Since he was campaigning, President Gustavo Petro has put on the table on several occasions a form of public contracting that, according to him, is necessary to boost the economy and the development of the country from the grassroots, betting on the execution of small works and projects with non-profit entities and Community Action Boards, focused on solving community needs.
This is why, based on two regulations (Decree 1082 of 2015 and Law 1551 of 2012), since the beginning of his Government, he has been promoting direct contracting with this type of organizations, mainly Community Action Boards, in amounts of minimal value, that is, less than 40 monthly minimum wages, mainly for works such as construction of tertiary roads and patching work.
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Although the head of state believed these accounts were correct and met the legal requirements, two decisions by the high courts halted these plans. On the one hand, the Council of State provisionally suspended the order to territorial entities at the national, departmental, district and municipal levels to enter into what the government called “solidarity agreements” only with community action organizations.
Likewise, the Constitutional Court has been evaluating a claim of unconstitutionality since June. against the possibility of contracting for a minimum amount with this type of organizations. This is why President Petro took new steps to not fail in the pursuit of this objective, despite the warnings that have been issued in this regard.
Works.
THE TIME file
New decree
On July 8, the Presidency of the Republic issued Decree 0874 of 2024, creating another avenue to attempt to once again hire directly with the Community Action Boards and, now, with organizations of the popular economy, through a figure that once again focuses on those contracts below 40 monthly minimum wages.
Thus, with this regulation “Title 16 of Part 2 of Book 2 of the Decree is added 1082 of 2015, in order to regulate article 100 of Law 2294 of 2023, on Public-Popular Associations”. This last is precisely the new figure that reopens the debate on the changes in the forms of contracting that the Government seeks.
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According to the signed decree, contracts made through Public-Popular Partnerships (APPo) will be subject to the General Statute of Public Administration Contracting and the principles of the public service and the applicable budgetary regulations, which is why the established limits must be respected.
Gustavo Petro
EFE
Likewise, it makes clear that they may only be held when their purpose is limited to the purposes indicated “expressly” in the National Development Plan, which are: execution of works, acquisition of goods and services related to social infrastructure, rural living, tertiary roads and local roads, culture, local productive infrastructure or energy efficiency projects.
These contracts must also be for food production, supply of goods and services, community water management, basic sanitation, care economy, environmental and community strengthening, and the acquisition of products of agricultural origin or destination, among others.
“Popular economy is understood as the mercantile trades and occupations related to with the production, distribution and marketing of goods and services, and non-commercial ones, that refer to domestic or community activities, developed by small-scale economic units, whether personal, family, micro-businesses or micro-enterprises, in any economic sector,” says the presidential decree.
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Point of contention
The part that draws attention in this rule is the part that says that “The actors of the Popular Economy can carry out their activities individually, in economic units, or organized in an associative manner”, This means that we are once again repeating the errors that the same courts have warned about in relation to direct contracting, since, in another section, it is stated that the justification of the contracts is at the discretion of the entity that enters into them.
“To celebrate an APPo, the State Entity must establish within the Process Documents the convenience of using the APPo based on the identified needs of the State Entity, indicating the estimated impact on the popular economy with the signing of the contract, the use of the typology and the consistency between the object of the contract and the scope of this title,” the decree adds.
Another point mentioned in this decree are the requirements for people and organizations to be able to present themselves as part of the popular economy, lwhich are initiated by proper registration with Secop and compliance with the guidelines of the National Development Plan.
“The State Entity must guarantee the publicity of the procedures, documents and acts associated with the Contracting Processes carried out by the contractual typology regulated in this Title. The publicity referred to in this article will be made on the website of the corresponding State Entity and in the Secop”, it warns.
Colombian pesos
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Finally, as a protection mechanism for small producers, the law states that in emergency and disaster situations, agricultural products may be purchased directly from small agricultural and peasant producers who have been affected and donated to the National Disaster Risk Management Fund.
Thus, it will be up to the high courts to make this process viable and to determine whether or not this type of contracting that the National Government wants to carry out can be carried out. or if, as has happened in other times, they collapse due to risks to state finances.
PORTFOLIO
