|
ELECTRONIC PROCUREMENT UTILIZATION AND PROMOTION ACT [Enforcement Date 30. Mar, 2016.] [Act No.13626, 29. Dec, 2015., Partial Amendment] 조달청 ( 전자조달기획과) , 070-4056-7215 기획재정부 ( 계약제도과) , 044-215-5211
CHAPTER I GENERAL PROVISIONS
Article 1 (Purpose) The purpose of this Act is to provide for matters necessary for electronic processing of procurement services of procuring entities, thereby ensuring safety, reliability, and fairness in their procurement services and promote and facilitate smooth implementation of electronic procurement services.
Article 2 (Definitions) The terms used in this Act shall be defined as follows: 1. The term "procuring entity" means a State agency, a local government, or any public organization specified by Presidential Decree; 2. The term "contracting agent" means a person delegated or entrusted with contract management for and on behalf of a procuring entity under relevant statutes; 3. The term "procurement services" means services provided in relation to the purchase and supply of goods or services that the head of a procuring entity requires as well as services related to facilities construction contracts; 4. The term "integrated national electronic procurement system" means an information system established and operated by the Administrator of the Public Procurement Service under Article 12 in order to electronically process procurement services; 5. The term "electronic procurement" means electronic processing of procurement services by using or utilizing the integrated national electronic procurement system; 6. The term "electronic procurement user" means a person registered as a user in the integrated national electronic procurement system under Article 17.
Article 3 (Scope of Application) This Act shall apply to persons who use or utilize the integrated national electronic procurement system (hereinafter referred to as the "Electronic Procurement System").
Article 4 (Relationship with Other Acts) Except as otherwise expressly provided for in the Act on Contracts to Which the State Is a Party, the Act on Contracts to Which a Local Government Is a Party, or any other Act, electronic procurement shall be governed by this Act.
CHAPTER II DIGITALIZATION OF PROCUREMENT SERVICES
Article 5 (Electronic Processing of Procurement Services)(1) The head of each procuring entity shall endeavor to process procurement services electronically by using or utilizing the Electronic Procurement System. (2) The Administrator of the Public Procurement Service shall formulate policies for facilitating electronic procurement.
Article 6 (Electronic Publication of Competitive Bidding)(1) When the head of a procuring entity or a contracting agent intends to electronically process a competitive bidding process, he/she shall publish a notice of intended procurement on the Electronic Procurement System. (2) The method and time-period for a publication under paragraph (1) and other necessary matters shall be prescribed by Presidential Decree.
Article 7 (Electronic Bid) When an electronic procurement user intends to participate in a competitive bid or a process for determining the awardee of a non-bid contract through the Electronic Procurement System (hereinafter referred to as "electronic bid"), the user shall submit a bidding document or a quotation in electronic form, as prescribed by Presidential Decree.
Article 8 (Electronic Publication of Contractor) The head of a procuring entity or a contracting agent may publish the person determined to be a contractor in an electronic bid (hereinafter referred to as "contractor") on the Electronic Procurement System.
Article 9 (Preparation of Electronic Contracts and Formation of Contracts)(1) When the head of a procuring entity or a contracting agent intends to conclude a contract with the contractor by using the Electronic Procurement System, he/she shall prepare a contract in electronic form (hereinafter referred to as "electronic contract") on the Electronic Procurement System, which states the purpose of the contract, contract amount, compliance period, contract bond or default interest, and other necessary matters. (2) A contract made in accordance with paragraph (1) shall be duly formed when it meets each of the following requirements in the order set forth below: 1. The head of the procuring entity or the contracting agent shall transmit an electronic contract to the contractor through the Electronic Procurement System; 2. The contractor shall transmit to the head of the procuring entity or the contracting agent his/her assent to the terms and conditions of the electronic contract received under subparagraph 1 through the Electronic Procurement System; 3. The head of the procuring entity or the contracting agent shall finally confirm the electronic contract received under subparagraph 2 and transmit the confirmed contract to the contractor through the Electronic Procurement System.
