Responsabilidad del Interventor en Aspectos Ambientales en los Contratos de Obra Pública en Colombia

Abstract

Public procurement in Colombia according to Law 80 of 1993, in its article 3, has as its purpose "the continuous and efficient provision of public services and the effectiveness of the rights and interests of the administrators who collaborate with them in the achievement of said purposes" (Congress of the Republic, 1993). These processes are regulated by Law 80 of 1993, which establishes the rules to guarantee transparency, efficiency and compliance with state purposes in these contracts. One of the fundamental pillars of public procurement is the role of the auditor, as a third party hired by the entity to support the duty of monitoring and surveillance. The auditor is the person (natural or legal) in charge of ensuring that the contractor complies with all the terms and conditions of the contract, in accordance with the conditions established in the audit contract. Its main activity is to ensure that the project is carried out appropriately and in accordance with what is stipulated, guaranteeing correct execution in technical, financial, environmental and administrative aspects. This vigilance is key to preventing acts of corruption and ensuring that public resources are used correctly. Likewise, they must be responsible for the attributable acts or omissions that constitute non-compliance with the terms of the contract and that entail damage or harm to the general interest, as established in article 53 of Law 80 of 1993, on the responsibility of the consultants, auditors and advisors. In any case, the audit is a control mechanism that is used in state contracts in Colombia, where its main function is to guarantee that the contractor complies with all contractual obligations, both in technical and administrative, financial and environmental terms. The auditor can be a natural or legal person, specifically hired by the state entity to monitor compliance with the contract, from its beginning to its end. This actor has the responsibility of making periodic reports and documenting the progress of the work or service, ensuring that it complies with the terms of the contract (Law 80, 1993). The hiring of auditors is mandatory in public contracts, such as those related to infrastructure works, due to the complexity and social and economic impact that these activities entail. The auditor must be selected rigorously, based on his specialized knowledge, to guarantee the transparency and efficiency of the contractual process. Considering the above, this work aimed to analyze the responsibility of the auditor in public works contracts in the administrative monitoring of the environmental aspect in Colombia starting in 2011. The responsibility of the auditors, although it varies according to the regulations and contracting conditions of each country, involves the surveillance and monitoring of projects to guarantee compliance with contractual provisions in administrative, financial, accounting, technical and legal aspects. However, at a global level, challenges are faced such as corruption, inefficiency in surveillance, lack of technical experience, conflicts of interest and deficiencies in accountability. In Spain, for example, corruption is linked to cases such as prevarication, influence peddling and embezzlement of funds, which affects economic growth and equality (Rodríguez and Velasco, 2017). The responsibility of environmental monitoring is crucial, since interveners must guarantee compliance with regulations and the implementation of measures to mitigate negative impacts on the environment (Ayala et al., 2022). Furthermore, the importance of considering the environmental consequences of public works in the post-contractual stage is highlighted, highlighting the need for an adequate risk analysis and mitigation measures to preserve the environment. According to the problem, the question is formulated: What is the responsibility of the auditor in public works contracts in the administrative monitoring of the environmental aspect in Colombia starting in 2011?, for which the specific objectives were developed: describe the historical progress on the responsibility of the auditor in public works contracts in the administrative monitoring of the environmental aspect in Colombia starting in 2011; determine the main criteria established in Colombian legislation on environmental matters that determine the responsibility of the audits in the environmental monitoring of public works contracts in Colombia; establish the role of good administration of the State in relation to the duty of surveillance and monitoring by contracting entities and auditors. Within the framework of the above, the following chapters were developed that allow us to advance in the process of answering the general question, studying the historical progress of the responsibility of audits in environmental monitoring in public works contracts in Colombia; Likewise, the criteria established in Colombian legislation on environmental matters that determine the responsibility of the audits in the environmental monitoring of public works contracts were studied. Subsequently, an analysis was carried out of the responsibility of the interveners in the administrative monitoring from the environmental aspect in compliance with the duty of surveillance and control of construction contracts.