Aplicabilidad de las facultades excepcionales en la actividad contractual de Ecopetrol S.A.

Abstract

The pact of exceptional clauses in state contracts has been the clearest manifestation of the prerogatives of public power of the State. The power entails the imposition unilaterally of the will of the Administration in a contractual relationship, which in principle is supposed to maintain a balance and equality of the parties. Thus, it is doubtful whether power can be maintained in contracts belonging to a regime exempted from the application of public law, where, as they are in the face of particular provisions, they must be maintained on an equal footing. The sources analyzed coincide that the incorporation of this type of clauses is only possible in contracts subject to private law, when there is a legal authorization in that sense and that, in the absence of it, its pact is not possible. This was precisely the criterion we took into account to analyze the particular case of Ecopetrol SA, where we could establish that article 76 of Law 80 of 1993 constitutes the authorization required for the purpose. There the legislator consecrated a series of activities, and gave the power to the competent companies to carry them out, to fix in its manual of contracting the exceptional clauses that can be agreed upon. Based on this, we analyze the scope of the power conferred, stating that it is not possible for the Entities to which they have the power to decide whether or not to accept the application of exceptional clauses in their contracts, can somehow decide on the Conditions or effects thereof, making it clear that this power is governed by Law 80 of 1993, a standard to which the company must take advantage of this matter, regardless of the regime of private law that assists.