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The public construction consists of professionality, uniqueness and relationality. With extensive budgets and complex functions, the owner will authorize the design unit to take charge of the selection and the usage of materials and equipments because of insufficient labors, knowledge or experiences. If the technology and the specification of materials and equipments, which are complex and are involved with the bidding possibility of the manufacturer, are inappropriate, it is easy to drift into bid rigging. The Article 26 of the Government Procurement Act about the use of equivalents is made for the restriction of improper competitions and the preclusion of bid riggings. This regulation, of course, has its design mechanisms and its functions. However, it causes many contentions and disputes. In the public construction, it is common that the contractor applies for the using the equivalents. For the profit of construction, the regulation that it is able to use the equivalents as a substitute will cause interest conflicts among the owner, the design unit, the contractor and the supplier of materials and equipments. For the quality of construction, the unmatched information will make the owner, the design unit and the supplier are having more doubts about the motive of the contractor for using the equivalents than supports. Comparatively, the contractor also has more doubts about the motive of the owner and the design unit for designating the brand than acceptances. For the contractor, his biggest expectation for contracting the construction is reasonable profits and equal respects. And the owner’s biggest expectation for the construction is high qualities, low costs and short terms. However, lots of construction disputes are resulted from any question about the applicable laws. If without sound laws or regulations, it is possible for the contractor to face an awkward situation of his difficult operation because of many improper government measures or deficits caused by bid competition. But according to the Article 2727-2, the Principle of Change of Circumstances: ”If there is change of circumstances which is not predictable then after the constitution of the contract, and if the performance of the original obligation arising there from will become obviously unfair, the party may apply to the court for increasing or reducing his payment, or altering the original obligation.”, the conclusion of this article is a protection clause that balances unfair matters between both parties concerned if meeting unpredictable change of circumstances after signing the contract.
This essay discusses the regulations and the meanings of the Procurement Act in the contract-implementing stage for the use of equivalents from the aspect of the Procurement Act. And then we analyze the applicability of the Regulations of Equivalent to the law according to the applications range and constitution conditions of the Principle of Change of Circumstances, Civil Law. It further discusses if the increment or decrement of prices provided in the applicable Regulation of Equivalent system will cause the contractor obviously unfair and then the Principle of Change of Circumstances is applied. Through the laws, we analyze and review the Regulation of Equivalent in the Procurement Act. This essay also discusses the Regulation of Equivalent in the applicable Procurement Act from two parts including the theory (scholars’ discussions) and the practical operation of public constructions. Thus, this reserch proceeds overall reviews through the theory and the practical operation outcome. Furthermore, after the sound laws about the system of equivalents are made, it is better that the public construction can develop the procurement benefits to maintain a fair procurement.
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