政府採購契約之契約解釋原則-以同等品價差扣除規定為中心

Abstract

政府採購契約中，如約定以「廠牌」為種類之給付，履約中若廠牌種類變更時，非屬物之瑕疵擔保減少價金的問題，而是涉及契約變更合意扣減價差。如契約成立時，僅約定價金，而未約定以「廠牌」為種類之給付，而係以「功能、效益、標準、特性」為債之本旨，當給付之同等品廠牌偏離參考廠牌，惟給付內容符合債之本旨，其給付根本沒有物之瑕疵，亦無給付種類偏離，因此不得主張物之瑕疵擔保價金減少請求權(或政府採購法第72條第2項減價收受請求權)，更無正當理由片面提起契約變更以扣減同等品價差。採購機關片面錯誤援引行政規則，強以「政府採購法第26條執行注意事項第11點」作為扣減同等品價差之依據，造成得標廠商之履約報酬減少，已增加政府採購法所無之限制，與憲法第15條財產權保障及第23條規定之法律保留原則相悖。

況以，政府採購契約係由採購機關片面擬定，在符合債之本旨之前提下，如產生同等品價差扣除之爭議，涉及政府採購契約能否適用「有疑義作有利於相對人」之解釋原則。機關如解釋為應扣除同等品價差，並無法律上之依據，恐造成不當限制競爭；如解釋為不應扣除同等品價差，則涉及有無圖利得標廠商之疑慮。

本文透過賽局經濟分析所得之結論為，若不適用「有疑義作有利於相對人」解釋原則，或立法模式採取不區分是否涉及契約變更，一律扣除同等品價差之作法，會造成不當限制競爭，有違政府採購法立法目的。因此，本文建議，長期目標應俢法明定政府採購契約之契約解釋原則，且應一併修正採購契約要項及各類採購契約範本，並刪除政府採購法第26條執行注意事項第11點規定，以杜爭議。

In the first scenario, contracting parties to the government procurement agreements agreed to use “brand name” as the criteria to designate their agreed product for the debt of the same kind. If the debtor delivers products of the different brand name, this is the issue of the deduction of the price differences between the contract price and the equivalent product price due to a mutual agreement, rather than the issue of liability for defective products. As to the second scenario, the contracting parties mutually agreeing to the price, rather than choosing “brand name” as the criteria to designate, agreed to use the products’ “function, effectiveness, standard, characteristics” as the tenor of their agreement. If the brand name of the delivered product is different from the suggested brand name but still consistent with the tenor of the agreement, neither the delivered product contains defect nor its delivery is at odds with any designation for the debt of the same kind. As a result, the debtor shall be free from any claims of liability of defective products, including both the claim to reduce the price (pursuant to Section 2, Article 72 of Government Procurement Act, “GPA”), as well as the claim to unilaterally deduct the price difference between the contract price and the equivalent product price (hereinafter “Price Difference”) by arguing the alteration of the agreement. Unilaterally and wrongfully, the contracting authority relied on the Article 11 of the “Instructions on the Enforcement of Article 26 of GPA,” to its claim to deduct the Price Difference. This practice, not only causing the bidder to receive less revenue but further imposing restrictions beyond those specified in the law, is a blatant violation of both the Article 15 and 23 of Constitution (ROC), which, respectively, protect people’s property and require the rule of law, or principle of legal reservation. Moreover, the second scenario where the product is consistent with the tenor is precisely the case to apply the doctrine of “Contra Proferentem” in order to resolve the dispute of deducting the Price Difference since the contracting authority unilaterally drafted the contract. Otherwise, there is no solution for the dilemma in the status quo. For permitting the claim to deduct the Price Difference, there is no legal ground to do so, and might unfairly restrict competition; whereas for dismissing the claim, there are concerns of lining the bidder's pocket. By game theory for economic analysis, this thesis concluded that it is necessary to adopt the doctrine of “Contra Proferentem.” Otherwise, the regulation now, which makes no distinction as to whether there is the alteration of the agreement or not, blindly deduct the Price Difference. This unfairly restricted the competition and violated the spirit of GPA. In order to solve the disputes above in the long term, this thesis proposes: a) to stipulate a provision of the principle of contract interpretation within GPA; b) to modify essential requirements for procurement agreement, the standard procurement-agreement templates; c) to delete Article 11 of the “Instructions on the Enforcement of Article 26 of GPA”.