Contratación directa en el sector defensa, ¿Un proceso de selección objetiva?

Abstract

2007's Law 1150, considered the contracting of goods and services required for defense and national security, under the abbreviated selection process, and the contracting of goods and services for the defense sector that require reservation for its purchasing under the modality of direct contracting, not distinguishing any difference for the contracting. These modalities for selecting a contractor were addressed through the Decree 1510 (2013, art.65 and 78), defining those goods and services that could be contracted through each of them; however, on May 14th, 2014, said articles were suspended by Consejo de Estado. Despite the suspension of the articles, the Decree 1510 (2003) in fact discriminated those goods and services subject to each contracting mode and when compiled in the Decree 1082(2015), the regulation kept the vague description of goods and services subject to be contracted by government Institutions for defense and national security and those by the defense sector. As there is not a distinct and clear definition between goods and services for defense and national security and goods and services for the defense sector, the institutions in the defense sector, due to the word "defense", opt to execute contracts regarding the goods and services that they require using the modality of direct contracting according to their interpretation. It is possible that because of this interpretation, an abbreviated selection alternative is being opted out as the adequate procedure for the objective selection of contractors, aspect that must be analyzed to bring clarity to the matter. In that regard, the pursue of constructing, through the use of a descriptive and analytic methodology with qualitative approach, of criteria which allows a distinction between the understanding of goods and services for the defense and national security and goods and services for the defense sector, establishing if defense and national security must be considered under the traditional concept of war, or to the contrary, other activities not necessarily related to combat but necessary to achieve the government means in this regard should be included into this concept. For the same reason, define which goods and services belong to the defense sector, to allow the institutions in this sector to perform the adequate interpretation and implementation of the contracting modalities established by the law, eliminating the use of direct contacting as a general practice. It is worth mention that the suspension of articles 65 and 78 of the Decree 1510 (2003), was ruled by Consejo de Estado on sentence dated November 19th, 2015 and the pretension of declaration of nullity of these articles in the sentence of May 24th, 2018.