토목건축공사업을 영위하는 갑 주식회사가 서울시로부터 도급받은 공사 중 철골공사의 하도급업체를 선정하기 위해 지명경쟁입찰을 실시한 후 최저가로 입찰한 을 주식회사와 추가협상을 통하여 최초 입찰금액보다 낮은 금액으로 하도급계약을 체결한 행위에 대하여, 공정거래위원회가 구 하도급거래 공정화에 관한 법률 제4조 제2항 제7호 에 해당한다고 보아 시정명령 및 지급명령을 한 사안에서, 갑 회사의 행위는 부당한 하도급대금 결정행위에 해당하고 거기에 정당한 사유가 있다고 보기 어렵다고 한 사례

토목건축공사업을 영위하는 갑 주식회사가 서울시로부터 도급받은 공사 중 철골공사의 하도급업체를 선정하기 위해 지명경쟁입찰을 실시한 후 최저가로 입찰한 을 주식회사와 추가협상을 통하여 최초 입찰금액보다 낮은 금액으로 하도급계약을 체결한 행위에 대하여, 공정거래위원회가 구 하도급거래 공정화에 관한 법률(2011. 3. 29. 법률 제10475호로 개정되기 전의 것) 제4조 제2항 제7호 에 해당한다고 보아 시정명령 및 지급명령을 한 사안에서, 경쟁입찰에 의한 하도급계약에서 원사업자가 최저가로 입찰한 금액보다 낮은 금액으로 하도급대금을 결정한 이상 그 과정에서 부정한 방법이 사용되었는지에 관계없이 부당한 하도급대금의 결정으로 보아야 하고, 직접공사비가 증가하였더라도 간접공사비 및 전체 하도급대금이 감소하였다면 실질적으로 수급사업자에게 불이익이 발생하였던 것으로 보아야 하는 점 등에 비추어 보면 갑 회사는 최저가 입찰가격보다 낮은 가격으로 계약을 체결하기 위하여 입찰을 통하여 우선협상대상자를 선정한 후 추가협상을 하였고, 그 과정에서 정당한 사유가 있었다고 보기 어려워 위 시정명령 및 지급명령은 적법하다고 한 사례.

Articles 2, 2, and 4(2)7 of the former Fair Transactions in Subcontracting Act (Amended by Act No. 10475, Mar. 29, 201) (Amended by Act No. 10475, Mar. 29, 201)

Daegu Construction Co., Ltd. (Law Firm Masung, Attorney Park Sang-ok, Counsel for the plaintiff-appellant)

Fair Trade Commission

July 18, 2014

1. All of the plaintiff's claims are dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s corrective order and payment order indicated in attached Form 1, which was issued by Resolution No. 2013-192 against the Plaintiff on November 28, 2013, shall be revoked.

1. Status of disposition;

(a) Status and general status of parties;

원고는 건설산업기본법에 따른 토목건축공사업을 영위하는 중소기업자이고, 직전 사업연도의 상시종업원 수 또는 시공능력평가액이 주식회사 경수제철(이하 ‘경수제철’이라고 한다)의 상시종업원 수 또는 시공능력평가액의 2배를 초과하는 사업자이며, 위 수급사업자들에게 그 업에 따라 건설공사의 일부를 위탁하였으므로 구 하도급거래 공정화에 관한 법률(2011. 3. 29. 법률 제10475호로 개정되기 전의 것, 이하 ‘하도급법’이라고 한다) 제2조 제2항 제2호 소정의 ‘원사업자’에 해당하고, 경수제철은 중소기업자로서 하도급법 제2조 제3항 소정의 ‘수급사업자’에 해당한다. 당사자의 일반현황은 아래 표와 같다.

본문내 포함된 표 (단위: 백만 원, 명) 구 분 사업자명 영위업종 시공능력평가액 상시고용종업원수 (2009년) (2009년 12월) 원고 대경건설(주) 토목건축공사업 99,849 83 수급사업자 경수제철 강구조물공사업 38,442 43

B. The plaintiff's act

The Plaintiff entered into a subcontract on February 23, 2010, after conducting a competitive bid for the steel framed construction (hereinafter “instant construction”) among the energy ropis construction works in the outdoor exhibition center of the Seoul amamambap, Seoul (hereinafter “instant subcontract”), through the c,575,00,000 won reduced the contract amount by 28,60,000 won as listed below (hereinafter “instant subcontract”).

