El contrato de prestación de servicios, contrato realidad y la eficiencia del control fiscal en Colombia

Abstract

The waste of resources due to the use and abuse of the modality of linkage by contract for the provision of services, has resulted in true parallel payrolls in public sector entities, generating patrimonial damages to State entities due to the demands presented by contractors for compliance with the schedule, subordination and remuneration, cases in which many Judges of the Republic end up condemning the State for configuring the three elements of the employment contract, which is far from the raison d'être of the contract for the provision of services, leading to what is has been known as a reality contract, affecting the fundamentals of the contract in its principles of equality, in terms of its recognition as a legal transaction with an economic content, which from the fiscal point of view requires greater attention and control. The objective of the article is to analyze fiscal control against contracts for the provision of services, within the Public Administration to avoid, prevent, penalize or dissuade the configuration of the contract in reality, in public entities in light of the law and jurisprudence. . For this purpose, the method used is legal research with a documentary technique that allows the approach of the different reports, audits, jurisprudential and doctrinal pronouncements, elements that serve to know the scope of the contract reality in Colombian contractual legislation. It is concluded that a deficient fiscal control persists for the Colombian State in the face of the interaction that emerges from the contract for the provision of services, labor contract and reality contract.