13 April 2021
The Supreme Administrative Court rendered the 109-Pan-183 Decision of March 31, 2020 (hereinafter, the “Decision”), holding that any person who obviously undermines the quality of procurement and the performance objectives of a contract by bidding or performing the contract with false documents is covered by Article 101, Paragraph 1, Subparagraph 4 of the Government Procurement Act (hereinafter, “GPA”).
According to the facts underlying this Decision, Appellant or Security Company A, participated in a joint security (security guard services) procurement tender organized by the Appellee. The Appellant won the tender and was awarded the contract by the Appellee, and a joint supply contract (hereinafter, the “Contract at Issue”) was executed with procurement orders placed with the Appellant pursuant to the Contract at Issue. Believing that the security personnel assigned by the Appellant signed in and signed out for other personnel, the Appellee subsequently notified the Appellant that it would be published in the Government Procurement Gazette since it was subject to forgery or alteration of documents relating to the tender, contract or contract performance under Article 101, Paragraph 1, Subparagraph 4 of the GPA effective at the time of the act. Dissatisfied, the Appellant raised an objection but was informed by the Appellee that the results of the original decision were maintained. Still dissatisfied, the Appellant petitioned to the Public Construction Commission, Exceutive Yuan, which rendered a decision on petition, stating that “the petition to set aside the results of the original decision is rejected and the remainder of the petition is not entertained .” Dissatisfied with the Appellee’s decision to publish the information about the Appellant in the Government Procurement Gazette (hereinafter, the “Original Disposition”) as communicated to the Appellant, the Appellant brought an administrative action with its initial claims stating that “the Original Disposition should be declared invalid, that necessary measures shall be taken to restore the Appellant’s original status with respect to the list of rejected suppliers, and that the Original Disposition and the portions concerning the Original Disposition in the decision on petition should be set aside” and the secondary claims stating that “the Original Disposition and the portions concerning the Original Disposition in the decision on petition should be reversed.” After the claims were rejected in the original decision, the Appellant appealed.
According to the Decision, the GPA is formulated to set up a government procurement system, follow a fair and open procurement procedure, enhance procurement efficiency and functions and ensure procurement quality. Therefore, although the administrative control or penal requirements under the law are identical or similar to the terms used in the Criminal Code or other criminal laws and regulations, still it may not be appropriate to apply the same interpretation since their regulatory objectives are not the same. Therefore, Article 101, Paragraph 1, Subparagraph 1 of the GPA effective at the time of the act is not preconditioned by the establishment of an actor’s criminal offense such as the offense of forging or altering documents, and any person who obviously undermines the quality of procurement and performance objectives of the contract by bidding, entering into the contract or performing the contract with false documents should be covered by the provision, regardless of whether this involves the forgery or alteration of performance documents by persons with or without the authority to prepare such documents.
It was further indicated in the Decision that the Appellant’s duty roster and duty log for the Contract at Issue had the signatures and handwritings of the security personnel at various posts and are subject to the circumstance where the performance documents are untrue. This is a fact determined by the original trial court pursuant to law and does not violate evidentiary, empirical and logical rules. The Appellant’s assertion that no signature was given for others is not acceptable. In addition, since the duty roster was submitted for review and price calculation for billing purposes, even if the duty roster was not included in the written provisions of the contract, it is still by nature a document that the contractor should provide as part of its performance of the contract. In conclusion, the original decision was not erroneous when it dismissed the Appellant’s complaint in the original trial on the ground that the Appellant’s decision on the publication in the Government Procurement Gazette is legally valid in accordance with Article 101, Paragraph 1, Subparagraph 4 of the GPA effective at the time of the act. Since the gist of the appeal is groundless, the appeal should be rejected.
For further information, please contact:
Luke Hung, Lee Tsai & Partners
lawtec@leetsai.com
