Administrative Contracts Flashcards

This study guide outlines the key aspects of administrative contracts, including their definition, formation, effects, concession, public works and arbitration.

Why are administrative contracts relevant in Ethiopia?

Administrative contracts are important in Ethiopia, and the civil code has one title devoted to them. Procurement proclamation enables equitable, efficient, and effective procurement.

What was Adam Smith's view on state intervention in the market?

Adam Smith advocated for minimal state intervention in the market (laissez faire).

What event led to the rise of the welfare state and what services did it provide?

The Great Depression demonstrated that markets need some state regulation. Welfare states regulate the market and provide public services (education, health, etc.).

What role do administrative agencies play in government?

Administrative agencies assist the government in service provision, using administrative contracts as a tool.

What part of the civil code governs administrative contracts?

Administrative contracts are governed by the general contract title of the civil code (Art. 1676(2) cum Art.1675).

What presumption do administrative agencies operate under?

Administrative agencies are presumed to act on behalf of the public, giving them an advantage in contracts.

According to Art. 3132, when is a contract deemed an administrative contract?

A contract is deemed administrative if it's expressly qualified as such by law/parties or connected to public service with permanent participation of the contracting party with administrative authorities.

Can parties designate any contract as an 'administrative contract'?

Parties may qualify a contract as administrative, but at least one party must be an administrative authority. The content should also be related to public service.

Define public service according to Article 3207(1).

According to Art. 3207 (1), any activity which a public community has decided to perform for the reason that it to be necessary in the general interest and considered that private initiative was inadequate for carrying it out shall constitute a public service.

What constitutes 'permanent participation' in an administrative contract?

To be an administrative contract, there should be permanent, continuous, uninterrupted, regular, and normal participation of the contractor in the relationship and the expansion of a public service.

What defines an administrative body?

Administrative bodies are public bodies partly or wholly financed by the Federal Government budget. The source of income and the purpose of the organ can make it an administrative body.

How does common law view administrative contracts?

Common law treats administrative contracts as ordinary contracts with equal parties, governed by one contract law regime.

How does civil law view administrative contracts?

Civil law (e.g., France) views administrative contracts as involving unequal parties, governed by a special regime, and adjudicated by special tribunals.

What are the formation and validity requirements of administrative contracts?

For a valid contract (Art. 1678), parties must consent, have the capacity, and the object must be defined, plausible, and lawful. Contracts with administrative authorities must be in writing (Art. 1724).

How is consent determined in administrative contracts?

Conclusion of a contract by administrative authorities implies express consent (Art. 3134). Implied consent is insufficient; express consent is required.

What is the effect of a lack of credit or ultra vires acts on an administrative contract?

Lack of credit does not invalidate an administrative contract (Art. 3142), but ultra vires acts (exceeding powers) are of no effect (Art. 401(1)).

Who usually determines the object of an administrative contract?

Administrative agencies formulate model specifications, general clauses, and common directives (Art. 3135) in advance.

What are the formality requirements for administrative contracts?

Compliance to formality requirements is essential, including written form and registration (Art. 1724). Some contracts require procedures of tender.

Is it mandatory to have a procedure of tender in administrative contracts?

It is optional to follow a procedure of tender unless the law imposes such obligation (Art 3147(1)).

What is procurement according to Proclamation No 430/2005?

Art.2 (e) of the proclamation states 'Procurement' means the purchasing, hiring or obtaining by any other contractual means goods, works and services.

What is the standard procurement procedure?

Open bidding is the preferred procedure unless otherwise provided in the proclamation (Art. 25(1)). The proclamation recognizes six modalities of procurement including open bidding (Articles 25-30).

Name six modalities of procurement.

The six modalities are: Open bidding, Restricted tendering, Direct procurement, Request for quotations ,Two-staged bidding and Request for proposals.

Under which circumstances can direct procurement can be used?

Direct procurement can be used when competition is absent for technical reasons, for replacement supplies, or in emergencies (Art. 27).

In general, what consists of a valid object and according to Art 3143, what would cause there to be no effect?

A valid contract should have a possible, defined, and lawful object. Art. 3143 states Lack of authorization makes the contract of no effect as if the object is unlawful (ultra vires).

