Contracts for Public Works in Spanish Law : Practical Aspects

DOI10.1177/002085236102700411
AuthorJuan A. Cremades y Sanz-Pastor
Publication Date01 Dec 1961
SubjectArticles
German
law
although
their
existence
had,
until
then,
been
widely
acknowledged.
Mayer’s
opposition
was
based
on
a
strict
distinction
between
the
acts
of
public
author-
ity
and
the
acts
of
private
management,
a
distinction
advocated
by
Laferri6re.
He
con-
sequently
denied
any
possibility
of
« admin-
istrative
contracts
being
concluded
in
mat-
ters
dealt
with
by
the
State.
That
purely
theoretical
argument
soon
lost
its
strength
and
today
Mayer’s
arguments
find
no
more
supporters.
On
the
other
hand,
the
defini-
tion
of
the
« legal
admissibility
of
adminis-
trative
contracts
is
keenly
debated.
As
regards
the
definition,
the
prevailing
opinion
is
that
a
contract
is
« administra-
tive
»
when
it
regulates
operations
whose
nature
affects
public
law
in
accordance
with
criteria
derived
from
positive
law.
German
law
differs
widely
from
French
law
in
that
respect.
The
principal
field
for
such
contracts
is
that
of
contracts
between
two
public
entities
neither
of
which
is
subordinate
to
the
other.
Other
cases
are
few
and
far
between.
The
admissibility
of
administrative
con-
tracts
is
a
question
of
outlook.
It
may,
how-
ever,
be
stated
that
the
leading
theoretical
trend
is
that,
if
either
party
is
in
any
way
subordinate
to
the
other,
the
existence
of
administrative
contracts
can
only
be
admit-
ted
in
the
cases
expressly
provided
for
by
law.
Nevertheless,
apart
from
that
event,
they
are
admissible
provided
that
there
are
no
definite
legal
provisions
to
the
contrary.
Contracts
for
Public
Works
in
Spanish
Law :
Practical
Aspects
by
Juan
A.
CREMADES
y SANZ-PASTOR.
According
to
Spanish
Law,
« public
works
»
are
those
for
general
use
or
purposes,
and
construction
intended
for
services
for
which
the
State,
the
provinces
or
the
municipalities
are
responsible
(Act
of
13
April
1877,
article
1).
All
works
carried
out
by
administrative
communities
do
not,
however,
necessarily
in-
volve
contracts
for
public
works.
Certain
works
are
governed
by
private
law,
such
as
the
building
of
a
hotel
by
a
municipality.
As
thus
defined,
the
contract
for
public
works
is
the
most
representative
form
of
administra-
tive
contract.
1.
Contracts
Procedure
A.
Cases
in
which
the
authority
may
en-
trust
the
carrying
out
of
public
works
to
outside
persons
Co-operation
between
the
authorities
and
private
citizens
for
carrying
out
public
works
is
becoming
increasingly
close.
A
thorough
change
of
ideas
has
taken
place.
The
author-
ities
no
longer
entrust
works
to
outside
persons
for
the
sole
purpose
of
obtaining
the
lowest
price,
but
as a
means
of rationaliza-
tion.
It
is
not
to
the
authorities’
advantage
to
undertake
works
for
which
they
are
not
equipped.
For
the
authorities
to
be
able
to
carry
out
the
works
themselves,
the
permis-
sion
of
the
Council
of
Ministers
is
required
if
the
amount
of
the
works
is
above
250,000
pesetas,
unless
the
authority
concerned
has
the
necessary
technical
services.
Most
cases
consequently
involve
work
by
outside
persons
and
recourse
to
contracts
for
public
works.
B.
Capacity
to
contract
t
Any
natural
or
legal
person,
whether
Span-
ish
or
not,
may
validly
conclude
contracts
with
the
administration
unless
he
belongs
to
one
of
the
categories
of
persons
disqualified
by
the
Act.
The
legal
capacity
of
foreigners
is,
however,
subject
to
the
current
provisions
for
the
protection
of
national
industry.
More
specially
as
regards
public
works,
the
possession
of
a
« reliable
firm’s
card
is
re-
quired
of
any
enterprise
wishing
to
engage
in
building.
The
card
is,
however,
only
neces-
sary
in
specified
cases
in
which
an
appeal
lies
to
the
General
Directorate
of
Labour.
C.
Choice
of
contractor
There
are
several
methods,
including
ten-
dering,
competitive
bidding,
and
direct
agree-
ment,
but
the
choice
is
not
left
to
the
author-
ities’
discretion.
The
system
under
ordinary
law
is
public
tendering,
the
procedure
for
which
is
stated
in
great
detail
by
statute.
The
conditions
of
the
contract,
the
specifications
and
the
date
of
award
must
be
published
at
least
twenty
days
beforehand
in
the
official
gazettes
of
the
State
and
of
the
provinces
concerned.
This
time
may
be
halved
by
a
ministerial
order
if
the
work
is
urgent,
or
doubled-
when
goods

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