政府採購法招審決爭議之暫時權利保護：以歐盟採購救濟指令為借鑑

我國政府採購法之制定賦予原本救濟無門之招審決爭議救濟途徑，並且於西元 2002 年之修法後，確立招審決標之爭議應依異議、申訴程序。然而，縱使獲得過去所無之救濟機會，廠商仍無法獲得實質有效的保障。首先，採購救濟之暫時權利保護得分為政府採購法之暫停採購程序及行政訴訟法之停止執行，但兩者皆因為實務過於嚴苛的見解導致廠商實際上難以透過暫時權利保護暫停採購程序（阻止採購契約成立）或契約履行。其次，暫時權利保護的缺乏進而使救濟廠商難以成功獲得第一次權利保護，失去獲得締結採購契約之機會。尤有甚者，行政訴訟與政府採購之相容性亦啟人疑竇。然而以上的問題長久以來皆未被實務或立法者之改善。反觀歐盟，其於 1989 年制定首部政府採購救濟指令後，亦發生與我國類似的問題。亦即，歐盟在當時同樣欠缺暫時權利保護；甚至由於部分成員國對於契約嚴守原則過於堅持，一旦採購契約成立以後，廠商所得提起的救濟僅剩下損害賠償。在經過歐洲法院兩則關鍵之判決後，採購救濟的困境稍獲改善。儘管如此，歐洲執委會仍然辨識出採購救濟之最大的兩個問題：違法直接決標及競逐簽約，並且欲促使採購救濟之改革。於 2007 年，歐盟對先前之採購救濟指令進行修正且明文化兩則歐洲法院之重要判決，提出兩個重要的改革方向：強化契約前救濟及制定具嚇阻力之懲罰，亦即暫停期間、自動停止及契約無效等。在新制施行後，儘管仍有些許問題，歐盟採購救濟之成果斐然。對照歐盟之發展歷程，我國處於類似歐盟 2007 年改革前之狀態。因此，本文認為我國應引進暫停期間及自動停止，同時為降低強力暫時權利保護所可能帶來之衝擊，應作出相應之改革。例如，限制廠商契約成立後之救濟，僅在例外情形得請求宣告契約無效，以及改善救濟程序之耗時。

關鍵字

政府採購法；暫停採購程序；停止執行；暫時權利保護；採購救濟指令

並列摘要

The Government Procurement Act was implemented in 1999 and substantially amended in 2002. After the amendment, for disputes arising out of the invitation to tender (pre-contractual disputes), a tender may file a protest or complaint according to Article 75 and 76 of The Government Procurement Act. Tenders may even further appeal against the complaint decision to high administrative courts. A complete review procedure seems to have been established for disappointed tenders. However, the review procedures prescribed in The Government Procurement Act and Administrative Litigation Act are not effective enough to provide disappointed tenders with complete legal protection, especially due to deficiencies in interim measures. This thesis points out that successful cases applying for interim injunction are rare because of the Administrative Courts’ unreasonably restrictive interpretation of regulation concerning interim measures, which is even worse in procurement cases. Without interim measures suspending the procuring procedure and the performance of the contract, possibility of disappointed tenderers obtaining primary legal protection, for example setting aside an illegal decision by a procuring entity, would decrease dramatically. Therefore, disappointed tenderers failing to apply for interim measures have no choice but to turn to secondary legal protection (the award of damages) and lose the opportunity to obtain the award. This has been a long-lasting issue since the promulgation of The Government Procurement Act in 1998. On the other hand, there has been a similar issue in the old procurement remedy directives of The European Union, which, however, was solved by the introduction of the new procurement remedy directives. The old remedy directives allowed member states to provide that, after the conclusion of a contract following its award, the powers of the body responsible for the review procedures shall be limited to awarding damages to any person harmed by an infringement, which was adapted by most member states owing to pacta sunt servanda (sanctity of contract). Furthermore, the malfunction of interim measures preventing procurement contracts from being concluded or performed in procurement cases led to the situation that once the contracts were concluded, infringements in procurement procedure could no longer be corrected and disappointed tenders could only claim for damages. These problems were identified as “illegal direct award,” “race to signature” and “inherent limits of damages action.” However, aimed at solving the identified problems, the new remedy directives introduced standstill period, automatic suspension and ineffectiveness in order to strengthen pre-contractual remedies and sanction and deter infringement of procurement directives. With the introduction of the new system, an effective and rapid review procedure has been established to protect disappointed tenders and correct alleged infringement. The issue in Taiwan is similar to the “race to signature” that occurred The European Union. To improve the pre-contractual remedy system in Taiwan, this thesis will argue that standstill period, automatic suspension and ineffectiveness should be introduced into The Government Procurement Act. In addition, corresponding adjustments should be adapted in order to reduce impact due to standstill period and automatic suspension.