Give a brief summary of Absence of Object.

Lack of Cause (Art. 3170): Contract is null if impossible to attain the result desired by administrative authorities and known to the other contracting party.

Give a brief summary of Unlawfulness of Object.

In accordance to Art. 3171(1), Unlawfulness of Object, a contract is null if made by the administrative authorities with an unlawful object in view.

In general, what are the measures that a contracting party can take in the instance of non performance?

A party can take measures independently or cumulatively such as requiring enforcement or cancelling of the contract, compensation for damages. These rights should be preceded by notice.

Generally, what qualifies as performance?

Performance includes an act of giving, acting, or not acting. Performance extinguishes the obligation.

According to Art. 1731(1), what are the terms of a lawful contract?

According to Art. 1731(1), The provisions of a contract lawfully formed shall be binding on the parties as though they were law.

Who should Preform?

The contract can be performed by the debtor, his agent or by a person authorized by court or law (Art. 1740(2).

How should the contracting entities preform?

ERA says 'Contracting parties shall perform their obligations in a manner provided in the contract' (Art 3172(1)).

For who to Preform?

According to Art. 1741, Performance can be made to the “creditor or a third party authorized by the creditor, by the court or by law to receive it on behalf of the creditor.”

On the part of administrative authorities, what characterizes bona fide performance?

Art.3172 (3) & Art.3172 (2), diligence is prescribed. To this end the obligations shall be performed in a correct manner deemed to be satisfactory according to the rules of art prevailing at the time and in the kind of activity concerned.

According to General contracts, what is the role of modalities in regards to time?

Payment shall be made at the agreed time (Art.1756 (1)) and each contracting party shall perform his obligations within the time fixed by the contract (Art 3174(1)).

Generally, what happens on the instance of non performance of administrative contracts?

Contracts are not mere agreements because upon non-performance they have legal effect- an effect sanctioned and enforced by the law.

Default notice puts the party in and signifies the to determine .

Default notice puts the non-performing party in default and signifies the right time to determine transfer of risks.

Name the two conditions for ordering preformed Performance.

Pursuant to Article 1776 provides the conditions for ordering forced performance: the creditor‟s special interest, and the preservation of the debtor‟s personal liberty.

Why does cancellation occur?

Cancellation will end the relationship prematurely and can occur when one or both parties don't adequately preform.

When may administrative entities terminate a contract?

Administrative authorities may terminate the contract notwithstanding that the other party has committed no fault where the contract has become useless to the public service or unsuitable for its requirements.

Define administrative contracts.

Administrative contracts are not clear contract same as any other contract it has to meet the requirements of the law of contracts. However, it differ because what would otherwise be done by administrative authorities is done by another person called the grantee.

What makes concession a special contract?

Concession of a public service is the contract where by a person, the grantee, binds himself in favor of an administrative authority to run a public service getting a remuneration ( there of) by means of fees received on the use there of (Art 3207(2)).

Explain the entities of a concession of a public service.

Grantee-One of the contracting parties, a private individual that enters in the activity of providing a public service/ Grantor however will be the administrative authority.

On what is the variation conditional?

The variation is conditional on changes occurring in the prices of certain materials, commodities or services. Not all variations in prices matter but only changes in certain materials, commodities or services.

According to the revision clauses, what is the role of the contracting entities??

The parties may agree to the effect that modification may be introduced “where economic circumstances change considerably…”. As such, administrative authorities have the prerogative of unilaterally modifying the terms of the contract.

In Art.3217 (1), under what constraints may modifications be made.

Art.3217 (1) reads as 'Only the clauses concerning the services and its operation may be modified'. Administrative authorities may increase or reduce the service to be operated. They may also impose an extension of the service. In no case however the authorities may impose modifications which actually change the nature or object of the contract.

On the point of Duration of Concession, what is the the general timeframe?

Under normal course of things, durations are regulated by the contract. Failure to renew the concession within two years implies the implicit renewal of the concession for another seven years not exceeding sixty years.

In the context of administrative contracts, what is winding up procedure?

Concession contracts result in the establishment of an organization to effectively provide public service resulting in winding up procedure the effect. This winding up in turn will entail the “settlement of accounts between the grantee and the authorities.

What is Redemption?

