UNIVERSITATEA DIN CRAIOVA

FACULTATEA DE DREPT
MASTER – BUSINESS LAW

Administrative Contracts
The structure of an administrative contract
Public procurement contract of supply and services - Case study

Students:
Duiu Claudiu
Gorincioi Marcel
Petrescu Alexandra
Roșiu Georgiana
Tudorică Elena Sorina
1. Introduction. Definitions of the contract

Concerning the romanian legislation, a definition of the public procurement contract is to

be found in Law no. 2016/98, where it is defined as an administrative contract, by onerous
title, concluded in writing between one or more economic operators and one or more
contracting authorities, having as object works, supplies or services.
A
The contract in our study case is a contract of supply and services.
B
According to the previously mentioned national law, a contract of supply means a public procurement
contract which object is the procurement of products by buying, including the installment, renting, leasing
with or without buying option or by any other contracting means, on the strength of which the contracting
authority benefits from these products, whether or not it acquires the property of them.
C
D
Moreover, according to the same national law, a service contract can be defined as the
public procurement contract having the object of services, which are different from those
representing the object of a public procurement contract of works.
 2. Legal Framework

Directive 2014/24/EU National Legislation

Public procurement is governed by the It aims to provide only general guidelines on
Directive 2014/24/EU, which awarding public procurement contracts,
establishes the general legal framework leaving the operational details to be further
applied between its borders, giving the regulated by secondary legislation.
Member States the freedom to regulate
in this area.

Law 98/2016 A.N.A.P.

Law 98/2016 regarding public Furthermore, in the Romanian procurement
procurement is the core law of the new system, The National Agency for Public
package of four laws regarding the Procurement searches to establish
public procurement framework in framework contracts and to restrict, to
Romania and transposing EU Directive some extent, the public authorities
2014/24/EU. It sets out the main “discretionary power” to decide on
general rules and means of awarding mandatory and specific clauses.
public procurement contracts.
 3. The contracting
parties
The Parties Case Study
The contracting parties are the In our case study, the contract was
contracting authority and the concluded between a public
provider, as they are named in authority, The Penitentiary of
the present contract. Craiova, as the contracting authority
and an economic operator, SC FIRE
AND RESCUE SERVICES SRL,
as the provider.

The Contracting Authority The Provider

The acquirer is the beneficiary of the The economic operator is the
provided services, as well as its heirs natural/legal person or any natural
apparent. persons’ association, legally
established, which has the
responsibility of realising the object
of the contract.
 4. Contract Period

Reglementation Period
The contract period is not The contract parties shall
established by the law, as it is a agree on the period of their
clause resulting from the agreement.
agreement of the parties.

Start End
Therefore, the period of the Also, the present contract
present contract was from the stopped from producing
4th of May to 18th of June, effects on the 19th of June,
2018. 2018.
 5. Legal object and material object of the contract

A. Legal object of the contract

The legal object of
administrative contract on public
an
A C. Material object of the contract
The material object of the
present contract is represented

c
procurement is the procurement of by the detection and fire alarm

B
works, supplies or services. station that must be provided
In the present contract, it is about by the provider.
supplies and services.

B. The procurement
of supplies and services D. Detection and fire

D
Therefore, the provider must supply and alarm station
install the detection and fire alarm station
Also, we may include in this category
at the Penitentiary of Craiova, according to
the services that need to be
the tender book and the technical offer.
accomplished by the provider, such as
The product must totally comply with the
settling and installing the product.
technical specifications.
 6. The effects of the contract
Rights and obligations of the parties
Contractual clauses
There are rights and obligations that apply to both contract parties.

Primary obligations of the provider

The provider must accomplish the services in accordance with the standards in
the technical proposal, and also offer technical assistance and quick action at the
require of the beneficiary for a period of 5 years, and cover the costs of
transportation, resulting from the services that are specified in the contract.

