Limitación a MIPYMES territoriales y la vulneración a los principios de transparencia y selección objetiva en la mínima cuantía.

Abstract

This degree work addresses how the modality of selection of minimum amount in the framework of government procurement in Colombia has generated economic and procedural benefits to certain subjects with special characteristics, such as municipal MSMEs. The main objective of the measure adopted in this selection modality is to encourage and make more attractive the participation of suppliers in the selection processes, promoting the plurality of bidders, in principle, this should be done without disregarding fundamental principles of contracting, such as transparency, economy and responsibility.

It has been evidenced that along the way this measure has generated a boost in the formality of employment, as well as the creation of companies in Colombia by the participants in the selection processes of minimum amount, which has resulted as one of the most important benefits for the state, hence, for the state to promote and generate mechanisms to make the participation in the selection processes more dynamic.

Notwithstanding the above, it is evident on the other hand, the fact that some bidders take advantage of the benefits and loopholes that occur in the stages of the selection process, thus generating, sometimes, that after seeking to be awarded in these processes, bidders strategically use the few regulations in this matter in their favor, since it is clear that there is a shallow regulation that precisely because we are facing a process that must include subjects with special and differential characteristics, regulates certain situations in a special way.

One of the measures adopted with respect to these subjects is the benefit of limitation, through which the exclusive participation of municipal MSMEs is allowed in the selection processes, what has been evidenced is that the fact of adopting this measure without considering the economic and commercial context at national level, in reality influences in reducing the number of bidders that can participate, this in turn, generates a clear “legal” disadvantage both for the bidders that do not meet the characteristics of a municipal MSME and for the state entity.

Thus, through this article, an analysis is made of the fact that as long as there is no regulation that establishes clear responsibilities for those who promote the benefit of limitation without an objective justification and without the intention of participating in the selection process, what will happen is that the benefits granted by the state will continue to negatively affect the principles of objective selection, transparency and economy of state contracting.