The report that we publish below is prepared by a member of the Neighborhood Association who has taken the trouble to study the documentation that the EUC Council provides.
It is a contribution that we are grateful for and will take into account when participating in the General Assemblies of the EUC of Costa Esuri, deliberating and voting to achieve the good management that all owners desire.
It is an extensive report, which we recommend reading carefully.
TO ALL MEMBERS OF THE EUC Costa Esuri
I make this comment and other previous ones, because I love the Costa Esuri Urbanization and its territory, I want it to take hold and progress, to overcome Brexit and the successive crises to come and to be a place where you can live with tranquility, comfort and well-being , enjoying good services and possibilities of all kinds.
I am not going to judge people or companies, I only intend to analyze the facts and situations that I consider improvable. There are many things that can be improved at Costa Esuri and everyone’s collaboration is needed.
It is also my intention to point out facts or attitudes that do not comply with the precepts of Good Governance in a democratic and plural society, such as compliance with the rules, the principles of effectiveness, economy, efficiency, general satisfaction, budgetary and financial discipline to achieve a rationalization and optimization of resources for the satisfaction of all.
I am going to comment and raise a question that begins in the distant years of the beginning of the life of the urbanization and is the PENDING DEBTS.
Due to the covid-19 pandemic in 2020, the Ordinary General Assembly could not meet, which according to the Statutes must be held within the first quarter of the year, to censor the common management and approve or reject, where appropriate, the Report and the Accounts of the previous fiscal year, and the Budget for the Fiscal Year. The same is happening this year. We are so that Budgets have not been approved for the years 2020 and 2021.
A solution adopted by the affected entities is that, given the impossibility of meeting its members in the Assembly, the last approved Budget was extended and the positions of representation and government remain in force until the next Assembly can be held.
In the Minutes of the Governing Council meeting in December 2019, it was agreed to hold the Annual Assembly on March 28, 2020 and at the meeting it is reported that the amount of €76,622.00 is pending payment to the maintenance company. The outstanding debt and the amount of €91,524.00 of the invoices of 2020 for the delay of the collections. It is said that the company informs the Entity that the outstanding amount for late payment interest is €70,000 and that said amount will be negotiated by the Governing Council.
In the Minutes of the Governing Council of the next meeting that takes place on March 4, 2020, before the state of alarm is decreed, it begins by indicating that the default interest that appears in the accounts will not be collected as expenses for the year 2019, Instead, they will be presented for the next fiscal year in order to be approved at the next General Assembly (scheduled for March 28). The Minutes do not include the Budget that is approved or should be approved, nor the Accounts of the previous year.
In the Budget that appears on the website for 2020, a heading number 13 is included. Payment of outstanding debts. Maintenance company interest debt amounting to € 69,440.58, almost €70,000 but not €76,622 that is cited in the December 2019 Minutes if they are the same debt. This debt is not reflected in the accounts for the years 2018 and 2019.
In the Accounts for the year 2020, the amount of €69,440.58 is included as extraordinary expenses and in the absence of verification with the General Ledger account, they are considered paid.
I am curious, I wonder, is this correct? Without the 2020 Budget being approved by the Assembly, is it appropriate to pay that amount? Why does this debt appear in fiscal year 2020 if it was not in 2018 or 2019? What debt is it about?
I have had to investigate the accounts of previous years and so I go back to 2015 where a document appears in an account in the Liability of the Balance called Creditors invoices pending to formalize Admón. And Mantto. For an amount of € 763,166.45.
In the accounts for 2016 in the Justification of the balance, the debt with the maintenance company appears for the amount of €700,722.85 and the same entry appears in the 2017 Accounts.
In 2018, € 107,976.48 is budgeted and € 187,999.63 is paid. And in the 2019 financial year, €107,976.48 is budgeted for the payment of the outstanding debt and €518,622.85 are paid. Thus, between the years 2018 and 2019, the maintenance company is paid €706,622.48, for which €5,899.63 more has been paid than what appears in the Accounts of previous years.
I still have doubts. Was there an agreement with the maintenance company for the payment of the debt? Has the company issued invoices to collect those amounts?
I ask myself these questions because if the debt was collected in the Creditors account, invoices pending to be formalized, it is because the invoices had not been issued (a frequent practice to avoid that the creditor has to pay an IVA that has not been collected, as well as pay for a profit that you have not realized), and in that case you should issue them when you collect the amounts.
According to the accounting presented in fiscal year 2019, the debt with the maintenance company is canceled.
The incorporation in the budget of expenses for the year 2020, of an amount of €69,440.58 for interest on a debt from previous years, is something that requires an explanation and justification by the Governing Council and the General Assembly should debate to approve it or reject it. The accounting must reflect all the rights and all the economic-financial obligations known from the moment of their accrual.
Once the explanation of the pending debt is finished, I go on to discuss another issue also related to the maintenance company, and I want to state that I have nothing against it, it is the facts and the ways of doing things that I want to expose.
In the budget for the year 2020 an amount of €428,199.49 (VAT included) is budgeted and at the end of the year €464,666.64 has been paid. The first 5 months are paid €35,330.00 per month, and from June included €41,039.24, 15.35% more. No explanation for the change was given in the Budget.
We have to look at the Minutes of the Governing Council and thus in the Minutes of the meeting of 05-14-2020, it is stated “It is proposed to modify the Comfortservi maintenance contract, and that the company will provide two more employees and more machinery resources and vehicles. The monthly cost goes from €29,402.74 net to €33,916.74 with an increase of €4,514.00, and is extended for four more years. The company offers 50 hours a year at zero cost for special jobs ”.
