Análisis de la idoneidad de EMPOCHIQUINQUIRÁ S.A. E.S.P. como prestador de los servicios de acueducto y alcantarillado en Chiquinquirá: un enfoque desde la libre competencia económica

Abstract

This study aims to evaluate the financial, technical, and commercial suitability of EMPOCHIQUINQUIRÁ S.A. E.S.P. (hereinafter EMPOCHIQUINQUIRÁ) as a provider of public water and sewerage services in the municipality of Chiquinquirá (Boyacá), from a legal and doctrinal perspective and within the constitutional and legal framework that guarantees free economic competition. This is in light of the fact that, for almost 10 years, the municipality has faced serious deficiencies in the continuity, quality, and efficiency of the service, a situation documented since 2014 by the Superintendency of Public Utilities. In this regard, the study seeks to establish whether EMPOCHIQUINQUIRÁ's continued operation as the sole provider under the direct service provision model, which is exceptional by law, has affected the provision of water and sanitation services. These services, according to Law 142 of 1994, are of paramount importance to the principles of freedom of enterprise and free competition. Furthermore, a systematic examination is conducted of the public utility services regime, constitutional and administrative jurisprudence, the opinions of the CRA (Regulatory Commission for Drinking Water and Basic Sanitation), and sector-specific regulations, in order to determine whether the conditions justifying the maintenance of an operational public monopoly in the municipality still exist. The foregoing stems from the identification of findings that reveal recurring problems in service delivery due to the provider's lack of suitability, which, in turn, represents restrictions on effective competition and artificial barriers to entry. Consequently, given the indefinite continued presence of the provider, the aim is to suggest alternative service delivery models such as competitive schemes, concessions, or exclusive service areas, seeking to identify solutions that promote efficiency, continuity, and transparency for the benefit of users. Therefore, the final analysis seeks to determine whether the current direct service delivery model should be maintained, reformed, or replaced, taking into account the constitutional principles of efficiency, quality, sustainability, and free economic competition, with the aim of contributing to an institutional redesign that guarantees the adequate provision of essential public services in Chiquinquirá. Finally, the study adopts a qualitative methodology with a descriptive and analytical approach and proposes a legal reflection on the constitutional principles of efficiency, quality, sustainability, and free economic competition.