El vacío legal del decreto 092 del 2017 a la luz del artículo 355 de la Constitución Política sobre la contratación pública epecial con las ESAL que desconocen los principios de transparencia y eficiencia, bajo el estudio del análisis económico del derecho desde la óptica de la teoría de Richard Posner.

Abstract

This paper presents an in-depth study regarding Article 355 of the 1991 Constitution in light of the regulatory gap of Article 3 of Decree 092 of 2017, which aims to highlight the legal ignorance in special public contractual procedures with Non-Profit Entities (ESAL). To demonstrate the above, an analysis will be conducted of the composition of non-profit entities (ESALs) and their various contracting procedures. It will also be reviewed whether or not there is non-compliance with the principles of efficiency and transparency in these types of contracts. This latter point will be supported by the Economic Analysis of Law (EAL) framework, specifically from the perspective of Richard Posner's theory. Posner emphasizes the importance of an efficient legal structure with the constitutional objective of generating general and transparent prosperity, thereby adding greater social value. This framework should encourage greater participation in the drafting of regulations and contractual procedures for ESALs, incorporating disciplines such as economics and law into its normative structure to facilitate better and more informed decision-making. It is worth noting that the National PublicProcurement Agency – Colombia Compra Eficiente (ANCP – CCE) incorporated a guide for contracting with ESALs into the aforementioned Decree, which is currently suspended. This research aims to address the legal implications and effects of contracting with non-profit organizations (ESALs) in Colombia, given that this issue has become a current problem for foundations in this field, where the general principles of contracting, specifically those of efficiency and transparency, are completely disregarded. Therefore, to achieve this objective, the research will first focus on analyzing the special procedures for ESALs and their structure under Decree 092 of 2017, in light of Article 355 of the 1991 Constitution; second, to explain the importance of the principles of efficiency and transparency linked to the special procedures of public procurement with non-profit entities (ESALs) in order to determine their possible non-compliance; and finally, to determine, in light of the Economic Analysis of Law, more specifically under the theory of Richard Posner, whether Article 3 of Decree 092 of 2017 is efficient, given that this approach recognizes the importance of a solid legal system regarding public contracts with foundations in detail, with the purpose of developing best practices and thus attempting to improve a competent regulatory structure regarding association agreements and inter-administrative agreements with ESALs in order to maximize efficiency and avoid the waste of public resources. All of the above, from the qualitative research method, of an analytical, deductive and synthetic nature, which allowed the study of situations and cases within the context of contracting with foundations, through documentary sources and economic theories that resulted in the conclusion that the rules established in Decree 092 of 2017 in accordance with Article 355 of the Political Constitution do not respond to efficiency criteria because their rules do not generate a necessary incentive to guarantee the contracting of these entities in terms ofefficiency and transparency.