The Legal Regime of Public Procurement Contracts

• Author: Vasilica Negrut
• Position: Professor, PhD, Dean of Faculty of Law, 'Danubius' University of Galati
• Pages: 32-37

European Integration - Realities and Perspectives 2014

32

The Legal Regime of Public

Procurement Contracts

Vasilica Negru

1

Abstract: Within this paper we resume a topic widely debated in the specialized literature and always topical,

by the implications that it has on the development of public administration and satisfying the general

interests. The changes brought to the special legislation led, by identifying certain features, in determining the

legal nature of the procurement contract, i.e. the administrative contract. In Romania, this notion is not fully

established, although it is recognized by most of doctrinaires. In this paper we intend to identify by analyzing

the legislation, the doctrine and jurisprudence, the elements that lead to the integration of public procurement

contract in the category of administrative contract.

Keywords: administrative contract; public procurement contract; legal regime

1. Introduction. General Issues Related to Administrative Contracts

Based on the means by which the public interest is achieved, it is clear that over time, under the

influence of changes in society‟s evolution (urbanization, industrialization and so on), the role of

public administration has changed, reaching today at the level of a service provider, which it required

the completion of legal management documents, which in most cases takes the form of contracts

(Sraru, 2009, p. 18 and the next).

The theory of administrative contracts is nowadays more current than ever, being closely linked to the

public domain, public property and public service. (Apostol Tofan, 2004, p. 81; Iorgovan, 2005, p.

103)

According to the French legal doctrine, the administrative contract is considered, after 1990, a legal

document signed by the public administration bodies with the administered ones, acts comprising a

will agreement generator of rights and obligations for the contracting parties. (Negoi, 1996, p. 173)

In the current doctrine, the administrative contract is defined as “an agreement of will, between a

public authority, which is in a position of legal superior ity, on the one hand and other subjects of law,

on the other hand (lega l and physical entities, or other state bodies subordinate to the other pa rty),

which aims at satisfying a general interest, by pr oviding a public service, performing a work or

enhancement of a public asset, submitted to a regime of public power” (Vedinaş, 2009, p. 125).

Still in the doctrine it is referred to two closely related concepts, namely: the contracts of public

administration and administrative contracts, considering that the latter represents the first kind

1 Professor, PhD, Dean of Faculty of Law, “Danubius” University of Galati, Address: 3 Galati Boulevard, 800654 Galati,

Romania, Tel.: +40.372.361.102, Fax: +40.372.361.290, Corresponding author: vasilicanegrut@univ-danubius.ro.