A new twist took the dispute between the administration of the Tocumen International Airport and the Odebrecht company (CNO), after the Conciliation and Arbitration Center of Panama (Cecap) declared itself competent to attend the request presented by the Brazilian contractor.
It should be remembered that on September 28, 2021, Tocumen canceled the contract that Odebrecht had been executing since 2012 for the construction of the new passenger terminal. With 2 days to go until the eighth addendum to the contract expired, the management of the air terminal considered that Odebrecht would not finish the 640 pending works in the 116,000-square-meter building.
In addition to annulling the contract of 917 million dollars and of which a little more than 7 million dollars remained to be paid to Odebrecht, Tocumen also disqualified the contractor for three years from participating in new tenders.
After learning of Tocumen’s decision, Odebrecht filed an appeal with the Administrative Court of Public Procurement (TACP).
Within this process, the claimant introduced a warning of unconstitutionality before the Supreme Court of Justice so that the action taken by Tocumen would be annulled.
After the magistrates did not accept the legal recourse promoted by Odebrecht’s lawyers, the company that has accepted the payment of bribes in a dozen countries, including Panama, filed an arbitration request with Cecap at the end of last year.
The Brazilian company maintains that according to the terms of the contract, Tocumen had to go to arbitration to resolve any dispute related to the construction of the new passenger terminal.
After reviewing the company’s request and after receiving the documentation from the parties in dispute, Cecap declared itself competent on February 2 to “manage the process promoted by Odebrecht.” Once this phase has been completed, the arbitral tribunal must be formed, which will be made up of three arbitrators.
Each party will appoint an arbitrator, while the president of the court must be chosen from the list of members of Cecap.
According to the regulations of the arbitration center, once the court is formed, there will be a period of 2 months to make a decision, although an extension of 30 days could be granted if necessary.
With arbitration, Odebrecht not only seeks to reverse the annulment of the contract, as well as the disqualification, it also requests compensation of 19.4 million dollars and an extension of 90 days to finish the pending work that was not attended to before September 30 , day that the term agreed in addendum 8, the last of the contract, expired.
The construction company maintains that it is not responsible for any delay and blames Tocumen for the delay in the execution of the works due to non-compliance with the payment schedule.
Airport executives have indicated that in addendum 7 and 8 it was agreed that Tocumen would have the power to administratively terminate the contract, in case the contractor failed to comply with the agreed terms to attend to more than 10,547 pending works.
Most of the unattended jobs are related to the cooling system, roof leaks that have caused damage to computer equipment, replacement of floors, escalators, blueprint delivery, elevators, fire system, baggage transport system and special equipment, among others.
At the airport they have explained that the decision was made to administratively resolve the contract to prevent the performance bond from expiring, of 229 million dollars.
Without this bond, airport officials assure, Tocumen would have to take charge of the pending work on the project and assume the debt of more than 5 million dollars that Odebrecht accumulated at the time with its subcontractors, among other issues.
Once the arbitration center declared itself competent, Odebrecht once again reiterated its request to the TACP not to continue with the appeal process and that it should forward all the information on the case to the arbitration sphere.
When consulted on this point, in Tocumen they commented that the announcement made by Cecap does not “affect the administrative process before the TACP, since the declaration of competence by the Secretary of the Arbitration Center is given in the pre-arbitral phase and only for the purpose of validating dispute raised by both parties.
Tocumen hired the law firm Morgan & Morgan to provide legal advice during the arbitration process. The contract reaches 695 thousand 500 dollars.
