2010, 2447 Verification of Successful Bidders

주식회사 @@@@

#### 입주자대표회의

April 8, 2011

April 29, 2011

1. 피고가 2010. 11. 29. 경비용역업체 선정 공고 제10-01호로 공고하여 같은 해 12. 13. 실시한 ####### 경비용역업체 입찰의 공고된 낙찰자결정방법에 따른 낙찰자 지위가 원고에게 있음을 확인한다.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Basic facts

가. 피고는 포항시 북구에 소재한 ####### 아파트(이하 '이 사건 아파트'라 한다)의 동별 대표자들로 구성된 입주자대표회의이고, 원고는 2010. 1. 1. 부터 2010. 12. 31.까지 이 사건 아파트의 경비용역업무를 수행한 회사이다.

B. On November 29, 2010, the head of the management office of the apartment of this case publicly announced the selection of a security service company as the head of the management office of the apartment of this case. The main contents are as follows (hereinafter “tenders for the selection of security service company of the apartment of this case”).

3. Qualifications for participation;

(a) A business entity that does not fall under any ground for disqualification under Article 19(1) of the Notice of the Ministry of National Land (No. 2010-445). (b) At least ten controlled entities (the telephone number of the certificate of performance) as of the date of public notification; at least 100

(d) An enterprise which can be called up within one hour at the statutory economic speed in the event of a defect or more;

4. Documents to be submitted.

(a) All the documents under Articles 2010-445 and 20 of the Public Notice of the Ministry of National Land;

(b) a tender shall use the form of a tender in the attached Form publicly notified by the Ministry of Land, Transport and Maritime Affairs, and the bid price shall be the amount calculated by multiplying the service cost by the number of months of the service period (excluding surtax);

Bid bonds, etc. shall be governed by the provisions of Chapter 6 (Deposit) of the Public Notice.

6. Date and venue of opening of bids;

(a) Temporary date: December 13, 2010, 20:00

B. Place: The plaintiff was the council of occupants' representatives of the apartment. The six enterprises including the plaintiff, the corporation, and the others (hereinafter referred to as "the plaintiff, the corporation,") submitted a tender to participate in the instant bidding, and the plaintiff stated KRW 515,160,000 on the tender price that the plaintiff had received KRW 514,64,00.

라. 피고는 2010. 12. 13. 총 10명의 동별 대표자 중 8명이 참석한 가운데 회의를 개최하여 원고가 제출한 입찰서는 개찰하지 아니한 채 있었었었었었를 최저가 낙찰자로 선정하고, 2010. 12. 17. 이 사건 입찰에 따른 경비 용역업체로 선정한다고 공고하였는데, 당시 작성된 회의록에는 '(주)@@@@(원고)는 입찰개봉 전 연령, 연차수당 등 경비원들의 불만이 너무 많고 불성실한 문제도 있고 주민들의 신뢰도가 너무 떨어져 기타 등 여러 가지 문제점으로 대표회의에서 참가시키지 않기로 전원 찬성으로의 결함'이라고 기재되어 있다.

E. The statutes pertaining to the instant tender are as follows.

1) Enforcement Decree of the Housing Act (Presidential Decree No. 22479, Nov. 10, 2010), Article 55-4 of the Enforcement Decree of the Housing Act (Presidential Decree No. 22479, Nov. 10, 2010) (the management entity that selects a business operator for the execution of management expenses, etc. shall select and execute business operators by contract method publicly notified by the Minister of Land,

1. Services and works for cleaning, security, disinfection, maintenance of elevators, intelligent home networks, repair and maintenance (including the cleaning of cooling and heating facilities);

2) Article 2 (Scope of Application) of the Guidelines for Selection of Housing Management Operator and Business Operators (No. 2010-445, July 6, 2010, published by the Ministry of Land, Transport and Maritime Affairs No. 2010) (hereinafter “instant Guidelines”) (hereinafter “instant Guidelines”) is as follows:

2. Guarding, cleaning, disinfection, maintenance of elevators, maintenance of intelligent home networks, repair and maintenance, and sale of goods, etc. by the managing body (referring to the head of a management office of multi-family housing; hereinafter the same shall apply);

(1) Where he/she selects a construction business operator or selects a construction business operator to perform long-term repair works with long-term repair appropriations;

제3조(입찰의 방법》 ① 입찰의 종류 및 방법은 별표 1에 따른다.

(2) The management authority may select a contract not suitable for a competitive tender, such as construction works and services not exceeding two million won, through a private contract under attached Table 2.

[Attachment Table 1] (Relation to Article 3(1)

A person shall be appointed.

A person shall be appointed.

Article 4 (Establishment of Tenders) (1) Tenders shall be constituted by two or more effective bids.

(2) The council of occupants' representatives and the management entity shall not apply the selection by consultation, selection of persons subject to preferential negotiations, or any other method similar thereto.

제6조(낙찰의 방법》 낙찰의 방법은 다음 각 호와 같다.

1. Minimum successful bidder system: Method of selecting the lowest bidder as the successful bidder;

2. The highest successful bidder system: The method of selecting persons who have tendered on the highest price as successful bidders, shall not participate in any of the following competitive bidding as at the date of the public announcement of tender, and where a business operator participates in such competitive bidding, the relevant competitive bidding shall be invalidated:

1. A person who fails to complete a license, registration, etc. under the relevant statutes for each type of business;

2. A person subject to a disposition of business suspension under the relevant statutes, for whom the period has not elapsed.

