Límites a la autonomía de la administración pública para la confección de las cláusulas de los pliegos de condiciones.

Abstract

The purpose of this article is the legal approach to the existing limits to the autonomy enjoyed by the public administration for the preparation of the clauses that are incorporated in the specifications in the contractual activity.

It is well known that both legislative and jurisprudential efforts have been focused on minimizing the events in which corruption takes place with regard to the management of public spending. This is how the special regulations that make up the General Statute of Public Procurement (Law 80 of 1993, Law 1150 of 2007, Sole Regulatory Decree 1082 of 2015, Law 1474 of 2011, and other concordant and complementary regulations) have been incorporated into the legal system a series of principles and rules that avoid arbitrary targeting of public procurement by state entities of all orders.

Efforts in the fight against corruption in the matter of public procurement have had a very nourished development over time, for this reason, the focus of the investigation that is presented today is made in the light of a historical-legal study. Study that addresses the evolution of the limits that by virtue of the legislation and jurisprudence, are applicable to the autonomy available to the public administration to draw up the conditions that later become an integral part of the specifications in the contractual activity.

In pursuit of the above, the main characteristics of the specifications will be defined first in light of the normative and jurisprudential guidelines applicable to date; secondly, and in line with the foregoing, the existing limits to the autonomy of the administrative authorities will be determined with regard to the preparation of the clauses of the tender documents so that the consequences of the non-observance of the conditions are finally established. the limits in comment when preparing the specifications in the contractual activity.