政府采购法关于行政诉讼受案范围规定之缺失

The Defects of Government Procurement Act Concerning the Scope of Accepting Cases in Administrative Litigation

《政府采购法》将行政诉讼受案范围仅限于政府采购监督管理部门关于投诉的处理决定或不作为,既排斥了权益受到潜在损害的当事人成为原告,也排斥了对政府采购实体不作为的司法审查;同时,先经投诉才能起诉,既拖延了纠纷的解决时间,也不利于通过行政诉讼有效救济有关当事人的权利。政府采购合同在合同授予、合同内容和合同所实现的功能等方面都有别于民事合同,实属行政合同,应纳入行政诉讼的受案范围。

The scope of accepting cases in the government procurement act is limited to the adjudication or nonfeasance of the supervising agencies. The person whose rights and interests are latently infringed has no qualification of the plaintiff, and the nonfeasance of the government procuring agency cannot be examined by courts. In addition, the procedure of turning to an administrative agency before bringing a suit is time consuming and cannot give the relative party effective remedy. The government procurement contract is a kind of administrative contract, which is different from the civil contract, and it should be included in the scope of the accepting cases of the administrative litigation.