| 摘要註: |
在政府採購法施行前，各機關營繕工程及購置定製變賣財物均依審計法規與「機關營繕工程及購置定製變賣財物稽察條例」之規定程序辦理。惟「機關營繕工程及購置定製變賣財物稽察條例」公布施行20餘年，政府採購之性質與規模日趨複雜，業不能適應實際需要，同時我國為申請加入世界貿易組織(WTO；World Trade Organization)，必須簽署政府採購協定（GPA；Agreement on Government Procurement），爰於87年5月27日公布政府採購法，並於88年5月27日實施，全文114條，包含總則、招標、決標、履約管理、驗收、異議及申訴、罰責及附則等八章，以作為政府機關辦理採購作業程序之規範及依據。依政府採購法第2條規定，採購種類可分為工程、財物及勞務等3種，惟在履約過程中常因政策性考量、實際施作問題、法令修改、民意反映、使用單位需求等因素，而須辦理契約變更、追加減預算等；但政府機關公務人員常為了避免給予外界有圖利廠商之印象，因此，對於一些須辦理契約變更的情形，皆採嚴格甚至近於苛刻的標準來辦理契約變更，造成機關與廠商發生爭議之情事，層出不窮；惟契約變更原因很多且政府採購契約對於契約變更皆設有簡繁不一之契約條款，本文主要係就情事變更原則於政府工程採購契約變更實務及衍生履約爭議來作為研究及探討。 Before the implementation of Government Procurement Act, the building & renovation constructions as well as properties being purchased, customized, and sold in all institutions were dealt with according to the auditing rules and the stipulated procedures of “Institution Building & Renovation Construction and Procurement, customization,& Selling Property Examining Clauses”.However, as “Institution Building & Renovation Construction and Procurement, customization,& Selling Property Examining Clauses” had been in effect for over 20 some years since their publication, the characteristics and scales of procurements were getting more and more complicated, and they were no longer applicable to the actual needs, moreover, at the same time, our government was filing application to become a member of World Trade Organization, for which there was a requirement for signing Agreement on Government Procurement（GPA） ,as a result, the Government Procurement Act was announced on May 27, 1998, and to be implemented on May 27, 1999, with a total of 114 articles, including 8 chapters-General Principles, Invitation to Tender, Administration of Contract Performance, Inspection and Acceptance, Dispute Settlement Protest and Complaint, Penal Provisions, and Supplementary Provisions, as the standards and basis of working on procurement procedures in the government agencies.According to the requirements of Article 2 in the Government Procurement Act, the procurement categories are divided into 3 types-Construction Work, Property, and Labor, however, there are needs to work on the contract changes, and to ask for budget additions/cuts during the process of contract fulfillment due of factors such as considerations on policies, problems of actual implementations, amendments on decrees, feedbacks from public opinions, and needs of working units; moreover, for some situations with requirements on the contract changes, in order to avoid any impressions of benefiting contractors to the outsiders, the public personnel in the government agencies often adopt strict and nearly harsh standards for dealing with the changes on contracts, in turn, there are numerous incidents of disputes between the government agencies and the contractors; furthermore, as there are many reasons for the changes on contracts, and contract articles are set up in either simplified or complicated formats on the contract changes in the government procurement contracts, thus, on the basis of Clausula Rebus sic Stantibus, our study is aimed to make research and investigation in the government construction procurement contract change practices and the disputes incurred there of on the execution of contracts. |