Wednesday, January 11, 2023

Administrative Law Uruguay 2023

Essential Elements of Contracts

 Essential Elements of Contracts


SUBJECTS. 

According to Sayagues, one of the parties is always a state organ acting in an administrative function, and the other party may be a private person, natural or juridical, or a non-state public person. Art 33 of TOCAF Art 46 of TOCAF


It should be noted that the private party may not be an employee of the contracting administration, may not have been declared bankrupt, be in liquidation or be in insolvency proceedings, may not have defaulted on previous contracts, and may not have been habitually engaged in the trade or industry to which the contract corresponds. Law 15903, art 487, Art 46 of TOCAF.


The authorizing officers are established by art 26 of TOCAF, and the primary authorizing officers are specified in art 27 of TOCAF, and the secondary authorizing officers in art 29 of TOCAF.  In both cases they may delegate authority, art 30 TOCAF.


The official may not commit the administration, not being the authorizing officer of the expenditure, it will be considered a serious misconduct. Art 32 of TOCAF.


WILL - AGREEMENT 

Both wills must be valid. The rules relating to error, violence and dolus are the same as those governing the contractual ties of the administration. The general rule is that the administration cannot manifest its will tacitly, with some exceptions.


CONTENT - OBJECT

The natural part is identified (intrinsic part, it must necessarily exist, necessary so that it is not erroneously labeled as it happens with the so-called service lease contracts when they are public service concession, it impacts on what type of general specifications I will use), the implicit part (it integrates the contract although nothing has been established) and the eventual part (it may or may not be included according to the resolution in each case).


ARBITRATION CLAUSE. In principle they are admitted, however, in accordance with art. 550 of the Civil Procedure Code, all cases requiring the intervention of the Public Prosecutor's Office are excluded from arbitration. 


CAUSE 

Essential element of the contractual ties entered into by the administration.  In administrative acts, instead of cause, we speak of motive. 


PURPOSE

When the administration pursues a hidden improper purpose, the contract becomes invalid. Likewise, when the deviation of power is computed as a vice of the acts, it extends to administrative contracting. 


FORM

Like administrative acts, contracts are formal, so that formalities are of special relevance. Contracts are formal, so their compliance conditions their validity. In Uruguay, although there are no special general forms, contracts must be executed in writing without the need for a public deed, except for solemnity requirements. It should be noted that the formalities are the requirements to be observed in the execution of the contract, which may be prior or subsequent; the form refers to the way in which the contractual link is documented. 

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PROCEDURE.

The procedure for the formation of the administration will is of an internal nature, consisting of one or more administrative acts, and material operations. 



ELEMENTS 


SUBJETIVE

Following Rotondo, there are two subjects, one of them is the public administration, with the performance of the legal rule and the corresponding organ, acting in administrative function. The organ must act within its competence. The individual must have civil capacity and not have impediments established in art 43 of TOCAF. It must also be registered in the general registry of State suppliers, Art 65 of TOCAF. When applicable to public works contracts, the individual must be registered in the national registry of public works companies of the Ministry of Transportation and Public Works, established in Article 66 of TOCAF. 

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AGREEMENT

It is mutual consent. 


OBJECTIVE

It is the content, the work, service or provision for the purpose of public utility. It must be a certain content, physically and legally possible and determined or determinable. Both parties cooperate, there is no longer a clash of interests by acceptance of the doctrine. 

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MOTIVE or CAUSE.

It has an objective character, it is the factual situation


FORMALITIES

It is the way of externalization of the contractual bond. Among them is the selection of the co-contractor.

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PURPOSE

Refers to the purpose pursued by the administration. If the purpose is vitiated, we are facing a deviation of power. Sayagues exemplifies the case of the concession of a public service granted to achieve ruinous competition of a previous concessionaire and then allow the expropriation of its facilities under more favorable conditions. 

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Administrative Law Uruguay 2023

Bidding in the Uruguayan Administration

 

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.