This Article will summarize Argentine law on government contracts as it exists today, with special reference to the contracts of the Federal Government. Due to the French origin of the theory and to the fact that this Article is addressed to an American readership, a tentative comparison with the main legal rules on the subject of these two countries will be offered. A discussion of the practical consequences of the application of the administrative contract doctrine, and some possible solutions to the problems created thereby will be then put forward. But first, the basic issues that this doctrine gives rise to will be defined and the French origin of the concept of contract administratif and its reception in Argentina will be explained. The analysis offered will be limited to the general substantive legal regime of Government contracts leaving aside the issues arising from the contracting procedure, i.e., the rules on competitive bidding. To the extent that this substantive regime results from laws and regulations, only those directly applicable to Government contracts shall be considered. Thus, the analysis will only deal tangentially with the impact on these contracts of the exercise of public powers granted by statutes that may affect indirectly the performance of the private contractor. Since such statutes may reach all Government contracts and not only those defined as “administrative” (unless a tautological definition is used, i.e., one that characterizes as “administrative” only those Government contracts that can be reached by laws granting regulatory or police powers to the Government), it may be argued that the issues raised by those statutes lie outside the scope of the doctrine of the administrative contract. Therefore, the issue of the conflict between the legislative powers of the State and the principle of the sanctity of the contract shall not be treated.
Hector A. Mairal,
Government Contracts Under Argentine Law: A Comparative Law Overview,
26 Fordham Int'l L.J. 1716
Available at: http://ir.lawnet.fordham.edu/ilj/vol26/iss6/6