Redemption is saving something or somebody from a declined, dilapidated, or corrupted state and restoring it, him, or her to a better condition as One way of terminating concession contract before the normal time of termination.

Under what circumstances one does does an entity loose preform?

Art 3228 Is when the the grantee can lose his right only by the order of a court or agreement to the effect entrusting this privilege to administrative authorities (withdrawal order).

What if the the act of Sequestration?

Sequestration is the act or process of legally confiscating somebody's property temporarily until a debt that person owes is paid, a dispute is settled, or a court order obeyed normally caused by an element of fault on the part of the grantee.

What can be said about Rights in conjunction to courts and sanctions?

Rights can be cancelled by the court, the orders of the grantor are not absolute, such as measures of sequestration, state control, loss of right or termination, taken by the administrative authorities against the grantee of a public service”, it is not clear as to when the court orders the cancellation. It is however clear that the order should follow an arbitrary and manipulative decision of an administrative authority. Above all, it should follow an illegal order of the same.

According to Administrative Contracts, define Public Works.

A contract of public works is a contract whereby a person, the contractor, binds himself in favor of an administrative authority to construct, maintain or repair a public work in consideration of a price (Art. 3244 (1)).

Give two examples of types of contracts of public works.

Contracts of public works take different forms such as the Measurement Contract and the Design and Build Contract.

Name give types of the the FIDIC Contracts in a hierarchical order.

1, The contract agreement, 2, letter of acceptance ,3, the tender ,4, conditions of Contract Part II(Particular Conditions ,5, conditions of Contract Part I(General Conditions 6, specifications, 7, the Drawings, and 8, the Priced Bill of Quantities.

What factors are important to remember in light of public contracts?

Art 3246: Under administrative contracts involving the public interest, competition will be waged among skilled persons or among specialized undertakings. Skill and specialization are therefore the ground rules to pick-up possible contractors.

What consists of Administrative Authorities?

The administrative authorities may supervise the performance of the works, and prescribe to the contractor the manner of performance of his work (Art. 3250 (1) & (2)).

Who's responsible if there is a defective product?

The administrative authorities have this right of ordering the demolition and the reconstruction of any defective work at the expense of the contractor. (3256).

What role to contractors play?

Contractors have very limited right with relation to administrative authorities, they are prohibited from demanding compensation from administrative authorities save for the fault that the latter might commit (3259(2)).

On what basis will contractors be paid?

Contract with a fixed price under which contractors will get their payment in a lump sum. (3261) or contract with series of prices, price is fixed based on the different types of work that the contract envisages (3262).

How does one define Payment?

While generally it is indicative of the conclusive performance of the contract sometimes, that payment is only the performance. As such no contract will arrange a clause of deferred payment (Art 3267)

What falls under Acceptance of Work?

Acceptance is not merely taking possession of the work, where it is not a joint ascertainment of the works made immediately after the completion of the works. Rather it entails examination of the works by the contractor and the administrative authorities.

What is the essence of Provisional Acceptance?

This involves the ascertainment of the works both by the contractor and final authorities, while it is made under reservation.

What is the essence of Final Acceptance?

Final Acceptance is the definite appropriation of the works after ascertaining that the contractor has performed his obligations in their entirety (Art. 3279(1)). While in final ascertainment, acceptance by both parties is required.

When are contracts modified in public works?

During the currency of the contract… the administrative authorities may impose unilaterally upon the contractor changes.The implication for that is That the law allows parties to have those rights in contract.

Under which conditions shall not be an adequate preformance??

What falls under the Non-performance includes the State Control of the project, or there may be re-allocation of the work to another contractor and all of the responsibilities.

What does Artbitation consist of?

Arbitration is reference of a dispute to an impartial person or persons, called arbitrators, for a decision or award based on evidence and arguments presented by the disputants.

How does one define Artbitrability?

The concept of arbitrability is in effect a public policy limitation upon the scope of arbitration as a method of setting disputes. This may not be able to be enforced because what might be allowed in one country, might not be allowed in another.

Why are ratified Treaties relevant?

FDRE constitution, as specified in Art.9, makes ratified treaties a part of the legal system including arbitration. FDRE constitution, as specified in Art.9, makes ratified treaties a part of the legal system.