Acciones jurisdiccionales en contratación pública y el derecho a la tutela judicial efectiva

Abstract

The present work deals with the unilateral termination of contracts, legal figure foreseen in public procurement applicable to cases of breach of contractual obligations of the contractor, considering for the effect the provisions established in the law of the subject "Organic Law of the System National Public Procurement”. From this perspective, according to these provisions, decisions on unilateral termination of contracts, issued by the contracting entity, are not susceptible to constitutional action, since it determines the existence of adequate and effective means of defense whose purpose is the protection of the rights derived Of these contractual relationships of an administrative nature. Mechanisms that in practice are ineffective in limiting to the contractor the use, enjoyment and exercise of their constitutional rights and guarantees, established both in the Constitution of the Republic and in the Organic Law of Constitutional Guarantees and Constitutional Control, these mechanisms being constituted as The most appropriate to challenge the violation or violation of rights requiring their repair. Another circumstance that calls attention in public procurement is the inclusion of so-called exorbitant clauses, which grant particular powers to the contracting entity in breach of principle of equality and proportionality as regards penalties applicable in cases of breach of contract, There is the argument that Ecuador can not even speak of adequate, convenient and timely defense mechanisms to protect the rights of individuals and in the particular case of contractors.