And so it has been done. Is this a correct action of the Governing Council? The Minutes do not state whether it has been submitted to a vote by the members of the C.R. Nor who makes the proposal or if it has been requested by the company and the adopted Agreement.
A comment is added to the Minutes that they have the capacity to do so.
If you consult the website of the EUC Costa Esuri, in the Transparency Portal title and within it in Contracting, you will see that the contracts that the EUC has signed are reported and in the one corresponding to Maintenance, it is reported that the contract was awarded to the company Comfort y Servicio Mar y Golf SL on 06-01-2020 for an annual amount of €492,471.06 per year, valid until 09-30-2024, by the NEGOTIATION WITHOUT PUBLICATION procedure, according to the criteria of the most advantageous economic offer by means of several criteria.
The Governing Council must inform the Assembly of what criteria it has used, how can it say that it is the most advantageous offer if no other offers have been received as it has been negotiated directly with the company? What are the advantages that the EUC Costa Esuri has achieved? That the content be made public so that the Assembly can judge the convenience or not of the terms of the contract to know what the EUC is obliged to do in the future when it comes to renewal . Is this the most convenient for the EUC?
There is another question to analyze, and that is that, considering the EUC as an Administrative Entity dependent on the Ayamonte City Council, the procedure for awarding the EUC maintenance contract used by the Governing Council Is it legal? The contract has an amount of €492,471.06 per year and the Public Procurement Law says that service contracts whose estimated value is equal to or greater than €214,000 are subject to harmonized regulation when the contracts have to be awarded by Public Sector Entities other than the General State Administration. What procedure does the Ayamonte City Council follow to award its service contracts? Ayamonte City Council is the TUTELA body of the EUC, which must ensure compliance with current legislation, does it do so? Did the councilor of the City Council belonging to the Governing Council agree with the award and with the procedure used?
You can give your opinion on the matter; My opinion is that no, at the risk of being wrong, because the Bylaws say that the General Assembly is the supreme deliberative body of the Entity, and it is the Assembly’s competence to approve the economic budget for each fiscal year, as well as to know and decide on all those matters of general interest to the Entity. The agreements of the General Assembly will be immediately executive.
The Governing Council is the body of direction, government and administration of the Entity and a specific function of the same is to execute the agreements of the General Assembly, having its powers of representation and management limited by the need to submit to the knowledge and resolution of the Assembly General the matters that are reserved for it (Approval of the Budget).
This way of acting is endorsed by the decisions of the Governing Council itself, which at its meeting on January 7, 2021, in response to the request made by the company that performs the administration functions, decides to request the supervisory body to report on possible limitations. legal modifications to the contract for the provision of services in force with MR Managering Madrid SL which is extended annually unless expressly denounced by any party. Why did the Governing Council not act in this way when the contract with the maintenance company was modified, since it was a contract for a much higher amount.?
The Governing Council cannot supplant or steal the powers of the General Assembly and its decision-making capacity. Because the Budget is “the joint and systematic encrypted expression of the obligations that the Entity can recognize and the rights that are expected to be settled during the corresponding exercise”
I consider it a mistake for the Governing Council to carry out expenses, actions or contracts that do not comply with the budget without the prior authorization of the Assembly. Nor does it have to be asking for authorization for everything, this can be corrected simply with an express authorization from the Assembly authorizing the Governing Council to carry out expenses or precise actions not budgeted up to a certain amount.
The actions of the Governing Council may pose a serious conflict with the Assembly, if the Ordinary General Assembly rejects expenses, contracts or actions not previously approved by the Assembly; serious damage would be caused to the Entity in its good image and its assets.
The people who make up the Governing Council may or may not have experience in collegiate management bodies of entities, they change frequently and it is normal to ignore things in a society with so many Laws, Regulations and Rules. To remedy this, the services of the professional Administrator, with knowledge and experience, are available, as well as the capacities of the guardianship body and its administration.
I propose that in the next Ordinary General Assembly an item be included on the Agenda to discuss and resolve both the payment of interest on the old debt with the maintenance company, which if justified, must be paid, as well as the fact that the accounting does not clearly include the future obligations of the Entity and it is played to put or not to put who knows with what reasons. In accounting, everything known or foreseeable, past, present and future must be included.
There has also been debate at times about the need to do an audit, it is a possibility that costs money. One proposal for the future is that the Assembly appoint two auditors, desirable with accounting or administrative training, so that prior to the Assembly, they examine and verify, in collaboration with the administrator, the content of the accounting and what they deem appropriate. , issuing a report of conformity or disagreement for the Assembly to know.
Another point should also be included to authorize the Governing Board and Administrator to carry out expenses, contracts or actions that were not authorized in the budget up to a certain monetary amount, thus speeding up the administration and from that amount it would have to be dealt with in an extraordinary Assembly .
The Budget is sacred to the Entity and a guarantee for the Entity’s members, which sets the limits of action of the administrative body, which is why it is extremely important to prepare the budgets well, with knowledge of the expenses of past years and new actions that it is intended to always be carried out with known budgets.
The current Budget, copied from year to year, follows the same scheme as the Budget that was drawn up in the first year of operation of the EUC Costa Esuri, some year some amount is modified. It has many concepts that over the years have had no related expenses. Some items have excessive amounts that distort the total amount, it is as if by putting a high expense budget, we justify a sufficient income budget to meet with sufficient margin.
The Governing Council has the power to appoint committees of members of the Entity to study and analyze the matters of interest, to propose solutions or timely modifications for a better fulfillment of the Entity’s purposes. It is a suggestion that I make and I believe that the Governing Council should use it.
I hope someone reads this and it serves the purpose I intend.
Francisco Tapia Catalán