E. S. Co., Ltd (Law Firm LLC, Attorneys Quota-soo et al., Counsel for the plaintiff-appellant)

The Administrator of Public Procurement Service

May 25, 2016

1. The plaintiff's claim is dismissed.

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

The defendant's disposition of restricting participation in bidding for three months from November 20, 2015 to February 19, 2016 against the plaintiff on November 12, 2015 is revoked.

1. Details of the disposition;

A. On July 2015, at the request of the Korea Education Research Information Institute, the Defendant, a quasi-governmental institution entrusted with the execution-type, published a tender on the “establishment of the system for the preservation of school life records (hereinafter “instant tender”),” which is a “establishment of the system for the preservation of school life records (hereinafter “instant project”), and the Plaintiff, the business system, and the Esp system, and the Espists participated in the instant tender.

B. The public notice of the instant tender contains the following descriptions as to the applicable laws:

This contract is subject to the integrity contract system under the Act on Contracts to Which the State is a Party (hereinafter referred to as the "State Contract Act"). - If a successful bidder provides money, goods, entertainment, etc. to a relevant public official, this will be subject to the disposition of restricting the participation of unjust enterprisers in bidding under the Enforcement Decree of the Act on Contracts to which the State is a Party (hereinafter referred to as the "Enforcement Decree of the State Contract Act"). - When any act interferes with fair competition, such as prior consultation on bid prices or collusion for a specific person, it will be subject to the disposition of restricting the participation of unjust enterprisers in bidding under the Enforcement Decree of the State Contracts Act. Article 27-5 of the State Contracts Act and Article 12 (3) of the Enforcement Decree of the same Act are "person who has evaded taxes, etc." and for whom two years have not passed from the date of conviction, it shall not participate in bidding. This project is subject to the provision of Article 76 (1) 18 of the Enforcement Decree of the State Contracts Act or Article 4 of the Enforcement Decree of the State Contracts Act.

C. The Plaintiff submitted the instant proposal during the bid process (hereinafter “instant proposal”). Nonparty 1’s affiliated personnel, who is the Plaintiff’s affiliated personnel, was indicated as “Plaintiff” among the input personnel of the instant proposal, but Nonparty 1 was not the employee of the Plaintiff, but the employee of the Non-Party 1, who was the employee of the Non-Party 1 (hereinafter “Non-Party 1”).

D. After July 23, 2015, the evaluation of the instant project was conducted on July 23, 2015, and the evaluation of the proposal was conducted by each company that responded to the instant tender in the manner that the member presented the proposal to the review committee. At the time of the presentation of the foregoing proposal, the review committee asked Nonparty 2, who is an employee of the Plaintiff, about Nonparty 1, and Nonparty 2 responded to Nonparty 1, who is not an employee of the Plaintiff.

E. On July 23, 2015, the Plaintiff responded to the Defendant’s request for confirmation of facts by the Defendant, and Nonparty 1 was not an employee working in the Plaintiff. Nonparty 1’s entry in the instant proposal is a simple error that occurred during the preparation of the instant proposal, and Nonparty 1 was asked to confirm that Nonparty 2 was not an employee of the Plaintiff at the time of presentation of the proposal.

F. On August 3, 2015, the Defendant issued a notice to the Plaintiff that the Plaintiff excluded the Plaintiff from the subjects of negotiations based on the issue of Nonparty 1’s entries included in the instant proposal. On November 12, 2015, on the ground that the Plaintiff submitted false documents (hereinafter “instant act”), pursuant to Article 27(1) of the State Contracts Act and Article 76 of the Enforcement Decree of the State Contracts Act, the Defendant issued a disposition restricting the Plaintiff’s participation in bidding from November 20, 2015 to February 19, 2016 (hereinafter “instant disposition”).

【Ground of recognition】 The fact that there has been no dispute, Gap Nos. 1, 2, 3, Eul Nos. 1 and 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition is unlawful for the following reasons.

1) Non-existence of disposal authority

Article 5-2(3) of the Act on the Management of Public Institutions (hereinafter “the Management of Public Institutions”), which is a quasi-governmental institution, is the “Korea Education Research Information Institute,” and thus, the procedure for the instant tender is subject to the Act on the Management of Public Institutions, and should be examined as to whether to restrict the Plaintiff’s qualification to participate in bidding on the grounds of the Act on the Management of Public Institutions. Article 2(2) of the Act on the Management of Public Institutions provides that “If any other Act provides otherwise with respect to a public institution, this Act shall prevail except when the Act provides otherwise, shall apply.” Article 3 of the Act on the Management of Public Institutions does not provide that the State Contracts Act shall apply to a procurement contract. Article 3 of the State Contracts Act provides that the State Contracts Act shall not apply to cases where special provisions exist in other Acts, and Article 5-2(3) of the Act on the Management of Public Institutions (hereinafter “Public Institutions Act”). Article 5(3) and (4) provides that the Defendant shall be subject to the restriction on the qualification to participate in bidding of a specific person under the State Contracts Act.

