Limitaciones a la adenda en contratación estatal: análisis a la luz de la ley y la jurisprudencia colombiana

Abstract

Despite the importance of the statement of conditions in State hiring, neither its structure nor its modification are expressly regulated by law as to the scope of its content, in this context, it has that aspects relating to the definition, nature and scope of the specification, as well as the inadequate structuring and modification of the same effects are developed in Colombia by the doctrine and jurisprudence. However, when the statement of conditions documents requires to be modified, either on the initiative of the entity, or as a result of the analysis of the comments submitted by the proponents, we find the legal figure of the addendum; that, because of the previous design it is considered outstanding, but it is frequently used in contractual legal practice. This paper deals with the problem that arises in regard to the simple regulation that exists in formation and modification of the statement of conditions which leads the public entity to the implementation of principles in the decision-making in this regard. This situation gives place for a possible breach of the principle of legality, understood this as a block of legality that assumes two spheres being the first one of them, specific reference to the law, and the other, “the legality with reference to the principles, values and interpretation jurisprudence, emanating from the study of the ordering positive and that actually guide the application of the law and to the effects of such transgression.