Article 9-2 (Electronic Processing of Management of Subcontracts)(1) Where the head of a procuring entity or a contracting agent intends to electronically process subcontracting affairs in connection with a contract made with a contractor, he/she shall use the electronic system operated by the head of the procuring entity for the management of subcontracts. (2) Necessary matters relating to the content of, and procedure for, the electronic processing of subcontract management under paragraph (1) and other necessary matters shall be prescribed by Presidential Decree. [This Article Newly Inserted by Act No. 13626, Dec. 29, 2015]
Article 10 (Electronic Payment of Bonds)(1) The head of a procuring entity or a contracting agent may require bidders or the contractor to pay a bid bond, contract bond, warranty bond, etc. under contract law, etc. using the Electronic Procurement System. (2) The payment of a bid bond, contract bond, warranty bond, etc. under paragraph (1) shall be made by submitting a letter of guarantee in electronic form: Provided, That the foregoing shall not apply where such bond is paid in cash, etc. in accordance with any statute related to contract law. <Newly Inserted by Act No. 13626, Dec. 29, 2015> (3) Necessary matters relating to the method, procedure, etc. for payment under paragraphs (1) and (2) shall be prescribed by Presidential Decree. <Amended by Act No. 13626, Dec. 29, 2015>
Article 11 (Transmission and Receipt of Electronic Documents)(1) Every document prepared, transmitted, received, or stored in electronic form (hereinafter referred to as "electronic document") in or through the Electronic Procurement System under Articles 6 through 10, shall bear an official digital signature defined under subparagraph 3 of Article 2 of the Digital Signature Act (including an administrative digital signature defined under subparagraph 9 of Article 2 of the Electronic Government Act). (2) An electronic document shall be deemed transmitted or received at the time it is entered into the Electronic Procurement System: Provided, That a bidding document submitted by an electronic procurement user may be deemed received when it is presented to the licensed certification authority in accordance with Article 20 of the Digital Signature Act, if it is impossible to ascertain the time when the document is entered into the Electronic Procurement System. (3) Notwithstanding the proviso to Article 6 (2) 1 of the Framework Act on Electronic Documents and Transactions, an electronic document entered into any computer system other than the Electronic Procurement System shall be deemed not received, regardless of whether it has been printed out. (4) Notwithstanding Article 7 (2) or (3) of the Framework Act on Electronic Documents and Transactions, an electronic document entered into the Electronic Procurement System shall be deemed transmitted, regardless of the transmitter's actual intention. (5) Notwithstanding Article 9 of the Framework Act on Electronic Documents and Transactions, no transmitter of an electronic document may request confirmation on the receipt of the document or attach any condition on the effectuation of the document: Provided, That if the head of the relevant procuring entity or contracting agent prescribes different rules for this matter, such rules shall apply.
CHAPTER III OPERATION AND MANAGEMENT OF ELECTRONIC PROCUREMENT SYSTEM
Article 12 (Establishment, Operation, etc. of Electronic Procurement System)(1) The Administrator of the Public Procurement Service shall establish the Electronic Procurement System so as to electronically process procurement services. (2) The Administrator of the Public Procurement Service may request the head of a procuring entity or the head of any relevant institution to provide data or information necessary to establish and operate the Electronic Procurement System, as prescribed by Presidential Decree. The head of an institution in receipt of a request for provision of data or information shall comply with such request, except in exceptional circumstances. (3) The Administrator of the Public Procurement Service may determine and publicly notify standards for the establishment and operation of the Electronic Procurement System.
Article 13 (Request to Make Contracts Using Electronic Procurement System) When the head of a procuring entity intends to request the Administrator of the Public Procurement Service to make a contract for the purchase or supply of goods for procurement or a contract on a project for the construction of a facility under the Government Procurement Act, he/she shall make such request through the Electronic Procurement System: Provided, That the foregoing shall not apply in extenuating circumstances due to a natural disaster, computer problem, etc.
Article 14 (Establishment and Operation of Independent Electronic Procurement System)(1) If the head of a procuring entity deems it necessary to electronically process procurement services, he/she may establish and operate an independent Electronic Procurement System linked to the Electronic Procurement System. (2) If the head of a procuring entity governed by the Act on Contracts to Which the State Is a Party or the Act on the Management of Public Institutions intends to establish an independent electronic procurement system under paragraph (1), he/she shall hold prior consultation with the Minister of Strategy and Finance thereon.
Article 15 (Use or Utilization of Electronic Procurement System by Any Person Other Than Procuring Entities)(1) Any person who is not a procuring entity may use or utilize the Electronic Procurement System for such purpose as holding electronic bidding events or developing and providing a new service by utilizing the Electronic Procurement System, subject to approval from the Administrator of the Public Procurement Service. (2) In any of the following cases, the Administrator of the Public Procurement Service may deny approval for the use or utilization of the Electronic Procurement System, to a person who is not a procuring entity: 1. If the person makes a false statement in the application to use or utilize the Electronic Procurement System; 2. If the person intends to use or utilize the system for disturbing sound order in a bidding process or violating any related statute; 3. Other cases specified by Presidential Decree as not appropriate for a person who is not a procuring entity to use or utilize the Electronic Procurement System.
