Incumplimiento en la ejecución contractual frente a la inexistencia de garantías en los procesos de contratos interadministrativos

Abstract

State contracting is a process through which a state entity, whether national, departmental, or municipal, acquires goods or provides services and works to effectively fulfill the essential purposes of the state for its constituents. Among the contractual modalities described is the General Statute of Public Administration Contracting - Law 80 of 1993, where, as a general rule, the contracting party is a public entity and the contractor is a private party. The generic nature of the contract is broken when it comes to inter-administrative contracts, which fall into the category of direct contracting.

Inter-administrative contracts are inherently bound by a duty of cooperation. Although they are designed to achieve the goals of the State, they are characterized by the fact that a profit is involved, which is delivered as compensation to the State entity that provided its services, carried out a project, or sold some good (executing entity/contractor); these two counterparts, which may be of different orders among themselves, where one of the State entities acts as the contracting party and the other is called the contractor, which must meet certain characteristics within its functions that must be in accordance with the agreed contractual object; the latter will be in charge of the execution and will be similar to a private individual.

Although these are state entities, it is not uncommon for circumstances to arise during the development of the contract that prevent the correct fulfillment of its obligations. Therefore, in order to mitigate and prevent damages and losses to public assets, there are optional elements that may be used to achieve compliance with the contract, through sanctions, generally of an economic nature, which is an element that seeks to constrain the contractor to carry out the contractual activity, as well as penalize events where non-compliance, defective compliance or late compliance occur, tools that, according to the legal system relating to public procurement, can now be used directly by the contracting entity.