憲法第十六條固有保障人民訴訟權之明文，惟訴訟權之保障並非毫無節制，蓋國家司法資源有限，因此人民只於有必要時才有使用司法資源之權利，基於經濟性及效益之考量，訴訟法上並不允許人民為無益或不正的利用法院之訴訟程序。基此，權利保護必要作為行政訴訟之實體裁判要件，為現代各國行政訴訟法學說與實務所普遍承認，我國政府採購爭議處理機制自民國八十八年以來，已將決標前之程序定性為公法性質，而得以在經過異議、申訴程序之後提起行政訴訟。本文擬說明在此類之政府採購行政訴訟中，究竟採購進度要達到什麼程度才可以在訴訟法上被評價為「已造成既成事實」無從透過訴訟補救，而屬裁判無實益？理由何在？

　　Clause 16 of the Constitution protects the right of people to litigate, but the protection of litigation rights is not without constraints; this is because the country has limited judicial resources. Therefore, people only have the right to use judicial resources when it is necessary. Based on considerations of economics and efficacy, litigation law does not allow people to use legal litigation procedures frivolously or improperly. Based on this, the necessity of right protection is a key to actual arbitration of administrative litigation, and this has been widely acknowledged by the legal theory and practice in administrative litigation of various modem countries. Since the government of Taiwan began to employ the procurement controversy resolution mechanism in 1999, the procedure prior to bidding has been established as having a public law character, and allows for administrative litigation after the processes of objection and complaint. This paper seeks to explain, in government procurement administrative litigation cases, the extent of procurement progress that would allow for it to be deemed “to have created an established fact” in litigation law, which cannot be cured through lawsuit but a1solack rea1 benefit in judgment, as well as the reasons for this.