2012Guhap30196 Business Exclusion and Revocation of Selection

A Stock Company

The Minister of Trade, Industry

July 3, 2013

August 30, 2013

1. All of the Plaintiff’s claims are dismissed. 2. Costs of lawsuit are assessed against the Plaintiff.

The defendant's disposition on August 23, 2012, excluding the plaintiff from support for the Costaco consortium, including the plaintiff, and the decision on selecting a business operator for the modern Heavy Industries consortium, shall be revoked.

1. Details of the disposition;

A. Defendant 1, as one of the projects for industrial technology development under the Industrial Technology Innovation Promotion Act, publicly announced the 201 "Projects for supporting the new market-oriented project for future leading industrial technology development projects (the purpose of creating a new industry and developing the core future leading technology that has a large ripple effect on the industry)" (hereinafter referred to as "public announcement of this case"). The main contents of the public announcement should be as follows: (a) to select one executing institution for industrial technology development by comprehensively assessing the results of the task planning and the appropriateness of the project plan for technology development by making comprehensive evaluation of the project plan with the participation of the consortium in each specific task, and (b) to select one conducting institution for industrial technology development with the highest point among those with the highest point of 60 points or more; and (c) to provide the institution with the government contributions of KRW 508 billion to KRW 508 billion for the next six years.

B. Among the detailed tasks of the notice of this case, the term "marine plant task for the production of deep sea resources" (hereinafter referred to as the "instant task") is a task aimed at the development of eco-friendly offshore plant system engineering and core equipment for the production of deep sea resources at 3,000 meters in depth, and the "Skico consortium" comprised of the plaintiff and 27 companies and institutions, and the "Skico consortium" comprised of 51 companies and institutions, both Hyundai Heavy Industries Co., Ltd. support the instant task. In order to select the project target, the defendant selected 12 members in the field related to the development of offshore plant technology from among the evaluation members belonging to the "Evaluation Team for the Evaluation of Knowledge Economy Technology Innovation". The selection evaluation committee conducted the planning task (20 points), the technical and development ability (40 points) and the implementation plan and announcement contents of technology development, etc., together with the planning point (20 points) and the evaluation point (180 points (20 points) points (180 points).

D. Around June 13, 2012, the head of the Strategic Planning Group notified each consortium of the results of the evaluation of the aforementioned Selection Evaluation Committee (at the same time, the Plaintiff’s representative was dismissed on June 26, 2012. E. On July 27, 2012, the Hyundai Heavy Industries consortium entered into an agreement with the Korea Evaluation Institute of Industrial Technology and Technology and the total period of technology development with KRW 72 months from July 1, 2012 to June 30, 2018, with respect to the implementation of the instant task.

F. On August 23, 2012, the Defendant: (a) determined the results of the selection evaluation that the Hyundai Heavy Industries consortium was selected as the business entity subject to the instant task; and (b) notified each consortium of the results of the selection evaluation that the business entity did not select the business entity (hereinafter “each of the instant dispositions”) by finally determining the results of the selection evaluation; and (c) notified each consortium (hereinafter “each of the instant dispositions”).

[Basis] Evidence Nos. 1 and 2-1, 2, Gap evidence Nos. 3, 4, 5, 8, Eul evidence Nos. 1 and 2, and the purport of the whole pleadings

2. The plaintiff's assertion

Since the evaluation of the Costaco consortium was very unfair and unreasonable as follows, each of the dispositions in this case is unlawful.

(a) An error in the application of the Minister of Foreign Affairs;

In the notice of this case, in relation to the selection of a business operator, the government contributions (%) at the source technology development stage of 60:40, the government contributions (%) at the source of 60:50 additional points in addition to 5:50 additional points in addition to 10 additional points in addition to 50:50. On the ground that the above rate was set at 50:50 points in addition to 10 additional points in addition to the final evaluation, the above rate was adjusted to 52.7:47.3 and only 5 additional points were granted in addition to 10 (50:50) or 8.65 points in addition to additional points (in addition to the calculation of additional points by ratio) even if the rate was adjusted, the additional points should have been granted.

(b) Unreasonable evaluation opinions;

1) The defendant did not evaluate contradictoryly in assessing the appropriateness of planning results, ‘technical and technological development ability,' and ‘economic and commercialization potential', or did not properly reflect the claim of the Costaco consortium.

2) In addition, an assessment was conducted based on the trend that the technology dependence on foreign companies is high, the dependence on the general manager is high, or the development capacity is insufficient, or that the link between patent analysis results and technology development strategies and the response strategies are insufficient, but this is a biased assessment based on the trend that it is mainly a small and medium enterprise’s competence is insufficient.

