The Comptroller of Puerto Rico revealed that two amendments to the contract for the inspection of containers using the scanning system at the Port of San Juan contain unconscionable clauses that allow payment for containers that are not scanned. These clauses are contrary to the principle of reciprocity of obligations, to public order and to the rules governing the use of public funds. As unconscionable clauses, they are null and produce no legal effect that would justify the Authority paying the subsidiary.
The contract, which was formalized on December 17, 2009 and amended on January 24, 2011 to transfer it to a subsidiary, provided that 100% of the containers entering the Port of San Juan -except those previously inspected by U.S. Customs & Border Protection- would be scanned with antiterrorist technology to detect and prevent the introduction of restricted materials. The Ports Authority, for its part, would pay for the inspection of 100% of the containers at a rate of $57 each, as provided by the contract amendments.
For example, our auditors identified from a sample that, from January 1, 2013 to March 31, 2015, the subsidiary did not inspect 3,768 containers. However, the Authority disbursed $214,776 for those containers as if they had been inspected.
The Comptroller recommends that the Authority's management, among other things, evaluate the contract as amended in light of the results of this Special Report and make the determinations that may be appropriate. In addition, that it ensure that the clauses included in contracting are consistent with the interest of the Authority, public order, the rules of sound administration and the principle of reciprocity of obligations.
See Audit Report CP-19-04.
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