some still fresh in their memory the collapse of the popular consultation of August 26, 2018, where less than 500,000 votes were needed to reach the threshold that would make it binding for the government. At the time, it seemed like anti-corruption reform was being postponed once again.
However, on December 30, 2019, President Iván Duque promulgated the Law 2014 of 2019 , through which the sanctions for Convicted of corruption and crimes against the public administration, the inability to contract with the State derived from acts of corruption is modified once again and the figure of the unilateral administrative assignment of the state contract is introduced. As read in the explanatory memorandum of this Law, the objective of the regulation is to be a tool to mitigate the ineffectiveness of previous legislative efforts in the fight against corruption .
The following are the most relevant modifications introduced by Law 2014 of 2019:
- Modification to literal j) numeral 1 ° Article 8 ° Law 80 of 1993. The factual assumptions and consequences are modified once again of the inability to contract with the State, generated by the commission of crimes against the Public Administration and the State assets. Thus, this article was modified to also cover business groups -when criminal conduct has been part of a group policy- and the branches of foreign companies to which the convicted persons belong. Similarly, the provision extends the effects of disability (i) to legal persons who have been ordered to suspend legal status, (ii) to those whose legal representatives (in fact and in law), administrators , members of the board of directors or their controlling partners have benefited from the application of a principle of opportunity and (iii) the parent companies, subordinates and / or branches of foreign companies that have availed themselves of this principle. These modifications seek to adjust the norm to the current context of globalization in which state contracts can be executed by companies with a transnational scope.
Finally, the law indicates that this inability will be permanently extended and will be applicable to private contracting processes in which public resources are committed.
- Modification to Article 9 ° Law 80 of 1993. Two paragraphs are added to this article that deals with the supervening disabilities in state contracting, Now allowing the contracting entities to unilaterally assign the contracts in the event of a supervening disability associated with the commission of one of the crimes indicated in literal j) outlined in the previous point.
- Modification to Article 38G of the Penal Code. The possibility of serving the custodial sentence in the place of residence or residence is eliminated when the convicted person has committed crimes against the patrimony of the State.
Although the Government has described the Law 2014 of 2019 as a successful step in the fight against corruption, the regulation in question raises more doubts than clarity. < / span>
In the first place, the legal operator who is advocated for the application of this provision must have knowledge in corporate and corporate law to precisely define the shareholding composition of the investigated subject and establish the existence of a business group, controlling company, parent, subordinate or branch of a foreign company and, more importantly, establish the subjective component of the existence of a group policy aimed at the commission of crimes. In addition, in today’s globalized world where M&A transactions are increasing at a dizzying rate, it can become a daunting task to define the ultimate beneficiary of a contractor, also calling into question the very concept of the veil. corporate and its importance to investors.
Additional doubts arise from the extension of the effects of the disability to private contracting, as well as the one that proceeds provisionally while the appeal to the conviction in criminal matters is being decided .
Second, the issue of unilateral transfer raises serious concerns related to whether or not the figure is a new extraordinary power of the State.c, on what will be the way to select the new contractor and the doubts about its application in the case of consortia and temporary unions. These are just some of the issues that the National Government will have to address in the regulatory decrees that, according to paragraph 2 of Article 6, must be ready for the next June 30, 2020.
Finally, the measure of preventing the execution of the sentence for crimes against the public administration and the assets of the State in the home or residence of the convicted person is a popular measure that is welcomed by the citizens. However, the complex current situation of the country’s penitentiary system could lead to thinking about the need to lessen this penalty based, for example, on the amount of criminal conduct.
In conclusion, as with so many regulations issued in this country, this law will be subject not only to the specific provisions issued by the government in terms of regulations, but also to the jurisprudence generated by judges in their decisions, in application of the provisions described above.
Likewise, the laudable effort to strengthen anti-corruption regulations would seem to fall once again into defects related to the legislative technique itself, address specific and non-structural aspects of the legal system, without understanding the uncertainty involved in issuing regulations from time to time, without that they have real effects in reducing white collar crime.
At Gómez-Pinzón we have an expert team in advising national and international companies in public tenders, selection processes and administrative law, also counting with the support of our different practice areas (corporate, tax, financial law, among others) in order to provide comprehensive advice to our clients. If you have any concerns regarding this matter, please do not hesitate to contact us.