政府採購行為之程序瑕疵及其法律效果

• Main Author: 陳乃彝
• Other Authors: Chia-Chi Chiang
• Format: Others
• Language: zh-TW
• Published: 2016
• Online Access: http://ndltd.ncl.edu.tw/handle/71969866828511949597

碩士 === 國立中正大學 === 法律系研究所 === 104 === The Government Procurement Act is enacted to establish a government procurement system that has fair and open procurement procedures, promotes the efficiency and effectiveness of government procurement operation, and ensures the quality of procurement. The subjects of GOVERNMENT PROCUREMENT ACT are government, public school or government-owned enterprise and any juridical person or organization qualified in articles 4,5 of this ACT, which thereafter are all called tendering entity. Due to the tendering entity is different from the subject of Private Procurement, the tendering entity should be supervised by Public laws. That is, any procurement administrative action, procurement decision or protest disposition conducted by tendering entity are identified with administrative disposition. And the administrative disposition has a great influence on tenderers and winning tenderers. In view of fairness and publicity of government procurement, the procurement administrative action must conform to administrative procedure. With the development of society, the two-phase theory is the major opinion adopted by the court judicial judgments and decisions. In other words, Government Procurement Act is an administrative action procedure before signing procurement contract, and the action procedure has the same property of Administrative Act for the tendering entity which achieves administrative purposes, making the purchase. Administrative Act specifically relates to the organization, function and procedure of Executive Power. Theoretically ,the procedure administrative action before signing procurement contract is a procedure guarantee, also applicable to the Administrative Procedure Act. Therefore, when Procurement Act and Administrative Procedure Act arise conflict relationship, it’s necessary to discuss the questionable point about subject, object, subordinated and range. The tendering entity proceeds a series of procedures from the beginning to notify the decision to the tenderers and winning tenderers, and then end the procedure. If the procurement has procedure flaws because of neglect, deliberate misconduct, failure to open notice, or the prohibited extra contact, the flaws should be corrected and removed. If we can’t remove the defects, we’ll impair the benefits of tenderers and winning tenderers.. Therefore, it is really necessary to research about how to preserve procedure justice and protect procedure right, thus reaching the fairness and legitimacy, when dealing with the dispute about the procurement procedure and contract. Keyword: Procurement, two-phase theory, Procedural defects, Legal effect, Procedural actions, Theory of Protective Norms