2) Non-existence of grounds for disposition

Article 39(2) of the Act on the Management of Public Institutions provides that “A public corporation or quasi-governmental institution may restrict participation in bidding for a certain period not exceeding two years against any person, corporation, organization, etc. that is obviously likely to undermine fair competition or appropriate implementation of contracts.” Even if the State Contracts Act applies to the instant disposition, the requirements of “a person who is deemed likely to undermine fair enforcement of competition or appropriate implementation of contracts, or is deemed inappropriate to participate in bidding.” Of the instant proposal, the part on which Nonparty 1’s entry in the instant proposal was originally adopted is merely a simple clerical error arising from Nonparty 5’s input of Nonparty 1 into another DA human resources to indicate his intention to refuse membership, and thus, does not satisfy the requirements for restrictions on participation in bidding prescribed by the State Contracts Act and the Public Institutions Operation Act.

3) Violation of the principle of proportionality

The instant action is unlikely to interfere with the fair execution of competition or the faithful performance of contract. On the other hand, the Plaintiff is dependent on the public order service of 70% of the entire project, and the Plaintiff is unable to operate the business during the sanctions period pursuant to the instant disposition, and the existence itself is likely to be endangered. Therefore, the instant disposition goes against the principle of proportionality.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Existence of the basis laws and regulations for the instant disposition and the authority of disposition

A) On the other hand, Article 2 of the State Contracts Act provides that "the State Contracts Act shall apply to government procurement contracts under international tendering procedure and contracts to which the State is a party, such as contracts to which the State is a party (including contracts which become grounds for revenue)," and Article 3 of the State Contracts Act provides that "Except as otherwise provided in other Acts, with respect to contracts to which the State is a party, the State shall be governed by the State Contracts Act." According to the above facts, the parties to the service contract to be concluded through the bidding of this case shall be the successful bidder and the defendant who is a State agency, and the Korean Education Information Institute, a procuring entity, is a beneficiary of the above service contract corresponding to the contract for a third party (see Supreme Court Decisions 2002Da74947, Jan. 28, 2005; 92Da41599, Aug. 12, 199; 2009Da56160, Jan. 28, 2010).

B) In the instant bidding notice, where the instant bidding contract under the State Contracts Act is subject to the integrity contract system under the State Contracts Act, and the instant bidding contract obstructs fair competition in bidding and contract in the process of bidding, successful bid, contract conclusion, or contract execution, etc., it is clearly stated that the instant bidding contract may be subject to a disposition of restriction on participation in bidding by unjust enterprisers pursuant to the State Contracts Act. As such, it is reasonable to view that the State Contracts Act applies not only to a series of procedures from bidding to contract execution, but also

C) Meanwhile, Article 2(2) of the Act on the Management of Public Institutions provides that “In the event that other Acts prescribe otherwise, this Act shall take precedence over the application of this Act except when this Act provides that public agencies shall comply with the provisions of this Act.” However, the Korea Education Research Information Institute is not performing its duties concerning contracts for the instant project by itself as the contracting party, but it is merely entrusted to the Defendant pursuant to Article 5-2(1) and (2) of the Public Procurement Act, Articles 44(2) and 39(3) of the Public Institutions Operation Act, and Article 7(1) of the Rules on the Contract Affairs of Public Institutions and Quasi-Governmental Institutions, so it is difficult to view that the instant disposition should be governed by the Public Institutions Operation Act.

In addition, Article 7(1) of the Local Contracts Act explicitly provides for the delegation and entrustment of contract affairs to the head of a central administrative agency, which is subject to the State Contracts Act, similar to Articles 44(2) and 39(3) of the Public Institutions Operation Act, and Article 7(1) of the Rules on Contracts to Public Corporations and Quasi-Governmental Institutions. Article 7(2) of the Local Contracts Act provides that “The contracting officer of an agency that is delegated or entrusted with contract affairs pursuant to paragraph (1) shall manage the contract affairs as prescribed by this Act unless otherwise provided for in other Acts: Provided, That the contracting officer of an agency that is delegated or entrusted with contract affairs pursuant to the State Contracts Act shall manage the contract affairs as prescribed by this Act if delegated or entrusted to the head of a central administrative agency or a specialized agency to which the State Contracts Act applies in the status of an end-user institution shall be subject to the Local Contracts Act even if delegated or entrusted with contract affairs to the head of the same central administrative agency, but there is no such provision in the Rules on Contracts to Public Corporations and Quasi-Governmental Institutions.

