採購評選委員定位評析

Role Analysis of Procurement Evaluation Committee Member

蔡修毓(Hsiu-Yu Tsai) ； 李綱(Gang Lee)

《中華建築技術學刊》 7卷1期 (2010/06) Pp. 91-100

摘要

近年來司法機關開始在少數政府採購評選案件中加強司法審查密度，且對於屬外聘、無給職之學者專家，認定具刑法第10條第2項之公務員身分，而依最為嚴苛之貪污治罪條例求處重刑，嚴重影響專家學者擔任評選委員意願。本文研析相關函示規定及實務裁判結果，認為採購評選委員會僅係提供專業判斷建議供機關參酌，相關評選結果仍需簽報機關首長或其授權人員核定後方得宣布決標，由機關為最終裁量決定。在整個採購作業過程中，評選委員會並非得獨立行使職權之機關，亦非採購行為及決定得標廠商之主體，委員會所扮演角色實為機關辦理採購之輔助者，應屬於行政助手地位，評選委員不具有公法上之權力，無行使公權力之身分，非屬刑法第10條第2項之公務員。

關鍵字

最有利標 ； 採購評選委員 ； 刑法公務員 ； 行政助手

並列摘要

In recent years the judiciary not only has strengthened the density of judicial review in some cases, hut also establishes the identity of outside experts or scholars without pay as public officials regulated in paragraph 2 of article 10 in Criminal Law. The will of experts and scholars to be committee member has been seriously affected because the judiciary even seeks heavy penalty according to Corruption Criminal Law. The main purpose of this research is to explore the role of procurement evaluation committee members should be. First, we introduce the definition of public official regulated in paragraph 2 of article 10 in Criminal Law. Then, we analyze related government letters and judgments to discuss whether procurement evaluation committee members are public officials in Criminal Law. The result of comprehensive analysis of relevant literature shows that, the committee's duty is providing professional suggestion about which supplier is most suitable for the requirement of the entity. Since the entity has the power of final decision, the award of contract should not he declared unless the evaluation result has been approved by the head of the entity or the personnel authorized by the head. Thus, in the entire procurement process, the committee is neither an independent functional organization, nor the main body of procuring behavior and deciding awarding contract. The role of procurement evaluation committee is indeed the auxiliary when the entity deals with procurement, so the committee shall be an administrative assistant. The evaluation committee member is not the role to exercise public authority and doesn't have the power of public authority, that means, evaluation committee member is not public officials regulated in paragraph 2 of article 10 in Criminal Law.

並列關鍵字

The most advantageous tender ； Procurement evaluation committee member ； Public official in criminal law ； Administrative assistant