Sun, Sep 09, 2012 - Page 8 News List

The art of flawless tendering processes

By Wu Ching-chin 吳景欽

Prior to the presidential election in January, the production of the musical Dreamers for last year’s Double Ten National Day was a source of much controversy. Although the Taipei District Prosecutors’ Office said the bidding process for the production was flawed, they did not find evidence of wrongdoing and therefore closed the investigation.

That such an allegedly flawed process can be found to be in accordance with the law and only invoke administrative neglect is astounding. It also runs counter to the Public Procurement Act (政府採購法) which is meant to promote transparency and prevent closed-doors proceedings.

Although Article 18 of the act stipulates that government procurement can be made through open, selective and restricted tender, this does not give administrative agencies full discretion to act as they please.

Looking at the strict regulations regarding selective and restricted tenders in the act, it in principle becomes necessary to use open tenders.

According to Article 22 of the act, the open procedure can be bypassed for art and cultural activities and instead a restricted tender can be adopted, directly inviting two or more companies for a price comparison or a single company for price negotiations.

The Ministry of Culture can then use this procedure to legitimize a closed tender. Since the company has been invited to a price negotiation, it will know the contract standards and base tender, which also means the civil servants handling the bid cannot be guilty of leaking secret information.

The legality of a government agency’s procurement process cannot only be determined by a formal review; it requires a practical review of competition and price fairness, in particular in the case of restricted tenders, where the procedure is neither open nor transparent, since the governing authority decides which companies to invite for negotiations at its own discretion. This makes it difficult to avoid backroom dealings and unlawful gains.

In particular, according to Article 6 of the Anti-Corruption Act (貪污治罪條例), if a civil servant seeks unlawful gain, directly or indirectly, in the knowledge that the action is illegal, the seeking of unlawful gain can be established regardless of whether a bribe has been taken.

The reason for these strict regulations is to warn civil servants that they cannot put an equal sign between not taking money and being uncorrupt.

The expenditure for artistic creations paid out of the national budget cannot be exempt from judicial oversight based on the assertion that art and creativity are priceless, regardless of what the artist may think.

This is why the argument that since Dreamers is a cultural activity, it is justifiable to adopt a restricted tender process and directly award the tender to certain individuals or companies is vague and raises suspicions that it is aimed at avoiding an open tender.

Furthermore, it also seems to imply that the producer and the contracting company are unique and cannot be replaced by anyone else in Taiwan’s art circles. Is it really true that art and creativity in Taiwan are so impoverished that the choice must fall on a single person?

That is why prosecutors should deal with such a tender process in the most cautious manner rather than doing what they can to come up with the legal interpretation most beneficial to the principal.

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