공공조달계약과 현행 부정당업자 제재제도의 문제점 및 개선 방안에 관한 소고

Abstract

Even though public institution including central and local government when making contracts shall guarantee justice of the contract performances in public procurement contract area, their superior position is practically acknowledged through ‘Act on the contract in which state is a party’(hereinafter ‘State Contract Act’) and consequently they have a right to impose a sanction against a part to the contract not to participate in the government contract procedures, that is so called the restriction on qualification for bidding participation. It seems naturally reasonable that the public institution has a right to impose a certain sanction against a rule violator to secure fairness and legitimacy in the field of public procurement contract. It is, however, a huge problem to grant a superior position to the other party to the public procurement contract. And, furthermore, if we excessively focus on the punitive side of the restriction on qualification for bidding participation it cannot be entirely excluded that public institutions may ignore the value of inducing a party to contract to voluntarily comply with the integrity and legitimacy of public procurement contract and, therefore, it does not make much difference between public procurement contracts and general administrative acts. Catching up with these philosophy aforementioned, it is quite desirable that Public Procurement Contract Act, especially State Contract Act has rearranged grounds for the restriction on qualification for bidding participation and adopted penalty surcharge and exclusion period, embracing the drawbacks consistently proposed by academia and business. However unconditional notification of other public ordering organizations regarding improper businessmen’s acts, additional verwaltungsstrafe and criminal penalty and non-existence of leniency can be pointed out problems. This writer has been experienced at participating in numerous government contract councils[Department of Defense(DOD), Defense Acquisition Program Administration(DAPA)] evaluating legitimacy and fulfillment of contracts as a civilian council member and made huge efforts to share the notion of how the public procurement system shall be improved. Consequently, I hope that right balances between the public interests pursued by public ordering organizations and private interests shall be reasonably kept for mutual growth of public ordering organization and parties to the contracts notwithstanding the existing sanction system against improper businessmen has been implemented without consideration on the detailed validity of cases excessively focusing on characteristics of sanction so far.