Principio de primacía de la realidad sobre las formas en los contratos de prestación de servicios en la administración pública

Abstract

This paper deals with the principle of primacy of reality over the forms of contracting that public entities have carried out in Colombia in the last decade, as a consequence of the application of the neoliberal economic model that is favoring profit over raising the quality of life of people. The purpose of the work is to determine how the contract for the provision of services becomes a mechanism of ignorance of the fundamental rights of workers compared to the principle of primacy of reality over forms.

For the development of this reflection, which is built from the qualitative method, with a socio-legal perspective, we go to the review of primary and secondary sources, and to the analysis of the legislation and jurisprudence on the subject, which allows to present a normative, doctrinal and jurisprudential analysis on the issue of the principle of primacy of reality over the forms in contracts for the provision of services in public administration.

The work concludes that there are certainty that the contracts for the provision of services by state entities have ended up violating the fundamental rights of workers by being diverted from their purpose, as they contradict rights acquired by them; These forms of contracting have become widespread in state contracting, in which many functions that must be performed by plant personnel are being handed over to contractors for activities that are permanent, a situation prohibited by law, which undermines the evolution of jurisprudence that has been developed in Colombia regarding a minimum framework of guarantees at work.