Nº 21 June 2022

ISSN: 2173-8254

The public tender. Application of the principle of proportionality to the objective selection of the contractor.

Country: Colombia

For a long time, public bidding has been subject to poor administrative practices related to the direction of selection processes through designs tailored to the bidders, which has led to a very low or, on occasion, no participation in the calls, thereby causing a patrimonial detriment to the State due to the systematic violation of the legitimate and proportional restrictions of the general interest. The exhaustive field work carried out by Dr. Matallana between 2012 and 2015 allows us to appreciate that in most of the cases studied there was a flagrant and open violation of the rules that govern state contracts, including the right to free economic competition, the right to equality, the right to participation and the principle of objective selection.

  

Based on the definition of public bidding and the legal categories that govern it, the author analyzes the legal nature of the specifications, the administrative powers that must be respected, the effect of the general interest in their preparation, the equality test and how public calls allow the selection of bidders and the awarding of contracts. In addition, it reviews some of the sentences of the Constitutional Court and the Council of State and the pronouncements of the doctrine regarding affirmative actions to protect the right to equality and free economic competition; however, the conclusions he reaches are not as surprising as might be expected.