A study on clausula rebus sic stantibus applied to disputes settlement for contract execution of public construction

• Main Authors: Chun-chih Tseng, 曾俊智
• Other Authors: Chih-Ming Jau
• Format: Others
• Language: zh-TW
• Published: 2009
• Online Access: http://ndltd.ncl.edu.tw/handle/385gp6

碩士 === 國立高雄大學 === 法律學系碩士班 === 97 === Before the implementation of Government Procurement Act, the building & renovation constructions as well as properties being purchased, customized, and sold in all institutions were dealt with according to the auditing rules and the stipulated procedures of “Institution Building & Renovation Construction and Procurement, customization,& Selling Property Examining Clauses”.However, as “Institution Building & Renovation Construction and Procurement, customization,& Selling Property Examining Clauses” had been in effect for over 20 some years since their publication, the characteristics and scales of procurements were getting more and more complicated, and they were no longer applicable to the actual needs, moreover, at the same time, our government was filing application to become a member of World Trade Organization, for which there was a requirement for signing Agreement on Government Procurement（GPA） ,as a result, the Government Procurement Act was announced on May 27, 1998, and to be implemented on May 27, 1999, with a total of 114 articles, including 8 chapters-General Principles, Invitation to Tender, Administration of Contract Performance, Inspection and Acceptance, Dispute Settlement Protest and Complaint, Penal Provisions, and Supplementary Provisions, as the standards and basis of working on procurement procedures in the government agencies. According to the requirements of Article 2 in the Government Procurement Act, the procurement categories are divided into 3 types-Construction Work, Property, and Labor, however, there are needs to work on the contract changes, and to ask for budget additions/cuts during the process of contract fulfillment due of factors such as considerations on policies, problems of actual implementations, amendments on decrees, feedbacks from public opinions, and needs of working units; moreover, for some situations with requirements on the contract changes, in order to avoid any impressions of benefiting contractors to the outsiders, the public personnel in the government agencies often adopt strict and nearly harsh standards for dealing with the changes on contracts, in turn, there are numerous incidents of disputes between the government agencies and the contractors; furthermore, as there are many reasons for the changes on contracts, and contract articles are set up in either simplified or complicated formats on the contract changes in the government procurement contracts, thus, on the basis of Clausula Rebus sic Stantibus, our study is aimed to make research and investigation in the government construction procurement contract change practices and the disputes incurred there of on the execution of contracts.