Effects of Dispute Resolution Due to Amendment of Government Procurement Act Article 85-1

• Main Authors: Ben-Yuan Hung, 洪本原
• Other Authors: Sheng-Min Wu
• Format: Others
• Language: zh-TW
• Published: 2008
• Online Access: http://ndltd.ncl.edu.tw/handle/27252044405676839197

碩士 === 朝陽科技大學 === 營建工程系碩士班 === 96 === After the amendment, the Paragraph 2, Article 85-1 of Government Procurement Act provided that the construction dispute shall be settled through the mechanism of mediation and arbitration in sequence (what is called “Med-Arb”). In the past, the authority hadn’t belief and was also unwilling to arbitrate because of arbitrator agentization, unfair arbitration awards, and excessively severe conditions for the revocation of arbitration awards. In the process of conclusion of the mediation, it is necessary for both parties to make an agreement and concession. However, the public servants are afraid of being fallen into a profit-making swamp so that they will more like to avoid agreeing to accept the mediation suggestion. In practical cases, the contractor cannot look for further relief according to the Article 85-1 of the Government Procurement Act as amended because the authority takes uncompromising attitudes in itself and the mediation committee is unwilling to make a mediation suggestion or project due to too-big differences between both parties. Besides, if the contractor regarded the mediation as a tool of entering the arbitration process, dealt with the other party courteously but without sincerity in the mediation process only in search of a mediation suggestion or project, and devoted every effort to follow-up arbitration based on the Procurement Act as amended, then it is unavoidable to have a doubtful point of “Insincerely Playing a Part in Mediation but Actually Seek an Arbitration”. With the data collection, this paper analyzes and studies such documentary contents as various theories and empirical cases. In order to dissect the problems faced by the “Med-Arb” system, we will not only understand its applicable scope and the doubtful point resulted from its implementation but also analyze & study the status or position of the public servants in the authority. For the result, this research provides the analysis of three essential elements for the “Med-Arb” system and also suggests both of the authority and the contractor shall take positive and active attitudes toward this system to avoid the mediation system from being toolized and distorted. This paper suggests to modify the Regulations Governing the Mediation for Dispute Regarding the Performance of the Contract for Government Procurement to provide a supporting measure for the Med-Arb system to the legislation institution and other organizations for their references, making the “Med-Arb” system be broadly trusted and accepted in conformity with the intention of Article 85-1 of the Government Procurement Act as amended.