건설조달 입찰참가제한 제도의 개선방안으로서 한국식 자율시정 제도 도입

Restriction on qualification for participation in tendering procedures means a measure that prohibits a party to a government procurement contract who engages in conduct that interferes with fair competition or fair execution of the contract from participating in tendering procedures for a period not less than one month nor more than two years. If businesses, which serve as an important pillar of our economy, are restricted f rom participating in tendering for a maximum of two years, they will be forced to incur unbearable losses. From the government’s standpoint, however, businesses which may harm the integrity of the tendering procedure should not be allowed to participate. Current Supreme Court precedents recognize government procurement contracts as private contracts but treat restrictions on qualification for participation in tendering as an "administrative disposition" under public law. In addition, the lack of legislative purpose behind such restrictions continues to cause disputes and confusions. Moreover, the Korean procurement market is available globally pursuant to the WTO Government Procurement Agreement. Thus, if a Korean procuring entity restricts a Korean business from participating in tendering, it may serve as a basis for restriction in foreign procurement markets as well. I believe giving businesses that made a mistake a second chance to self-correct their errors may be the starting point for solving many problems our nation faces today. Part I of this article discusses, as an introduction, the importance of the restriction on qualification for participation in tendering procedures to our national economy. Part Il lays out the history of the restriction system. Part III explores the current state of affairs with respect to the restriction with focus on its legal nature. Part IV addresses problems that arise from imposing such restrictions. Part V proposes a self-correction system specifically tailored for the Korean economy, which offers a second chance to businesses to self-correct and is based on the United States Administrative Agreements system and Self-Cleaning (Selbstreinigung) system of EU and Germany. Finally, Part VI suggests improvements to the restriction system and government procurement system.