Document Type : Original Article
Highlights
With the aim of solving the problems of traditional assignment of projects to contractors, a system was launched to solve this problem. But according to lawyers, in this situation, the will of the parties will be flawed. This research was carried out by analytical-descriptive method and intended to answer the question that what are the defects of will in online contracting contracts from the point of view of administrative law? It was concluded that the lack of an executive document for the establishment of the online system has caused that no legal obligations have been placed on the shoulders of government and governmental bodies, and therefore, in the state of semi-cooperation with this system, the organizations that only have the right to issue licenses in parts of the project, somehow will They become parallel with the main trustee. The confusion between the two establishments of "inquiry" and "license" and the lack of administrative obligation to respond to the inquiry and its other challenges have provided the basis for the contractor to be selective. Therefore, it is suggested that while preparing the legal-executive document for handing over in the online system, all the country's organs are required to attend it and the obligations of each organization regarding the inquiry should also be clearly mentioned, while the authority of that organ is only limited to issuing a license and after that not have the right to interfere more in the project. At the same time, if necessary, he considered damages for the contractor who suffered losses due to factors beyond his control.
Today, electronic systems have replaced the old and traditional procedures and have many advantages compared to the outdated methods of the past. Today, governments in all parts of the world have put their policies on electronicization, and governments that are indifferent to it will be lagging behind in the field of international relations. The discussion of the electronicization of the government of the Islamic Republic of Iran became serious in the years 1384-1388 and many successes were achieved in this period. Today, most of the government services are electronic and the cases that are still not done in this way are criticized. In 1396-1400, the discussion of the electronic transfer of government transfers to the private sector was raised with the aim of eliminating rents in this area. Today, there is a comprehensive system of tenders and auctions in the country, where all auctions and tenders are done online in this system.
In the online system, the list of all government tenders and auctions is placed on the internet system and qualified natural/legal persons who have received tokens are allowed to be present in the system and on a certain date while announcing their bid prices, in the auction/tender They will attend. This system was launched with the aim of eliminating the transfer mafia, in order to eliminate the monopoly in traditional transfers. After winning the assignments, the contracts are concluded completely online and all the procedures of obtaining inquiries and permission and finally the assignment are done online.
Pasban (2018) found the weak point of Iran's administrative developments to be lack of comprehensiveness, and in his opinion, it is impossible to eliminate traditional procedures in the country. Darabi and Hedavand (2019) by describing the effect of the contract form in the country's administrative law system, considered the non-specialized preparation of these documents as one of its weak points, which is still visible in the process of online government services. The governments of France and America have been considered as the most successful governments in the electronicization of government services. Proper coordination between departments and effective presence in the process of handovers has been considered as a factor in eliminating will defects in online contracts.
Unfortunately, the mentioned system could not include all the government departments in this procedure and the contract forms were designed in a simple and non-specialized way and were placed in the system as a positive factor of the contract. In fact, the trustee and the employer, while declaring their satisfaction, put the requirement of the contract in the system, which depends on the will of the contractor to complete the contract. At the same time, all the wills involved in the contracts are not mentioned in the contract.
In this research, the defects of will in the online contracts of government assignments are investigated, which is unprecedented in the administrative law system of Iran and is one of the innovative aspects of the current research.
The research question is that the factors of will defects in the online contracting contracts of the country; And what are the solutions to solve these problems? The aim of the research is to answer this question.
It is assumed that the failure to complete presence in the online system, parallel wills in public property and lack of specialized regulation of contracts are the most important factors affecting will defects in online contracting contracts, which can be fixed if the law and comprehensive bylaws of the online system are established.
In this research, first the concepts and basics of the research are examined, then the challenges of online assignment are examined, and then parallel wills in public property are examined. In the following, while examining case examples of will defects in contracting contracts, a suggested model for its correction is presented.
