Abstrakt

The public contracts in the Italian theoretical reconstruction  The public administration, as a rule, can adopt administrative acts and measures, characterised by the authoritative imposition of obligatory action (think of the classic example of the expropriation of privately owned land); but it can also employ institutes and apply rules of private law (acting, in this case, with transactions of private law): in this case the administration abandons its appearance of public authority and operates on an equal footing with the other contracting party.  This activity of private law, based on the use of negotiated/contracting schemes was, for a long time, considered in some way residual compared to the activity regulated by the rules of administrative law. However, since World War II, we have witnessed a gradual expansion of the sectors in which administrative activities can (and sometimes must) be conducted in the implementation of rules of private law.  The activity of private law in the public administration can be divided into: – an activity that is essentially instrumental, when the administration seeks to equip itself with what it requires for its daily needs (e.g., the purchase of stationery items); as a rule, this activity is entrusted to the appropriate supply offices; – an administrative activity of institutional private law, engaged in by those administrations that operate exclusively in the field of private law and whose governing bodies alone issue administrative acts. For these administrations (mostly state-controlled companies), as a rule, the public authority intervenes in the control phase; – an administrative activity of equivalent private law, engaged in, in alternative with public administrative activity by public administrations or entities specifically authorised for this.  By public administration contracts we mean bilateral legal transactions by which the administration procures the goods and services it requires where iure imperio is not applied to the imposition of mandatory services.3  Public administration contracts are then usually divided into active and passive, on the basis of whether their stipulation and execution creates an income or an expense for the body.  The tendency, according to which the public administration replaces the authoritative with consensual action, has recently been codified in the new Article 1-bis of Law 241/1990, which provides that, in the adoption of measures of a non-authoritative nature, the administration acts according to the rules of private law, unless the law provides otherwise (cf. Ch. 16).  In principle, we can identify two phases in which the contractual relationship develops: a first one of a procedural nature (including the deliberation to employ a contract, the choice of system to follow to identify the contractor, the definition of the contract price, the related tendering process, the preparation of contractual provisions and the approval of the contract) governed by the principles, rules and criteria of public law. In this way, the activity inherent in the process of shaping the will of the public subject, any charges to the private contractor for ancillary obligations in the course of the relationship with possible charges or additional obligations, the lapse of the administrative deliberation establishing the relationship, the particular forms in which the coercive implementation of the relationship might occur, are thus governed by public law following the model of the call for bids.  In the successive contractual phase, relating to the carrying out of the contract, although there must always be the pursuit of the institutional aim on the part of the public body, the logic that prevails is that of parity between the parties, who are both holders of subjective rights and legal obligations. In this case, the essential elements of the contract,...