The Supreme Administrative Court rendered the 103-Pan-617 Decision of November 20, 2014 (hereinafter, the "Decision"), which expounded that bidding in the name of another supplier would be subject to Article 101, Paragraph 1, Subparagraph 2 of the Government Procurement Law. Even if the supplier which borrows another supplier's name or certificates is qualified for bidding, and such act is conducted merely to meet the requirement for the minimum number of bidders, this would still fall within the scope of such provision.

According to the facts underlying the Decision, the Appellant participated in the Appellee's procurement project at issue. After the Appellee determined that the Appellant tendered in the name of another supplier, the original disposition that the Appellant would be published in the Government Procurement Gazette in accordance with Article 101, Paragraph 1, Subparagraph 2 of the Government Procurement Law was issued and communicated to the Appellant. Dissatisfied, the Appellant objected and filed a protest or complaint, which was rejected. Thus, the administrative action was brought.

Article 101, Paragraph 1, Subparagraph 2 of the Government Procurement Law provides: "Where a procuring entity finds that a supplier is subject to any of the following circumstances, the entity shall notify the supplier of the facts and reasons related thereto and indicate with a note in the notification that it will be published on the Government Procurement Gazette if the supplier does not file a protest:...(2) where the supplier borrows or assumes any other's name or certificate or uses forged documents or documents with unauthorized alteration to tendering, contracting, or performing a contract…"

According to the Decision, Article 101, Paragraph 1, Subparagraph 2 of the Government Procurement Law seeks to address the issue that a bidder participating in a tender by borrowing the name or certificates of another supplier will create false competitive behavior and undermine the fairness of the tender in violation of the legislative objective of ensuring fair and open procurement procedures under the Government Procurement Law. Therefore, bidding in the name of another supplier would fall within the scope of such provision even though the supplier which borrows another supplier's name or certificates is qualified for bidding, and such act is conducted merely to meet the requirement for the minimum number of bidders.

It was further pointed out in the Decision that the Appellant's representative also committed the offense of undermining a tender by fraudulent means under Article 87, Paragraph 3 of the Government Procurement Law and the offense of bidding in the name of another party under Paragraph 5, as substantiated in a deferred prosecution disposition issued by the prosecution. Therefore, the Appellant's illegal bidding act also meets the criteria for Article 101, Paragraph 1, Subparagraph 2 and Subparagraph 6 of the Government Procurement Law at the time. The Appellee's publication of the Appellant's name in the Government Procurement Gazette in accordance with Article 101, Paragraph 1, Subparagraph 2 of the Government Procurement Law on the ground that the Appellant participated in the tender in the name of another party is not inappropriate. Therefore, the Appellant's appeal was rejected.