VIABILIDAD JURÍDICA DE LA TIPIFICACIÓN DE LA COLUSIÓN EN LA CONTRATACIÓN PÚBLICA ECUATORIANA

Abstract

Collusion in public procurement is a practice that undermines free competition, transparency, the proper functioning of public administration, and the efficient use of public resources by enabling participants to coordinate their actions to manipulate procurement procedures. This paper analyzes the legal feasibility of criminalizing collusion in Ecuadorian public procurement as an autonomous offense under the Comprehensive Organic Criminal Code (COIP). Although the current legal framework provides for administrative sanctions and related criminal offenses, such as embezzlement, bribery, extortion by public officials, influence peddling, organized crime, and money laundering, none specifically criminalizes collusive agreements in public procurement. Using a qualitative approach and dogmatic, analytical, and comparative methods, this study examines the Ecuadorian legal framework and the legislative experiences of Peru and Colombia. Finally, it proposes a legal reform to incorporate this offense into the COIP, defining the criminally relevant conduct while observing the principles of legality, legal certainty, proportionality, and minimum criminal intervention.