PROCLAMATION NO 147/1998
A PROCLAMATION TO PROVIDE FOR THE ESTABLISHMENT OF COOPERATIVE SOCIETIES
WHEREAS, it has become necessary to establish cooperative societies which are formed by individuals on voluntary basis and who have similar needs for creating savings and mutual assistance among themselves by pooling their resources, knowledge and property;
WHEREAS, it has become necessary to enable cooperative societies to actively participate in the free market economic system;
WHEREAS, it has become imperative to issue a comprehensive legislation by which cooperative societies are organized and managed in order to achieve the above mentioned objectives;
NOW, THEREFORE, in accordance with Article 55 (1) of the Constitution of the Federal Democratic Republic of Ethiopia, it is hereby proclaimed as follows:
Process of Forming Administrative Contracts -The Law of Administrative contaracts- Teaching Materiall unit one
1.3.3 Process of Forming Administrative Contracts under the Proclamation
Under private contracts, parties have at every liberty to choose their would be contracting party. This being not the case under administrative contracts the manner of selecting the prospective contracting party will have in view such considerations as ensuring the economic and efficient use of public fund and making public procurement in a manner which is fair, transparent and non discriminatory (Preamble of Proclamation No.430/2005).
Administrative contracts, therefore, have this view in advance thereby limiting contracting parties’ from freely picking up their prospective counter parts.
To begin with our discussion, it is good to first understand what procurement is per proclamation No 430/2005. Accordingly, “procurement” is to be understood as “the purchasing, hiring or obtaining by any other contractual means goods, works and services.” [Art.2 (e) of the proclamation]
We should therefore understand procurement in a wider sense to include not only purchasing but also hiring and any other contractual means enabling the acquisition of goods, works and services.
If this is procurement, what are the means of procurement? The rule here is “open bidding”. That is why Art. 25(1) prescribes “[e]except as otherwise provided in this proclamation, the procuring entity shall [use] open bidding as the preferred procedure of procurement.”
The otherwise provisions of the proclamation are enumerated under Art 25(2) of the same. Next to this, upon delimiting the scope of application of the proclamation, Art.3.(2) takes into account another consideration that authorizes the use of a different procedure of procurement. This is obviously true in purchase of goods, services or works that involves “national security or defense”. But should all procurements that involve the above entities be undertaken following a different procedure than open bidding?
At least six modalities of procurement including open bidding are recognized by the proclamation. These are available under Articles 25-30. They are:
Administrative Contracts in General
This unit is intended to acquaint students with the nature generally of and the formation and object of administrative contracts. Administrative contracts are very much important in ETHIOPIA under current settings .some people say it is bad to have too much interference in the private sphere in the era of privatization. The government should regulate the market being another argument. Leaving aside the literary arguments, legally Ethiopia has devoted one title in its civil code to specifically deal with administrative contracts. In addition to this, we have procurement proclamation to enable equitable, efficient and effective procurement. In this section, we will have something to say on Ethiopian administrative contract.
At the end of the unit students will be able to
define administrative contracts
Ø form administrative contracts.
Ø distinguish administrative contracts from other types of contracts.
Ø understand the views the two prominent legal systems have towards administrative contracts
Ø Know the historical setting of administrative contracts.
1.1 Brief Genesis of Administrative Contracts
Though hard to locate the exact time, one can still validly locate philosophical and economic backgrounds of administrative contracts.
Back in the days of Adam Smith who preached the laissez faire argument with the effect of diametrically insulating the state from the market, the role of the state was exponentially limited to enabling the state to undertake only its “traditional” functions.
As per Adam Smith, the state was advised to let the market alone. The state should put its hands off the market but without forgetting to create internal peace and order, facilitating the market by formulating a peaceful environment and without directly intervening in the market. To this end, the state should establish institutions like the police, courts and parliaments. Such an impact on the economy as caused by leaving the market alone however would not outlive such a condition as the Great Depression. The Great Depression proved the fact that markets cannot operate by their forces alone-rather to some extent the state should regulate the market. Next generation political economists devised the WELFARE state where we have a state which regulates the market- that provides public services such as education ,health, transport, water, light ,sanitation, recreation etc.
Thus, apart from its traditional functions, the state was also conferred with those additional functions listed above. Basically the state used to institutionalize its coercived force to carry out its protection function. But with the growth in the type and nature of functions and because the appropriate way of attaining goals as the case may be is entering into contract. Either by its coercive force or its right to enter in to contract the state strives to carry out its ever growing functions.
To this end of utilizing its contracting capacity, government enters into a special type of contract called administrative contract. Note that it is from this background, apart from other things, that administrative contracts derive their peculiar feature.