Primary obligations of the contracting authority

The contracting authority must receive the services at the agreed time, must
supply the provider with any facilities/information required in the technical
proposal and pay the price for the services to the provider in 30 days, numbered
from the day of receiving the bill.

Sanctions for unperformed obligations

If one of the two parties fails to fulfil its contractual obligations, in a guilty
and repeated way, the other party has the right to consider the contract as
being ceased and claim for the recovery of damages.
 7. The form of the contract

Contract Form
The contract on public
procurement shall be
concluded in a written and
authentic form. Authentic Form

Internal Procedures Law 554/2001

According to internal According to Law no. 554/2001
procedures of the Contracting on free access to information of
Authority, the contract can be public interest, any person may
drawn up in 3 copies. request information on the terms
stipulated in the contract.
 8. Termination of the contract
The present contract is considered ceased ipso jure, without any preliminary formality, formal notice or intervention of the court,
in case one of the parties:
1 Does not fulfil one of the
obligations in the present
contract.
3 4
Breaks one of its obligations,
after being warned with a
written notice, by the other
party, that a new unperformed
obligation will lead to the
termination of the contract.
Is declared incapable to pay, the
dissolution procedure started before
the beginning of the execution of the
contract, or, if the provider goes
bankrupt during the contract time.
2
Unilaterally:
a) By reasons that are independent from the contracting authority’s
will, that lead to the impossibility to respect the contract clauses, after
a notice of at least 3 days.
b) The violation of the article 222, paragraph 1, Law no. 2016/98.
c) The violation of the article 164-167, Law no. 2016/98, by the
contractor, at the assignment time.
d) The high violation of the obligations that result from the European
relevant legislation, which was declared by a CJEU decision.
 9. The procedure of the public procurement contracts

First Step Second Step

Procurement begins with a
strategic planning phase: needs
are
solutions
identified,
are
alternative
developed,
1 2 This is followed by the pre-
tendering
involves
phase
the
which
strategic
considerations regarding the
recommended solution is conduction of procurement.
approved, investment is
appraised, feasibility study is Third Step
performed, costs, risks and time
Then comes the tendering
are estimated, Project Fiche is
phase in which tender
prepared and approved.

3
documents are prepared,
Fourth Step
Award of the contract
followed by
is
the
4 proposals

rejected.
are invited,
evaluated, and accepted or

implementation phase in
which the execution of the
contract is managed.
10. Similarities between public procurement contracts and
other administrative contracts

EXORBITANT PECUNIARY WRITTEN

CLAUSES CONTRACTS CONTRACTS

B D
A C DIFFERENT
E
PUBLIC FROM PRIVATE
AUTHORITY as LAW
THE CONTRACTS
CONTRACTING
AUTHORITY
 11. DIFFERENCES BETWEEN PUBLIC
PROCUREMENT CONTRACTS AND OTHER
ADMINISTRATIVE CONTRACTS
Legal framework
The Directive no. 2014/24/EU establishes the main
rules that have to be enforced by the member
states of the European Union and the Law
no.2016/98, which is a national law, sets the details
on the public procurement in Romania based on
the specific of our country on the public
procurement.
Compared to the contract of supply and services
we have analysed, for example, the contract of
concession has as legal framework the Directive
no. 2014/23/EU of the European Parliament and of
the Council on the award of concession contracts,
and the Public Property Administration Contract
have the legal basis on the Law no. 1998/213.
1
Object of the contract
2
In our case study, we have analysed the contract of
supply, which is a “public contract other than a public
works contract having as its object the purchase, lease,
rental or hire purchase, with or without option to buy, of
products” , or, a “ public procurement contract having as
3 its object the purchase, lease, rental or hire-purchase,
with or without an option to buy, of products.”, compared
to the concession contract which “is a contract for
pecuniary interest concluded in writing between a
contracting authority/utility and an economic operator
4
where the consideration is either: simply that the
contractor has the right to exploit (that is, to profit from)
the works/services that are the subject of the contract, or
where the contractor has that right together with some
payment from the contracting authority/utility”.