Opinion of the Prosecutor’s Office of Administrative Investigation
Por Eduardo R. Saguier - Sunday, Apr. 15, 2012 at 4:09 AM
saguiere@ssdnet.com.ar

Opinion of the Prosecutor’s Office of Administrative Investigation [FIA – acronym in Spanish]

Attorney’s General Office
Public Prosecutor’s Office of Administrative Investigations [FIA, in Spanish]

///To General Prosecutor in charge of the FIA:

These proceedings have been filed based on the report included on pages 1/10, supplemented on pages 14/15 and 16/17, filed by Mr. Eduardo R. Saguier, which description has already been made in my previous reports included on pages 18 and 31/32; reference is made thereto for brevity.

As stated in the previous report, included on pages 31/32, based on the breadth and ambiguity of the report, this Prosecutor’s Office has narrowed down the purpose under investigation. Thus, it was limited to the alleged incompatibilities that may appear in connection with area coordinators of the Scientific and Technological Project Assessment System - Fund for Scientific and Technological Research [Sistema de Evaluación de Proyectos Científicos y Tecnológicos – Fondo para la Investigación Científica y Tecnológica (SECTyT-FONCYT)].

Specifically, this FIA conducted research on the procedure applied to select peers that assess projects submitted by area coordinators of the SEPCyT, in the PICT (Scientific and Technological Research Project) financing line.

II
Production of proof by this FIA:

1.- On January 3rd, 2007, an official notice was sent to the President of the National Agency for Scientific-Technological Promotion [Agencia Nacional de Promoción Científico-Tecnológica], reporting to the National Science and Technology Secretariat, Dr. José Lino S. Barañao, requesting him to send the rules regulating the Agency’s activities, the power of said body to handle and award subsidies, its procedures, Code of Conduct, etc. and the payroll of authorities, as well as a specific report on the current incompatibilities to be awarded a subsidy (page 13).

2.- On September 10th, 2007, a new official notice was sent to the President of the Agency, requesting the following: 1.- Copy of the FONCyT operating manuals, created by means of a resolution issued by the Science and Technology Secretariat of the Ministry of Culture and Education, at this Agency’s suggestion, as per Section 12 of Decree 1660/96. 2- Copy of the quality assessment and certification system operating manuals, whereby every activity promoted within this Agency’s scope should be processed and accepted, as per Section 13 Decree 1660/96. 3.- Roles and functions of this Agency's Area Coordinators. 4.- Copy of FONCyT Grant Regulation. 5.- List of grant and/or subsidy recipients from January 2003 to date, stating each recipient registration data. Likewise, it was also requested to accurately indicate what the concept “Trained and Active Researcher” stands for (page 30).

3.- On October 10th, 2007 and once again on November 8th, 2007, the President of the Agency was requested to send a list of grant and/or subsidy recipients from January 2003 to date, stating each recipient registration data. Likewise, he was informed that the information required by this Prosecutor’s Office through official letter dated September 10th, 2007 had not been answered (pages 36 and 38).

4.- On April 28th, 2008, an official notice was sent to the President of the Agency requesting a list of Science and Technology projects awarded a grant (with PICT, PICTO and PME financing lines) from January 2003 to date, indicating the full name of every person involved in such projects along with their identification data and the sums awarded to each project (page 41).

5.- On the same date, Mr. Eduardo R. Saguier, accusing party, was summoned to file his deposition on May 20th, 2008 (pages 42/44).

6.- On May 30th, 2008 an official notice was sent to the President of the Agency, requesting him, based on the huge amount of information sent by said body, to send said information in magnetic format to facilitate its review (page 48).

7.- After reviewing the documentation sent by the Agency, an official notice was sent on July 10th, 2008, requesting the submission of fifty (50) project process files. This request was filed once again on August 19th, 2008 (pages 51 overleaf and 57 overleaf).

8.- On July 10th, 2008 an official notice was sent to the Nation’s General Auditor, asking him if that Auditing Body had drafted any audit report related to the subsidies granted by the Agency to Science and Technology Projects, with PICT, PICTO and PME financing lines, from January 2003 to date (page 52).

9.- On October 29th, 2008, by virtue of reviewing the documentation sent by the Agency, a new official notice was sent to the Agency’s President, requesting him to send the documentation supporting the appointment of peers by Coordinators, in all areas, to perform the PICT 2002, 2003, 2004, 2005 and 2006 Project quality assessments, and for PME 2003 and PME 2006 Projects. It was requested that this documentation include the names of the selected peers for each field and the relevant Coordinator in each case (page 63).

