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: