Principles
PRINCIPLES
They are not subject to being expressed by positive norms, however, some of them are listed by art 33, art 37 and art 45 of TOCAF, as well as art 149 TOCAF refers to art 33 to 79 of the Accounting and Financial Administration Law. 149 - Constitutional value and force.
Flexibility.
It establishes that the relationship between the administration and the co-contractor is a fluid and dynamic relationship. It is a conception opposed to rigidity and uniformity, it is the expression of admitting the impossibility of providing for all situations. It responds to a current tendency to admit more informalism or moderate formalism.
Publicity
It is manifested in two senses, as the possibility that the greatest number of interested parties become aware of the will of the administration to contract; and on the other hand, during the procedure, publicity implies that the administrative actions are carried out in a public manner. In this sense, the Inter-American Convention against Corruption ratified by law 17.008 of 1998, art 5, art 7, establishes publicity as a principle against corruption, equity and efficiency of the contracting systems.
Equality of bidders
Article 8 of the National Constitution applies, which has exceptions in all branches of law, including in the field of government procurement. In principle, all bidders are in the same situation during the entire selection procedure. During execution, in order to preserve the rights of the bidders in the event of any changes, they may be allowed to argue that if they had known about them at the time, they would have changed the content and scope of the bid. The egalitarian content of the bidding documents in bidding procedures demonstrates the application of this principle,
Concurrence
This principle postulates the participation of as many bidders as possible in the bidding process. Concurrence is not in favor of the bidders but for the benefit of the State. This principle is not absolute, as it admits limitations based on the public interest.
Reasonableness
Reasonableness implies an adequate weighing of the interests contained in the sector of the legal system, the administrative activity must be apt or suitable in pursuit of an end, it is a question of legitimacy and not of merit. This principle imposes that public intervention in the activity of citizens is suitable, indispensable, and proportionate.
Delegation
It is a scope opposed to bureaucratic centralism. This principle seeks the use of the different modalities of the administrative organization either by privative and non-privative deconcentration, a delegation of powers, and distribution of tasks, also known as assignment or allocation of tasks or functions.
Absence of ritualism
The aim is to eliminate the exaggerated predominance of formalities and regulatory procedures, so much so that the form is a means and not an end in itself, so unnecessary formalities or steps that complicate or hinder the development of the action must be eliminated. It is linked to the principle of flexibility.
Materiality
This principle emphasizes the relative importance of things as opposed to form or formalism. It neutralizes formalism and avoids formalistic attitudes, trying to correct irregularities of detail.
Truthfulness
In the absence of evidence to the contrary, the legislator has sought to emphasize the truthfulness of general actions; its scope implies the rejection of the principle of distrust.
Transparency
It refers to the transparency of public actions, allowing to see clearly the actions of the Administration and the use of public funds in the work of its officials. The fight against corruption and transparency converge in highlighting what is visible and accessible.
Good Faith.
It is one of the ways of the irruption of the social ethical content in the legal order, the value of trust in the conduct of public agents, and of the administered. The application of the principle of good faith entails the trust of the administration in the fact that the administered that relates with it will adopt a loyal behavior in the exercise of its rights and in the fulfillment of its obligations. It is included in article 1291 of the Civil Code and is a supra-constitutional principle.