The term of contract for the term of the contract on the date of the contract for the construction project classified by the table (unit: KRW 3,575,000 on February 23, 2010 to August 15, 2010 among the changed construction works, the steel frame construction works from October 20, 2010 to February 23, 2010 among the changed construction works.

C. The defendant's disposition

As stated in Paragraph (b), the Defendant deemed that the Plaintiff’s act of determining the subcontract price at a price lower than the initial bid price as stated in Article 4(2)7 of the Subcontract Act constitutes “an act of determining the subcontract price at a price lower than the lowest bid price when concluding a subcontract through competitive bidding without justifiable grounds” and issued a corrective order and an order for payment in attached Form 1 (hereinafter “instant disposition”) against the Plaintiff as stipulated in Decision 2013-192 on November 28, 2013.

[Reasons for Recognition] Facts without dispute, entry of Gap evidence No. 1, purport of whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) If an illegal means is not used in negotiating a subcontract price for a minimum bidder, etc., it is not illegal to conclude a subcontract at a price lower than the lowest tender price, and it is not illegal.

② In full view of all the circumstances, including the decrease of the total construction cost, but the increase of the direct construction cost that directly affects the interests of the subcontractor, thereby resulting in a change in favor of the light metal more favorable to the light metal, and the reasonable adjustment of the unit price that the light metal was applied voluntarily in the process, there is justifiable reason for the Plaintiff’

B. Relevant statutes

[Attachment 3] The entry is as follows.

C. Facts of recognition

On December 11, 2009, the Plaintiff was awarded a contract with the Seoul Metropolitan Government for the Construction of Energy Epis Construction Works within the Outdoor Exhibition Center of the Seoul ampic Peace. On January 28, 2010, the Plaintiff: (a) designated six companies to select a subcontractor of the said construction works among the above construction works; and (b) conducted a selective tendering on February 3, 2010; (c) submitted a bid price of KRW 3,603,60,000 at the lowest price, as indicated below; and (d) the amount was within the scope of KRW 3,673,503,00,000, which is the estimated price for the bid of the instant construction works computed before the bid.

Table (units: 3,603,600, 575,000 - 28,600 3,044,894,000 for 3,048,000 for 3,048,674,000 for 3,000 for 3,000 for 3,000 for 3,048,674,000 - 374,000 - 4,242,700 5 for 4,300 for 4,242,70 5 for 4,300 for 4,308,70 for 5 for 4,300 for 4,308,706 for 6 (ju) for 500

However, on February 4, 2010 following the bidding, the non-party head of the building department, who belongs to the plaintiff, requested a reduction of the bid amount to the film engineering corporation, which is the second-order tender on February 4, 2010, but did not accept it. On the same day, the non-party head of the building department requested a reduction of the bid amount to the Han Heavy Industries corporation, which is the third-order tender on the same day, and consulted on the amount of KRW 3,674,000 which is lower than the initial bid amount. On the same day, the non-party head of the building department, who belongs to the plaintiff, demanded a reduction of the bid amount to 28,60,000 won, which is lower than the initial bid amount, and adjusted the amount of KRW 3,575,00

After adjustment of such amount, the Plaintiff entered into the instant subcontract with the contract amount reduced as above on February 4, 2010. In detail, the Plaintiff decreased the costs of materials, labor costs, and labor costs from the direct construction costs. On the other hand, the cost of direct construction costs increased to KRW 3,143,153,153,000, and the total amount of direct construction costs increased to KRW 11,154,153,000, and KRW 37,847,000,000, which is the initial bid amount, was determined to KRW 95,847,000,000, which is the first bid amount.

[Reasons for Recognition] The facts without dispute, Gap evidence Nos. 3, 4, Eul evidence Nos. 1 to 7, the purport of the whole pleadings

D. Determination

1) Judgment as to the Plaintiff’s assertion

Article 4 of the Subcontract Act generally prohibits the determination of unfair subcontract consideration under paragraph (1), while deeming that an act falls under any of subparagraphs 1 through 7 as an act of determining unfair subcontract consideration (see, e.g., Supreme Court Decision 2011Du2337, Feb. 23, 2012). Therefore, inasmuch as a subcontract price was determined at a price lower than the lowest bid price offered by a principal contractor in a competitive bidding, the determination of unfair subcontract consideration ought to be made regardless of whether unlawful means have been used in the said process. Therefore, the Plaintiff’s assertion otherwise premised on the premise is difficult to accept in itself (see, e.g., review again below whether justifiable grounds exist).