3. A person who has unpaid national or local taxes;

4. A person who provides money, goods, development funds, etc. to members of the council of occupants' representatives, the head of management office or management staff;

5. Members of the council of occupants' representatives of the relevant multi-family housing (including their spouse and lineal ascendants and descendants), the head of the management office or the management staff of the relevant multi-family housing; 6. A person in whose case six months have not passed since he/she was subject to a penalty surcharge imposed by the Fair Trade Commission by bidding collusion in relation to the selection of business operators;

Article 23 (Conclusion of Contracts (1) When a management authority concludes a contract for the selection of a business operator, it shall receive a letter of performance guarantee or a document equivalent thereto from the service or construction business operator.

(2) If a service provider, etc. fails to conclude a contract within ten days, the contract may be invalidated.

Article 28 (Opening of Tenders and Successful Tenders) (1) When the council of occupants' representatives or the management entity intends to open a tender, it shall open the tender at an open place where one person participating in the tender, the contracting officer of the management entity and interested persons are present, and determine the successful bidder pursuant to Articles 12

[Attachment 4] Ships

A person shall be appointed.

A person shall be appointed.

[Reasons for Recognition] Facts without dispute, Gap evidence 1 through 6, Eul evidence 7-1.2

2. Summary of the plaintiff's assertion

In the case of the plaintiff, the plaintiff was qualified to participate in the bidding of this case, and all the documents required in the bidding of this case were submitted. Above all, although the company which presented the lowest bidding price by means of competitive bidding and adopted the lowest bid price system which is to be selected as a successful bidder, the defendant decided that the plaintiff offered the lowest bid price without opening the bid price, which was determined as a successful bidder. This act by the defendant is null and void because it disturbs the order of the bidding and substantially infringes on the fairness and predictability among the participating parties, and thus, it is significant that the plaintiff's status as a successful bidder under the bidding of this case is judged as a successful bidder.

3. Determination

A. The reason for the enactment of the instant guidelines and the Ministry of Land, Transport and Maritime Affairs, as the Ministry of Land, Transport and Maritime Affairs amended Article 52 and Article 55-4 of the Enforcement Decree of the Housing Act, have enacted the instant guidelines and implemented them from July 6, 2010. The reason for the enactment is to ensure the transparency and fairness of multi-family housing management by having a housing management operator and a business operator select various business operators, including housing management operator, cleaning, security, and services in multi-family housing through competitive bidding publicly notified by the Minister of Land, Transport and

As seen above, the main contents are as follows. (1) In the case of selecting a housing management operator, the council of occupants' representatives shall determine and enter into a contract with a person who tenders at the lowest price through competitive bidding; and (2) in the case of selecting various business operators of multi-family housing such as cleaning, security, disinfection, services, etc., the management entity shall have the person who tenders at the lowest price through competitive bidding (However, a negotiated contract with a housing management operator is a free contract with two million won) decide and terminate the selection. In the case of selecting various business operators such as cleaning, security, and services in a multi-family housing, there are many interested parties surrounding the selection of a housing management operator and a housing management operator, as well as the interested parties, if the process of selection is unsatisfy or unfair, and ultimately, the damage must be returned to the occupants, taking into account the reasons for the enactment of the guidelines of this case, it is necessary to ensure transparency in the selection process as well as fairness and appropriateness by strictly observing the relevant statutes including the guidelines of this case

(b) Where a tendering procedure is invalidated;

Meanwhile, even though the determination of a successful bidder or a contract based thereon is not null and void as a matter of course solely on the grounds that there are defects in the bidding process, if it is obvious that the other party knew or could have known of such circumstances, and that the determination of a successful bidder and the conclusion of a contract were made through an act contrary to good morals and other social order, it shall be interpreted that such determination of a successful bidder and the conclusion of a contract are null and void (see, e.g., Supreme Court Decisions 2001Da33604, Dec. 11, 2001; 2006Ma117, Jun. 19, 2006).

C. We live back to the instant case.

The following circumstances are acknowledged as follows: ① the Plaintiff’s participation in the bidding should have been granted an opportunity to participate in the bidding under the same conditions as other companies participating in the bidding of this case; ② the bid of this case should have been conducted by the method of determining the lowest bidder among the bidding participants through the opening of open places; and the Defendant should not apply the selection of a bidder, priority bidder, or any other similar method; ④ the Plaintiff’s participation in the bidding of this case did not have any choice of the minimum bid price, and the Defendant could no longer have any choice but to determine the Plaintiff’s participation in the bidding as a successful bidder, not the Plaintiff’s participation in the bidding of this case. However, the Defendant did not appear to have been able to have been able to have been able to recognize the Plaintiff’s participation in the bidding of this case as a successful bidder in the bidding of this case without any further opening of the bid by the Plaintiff’s participation in the bidding of this case, including the Plaintiff’s reliance in the bidding of this case’s participation in the bidding of this case’s 10th bidding.

Therefore, the plaintiff who presented the lowest bid price in the bidding of this case shall have the status of successful bidder in the bidding of this case, and as long as the defendant contests this, the plaintiff shall have the interest to seek confirmation by the lawsuit of this case.

4. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.

The presiding judge, judges and motion pictures

Judge Lee Jae-soo

Judges Bo Young-ia