요청조달계약상 입찰담합 행위자에 대한 수요기관의 설계보상비 반환 청구에 관한 검토

Review of a Demanding Agency’s Claim for Return of Design Compensation Fee to Bid Rigging Actors according to Request Procurement Contract

The payment of the design compensation fee for bid failures is aimed at reducing the burden on bidders and creating a fair competitive bidding environment. Therefore, it is natural to return the design compensation fee even if its lump sum is paid because the design compensation fee doesn’t have to be paid to the bid failures who have lost the bidding due to bid rigging. However, the bidder failures who have recently been caught bid rigging claim that there is no obligation to return the design compensation fee because the demanding agency is not the part of bid despite their big rigging upon request of the demanding agency to return the design compensation paid to them. And it seems that the trial court accepts some of these claims. However, in view of the Supreme Court s recognition that the demanding agency has the status as a beneficiary of the construction contract concluded between the ordering organization and the successful bidder in the recent request procurement contract, there is a possibility of claiming the return of the design compensation fee as a beneficiary. This is because the contract between the ordering organization and the successful bidder can be regarded as being established under the national contract law. In addition, regarding the bid failure who has conducted bid rigging claiming that the bidding is still valid because there is no declaration of invalidation and the requirements for the return of the design compensation fee have not been established, it is proper that the bidding becomes invalid immediately when bid rigging is found and the bidding failures paid with the design compensation fee should return it, comprehensively given that the relevant laws and regulations do not set separate procedures for invalidation of bids, it will eventually protect the bid rigging actors if it is not invalid, and that bidding should becomes invalid in consideration of the purpose of the Procurement Service’s interpretation criterion on the design compensation fee.