2) Judgment on the Plaintiff’s assertion

“Justifiable reason” to justify the determination of subcontract consideration at a price lower than the lowest tender price, such as the conditions of the construction site, reasons not attributable to the principal contractor, or reasons attributable to the subcontractor, etc., under Article 4(2)7 of the Subcontract Act, means the objective and reasonable reason to justify the determination of subcontract consideration at a price lower than the lowest tender price. The principal contractor shall assert and prove such fact, and individual and specific determination should be based on the case from the perspective of establishing a fair order in subcontract transactions (see, e.g., Supreme Court Decision 2011Du2337, Feb. 23, 2012).

In light of these legal principles, in full view of all the following circumstances acknowledged by each statement of evidence and evidence set forth in subparagraphs 9 through 11 (including paper numbers) of the above mentioned above, the plaintiff selected a priority bidder through a tender to enter into a contract at a price lower than the minimum price of the bid price, and it is difficult to see that there was a justifiable reason in the process. Thus, the plaintiff's assertion on this part is without merit.

① Article 2(1) of the Subcontract Act provides that “subcontracts” shall be construed as “compensation for the performance of services entrusted by a subcontractor and the supply, etc. to a prime contractor.” However, the direct construction cost and indirect construction cost shall not be limited to direct construction cost. If the prime contractor determines whether the subcontract price has been reduced solely by direct construction cost as alleged by the Plaintiff, the prime contractor may have reduced the total subcontract price unfairly through reduction of indirect construction cost, and thus, is contrary to the legislative intent of the Subcontract Act to effectively cope with unfair trade practices determined at an unreasonably low price and to establish a fair order in subcontract transactions.

② Even if a direct construction cost has been increased, if an indirect construction cost or total subcontract price has been reduced, a 5th week of the subcontractor may be deemed to have been reduced substantially. In full view of the fact that the subcontract price is likely to be re-determined based on the material cost and labor cost set at a lower level in the future, it shall be deemed that there was a disadvantage to the subcontractor.

③ The Plaintiff, without distinguishing direct construction costs and indirect construction costs, had been consulted with several companies to reduce the total amount of subcontract consideration. In particular, even though the bid amount of KRW 3,603,60,000 for the light metal was within the scope of the tender price of KRW 3,673,50,000 for the bid price calculated in advance by the Plaintiff, there was no change in circumstances in the bid price before and after the bid, the Plaintiff consulted with only three companies with low bidding price among the bidding participants on the following day for the purpose of reducing the contract amount. Furthermore, even if the increase in expenses without reasonable grounds compared to the original contract and the rate of each item is 6 per week), the Plaintiff’s internal construction work amount is merely stated in the total amount, and the reasons for adjusting the amount was not specified, and there was no written estimate revised by the items of construction work before the conclusion of the instant subcontract. In light of these circumstances, it can be deemed that the Plaintiff determined the subcontract price at a lower price than the lowest bid price to increase its own interest through the reduction of subcontract amount.

3. Conclusion

Thus, the plaintiff's claim is dismissed as it is without merit.

[Attachment 1] Omitted

[Attachment 2] A notice of order to complete education: omitted

[Attachment 3] Relevant Statutes: omitted

Judges Lee Jae-won (Presiding Judge) et al.

1) The contract amount was reduced by KRW 28,600,000 compared to the minimum bid amount. However, the payment of KRW 14,586,00 was ordered taking into account that the share ratio of the joint contract for the scrap iron was 51%.

2) Costs incurred directly in the performance of a contract, such as material costs, labor costs, direct construction costs, etc.

3) Legal expenses and incidental expenses commonly required for the execution of construction, such as insurance premiums, safety management expenses, and other expenses, shall be calculated by multiplying the total amount of direct construction expenses by a fixed rate per cost.

4) While direct construction cost has increased by 11,00,000 won, indirect construction cost has decreased by 37,000,000 won, the value of supply decreased by 26,000,000 won. Considering value-added tax 2,60,000 won, the contract amount was reduced by 28,60,000 won.

5) Profits shall be calculated by multiplying the total sum of direct and indirect construction costs and general management costs (calculated by multiplying the total sum of direct and indirect construction costs by the general management cost rate) by profit ratio.

(6) Direct construction costs under the original contract awarded by the Plaintiff consisting of 75.3% of the cost of materials, 24.2% of the cost of labor, and 0.5% of the cost. On the other hand, the average cost of direct construction cost per six enterprises participating in the lowest cost of construction is 59% of the cost of materials, 27% of the cost of labor, and 14% of the cost of construction.

Note 7) The Plaintiff’s internal statement (No. 4) is written only as “indirect cost control” and there is no specific content.