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The Debarred Mechanism of Tendering
in the Government Procurement Act
Author’s Name：Tsai, Der-Ming
Advisor’s Name：Hsu, Teng-Ko
Department ＆ College：Department of Law, College of Social Science
SUMMARY
Where a procuring entity finds that a supplier has committed serious offenses or has significant deficiencies in performance of any substantive requirement or obligation under a contract, the procuring entity shall notify the supplier of the facts and reasons, and indicate with a note in the notification that it will be published on the Government Procurement Gazette according to Article 101. A supplier whose name has been published on the Government Procurement Gazette pursuant to the circumstances in Article 103 is prohibited from participating in tendering in one year or three years. If a supplier has any objection, the rules of dispute settlements are mentioned in Article 102.
The purpose of the mechanism is in order to avoid further harm to other procuring entities and protect the public interest. The thesis is named the debarred mechanism of tendering because the noun of the debarred supplier appears on the Government Procurement Gazette and the legislative reasons in Article 103 paragraph 2.
Since the implementation of this mechanism, a lot of disputes have been arising due to the lack and shortage of the law, in particular on the identified standards for the facts and circumstances. The disputes are mostly the subject of contractual obligations currently. Once a supplier is published on the Government Procurement Gazette, the loss of profits during the period of the debarred participation in tendering is very difficult to calculate and return. So the related problems are worth to discuss and resolve. The Agreement on Government Procurement has been updated on March 2012, and it includes the new article is related to the conditions prohibited from participating in tendering. In order to connect this new article, the Procurement and Public Construction Commission completed the revised draft articles for the Government Procurement Act on September 2012.
The thesis discusses and comments the lack and shortage of the law according to the appealed cases in the administrative courts and the revised draft articles. Then the thesis makes the suggestions on the revised articles and the executed procedure of the debarred mechanism of tendering to the procuring entities, the suppliers and the administrative courts for reference.
Key words: Government Procurement Act, Debarred Supplier, Procuring Entity, Government Procurement Gazette, Procurement Contact, Contractual Obligations, Published Notification, Prohibited from Participating in Tendering
INTRODUCTION
The thesis firstly introduces the legal principle of contract on administrative laws, and then analyzes the requirements in the Government Procurement Act as the legal principle on administrative law. The legal principle of contract on administrative law is a main theory to discuss any problems in the thesis. To resolve the core of disputes should use the principle of contract on administrative laws because the theory of the civil law can not resolve all the procuring problems.
The procedure of the debarred mechanism of tendering is introduced, including several stages, to identify for the facts and circumstances, to publish notification, to sue appeals, to prohibit from participating in tendering and so on. The relevant legal problems are discussed and commented.
MATERIALS AND METHODS
The thesis refers to the journal articles, the master's degree studies, the academic books of administrative laws, the information of the Procurement and Public Construction, as well as the judgments of the administrative courts and so on. The thesis collects the related information, then organizes, summarizes, discusses them. Finally the thesis makes a conclusion and some suggestions.
CONCLUSION
The procurement contacts are different from the contracts on the civil law. The Government Procurement Act is one of administrative laws. So the contractual behaviors of procuring entities and suppliers should be obeyed and explained under the structure of administrative laws. The Constitution and administrative laws have a priority to be applicable.
In addition to the provisions of the debarred mechanism of tendering shall be upgrading to make clearer, the identified standards for the facts and circumstances should be set. A procuring entity considers whether it is a serious circumstance in accordance with the comprehensive considerations including the proportion of the amount of the contract, causing the damage to the public interest, whether the man whom subjective intent, whether the violation of the principles of integrity, adverse effects on the quality and safety of the public works, and the impact on the fulfillment of contractual purposes, etc. As for the responsibility attributable to a supplier, it should be an attributable responsibility to a supplier more than an attributable responsibility to a procuring entity or a design unit. Administrative acts shall be performed the one with the least harm to the rights and interest of the supplier shall be adopted. The principle should also be applicable to identify for the facts and circumstances, to publish notification in the debarred mechanism. An administrative authority shall take into consideration all circumstances advantageous and disadvantageous to the supplier to the administrative procedure in its charge. In this way, the profits of a supplier can be protected indeed.
If a supplier who deems that the notification made by a procuring entity according to the preceding Article is in breach of this Act or untrue may file a written protest to the procuring entity. A supplier does not abandon to claim the right to stop the execution of prohibition from participating in tendering because the loss of profits is very difficult to calculate and return. The administrative court should strictly examine whether the loss of profits is very difficult to calculate and return. Once a published notification is illegal after the judgment of the administrative court, the loss of profits to a supplier should be claimed from the country.
The debarred mechanism of tendering is necessary and important to avoid further harm to other procuring entities and protect the public interest. By discussions and suggestions herein, I hope that the mechanism is more perfect in the future.
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