Administrative Contract Imbalance: Powers and Prerogatives of Public Persons in Contract Law
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Themes
Administrative contract, public person, general interest, contract award, Council of State, public procurement, contractual freedom, power of control, public domain, inalienability, imprescriptibility, continuity of public action, protection of public funds, CJA article 551, preliminary contract reference, single judge, irregularities correction, public policies, contractual imbalance, factual inequalities, public procurement code, equality of treatment, freedom of access, transparency, administrative judge, appeal for abuse of power, public service mutability, Tarn and Garonne appeal, public contracts law, contractual prerogatives, unilateral powers, public authority, contractual constraints, co-contractor rights, public law, administrative law, contract law, public contracts regulation, European public contracts
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Abstract
Unlock the complexities of administrative contracts and understand the predominant role of public persons in contractual agreements. Discover how the implementation of preliminary contract references and the exercise of unilateral powers protect the general interest. Learn about the inherent peculiarities of public persons as co-contractors and the imbalance between parties in administrative contracts. Explore the regulations and principles governing public procurement, including equality of treatment, freedom of access, and transparency. Dive into the nuances of administrative contracts and gain insights into the powers and constraints that shape these agreements. Understand the importance of protecting public funds and the continuity of public action. Read the full document to grasp the intricacies of administrative contracts and their implications.
Extract
[...] The place of the administration as a co-contracting party remains central, but it is subject to temperaments. It is then necessary to question in what measures the predominant role of the public person in administrative contracts is redefined following temperaments in favor of its co-contractor? If it appears that the imbalance in the administrative contract results from factual inequalities between the parties to the contract this imbalance tends to be attenuated as it has undergone significant temperaments over the past few years (II). [...]
[...] A stricter framework of contractual relationships - The public person's framework is becoming increasingly strict, for example. - First, the unilateral powers of the public person are more regulated to date, which limits their abusive use and confers certain rights on the co-contractor. The power of control and its implementation are regulated by the Public Procurement Code, so the public person's action is conditional on respect for these modalities. They are only relatively binding, but their breach allows the co-contractor to contest the administration's action before the administrative judge. [...]
[...] If the contentious does not intervene in the contract it protects those who could/should have been co-contractant. The appeal can lead to the annulment of the contract. - The interest to act of the co-contractant has even been extended, following the jurisprudence of the Council of State of 2008, Smirgeommes, the administrative judge extended the conditions of the interest to act in 2010 (Council of State Clean Building). A claimant can now claim that their offer was not retained as soon as the procedure is irregular. [...]
[...] - Finally, the status of the co-contractor can sometimes be limited by the public person, we can qualify it as a precarious status. This is the case with public domain occupancy agreements. Public domain is firmly protected (unavailability at a low price, inalienability of the public domain, no real rights, imprescriptibility), all these principles then place the co-contractor in a delicate situation because not only does he have few rights but he is also subject to many constraints with regard to the nature of the public domain and the protection attached to it. [...]
[...] - The Council of State has admitted that the parties could stipulate a clause by which the co-contractor of the administration could terminate the contract in the event that the administration did not perform its obligations. This is an adjustment of the exception of non-performance that should not lead to the termination of the contract, but only its cessation (Council of State Gruenke Location). - These different evolutions have led to a restoration of a more balanced contractual freedom within the contract and favor the consensualism. - Finally, the DUE has been able to provide some additional protections. [...]