10.- On December 1st, 2008, by virtue of not having completely satisfied the demands set forth on the previous official notice, a new official notice was sent to the Agency, repeating the request previously filed (page 68).

11.- On May 7th, 2009, Mr. Roberto Gargarella was summoned to file a deposition on June 2nd, 2009; which was then rescheduled, due to problems with the deponent’s notice service, for June 30th, 2009 and was finally filed on August 13th, 2009 (pages 90/91).
12.- On August 31st, 2009 an official notice was sent to the Agency’s President requesting information on the name, address and national identity documents of the people that acted as secretaries in the following areas of the SEPCyT, during the terms requested: 1.- Medical Sciences in 2006. 2.- IT, Communications and Electronics in 2006. 3.- Economic Sciences and Law in 2007 (page 93).

13.- On October 9th, 2009, the Secretary of the Medical Science Area of the SEPCyT-FONCyT, Ms. María de los Ángeles Apólito, was summoned to filed her deposition (pages 101/102) on Friday, November 6th, 2009 at 9:30 am: the Secretary of the IT, Communications and Electronics Area of the SPECyT-FONCyT, Ms. Teresa Bonelli was summoned on Friday, November 6th, 2009 (pages 103/104). And finally, the Secretary of the Economics and Law Area of the SEPCyT-FONCyT, Ms. Mónica Mendoza, for Friday, November 6th, 2009, who finally filed her deposition on November 11th, 2009 (pages 107/108).

14.- On November 12th, 2009, an official notice was sent to the Honorable Judge of the Federal Criminal and Correctional Court No. 8, attaching certified copies of these proceedings, based on a decision passed in Case No. 10152/09, dated October 26th, 2009. Likewise, it was requested to authorize this FIA’s staff to review and take photocopies of Case No. 10152/09 from its records (page 113).

15.- On March 8th, 2010, an official notice was sent to the Deputy Ombudsman of the Office of Public Defense, requesting the submission of authenticated copy of Proceedings No. 6684/08, titled “Solicitud de Intervención vinculada con presunta persecución por parte de un organismo dependiente del Ministerio de Ciencia, Tecnología e Innovación Productiva” [Intervention request related to the alleged persecution by an agency reporting to the Ministry of Science, Technology and Productive Innovation] from its records. The official notice was resent on April 14th, 2010 (pages 130 and 165).

16.- On March 12th, 2010, Researcher Pablo Manfredo Alexander was summoned to file a deposition on April 7th, 2010. The deposition was finally rescheduled for April 14th, 2010 (page 163). Lic. Martín Virdis was summoned to file a deposition on April 9th, 2010. The deposition was finally rescheduled for April 13th, 2010 (page 162). Besides, the Secretary of IT, Communications and Electronics Area, Ms. Victoria Castro, was summoned for April 9th, 2010 (pages 153/154).

17.- On August 5th, 2010 an official notice was sent to the Honorable Judge of the Federal Criminal and Correctional Court No. 8, Court Clerk’s Office No. 15, in order to request, before deciding on these proceedings, withdrawal of File No. 10152/09, titled “Agencia Nacional para la Promoción Científica y otros s/Delito de Acción Pública [National Agency for Scientific and Technological Promotion on Public Action Crime]” from its records, for a 48 hour term (page 176).

18.- The lists of
SEPCyT Area Coordinators from 2003 to 2010 was timely downloaded from the Internet, http://www.agencia.secyt.gov.ar, and attached hereto (pages 24 to 28; 60/61; 75/76 and 177/178).

19.- Copy of Law 25200, relative to the compulsory nature of providing information on academic, scientific and technological evaluation, was also attached (page 179).

III
As to the different depositions taken by this office, we would like to highlight some aspects related to certain contradictions or unawareness of the deponents. Note that they currently work or have worked as secretaries of the different areas.