C. In the process of unfair selection and evaluation, the defendant announced the evaluation committee's score in advance before the evaluation committee members, and knew that the evaluation committee's score was many of the evaluation team's score. The problem was that the person responsible for the original announcement was not present, and the Korean Marine University was the responsible institution for the management of the evaluation committee. The problem was that the Korean Marine University was the responsible institution for the management of the evaluation committee at first time due to the error on the part of the defendant. In the process of the entire process, the evaluation committee's score after deducting additional points was presented, and the evaluation committee's score was not 24.2 or 24.2 or 24. In addition, in the whole process, the large enterprises belonging to the Congested Industries continued to withdraw from the evaluation committee at the time of the company belonging to the consortium.

D. Many of the 12 selected and assessed members related to the 12 selected and assessed members are non-professionals in the marine area, and the defendant does not disclose the evaluation contents and assessed points of each of the selected and assessed members, even though they are not confidential. This is against the fact that the evaluation was not conducted fairly.

3. Determination on this safety defense

A. The defendant's main defense

Since modern Heavy Industries consortium has already been selected as a business operator of the instant task and entered into an agreement with the Korea Industrial Technology Evaluation Institute, even if each of the instant dispositions is revoked, the validity of the said agreement cannot be affected. Since the Plaintiff’s business operator, including the Plaintiff, cannot again enter into an agreement related to the implementation of the instant task, the instant lawsuit is unlawful as it has no interest in the lawsuit.

B. Determination

A person who has filed an application for a beneficial administrative disposition, such as authorization and permission, has no choice but to result in a disposition of permission, etc. against one party due to non-permission, etc. on the other party in competitive bidding, even though he/she is not the other party to the disposition of permission, etc. taken against the person who has not received such disposition, he/she has standing to seek revocation of the relevant disposition. Provided, That where the possibility of accepting the application of the plaintiff is excluded from the beginning due to an obvious legal disability, there is no legitimate interest to seek revocation of the relevant disposition (see, e.g., Supreme Court Decision 2009Du83

However, as seen earlier, Lone Star consortium and Hyundai Heavy Industries consortium had competition for the instant task to be selected as a business entity for the instant task, and it is inevitable to select Hyundai Heavy Industries consortium as a business entity for the instant task, and thus, the Plaintiff is entitled to sue to seek the selection of Hyundai Heavy Industries consortium and the revocation of each disposition to exclude it from Hyundai Heavy Industries consortium, and it is not likely that the application may be accepted from the beginning on the ground that there is an obvious obstacle to the business entity.

In addition, even though modern Heavy Industries consortium entered into an agreement with the Korea Evaluation Institute of Industrial Technology related to the implementation of the instant task, the agreement is deemed to be premised on the disposition that the Defendant selected as an operator of the instant task, and thus, if each of the instant dispositions is revoked, the agreement becomes null and void and the agreement can be entered into with the same content. Therefore, it cannot be deemed that there is no interest in the lawsuit seeking the revocation of each of the instant dispositions on the ground that the agreement was entered into.

Therefore, the defendant's main defense is without merit.

4. Determination on the legitimacy of each of the dispositions of this case

A. The Defendant’s selection of a person who will undertake a project for industrial technology development under the Industrial Technology Innovation Promotion Act after deliberation by the Evaluation Committee shall be conducted, based on professional knowledge, etc. in the pertinent field, after ex post facto examination of illegality of the work selected by the court as a highly specialized area that evaluates the most suitable for the applicant to undertake the project for industrial technology development based on the project for industrial technology development based on the method of the evaluation and selection, there are objective defects in the evaluation methods, such as the failure to comply with the evaluation methods, the involvement in the act of crime, etc.

