Revista Transilvană de Ştiinţe Administrative (Dec 2009)
Scurte considerații asupra contractului administrativ și asupra procedurilor de control jurisdicțional în materia achizițiilor publice
Abstract
The juridical concept of public contract was not generally accepted in the Romanian inter-war and communist doctrine. The needs of integration in the European structures after 1989, determined the domestic legislator to adapt the norms in order to accomplish the fundamental principles of a democratic society. Government Emergency Ordinance no 34/2006 transposed the European Council’s Directives in the field of the award of public works contracts, public supply contracts and public service contracts, and defines the concept, the drafting of the contract and the control proceedings before the National Council for Solving Legal Disputes and before the Courts. The fundamental principle of hearing both sides is provided by the special law in the proceedings before the National Council for Solving Legal Disputes, which is a central body, invested with jurisdictional power, for solving the complaints of the applicants in the administrative procedure. This jurisdictional procedure, flexible and quick, has also shortcomings regarding the participation of the parties from the administrative procedure before the jurisdictional body and the consequences of the court’s decision for the person who awarded the contract. The possible solution is offered by the Law no. 554/2004 and the New Civil Procedure Code, which has to be adopted this year, and also by the jurisprudence, if the courts exert their active role.