D) Article 5-2(3) of the Public Procurement Service Act provides that “The Administrator of the Public Procurement Service shall, if requested to conclude a contract pursuant to paragraphs (1) and (2), consult with an end-user institution in accordance with the law applicable to the conclusion of the contract.” This is not a provision on the scope of application of the law governing the law applicable to cases where a end-user institution administers the affairs entrusted to the Defendant by the Defendant, but rather a provision on the scope of application of the law governing the matters to be applied to the case where the end-user institution administers the affairs entrusted to the Defendant. As seen above, it is determined by the interpretation of the law directly governing the scope of application of the law applicable to the contract requested by the Defendant according to the nature of the end-user institution (in the case of a local government, the local contract law, the State Contracts Act in the case of a public institution), the method of concluding the contract (e.g., whether it will be subject to general competition or a free contract), and

(E) Article 5(3) and (4) of the Procurement Act provides that “A joint supply and demand organization which has agreed upon a bid price in advance with each other during the competitive bidding process under paragraph (2) or has conspired for a specific person to award a successful tender shall be restricted to the qualification for participation in the tender pursuant to Article 27 of the State Contracts Act.” However, the above provision does not relate to a request procurement contract stipulated in Article 5-2 of the Procurement Act, but it is merely a confirmation that the members of a joint supply and demand organization who have engaged in collusion with regard to a procurement contract through competitive bidding among joint supply and demand organizations consisting of small and medium enterprises as stipulated in Article 5(2) of the Procurement Act shall be restricted to the qualification for participation in the tender pursuant to Article 27 of the State Contracts Act, and in other cases, it shall not be construed that

F) A disposition imposing restrictions on participation in bidding is a disposition that gives considerable discretion to an administrative agency regarding the determination of disadvantageous measures. In order to appropriately exercise such discretionary power, it would be necessary to accurately grasp the fraudulent act that occurred in the process of concluding a request procurement contract. However, with expertise and experience in concluding a contract and the work system to ensure fairness in performing duties, etc., it is highly likely that the Defendant, who is an agency directly in charge of concluding the relevant contract, can appropriately exercise discretionary power by properly grasping the substance of the fraudulent act and the circumstances related thereto most accurately. Therefore, in order to prevent unjust enterprisers who are likely to undermine fair competition in the tendering process or appropriate implementation of contracts, and to achieve the purpose of imposing sanctions on unjust enterprisers who intend to secure faithful performance of contracts, the authority to impose sanctions is reasonable. Accordingly, in a procurement contract where a public agency is a procuring entity, the State Contracts Act applies to the conclusion of contracts, which is a procuring entity, the authority to impose restrictions on participation in bidding is removed, deeming that the Act on the Operation of Public Institutions applies only to the public corporation and quasi-government agency, which is the head of a local government.

G) In full view of the above, it is reasonable to view that the Act applicable to the tender of this case and the disposition of this case is the State Contracts Act, and that the head of a central government agency has the authority to impose restrictions on the qualification for bidding against unjust enterprisers pursuant to Article 27(1) of the State Contracts Act, and thus, the Plaintiff’s assertion disputing the authority to dispose of this case on

(ii) the existence of the reasons for the action

As seen earlier, the State Contracts Act applies to the instant disposition. Therefore, we examine whether the instant act satisfies the requirements of restriction on qualification for participation in bidding under Article 27(1) of the State Contracts Act.

The purport of Article 27(1) of the State Contracts Act, which limits the qualification of unjust enterprisers to participate in a tendering procedure, is to ensure fair tendering procedure and order in a contract in which the State is a party not to participate in a tendering procedure for a certain period, thereby preventing any disadvantage that the State will sustain, at the same time, at the same time, by ensuring the faithful performance of the contract entered into by the State. Thus, in order to constitute “a person who submits false documents” under Article 76(1)8 of the Enforcement Decree of the State Contracts Act, specific cases should be acknowledged that there is a possibility that the submission of false documents would be detrimental to the fair enforcement of competition or appropriate performance of the contract, or that it is inappropriate to allow the person to participate in a tendering procedure, taking into account the details and details of the conclusion of the contract, the preparation and submission of false documents, the details of the false documents, and the importance of the false documents to the contract (see, e.g., Supreme Court Decisions 2006Du16458, Nov. 29, 2007; 2013Du268111

As to this case, the following facts are acknowledged in full view of the health care unit, the evidence mentioned above, the evidence mentioned above, the evidence mentioned in Gap 5 to 10, Eul 1, 3, and 4, the witness testimony mentioned in non-party 4, and the purport of the whole pleadings.

