Procedimientos y Presupuestos para Celebrar Contratos con Entidades Sin Ánimo de Lucro y de Reconocida Idoneidad Establecidos en el Decreto 092 de 2017

Abstract

The states need to contract goods and services, but for this they require a legal framework of action, which allows them to act in conditions within the legal framework so that it is viable in conditions of transparency, which is why this article deals with the analysis of the contracting rule known as the regime or special modality of public contracting that is based on article No. 355 of the Political Constitution of Colombia, which gives the power to the government on behalf of the sovereign to be able to carry out work in association or by contracting with non-profit entities. Since the promulgation of the constitutional charter in 1991, and the subsequent regulation of this activity in 1992 with decree 777 of May 16 and only until 25 years later in 2017 with the issuance of Decree 092 of January 23, the so-called contracts or agreements of public interest under an exceptional character had the characteristic of being assigned directly and under differential conditions in state contracting. This condition of exceptionality and special nature of contracting has lent itself to various difficulties, such as the contracting by hand of many of these non-profit entities, which for control entities such as the Office of the Attorney General of the Nation, the Office of the Attorney General of the Nation, Municipal Personerías and Oversight Offices, this question violates basic precepts of the public administration, exceeding the powers that have been foisted on said figure, allowing many public entities to make it part of their common contracting processes without mediating bidding processes. . This situation has led to the fact that in many cases processes are caused by patrimonial detriment to the public treasury, as well as to the interests of the State, which is why the normative content is formulated by the National Government and adopted by the National Planning Department to through Decree 092 of 2017, in order to involve basic precepts of public contracting, involving equity and transparency to avoid in the future that acts or crimes against the public administration may be presented through acts of corruption, which they have come to light as part of the relationship between private interests and the looting of public resources. Hence, this article seeks to present the main elements that have been part of this problem, analyzing the rules that have been established for its control, as well as the positions of the national government in this regard in order to ensure that public resources are not put at risk with the execution of this type of contracts signed through this special modality with non-profit entities and recognized suitability.