摘要(英) |
The public
construction consists of professionality, uniqueness and
relationality. With extensive budgets and complex functions, the
owner will authorize the design unit to take charge of the selection and
the usage of materials and equipments because of insufficient labors,
knowledge or experiences. If the technology and the specification
of materials and equipments, which are complex and are involved with the
bidding possibility of the manufacturer, are inappropriate, it is easy
to drift into bid rigging. The Article 26 of the Government
Procurement Act about the use of equivalents is made for the restriction
of improper competitions and the preclusion of bid riggings. This
regulation, of course, has its design mechanisms and its
functions. However, it causes many contentions and
disputes. In the public construction, it is common that the
contractor applies for the using the equivalents. For the profit of
construction, the regulation that it is able to use the equivalents as a
substitute will cause interest conflicts among the owner, the design
unit, the contractor and the supplier of materials and
equipments. For the quality of construction, the unmatched
information will make the owner, the design unit and the supplier are
having more doubts about the motive of the contractor for using the
equivalents than supports. Comparatively, the contractor also has
more doubts about the motive of the owner and the design unit for
designating the brand than acceptances. For the contractor, his
biggest expectation for contracting the construction is reasonable
profits and equal respects. And the owner’s biggest expectation for
the construction is high qualities, low costs and short
terms. However, lots of construction disputes are resulted
from any question about the applicable laws. If without sound laws
or regulations, it is possible for the contractor to face an awkward
situation of his difficult operation because of many improper government
measures or deficits caused by bid competition. But according to
the Article 2727-2, the Principle of Change of Circumstances: ”If there
is change of circumstances which is not predictable then after the
constitution of the contract, and if the performance of the original
obligation arising there from will become obviously unfair, the party
may apply to the court for increasing or reducing his payment, or
altering the original obligation.”, the conclusion of this article is a
protection clause that balances unfair matters between both parties
concerned if meeting unpredictable change of circumstances after signing
the contract. This essay discusses the regulations and the meanings
of the Procurement Act in the contract-implementing stage for the use of
equivalents from the aspect of the Procurement Act. And then we
analyze the applicability of the Regulations of Equivalent to the law
according to the applications range and constitution conditions of the
Principle of Change of Circumstances, Civil Law. It further
discusses if the increment or decrement of prices provided in the
applicable Regulation of Equivalent system will cause the contractor
obviously unfair and then the Principle of Change of Circumstances is
applied. Through the laws, we analyze and review the Regulation of
Equivalent in the Procurement Act. This essay also discusses the
Regulation of Equivalent in the applicable Procurement Act from two
parts including the theory (scholars’ discussions) and the practical
operation of public constructions. Thus, this reserch proceeds
overall reviews through the theory and the practical operation
outcome. Furthermore, after the sound laws about the system of
equivalents are made, it is better that the public construction can
develop the procurement benefits to maintain a fair procurement. |