Interventoría on public works: the legal framework

On private works, interventoría — independent technical supervision of the works — is the client’s decision: it is engaged because it is worth engaging. On public works it is not a decision, it is a regime, and a considerably harder one than it looks from outside.

The confusion at the outset, which produces badly structured contracts and badly distributed liability, is to believe that supervision and interventoría are two words for the same thing. They are not, and Colombian law defines each of them separately.

Two figures, not one

Interventoría is consultancy, and that changes everything

The procurement statute expressly classifies interventoría as a consultancy contract, alongside advisory work, construction or project management, direction, programming and the production of designs, drawings, concept designs and projects.

And consultancy contracts are selected through a concurso de méritos, one of the selection procedures the statute provides. From that comes the rule that most surprises anyone arriving from the private sector:

The underlying reason is the one that holds the whole figure up: if you buy oversight at the lowest price, you buy less oversight. The legislator recognised as much and took price out of the equation.

Liability: four fronts at once

Here is the real difference from private interventoría, and it is a difference of degree rather than of nuance. The anti-corruption statute established that interventores are liable in civil, fiscal, criminal and disciplinary terms, and not only for breaching their own interventoría contract: also for the acts or omissions attributable to them that cause loss to the public body, arising from the making and the performance of the contracts over which they exercised the interventoría.

Read that slowly, because the reach of it is unusual: the interventor is liable for what the works contractor did badly, if their own omission allowed it. This is not an observer with an opinion; it is a guarantor.

• —Civil: for the financial loss caused.
• —Fiscal: before the Contraloría, the national audit office, for the depletion of public funds.
• —Criminal: for offences against the public administration that may be committed.
• —Disciplinary: where public functions are exercised, under the regime that corresponds to them.

Independence, here, is a disqualification

On private works, an interventor who depends on the builder is a bad design of incentives. On public works, the regime of statutory disqualifications and conflicts of interest turns it into a prohibition: whoever carries out the works, and those close to them, cannot also be the one who checks them.

The logic is identical to that of the permits regime, where the independent reviewer of the structural designs cannot be the same professional who prepared them nor have an employment or contractual relationship with that person. That level of detail only gets written down after somebody has already tried the opposite.

Continuity: a problem the law had to solve

A classic problem on public works: the works contract is extended and the interventoría contract is not, and the job is left unwatched over exactly the stretch where watching matters most. The anti-corruption statute settled it by allowing the interventoría contract to be extended for the same period as the contract it monitors.

What is required of an interventoría, in practice

The particular duties are set by each contract, but the core is the same on any job, public or private:

• —Verifying that what is built matches what was designed, and that the materials are the ones specified.
• —Controlling quantities. What is invoiced has to be there on site.
• —Requiring and filing laboratory testing: concrete strength, compaction, quality of the reinforcement steel.
• —Checking the programme and recording delays as they happen, not when a claim is made.
• —Approving or rejecting interim payment certificates. This is the function that confers real power: an interventor with no authority over payments is an expensive spectator.
• —Leaving a written record. Site diary, minutes and a dated photographic record. On public works it is also what gets shown to the Contraloría.

What does not change because the works are public

Two duties from the general building regime apply just the same, and they tend to be forgotten because they are thought of as a matter for private housing:

• —Independent technical supervision of buildings whose plot allows more than 2,000 m² of built area, which is a different thing from the contractual interventoría and comes from the seismic-resistant building regime.
• —Independent review of the structural designs, by a professional other than the designer and independent of them in employment terms.

What it costs, and why that question is badly put

The Colombian technical reference for fees is still the 1989 decree — 4.0% of the actual cost of the works on housing, restoration and refurbishment; 2.5% in all other categories — which no longer binds: it lapsed when the rule that gave it its foundation was repealed, and the Consejo de Estado confirmed as much in 2020.

But on public works the question of price arrives at a different moment. Because interventoría is selected through a concurso de méritos and price may not be a selection criterion, the figure is not what decides who wins: it is what is reviewed and agreed with whoever came first on technical quality.

The idea that holds the whole regime up

It is the same idea as on private works, written with heavier consequences: nobody finds their own mistakes with the same enthusiasm they bring to finding somebody else’s, above all when correcting them costs money.

In a contract between private parties, that is solved with a good contract. Where the money is public, the legislator was not content with that: it separated the two figures, forbade price from deciding, laid down disqualifications, and made the interventor answerable on four fronts at once.