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ENFORCEMENT DECREE OF THE ELECTRONIC PROCUREMENT UTILIZATION AND PROMO…

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작성자 PROCUREMENT 작성일18-10-19 17:32 조회27회

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ENFORCEMENT DECREE OF THE ELECTRONIC PROCUREMENT UTILIZATION AND PROMOTION ACT

[Enforcement Date 27. Sep, 2016.] [Presidential Decree No.27513, 27. Sep, 2016., Partial Amendment]

조달청  ( 전자조달기획과) , 070-4056-7215

기획재정부  ( 계약제도과) , 044-215-5211


 

Article 1 (Purpose)

The purpose of this Decree is to provide for the matters delegated by the Electronic Procurement Utilization and Promotion Act and those necessary for the enforcement thereof.
 

Article 2 (Scope of Public Organizations)

"Public organization specified by Presidential Decree" in subparagraph 1 of Article 2 of the Electronic Procurement Utilization and Promotion Act (hereinafter referred to as the "Act"), means any of the following institutions recognized by the Administrator of the Public Procurement Service as a procuring entity upon receipt of a request to allow it to use or utilize the integrated national electronic procurement system (hereinafter referred to as the "Electronic Procurement System"):

1. A public institution designated under Article 4 of the Act on the Management of Public Institutions;

2. A school established under the Elementary and Secondary Education Act, the Higher Education Act, or any other Act;

3. An institution established with funding from a local government;

4. An institution funded by a local government;

5. A corporation established for a public purpose under a Special Act;

6. An institution where the total shares of the institutions specified in subparagraphs 1 through 5 amount to at least 50 percent of its equity capital;

7. An institution recognized by the Administrator of the Public Procurement Service under Article 4 of the Enforcement Decree of the Government Procurement Act, in addition to the institutions specified in subparagraphs 1 through 6.
 

Article 3 (Policies for Facilitating Electronic Procurement)

The policies for facilitating electronic procurement referred to in Article 5 (2) of the Act shall include the following:

1. Basic direction-setting for promoting electronic procurement;

2. Development and operation of the Electronic Procurement System;

3. Plans to collect, analyze, and utilize statistical data for electronic procurement;

4. Other matters necessary to facilitate electronic procurement, including education and training on electronic procurement.
 

Article 4 (Method, Period, etc. for Electronic Publication)(1) Articles 33 through 36 of the Enforcement Decree of the Act on Contracts to Which the State Is a Party, and Articles 33 through 36 of the Enforcement Decree of the Act on Contracts to Which a Local Government Is a Party shall apply to the method and period for publication under Article 6 (2) of the Act.

(2) In cases of an international competitive bidding, the head of a procuring entity or a contracting agent shall publish a notice of the matters specified in the subparagraphs of Article 8 (2) of the Regulations on Special Cases concerning the Enforcement Decree of the Act on Contracts to Which the State Is a Party in Specific Procurement on the Electronic Procurement System.

(3) If there is a discrepancy between the notice published on the Electronic Procurement System and the bid notice in the form of an attached file (hereinafter referred to as "bid notice"), the contents of the bid notice shall take precedence: Provided, That, in cases of the date of bid notice, if discrepancy exists between the date posted on the Electronic Procurement System and the date stated in the bid notice, the date posted on the Electronic Procurement System shall take precedence.

(4) Except as otherwise expressly provided for in paragraphs (1) through (3), matters necessary for the electronic publication of competitive bidding shall be prescribed by Ordinance of the Ministry of Strategy and Finance.
 

Article 5 (Submission of Bidding Documents in Electronic Form)(1) An electronic procurement user shall submit a bidding document in electronic form under Article 7 of the Act (hereinafter referred to as "electronic bidding document") through the Electronic Procurement System within the period designated in the electronic publication of notice of competitive bidding.

(2) An electronic procurement user may submit only one electronic bidding document for one and the same bidding event by the same computer.

(3) No electronic procurement user may replace, amend, or revoke an electronic bidding document submitted through the Electronic Procurement System: Provided, That, if an error is found in any important matter entered therein, such as bid price in the electronic bidding document, the electronic procurement user who submitted the electronic bidding document may request the head of the relevant procuring entity or contracting agent to revoke the electronic bid under Article 7 of the Act (hereinafter referred to as "electronic bid"), as prescribed by Ordinance of the Ministry of Strategy and Finance.

(4) Upon receipt of a request to revoke under paragraph (3), the head of a procuring entity or a contracting agent may revoke the electronic bid of such electronic procurement user and treat the relevant electronic bidding document as void.

(5) If the electronic bidding document submitted by an electronic procurement user is treated as void according to his/her request for revoking the electronic bid under the proviso to paragraph (3) or paragraph (4), the electronic procurement user shall not be permitted to participate in the relevant electronic bidding process: Provided, That the foregoing shall not apply where the head of the relevant procuring entity or contracting agent calls for a re-bid or publishes a notice of re-bid under Article 20 of the Enforcement Decree of the Act on Contracts to Which the State Is a Party or Article 19 of the Enforcement Decree of the Act on Contracts to Which a Local Government Is a Party.

(6) If it is impracticable to read a document accompanying an electronic bid submitted through the Electronic Procurement System because the accompanying document of the electronic bid is encrypted or is infected by a computer virus, it shall be deemed that the accompanying document of the electronic bid has not been submitted.
 

Article 6 (Electronic Open Non-Bid Contracts)(1) Where the head of a procuring entity or a contracting agent intends to determine a contractor through the Electronic Procurement System with respect to a non-bid contract, for which he/she shall obtain quotations from at least two persons under Article 30 of the Enforcement Decree of the Act on Contracts to Which the State Is a Party or Article 30 of the Enforcement Decree of the Act on Contracts to Which a Local Government Is a Party, he/she shall publish the notice inviting quotations, clearly stating the matters necessary for submitting quotations in electronic form under Article 7 of the Act (hereinafter referred to as "electronic quotation").

(2) Articles 4 and 5 shall apply mutatis mutandis to the submission of electronic quotations and the publication of notice inviting such quotations under paragraph (1). In such cases, the term "bid notice" in Article 4 shall be construed as "notice inviting quotations," and the term "electronic bidding document" in Article 5 as "electronic quotation."
 

Article 7 (Electronic Processing of Subcontract Management)(1) If an electronic procurement user intends to subcontract with one another, he/she may prepare a subcontract in electronic form on the Electronic Procurement System or the system operated by the head of a procuring entity to electronically manage the subcontract under Article 9-2 (1) of the Act (hereinafter referred to as “Electronic Procurement System, etc.”).

(2) Electronic Procurement System, etc. shall include the following functions:

1. Functions for claim, approval and payment of the following amounts:

a. Amount to be paid to subcontractors, workers, and suppliers of materials or equipments by a person who has made a contract with the head of a procuring entity or a contracting agent (hereinafter referred to as “contractor”);

b. Amount to be paid to workers and suppliers of materials or equipments by a subcontractor;

2. Functions by which the head of a procuring entity or a contracting agent may check the claim, approval and payment referred to in subparagraph 1 in real time;

3. Functions concerning electronic processing such as approval and confirmation which a contractor shall be granted by the head of a procuring entity or a contracting agent related to the subcontract under the relevant Acts such as the Frame Work Act on the Construction Industry;

4. Functions concerning electronic processing of notification to the head of a procuring entity or a contracting agent under the relevant Acts such as the Frame Work Act on the Construction Industry;

5. Other functions which the Administrator of the Public Procurement Service and the head of a procuring entity deem necessary for electronic processing of subcontract management.

(3) A contractor or subcontractor shall open the appropriation account for the payment of amounts referred to in the items of paragraph (2) 1 and register such account on Electronic Procurement System, etc.

(4) Where the head of a procuring entity referred to in Article 14 (2) of the Act intends to establish the system operated for electronic management of subcontracts under Article 9-2 (1), he/she shall consult with the Minister of Strategy and Finance in advance.

[This Article Wholly Amended by Presidential Decree No. 27513, Sep. 27, 2016]
 

Article 8 (Methods, Procedure, etc. for Electronic Payment of Bonds)(1) Where the head of a procuring entity or a contracting agent intends to have a bidder or counter party of a contract pay a bid bond, contract bond, warranty bond, etc. by submitting a letter of guarantee in electronic form through the Electronic Procurement System under Article 10 (1) of the Act and the main sentence of paragraph (2) of the same Article, such payment shall be made by means of submitting a letter of guarantee, etc. defined under Article 37 (2) of the Enforcement Decree of the Act on Contracts to Which the State Is a Party (hereinafter referred to as “letter of guarantee, etc.”) in electronic form: Provided, That the head of a procuring entity or a contracting agent may have him/her directly submit a letter of guarantee, etc. thereto where it is impossible to submit the letter of guarantee, etc. in electronic form due to a failure in the Electronic Procurement System, etc.  <Amended by Presidential Decree No. 27513, Sep. 27, 2016>

(2) A guarantor (referring to an entity that issues an instrument for guarantee, etc. specified in Article 37 (2) of the Enforcement Decree of the Act on Contracts to Which the State Is a Party) shall transmit a letter of guarantee in electronic form to the head of the relevant procuring entity or contracting agent, through the Electronic Procurement System after obtaining certification from a licensed certification authority designated under Article 4 of the Digital Signature Act, and shall then ascertain whether it has been transmitted properly.

