The case holding that in a case where Gap head of Gap Gun filed a lawsuit seeking revocation that the restriction on participation in bidding becomes illegal prior to the delivery of a written disposition on March 4, 2016, in which Eul Gun decided that the restriction period of participation in bidding was six months from the date of disposition on February 29, 2016, the restriction period of participation in bidding was set as six months from the date of disposition, and entered into the Electronic Procurement System, and Eul Gun filed a lawsuit seeking revocation that the restriction on participation in bidding becomes effective prior to the delivery of the written disposition by Eul Gun, as the result of qualification examination was confirmed to have submitted false documents by Eul.

In a case where the head of Gap and Eul-head of Gap filed a lawsuit seeking revocation of the restriction on participation in bidding before the notice of the disposition was served on March 4, 2016, on the grounds that the restriction period of participation in bidding was six months from the date of the disposition on February 29, 2016, the restriction period of participation in bidding was determined and published on the Electronic Procurement System, and that the restriction period of participation in bidding was illegal before the notice of the disposition was served on March 4, 2016, the case holding that even in a case of an administrative disposition such as restriction of participation in bidding under Article 11(1) and (2) of the Electronic Procurement Use and Promotion Act, it is not deemed that the electronic procurement was sent and received at the time of entry into the Electronic Procurement System, and that the restriction period of participation in bidding cannot be deemed legitimate even if the disposition was issued on February 29, 2016 by Gap-head of Gap and Eul-head of Gap-head of the Gun prior to the date of restriction on participation in bidding.

Article 1 [General Administrative Disposition] of the Administrative Litigation Act; Article 31 of the Act on Contracts to which a Local Government is a Party; Article 92 (1) 8 and (6) of the Enforcement Decree of the Act on Contracts to which a Local Government is a Party; Article 76 (1) of the Enforcement Rule of the Act on Contracts to which a Local Government is a Party; Article 11 (1) and (2) of the Electronic Procurement Utilization and Promotion Act

[Plaintiff-Appellant]

Audio Gun

August 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 (six months) against the plaintiff on February 29, 2016 shall be revoked.

1. Details of the disposition;

A. The Plaintiff is operating a comprehensive construction business (where the Plaintiff is operating an engineering work) in the Chungcheong City ( Address omitted).

B. On June 17, 2013, the Plaintiff was selected as the first successful bidder by participating in the tender for the remuneration and construction works of the voice group, which was publicly announced by the Defendant on June 17, 2013, but it was confirmed as a result of the Defendant’s qualification examination that some of the construction performance certificates and evidential documents submitted by the Plaintiff were falsely prepared. Accordingly, on July 31, 2013, the Defendant notified the Plaintiff that it was excluded from the subject of the successful bidder’s determination and that it is a plan to take measures for submitting false qualification examination documents.

C. On January 8, 2016, the Defendant issued a prior notice of the disposition to the Plaintiff, the procedure for hearing the Plaintiff’s attendance on January 28, 2016, and after deliberation by the Deliberation Committee on Contracts with the Sound Group on February 26, 2016, on February 29, 2016, pursuant to Article 31 of the Act on Contracts to Which a Local Government Is a Party (hereinafter “Local Contract Act”), Article 92(1)8 of the Enforcement Decree of the same Act, and Article 76(1) of the Enforcement Rule of the same Act (hereinafter “instant disposition”). The Defendant entered the instant disposition into the Electronic Procurement System pursuant to Article 92(6) of the Enforcement Decree of the Local Contract Act, and entered the restriction on the qualification for participation of unjust enterprisers (hereinafter “instant disposition”).

D. Meanwhile, the Plaintiff was served on March 4, 2016 on the instant disposition.

E. The Plaintiff dissatisfied with the instant disposition and filed an administrative appeal with the Chungcheongbuk-do Administrative Appeals Commission, but the said claim was dismissed on May 10, 2016.

