(영문) 서울행정법원 2020.4.28.선고 2019구합79374 판결

The Defendant’s disposition of restricting the participation of unjust enterprisers in bidding for three months against the Plaintiff on August 27, 2019 is revoked.

Reasons

1. Details of the disposition;

A. The Plaintiff is a company that engages in the business of recycling and distributing high-class IT equipment.

B. On March 27, 2019, the Plaintiff participated in the instant bid to C, publicly notified by the Defendant’s affiliated agency, and was selected as a successful bidder on March 28, 2019. The Plaintiff expressed his intent to waive the instant tender to: (a) on March 28, 2019; (b) on April 10, 2019, the Plaintiff sent to B, on the ground that the information on the product information system of the Government Procurement Service was different from the on-site product information (the difference between products) information and the on-site product information were different from the on-site information (the difference between the sales announcement and the on-site information) information due to the error in the information transmission by the person in charge of the relevant agency’s on-site, thereby requesting the invalidation of the instant bid.

D. On August 27, 2019, the Defendant rendered a disposition to restrict participation in bidding for three months pursuant to Article 27 of the Act on Contracts to Which the State is a Party (hereinafter “State Contract Act”) and Article 76(1)2(a) of the Enforcement Decree of the same Act on the ground that the Defendant constitutes “a person who fails to conclude or perform a contract without good cause” against the Plaintiff.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1, 2, and 10 (including each number; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

B In the instant bid, the instant bid announced 12,815 of the total number of 12,815 tickets, vending machines, D, E, and tweet issuance machines with the number of 9,000 tickets among the goods subject to sale. However, the tweet issuance machines, which are the actual subject of sale, did not coincide with the said announcement, and did not provide a proper explanation therefor. As such, the Plaintiff notified B of the cancellation of the intention to participate in the instant bid on the ground of mistake, there is justifiable reason for the Plaintiff to not conclude the instant bid contract. Accordingly, the grounds for the instant disposition cannot be acknowledged.

B. Relevant statutes

It is as shown in the attached Form.

The following facts are acknowledged in full view of each statement or image of evidence Nos. 1 to 11 of this title.

1) On March 15, 2019, B publicly announced the instant tender on the website "On the National Integrated Procurement System" (hereinafter referred to as "the instant tender notice"), and the main parts relating to the instant case are as follows.

1. The matters referred to the bid. A. The bid name: see the current status of the goods subject to sale: 62,700,000 won for the attached goods: The estimated price: 62,700,000 won for the site on March 25, 2019 (including value-added tax): (10:00 to 10:00 on March 25, 2019 (in full, the pre-contract is essential); (2) the purchaser directly confirms the goods (the condition and quantity at the site) and complies with the tender; and (3) all responsibilities arising from the failure to verify the goods at the site; (2) the conclusion of the sales contract and the method of payment for the goods; (3) the successful bidder shall enter into a contract within two days from the date of the successful tender; (2) the successful bidder shall pay the total amount within three days from the date of the contract; and (3) the goods shall be paid in full after the successful tender is paid in full after the date the goods are sold.

All expenses incurred in the process of decommissioning, transportation, disposal (electrics, etc.) and other expenses shall be borne by a successful bidder. D. A. Successful bidder shall take planning and measures related to the safety of a building and goods at the time of acquiring the goods, and the successful bidder shall be responsible for any defect, compensation, and safety accidents arising from the failure to do so. A. This bid is conducted only by electronic bidding on the “Korea Asset Management Corporation”. Since this bid is conducted by electronic bidding on the “Korea Asset Management Corporation”, all matters concerning this tender, such as the Acts and subordinate statutes related to the bidding, the conditions for the public announcement of the tender, the rules on participation in the bidding, and the rules on participation in the bidding, shall be sufficiently informed before the bidding, and the bidder shall be responsible to participate in the bidding. However, since the goods are sold on the present condition, the bidder shall attend the site meeting and confirm the conditions of the goods, etc.; (c) the current status of the goods and the conditions of the goods after taking over and taking over the goods, etc., shall not be responsible for any matters of the successful bidder.

2) However, unlike the current status of the product in the notice of this case, B institutions did not hold 9,00 diskettes issuance machines, and instead held 18,000 diskettes issuance machines composed of 2 type, 1 type, 1 type, and 1 type type 1 type of device.

3) On March 25, 2019, the Plaintiff attended the site site conference of B agency located in a warehouse located in the Cheongju-si, and confirmed goods subject to sale following the instant bidding.

