In addition to awarding large projects that contribute to the socioeconomic development of the regions, the National Infrastructure Agency (ANI) also must deal with legal disputes that arise from the multiple problems investors face before, during and after building roads, airports and other mega-projects.
Currently, there are 19 lawsuits faced by this entity for different reasons and projects. Nine started between 2017 and 2022 and, of the remaining ten, four started this year and six are pending admission.
The ANI records indicate that close to 90 percent of these cases are related to highway projects, Only one demand is for an airport – the one in Barranquilla – and another one is for a port in Tumaco.
The oldest is that of Yuma Concesionaria, which was admitted in 2017 for the Ruta del Sol 3 project. There are 465 kilometers that register the departments of Cesar, Magdalena and Bolívar and, at the end of May, had a work progress of 55 .7 percent.
The concessionaire claims 1.5 trillion pesos for «the economic imbalance of the contract due to the occurrence of unforeseeable and irresistible events outside Yuma such as the presence of ethnic communities, lack of planning by the ANI and higher costs.»
For Ruta del Sol 2, the ANI faces another lawsuit from the Ruta del Sol Concessionaire. This contract was terminated and liquidated by mutual agreement in 2017 after the Odebrecht bribery scandal came to light. The concessionaire is claiming 2.28 billion pesos and requests that ANI be declared in breach of said agreement.
To finish the works of this project, which connects the center with the north of the country, it was divided into two trunk lines (Magdalena 1 and Magdalena 2) that were awarded in July 2022.
The ANI is also sued for sector one of the Ruta del Sol, which was a cargo of the Helios Road Consortium. Their claims increase to 490,000 million pesos for, among other issues, the alleged non-compliance of the entity in the payments of different amounts for milestones in the work.
Another lawsuit that involves a large amount of money is that of the Perimetral del Oriente de Cundinamarca. There are 1.45 trillion pesos at stake because, according to the company, ANI is responsible for the failure to build and operate the toll of functional unit three after the declaration of the Ministry of the Environment as a restoration and protection area due to «the surprising existence of 60 springs.»
Due to toll issues, the entity faces several additional lawsuits, such as the one involving the 4G Girardot-Ibagué-Cajamarca road and that the APP Gica Concessionaire had 51.98 in advance as of June 30.
It is asking for the early termination of the contract to be declared, among other reasons, due to the non-installation of the ‘Cocora’ toll booth, which affected the project’s rate structure and, consequently, affected the financial model. For the damages caused, it claims 990,280 million pesos.
Another is from Vías del Nus, admitted in May 2022, because the ANI did not deliver the Niquia toll station on August 2, 2021, which negatively ended the concessionaire’s income and what it planned to collect in the future for finance the construction and operation of the project. This toll booth was destroyed during the national strike on April 28, 2021 and has never been relocated again.
The concessionaire of the Ruta del Cacao is the one that has the most lawsuits against the ANI, there are three on the Bucaramanga-Barrancabermeja-Yondó road. In one, which increased to more than 20,300 million pesos, he requests that it be declared that the construction of the Rancho Camacho toll is not his responsibility.
Additionally, request the court to declare that the circumstances that have prevented completion of the construction and entry into operation of La Renta, La Paz and La Angula tolls «They are extraordinary, abnormal and are not attributable to the concessionaire.»
In a second lawsuit, for 66,800 million pesos, he aspires to have it declared that the technical conditions are deficient in which some sectors of this road are located, are alien and not attributable to the concessionaire. likewise requests that it be declared that Ruta del Cacao has the right to be recognized by the Agency for the costs related to the explosions other than operation and maintenance.
In addition, in the midst of this lawsuit, it requires that it be declared that the change in layout in the design of functional unit nine is the product of external events and not attributable to the concessionaire, for which reason it has the right to have the ANI recognize and pay the greater cost that the change of this layout represented.
In the third lawsuit, which, like the previous ones, was filed this year, seeks to declare that the ANI did not comply with the procedure indicated in the contract to notify about the occurrence of an «Event Exempting Liability» in functional unit eight.
To the previous ones is added that of Ruta Caribe, since it alleges multiple breaches of the ANI for, among other issues, the effects caused by the covid-19 pandemic, the special rates at the Pasacaballos and Sabanagrande stations and public order disturbances at the Turbaco toll booth. In this case, the concessionaire’s claims increased to more than 105,606 million pesos.
Coviandes also filed two lawsuits against ANI. With the first, the concessionaire seeks to declare the annulment of the sanction filed for the alleged damages caused by the collapse of the Chirajara viaduct in January 2018 and, therefore, to restore the 33,359 million pesos, plus interest, which were quantified at the time.
The other lawsuit is more recent – February of this year – and more expensive. More than 199,658 million pesos are at stake because Coviandes claims recognition of the greater amounts of work that it had to carry out due to «unavoidable, unforeseen and unforeseeable additional landslides and excavations» that occurred in the construction of several tunnels on the road that connects to Bogotá with Villavicencio and that exceeded the construction risk assumed by the concessionaire.
The effects caused by the covid-19 pandemic also led the concessionaire in charge of the Santa Marta-Paraguachón highway to sue the ANI, arguing that it must pay it for the income it failed to receive due to less vehicle traffic. This is in addition to the damages they suffered due to the exemption in the payment of tolls arranged by the Government between March 26 and May 31, 2020. More than 69,900 million pesos are at stake in this lawsuit.
Among the demands that are still pending admission are the 4G Neiva-Espinal-Girardot and Puerto Hondo highway. The first was presented in March of this year, and the second, just 25 days ago.
In addition, although in May the arbitration court ruled in favor of the ANI in the dispute over the Mulaló-Loboguerrero project, the concessionaire Covimar filed an appeal to annul the ruling, so the case remains open. In this lawsuit there is more than 640,000 million pesos involved.
The ANI or the Grupo Aeroportuario del Caribe (GAC) could also opt for an annulment appeal after the Arbitration and Conciliation Center of the Bogotá Chamber of Commerce issued a ruling for the lawsuit that began in 2021 and involves the airport of Barranquilla Ernesto Cortissoz.
The court had to liquidate the existing contract and did not endorse the economic demand of more than 664.100 million pesos made by the GAC considering that the impact generated by covid-19, It was not the responsibility of the State or the concessionaire.
LINA QUIROGA BLONDE
Economy and business