(3) A bid bond in electronic form shall be submitted to the Electronic Procurement System by not later than the day immediately before the due date for submitting electronic bidding documents, except as otherwise expressly provided for in the relevant bid notice.
 

Article 9 (Request, etc. for Providing Information for Operation of Electronic Procurement System)(1) Pursuant to Article 12 (2) of the Act, the Administrator of the Public Procurement Service may request the head of a procuring entity or the head of any relevant institution to provide the following data or information:

1. Data or information related to the guidelines for determining the estimated price;

2. Data or information related to the eligibility requirements for participation in a competitive bid;

3. Data or information related to eligibility screening of prospective bidders;

4. Data or information related to the examination of capability to perform a contract;

5. Data or information related to restrictions on participation of inappropriate business entities in a competitive tendering procedure under Article 27 of the Enforcement Decree of the Act on Contracts to Which the State Is a Party or Article 31 of the Enforcement Decree of the Act on Contracts to Which a Local Government Is a Party;

6. Data or information related to the making, performance, cancellation, and termination of contracts;

7. Data or information related to the awarding and performance of contracts;

8. Information related to the temporary or permanent closure, etc. of business of electronic procurement users;

9. Other data or information publicly notified by the Administrator of the Public Procurement Service as deemed necessary for performing contracting services under the Enforcement Decree of the Act on Contracts to Which the State Is a Party or the Enforcement Decree of the Act on Contracts to Which a Local Government Is a Party, in connection with non-bid contracts, amendments to contracts, payment of contract prices, public disclosure of information related to contracts, etc.

(2) The Administrator of the Public Procurement Service may request the head of a relevant institution to provide the data or information specified in paragraph (1) in paper form or by facsimile or other electronic means.

(3) The Administrator of the Public Procurement Service may collect and provide information, etc. on contracts or render services necessary for electronic transactions to the extent necessary to assist procuring entities’ efficient contract management.
 

Article 10 (Restriction on Use or Utilization of Electronic Procurement System)

"Cases specified by Presidential Decree" in Article 15 (2) 3 of the Act means any of the following cases:

1. Where the person has been punished for a violation of any provision of Articles 18 through 20 of the Act during the latest three years;

2. Where the person is delinquent in a national or local tax;

3. Where the person is an inappropriate business entity subject to restrictions on participation in a competitive tendering procedure under Article 27 of the Enforcement Decree of the Act on Contracts to Which the State Is a Party or Article 31 of the Enforcement Decree of the Act on Contracts to Which a Local Government Is a Party.
 

Article 11 (Registration, etc. of Users of Electronic Procurement System)(1) Each person who intends to participate in an electronic bid under Article 7 of the Act shall file for registration as a user under Article 17 (1) of the Act by the day immediately before the due date for submitting electronic bidding documents. The same procedure shall also apply where any registered matter changes.

(2) A person who intends to file for registration as a user or an electronic procurement user who intends to modify his/her registration as a user under Article 17 of the Act shall apply for the user registration or for the modification of such registration through the Electronic Procurement System with an authorized certificate issued by the licensed certification authority under Article 15 of the Digital Signature Act.

(3) Except as otherwise expressly provided for in paragraphs (1) and (2), matters necessary for user registration in the Electronic Procurement System and the modification of such registration shall be determined and publicly notified by the Administrator of the Public Procurement Service.
 

Article 12 (Scope, etc. of Trade Secret)(1) The scope of trade secret under Article 18 (1) of the Act is as follows: Provided, That matters publicly known or matters published with the consent of the relevant electronic procurement user shall be excluded herefrom:

1. Matters with which the name, trade name, address, etc. of an individual user not involved in a transaction made on the Electronic Procurement System can be identified;

2. Matters concerning the price and quantities of the goods or services supplied by an individual user not involved in a transaction made on the Electronic Procurement System;

3. Matters concerning the manufacturing costs;

4. Other matters that constitute a production method or sales method, or information on technology or business management useful for business activities, kept confidential by exerting considerable efforts, and the disclosure of which is likely to give rise to a loss to the relevant electronic procurement user or cause an impediment to his/her business.

