政府採購履約爭議制度之探討－－以工程採購為例

Discussion on the System of Performance Disputes in Government Procurement-Taking Engineering Procurement as an Example

政府採購過程中，其程序概可分招標、審標、決標（含開標）、履約及驗收等階段，在這些階段中，廠商可能因對機關的處置作為不認同，或其權益受損而與機關產生爭議；然而，工程履約爭議之原因與態樣多端，揆諸國內目前現行作法，不外乎包括協議、調解、仲裁及訴訟等模式，但礙於種類龐雜，僅就單一作法或有事實上困難，政府採購法遂採折衷政策，於該法第85條之1第2項後段引進所謂「先調後仲」之規定，成為工程採購爭議解決的選項之一；也由於政府採購法有關工程履約爭議制度於實務的運作上的確有許多應當檢討修正之處，本文茲就工程採購之調解、仲裁及先調後仲制度為主軸，提出具體修法建議，以期提升政府採購之效率及減少廠商及機關之間的紛爭。 In the process of government procurement, the procedures can be divided into the stages of bidding, reviewing, awarding (including opening of bids), performance and acceptance. In these stages, the manufacturer may not agree with the disposal of the agency or the equity is damaged, and it is controversial with the agency. However, there are many reasons for engineering performance disputes. The current domestic practices include agreements, mediation, arbitration, and litigation. However, due to the variety of types, there is a real difficulty in a single approach. The government procurement law adopts the eclectic policy, and introduces the so-called ＂the theory of arbitration after mediation＂ provisions in item 85-1, which becomes one of the options for engineering procurement dispute resolution. Due to the government procurement law, there are still many amendments to the review of the implementation of the project performance dispute system. This paper proposes specific amendments to the mediation, arbitration and first-adjustment system of engineering procurement, with a view to improving the efficiency of government procurement and reducing disputes between manufacturers and institutions.