Cláusula penal y perjuicios materiales en los procesos administrativos sancionatorios contractuales en el municipio de Medellín

Abstract

In the process of the administrative contractual sanctioning process regulated in article 86 of Law 1474 of 2011, evidence of the presumed mandatory breach, one of the sanctions that may be requested by the supervision or control of the contract is to make the penal clause effective; However, the failure to indicate the damage, which may be material or moral, suffered by the state entity with the breach of contract, makes it impossible for the competent official to accept the request in the supervision or audit report, since precisely the identification of the Damage or loss is one of the assumptions that the jurisprudential line indicates, as a guarantee of defense and contradiction of the contractor and the insurer mentioned in the process. It was established as objectives, to identify material damages that may be generated by the breach of contractual obligations in contracts entered into by the Municipality of Medellín and to record parameters that serve to support the supervision or audit of the entity, in the task of determining the damages. A survey was directed to 957 supervisors of the Municipality of Medellín, 347 answered, of which 41 have experience in sanctioning processes; The material damages were identified and the parameters that allow their identification were recorded, for the consolidation of this explanatory article, through a descriptive exploratory methodology, with a qualitative, documentary approach; starting from the scope of the sanctioning power of the State, through the administrative sanctioning contractual procedure; supervision report or auditing of the presumed breach of contract; Criminal clause and jurisprudential antecedents and damage in relation to the principle of proportionality. It concludes with a model of material damages that consults parameters such as the type of contract, whether it is work or consulting, the consequential damage as a type of material damage and the events that constitute damage.