(2) The measures to protect trade secrets referred to in Article 18 (4) of the Act are as follows:

1. Formulation and enforcement of regulations on the management of trade secrets;

2. Indication of trade secrets;

3. Education of workers.
 

Article 13 (Criteria, etc. for Designation of Electronic Procurement Support Centers)(1) The criteria for designating an electronic procurement support center under Article 23 (1) of the Act (hereinafter referred to as "support center") are as follows:

1. It shall be a nonprofit corporation that has definite business objectives and practicable implementation plans;

2. Its financing plan shall be reasonable;

3. It shall have assets, experts, records of performance, etc. necessary for performing the activities specified in Article 23 (2) of the Act, which meet or exceed the standards determined by the Administrator of the Public Procurement Service.

(2) A person who wishes to be designated as a support center shall file an application for designation with the Administrator of the Public Procurement Service in the form prescribed by Ordinance of the Ministry of Strategy and Finance. The same procedure shall also apply where a person intends to modify any of the facts relevant to the designation.

(3) Upon receipt of an application for designation under paragraph (2), the Administrator of the Public Procurement Service shall designate a person who meets the designation criteria specified in paragraph (1) as a support center and shall issue a written designation to the relevant applicant in the form prescribed by Ordinance of the Ministry of Strategy and Finance.

(4) The Administrator of the Public Procurement Service may provide a support center with subsidies to cover all or part of the expenses incurred in its performance of the activities specified in Article 23 (2) of the Act, within budgetary limits.

(5) A support center that has been provided with subsidies to cover expenses under paragraph (4) shall submit reports on the performance of services and the execution of budget for the pertinent year and a business plan for the next year to the Administrator of the Public Procurement Service, within two months after the end of its business operations for the pertinent year.
 

Article 14 (Usage Fees for Electronic Procurement System)(1) A usage fee for the Electronic Procurement System under Article 25 (1) of the Act shall be determined and publicly notified by the Administrator of the Public Procurement Service in consultation with the Minister of Strategy and Finance, within the actual cost incurred in the operation of the Electronic Procurement System.

(2) The amount of a late payment charge under Article 25 (2) of the Act shall be prescribed by Ordinance of the Ministry of Strategy and Finance in an amount not exceeding 10/1,000 of the usage fee.

(3) The usage fee and late payment charge under paragraphs (1) and (2) shall be paid in cash: Provided, That the Administrator of the Public Procurement Service may allow the payment by means of electronic cash, electronic settlement, etc. through an electronic communications network.

(4) The usage fee and late payment charge collected from a person falling within any subparagraph of Article 25 (1) of the Act shall be regarded as revenue in the special account for procurement under subparagraph 4 of Article 3 of the Government Enterprise Budget Act.
 

Article 15 (Scope, etc. of Persons Eligible for Monetary Awards)(1) To be eligible for monetary awards under Article 26 (1) of the Act, a person shall be a reporting person (as defined under the aforesaid paragraph) who meets each of the following requirements:

1. The person shall have made a report or given information to an investigation agency or an authority involved in audits or fair trade investigations, and shall have provided relevant materials before such agency or authority becomes aware of the relevant facts;

2. The report or information shall not have been made or provided by a person who works for an investigative agency or who is or was engaged in audits or fair trade investigations, in connection with his/her duties;

3. The person shall not be a party to or a stake-holder in an unlawful electronic procurement act as defined under Article 20 of the Act.

(2) The amount of monetary awards payable under Article 26 (1) of the Act shall be determined by the Administrator of the Public Procurement Service within 20 million won, taking into account the scale of the relevant unlawful electronic procurement act, potential impact on electronic procurement services, budget, etc.

(3) Pursuant to Article 26 (1) of the Act, a person who intends to make a report or provide information on a fraudulent electronic procurement act under Article 20 of the Act and submit evidentiary materials shall submit the report or written information on the fraudulent act to the Administrator of the Public Procurement Service in the form determined and publicly notified by the Administrator of the Public Procurement Service, along with personal information, evidentiary materials, etc.

(4) Upon receipt of a report or information under paragraph (3), the Administrator of the Public Procurement Service shall investigate into facts relevant to the fraudulent electronic procurement conduct under Article 20 of the Act and shall notify the person who made the report or provided information and submitted evidentiary materials of the results of the investigation.

(5) Except as otherwise expressly provided for in paragraphs (1) through (4), matters necessary for the amount of monetary awards payable for each type of act, period for the payment of monetary awards, etc. shall be determined and publicly notified by the Administrator of the Public Procurement Service.
 

Article 16 (Preservation of Records of Electronic Procurement)

The Administrator of the Public Procurement Service shall preserve electronic records processed by the Electronic Procurement System for five years.
 

Article 17 Deleted.  <by Presidential Decree No. 27513, Sep. 27, 2016>
 

   

부칙  ADDENDUM <Presidential Decree No. 27513,  Sep. 27,  2016>

This Decree shall enter into force on the date of its promulgation.

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