나. 위와 같은 점을 고려하여 이 사건 과제를 수행할 사업자를 선정하는 평가과정에서 스타코 컨소시엄에 대한 평가가 불공정하고 불합리하게 이루어졌는지에 관하여 보건대, 앞서 든 사실 및 증거들에다가 을 제3 내지 9호증의 각 기재를 더하여 인정할 수 있는 다음과 같은 사정, 즉 ①) 피고는 이 사건 과제의 사업자를 선정하기 위하여 지식경제 기술혁신사업 공통운영요령 등에 규정된 바에 따라 이 사건 공고를 한 후, 2 개의 컨소시엄으로 하여금 경쟁기획 추진, 기획결과보고서 및 개발과제 사업계획서 접수, 신규 평가계획(안) 수립, 평가위원 확정, 현장실태조사, 선정평가위원회에서 서면검토 및 발표평가 경청, 최종 결과 도출 및 통보라는 절차를 모두 거쳤고, 그 선정기준에 특별히 하자가 있다고 보이지도 않는 점, ② 원고는 평가우대사항과 관련하여 오류가 있다고 주장하나, 을 제8호증의 기재에 비추어 피고가 스타코 컨소시엄이 제시한 정부 출연금(%) : 민간부담금(%)을 50 : 50에서 52.7 : 47.3으로 조정한 것에 어떤 잘못이 있다고 할 수 없고, 조정된 비율이 50 : 50을 충족하지 못하여 60 : 40에 해당하는 가점 5점을 부여한 것이 특별히 불공정하거나 부당하다고는 보이지 않는 점[조정된 비율이 50 : 50에 근접하므로 가점 10점을 부여하여야 한다거나 위 비율에 따라 가점으로 8.65점(5점 + (5점×7.3/10))을 부여하여야 한다는 원고의 주장은 가능한 여러 견해 중 하나에 불과하다], ③ 원고는 선정평가위원회의 종합의견서(갑 제2호증의 2)의 평가의 견에 모순점이 있거나 스타코 컨소시엄의 주장을 제대로 반영하지 않았거나 스타코 컨소시엄이 주로 중소기업으로 이루어져 역량이 부족할 것이라는 추측에 근거하여 부당한 평가를 하였다고 주장하나, 위와 같은 원고의 각 주장은 추측에 의한 것이거나 실제 모순되는 내용이 아님에도 모순이 있다는 것으로서 그 자체로 받아들이기 어려운 측면이 있고, 선정평가위원회의 종합평가의견을 전체적으로 볼 때 그 내용상 특별한 문제점을 발견할 수 없는 점, ④ 또한 원고는 선정 및 평가절차를 거침에 있어 대기업 위주로 구성된 현대중공업 컨소시엄은 유리한 대우를, 이에 반해 중소기업 위주로 구성된 스타코 컨소시엄은 불리한 대우를 받아왔다고 주장하나, 원고가 주장하는 각 사유만으로는 그와 같은 사실이 있었다고 보기 어렵고, 오히려 선정 및 평가절차의 운영 전반에 대해 모니터링을 한 외부 평가위원의 평가결과 및 각 컨소시엄의 책임자들을 대상으로 한 설문조사결과에 의하면, 선정 및 평가절차의 공정성에 큰 문제가 없었던 것으로 보이는 점, ⑤ 원고는 선정평가위원회 위원의 자질을 문제삼고 있으나, 이 사건 과제는 수심 3,000m급 심해자원 생산용 친환경 해양플랜트시스템 엔지니어링 기술 및 핵심기자재 개발을 목표로 하는 과제로서 그 평가 항목에는 '기획결과의 적절성', '기술성 및 기술개발능력', '경제성 및 사업화 가능성'이 있으므로 원고의 주장과 같이 이 사건 과제의 사업자를 선정하는 절차에 모두 해양과 관련된 전문가만이 참여하여야 한다.고 볼 수는 없고, 또한 원고는, 피고가 각 평가위원의 항목별 평가내용 및 평가점수를 공개하지 않음을 문제삼고 있으나, 이는 공공기관의 정보공개에 관한 법률 제9조 제1 항 제5호에 의하여 비공개대상정보에 해당할 여지가 크므로 피고가 이를 공개하지 않는다고 하여 잘못되었다고 할 수는 없는 점, 6) 달리 이 사건 과제의 사업자를 선정하는 과정에 그 선정결과 자체를 취소할 만한 중대한 사정이 없는 점 등을 종합적으로 고려하여 보면, 이 사건 과제를 수행할 사업자를 선정하는 평가과정에서 스타코 컨소시엄에 대한 평가가 불공정하고 불합리하게 이루어졌다고 볼 수 없다.다. 따라서 이 사건 각 처분은 적법하다.

5. Conclusion

Therefore, all of the plaintiff's claims are dismissed as it is without merit, and it is so decided as per Disposition.

Appointment of presiding judge or judge;

Judges Lee Byung-hee

Judge Kim Gin-hun

1) Before the Government Organization Act was amended by Act No. 11690, Mar. 23, 2013, the Minister of Knowledge Economy regarding industrial technology research and development policies, etc.

The Ministry of Trade, Industry and Energy has become the Ministry of Knowledge Economy and the Ministry of Trade, Industry and Energy newly established due to the amendment of the above Act.

The government succeeded to the business of industrial technology research and development policies.