The Discretionary Power of the Administration in Concluding Administrative Contracts in Public Tenders

Abstract

Administrative contracts are legal instruments that the administration relies on to perform its duties and achieve the public interest. Administrative contracts differ from civil contracts in their objectives, aspects, and specific conditions, as they are geared towards the public interest and the efficient and swift provision of public services.

Administrative contracts possess distinct characteristics, such as the inclusion of unique public law provisions that grant the administration specific powers, and they are directly linked to achieving public interest objectives. Consequently, this type of contract is a vital tool for regulating the relationship between the administration and the private sector to meet societal needs.

The limits of administrative discretionary power in disqualifying, excluding, rejecting, or canceling a contract award through public tender are meant to clarify the role of administrative discretion in decisions made within the public bidding framework. This includes instances where the administration may accept or reject submitted proposals, or decide to exclude or disqualify an applicant from competing in the tender. Such decisions require adherence to legal principles like transparency and equality among competitors. Rejections must be based on specific and legitimate criteria to ensure fairness in the competitive process.

The concept of discretionary authority is a pivotal focus in the field of public law. It refers to the power granted to the administration to make decisions freely within the legal framework to achieve the public interest. This authority provides the administration with the flexibility to choose appropriate means and procedures to achieve its designated objectives, particularly in situations where the legislator has not provided definitive solutions.