La Economía Popular en la Contratación Estatal Colombiana, sus Límites Constitucionales e Institucionales

Abstract

In Colombian administrative law, the tension between the constitutional imperative to promote the economic inclusion of the most vulnerable sectors and the structural guarantees that the public procurement regime imposes as a condition for the validity of any state contractual action has been evident. On one hand, Article 13 of the Political Constitution orders the adoption of measures in favor of groups in a condition of manifest weakness, and Article 334 enables the State to intervene in the economy with the purpose of promoting productivity, competitiveness, and equitable development. On the other hand, Articles 150, 209, and 267 insist that such intervention be carried out within a regulatory framework endowed with legal sufficiency, with objective selection of the contractor, transparency in the management of public expenditure, and verifiable fiscal responsibility. For its part, the Public-Popular Associations (APPo), introduced by Article 100 of Law 2294 of 2023 and developed through Decree 874 of 2024, constituted a regulatory response to that purpose. The figure enabled direct contracting up to a minimal amount with community organizations, communal action boards, and actors of the popular economy, in an effort to territorialize state action and expand the social base of public contract execution. However, Judgment C-033 of 2026 declared unconstitutional the provisions that gave it legal support, based on three flaws that the ruling identified precisely: the insufficient normative density of the enabling norms, which delegated to the regulation the definition of the essential elements of the mechanism; the legal indeterminacy of the authorized subjects, whose identification was left in the hands of the executive's regulatory power; and the impropriety of introducing structural modifications to the General Statute of Public Contracting through a development plan law. Thus, what was a figure in the process of institutional appropriation became a constitutional precedent that reframes the debate on inclusive contracting in Colombia. That turning point is the starting point of this research. Its analysis is developed on two levels that are articulated throughout the work. The first is dogmatic: it examines the constitutional and legal principles governing state contracting, reconstructs the foundations and scope of ruling C-033 of 2026, and identifies the validity conditions that any inclusive contracting mechanism must satisfy to be constitutionally sustainable. The second is empirical: it verifies what occurred in public entities during the period of validity of the figure, based on the processing of twenty-six petitions directed to entities at the national and territorial levels between February and March 2026. The research, therefore, is structured into five chapters. The Introductory chapter establishes the methodological framework and delimits the object of study. The first develops the theoretical framework on the state contract and its modalities, with special attention to the principles of administrative function, the structural principles of state contracting, and risk management as a legal category in contracts with actors of the popular economy. The second analyzes the figure of APPs, their normative basis in Law 2294 of 2023 and Decree 874 of 2024, and the scope and implications of Ruling C-033 of 2026, including its concurring and dissenting clarifications. The third chapter presents the empirical analysis of the corpus of petitions, the typology of seven identified institutional barriers, and the central finding on the gap between normative enablement and institutional appropriation. The fourth chapter proposes the Reinforced Validity Model for Inclusive Hiring as a dogmatic construction that connects empirical findings with constitutional mandates in three simultaneous dimensions: normative validity, procedural validity, and execution and control validity. The fifth chapter develops the standard model for the inclusive hiring instrument with its operational components. Then, the conclusions and recommendations are presented.