Limitations on direct Contracting According to the Law of Guarantees: Legal and Administrative Implications

Abstract

Background: In Colombia, Statutory Law 996 of 2005 regulates public procurement processes during election periods to prevent the misuse of state resources in political campaigns. Despite its intention to ensure fairness, its implementation has sparked controversy regarding administrative efficiency and genuine transparency in the execution of public expenditure. Objective: To analyse the impact of safeguard legislation on the effectiveness of direct procurement functions in Colombian municipalities, exploring its legal and administrative implications within the current democratic context. Methods: A qualitative methodology with a hermeneutic and descriptive approach was used. The study comprised a detailed review of current legislation, including the Constitution, laws, regulatory decrees, case law of the Constitutional Court and the Council of State, as well as doctrinal documents relevant to the state procurement system. Results: It was found that the legal restriction does not reduce contractual activity but rather leads to a massive increase in contracts in the months preceding the ban. Furthermore, the excessive use of direct contracting and inter-administrative agreements distorts the legislator’s intention, facilitating practices where personal interest takes precedence over competition and suitability.  It is evident that a lack of ethical principles allows electoral support to be commodified through the awarding of contracts to associates.  Conclusion: The legal provision has lost its original purpose following the abolition of presidential re-election in Colombia. It is imperative to promote a legislative debate to reform the law or seek regulatory alternatives that are in line with the country’s administrative reality, thereby helping to curb corruption without hindering efficient public administration.