In recent Judgment of June 17, 2024, the Third Section of the Administrative Litigation Chamber of the Council of State, with a report by Dr. José Roberto Sáchica Méndez, issued an important decision on the contractor's liability with regard to the obligation to provide a guarantee when the contract is subject to external conditions that affect the stability of the work.
The process focused on establishing the contractor's liability for the premature wear and tear of the works carried out on the Cubia – Barroblanco road, whose improvement and maintenance was awarded through public works contract No. 96 of 2011.
The aforementioned road was classified as tertiary according to the classification of the national road network and, consequently, required the use of tread plates for its pavement. Tertiary roads are, in terms of the National Institute of Roads – INVIAS, "those access roads that connect municipal capitals with their villages or connect villages with each other" (p.29) and for which the use of a license plate is required, since they have a low traffic volume consisting of small vehicles, with cars, motorcycles and SUVs being the main component of the vehicular flow.
In the present case, the Municipality initiated an administrative procedure three years after the end of the contract, in which it declared the occurrence of the accident due to unstable construction through resolution 184 of 2015, alleging that the damage to the road was caused by construction errors attributable to the contractor. This decision was confirmed by the Municipality through resolution 199 of 2015.
The nullity of both resolutions was demanded by the contractor through the means of control of contractual disputes which the Administrative Court of Cundinamarca heard in the first instance, the latter decided to partially access the claims of the lawsuit by determining that "(…) the real cause of the deterioration of the constructed road was the transit of heavy cargo vehicles, weighing more than 10 tons, which constituted an extraneous cause that exempted the builder from liability and constituted a false motivation for the administrative acts challenged." (p.7)
The Council of State, in its second instance, was in charge of studying whether the wear on the road was caused by an external circumstance not attributable to the contractor, such as the unauthorized transit of heavy-duty vehicles on a tertiary road, or whether, on the contrary, the damage to the road segment was caused by an improper construction method.
By studying the evidence in the file, the Court was able to confirm that the road wear occurred due to the constant transit of heavy vehicles on the road, which caused the fatigue of the structural capacity of the pavement which, as was pointed out, consisted of a pavement with a tread plate not suitable for this type of traffic. According to the design guide for pavements with a tread plate of the National Institute of Roads – INVIAS, the structural failure of this type of pavement occurs due to: “(…) the application of a load that produces stresses that exceed the ultimate strength of the reinforced concrete elements” (p.3)
The contractor and the supervisor had already informed the Municipality of the characteristics of vehicular traffic on the road, which corresponds largely to heavy transport traffic, requesting the entity to impose sanctions and restrictions on passage, as well as a new design of the work in order to keep it planned for light vehicle traffic. Requests that were never heard by the Municipality.
It is clear to the Council of State that the entity's reluctance to comply with the provisions provided by the contractor, and ratified by the supervisor, resulted in the structural failure of the road segment, the main cause of which was the transit of cargo vehicles. Thus, the Court in a second instance ruling confirmed the decision of the Administrative Court of Cundinamarca by establishing that the origin of the premature wear of the road constituted an external and irresistible condition for the contractor, typical of an external cause that exempts it from its obligation to guarantee the stability of the work. (p.17)
This decision implies an important warning to contracting entities, at least in two ways:
The first is that, in order to determine whether or not the stability failure of the work occurred, it is not enough for the entity to document the damages that the work has suffered and the value of its reconstruction. The fundamental element is to prove that the damages are attributable to the contractor; which necessarily entails an analysis of the contractor's failure to comply with contractual obligations and, in the case of works, a technical concept to support it.
Secondly, the stability guarantee granted by the contractor through an insurance policy cannot be automatically affected once the presence of defects in the work delivered to satisfaction is confirmed, but it is essential to have technical evidence that proves that these are the result of a breach of the contractor's obligations. This idea is nothing more than the concretization of the burden dealt with in article 1077 of the Commercial Code, which imposes on the insured - in this case the contracting state entity - the obligation to prove the occurrence of the incident and the amount of the loss.
References:
- Council of State. Administrative Litigation Chamber, judgment of June 17, 2024. File 25000-23-36-000-2016-02113-01 (68039). CP José Roberto Sáchica Méndez.
- Ministry of Transport. National Roads Institute. Technical Support Sub-directorate (2008). Geometric Design Manual for Highways. Located in https://www.invias.gov.co/index.php/archivo-y-documentos/proyectos-de-norma/11313-manual-de-diseno-geometrico-de-carreteras-2008
- Ministry of Transport. National Institute of Roads. Subdirectorate of Studies and Innovation (2016). Design Guide for Pavements with Slab-tread. Located in https://www.invias.gov.co/index.php/archivo-y-documentos/documentos-tecnicos/6644-guia-de-disenoo-de-pavimentos-con-placa-huella/file