CHAPTER IV MANAGEMENT AND PROTECTION OF INFORMATION OF ELECTRONIC PROCUREMENT USERS
Article 16 (Management and Provision of Information, etc. Related to Contracts)(1) The Administrator of the Public Procurement Service shall systematically manage information on bidding, information related to contracts, and information on commodity lists defined under subparagraph 3 of Article 2 of the Act on the Management and Use of Information on Commodity Lists (hereinafter referred to as “information on commodity lists”) through the Electronic Procurement System. (2) If an electronic procurement user finds it necessary to enter or modify any information on commodity lists, which is managed through the Electronic Procurement System under paragraph (1), the user shall request the Administrator of the Public Procurement Service to enter or modify such information. (3) If the head of a procuring entity or a person who is not a procuring entity but has obtained approval from the Administrator of the Public Procurement Service under Article 15, requests the provision of information on bidding, information related to contracts, or information on commodity lists under paragraph (1), the Administrator of the Public Procurement Service shall provide such information in accordance with the Personal Information Protection Act.
Article 17 (Registration, etc. of Electronic Procurement Users)(1) A person who intends to contract electronically with a procuring entity or a person who is not a procuring entity through the Electronic Procurement System shall register him/herself as a user in the Electronic Procurement System, as prescribed by Presidential Decree. (2) If an electronic procurement user finds an error in the information registered under paragraph (1) or there is a change in such information, he/she shall file for registration of the correction or change.
Article 18 (Protection of Confidential Information)(1) The Administrator of the Public Procurement Service shall formulate measures to protect personal information, trade secrets, etc. of electronic procurement users. (2) No head of any procuring entity or contracting agent shall provide or divulge trade secrets of a contractor to any third party without the consent of the contractor. (3) No person who manages and operates, or has formerly managed and operated, the Electronic Procurement System shall divulge any content of an electronic document or any other relevant information obtained in the course of his/her duties, or use, or allow any third party to use, such information for any purpose other than for performing his/her duties. (4) Matters necessary for the details of the measures to protect trade secret under paragraph (1) shall be prescribed by Presidential Decree.
Article 19 (Prohibition of Disturbance of Electronic Procurement Services)(1) No person shall disturb any electronic procurement service by entering false information or a fraudulent order into the Electronic Procurement System. (2) No person shall forge or alter any electronic document or any other related information stored in the Electronic Procurement System, or use any forged or altered information.
Article 20 (Prohibition of Unlawful Electronic Procurement Acts) No person shall transfer or lend his/her authorized certificate defined under subparagraph 8 of Article 2 of the Digital Signature Act to any third person with intent to aid and abet the person in participating in an electronic bid, or acquire or borrow such authorized certificate with intent to participate in an electronic bid.
CHAPTER V PROMOTION OF, AND ASSISTANCE IN, ELECTRONIC PROCUREMENT SERVICES
Article 21 (Education and Training on Electronic Procurement) The Administrator of the Public Procurement Service may operate educational and training programs on the use or utilization of the Electronic Procurement System for public officials or executive officers and employees in charge of electronic procurement services in each procuring entity, or electronic procurement users and their executive officers and employees.
Article 22 (Promotion of International Cooperation and Exportation) In order to promote international cooperation in electronic procurement and the exportation of the Electronic Procurement System, the Administrator of the Public Procurement Service may conduct the following activities: 1. Publicity of electronic procurement; 2. Exchange of technologies and personnel; 3. Joint survey and research, and technical cooperation; 4. Global standardization; 5. Assistance to, and cooperation with, domestic companies in entering into electronic procurement markets of foreign governments; 6. Other activities that the Administrator of the Public Procurement Service deems necessary.
Article 23 (Electronic Procurement Support Center)(1) In order to render assistance in developing and stably operating the Electronic Procurement System, the Administrator of the Public Procurement Service may designate an electronic procurement support center (hereinafter referred to as “support center"). (2) A support center shall perform the following activities: 1. Assistance in managing and operating the Electronic Procurement System; 2. Research on technologies for stably operating the Electronic Procurement System and assisting education on the system; 3. Assistance in developing overseas markets for the Electronic Procurement System and the exportation of the system; 4. Research and development for promoting and activating digitalization of procurement services; 5. Assistance in international cooperation and publicity in relation to electronic procurement; 6. Programs for assisting and cooperating with, domestic companies in entering into electronic procurement markets of foreign governments; 7. Other services entrusted by the head of a procuring entity. (3) A support center may engage in activities for profit in order to secure funds to cover necessary expenses incurred in performing the activities listed in paragraph (2). (4) Deleted. <by Act No. 13626, Dec. 29, 2015> (5) Necessary matters relating to the criteria for the designation of a support center, reporting of the results of performance of services, subsidization of expenses, etc. shall be prescribed by Presidential Decree.
