EL “ESTATUTO GENERAL DE CONTRATACIÓN DE LA ADMINISTRACIÓN PÚBLICA”. Estudio normativo, doctrinal y jurisprudencial sobre su naturaleza

Abstract

The final paragraph of article 150 of the Constitution foresees as a power of Congress to issue the General Act of Public Administration Contracts. The question is: What does General Act, mean in Constitutional Terms, is it law Statute the same as law Statutory, is it law Statute the same as law Ordinary?, is it law Statutes the same as law Coding? Could at the same time a law Statutes be a Law General? Is it a law Statutes and such a law Ordinary and at the same time be a law General?

After examining trough the Constitutional Doctrine the meaning of law Statute and what it means a Law General, it’s been determined what we understand by Statute General, with the final object of defining later what we understand by General Act of Public Administration Contracts.

We’ve determined so far what has been said by the Constitutional Doctrine aout the Constitutional Review of the Law 80, sanctioned in 1993, even though that most of the decisions have been obiter dicta.

The proceeding year, as a Government initiative, the Congress had in it’s powers to define the nature of the Public’s Contract’s Act as a Law General, but at the end that project wasn’t approved. The question remains, Should Congress insist in it or should they establish in other terms the nature of the of the General Act of Public Administration Contracts?

This is a fundamental issue, thus the nature of the regulations in the matter of the Public Contracts determines the frame of action of the administrative officers at the beginning of the selection process, the adjudication, the celebration, the execution and the settlement of the Public Contracts, as well as the remaining aspects that are in touch with this important matter.

There is no doubt, according to article 352 of the Constitution, any rule regarding the capacity to be bided by contracts of the entities and organs of the state are and should be organic statues.

is clear that other rules of authorizations are, the one issued by Congress (article 150-9 of the Constitution), the Departments Assemblies (article 300-9 of the Constitution) and the District and Municipal Councils (article 313-3 of the Constitution), in which they authorize the respective Governments: National, Departmental, District and Municipal to celebrate contracts.

Ordinary rules, those —different from the latter— in which the Constitution demands the existence of a regulation of legal matter, like those that rules the cases in which applies the mechanism of the public hearing, the way to undergo the evaluation of the proposals, and the conditions to forgo the latter (article 273 of the Constitution) and those matters in concordance with the Constitution that should guarantee the principle of legality and the congressional clause, that would be the case of the rules that foresees the codes of prohibitions, incompatibilities, conflicts of interests or the punitive and sanction codes in Public Contracts; the ones defining the standards of the validity and the existence of contracts and its nullity and judicial review.

The rest of the laws, by being general, they should only contain the principles, rules, the criteria and objectives according to which the administrative authorities, such as, the Government or the administrative authority appointed by congress, defining other spects of the Public Contracts and with submission to all of which the administrative officers should proceed to fulfill all of the stages of the public contract process.