4) On March 26, 2019, the Plaintiff requested information on 'Tweet issuing machine' (cryp type, syp type, sea level, manufacturing, taking, etc.), HD information, and 'Tweet issuing machine' on the side of B’s institution. On the same day, employees in charge of B sent text messages to the Plaintiff providing 'Tweet HE' and 'CF mweet mbot' information on 2 Tweet issuing machine.

5) As a result of the Plaintiff’s opening of the instant bidding on March 28, 2019 and this case’s bid, the Plaintiff’s bid price, which is the first bidder, was KRW 197,350,000, among which the Plaintiff’s bid price was KRW 101,970,000, and the bid price for the second bidder was KRW 101,970,000, and the Plaintiff, the first bidder, as the successful bidder, was selected as the successful bidder. 6) On March 29, 2019, the Plaintiff visited the main warehouse of the B’s agency’s office, and carried out 2 copies in advance, but the said eket issuance was different from the eket issuance period listed in the current product status of the instant tender notice, and expressed the Plaintiff’s intention to return to the B agency.

D. Determination

1) Article 27(1)8(b) of the Act on Contracts to Which the State Is a Party provides that “a person who is likely to interfere with the proper performance of a contract by failing to engage in or obstructing the conclusion or performance of a contract without justifiable grounds, etc., shall be restricted from participating in a tender by the improper businessman in question.”

Meanwhile, the so-called public contract to which the State is a party under the State Contracts Act is a private contract which is concluded on an equal basis with the other party as a private economic entity and its essential content is not different from a contract between the private parties. Thus, the principle of private autonomy and the freedom of contract applies as it is, except as otherwise expressly provided in the relevant statutes (see, e.g., Supreme Court Order 2012Ma1097, Sept. 20, 2012). In order for a purchaser to cancel a juristic act on the ground that the motive mistake falls under an error in the important part of the contents of the juristic act, the motive is indicated to the other party as the content of the relevant declaration of intent, and is the content of the juristic act in the interpretation of the declaration of intent. In short, it is sufficient and it is not necessary for the parties to agree to separately consider the motive as the content of the juristic act as the content of the declaration of intent. However, an error in the content of the juristic act should not be deemed to have been made if the general public had expressed such intent (see, etc.).

2) The facts that the number of diskettes issued specified in the product status of the notice of this case differs from the number of diskettes issued by the Defendant, are as seen earlier. The Plaintiff appears to have expressed his intent to participate in the bid of this case, excluding the above facts.

However, in light of the following circumstances, the aforementioned facts and evidence Nos. 4 and 5, which can be acknowledged by comprehensively considering the purport of the entire pleadings, it is reasonable to deem that the Plaintiff’s excessive circumstance is merely a mistake in the motive that it is difficult to deem it as the content of a juristic act, or at least a gross negligence by the Plaintiff. Therefore, it is difficult to cancel the Plaintiff’s expression of intent to participate in the instant tender on the ground of mistake, and it is difficult to deem that the Plaintiff did not conclude the instant bid contract, unlike the Plaintiff’s failure to conclude

(1) In the instant public notice, B agencies clearly notified that the public notice of this case differs from the information on goods as publicly notified, and that the goods sold are sold on the present state, and thus, the site descriptions should be present at the Committee and the information on goods should be verified and participate in the bidding

② According to the instant public notice, the Plaintiff was able to sufficiently verify the product information on the tweet issuance machine in the tweet issuance machine, which was kept in custody in the warehouse located in Cheongju. Since the Plaintiff was provided with tweet issuance information from B, the Plaintiff could sufficiently verify the product information on the tweet issuance machine in the tweet issuance machine. Accordingly, the Plaintiff asserted to the effect that the employee in charge of B was unable to properly verify the product information on the grounds that he displayed the tweet issuance machine in the form of decommissioning removed at the tweet issuance meeting, or that he was found to have verified that the product was the same as the product at the eweet issuance machine and the site. However, even based on the video as stated in subparagraphs 4 and 11 of the 4 and 11 of the tweet issuance machine, there was no particular obstacle to identifying the information on the tweet issuance machine, and there was no other evidence to acknowledge

③ The Plaintiff participated in the instant bidding at a monthly higher price than the estimated price determined in the instant bidding, and the bid amount is the amount equivalent to twice the second bidder. In light of this, the Plaintiff’s participation in the instant bidding appears to have reached an excessive set of the bid amount due to the Plaintiff’s failure to properly grasp the actual sale goods of the instant bidding.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.