Bidding in the Uruguayan Administration

January 11, 2023

 

Bidding in the Uruguayan Administration

CONCEPT - Administration Contract

According to Sayagues, the administration, through plurilateral acts, enters into plurilateral agreements, both between individuals and between public entities. Among them are contractual acts, where opposing ends are being pursued. 

However, according to Rotondo, the administration acts by non-unilateral means, resorting to negotiation and agreement, entering into contracts that regulate the conduct between the parties, both with persons under private law and public law or non-state public law. We are dealing with bi or plurilateral acts, administrative acts that produce legal effects, as established in article 120 of Decree 500/991. It is important the purposes towards which the document is directed, if it is coincident we are before agreements, if it is opposite it is a contract.

On the other hand, Zunino, following Dromi, argues that it is a declaration of common will that requires the concurrent will of the State and a private party (individual or legal entity), one party must necessarily be a State party (regardless of whether we are dealing with one of the three branches of government, a constitutionally created agency, decentralized entity or service, departmental government; in an administrative function). Administration contracts are bilateral legal acts, not bilateral administrative acts. Producing legal effects, since they determine reciprocal attributions and obligations.

EXISTENCE - DOCTRINAL PANORAMA.

According to Rotondo, the existence of contracts "of" or "with" the administration, as to their legal nature, is discussed.  

Main criteria:

1- THERE ARE NO CONTRACTUAL TIES. Some authors, such as D'Alessandri and Mendez, state that the administration always proceeds by unilateral acts that can be of public or private law. It has relevance in German doctrine. 

2- THERE ARE NO ADMINISTRATIVE CONTRACTS. It is a position sustained by Italian authors, such as Zanobini, Preumi, and Renales, who admit that the administration may enter into contracts governed by private law, but they are not public law contracts. According to Rotondo, public law only applies to the formation of the will of the intervening state entity. 

3- THE LEGAL RELATIONSHIP IS ALWAYS PUBLIC. Depending on whether it is unilateral or bilateral, there will be an administrative act or contract. Whenever one of the contracting parties is a public law party, the contract will be a public law contract.  

4- UNILATERAL ACTS AND ENTER INTO ADMINISTRATIVE ACTS. This is the most generalized criterion. The main administrative contracts include those for the construction of public works, supplies and concession of public services. According to Rotondo, administrative contracts or contracts entered into with the administration may be governed by both public law and private law. 

DISTINGUISHING CRITERIA.

The main criteria for distinction are:

FORMAL ASPECTS. This criterion proposes that there will be an administrative contract when the disputes they give rise to fall within the jurisdiction of the administrative courts.

OBJECT OR PURPOSE. When the purpose is of public service, public utility, or when the contract performs a public service.

EXPOSED ORIENTATION. This position states that the parties must expressly agree to be subject to the special regime of public law. 

CONTRACTUAL LINKS. Administrative contracts are characterized by the existence of exorbitant clauses, where there is legal subordination.

IMPOSSIBLE TO APPLY CRITERIA OF DISTINCTION.  They propose that analytical methods should be used, examining the contractual links from different aspects.

TYPES OF CONTRACTS

Contracts can be:

1- TYPICAL OF PRIVATE LAW. This category includes purchase and sale, donation, leasing, etc. They are of private law because of their object, however there can be a public phase.

2- PUBLIC LAW AND PRIVATE LAW. When supplies are contracted.

3- TYPICAL OF PUBLIC LAW. Here enter the concessions of public service or public domain. It is found under one of these criteria:

3.1- ADMINISTRATION AS A PARTY. This means that all contracts entered into with the administration become administrative law, when the administration is a party. 

3.2- LEGISLATIVE QUALIFICATION

3.3- PUBLIC SERVICE

3.4- PUBLIC UTILITY

3.5- PROCEDURE. The contract will be administrative if it arises by means of bidding and private if no special procedures are followed. 

3.6- INCIDENCE OF THIRD PARTIES. The incidence on the part of the administration, not being a party to the contract, is exclusive of public law. 

3.7- EXORBITANT CLAUSES. These are prerogatives admitted by clauses or principles of public law. Either by clauses or by principles or norms of public law that include the administration's power to unilaterally modify or terminate the contract, apply penalties on its own, in merit of a public interest.  

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