These days there is discussion at the national and local level about state contracts, mainly infrastructure ones. It has become normal and bad for contractors to fail to complete work on time and costs tend to increase, sometimes exponentially. The main problems are planning and forecasting and usually refer to inappropriate technical designs, construction processes and incorrect materials.
There are justified cases when it comes to finishing the works, in which regardless of the error of the Administration, and the disciplinary responsibilities that would exist, contractual modifications must be proceeded to complete and make the work functional. Our High Courts have accepted that, due to its reasonableness. In this dilemma there are undoubtedly some works in the municipal territory, whether carried out by the Mayor’s Office or the governor’s office. Cases such as those of La 38, which starts from the Comfacesar College to the northwest, paving contracted at the end of the Mello Castro government; Another neighbor, who arrives at the same school starting from the exit to Bosconia, the Ring Road (western ring road), or the Centro Cultural de la Música Vallenata, CCMV, the last two in charge of the Department, highlight the critical issue that is taking place. becomes a public debate that should not be avoided or hidden and that requires the greatest transparency and information from officials.
The Constitutional Court has stated (C300/12), in a presentation by Judge Jorge Pretelt that “(…) It is possible that the modification is necessary, even if it is a consequence of lack of foresight. In such an event, although the modification may be appropriate, as long as it is not attributable to the contractor and in accordance with the risk distribution rules, this does not exempt the officials from the corresponding disciplinary responsibility. In this regard, the Consultation Chamber in the cited concept indicated: In this regard, it is observed that article 16 does not at all qualify the circumstances that may give rise to paralysis or serious impairment of the contract so that it is immaterial whether they were known or , if they should have been, if the mechanisms for their regulation were foreseen and failed, etc. Currently, and given the constitutional theory that underlies the provision of public services by the State, the best and most efficient provision of them, even in case of error or fault of the administration, is sufficient reason for its modification, (…)”. This is what we were referring to about what we call ‘state of necessity’.
However, we cannot be naive when public trust has been affected: in many selection processes it is not clear and the main contractor and the auditor are accommodated; ‘favors’ must be paid to the contractor for his ‘initial generosity’; This also seeks the benevolence of the intervener who sees little or no rigor, when the addition – whether extending the term or covering, for example, new quantities of works or a capital change due to the change or cost of materials – becomes an addiction to balance accounts and find mutual satisfaction. The national political system in which tens of billions of pesos are spent, as in the recent gubernatorial campaign, whose financiers would require a recovery of the investment, generates obvious suspicions.
The entry On addictions and additions was first published in El Pilón | News from Valledupar, El Vallenato and the Colombian Caribbean.