Direct contracting is the exception within Colombia's public procurement system, not the rule. The General Procurement Statute — Law 80 of 1993 and Law 1150 of 2007 — starts from competitive selection as the ordinary mechanism and allows it to be set aside only in the cases the law itself lists. Two recent decisions of the Constitutional Court were reminders, by different routes, of how far that margin goes: one limited the use of direct contracting with no ceiling on value, and the other closed off an escape route from the disqualification for corruption.
In Judgment C-398 of 2024, issued on 19 September with Justice Cristina Pardo Schlesinger as rapporteur, the Court examined several provisions of Decree Law 1961 of 2023, which created the National Institute of Regional Roads (INVIR). The rule authorised the new entity to enter into contracts by direct contracting, with no ceiling on value, with social organisations. The full bench struck those provisions down.
The reasoning matters for the system as a whole. The government had issued the decree using the extraordinary powers granted by article 368 of Law 2294 of 2023 — the National Development Plan — which empowered it solely to define the entity's legal regime. The Court concluded that creating an exception to the General Procurement Statute goes beyond that authorisation: defining an entity's regime is not the same as authorising it to depart from the selection rules that bind everyone. Put another way, a special regime cannot become a shortcut around competition.
The second ruling, Judgment C-437 of 2023, issued on 25 October with Justice Paola Andrea Meneses Mosquera as rapporteur, dealt with the regime of disqualifications. The Court reviewed article 2 of Law 2014 of 2019, which had amended subparagraph (j) of article 8.1 of Law 80 of 1993 to disqualify anyone convicted of offences against the public administration. The problem was that the rule exempted publicly traded corporations from that disqualification.
The Court struck the exception down: exempting publicly traded corporations amounted to a privilege with no constitutional justification, one that broke the equality of access to state contracting. It also read down the term “companies” so that the disqualification reaches legal persons with capacity to contract with the state. The practical effect is that an escape route disappears: corporate structure no longer works as a shield against the disqualification for corruption.
What changes for those who use SECOP II? For entities, the message is that legal form — a decree law, a special regime, a statutory exception — is not on its own enough to legitimise direct contracting: if the general rule calls for competition, competition has to be offered. For suppliers, both rulings reinforce a more level playing field: fewer closed awards sheltered by special regimes, and fewer competitors dodging the corruption disqualification behind a corporate form. For oversight groups and journalists, the decisions offer a concrete test for raising an alert.
That test translates into observable signals. When an entity invokes a special regime to award high-value contracts directly, or when it concentrates its procurement in the direct method above its own track record and above the sector average, there is something worth reviewing. LuxIA builds statistical indicators on those patterns in SECOP II — heavy use of direct contracting, few bidders, awards that hug the selection thresholds — so that oversight arrives in time. Case law sets the limit; the data helps to see when it is being crossed.
Both decisions can be consulted directly through the Constitutional Court's records office and the Función Pública regulatory portal. This analysis is informative and does not constitute legal advice.