[Reasons for Recognition] Facts without dispute, Gap evidence 1 to 5, Eul evidence 1 to 5, Eul evidence 1, 5 to 8 (including provisional number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

1) The plaintiff's assertion

A) On February 29, 2016, the Defendant, while rendering the instant disposition, set the time of the sanction period from February 29, 2016 to February 29, 2016, and entered it on the Electronic Procurement System on the same day, thereby making the Plaintiff effective the restriction on qualification for participation in bidding even before the written disposition of the instant disposition was served on the Plaintiff. Thus, the instant disposition is null and void as a matter of course.

B) In addition, the Defendant did not set the period of sanctions from February 29, 2016, and did not grant a sufficient period of time to the Plaintiff to receive the written disposition of the instant case and to appeal against, or to suspend the execution of, the instant disposition. As such, the Plaintiff lost the opportunity to exercise the right to receive remedy prior to the infringement of the instant disposition. Accordingly, the instant disposition is null and void as a matter of course.

2) The defendant's assertion

A) According to Article 11(2) of the Electronic Procurement Use and Promotion Act (hereinafter “Electronic Procurement Act”), an electronic document may be deemed sent and received when it is entered into the Electronic Procurement System. Thus, the instant disposition becomes effective upon entering the instant disposition into the Electronic Procurement System on February 29, 2016, by the Defendant’s entry of the instant disposition into the Electronic Procurement System, and upon notification to the Plaintiff on the same day.

B) As the Administrative Appeals Act and the Administrative Litigation Act grant a sufficient period of time for objection to an administrative disposition, the Defendant cannot be deemed to have deprived of the opportunity for exercise, such as the Plaintiff’s right to file an application for suspension of execution and the right to file an administrative appeal, on the sole basis of the fact that the document of disposition in the instant case reaches the Plaintiff merely after the entry into force on February

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) In the case of an administrative disposition involving the other party, such administrative disposition shall take effect in accordance with the general legal doctrine of expression of intent, unless otherwise expressly provided for therein (see Supreme Court Decision 2011Du31635, Nov. 15, 2012). However, Article 11(1) of the Electronic Procurement Act refers to electronic documents related to public notice of competitive bidding, tender documents, and procurement services, such as electronic contracts (Articles 6 through 10 of the same Act). In the case of the electronic document under Article 11(2), the electronic document shall be deemed sent and received at the time of entry into the Electronic Procurement System, and even in the case of an administrative disposition such as restrictions on participation in bidding, it shall not be deemed to have been transmitted and received at the time of entry into the Electronic Procurement System, and thus, even if the Defendant imposed the restriction period on participation in bidding on February 29, 2016 and notified the Plaintiff of its validity from February 29, 2016 to August 28, 2016.

Therefore, the limitation period of qualification for participation in bidding alone is determined to begin from the date of the disposition in this case, and the disposition in this case cannot be deemed to take effect without being served, and it cannot be deemed to have any disadvantage to the plaintiff. Thus, the disposition in this case cannot be deemed to be unlawful on such ground (see the above Supreme Court Decision). The plaintiff's assertion in this part

2) Furthermore, as to whether the Defendant unlawfully deprived the Plaintiff of the opportunity to apply for administrative appeal, suspension of execution, etc. due to the same time as the date of the disposition, the instant disposition takes effect, as seen earlier, and the restriction period prior to the notification to the Plaintiff does not take effect. As to that part of the restriction period, there is no possibility to deprive the Plaintiff of the opportunity to exercise the right. The Defendant issued a prior notification of the disposition to the Plaintiff on January 8, 2016, prior to the instant disposition, and held hearings on January 28, 2016. As such, the Plaintiff could have anticipated that the instant disposition would take place. The Plaintiff could not immediately file an administrative appeal or administrative litigation and seek suspension of the execution of the instant disposition (i.e.,,, the Plaintiff’s submission of the instant disposition to the Defendant prior to the instant disposition and demanded the Defendant to hear the fact of the instant disposition, and thus, cannot be seen to have claimed the opportunity to receive the Plaintiff’s appeal and the opportunity to receive the instant disposition before being served with the Plaintiff’s right to object of the disposition.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

[Separate] Relevant Acts and subordinate statutes: omitted

Judges Yang Sung-Gyeong (Presiding Judge)