Judicial Review of Contractor Selecting Decisions of Government Procurement Agency — Focus on Tendering Specifications and Qualifications of Tenderers

• Main Authors: SHIH,HSIN-YU, 施欣妤
• Other Authors: 陳愛娥
• Format: Others
• Language: zh-TW
• Published: 2019
• Online Access: http://ndltd.ncl.edu.tw/handle/3584fr

碩士 === 國立臺北大學 === 法律學系一般生組 === 107 === To regulate the procurement conducted by the tendering agency, the Government Procurement Act, regulations and criteria issued by the Public Construction Commission of Executive Yuan in accordance with the authorization of the act, has developed an integral procurement regulatory system. However, disputes of contractor selecting decisions, i.e. disputes of the invitation to tender, the evaluation of tender, or the award of contract, such as “The tendering specification or the qualification of tenderer prescribed by the tendering agency restrains competition unduly.”, “The qualification evaluation, the evaluation of tender, or the award of contract is inconsistent with the requirements of the tender documentation.”, still happen frequently in practice. Due to disputes related to “ tendering specification ”and “ qualification of tenderer ” are the bulk of disputes of contractor selecting decisions. Thus, this article focuses on the issue, introduces and reviews the legal system of contractor selecting. The government procurement is an approach that the Public (agency) cooperate with the Private to enforce administrative tasks. In response to the diversity of government procurement affairs, and the flexibility of regulations, there are so many indefinite legal concepts used in the Government Procurement Act, regulations and criteria. The agencies are given administrative discretion to make contractor selecting decisions in the law-empowered field. However, for the above-mentioned decisions, how the standard of judicial review that Judiciary should adopt? It’s also the focus of this article. This article, at first, introduces the legal system of contractor selecting in Chapter 2. In Chapter 3, refers to regulations in relation to contractor selecting under Agreement on Government Procurement (GPA) and the U.S. law, and observes how the U.S. courts apply judicial review to these contractor selecting decisions made by agencies. After examining Administrative Court’s cases in Taiwan, this article summarizes the current judicial practice, analyzes, and discusses the decision-making space (discretion) of the tendering agency for the invitation to tender, the evaluation of tender, or the award of contract in Chapter 4. At last, this article tries to propose a “reasonable” and “predictable” standard of judicial review, and several suggestions from the perspective of " Regulations in relation to Contractor Selecting " and "Judicial Review".