Abstract
Prior to enforcement of the Government Procurement Act (“the Act”), procurement disputes in respect of contractual performance after award of contract and contract execution can only be resolved by civil litigation or arbitration, but there is no systematic dispute resolution mechanism for disputes relating to the bidding process prior to award of the contract. After enforcement of the Act as of May 27, 1999, in order to increase the protection for competing bidders, the law now permits bidders to apply for administrative litigation after completing the objection and complaint procedures. Such administrative litigation is the “procurement competitors litigation” referred to in this article.
As such “procurement competitors litigation” under the Act is an entirely new type of administrative litigation cases only introduced to Taiwan in 1999, it is worth studying whether such cases meet a number of criteria for “interest of litigation” described in administrative litigation law. These include the objective perspective of “whether there is a need to protect a right?” and the subjective perspective of “whether there is right of action?” (Klagebefugnis)
With regards to the subjective question of “right of action” of competing bidders, this article proposes to study how to determine the scope of competitors who may have “standing to sue”? In what circumstances can such competitors be deemed to have right of action, and in what circumstances they do not? What are the reasons for these determinations?
With regards to the objective question of “need to protect a right”, the legitimate basis for this criterion is that there must be certain restrictions to protection of a right of action. The judicial resources of a country are limited, and the people only have the right to make use of such judicial resources when necessary. Litigation laws therefore do not permit the people to make non-beneficial or illegitimate uses of the litigious proceedings of the courts. Accordingly, the need to protect a right is commonly recognized in administrative litigation law and practice of most countries as an essential element for substantive judgments in administrative litigation.
Procurement competitors litigation practice in Taiwan is currently somewhat confused by application of varying standards, due to differences in recognition of whether there is an objective need to protect the rights of the plaintiff. A plaintiff who files such an action is either dismissed due to there being no need to protect its rights, as the procurement project has already been awarded and the contract executed; or dismissed because the plaintiff has no right of action, due to the procurement project already being awarded to a third party or construction has already commenced. The court may also determine that there is no need to protect a plaintiff, on the ground that such plaintiff had not participated in the bidding process, or that such plaintiff had failed to pass the specifications bid or qualifications bid in any event. This study proposes to not only study the question of right of action of competing bidders, but will also mainly study the question of: what conditions must be met in a government procurement competitors litigation, in order for such action to be evaluated in litigation law as being lacking the objective element of “interest of action”, that is, the need to protect a right.