We advise ACS, belonging to Conduent, a French American company. In 2010, ACS won the tender to be the collection operator of the Cosac I system, that is, the metropolitan mass transportation system that crosses 12 districts of the capital of Peru. In this way, ACS has a concession granted by the Metropolitan Municipality of Lima (MML) and currently administered by the Urban Transportation Authority (ATU). It is worth mentioning that the concession held by ACS is one of the many commercial activities it carries out with the Peruvian State.
To maximize work efficiency, ACS contracts with subcontractors (suppliers), one of them being Andina Technology Partners INC. ACS subcontracted with this company to provide different services within the framework of the Supplementary Corridor Supervision Contract signed between ACS and PROTRANSPORTE, a public entity attached to the Metropolitan Municipality of Lima that was in charge of managing urban transportation in Lima.
As part of Andina’s subcontracting, it had to present a Letter of Bond for the value of 10% of the Contract as a guarantee of faithful performance. ACS and Andina, within the framework of negotiations that took place after the signing of the contract, signed an Addendum in which they agreed that Andina would no longer deliver a Letter of Surety as a guarantee of faithful performance, but that ACS would retain the amount for the value of the contract. 10% of the Contract for one of the invoices that ACS had to pay to Andina. The amount withheld was USD 2 Million.
After a series of breaches, ACS ordered Andina to comply with the Contract, otherwise it would proceed to execute the retained guarantee. Andina did not comply with the contract and ACS proceeded to execute the guarantee to which Andina never agreed.
However, Andina used another means to claim the money that they considered to be non-payment by ACS. This company, using the possibility granted by Peruvian laws for a commercial invoice to be converted into a Security Title, went to the Institution in charge of the procedure for transforming a commercial invoice into a Security Title (CAVALI) and registered the Invoice (of the which ACS retained the value of 10% of the contract) as a non-payment by ACS.
Subsequently, Andina, who already had the Security Title, initiated an executive process before the Judiciary to request that ACS be ordered to pay the amount of USD 2 Million.
Therefore, our sponsorship in Andina’s process against ACS is based, substantially, on demonstrating that ACS does not have any debt with Andina and, on the contrary, said money that it claims corresponds to a withholding that was requested by Andina and that Then, when he breached the contract, it was executed.
