The role of enforcing transparency, competition and objective criteria in decision making in support of the weak party of government contracts
| Autor | Kheirollah Parvin - Karim Farhadi |
| Cargo | Professor, Department of Public Law, Faculty of Law and Political Science, University of Tehran, Tehran, Iran, khparvin@ut.ac.ir. - Ph.D student, Department of Public Law, Bandar Abbas Branch, Islamic Azad University, Bandar Abbas, Iran. Corresponding Author Email: farhadikarim@yahoo.com. |
| Páginas | 559-582 |
Periódico do Núcleo de Estudos e Pesquisas sobre Gênero e Direito
Centro de Ciências Jurídicas - Universidade Federal da Paraíba
V. 8 - Nº 03 - Ano 2019
ISSN | 2179-7137 | http://periodicos.ufpb.br/ojs2/index.php/ged/index
559
THE ROLE OF ENFORCING TRANSPARENCY, COMPETITION
AND OBJECTIVE CRITERIA IN DECISION MAKING IN
SUPPORT OF THE WEAK PARTY OF GOVERNMENT
CONTRACTS
Kheirollah Parvin
1
Karim Farhadi
2
Abstract: The special features of
government contracts, such as the
accession of these transactions and the
prioritization of public interest over
private interests, create a situation that
undermines the principle of equality of
the parties and their free will and
weakens the private side of these
contracts. The weaknesses on the private
side of the contract are not always in the
public interest, and exacerbating this
situation can lead to a weakening of the
private sector and ultimately to the
general economy of countries.
Therefore, lawyers and economists have
come up with ways to protect it from the
weak side of government contracts. The
fruit of weak support in government
transactions is to balance the benefits of
executing and executing these contracts
1
Professor, Department of Public Law, Faculty of Law and Political Science, University of
Tehran, Tehran, Iran, khparvin@ut.ac.ir.
2
Ph.D student, Department of Public Law, Bandar Abbas Branch, Islamic Azad University,
Bandar Abbas, Iran. Corresponding Author Email: farhadikarim@yahoo.com.
and thereby achieve public goals while
strengthening and safeguarding the
interests of the private sector. One of the
most effective ways of supporting the
weak side is to create a framework that
compensates for non-compliance with
the principle of equity in government
transactions and provides grounds for
fair private sector growth and
development. The most important of
these contexts are the implementation of
the principles of transparency,
competition and objective criteria in
decision making. In this article, while
outlining these principles in relation to
government contracts, we will study the
role of adherence to each of these
principles in protecting the weak side in
government contracts.
Periódico do Núcleo de Estudos e Pesquisas sobre Gênero e Direito
Centro de Ciências Jurídicas - Universidade Federal da Paraíba
V. 8 - Nº 03 - Ano 2019
ISSN | 2179-7137 | http://periodicos.ufpb.br/ojs2/index.php/ged/index
560
Keywords: Government Contracts,
Weakness, Principle of Transparency,
Principle of Competition, and Principle
of Objective Criteria in Decision
Making.
Introduction
The government, as an
administrator of the most important
affairs of the country, such as health,
culture, security, and development,
covers much of its needs through the
private sector. Governments try to
provide public and state requirements by
contracting with private service
providers due to numerous constraints,
such as a lack of specialized manpower
or lack of advanced equipment and tools
or for economic reasons, such as
weakening the scope of governance and
developing a regulatory role. On the
other hand, the government sells
property and services or concessions to
the private sector in various situations,
including through government
transactions. Because the government
enjoys greater power and control over
these contracts and the public interest
over the private sector, the principles of
contract equality and the free will of the
parties are not fully respected in
government contracts, and usually the
private party of government contracts
based on accession contracts is subject to
contractual terms, which the public
sector determines.
In the process, the private
parties of contracts have far less
bargaining power and are unable to
safely secure their interests. Moreover,
the enactment and enforcement of
regulations that in the process of
enforcing the contract recognizes special
and discriminatory rights and privileges
such as the right to unilaterally terminate
the contract, rendering the private parties
of government contracts in a weak
position.
The basis of the superiority of
the will of the State party over the private
party is that in the process of concluding
government transactions, the State party
is the representative of the public and is
responsible for safeguarding their
interests; it's advantages. In this regard,
jurists have argued that the contract
cannot limit the will of the state, which
symbolizes the superior will of society
and is exercised to serve the public
interest (Imami & Ostwar Sangari, 2012,
p. 133). Although these principles are
applied for the benefit of the public, if
government agencies overdo it and use
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