Perspectivas Claras y Ambigüedades: El Decreto 092 de 2017 en los Convenios de Colaboración Público-Sin Ánimo de Lucro

Abstract

This article critically examines Decree 092 of 2017 in Colombia, which regulates collaboration agreements between the public sector and non-profit entities (NPOs). Focusing on clearly distinguishing between collaboration agreements and state contracts, the research highlights their legal and administrative implications. Ambiguities and legal gaps in the application of the decree are explored, proposing solutions to overcome these challenges. Comparison with other decrees, such as Decree 777 of 1992, emphasizes differences and similarities. Relevant judicial cases and opinions from administrative law experts are examined to assess the impact of this regulation. It is emphasized that, although collaboration agreements are not considered state contracts, they must comply with state contracting principles to ensure transparency and legality in their execution. This study addresses the persistent issue in Colombian public procurement marked by confusion between collaboration agreements and state contracts, exacerbated by ambiguities in the application of Decree 092 of 2017. The response to this problem materializes in research that seeks to deepen the understanding of this decree, analyzing its essential elements, impacts, ambiguities, and legal gaps, and proposing solutions to strengthen its application. Therefore, the general objective of this work is to examine and defend Decree 092, clearly differentiating between collaboration agreements and state contracts, while identifying ambiguities and legal gaps and proposing solutions to improve its effectiveness. To achieve this purpose, specific objectives are set, such as exploring the key difference between agreements and contracts, identifying, and analyzing ambiguities and legal gaps, comparing the regulation with related regulations, assessing the impact on promoting cooperation and administrative efficiency, and proposing concrete solutions.

The research highlights the benefits of Decree 092, such as administrative agility and the promotion of effective collaboration. Concrete examples illustrate its application and positive results. The hypothesis suggests that Decree 092 has contributed to greater clarity in differentiating between collaboration and association agreements, establishing specific and advantageous guidelines for the former, despite certain ambiguities and legal gaps. The article begins by reviewing historical and normative backgrounds of collaboration between the state and individuals. It then examines in detail the definitions of "contract" and "agreement" in the context of Colombian public procurement, highlighting their equivalence according to legislation. The methodology selected to carry out this study involves a thorough review of current regulations, a detailed analysis of relevant judicial cases, and consultation of opinions from administrative law experts. This comprehensive approach will allow for a deep understanding of the legal and practical aspects related to Decree 092, contributing to clarifying and strengthening the application of this regulation in the context of Colombian public procurement. In conclusion, a profound analysis of Decree 092 is carried out, highlighting positive aspects, and identifying gaps and limitations. The main focus is on highlighting how a proper differentiation between collaboration and association agreements can promote efficient cooperation between the public sector and NPOs. While acknowledging the need to clarify certain aspects of the decree and strengthen it, arguments are made in favor of its proper implementation to enhance relations between both parties.