The administrative contract is one of the most prominent tools of ‎public administration in regulating public facilities and providing services. It ‎differs from civil contracts in that it is subject to the rules of common law ‎and contains exceptional conditions that grant the administration special ‎powers. In Iraq, the concept of the administrative contract remains ‎shrouded in ambiguity due to the absence of clear legislative texts and the ‎indecision of the judiciary in its interpretation.‎<br />The Concept of the Administrative Contract<br />A legal agreement concluded by an administrative body with another party ‎with the aim of managing a public facility or providing a public service. It is ‎subject to the provisions of common law and contains conditions ‎uncommon in civil contracts.‎<br />Basic Conditions<br />‎-‎ One of the parties must be an administrative body.‎<br />‎-‎ The contract must relate to a public facility.‎<br />‎-‎ It must contain exceptional conditions (such as late payment fines, ‎unilateral termination of the contract).‎<br />‎-‎ It must be concluded in the common law manner (such as a tender ‎or direct invitation).‎<br />Legal Regulation in Iraq<br />‎-‎ Lack of Explicit Texts<br />‎-‎ There is no unified administrative law in Iraq that precisely ‎defines the administrative contract.‎<br />‎-‎ The Iraqi judiciary deals with administrative contracts within the ‎jurisdiction of civil courts, not the administrative judiciary, despite ‎the establishment of the Council of State pursuant to Law No. 71 ‎of 2017.‎<br />‎-‎ Important Judicial Decisions<br />‎-‎ Court of Cassation Decision No. 2566/H/1966: An administrative ‎contract is one that aims to manage a public facility and is ‎concluded under special conditions.‎<br />‎-‎ Decision No. 158/H/1966: It affirmed that contracts containing ‎unusual conditions and concluded under the common law method ‎are considered administrative contracts.‎<br />Methods of Concluding Administrative Contracts<br />According to Instructions for the Implementation of Government ‎Contracts No. (2) of 2014, the methods include:‎<br />‎-‎ Public tender.‎<br />‎-‎ Direct invitation.‎<br />‎-‎ Single bid.‎<br />‎-‎ Direct contracting.‎<br />‎-‎ Direct purchasing from reputable manufacturers.‎<br />Researchers have criticized the multiplicity and complexity of ‎tendering methods and have proposed granting the administration greater ‎freedom in contracting, especially in light of technological advancements.‎<br />Administrative Authority in Contract Implementation<br />‎-‎ Oversight and Guidance: The administration has the right to ‎supervise contract implementation.‎<br />‎-‎ Imposing penalties: such as late payment fines or contract ‎termination.‎<br />‎-‎ Amending terms: The administration may amend some contract ‎clauses in accordance with the public interest.‎<br /><br />The subject of administrative contracts is one of the administrative ‎law topics shrouded in ambiguity and unclear principles, both at the judicial ‎and legislative levels. This is because the Iraqi judiciary's position on all ‎administrative contract issues is fluid and unstable. Anyone who studies ‎the decisions of the Iraqi Court of Cassation will clearly find that the ‎judiciary has not settled on established rules and principles that define ‎administrative contracts and the criteria that govern them. At times, it has ‎adopted the rules of private law, a view confirmed by decisions of the Iraqi ‎Court of Cassation, including Decision No. 528/H/1959 dated April 14, ‎‎1959, which stated: "The contract concluded between the Director of ‎Endowments of Mosul and one of the contractors to establish a public ‎library is subject to the rule that the contract is the law of the contracting ‎parties, and this rule governs the obligations and duties arising from each." ‎Sometimes, the rules of administrative law and private law are applied ‎together to administrative contract disputes, such as Court of Cassation ‎Decision No. 2566/H/1966 dated 2/2/1967, which states: ((The contract ‎concluded between the two parties applies to the description of an ‎administrative contract because the administration intended to manage a ‎state facility and followed the path of tendering with special conditions. ‎The General Authority of the Court of Cassation ruled that damage is ‎presumed to have occurred in the administrative contract, and that this ‎contract applies to the description of it as a commercial contract because ‎the merchant, by his undertaking, was aiming for profit and speculation. ‎When this was the case, the provisions of Article (107) of the Iraqi ‎Commercial Law stipulate that if the contractor specifies a lump sum of ‎compensation, the court may not rule for less...)). The Court of Cassation ‎has also relied on the rules of administrative law to determine the ‎characteristics of the administrative contract, and this is clear in Court of ‎Cassation Decision No. 158/H/1966 dated 7/2/1966. Where it was stated: ‎‎((The administrative contract concluded by the government with the ‎distinguished company is an administrative contract because it aims to ‎manage a public facility of the state’s facilities and contains unusual ‎conditions, and the government operates in it according to the method of ‎public law and is subject to the rule of laws and regulations. Such a ‎contract is not concluded except with the approval of administrative ‎bodies...)). Another decision of the Court of Cassation in case numbered ‎‎42 and 654/Human Rights/65 dated 7/25/1965 stated: ((And since this ‎contract was concluded by the administration with the contractor for the ‎purpose of establishing a public facility, using the method of public law and ‎with unusual conditions of conducting a public tender and stipulating ‎insurance and late payment penalties, it is an administrative contract ‎distinct from civil contracts governed by private law because these ‎contracts aim to achieve greater interests that transcend the private ‎interests of individuals)) From the totality of these decisions, it becomes ‎clear to us that there is no specific principle regarding administrative ‎contracts. Especially since our legislator has not granted the Administrative ‎Court jurisdiction to hear disputes related to these contracts, despite the ‎fact that these contracts are administrative contracts, aiming to achieve ‎public interests that transcend the interests of private individuals. We can ‎say that despite the importance of administrative contracts in Iraq, the ‎absence of clear legislative regulation and the failure to subject disputes ‎related to them to the administrative judiciary weakens their effectiveness. ‎It is recommended to amend the relevant laws and expand the jurisdiction ‎of the Council of State to include disputes related to administrative ‎contracts, in order to achieve justice and enhance the efficiency of public ‎administration.‎<br />Mustaqbal University<br />The first university in Iraq