Understanding Administrative Contracts: A Comprehensive Overview
Administrative Contracts: A Comprehensive Overview
1. Definition and Requirements
Administrative contracts directly target the execution of works, public service management, implementation of supplies, granting of public works, consulting, support services, and other activities within public administration to meet public goals. These contracts require:
- Subject: Involvement of a public entity (state, autonomous communities, local authorities, public bodies, etc.).
- Object: Focus on the organization or operation of a public service deemed necessary for the public interest by a public authority.
- Special Legal Regime: Characterized by “exorbitant clauses” that grant the Administration powers beyond private law and impose obligations on individuals.
- Formalization: Typically documented through an administrative act.
- Jurisdiction: Subject to administrative jurisdiction for dispute resolution.
2. Types of Administrative Contracts
- Administered Contracts (Typical): Works, Public Service Management, Procurement, Consulting, and Works Awards.
- Mixed Contracts: Combine elements of various contract types and are often significant economically.
- Special Contracts: Designated by law due to their connection to specific activities or the contracting authority’s trade, involving a private contractor to fulfill a public purpose (e.g., real estate, loan, deposit, transport, leasing contracts).
3. Elements of Administrative Contracts
- Subjective Element: Involves the Administration and the contractor. The Administration must have the capacity and competence to contract. The contractor (individual or legal entity) must have legal capacity, economic and technical capabilities, and not be disqualified.
- Objective Element: The contract’s object must be clearly defined and priced.
- Causal Element: Rooted in the public interest and must address a real, legal, and genuine public need.
- Formal Element: Formalized in an administrative document within 30 days of the award notification.
4. Requirements for Contract Conclusion
- Competence of the contracting authority
- Capacity of the contractor
- Clear contract definition
- Price determination
- Sufficient credit
- Proper records
- Prior administrative control of economic aspects
- Expenditure approval by the competent body
- Formal contract conclusion
5. Contract Awarding
Public procurement can occur through open, restricted, or negotiated procedures (negotiated procedures are used in exceptional cases):
- Open Procedure: Any contractor can submit a proposal.
- Restricted Procedure: Only pre-selected contractors can submit proposals.
- Negotiated Procedure: The Administration selects the contractor after consultation and negotiation.
In open and restricted procedures, the award is made by auction or competition:
- Auction: Focuses on the lowest price offered.
- Competition: Considers the most advantageous proposal based on pre-defined criteria.
6. Contract Implementation and Modification
The contractor must complete the contract within the agreed timeframe. Upon completion and fulfillment of administrative procedures, the contractor is entitled to payment. Contracts can be modified under specific circumstances following established legal procedures.