Challenges of the Knowledge Society (May 2021)
THE PRIORITY OF PUBLIC INTEREST PRINCIPLE IN THE PUBLIC PROCUREMENT CONTRACTS
Abstract
Important by object, value and general interest for which they are concluded, the public procurement contracts have a dual nature, although they are most often qualified as administrative contracts, with particular characteristics. Based on models known as FIDIC contracts, they contain standard clauses, but also clauses in accordance with the specifics of the contracted works and the need to adapt them to the problems that arise during execution. Terminating them is the last resort the parties should make use, but this can sometimes be inevitable. In such cases, the damages suffered both by the contracting authority and the entrepreneur may be significant. The concept of "public interest" is assigned a supernatural aura of something that goes beyond the power of understanding of ordinary people, that is, those at whose service state administration should be in its broadest sense. The concept of "public interest", although overused in and by public administration, seems as difficult to define as the concept of "freedom". The "public interest" is for many people just like freedom: we all know what it is until we have to define it, explain it, apply it in concrete circumstances. The "public interest" seems to us, by its very nature, to be an imprecise, evolutionary and random notion. But in all cases, it is subsumed to the idea of the well-being of the public, not of the arbitrary will of the public authority, not of the eventual limited interest of such an entity. In public administration "public interest" is so often mentioned and invoked that it can be said that it has already become a kind of legal institution but... without rules or with rules hard to identify! But an institution in law may be defined, as is well known, as a set of rules, substantive and procedural rules, set up to regulate legal relations, behaviours, and to take appropriate decisions in specific situations and penalize violations of accepted and known rules. Or shorter: the institution is a uniform set of legal rules that are joined together by object and purpose.
