공동수급체에 대한 입찰참가자격 제한제도 개선방안 연구

Abstract

This paper was initiated from the problem that the restrictions on the eligibility of public institutions to participate in bidding for joint ventures may be disposed of inconsistently with the facts. In Korea, many joint contracts are signed in which joint ventures become contract counterparties under Article 25 of the 『Act on Contracts which the State as a Party』. However, until now, there has been no research that has identified problems and proposed improvement measures related to the system of restricting bidding qualifications for joint ventures. This paper analyzes the case of the Contract Review Committee of the Korea National Railway, which deliberated whether to restrict a company's eligibility to participate in bidding. The committee was held after a court decision confirmed that A joint venture submitted false documents to the Korea National Railway during the bidding process. According to Article 76 (4) of the 『Enforcement Decree of the Act on Contracts which the State as a Party』, in the case of a joint venture, it is stipulated that sanctions can only be imposed on the person who caused the restriction of the bid participation qualification. However, the joint venture A was only responsible for submitting false documents and requested immunity for its representative company, which was not responsible for submitting false documents. However, the committee had no way to substantially verify the claims made by the joint venture, so the committee decided to debar the representative company and exempt the component companies from participating in the bid. In the end, the debarment was based on the same allegations made by joint venture A, regardless of their substantive veracity. This paper proposes the following three measures to solve these problems. First, we considered giving individual public institutions compulsory investigative power like the Korea Fair Trade Commission. This would increase the likelihood that public authorities would impose factual bidding restrictions on joint venture. However, this would cause the burden on companies, and since public institutions do not have the expertise as the Korea Fair Trade Commission, it could lead to a backlash from companies. Second, to alleviate the problems of the first method, we considered establishing a “Public Contract Review Committee” to deliberate whether all public institutions should restrict bidding qualifications. In order to support the committee's work, a working group should be organized, and it was suggested that the group be given compulsory investigative power like the Fair Trade Commission. The specific details of the committee should be fully discussed and derived by the Ministry of Economy and Finance, the Public Procurement Service, public institutions, the legal profession, academia, and industry. Third, in order for public institutions to break away from the complex legal sanction system of delegation and compliance, and to clearly restrict companies from participating in bidding, it is reasonable to enact the 『Act on Contracts which the public Institutions as a Party』, such as 『Act on Contracts which the State as a Party』 or 『Act on Contracts which the Local Governments as a Party』. If enacted, it would be necessary to specify the general contents of public contracts and restrictions on bidding qualifications, as well as the responsibilities and roles of the “Public Contract Review Committee” and working groups.