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.
According to Art 3207(1) two reasons make “any activity” a “public service” without which the activity cannot be considered so. What are these reasons? One of these reasons is necessity. This necessity should be the need of the general interest. So any thing necessary and considered as such by a public community to the general interest will fulfill the first requirement of Art. 3207(1). The second reason is inadequacy on the part of the private sector. Thus a public service is any activity but which private individuals on their initiative cannot carry out among other things because of financial constraints.
Thus only a contract that has made its object ‘‘an activity of the public service…” will have the chance to qualify as an administrative contract.
Next to this, the manner of participation on the part of the contractor determines the nature of the contract. As such a contract to be an administrative contract should imply a permanent participation of the contractor… in the execution of such service. Let us in turn see what permanent participation is.
Does permanent under Art. 3132(b) imply bondage? How long should a contract last?
Letting a contract to last forever jeopardizes the basic rights of an individual. Contracts should not be servitudes. Our first consideration therefore should be the individual. Thus we are saying that permanent participation of Art. 3132(b) must not imply the indefinite and forever nature of the relationship. Further “permanent” should imply continuous, uninterrupted, regular and normal participation of the contractor in the relationship and the expansion of a public service.
One other issue worth mentioning is the implication the “or” conjunctive has under Art. 3132(1) & (b). Does the conjunctive make the requirements optional or should we expect the cumulative applications of sub-articles (a) & (b)?
To elucidate, if we are to make the requirements under Art. 3132 optional then we are saying that mere qualification of a contract as an administrative contract will make the same an administrative contract. Sticking to the second extreme will however force us to consider all the elements under Art. 3132 and their affirmative existence to say a contract and administrative contract. Which one position do you think is reasonable? Why?
No less important is the difference between “administrative agencies’’ and “public enterprises”. We say this is important because the law prescribes in addition the nature of one of the parties to an administrative contract .As observed above, the law says one of the parties to an administrative contract should be an administrative authority. But what is an administrative authority? Does it also mean public enterprise? Consider Art 2(f) of Proclamation No.430/2005- “Procuring entity means public body, which is partly or wholly financed by Federal Government budget, higher education institutions and public institutions of like nature”.
From this it is possible to infer that at least two things make an entity an administrative body. The first is the source of income of the entity. If the entity partly or wholly derives its income from the government, there is a possibility to consider it a public body which can enter into administrative contracts. On the other hand the purpose of the organ makes it an administrative body.
Comparison: Genre and View Comparison
Here our basic concern will be comparing and contrasting administrative contracts and other types of contracts on one hand, and the common law and civil law on the other hand.
Administrative contracts are similar to other types of contracts because of their formation, validity requirements and the form. On the other hand, administrative contracts are different from other contracts because of their formation, content and execution.
Let us briefly explain the points- But first what do you think are the views of the two legal systems towards administrative contracts?
The common law views administrative contracts just like other ordinary contracts whose consequences will show up to be the treatment of parties as equal members to the venture. No party will enjoy priority. Both are equal parties to and in the case. As a consequent incidence, the common law requires no new or special law governing administrative contracts. There is only one contract law regime that governs all the instances.
These outlooks will naturally lead to the adjudication of cases that involve administrative contracts by the ordinary courts of law.
Perspective change is observable under the civil law system where parties to administrative contracts are unequal, whose case will be governed by a special regime and adjudicated by special tribunals (i.e. administrative tribunals). This is specially the case in France.