El Delito de Celebración del Contrato sin el Cumplimiento de Requisitos Legales en el Proceso de Licitación Pública n° ftic-lp-038-2020.

Abstract

The state is in charge of fulfilling the purposes enshrined in the Political Constitution and for this it makes use of public contracting through which it seeks the most suitable natural and legal persons to execute those interventions that are in charge of the state, because that does not have the capacity and expertise to develop the activities that materialize the duties in charge. Who assumes the execution of the contracts granted by the state becomes responsible for the correct execution and provision of services, which is why those officials who are in charge of the objective choice, as in a public tender, of possible Contractors have a great responsibility since they evaluate the best characteristics among the bidders who present themselves for the award of a contract. In this same sense, public bidding is the means through which the state contracts the provision of goods or services; This contractual process begins with the study that proposes and justifies the need to hire a third party, the requirements for the process that the potential contractor must comply with are established, the offers are received and they are evaluated in accordance with the legal requirements and those established for the bidding proceeds to the award where the other bidders present oppositions and as expected, the most suitable natural or legal person is chosen to execute the entrusted tasks. On the other hand, it should be mentioned that in these contractual processes there is not always the due diligence required for the evaluation of these bidders, therefore the legislator had to protect the public administration as a protected legal asset in certain crimes that condemn misconduct in these areas. Therefore, one of the crimes was named the crime of entering into the contract without complying with the legal requirements because the law and the contractual process itself establish requirements that are mandatory to guarantee the correct execution of the contractual object. In the case of the public tender FTIC-LP-038-2020, the Colombian Ministry of Information Technology and Communications awarded one of the tender contracts to the legal entity Unión Temporal Centros Poblados 2020 to execute the improvements in the internet service in the rural areas assigned to region B. During the execution of this contract, the contractor presented delays in its execution and for this reason an investigation was initiated within the Ministry, in which it was discovered that the guarantee presented for the advance payment was not real, the signatures of those who granted this guarantee had been forged. This situation unfolded several legal actions and for academic interest it is relevant to establish how the crime of the contract is configured without compliance with the legal requirements for which the public servants who evaluated and awarded the contract are responsible, given that this omission in due diligence of its functions constitutes a direct violation of the public administration. Thus, it is intended to evaluate the bidding process, the configuration of the crime and how it can be applied to the particular case.