According to Article 75 of the GPL, with regard to disputes arising from the tendering or awarding proceedings, a participating or unsuccessful bidder may file an objection against the decisions made or the award result rendered with the procurement entity. If the bidder is not satisfied with the result of the objection it raised, it may seek further remedies with the PCC, or the complaint review board for government procurement under the local government.
b. Are remedies available outside the scope of procurement legislation, e.g. civil law damage claims?
After the procurement contract is awarded to and concluded with the successful bidder, any disputes related to the performance of the procurement contract should be conducted in accordance with the dispute resolution mechanisms which include the mediation proceedings hosted by the PCC, lawsuits in the courts, or the arbitration proceedings held by the arbitral tribunal, which requires that the parties have an arbitration agreement in writing for the dispute. The contracting parties, that is, the entity and the supplier, may be based on the Civil Code or other applicable provisions involving liability for damage to initiate civil damage claims arising from a breach of contract with the courts.
c. Is there a specific forum before which procurement disputes are heard?For disputes arising from the tender or award proceedings, the forum before which the disputes are heard is the procurement entity which will make the decisions for the procurement or render the award result.
The Instructions to Bidder (ITB) for government procurement will usually prescribe how disputes will be handled.
d. Are there any timing requirements for the review?With regard to disputes arising from the tender or award proceedings, Article 75 of the GPL requires a participating or unsuccessful bidder who would like to file an objection against the decisions or the award result to file the objection within 10 days after the notice issued by the procurement entity is received or the publication is announced.
The ITB for government procurement will usually provide the time frame within which the contract needs to be executed by the awarded party and the procurement entity.
Regarding disputes concerning the performance of the procurement contract, the time frame in which a claim can be made with regard to a right will vary in accordance with the statutory time limitation pertaining to this right.
e. What are the main preconditions for review?Pursuant to Article 74, the remedy proceedings prescribed in the GPL apply only to disputes arising from the procedures of the invitation to tender, evaluation of tender, or the award of the contract. For instance, disputes related to any unequal treatment stated in the tender documentation, a direct ward violating the evaluation principle set forth in the GPL, etc. On the other hand, if the parties do not dispute the procuring process but dispute the performance of the contract or interpretation of certain terms and conditions, these disputes are not admissible for the review and complaint proceedings under the GPL. Rather, they should be resolved via a civil procedure under the Code of Civil Procedure or a mediation procedure under Article 85-1 of the GPL.
f. What are admissible grounds for starting a review proceeding?As stated in the Article 75 of the GPL, a supplier may, during the period specified below, file a protest in writing with an entity if the supplier believes that the entity is in breach of laws or regulations or of a treaty or an agreement to which this nation is a party so as to impair the supplier's rights or interests in a procurement. As a result, the admissible grounds under the GPL are (1) the procuring entity violates the procedural requirements set forth in the GPL, the treaty, the agreement or the relevant regulations, and (2) the violation caused an infringement of rights and interests.
g. Does a review proceeding affect an ongoing procurement procedure or an awarded contract respectively?
No, a review proceeding generally will not affect an ongoing tender procedure or an awarded contract, unless the situation under Article 82 (2) or Article 84 (1) is met. Under Article 82 the GPL, the Complaint Review Board for Government Procurement (CRBGP) may suspend the proceedings before the review is completed, if it deems necessary. Also, Article 84 states that where a procuring entity finds the protest or complaint justifiable, the procuring entity shall nullify or change the initial result or suspend the procurement procedures, except for emergencies or in the public interest, or where the causes of the complaint or protest are not likely to affect the procurement.
h. What are the consequences of a successful review proceeding for the affected procurement procedure or awarded contract respectively?
According to Article 84 (1) of the GPL, in a case where the procuring entity finds the objection justifiable, it shall nullify or change the initial result or suspend the procurement procedures, except for emergencies or in the public interest, or where the causes of the complaint or protest are not likely to affect the procurement.
According to Article 82 (1) of the GPL, when a dispute has been filed with the CRBGP and is found in violation of the GPL, the CRBGP may take the following actions:
In addition, the supplier may request the procuring entity to reimburse the necessary expenses incurred by the supplier for the preparation of the tender and the filing of the protest and complaint.
i. How long does a judicial proceeding for review take?Under Article 78 (2) of the GPL, the CRBGP shall complete its review within forty days from the date following the date of receipt of the complaint, and shall notify the supplier and the entity of its decision in writing. If necessary, this period may be extended for another forty days. If the supplier does not agree with the CRBGP's decision, it may file a lawsuit with the administrative court, and the administrative proceeding may last six months to one year. The parties may further appeal to the Supreme Administrative Court, which will also require about six months to one year to render the final judgment.
j. Must unsuccessful bidders be notified before the award? If so, when?The procuring entity shall not notify anyone of the outcome before the award. Once an awarded bidder is announced, all participating bidders will be notified of the outcome according to Article 52 of the GPL.
k. Are review proceedings common?Yes. According to statistics summarized by the CRBGP of the PCC, there were 427 complaints filed to the PCC in 2016.
l. Are damage claims in relation with procurement procedures common?No. In the case of violation of the procedural requirements set forth in the GPL, Article 85 of the GPL only gives the supplier an option to request the procuring entity to reimburse the necessary expenses incurred by the supplier for the preparation of the tender and the filing of the protest and complaint, which does not include legal fees or other compensation for the total damage suffered.
m. What are the leading court decisions involving procurement disputes?In Taiwan, there have been several court decisions related to procurement disputes. A resolution rendered by the Supreme Administrative Court in 2004 held that a dispute arising from the tender or award proceedings should be regarded as a dispute pertaining to public laws, and the remedies resorted to for these disputes must involve administrative proceedings and the administrative courts. A dispute between the awarded party and the entity after the contract is awarded and concluded should be regarded as a dispute pertaining to civil laws and the remedies for these disputes should involve the civil courts or arbitration proceedings in a case where the parties have an arbitration agreement.