Just as individuals require a lease to carry out their activities, either for housing, offices or industries, for example; in the same way, the public administration must also lease or lease for the management of public tasks, so it is necessary to regulate this situation.
In principle, it is necessary to differentiate the role within the contract that the public entity will have.
This limitation is not made based on the definition of the lease contract, since it can also subsume the administration, from the perspective of the subject who enters into the contract, not as a person, since the capacity to be bound is given by the legal system; as an example:
The Venezuelan Civil Code (CCV, 1982) recognizes by regulating the legal personality of the Republic, states, districts, municipalities and other entities when it says “… the Nation and the political entities that compose it…”; but by the element of consent that is governed - previously to give it - with greater demands than in the case of individuals.
It is appropriate to note that the Commercial Code (COM, 1955) stipulates that "… the Nation, the States, the Federal District (today the Capital District) and the Municipalities cannot assume the status of merchant, but they can carry out acts of commerce…" (ELS parenthesis)
In the same sense, the Public Procurement Law (LCP, 2009) is the normative instrument that regulates this type of situation; however, it expressly excludes you from contests or bidding processes.
The Organic Law of the Office of the Comptroller General of the Republic and the National Fiscal Control System (LOCGRySNCF, 2010) does not prevent you from leasing or leasing assets to the different public administrations, both centrally and decentralized, only that you must comply with norms related to the budgetary aspect and the possibility of properly honoring it when caused, such as spending, for example.
The purpose of the (Organic) Law against Corruption (2003) is to regulate the types of crimes against public affairs. The Organic Law of Public Administration (2008), in addition to regulating the organization of public entities, also dictates general rules of action.
For its part, the Organic Law of Municipal Public Power (LOPPM, 2010), establishes that the executive branch of the municipality is in charge of the mayor, who is empowered to enter into and sign contracts, after fulfilling the relevant formalities and procedures.
The Organic Law of the Financial Administration of the public sector (LOAFSP, 2012) regulates the different subsystems of treasury, public credit, budget, public accounting; that are related when public entities enter into contracts.
Following the teachings of the famous teacher in Administrative Law Eloy Lares Martínez (+) in his book “Manual de Derecho Administrativo”, Ediciones Universidad Central de Venezuela, Caracas; teaches us that the notion of contract envisaged by the CCV is the same in the public domain as in the private domain, since they are voluntary agreements that create legal situations.
For Administrative Law, one of the most controversial issues is hiring by the administration, since those who favor the current that gives existence to administrative contracts arise, as well as its detractors.
An administrative contract is understood to be one where an end of public interest is pursued, where there is not an equal or equal relationship, since one of the contractors represents the general interest and the other the private one of the contractor.
In Venezuela, in recent times, it has been inclined to depart from the thesis of administrative contracts as they were known; However, the Organic Law of the Contentious Administrative Jurisdiction (2010) attracts to the special jurisdiction the actions that public entities attempt or are made against them, on the occasion of the contracts entered into by them; in fact, it stipulates that it is the competence of the contentious-administrative jurisdiction “… The claims of condemnation to the payment of sums of money and the reparation of damages caused by contractual or extra-contractual liability of the bodies that exercise the Public Power…”, of which case law of instance and of the Highest Court generates examples on a daily basis, just by visiting the website of the Supreme Court of Justice.
