Judicial Review of the Administration’s Conditions for Selecting the Contracting Party

Abstract

Abstract: This study addresses judicial review of the administration’s conditions for selecting its contracting party, as one of the precise issues within the field of administrative contracts, due to its connection with the protection of public funds, the guarantee of legality, and the realization of the public interest on the one hand, and with respect for the principles of competition, transparency, and equal opportunity on the other. The importance of this topic lies in the fact that, although the administration enjoys exceptional powers and privileges in the field of administrative contracting, such powers are not absolute; rather, they remain subject to administrative judicial review whenever they relate to decisions of award, exclusion, tender cancellation, or debarment from participation. The study aims to clarify the limits of judicial review over the administration’s conditions and procedures in selecting its contracting party, and to examine the adequacy of the criterion of the best financial terms, while also highlighting the importance of technical criteria in ensuring the proper and regular functioning of public services. The study adopts the descriptive-analytical method through presenting and analyzing the legal texts regulating administrative contracts, in addition to the comparative method by balancing the position of the Iraqi legislator with that of the Egyptian legislator and relevant judicial applications. The study concludes that judicial review constitutes a fundamental guarantee against administrative arbitrariness and abuse of power, and that the criterion of the lowest price alone is insufficient unless coupled with technical competence. It also emphasizes the need to strengthen reasoning and transparency and to develop the legal framework governing grievance and appeal mechanisms in a manner that achieves the best value for public money and enhances confidence in public procurement.