A Study on the Controversy Surrounding Confiscation and Collection of Bid Bonds in Regard to Government Procurement

• Main Authors: Chen-Hung Lee, 李振宏
• Other Authors: Zheng-Gen Chen
• Format: Others
• Language: zh-TW
• Published: 2015
• Online Access: http://ndltd.ncl.edu.tw/handle/04740947816599809419

碩士 === 國立高雄大學 === 法律學系碩士班 === 103 === A dual judicial system is currently adopted in Taiwan. Unless otherwise specified by law, the administrative court and ordinary court have jurisdiction over cases involving public law and cases involving private law, respectively, depending on their public or private law nature in principle. In regard to the confiscation of bid bonds in government procurement projects, it was resolved at the joint meeting of the presiding judges and judges of the Supreme Administrative Court in February 2004 that the supplier’s refusal to sign a contract after the award of the contract, upon which the procuring entity confiscates its bid bond, was controversy arising out of the performance of a procurement contract; as a result, this was a dispute that involved private rights rather than public law. Moreover, according to the first joint meeting of the presiding judges and judges of the Supreme Administrative Court in May 2008, the controversy surrounding the fact that the procuring entity, prior to awarding a contract, refused to return bid bonds on the ground that the contents of the tender documents submitted by different tenderers showed a substantial and unusual connection pursuant to Subparagraph 5, Paragraph 1, Article 50 of the Government Procurement Act and consequently the suppliers engaged in activities in breach of laws or regulations which impair the fairness of the procurement, as set forth in Subparagraph 8, Paragraph 2, Article 31 of the same Act, involved public law. In both of the abovementioned cases where there was controversy over the confiscation of bid bonds, the Supreme Administrative Court distinguished public law controversies from private law controversies based on the fact that whether an injunction to award contracts has been issued. Such distinction has caused the choice between administrative litigation and civil litigation for settling a dispute to be made on the basis of the issuance of an injunction to award contracts (or the effectiveness of a contract). Is such distinction an inevitable outcome of the two-level theory adopted for government procurement? Is it appropriate to come to a decision based on when an injunction to award contracts is issued (or the contract comes into effect) regardless of the reason for confiscation? It is necessary to clarify these issues as the confiscation of bid bonds affects the scope of protection of people’s property rights and the choice of remedies.