입찰참가자격제한처분취소
2017Nu13613 Disposition to revoke the restriction on participation in a facility
1. A stock company;
2. B;
The Minister of SMEs and Startups
(F) Defendant: Administrator of the Small and Medium Business Administration)
Daejeon District Court Decision 2016Guhap106468 Decided October 11, 2017
April 4, 2018
May 2, 2018
1. All of the plaintiffs' claims are dismissed.
2. The costs of lawsuit are assessed against the plaintiffs.
On December 5, 2016, the Administrator of the Small and Medium Business Administration revoked a small and medium enterprise owner’s revocation of eligibility for participation in competitive bidding between the Plaintiffs and a restriction on the acquisition of eligibility for participation among the small and medium enterprises for six months (this court was corrected by the Administrator of the Small and Medium Business Administration as the defendant was the Administrator of the Small and Medium Business Administration, and the lawsuit against the previous defendant is deemed to have been withdrawn pursuant to Article 14 of the Administrative Litigation Act. Therefore, the lawsuit against the previous defendant, which was sentenced by the first instance court,
1. Quotation of judgment of the first instance;
The reasoning for this Court’s explanation concerning this case is as stated in the reasoning of the judgment of the court of first instance, since it is the same as stated in the reasoning of the judgment of the court of first instance, Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.
(a) Five below the third and third decisions of the first instance court shall be followed by the Administrator of the Small and Medium Business Administration.
B. Following the third and third written judgment of the first instance court, the phrase “before the amendment by Act No. 14839, Jul. 26, 2017” shall be added.
(c)in the third place of the decision of the first instance (hereinafter referred to as "the third place of the decision"), the following shall be added:
As the Government Organization Act was amended by Act No. 14839 on July 26, 2017, the authority of the Administrator of the Small and Medium Business Administration related to each of the dispositions of this case was succeeded to the defendant (hereinafter referred to as "defendants" without distinguishing the Administrator of the Small and Medium Business Administration and the Minister of SMEs and Startups).
(d) Each of the attached Forms 5 and 18 of the judgment of the court of first instance shall be written in attached Form 1, respectively.
(e)in the last place of the decision of the first instance, the following shall be added:
The details of the successful bid received by the Plaintiff for the instant collusion are as shown in the current status of the successful bid by the Plaintiff and the current status of the successful bid by the Plaintiff 3 Plaintiff 2. The Plaintiffs asserted that the successful bid listed in 39 Nos. 2 and 31 and 49 and the successful bid listed in 31 and 49 are not based on the instant collaborative act but awarded a successful bid by competition. However, according to each of the entries in 3-2 and 25 evidence, each of the above successful bid is recognized as being based on the instant collaborative act, and it is insufficient to acknowledge the Plaintiffs’ assertion by following the relevant criminal case outcome, etc. solely with the descriptions in 20 and 24 evidence.
(f)be seven (7) below the first instance judgment:
h) The Plaintiffs asserts that the part in which the Plaintiffs did not participate in the bidding should be excluded from the grounds for disposition. However, unlike Article 76(1) of the former Enforcement Decree of the Act on Contracts to Which the State is a Party (amended by Presidential Decree No. 27475, Sept. 2, 2016) provides that the subject of restriction on participation in bidding shall be referred to as “contractors, bidders, or persons who submit estimates using the Electronic Procurement System”, Article 8(3) of the Act on Support of Market Development provides that “small and Medium Enterprises participating in competitive bidding between small and medium entrepreneurs have committed an unfair act, such as collusion,” Article 76(1) of the former Enforcement Decree of the Act on Contracts to Which the State is a Party is broadly
Therefore, it is reasonable to view that: (a) although the member companies of this case were first announced as the competitive bidding, but the member companies of this case failed to select a successful bidder in excess of the estimated price by failing to comply with the bidding, single bidding, or the competitive bidding; and (b) ordered the ordering company to change the method of contract by a negotiated contract; and (c) the member companies of this case, including the plaintiffs, engaged in the act of undermining the fairness of bidding in sequence by a deceptive scheme or by other means, it constitutes "the case where the small and medium enterprise owner participating in the competitive bidding between the small and medium enterprise owners,
(g)five (5) below the first instance judgment:
[F] Even if the Defendant assumed that there was an error by which discretion was not exercised appropriately with respect to the Plaintiffs’ activities by April 27, 2016, which had been subject to the former Act on the Support of Market Support, the conclusion that each of the instant dispositions was legitimate for the following reasons does not change. In other words, the instant collusion continued from April 28, 2016 to May 24, 2016, and the Plaintiffs were awarded a successful bid during the same period. However, Article 8(3)3 of the amended Act on the Support of Market Support provides that where an unfair act, such as collusion, is committed, a small and medium enterprise owner’s right to participate in competitive bidding shall be revoked. Ultimately, even if a disposition was taken after April 28, 2016 among the instant collaborative act, the Defendant is bound to revoke the Plaintiffs’ eligibility to participate in competitive bidding.
G) Meanwhile, the Plaintiffs asserts that each of the instant dispositions was based on Article 8(3)4 of the Act on the Development of Market Support. In such a case, the Plaintiffs asserted that the pertinent disposition ought to be considered as a discretionary revocation (voluntary revocation) rather than a necessary revocation (voluntary revocation). However, even if comprehensive descriptions of the evidence No. 2-2, No. 3, and No. 33, each of the instant dispositions do not constitute Article 8(3)4 of the Act on the Development of Market Support.
Even if the Defendant assumed that each of the dispositions in this case was based on Article 8(3)3 and 4 of the Act on the Development of Market Support, there is no basis for interpreting that a single act constitutes a voluntary cause of revocation, if both the necessary cause of revocation and the voluntary cause of revocation are applicable.
H. The judgment of the court of the first instance was executed 3 to 4 of the 18th three-fourth of the 18th three-fourth of the 10th three-fourth of the 196th 3th 3th 3th 3th 3th 4th 2017, "the former Act on the Promotion of Purchase of Small and Medium Enterprise Products and the Development of
(i) The Enforcement Decree of the Act on the Promotion of Purchase of Small and Medium Enterprise Products and the Support for Development of Market Support shall be construed as “Enforcement Decree of the former Act on the Promotion of Purchase of Small and Medium Enterprise Products and the Support for Development of Market Support” (amended by Presidential Decree No. 28213, Jul. 26, 2017).
2. Conclusion
If so, the plaintiffs' claims against the defendant are without merit, they are dismissed.
The presiding judge, the highest judge;
Judge Lee Jong-soo
Judge Lee Jin-ju
A person shall be appointed.
A person shall be appointed.
A person shall be appointed.
A person shall be appointed.
A person shall be appointed.