A. Regarding the records kept by the area coordinators on peers selected for the evaluation, it was stated that:
–We are aware that coordinators keep those records, but they do not submit them. I understand that it is not mandatory to submit the record of each evaluator containing his/her relevant project, at any time during the process. Though coordinators must submit, at the end of each call, the evaluator bank to be posted on the Web site of the Agency and a report on the process (e.g., explaining the number of evaluators called for each area, percentage of foreigners called or effectively involved, etc.) (Of the deposition of Apólito, pages 101/102).
Records of peers participating in the evaluations are kept by coordinators. At first, there was only one coordinator per area, but, since it was a huge burden for that person, the Board of the Agency decided to increase the number of Coordinators per area. Ever since (in 2003 I believe) there have been three coordinators per area. I do not know how they keep record on the identity of peers. Once the projects are evaluated, the Secretary only receives a sheet with the area projects and their relevant qualifications and evaluations, but without the evaluator's identity (Of the deposition of Boselli, pages 103/104).

I do not know if there are records in that connection. I do know that each area coordinators are the ones in charge of choosing the peers that will evaluate the projects (Of the deposition of Mendoza, pages 107/108).

I did not have records on peers selected by coordinators (Of the deposition of Virdis, page 162).

B Regarding the procedure where there is a conflict of interest when an area coordinator submits a project to be evaluated:
- I do not know if that is written somewhere. In practice, there are two ways to avoid the conflict of interests. The first one is that the coordinator involved in the project should leave the certification meeting upon evaluating his/her project and, then, the other two coordinators would be in charge of selecting the peers to evaluate that project. The other way that can be used to avoid conflicts is to forward the project to another similar area, where applicable. In this case, the entire evaluation process is performed by another area (Apólito).
In these cases, the coordinator does not decide who will evaluate his/her project. I do not remember having a case like this in the commissions I was in charge of. I do not know how these cases have been solved in practice. What I know is that, starting this year, the Board decided that the FONCyT’s responsible person should send coordinators’ projects to be evaluated by peers abroad, for a more independent evaluation… Regarding FONCyT’s mechanism to evaluate projects submitted by coordinators it has changed throughout the years. At first (I believe until 2001) coordinators’ projects were sent to peers chosen by some Agency’s authority. Once the evaluations were done, projects approved by quality received a fixed subsidy granted by the Agency's Board, for an amount quite lower than the grant awarded for a project in a public call.
After 2001, the Board approved to change the procedure, enabling projects submitted by coordinators to compete with the rest of projects and, so, to be awarded larger subsidy amounts (Boselli). I never experienced such situation in any of the two commissions I led. I am not aware of the procedure in those cases. I understand that the coordinator should not choose the peer that will evaluate his/her project....To me, in my personal opinion, neither a coordinator, nor a member of the Board should be authorized to submit research projects if they are in office (Mendoza).
Regarding the selection of peers, area secretaries are involved when there are projects that pose a conflict of interests with the area coordinator. This is when the coordinator him/herself or somebody from his/her research team submits projects for evaluation. In those cases, the area secretary selects three possible peers, whose names are escalated to the FONCyT evaluation coordinator (who is the evaluation system coordinator) and the proposal is dealt with by the coordinator him/herself, along with FONCyT’s Board (Of the deposition of Castro, pages 153/154).

I have never had a case like this in my area, but I have always understood that, in such cases, the person in charge of sending the project for peer evaluation was the joint-coordinator (Virdis).

C. Regarding the anonymity of peers:

Anonymity of peers is a condition set from the SEPCyT-FONCyT foundation in 1997. From 2000 to 2001 there was a law stating that the identity of those evaluating other people should be publicly disclosed, but this law did not specify whether the identity of people evaluating projects should be disclosed or not. Therefore, the Agency keeps the anonymity of peers, convinced that it is a way to ensure the evaluator opinion’s independence (Boselli).

Once the peer evaluates the project (note that projects are always evaluated by more than one peer, i.e., each project has two or three evaluators), the evaluation form is sent by e-mail to the coordinator, and, once the evaluations of each project are received, the coordinator sends them via e-mail to the Area Secretary or Consultant. These evaluations are sent without the name of the peer who evaluated each case. The intention is to keep the evaluator anonymous. Moreover, if the name of the evaluator appears somewhere in the form, we are instructed to delete it. To the question about where the anonymity of the peers comes from, she answered: I do not know. I understand that it is to avoid conflicts (Mendoza).

Along the same line, Dr. Armando Bertanou, Chairman of the Agency’s Board, answered to this FIA: In view of the matters described, note that, in connection with the appointment of peers, this body complies with Decree No. 1660/96 as to the dual stage of evaluation, the creation of a bank of evaluators, the confidentiality of evaluations and the plurality of peers involved in the process. In this regard, we state that the regulation does not foresee a specific process to appoint peers, which does not mean, as stated in your Official Notice, a violation of the transparency and objectivity of acts of government.


