La inaplicabilidad del límite del 50% a los convenios interadministrativos colombianos

Abstract

Inter-administrative agreements constitute a cooperation instrument between public entities aimed at the joint fulfillment of state purposes, differing from onerous state contracts that are subject to market rules and objective selection procedures. However, in Colombian administrative practice, there remains an interpretative controversy regarding the applicability of the limit on additions exceeding fifty percent (50%) of the initial value, established in the second paragraph of Article 40 of Law 80 of 1993. This paper analyzes whether such restriction is legally applicable to inter-administrative agreements or whether its automatic extension disregards the specific legal nature of these instruments and the constitutional principles governing administrative functions. Based on a legal-dogmatic methodology, supported by normative, jurisprudential, and doctrinal analysis, as well as selective comparative references, the study examines the ratio legis of the quantitative limitation and its coherence within the public procurement system. The study concludes that the 50% limit was designed by the legislature as a control mechanism specific to onerous state contracts, intended to preserve objective selection and prevent substantial alterations to the award conditions; therefore, it is not legally applicable in an automatic manner to inter-administrative agreements. Nevertheless, it is argued that amendments to these instruments must be subject to strict requirements of planning, justification, consistency with the contractual purpose, and oversight, in order to guarantee legality, administrative efficiency, and the protection of the public interest.