The limit of discretion in Government Procurement Act

• Main Authors: Chao-Ming Wang, 王昭明
• Other Authors: Ming Shiou Cherng
• Format: Others
• Language: zh-TW
• Published: 2009
• Online Access: http://ndltd.ncl.edu.tw/handle/15552813463138675678

碩士 === 東吳大學 === 法律學系 === 97 === The Government Procurement Act has undergone four amendments since its announcement on May 27, 1998 and its enforcement on May 27, 1999. The development of the procurement system in Taiwan has been increasingly mature. With respects to the characterization in law, the common understanding is that government procurement should apply the two-phase theory (Zweistufentheorie), and scholars even consider that the design of the Government Procurement Act after its amendment on February 6, 2002 could be considered as a two-phase legal relationship explicitly prescribed by law. Although the process of invitation to tender, award of contracts, and contract performance in a government procurement may be demarcated by the award of contracts, where the front phase is defined as public law relationship and the back phase is defined as private law relationship, there should be a more precise basis to decide the boundary between the front and back phase, so that the entrance court may be appropriately chosen when disputes arise. This paper will hold the moment when an entity’s intention to award a contract reaches the supplier as the basis for deciding the moment that a contract forms. On the other hand, while the Government Procurement Act has vested procurement entities more discretionary authority after its 2002 amendment, in reality the competent authorities and superior entities still effectively restrict the acts of procurement entities by various legal orders or administrative rules. From the perspectives of procurement entities, the administrative control measures adopted by superior entities for the purpose of abuse prevention impose additional restrictions which the Government Procurement Act does not provide and is adverse to the procurement efficiency. After summary, this paper finds that, with regards to the private law acts in the back phase of a procurement process, it is still possible for individual decisions made by the entity to the supplier to be a disposition with the nature of sovereignty in public law. Therefore, administrative rules which should aim at regulating internal administrative acts and are internal regulations in nature are also adopted as a trial basis by general courts and therefore with external effect. Under the above analysis, although individual acts conducted by entities in the period of contract performing is defined as private law acts, their contract freedom is not 100%, but a limited one subject to the principle of “administration according to law”.