Abstract

CHARRIS BENEDETTI, Juan Pablo  and  LLAMAS FOLIACO, Alfonso Carlos. The Inherent Risk of the Supplier as a Preventative Criterion in Public Procurement. Rev. Derecho Estado [online]. 2016, n.37, pp.95-125. ISSN 0122-9893.  https://doi.org/10.18601/01229893.n37.03.

ABSTRACT The risk management of non-compliance attributable to the suppliers in Colombia's public procurement is limited to the guarantees' requirements, pressures associated with contractual measures, or the Public Administration's exceptional clauses. In this regard, the Colombian State lacks a methodology to monitor the performance of contractors and the risk they accumulate over time, as well as the risk that they are supervening due to technical, financial or market conditions; hence there is no record of parameterised data to classify contractors according to their performance, quality and tendency to breach the contract. Given the above, the State does not have prior measures of risk mitigation to counteract the harmful effects arising from a recognised 'bad provider' or a contractor with medium or high risk potential to breach the contract. By contrast, the guarantees and requirements demanded during the selection process apply equally to all applicants without any differentiation for those with a history of non-compliance, fines or penalties, among other risk specifications. This paper raises the need to assimilate the concept of inherent risk in the supplier as an objective and standardised criterion, from a preventative rather than corrective perspective, in such a way that the State can improve the effectiveness of their public contracts and reduce the negative outcomes resulting from failed contracting.

Keywords : Public procurement; risk of the supplier; risk mitigation; performance assessment; preventive measures.

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