the Executive on this violation of the Public Companies Law.
EXPRESO consulted CELEC if it did give notice to the President of the Republic on the matter, or if there was any reason not to do so. They answered with a bulletin that did not contain the answer.
Carmigniani does not see an innocent failure in this breach. “I understand that the spirit of this provision was not to mix private companies with private law … It is to avoid that this corporation wants to take advantage of its main shareholder is the State and make contracts with the Government,” he says.
Yesterday, the Ministry of Energy and Natural Resources not Renewable informed, through a statement, that the General Comptroller of the State initiated control actions, in the period between January 1, 2013 and December 31, 2018, to Sercoel. This, “before the denunciations of the commission of supposed facts that harm the interests and resources of public funds on the part of Sercoel S.A.”.
In addition, the statement ensures that a complaint was filed with the State Attorney General’s Office, “with tax records in progress.” Also, from February 15, 2019, “the Financial and Economic Analysis Unit develops research on the destination and use of public resources that Sercoel S.A. managed at the time”.
This is compounded by the legal mess – published yesterday by this newspaper – in which CNEL, Sercoel and Orbiscorp S.A., subcontracted by Sercoel, are involved. Wilfrido Veintimilla, ex-manager of CNEL, said during a press conference that Sercoel was wrong in the measurement of consumption and that, therefore, fines would have been imposed that exceeded 5% of the value of the contract, causing a unilateral rupture of the same.
However, the subcontractor Orbiscorp filed and won a protective action against the incorrect imposition of fines. A specialized chamber of the Provincial Court of Guayas ordered the return of the badly-imposed values and annulled the termination of the contract. This means that Sercoel must continue to provide the billing service, despite the mistakes made, which have not been recognized by Sercoel. The problem, as expressed by EXPRESO, is that CNEL had already hired that service again with a new company (Proyelect Holding).
EXPRESO unsuccessfully consulted Mariela Padilla, communication director of CNEL, about this court ruling and who will now be in charge of the lecture turnover: Sercoel or the second company hired, taking into account that the Superintendence of Companies initiated the process of liquidation to Sercoel, for having failed to comply with the presentation of financial statements for two years. This, according to Carmigniani, makes it impossible for the company to acquire new contracts, but is obliged to continue with those already open.
I did not answer
EXPRESO sent an email to María Belén Santillán, communication director of CELEC EP, with the following question,among other. No response:
Question: Did CELEC, the sole shareholder of Sercoel, report to the Executive the creation of a new public company to which Sercoel’s assets had to be transferred in order for it to become a public company?