IV


On the other hand, Section 3 of Law No. 25200 sets forth: “Every person evaluated will have the right to request the name of the evaluating jury. Institutions cannot withhold said information.”

Against this background, Pedro Manfredo Alexander, researcher of the CONICET, Ministry of Education, Science and Technology, filed a claim, by virtue of the provisions included in the aforementioned law, because he was not informed the names of the evaluators analyzing his regulatory report 2001/2002.

Thus, File No. 660/04-SG-OMESyA in CONICET’s records was created. In his deposition (page 163 overleaf), to this FIA’s question on the status of process, Alexander answered: I really do not know because, after that, I received a letter from the CONICET informing me that the report would be re-evaluated, and the report was later qualified as accepted. I understand that the process “remained pending.”

Likewise, to this FIA’s question about the process of evaluations and, mainly, the anonymity of evaluators, based on his experience as CONICET’s researcher and as to the projects submitted with the FONCyT, he answered: First of all, Law 25200 is not observed. In my case, based on my claims, the CONICET informed me that I had been evaluated by the area commission. In my opinion, this answer was a stratagem to avoid disclosing the names of evaluators. As for the FONCyT, we have submitted other projects that did not receive subsidies; but, in these cases, we did not ask for the names of evaluators. We received an evaluation report without names.
Teresa Boselli, an Agency’s official, stated in her deposition: In 2001 or 2002 there was a law stating that the identity of people’s evaluators should be publicly disclosed, but the law did not specify whether the identity of projects’ evaluators should be disclosed or not. Therefore, the Agency keeps the anonymity of peers, convinced that it is a way to ensure the evaluator opinion’s independence.

V
From reviewing the documentation attached hereto, it can be seen that coordinators and joint coordinators of some areas submitted projects to be funded with the PICT facility.
This review included 27 PICT files submitted from 2002 to 2006 (timely requested by this FIA as evidence) and coordinators appointed by the Agency between 2003 and 2007.
Now therefore, we can mention:
1) PICT 2005. Code 31541. Project Leader: Arzt, Eduardo Simón. Medical Science Area Coordinator from 2003 to 2006 and Joint Coordinator of the area in 2007.
2) PICT 2003. Code 5-13424. Project Leader: Arzt, Eduardo Simón. Medical Science Area Coordinator from 2003 to 2006 and Joint Coordinator of the area in 2007.
3) PICT 2006. Code 108. Project Leader: Arzt, Eduardo Simón. Medical Science Area Coordinator from 2003 to 2006 and Joint Coordinator of the area in 2007.
4) PICT 2005. Code: 31660. Project Leader: Cabada, Marcelo Oscar. Biological Science Area Coordinator in 2003 and 2004. Cell and Molecule Biological Science Area Coordinator in 2005 and 2006.
5) PICT 2003. Code 1-15092. Project Leader: Cabada, Marcelo Oscar. Biological Science Area Coordinator in 2003 and 2004. Cell and Molecule Biological Science Area Coordinator in 2005 and 2006.
6) PICT 2004. Code 21592. Researcher member of the project: Carelli, Ricardo. IT, Communications and Electronics Area Joint Coordinator from 2005 to 2007.
7) PICT 2002. Code 08-10849. Project’s responsible person: Mroginski, Luis Amado. Cattle, Farm, Forest and Fishing Technology Area Coordinator in 2003.
8) PICT 2002. Code 09-12085. Project Leader: Añon, María Cristina. Food Technology Area Coordinator from 2003 to 2006.
9) PICT 2002. Code 05-12397. Project Leader: Beaugé, Luis. Medical Science Area Joint Coordinator from 2003 to 2005.
10) PICT 2005. Code 38073. Project Leader: Beaugé, Luis. Medical Science Area Joint Coordinator from 2003 to 2005.
11) PICT 2002. Code 14-12174. Researcher member of the project: Schalamuk, Isidoro Bernardo. Energy and Mining Technology and Mechanic and Material Technology Area Joint Coordinator from 2003 to 2005.
12) PICT 2003. Code 10-17348. Project Leader: Schalamuk, Isidoro Bernardo. Energy and Mining Technology and Mechanic and Material Technology Area Joint Coordinator from 2003 to 2005.
13) PICT 2003. Code 1-15042. Project Leader: Cazzulo, Juan José. Biological Sciences Area Joint Coordinator of 2003.
14) PICT 2005. Code 32034. Researcher member of the project: Helbling, Walter. Organism and System Biological Science Area Joint Coordinator from 2005 to 2007.
15) PICT 2005. Code 38052. Researcher member of the project: Helbling, Walter. Organism and System Biological Science Area Joint Coordinator from 2005 to 2007.
16) PICT 2006. Code 934. Researcher member of the project: Gugliotta, Luis. Chemical Technology Area Coordinator in 2006 and 2007.
VI.


