Investigation of the Return of Bid Bond Based on Attributes of Tendering Party

• Main Authors: Hsieh,Jen-Yao, 謝任堯
• Other Authors: Jseng,Pin-Chieh
• Format: Others
• Language: zh-TW
• Published: 2014
• Online Access: http://ndltd.ncl.edu.tw/handle/28367353884604053063

碩士 === 國立中正大學 === 財經法律學研究所 === 102 === According to legal system of Taiwan, a tendering entity follows the tendering procedure to choose the contracting party. The purpose of such procedure is to establish fair and transparent procedure and to further ensure efficiency and effectiveness. Said tending procedure is also applicable to the private tendering. In the case of a private tendering, the private tendering can refuse to contract with the winning tenderer according to the autonomy principle of private law but is liable for any damages incurred from the bidding if the winning tenderer is without negligence or in compliance with the good faith principles. However, in the case of a public procurement, a tendering entity is obliged to enter into a contract with the winning tenderer. If no contract is agreed upon, such entity is not liable for any damages incurred from the bidding even if the winning tenderer is without negligence or in compliance with the good faith principles. While a tendering entity can simply return the bid bond without any legal liabilities, the existing laws do not provide sufficient protections to the rights and interests of tenderer in the tendering process. The goal of the thesis is trying to answer the above-mentioned questions based on the legal natures of different tendering entities. We researched the following conclusions about the differences of tending process, return and recovery of bid bond. Past researches of bid bond issues focus on the parts of government procurement and seldom discussed the issues regarding different tendering entities and the legal natures of bid bond. Through literature reviews and in depth analysis, we find procedures of returning bid bond differ due to the various characterizations of a tendering entity in a process, which can be categorized as (1) a supplier, (2) a demander, or (3) a neutral. In the first case, for example, a tendering entity offers to sell/rent valuable resources, such as lands or real estates. In the second case, for example, a tendering entity offers contracts on government purchasing, construction works, property leasing, etc. A tendering entity in the third case, for instance, is to sell a debtor’s property to satisfy a creditor’s claim. A tendering entity, acting as either a supplier or a demander, is deemed as a party to the contract but considered as a third party when acting as a neutral. When a tendering entity acts as a supplier, it can profit by selling therefore should assume more obligations and responsibilities. Additionally, it should not intervene the market with its public authorities. On the other hand, a tendering entity, acting as a demander, is considered more vulnerable and therefore allowed the intervention of its public authorities. When acting as a neutral, since a tendering entity does not assume any obligations or responsibilities, the protection standard should be set based on the party offering the tender. Key word: bid bond、tendering entity、attributes of tendering party、two-stage theory、return bid bond、recovery bid bond