Enriquecimiento injusto ante las consecuencias de la contratación irregular

Abstract

It is a reality that, sometimes, the Administration receives supplies, works and services from companies on the basis of irregular contracts, in some cases even without a contract prior or reference. This is a recurring theme in which illegality cannot hide the benefit obtained by it and its obligatory  ompensation. To face the payment of these benefits, various means have been used, such as unjust enrichment, ex officio review, contractual liability and also non-contractual liability. All of these avenues have ended up being questioned by advisory and oversight bodies, branded as exceptional or fraudulent. What’s more, in recent years, responsibility has been shifted to the company, who is blamed for the existence of those illegal contracts. For this purpose, the figure of a non-existent contract is used, although forgetting the guarantee nature inherent to this legal category and without addressing the structural
problems that cause irregular administrative contracting. However, the problem continues to exist because the Administration has the duty to satisfy the collective needs of citizens, which, when these situations occur, raises the conflict between compliance with the law and attention to those needs. Without prejudice to the clarification of the responsibilities that both the Administration and the employer could incur, after analyzing all the avenues proposed, this study returns again to unjust enrichment, as the most appropriate formula to resolve the financial consequences of irregular contracting