AN ALTERATION OF PRIVATE PARTNERSHIP IN PROCUREMENT CONTRACT

บทคัดย่อ

When a government agency engages in procurement with a private sector in the form
of an administrative contract, the process is governed by the Public Procurement and Supplies Administration Act, B.E. 2560 (2017). This requires the agency to follow the established procedures for selecting the private sector to be the contractual party and adhere to the steps mandated-
by law. Government agency may use price criteria, technical criteria, or a combination of both, depending on the case. Specifically, in procurement where government agency uses technical criteria, private parties selected as contractual partners must undergo the processes and meet the qualifications as required by the government agency and the law, so the qualifications of the contractual parties are considered the essence of the contract. It was found that at present, during the implementation of the contract, the contract was amended by changing the counterparty of the private sector. The parties have transferred their obligations under the contract to other private parties. This is a conversion of debtors. The new private parties have not passed the screening process as required by the government or the law, even though in certain types of contracts,
the qualifications of the contractual party are considered a key element in procurement contract. When a government agency fails to consider the qualifications of a new private replacement in accordance with the procedures and regulations required by law, the new private replacement may not have the qualifications or ability to carry out the contract. Therefore, amending the contract by changing the contractual party may be unlawful.

The study has revealed that there is no specific law to prohibit the replacement of private contractors in procurement contracts. Instead, there are only guidelines provided by the Federal Accounting Department for practical understanding. The legal method for applying private law to administrative law remains unclear. Consequently, the author agrees to apply the provisions prohibiting the replacement of private contractors in US and EU procurement contracts into the Public Procurement and Supplies Administration Act, B.E. 2017, in Thailand.