59.25% of the reviewed files (this is only a sample selected by this FIA) have a conflict of interests. Note that, an area coordinator (or joint coordinator) submitted a project, whether as project leader or member researcher, to receive financing.

Thus, within the scope of the operation conducted in the evaluation area, coordinators (who submitted their projects, each in their relevant area) are the ones who select the peers that will perform project evaluations. Therefore, at this point of the investigation, I have not received any information on the Agency having a formal procedure in place for these cases.

Logically, the Director of Management Control and Legal Affairs Department of the Agency (see pages 183/193) has stated a different opinion; however, from the investigation carried out by this FIA (within the strict framework it has been limited to), neither could, for example, the existence of transparent and efficient challenging and excuse mechanisms be confirmed, nor the actual existence of records on project evaluators (which, naturally, are not attached hereto) or the availability to request them upon evaluated people’s claims.

Procedures applied upon a conflict of interests are not clear or accurate. There are no control mechanisms that would enable to state the necessary transparency that should govern this kind of situations; even so if we considered that the PICT facility would be the most important facility of this Agency. In this connection, Teresa Boselli said in her deposition:
““the most visible facility and the one the Agency has devoted more efforts for defining clearer procedures is the PICT facility. The effort made in this facility can be accounted for the fact that it is the one the scientific community mostly applies to.”


VII


So, based on the report, this FIA has performed an investigation that, even though, on the one hand, the specific situations justifying the filing of a disciplinary action could not be found (a legal action has already been filed, Case File No. 10.152/09, Federal Criminal and Correctional Court No. 8, Court Clerk’s Office No. 15; but there are no elements in this case to reach to a different conclusion), it has been proved that there is a procedure that does not seem to meet the basic requirements ensuring the necessary transparency in managing public funds

As already stated, this could be seen, in particular, in the lack of a clear mechanism that would allow explaining how financing of certain projects was approved, and, if people with counter interests have participated in this procedure (coordinators or joint coordinators choosing peers who may have evaluated projects submitted by the coordinators or joint coordinators themselves).

Notwithstanding the confidentiality duty an administrative procedure may be subject to, particularly, when it comes to granting funds, the State should proceed so as to enable review of said mechanism, even after granting the funds. Note that, specifically, in this investigation, the laxity of the procedure followed in these cases has been an obstacle to spot out the specific irregularities, hindering an accurate revision of the situations that may frequently occur (section V sets forth, to the extent of certainty this preliminary investigation allows for, that the percentage of cases where coordinators or joint coordinators submit projects for evaluation would be high- 59.25% of the sample selected).

I am certain that this facility procedure performed by a State Agency should be able to determine: 1.- who chooses the evaluators; 2.- what projects are evaluated by them; 3.- the challenging and/or excuse mechanisms of evaluators; and 4.- access by the evaluated parties to the certification proving the above mentioned facts (even though it is somehow preferable to do this at the end of the procedure).

VIII


Against this background, I believe it is convenient to send certified copy of this Case File No. 23.612/1592 to the Honorable National Congress to assess the applicability of inserting the control mechanisms for such situations where conflicts of interests occur in the laws regulating the Agency’s operation; notwithstanding Law No. 25200 that seems not to be currently applied by this Agency's officials to the cases under review and which seems to have had the same spirit.

Likewise, I understand it would be applicable to send a copy of this report to the Honorable Judge of Federal Criminal and Correctional Court No. 8, Court Clerk's Office No. 15, as to Case File No. 10152/09 in its records.

Prosecutor’s Office of Administrative Investigations No. 4, August 26th, 2010.

RICARDO RENOM
Administrative Investigation Prosecutor


///Buenos Aires, August 31st, 2010. Seen the above mentioned proceedings and the previous reports, be it ordered as requested herein.

GUILLERMO FELIPE NOAILLES
GENERAL PROSECUTOR

www.er-saguier.org

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