La posibilidad de liquidar unilateralmente los contratos interadministrativos

Abstract

The unilateral liquidation of state contracts is a legal tool governed by the Colombian contracting statute, so that in certain circumstances it may be used by state entities, with the purpose of finalizing and making decisions regarding the results and obligations contracted in a Contract, without the need for the will or with the consent of the counterparty. For the specific case of the present investigation, unilateral settlements in interadministratives contracts has been a legal instrument that the Colombian legislator does not regulate clearly and expresses whether or not it can be applied. However, the Council of State, the highest court for administrative litigation, issued a number of judgments with positions that are dissimilar and controversial, since I consider in a judicial decision the prohibition of unilaterally liquidating inter-administrative contracts by equating the unilateral interpretation of power of an exorbitant clause. However, in another ruling issued by the Council of State, I point out that exorbitant clauses as prerogatives of public entities are to mitigate situations that affect the provision of the service and, therefore, the public interest, and are limited only to those specifically mentioned at No. 80, 1993, the law that is enshrined in articles 14 to 19 of the statute of contracting. Consequently, by not having a peaceful position in the application of the rules governing unilateral settlement in inter-administrative contracts and the uncertainty generated by not having a tool to finalize this type of contracts unilaterally, the research work sought to resolve if the Unilateral liquidation in public procurement is a clause or exceptional authority of the administration, if it is applied the prohibition of its application in inter-administrative contracts, taking into account the legal positions adopted by the legislature, doctrinal, jurisprudential and in conclusion It can be understood that unilateral liquidation in inter-administrative contracts is possible insofar as it is neither an exorbitant power not a capricious unilateral power of administration, even though it is between equal contractual subjects, but is confined to a legal tool post -contractual that in order to make a balance and an adjustment of accounts in the execution of the state contract.