Legal Applications of Taiwanese Government Procurement Contracts: Landscape Engineering Contracts

[[abstract]]摘 要在觀察各種公共工程計畫執行時，經常會發現內含有綠化植栽之工程項目身影，因所占比例相較於營建工程主體相對少很多，所以對其處理關心程度也相對容易忽視，囿於綠化植栽之主角是具有生命表徵之物件，係需要在併同主體工程或其獨立項目完工後，持續一段時間之撫育、養護使達契約目的，而這主體工程喉下之「逆鱗徑尺」(綠化植栽)，因待之者疏忽誤解其真意而未能統籌兼備，而常落入須辦理爭議之泥濘。有關綠化植栽工程在完工驗收後，隨即啟動分期養護併需繳納「保證金」，並於各分期查驗合格後發還，而這披著保證金外衣之養護保證金(亦稱保活保證金)，又身具契約價金之一部，那其性質就何為，其與政府採購法之保固保證金是否同屬性，倘當承攬廠商不履行契約或查驗驗收不合格造成機關損失等，如不以「逾期違約金」之方式來辦理而逕予直接扣款其保證金是否合宜。另有天災（含豪雨）或不可抗力之因素致植栽受損，其保活問題契約雙方之認知期待發生落差時，該何為處置為適當。契約條款有時因疏漏或法規認知有異而致生爭議，本文並非為規避爭議之處理，而係援引誠實信用公平合理之思維，來徙薪曲突防患於未然，擬制使其合理規範，減少爭議發生。[[abstract]]ABSTRACTWhile observing the execution of various public construction projects, it is often found that projects incorporate landscape engineering. However, the proportion of revegetation engineering is relatively small compared to the main body of the construction project, more often than not diminishes the degree of concern of its execution. As landscape engineering embodies elements of life signs, there is the need to maintain the vegetation growth upon completion of the main project or its subproject for a period of time to achieve the purpose of the contract. The bottleneck then lies in the misunderstanding of contracting parties on the subject of vegetation maintenance which often lead to disputes. Upon completion and acceptance of the landscape engineering project, installment maintenance begins consecutively along with a security deposit; each proportion reimbursed after inspection of each installment. This maintenance deposit (also known as keep alive deposit) thus contains both meanings of deposit and contract price, bringing questions as to what is its legal nature? Is it the same as the guarantee deposit in the government procurement law? When the contractor fails to perform the contract or fails to pass the inspection and acceptance, resulting in agency losses, what are the solution methods? If it is not handled by the method of "Overdue Liquidated Damages”, whether it is appropriate to directly deduct from the deposit. With natural disasters (including heavy rain) or force majeure causing damage to plants, or when there is a gap between the understanding and expectations of the two parties to the keep-alive problem, what are the appropriate measures?This article is not intended to avoid disputes, but to discuss on the integretiy, credibility, fairness and reasonableness of contracts in order to take precautions and to reduce disputes