The principle of effectiveness is implicitly present in Article 2 of the Political Charter, but it is not concretely defined, leading to doctrinal errors in Administrative Law and generating confusion with other principles of law that have similarities in their application, such as the principle of efficiency. Thus, the principle of effectiveness will be defined as that which relates to the fulfillment of the determinations of the administration, the fulfillment of the general interests of the state: the effective achievement of the state's purposes. Finally, the principle of efficiency is defined with the intention of dispelling any confusion with the principle of effectiveness: the principle of efficiency is related to the choice of the most appropriate means to achieve the objectives.
Furthermore, we have enshrined in Article 3 of Law 1437 of 2011 (the Code of Administrative Procedure and Administrative Litigation – CPACA), reiterating Article 3 of the former Administrative Litigation Code, the principles of public administration, which reads:
Article 3. Principles. All authorities shall interpret and apply the provisions regulating administrative actions and procedures in light of the principles enshrined in the Political Constitution, in the First Part of this Code, and in special laws.
Administrative actions shall be developed, especially, in accordance with the principles of due process, equality, impartiality, good faith, morality, participation, responsibility, transparency, publicity, coordination, effectiveness, economy, and celerity.
11. By virtue of the principle of effectiveness, authorities shall seek that procedures achieve their purpose and, to that end, shall remove purely formal obstacles on their own initiative, avoid inhibitory decisions, delays, or postponements, and remedy, in accordance with this Code, procedural irregularities that arise, in pursuit of the effectiveness of the substantive right that is the subject of the administrative action.
Now, in matters of state contracting, three guiding principles are evident that govern the selection and award of state contracts: Transparency, Economy, and Responsibility. The first refers to the need for public dissemination of information concerning public procurement; that is, for contracting matters, the contractor selection process must be carried out publicly and in accordance with the law. The second emphasizes that the conditions of the contractual process must be strictly necessary for the objective selection of the most favorable and suitable proposal for the state. And finally, the third indicates that public servants are obliged to seek the fulfillment of the purposes of contracting and to comply with independent administrative functions.
Based on the foregoing, and taking as a point of reference the three guiding principles of state contracting, it is evident that the application of the principle of effectiveness, enshrined as a general principle of administrative law, is not the starting point. This is due to the lack of literalness on the part of the legislator when establishing the guiding bases for all contracting carried out by the state.
However, it is not possible for the Public Administration, when selecting, awarding, and executing any state contract, to ignore the general principles of administrative law: the Principle of Effectiveness; since, although it is not textually evident as a guiding verb in state contracting, it must be taken into account for the achievement of any legal transaction involving the state. This latter point acquires importance and a special connotation with the Constitution, which enshrines the special prevalence of the fundamental rights of citizens, in addition to establishing duties, mechanisms, and actions for the real realization of the fundamental rights set forth in the Political Charter. In this way, the State must guarantee the effectiveness of the principles, rights, and duties enshrined in the Constitution.
Indirect Application of the Principle of Effectiveness.
When carrying out state contracting, indirectly, the administration applies the principle of effectiveness, since we recall that the purpose of this principle is the fulfillment of the determinations of the administration. This can be seen, for example, when compliance with the principle of economy is manifested when respecting the purposes of contracting, established in Article 3 of the Contractual Statute Law 80 of 1993: this numeral describes that it must be taken into account that both the rules and the contracting procedures are at the service of the fulfillment of public purposes, the realization of public services, and the protection of contractors (Benavides, 2014.).
In matters of contractual jurisdiction, the application of the principle of effectiveness is also evident, since, when determining the contractual jurisdiction to resolve any future dispute regarding the contract, it allows for the adoption of expeditious and technical measures; furthermore, the effectiveness of responsibility is derived, by clearly establishing the director in charge of the various managements arising from the state contract (Benavides, 2014).
Now, following this line, we see how in the planning or planning of contractual activity, compliance with the principle of effectiveness is reflected, since, by respecting the planning of state contracting, compliance with the purposes of the State is evidenced: assessing the advisability of entering into the contract and respecting budgetary rules on availability and registration of expenditure; these as parameters of State Planning.
When the Statute expresses provisions aimed at the rapid and effective resolution of conflicts generated by the state contract, the principle of effectiveness is appreciated, in the sense that it directs in advance the manner in which said controversy will be resolved, whether in contentious jurisdiction or through alternative dispute resolution mechanisms, anticipating compliance with the purposes of the state, in addition to safeguarding the right to due process and the right to defense.
To conclude this chapter, we see the indirect application of the principle of effectiveness in the exercise of the principle of transparency, where it seeks to facilitate correct management, from the point of view of the general interest as well as the protection of the interests of the private parties involved in state contracting. From this, the application of the principle of effectiveness is derived, in the sense that if the rights of the private parties involved in state contracting are correctly exercised, one of the purposes of public contracting (the purpose of the state) is fulfilled. (Benavides, 2014)
Balancing of Principles: The Principle of Effectiveness in the Application of Other Constitutional Principles.
The balancing of principles is the preferential selection made by the judge of one principle over another when they are in collision; that is, when there are two principles and it is not known which one to apply to the specific case, the judge must choose one of them for its application.
Based on this premise, the following legal problem arises: Is there a balancing of principles when applying the principle of effectiveness with respect to other principles?
To answer this, one must start by taking into account two key points: (i) the jurisprudence on conflicts of constitutional principles, and (ii) the definition of the Principle of Effectiveness.
Jurisprudence:
The Court, in ruling T-425 of 1995, directly resolved the conflict when two constitutional principles come into collision, moving to the background the application of the balancing of principles, to move to the application of the Principle of Harmonization: In accordance with this principle, the interpreter must resolve collisions between legal interests in such a way that the effectiveness of each of them is maximized. That is why the principle of concrete harmonization prevents seeking the effectiveness of one right through the sacrifice or restriction of another.
Definition of the Principle of Effectiveness:
As already mentioned, the principle of effectiveness refers to that which relates to the fulfillment of the determinations of the administration, the fulfillment of the general interests of the state: the effective achievement of the state's purposes.
Having clarified the two points developed above, the answer to the legal problem expressed is tacitly concluded: There is no balancing of principles when applying the principle of effectiveness with respect to other constitutional principles, since no conflict is evident at the time of its application. Simply, the respective judge will not have to analyze or determine which principle to apply (Effectiveness vs. another constitutional principle) sacrificing some other principle, because the very definition of the principle of effectiveness leads to understanding that if the principle with which it is in an alleged conflict is effectively applied, the principle of effectiveness is indirectly applied, since it only seeks the fulfillment of the purposes of the state, in the specific case, the purposes of public contracting. Furthermore, the principle of harmonization developed by the Court is outlined, where the judge should not or cannot perform a balancing of principles, but rather should seek to apply and resolve collisions between legal interests in such a way that the effectiveness of each of them is maximized.