Liquidacion unilateral de los convenios interadministrativos

Abstract

According to Article 95 of Law 489 of 1998, inter-administrative agreements are those established for state entities to pursue a common purpose, through the realization of shared interests. This law does not establish any procedure with respect to the pre-contractual, contractual and post-contractual stages.

The General Contracting Statute regulates aspects of inter-administrative agreements, such as exceptional clauses, guarantees, selection modality; however, it does not distinguish between the liquidation of contracts entered into with private parties and those entered into between public entities.

Article 11 of Law 1150 of 2007 states that the liquidation shall be made by mutual agreement within the term established in the bidding documents or their equivalents, or within the term agreed upon by the parties for such purpose. In the absence of such term, the liquidation shall be made within four (4) months following the expiration of the term foreseen for the execution of the contract or the issuance of the administrative act. It also indicates that in those cases in which the contractor does not show up for the liquidation, or the parties do not reach an agreement on its content, the entity will have the power to liquidate unilaterally within the following two (2) months; in any case, the parties or the contracting entity may liquidate the contract, provided that the legal term of expiration of the contractual action has not elapsed, which according to article 164 of the CPACA is two (2) years from the expiration of the terms provided for the liquidation of the contract.

Thus, the Law, in a supplementary manner, grants the administration the power to liquidate contracts unilaterally, in case the bilateral liquidation cannot be carried out, providing the public entity with hierarchy over the private contractor.

Notwithstanding the foregoing, the regulation does not establish the procedure to be followed when it is not possible to carry out the settlement of accounts in an inter-administrative agreement where the parties are two (2) or more public entities that have the same conditions and hierarchy.

Regarding the unilateral liquidation of inter-administrative agreements, the Highest Body of the Contentious Administrative Jurisdiction has indicated that in this type of agreements the public entities may agree that one of them perform the settlement of accounts in case the bilateral liquidation cannot be carried out, since the law only prohibits in this type of business the use of exceptional clauses, a nature that is not shared by the unilateral liquidation.

In this order of ideas, it is valid to affirm that, despite the equality existing between the entities associated in an inter-administrative agreement, the parties by common agreement may agree that one of them liquidate the agreement unilaterally. If there is no agreement between the associated entities as to which of them would be in charge of the unilateral liquidation in the absence of agreement on the bilateral liquidation, the Contentious Administrative Jurisdiction will be the one to proceed, since none of them may exercise subordination power over the other, since they are two (2) or more state entities and pursue common interests. Translated with www.DeepL.com/Translator (free version)