A Study on Dispute Settlement System of Protest and Complaint Under the Government Procurement Act

• Main Authors: LU,MING-HUI, 呂明惠
• Other Authors: ZHOU,JIA-YU
• Format: Others
• Language: zh-TW
• Published: 2017
• Online Access: http://ndltd.ncl.edu.tw/handle/99f7hr

碩士 === 中國文化大學 === 法律學系碩士在職專班 === 105 === Government procurement is an administrative assistance in “private economic admin-istration”, and should be regulated by the private law. However, because government pro-curement is carried out based on the budget passed by the legislature, procurement procedures need to be subjected to more restrictions. Unlike procurement in the private sectors which can claim “autonomy of private law” and “freedom of contracting,” arbitrary or unjustified dis-crimination of governmental procurement shall still be constrained by the principle of equality under Article 7 of Constitution. Therefore, governmental procurement is obligated to build up an open and fair procurement procedures, and Government Procurement Act shall establish the systems of protest, complaint and dispute settlement to conform government procurement agreement and establish efficient dispute settlement mechanism. Nevertheless, due to the in-definiteness of the current acts, controversial disputes may occur such as invitation to tender, evaluation of tender, award of contract, protest settlement results, the judgement of complaint review, and the applicability of the Administrative Procedure Law. This study argues it is im-perative necessary to clarify the legal nature of Government Procurement Act so as to confirm the jurisdiction and the provision of right relief, the applicability of the Administrative Pro-cedure Law, the basic right of state compensation, and the legal interpretation and its applica-bility. This study is focus on the research of the government procurement dispute settlement especially in protest and complaint which are closely related to the practical situation of the organizations. Therefore, the research methods of the study first investigate the legislative in-formation of regulating (Government Procurement) Act, legislators’ intention and the goals of the regulation. Second, the research questions are discussed based on domestic literature, the interpretation of the Procurement and Public Construction Commission of Executive Yuan, opinions of the ordinary court and the administrative courts, as well as the dispute settlement of the Government Procurement Act. In addition, Government Procurement Agreement and the relief procedure of German government procurement are used as a reference for our pro-curement systems. The full study is organized into five chapters; first, the study introduces the research mo-tive and purpose, the scope of research and the research method. In the second chapter, the study first defines the legislative purpose of government procurement and the implementation principles, and then discuss the legal nature of government procurement behavior. In the third chapter, the study explores dispute settlement protest and complaint of government procure-ment, results of dispute settlement, the legal nature and effectiveness of complaints review decision, and jurisdiction of relief and claim for compensation. In the following chapter, the study uses the Government Procurement Agreement and the relief procedure of German gov-ernment procurement as reference for our procurement systems as well as examines whether there is any sufficient and important reasons for discrimination and the protection of litigation right of complaints system which is limited to reaching the threshold for publication. Finally, the study concludes in the last chapter with the research findings, pointing out the correction problems of dispute settlement protest and complaint and suggestions for future amendment.