السلطة التقديرية للإدارة في المناقصات في القانون العراقي (دراسة مقارنة

Abstract

Administrative authority is estimated if law does not cover it. It can thus conduct in a particular subject in a certain manner. Law grants it the right to take convenient measures and select the suitable time for it and the way it decides. Pertaining to tenders, administration has an estimated authority which gives it the right not to complete a contract; the tender is cancelled and it may not contract any person if it so wills, for public behalf reasons. It can also in some cases deprive some persons or exclude some bids from participation in the tender or even refer the tender to another party. We have discerned, through the research, that deprival is a measure taken against a certain person. It falls on two kinds: penal and protective, whereas elimination concerns a certain bid in a tender. We have also observed that the comparative legislations specify the cases, when it can cancel a tender before it is settled, in two cases:a.If the tender is entirely dispensed with. b. If the public behalf requires the cancellation of the tender.Cancellation may be after it was settled in the following cases:a.It is the sole bid.b. All or most of the bids take precautions.c. When the least bid ascends the estimating value. But the Iraqi Legislature has not specified these cases. We end up to recommend that the Iraqi Legislature give their opinion as it is the case with the Comparative Law to determine the conditions in which administration can abolish tenders or refer them to another party and not to leave it to administration to decide in order to conserve the principle of freedom of discussion at tenders and to keep the integrity of tender procedures. I also recommend reactivating the role of administrative jurisdiction in Iraq so that the judicial surveillance may be the best guarantee against administrative totalism. And I may add my vote to those who have preceded me by recommending that Legislature pass a special act to organize tenders and outbidding