Responsabilidad de los Agentes del Estado Frente al Acto Ficto Positivo en la Contratación Estatal

Abstract

From an objective perspective we can highlight the problem that public administrations do not give real effectiveness to administrative acts that are consolidated through the emergence of a positive administrative silence, since said act entails a number of inconveniences and responsibilities. In practice, and after the contractor has protocolized the administrative silence, the problem arises that this fictitious administrative act is effectively recognized by the administration and produces real legal effects for the contracting parties, since it is common that in these events it is necessary to go before the contentious-administrative jurisdiction for the judge to apply this silence, since the administrations never accept the emergence as such of the fictitious act, leading to such ignorance of the act a series of problems to the contractor with delays in the execution of what was requested in its original request and delays in the correct execution of the contracts. It is intended to pay special attention to the responsibilities that it brings to the public servant or to the State agent, if he does not respond to what is requested by the contractor, reviewing the type of responsibility that may be incurred, emphasizing mainly on his disciplinary responsibility and his fiscal responsibility. Topics both that were part of the course. Based on the previous arguments, it is evident that the positive fictitious act by itself does not have the enforceable force in our environment, for which it is required that in order for the fictitious administrative act to have true effectiveness before the administrations public, it is necessary to set the administration of justice in motion, since it is only the judge who gives effectiveness and validity to said fictitious Acts through the exhaustion of the claim of contractual disputes indicated in article 141 of CPACA, being that these acts fictitious, having the same attributes as the express act, must produce effects automatically before the administration and without the need to go to court.