① Nonparty 1, a DA’s employee, was written as “Plaintiff,” among the inputs of the instant proposal, but Nonparty 1 was not an employee of the Plaintiff, but an employee of the Vienna, and thus, the aforementioned written statement was inconsistent with the facts.

② On July 8, 2015, the Plaintiff: (a) conducted an interview with Nonparty 5, a human resources of the instant project, to be employed as a “head of division” employee; (b) Nonparty 5, prior to the interview with the Plaintiff on July 10, 2015, became an employee of another company that had already been interviewed with the Plaintiff, and expressed his intention to refuse to enter the instant project. On the other hand, on July 14, 2015, the Plaintiff was recommended by Vienna as a human resources of the instant project, Nonparty 1, a human resources of the instant project, from Non-Party 1, who were affiliated with the Plaintiff, as a human resources of the instant project. Accordingly, the Plaintiff was to delete the contents of Non-Party 5, which were written as the human resources of the instant project, as the human resources of Non-Party 1, who were to be invested in the instant project, and then submitted the instant proposal and its contents on behalf of Non-Party 1, the Plaintiff, on July 15, 2015.

③ The Korea Education Research Information Institute demanded that “the proposing human resources shall be composed of one’s own human resources or a joint subcontractor, and other human resources belonging thereto shall be deemed subcontracting, and if the other party does not express his/her subcontract intention, he/she shall be replaced by his/her own human resources of the consortium.” Of the written request for proposal for project management of the instant project, Nonparty 4 of the Plaintiff’s employee, who performed his/her duties as a general manager of the instant proposal, was well aware of the requirements of the Korea Education Research Information Institute.

④ While the Plaintiff employed Nonparty 5, who originally sought to enter the instant project, as a head of a department, the Plaintiff entered Nonparty 1’s position among the inputs of the instant proposal submitted to the Defendant as a head of a department, and accordingly, the position was modified among the inputs of the DA manpower, and other matters of service experience (period), experience, and career experience in the relevant field were accordingly modified to Nonparty 1.

The following facts found based on the above facts and evidence, i.e., (i) the Plaintiff’s attempt to urgently secure DNA human resources to be invested in the instant project without revising only the records belonging to Nonparty 1, and (ii) it appears that the Plaintiff did not have any essential and important role in the implementation of the instant project; and (iii) even if the entry of the DA human resources to be invested in the instant project is not expressly included in the items for the evaluation of proposals, it is difficult to avoid the possibility that Nonparty 1 would have been awarded higher points if the Plaintiff knew that it was not accompanied by Nonparty 1’s certificate of employment at the time of the evaluation of proposals, and (iv) the Plaintiff’s assertion was “Plaintiff” that the Plaintiff stated about Nonparty 5, without revising only the records belonging to Nonparty 1, the first time, and that it was difficult for Nonparty 4, as the manager of the instant proposal, to have known of the requirements for the selection of the Korea Institute of Academic Information for the instant project, based on the following facts:

Therefore, the Plaintiff, “a person who submits false documents concerning tendering” under Article 76(1)8 of the Enforcement Decree of the State Contracts Act, constitutes “a person who is deemed likely to undermine the fair enforcement of competition or appropriate performance of contracts” under Article 27(1) of the State Contracts Act, and thus, the Plaintiff’s assertion that there is no ground for disposition on a different premise is without merit.

3) Whether the principle of proportionality is violated

However, there is no evidence to acknowledge that the existence of the Plaintiff’s 70% of the entire project depends on the public order service and the existence of the Plaintiff’s business could be endangered during the sanctions period following the instant disposition. In other words, according to the criteria for administrative disposition prescribed in Article 76(1) [Attachment 2] of the Enforcement Rule of the State Contracts Act, the Defendant should, as a matter of principle, impose a restriction on the Plaintiff’s participation in bidding for six months with regard to the submission of fraudulent documents as in the instant case. However, considering the favorable circumstances favorable to the Plaintiff pursuant to Article 76(4) of the Enforcement Rule of the State Contracts Act, the Defendant reduced the sanctions period of the instant disposition and set it three months to the maximum extent permitted by the foregoing provision. ② The Plaintiff, who tried to be selected as a successful bidder in the instant bidding by submitting false documents through the instant disposition, excluded the Plaintiff from participating in the bid for a certain period of time, thereby maintaining order in the bidding process and ensuring the performance of the contract that the State concludes in good faith and preventing any disadvantage that the State may incur.

Therefore, the plaintiff's assertion on this part is without merit.

3. Conclusion

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

[Attachment]

Judges Kim Yong-chul (Presiding Judge)