我國政府採購法之研析－以近年修法與實務爭議為核心

政府採購行為包羅萬象，涉及工程、財物及勞務，其數量種類龐雜，金額至鉅；一國的政府採購制度如設計良好，不僅可促進公共部門效率，亦可建立公民信任。早期政府採購法制並不健全，公部門在辦理採購並無專責的採購法規作為規範依據，導致機關採購人員與廠商間均無所適從，爭議及弊端頻傳；此外，在全球化的衝擊下，我國為帶動產業整體發展，勢必得邁向國際社會，參與國際經濟事務，爰積極申請加入世界貿易組織（World Trade Organization；WTO）。在前揭因素影響下，乃催生出一部政府採購專法－政府採購法。政府採購法於1998年公布施行迄今已逾二十載，在時代巨輪不停轉動下，政府採購態樣亦呈現複雜多變之姿，加上各界對採購市場秩序迭有期待，期間發現相關規範如有窒礙難行或未盡完善，不是進行探討或解釋適用，就是進行修法。舉例而言，近年來陸資足跡踏遍全球，各國為防止其入侵，紛紛以國家安全為由訂定限制規範，我國政府採購法亦於2019年修法增訂相關規範，惟是否能發揮效果仍待檢驗；又如招標爭議處理制度長期存在的異議功能不彰而衍生之存廢疑義，以及對於未達公告金額以上採購異議處理結果不服，廠商後續尚無救濟之管道，其訴訟權是否獲得保障？另外，針對廠商停權事由的要件爭議、停權應踐行之正當法律程序爭議及停權的管制手段及時效裁量爭議……等，例多不可勝舉。因政府採購法的相關爭議，於實務運作上屢遭各界批評不斷，故本文擬重新檢視政府採購的建構歷程，再聚焦於前揭列舉之「涉及國家安全之採購」、「招標爭議處理制度」、「停權制度」相關爭議，透過文獻蒐集、主管機關函釋、法院裁判案例分析暨外國法制比較，瞭解相關制度是否確有其成效，抑或仍有適用上問題，俾利作為實務運作之參考。

關鍵字

政府採購；涉及國家安全之採購；異議；申訴；停權制度

並列摘要

Government procurement cases are all－encompassing,involve engineering, financial matters, and services, and are vast in quantity, type, and monetary amount. If a country's government procurement system is designed well, it can not only promote public sector efficiency, but also establish public trust. The early legal system governing government procurement was incomplete, and the public sector had no specialized procurement laws to provide guidance. As a result, procurement personnel and vendors had no guidelines to follow, and disputes and abuses proliferated. On top of that, under the impact of globalization, Taiwan had to join international society and participate in international economic affairs as it strove to stimulate its overall industrial development, and Taiwan also applied to join the World Trade Organization. Under the impact of these factors, a dedicated procurement law—the Government Procurement Act—was born. More than 20 years have gone by since the public issuance of the Government Procurement Act in 1998, and with the passage of time, government procurement matters have continued to grow increasingly complex and varied. In addition, society has repeatedly voiced expectations of greater order in the procurement market. Throughout this period, when it was found that relevant regulations were impractical or flawed, the government either attempted to explore or explain their applicability, or implemented legal amendments. As an example, with Chinese investment making global inroads in recent years, various countries have drafted restrictive measures on the basis of national security in order to prevent the excessive influence of Chinese money. The 2019 amendment of Taiwan's Government Procurement Act similarly imposed restrictions on Chinese investment, but whether these curbs will be effective remains to be seen. In addition, there has also existed long-term doubt concerning the effectiveness of the bid request dispute resolution system, including debate on whether to keep or discard the system. In particular, vendors who not accept procurement dispute handling results in cases when the procurement amount does not exceed the announced threshold have no channels for redress, and it is uncertain whether their right to litigation is protected. Moreover, there have been countless cases of disputes concerning the elements of vendor exclusion, disputes concerning the appropriate legal procedures for implementation of exclusion, and disputes concerning judgment of exclusion control sections and duration. Motivated by the incessant criticism that the handling of disputes involving the Government Procurement Act has received from various parties, this paper seeks to re-examine the history of the establishment of government procurement regulations, and then address disputes concerning the aforementioned issues of "procurement involving national security," "the bid request dispute resolution system," and " exclusion mechanism." This paper relies on the collection of literature, explanatory letters from the competent authority, analysis of court judgments, and comparisons with foreign legal systems to get a better understanding of whether relevant systems are truly effective, or whether there exist problems with applicability, in order to provide a reference for practical work.