공공조달을 통한 중소기업 지원 및 육성의 구체화와 발전방향에 대한 헌법적 소고

Under the current constitution, public procurement has significance as a means of realizing social justice within the economic order. The realization of social justice within the economic order can be interpreted as allowing the supplementary intervention of the state so as to ‘form the social situation and conditions in which all economic agents can actually exercise economic freedom’. Therefore, public procurement serves as a balance between individual economic freedom and national economic regulation in all procedures in which it is realized. In other words, public procurement can act as part of an effort to prevent the oligarchy of competitive factors existing in the free market economic order and to make it compatible with the realization of social justice. When discussing public procurement as a means of realizing social justice within the economic order of Article 119 of the Constitution, supporting and nurtuing SMEs can be said to be one of the means to materialize social justice to be achieved through public procurement. As public procurement is interpreted as the realization of Article 119 of the Constitution, public procurement is realized centered on the principle of competition and transparency, which is implemented in all stages of public procurement including bidding and successful bid, contract conclusion and execution. First, as measures to support nurture SMEs in the bidding stage of public procurement, the system that restricts the qualifications of unjust bidders and the system that restricts the participation of small and medium-sized enterprises in competitive bidding can be considered. In the successful bid stage, it is possible to review the criteria for determining the successful bidder and the requirements for the successful bidder. Finally, in the contract conclusion and execution stage, it may be possible to review the cancellation of the contract due to non-performance, etc. All procedures at each stage have the meaning of realizing high-quality public procurement and enhancing the self-reliance of SMEs by excluding those who are not competitive from the status of contracting parties. However, while these measures may be effective in enhancing competitiveness, they may have limitations in the transparent disclosure of system operation required in all stages of public procurement. Accordingly, supplementary measures were needed to improve the fairness of public procurement and to solve the information asymmetry problem that may appear among various participants. The securing of equality between the buyer and the supplier in the public procurement process or the improvement of the quality and method of information disclosure can be considered as examples.