| 摘要: | 我國政府採購長期以來，遭外界質疑有圍標、綁標等採購不公情事，而政府每年辦理採購金額約佔國民生產毛額之百分之10~15，影響國內整體經濟發展甚巨。民國80 年 2 月4日制定公布公平交易法前，我國政府採購對於圍標、綁標行為，係以機關營繕工程及購置定製變賣財物稽查條例（88年5月27日廢止）、審計法、審計法施行細則及各機關發布之相關行政命令來辦理，唯屢遭外界認為以事後審計之法規辦理政府採購有本末倒置疑慮。
公平交易法公布施行後，行政院公平交易委員會對於圍標、綁標行為以有違反該法禁止之「聯合（圍標）行為」、「限制競爭或妨礙公平競爭（綁標）之虞」及「足以影響交易秩序之欺罔或顯失公平之行為」等規定加以處罰。唯復遭外界認為公平交易法係維護公平交易秩序、促進競爭之競爭法，對政府採購之圍標、綁標行為，動輒以違反公平交易法論處，有過度介入政府採購疑慮，且政府採購屬一次性之交易行為，決標後即進入雙方履約程序，以公平交易法進行查處，易發生緩不濟急情形。
政府採購法於88年5月27日施行後，該法雖已明訂圍標、綁標行為之刑事、民事及行政責任，但施行迄今圍標、綁標行為仍屢見不鮮。本文嘗試由政府採購歷史演進、採購實務、公平交易委員會時期之行政處分、公共工程委員會行政處分、法院判決及學者見解等分析，提出檢討與建議。
For a long time, the Taiwan Government has been questioned about the unfair practices found in the procurement process such as bid rigging and procurement fraud (imposing unlawful restrictions). The yearly purchasing amount of the Government accounts for nearly 10~15% of the gross national product and has a huge impact on the development of national economy. Before the implementation of Fair Trade Act in 4th February, 1991, the Taiwan Government used to apply the Government Institution Construction and Property Procurement Audit Regulations (which was abandoned in 27th May, 1999), the Audit Act, the Audit Act enforcement rules and the related administration orders issued by various government institutions to deal with big rigging and procurement fraud. However, to post audit government procurement was generally regarded as a passive measure rather than a precaution.
After the implementation of Fair Trade Act, the Fair Trade Commission of the Executive Yuan imposes serious punishments against big rigging and procurement fraud according to its regulations about “concerted actions” (bid rigging), “lessening competition or impeding fair competition” (imposing unlawful restrictions in tendering) and “deceptive or obviously unfair conduct that is able to affect trading order”. Yet, there have been public opinions that the aims of Fair Trade Act are to maintain a fair trading order and to encourage competition. If the Fair Trade Act is frequently used to handle bid rigging and procurement fraud, it will be doubted that the government procurement operation is being unduly interfered. Furthermore, government procurement is a one-time trade. After the contract is awarded, both parties will proceed to exercise the contract. The investigation by Fair Trade Act at this stage could be unfavorable in handling the immediate needs.
The Government Procurement Act was implemented in 27th May 1999. Though it clearly defines the criminal, civil and administrative liabilities for involving in bid rigging and procurement fraud, these practices still happen frequently. This thesis tries to evaluate and make suggestions on this matter through the analysis on the history of government procurement operation, practical procurement procedures, and the administrative disciplinary actions by Trade Fair Commission, the administrative disciplinary actions by Public Construction Commission of Executive Yuan, court judgment and scholars’ opinions. |