Article 24 (Revocation of Designation of Support Center) In any of the following cases, the Administrator of the Public Procurement Service may revoke the designation of a support center or issue an order to suspend operation of its business for a specified period not exceeding six months: Provided, That he/she shall revoke the designation if a support center falls within subparagraph 1: 1. If the support center has obtained the designation by fraud or any other wrongful means; 2. If the support center has no record of performance of services for at least two consecutive years without just grounds; 3. If the support center becomes incapable of performing the activities listed in Article 23 (2); 4. If the support center ceases to meet any of the designation criteria referred to in Article 23 (5).
CHAPTER VI SUPPLEMENTARY PROVISIONS
Article 25 (Usage Fees for Electronic Procurement System)(1) The Administrator of the Public Procurement Service may collect usage fees from the following persons for using or utilizing the Electronic Procurement System: 1. A procuring entity that directly holds an electronic bidding event; 2. A person who contracts with a procuring entity or any person other than a procuring entity through an electronic bidding process; 3. A procuring entity that utilizes the Electronic Procurement System for establishing and operating an independent Electronic Procurement System under Article 14 (1); 4. A person who is not a procuring entity but uses the Electronic Procurement System in order to hold an electronic bidding event under Article 15; 5. A person who is not a procuring entity but utilizes the Electronic Procurement System in order to develop and provide a new service under Article 15; 6. An electronic procurement user who requests the registration or modification of information on commodity lists under Article 16 (2). (2) If a person does not pay the usage fee under paragraph (1) by the specified deadline, a late payment charge may be imposed on the person. (3) Necessary matters relating to the amounts of the usage fees and late payment charges under paragraphs (1) and (2), the payment methods for such fees and charges, etc. shall be prescribed by Presidential Decree.
Article 26 (Payment of Reward Money)(1) The Administrator of the Public Procurement Service may pay reward money to a person who reports or informs of any fraudulent electronic procurement activities specified in Article 20 and submit evidentiary materials (hereinafter referred to as "reporting person"), within budgetary limits. (2) The person in receipt of a report or information shall keep confidential the identity, etc. of the reporting person. (3) Necessary matters relating to the scope of persons entitled to reward money under paragraph (1), the guidelines and procedures for paying reward money, etc, shall be prescribed by Presidential Decree.
CHAPTER VII PENALTY PROVISIONS
Article 27 (Penalty Provisions)(1) Any of the following persons shall be punished by imprisonment for not more than ten years or by a fine not exceeding 100 million won: 1. A person who disturbs electronic procurement services by entering false information or a fraudulent order into the Electronic Procurement System, in violation of Article 19 (1); 2. A person who forges or alters an electronic document or any other related information stored in the Electronic Procurement System or uses forged or altered information, in violation of Article 19 (2). (2) Any person who attempts to commit any of the crimes specified in paragraph (1) shall be punished.
Article 28 (Penalty Provisions) Any of the following persons shall be punished by imprisonment for not more than five years or by a fine not exceeding 50 million won: 1. A person who provides or divulges trade secrets of a contractor to any third party, in violation of Article 18 (2); 2. A person who divulges any content of an electronic document or any other relevant information obtained in the course of his/her duties, or uses, or allows any third party to use, such information for other than a purpose for performing his/her duties, in violation of Article 18 (3).
Article 29 (Penalty Provisions) Any person who transfers or lends an authorized certificate to another person with intent to aid and abet the person to participate in an electronic bid, or acquires or borrows such authorized certificate with intent to participate in an electronic bid, shall be punished by imprisonment for not more than one year or by a fine not exceeding 10 million won.
Article 30 (Joint Penalty Provisions) If the representative of a corporation or an agent, employee, or servant who works for a corporation or for an individual, commits any offense specified in Article 27 or 29 in connection with the business of the corporation or individual, not only such offender shall be punished accordingly, but the corporation or individual also shall be punished by the fine specified in the relevant Article: Provided, That the foregoing shall not apply where the corporation or individual has not neglected due care and supervision over the relevant business to prevent such offense.
Article 31 Deleted. <by Act No. 13626, Dec. 29, 2015>
부칙 ADDENDA <Act No. 13626, Dec. 29, 2015> Article 1 (Enforcement Date)
This Act shall enter into force three months after the date of its promulgation.
Article 2 (Applicability) The amended provisions of Article 9-2 (1) shall apply beginning with the first contract made after this Act enters into force. Article 3 (Transitional Measure Concerning Administrative Fines) Notwithstanding the amended provisions of Articles 23 (4) and 31, the former provisions shall apply where a person violates any of the former provisions of Article 23 (4) before this Act enters into force.
| 
