Análisis de la normatividad colombiana en materia contractual frente a la lucha contra la corrupción

Abstract

Corruption in public procurement has been a phenomenon that, although not new at all, is currently a matter of national and international interest due to the progress it has made in each of the fields of action at the level of the Public Administration. Such is their progress, that the criminal forms through which it manifests leave with astonishment even the most developed countries in normative and contractual.

In addition, it is observed that the need of the public servant to be enriched with the state patrimony leads him to engage in conduct that is harmful and counterproductive both for the Public Administration and for society; Since as a result of the patrimonial detriment of the State, the resources for social investment, business, health and other areas that allow the development of the country will be less and as a consequence there will not be adequate economic development that will eradicate the poverty generated and the constant advance Of geographically undeveloped places, undermining the legitimacy of the State.

As we will see later in the development of this work, corruption in state procurement specifically in public bidding is more common than is believed, so we will see the various typologies of corruption in this modality of contracting, since in most Of cases these behaviors are carried out with full knowledge of the law. Hence, Transparency International has the following concept on corruption:

“Corruption is a manifestation of institutional weaknesses, under moral standards, biased incentives, and lack of law enforcement. Corrupt behavior derives illicit benefits to a person or small group by ignoring rules that have been designed to ensure impartiality and efficiency. It produces unfair, inefficient and uneconomical results. The illicit rewards for a small group that breaks the rules occur at the expense of the community at large. There are other individual losers, such as those who are forced to pay bribes, who are denied the right to benefits for not being able to pay them and those who lose tenders to supply goods or services due to bribes paid by others”

Corruption in state contracting completely destroys the principles embodied in Law 80 of 1993, basic text for the total development of the subject in public entities. Principles such as transparency, objective selection, equality, economics, planning, etc. Are the foundation on which every entity should be supported in order for a contractual process to be successful, and thus avoid that in the middle of the road extraordinary situations arise that lead to an abnormal termination of the process or the award of a contract to a wrong bidder.

It should be noted that the phenomenon is not only in Colombia, but also at the international level. Concerns have been expressed by international organizations such as the OAS, WTO, OECD, Transparency International, etc., which have carried out studies Look for how corruption in hiring continues to make its way and why it increases alarmingly.

It is important to emphasize the work of the National Government on the subject, since in recent years the Secretariat of Transparency of the Presidency of the Republic has been created and Law 1474 was issued in 2011, called the AntiCorruption Statute, in which Criminal, disciplinary and administrative measures. These measures somehow provide some peace of mind to the citizens, who already have a preconceived idea of not participating in recruitment processes because they believe that the specifications are made and adjusted to deliver to specific people, regardless of others Proposers.

Also, the issuance of multiple rules in the field of Public Procurement, continues to boom. This is evidenced by the issuance of Law 1150 of 2007, which amended Law 80 of 1993, subsequently was enacted Law 1474 of 2011 as indicated above and Decree Law 019 of 2012, some regulatory decrees (2474 of 2008, 2025 2009, 3576 of 2009, 4266 of 2010, 734 of 2012), the latter repealed by decree 1510 of 2013 and this in turn by 1082 of 2015.

In some of these amendments, the legislator has wanted to introduce measures to combat corruption, since it has become an obstacle to the adequate investment of public resources, through the incorporation of contracting modalities such as reverse auction, The application of certain criteria for the selection and evaluation of proposals, the application of rules of rectification, the application of principles in the selection of contractors, etc., dispositions that must generate a positive change in the servers that have in charge the immense responsibility To provide better living conditions to the governed.

The application of ethics by the public servants who are in charge of the permanent activity in state contracting has been reducing in a way that affects the interests of the community, this behavior is increasingly visible and increasingly the State seeks measures To combat this scourge, without achieving positive results.

That is why, what is sought with this work is to go deeper into the regulations issued in the area of public procurement and see how favorable has been the creation of the same for the fight against corruption without losing sight of It is clear the effort that has made the legislator to be at the forefront both nationally and internationally, having as support the agency Colombia Compra Eficiente who has arisen in order to give a more organized and efficient approach to hiring, allowing to unify documents, guides And manuals that were not previously used to use, but which has been a useful tool for the development of the activity in the state entities.

Hence, to conclude, we will take a look at the reform that Colombia Compra Eficiente presents and thus guide us to where this reform is going and what are the most emphatic changes that will generate a complete overturn to the current procedure established in Decree 1082 of 2015 and other norms Concordant. But something that needs to be kept in mind is that if public servants do not change the mentality that only seeks to generate profits in favor of their particular interests, there will be hardly any reduction of corruption, so that normative production will bring with it many advances in contractual matters.