The Supreme Administrative Court rendered the 108-Pan-80 Decision of February 27, 2019 (hereinafter, the “Decision”), holding that the statute of limitations is a rights barrier to a claim to recover a bid bond, and in case the fact associated with a recovery claim is verified, if it is asserted that the claim lapses due to the occurrence of a rights barrier, the party making such assertion shall assume the burden of proof.
According to the facts underlying this Decision, the retrial plaintiff participated in the tender of the procurement project at issue conducted by the retrial defendant. Chen-lung Yu, the actual legal representative of the retrial plaintiff, attempted to affect the procurement outcome and obtain improper benefits by allowing another person to borrow the retrial plaintiff’s name to participate in the tender and was found guilty in the criminal decision at issue. The retrial defendant held on such basis that the retrial plaintiff had been subject to the circumstance of “allowing another person to borrow his/her own name or papers to participate in a tender” as set forth in the last part of Article 87, Paragraph 5 of the Government Procurement Law and thus had engaged in an act which violates laws and regulations, and which was found by the competent authority to have affected the fairness of procurement. Under Article 12, Subparagraph 4 of the Bid Instructions, the original disposition was issued to notify the retrial plaintiff to recover the bid bond which had been returned. After the retrial plaintiff was finally unsuccessful in its lawsuit to set aside the original disposition, this retrial was filed.
According to this Decision, the statute of limitations is a rights barrier to a claim to recover a bid bond, and in case the fact associated with a recovery claim is verified, if is asserted that the claim lapses due to the occurrence of a rights barrier, the party making such assertion shall assume the burden of proof. In addition, now that the court made a clear determination with a mental impression on the high probability about the fact associated with the recovery claim, the same standard should be adopted for the determination of whether the barrier is established or not.
It was further pointed out in this Decision that according to the gist of the general arguments in the original decision rendered in the previous procedure and the evidence investigation results, the retrial defendant was not a party to the criminal decision at issue and could not learn about relevant matters, and the retrial plaintiff could not prove that the retrial defendant had received the prosecution’s indictment or specifically point out any evidence sufficient to prove that the retrial defendant had learned about the retrial plaintiff’s violation of the Government Procurement Law before the disclosure of the criminal decision at issue. Therefore, the timing when the criminal decision at issue was available for online query was treated as the starting point of the statute of limitations for the recovery of the bid bond. Since such arguments neither violated the empirical and logical rules nor contravened the standard for substantiating a rights barrier in the above-mentioned administrative action, the complaint for retrial was rejected.