공공기관의 입찰참가자격 제한행위 개선방안 연구

This paper examines whether the restriction of bidding eligibility by public institutions should be a discretionary act or a mandatory act. This issue arises because public institutions are subject to a complex system of bidding eligibility restrictions delegated and applied by law. While there have been many individual studies on the bidding eligibility restriction system, discretionary acts, and mandatory acts, it is difficult to find research that examines whether public institutions' restrictions on bidding eligibility should be viewed as discretionary or mandatory acts, based on specific cases of public institutions or legislative attempts by the National Assembly. Article 39, Paragraph 3 of the Act on the Management of Public Institutions (hereinafter referred to as the "Public Institutions Act"), which forms the basis for the restriction of bidding eligibility by public institutions, delegates related matters to the Rules on Contract Affairs of Public Enterprises and Quasi-Governmental Institutions (hereinafter referred to as the "Contract Affairs Rules"). Article 15 of the Contract Affairs Rules stipulates that bidding eligibility should be restricted in accordance with Article 27 of the Act on Contracts to Which the State is a Party (hereinafter referred to as the "State Contracts Act"). However, while the Public Institutions Act and the Contract Affairs Rules state that bidding eligibility "may be restricted" for fraudulent contractors, the State Contracts Act states that bidding eligibility "shall be restricted." In other words, for the same act of violating contract order, the Public Institutions Act and the Contract Affairs Rules define it as a discretionary act, while the State Contracts Act defines it as a mandatory act. Therefore, public institutions may be confused about whether to treat the restriction of bidding eligibility as a discretionary or mandatory act. In 2024, at the Contract Review Committee held by the Korea National Railway (hereinafter referred to as the "KR"), there was a case where a company requested the KR to exercise its discretion in restricting bidding eligibility. Additionally, the KR sought legal advice from two law firms to confirm whether the restriction of bidding eligibility by public institutions is a discretionary or mandatory act. Both law firms responded that it is appropriate for the restriction of bidding eligibility by public institutions to be a mandatory act. However, there are also opposing opinions. In other words, experts do not agree on whether the restriction of bidding eligibility by public institutions should be a discretionary or mandatory act. The 21st and 22nd National Assemblies attempted to amend the Public Institutions Act three times to change the restriction of bidding eligibility from a discretionary act to a mandatory act. The amendment bill submitted by the 21st National Assembly was discarded due to the expiration of its term. The amendment bill submitted by the 22nd National Assembly is currently pending in the Planning and Finance Committee of the National Assembly. This paper concludes that it is reasonable to change the restriction of bidding eligibility by public institutions to a mandatory act for the following three reasons. First, regarding the restriction of bidding eligibility, central ministries and local governments are regulated as mandatory acts, while public institutions are regulated as discretionary acts. Therefore, it is necessary to ensure fairness among the contracting authorities implementing public bids. Second, converting discretionary acts to mandatory acts or reducing the scope of discretion enhances the predictability of administration, which is in line with the rule of law. Third, even if public institutions are granted discretion, they are unlikely to exercise it in practice, considering internal and external audits and the media. Accordingly, this paper suggests that it is appropriate to amend the Public Institutions Act and the Contract Affairs Rules to mandatory acts, while also establishing provisions for the installation of a Contract Review Committee to ensure fairness and transparency.