Omisión de la Selección Objetiva y Nulidad Absoluta por la Causal de Prohibición Expresa de la Norma en la Contratación Estatal Colombiana

Abstract

State contracting in Colombia is governed by a set of principles aimed at ensuring transparency, equality, efficiency, and accountability in the management of public resources. Among these, the principle of objective selection occupies a central place, as it requires entities to choose their contractors based on verifiable and pre-established criteria, thereby avoiding arbitrary decisions or those driven by interests unrelated to the fulfillment of the general interest. This principle is enshrined in Law 80 of 1993, which regulates the legal framework applicable to contracts entered into by state entities.

When an entity omits the procedure designed to guarantee objective selection, a significant legal issue arises: determining whether such omission constitutes a mere defect in the procurement process or amounts to a ground for absolute nullity. Article 44 of Law 80 sets forth several grounds, including the violation of an express legal prohibition. Where this ground is met, Article 45 orders the administration to unilaterally terminate the contract and to initiate the შესაბამის administrative sanctioning procedure (Law 80, 1993).

However, the jurisprudence of the Council of State (2006) has established that not every breach of the principle of objective selection constitutes an express prohibition within the meaning of Article 44. Certain decisions have drawn a distinction between the direct violation of a specific legal mandate and actions which, although irregular, reflect an improper exercise of the administrative function, thus falling within the ground of abuse or misuse of power. When the irregularity corresponds to the latter scenario, nullity may only be declared by the administrative contentious jurisdiction, and the administration is not required to unilaterally terminate the contract (Council of State, judgment file No. 13168, 2006).

This distinction has important practical effects. If the omission of objective selection constitutes an express prohibition, the entity must act immediately and declare unilateral termination. If, on the other hand, it involves abuse or misuse of power, the entity cannot declare nullity on its own and must await a judicial decision. The lack of clarity between these two categories generates uncertainty for both entities and contractors, affects the stability of public contracts, and may compromise the proper execution of public resources.

This study is developed through a dogmatic analysis methodology, focused on Law 80 of 1993, relevant doctrine available in recognized academic sources, and decisions of the Council of State addressing the application of the principle of objective selection and the grounds for absolute nullity. This approach makes it possible to offer a coherent and practically useful interpretation, aimed at strengthening legal certainty and improving decision-making in matters of state contracting.

In order to enhance the timeliness and rigor of the analysis, this research incorporates recent jurisprudence of the Council of State, particularly decisions issued between 2020 and 2023, which reveal a significant evolution in the interpretation of absolute nullity due to the violation of an express prohibition and its relationship with the principle of objective selection.

In this regard, the study is not limited to a historical review; rather, it temporally delimits the jurisprudential analysis along an evolutionary line spanning from 2006 to 2023, a period in which significant changes are identified in the criteria used to assess the omission of objective selection, as well as tensions between restrictive and expansive approaches in the configuration of the ground set out in Article 44(2) of Law 80 of 1993.

This delimitation makes it possible to determine whether there is a trend toward the unification of criteria by the Council of State or, conversely, the persistence of divergent approaches that undermine legal certainty in state contracting.