Delimitation between Administrative Contracts, Inter-administrative Agreements, and Private Contracts of the Administration (Doctrinal and Jurisprudential Perspective)

Delimitación entre Contratos Administrativos, Convenios Interadministrativos y Contratos Privados de la Administración (Perspectiva Doctrinal y Jurisprudencial)

Abstract

Legal literature presents notable terminological heterogeneity in the field of administrative contracting, using expressions such as “administrative contracts”, “inter-administrative agreements” and “private contracts of the Administration” interchangeably. The central objective of this study is to analyze and conceptually delimit these three fundamental categories within the Chilean legal system. The methodology is based on an exhaustive documentary analysis of comparative Latin American, German and Spanish doctrine, as well as national jurisprudence. The study examines the different meanings of the term “administrative contract” proposed by authors such as Marienhoff (1994); Dromi (2015); Huapaya (2013); Cassagne (2011); and Bermúdez (2011); differentiating between very broad, semi-restricted and strict perspectives. The main findings demonstrate that: first, the very broad conception of administrative contracts does not constitute an ontological category but rather a pedagogical resource; second, administrative contracts strictu sensu and inter-administrative agreements, although both subject to Public Law, differ in their regime of inequality versus legal equality between parties; third, private contracts of the Administration present a hybrid regime combining Public Law in the preparatory phase and predominant Private Law in execution. This conceptual delimitation contributes to legal certainty in Chilean public procurement.