우리나라 공공조달계약의 문제점과 개선방안에 관한 연구

Abstract

Public procurement contracts refer to contracts concluded in the process of procuring goods, construction, and services required by administrative entities. Typical laws that regulate it include the “Act on Contracts to Which the State Is a Party” and the “Act on Contracts to Which a Local Government Is a Party.” This study discussed the legal issues and proposed alternatives in that point of view as follows. First of all, the current sanctions system for illegal party owners' participation in bidding is being used to impose sanctions on illegal party owners, a public system, despite the fact that the reasons are too wide and simple judicial problems. Therefore, it is necessary to review the reasons for imposing sanctions on fraudulent parties stipulated in the relevant laws once again to clearly distinguish the reasons for truly restricting their eligibility to participate in the bidding, and to improve the system to prevent excessive infringement of their rights to the other parties. Disputes related to public procurement contracts and legal remedies can be divided into disputes at the bidding stage and disputes at the implementation stage after the conclusion of the contract, and disputes at the bidding stage are mostly related to the decision of the winning bidder. In the case of disputes in the performance stage of a contract, there is not much difference in functionality and efficiency compared to civil litigation, even by administrative litigation as a means of legal relief. However, understanding the legal nature of the successful bidder's decision as a disposition in the dispute at the bidding stage will enable more efficient rights relief in that it will be subject to an appeal and emphasize the objective function of expanding the scope of the plaintiff's qualification and restoring the legal order. Finally, the long-term continuous construction contract has a clear advantage in that it is possible to secure and execute flexible budgets considering the budget situation for each fiscal year. Despite these advantages, however, there are many cases in which the contract is discontinued due to the counterparty's non-responsibility in the course of performing the contract. This resulted in additional overhead costs resulting from the extension of the construction period, which eventually resulted in a dispute over the payment of overhead. Above all, it is unreasonable that the construction contract amount is not adjusted even though the extension of the construction period is not an incentive to the other party. Therefore, if additional overhead occurs due to non-responsibility reasons of the other party in a long-term construction contract, the ordering agency will need to pay additional overhead to protect the other party's interests, enhance credibility in contracts with the state and local governments, and prevent small and medium- sized companies from defaulting on wages and deteriorating management. One solution to this is the activation of the continuing cost system. In addition, it is also urgent to establish a legal basis for the ordering agency to pay additional overhead if an extension of the construction period occurs despite the fact that the other party is not a legislative liability.