Actos negociales frente a actos administrativos: la dicotomía en el régimen de contratación de las empresas de servicios públicos (ESP) domiciliarios oficiales

Abstract

The contractual activity of domiciliary public service companies, by mandate of Law 142 of 1994, is framed under a substantial regime of Private Law, as an exception to the provisions of the General Statute of Public Procurement. However, within the contractual processes of domiciliary public service provider entities, especially those of an official nature, standards and procedures of administrative law are incorporated, which lead to a debate about the nature of legal practice of the acts that are issued within the framework of the contractual processes in these entities. Although the configuration of a mixed regime has been recognized in the scope of business relations of companies providing official public services, there are still gaps of a legal nature that have not been interpreted by the high courts. Such gaps are generated, mainly, because of acts that do not expressly find a legal justification to be recognized as administrative acts. In this sense, the present research work has as its main objective to determine the nature of the legal acts issued by the public domiciliary service companies in the development of their business activity. So that with the porpuse for establishing the legal nature of the acts issued by the public domiciliary service companies in the context of their contractual relations, it is necessary to analyze in detail the different criteria that have been used by the jurisprudence of the Council of State. In this order, the first article will deliver a study on the different positions assumed by the jurisprudence facing these criteria, also reviewing to normative and doctrinal sources previously making an enunciation of the cases against which there is no disparity of criteria in the application of Public Law, that is, the acts issued by public, mixed and private domiciliary service companies, in the events in which the legislator expressly authorized these entities to execute an administrative function.