Legitimacy Review of Construction Bidding
Published:
2010-07-31
[Abstract]On the basis of combing the current laws and regulations of construction bidding in China, the author believes that the legal validity of construction bidding activities mainly depends on the legal validity of the tenderer, bidder qualification and bidding procedure, and the legality of the tenderer qualification, bidder qualification and bidding procedure in the construction bidding stage should be examined in accordance with the law.
[Subject Words] Construction Bidding
Construction bidding is the process of offer and commitment, and it is the basis of the legal establishment of construction contract. The bidding activities of construction projects are mainly regulated by the bidding law, the construction law, the administrative measures for bidding of housing construction and municipal infrastructure construction projects, as well as relevant local laws and regulations, industry norms, etc. At the same time, the bidding of construction projects shall also comply with the corresponding provisions of the contract law, urban real estate management law, land management law, urban planning law and other laws and regulations. In the construction bidding stage, we should pay attention to the legal validity of the bidding activities, which mainly depends on the tenderer, the qualification of the bidder and the legal validity of the bidding procedure.
Legality Examination of 1. Tenderer's Qualification
Construction project bidding is the first step of construction, should follow the principle of openness, fairness, justice and good faith. Tender is divided into open tender and invitation to tender two ways, open tender refers to the tenderer by way of tender announcement to invite unspecified legal persons or other organizations to bid, invitation to tender refers to the tenderer by way of tender invitation to invite specific legal persons or other organizations to bid. Except for Article 3 of the Bidding Law and the provisions of the State Council that public bidding must be conducted, the tenderer of a construction project may choose to adopt public bidding or invited bidding.
In accordance with the provisions of the Bidding Law, a tenderer with legal qualifications shall meet the following requirements:
1. The tenderee is a legal person or other organization established in accordance with the law. If the bidding project is a real estate development project, the tenderee shall also comply with the Ministry of Construction's "Regulations on the Qualification Management of Real Estate Development Enterprises", and the scale of the bidding real estate development project shall be consistent with its development qualification.
2. The tenderee has fulfilled the examination and approval procedures for the bidding project and obtained the relevant administrative approval. There are mainly project approval, planning approval, construction land approval, etc., which should comply with the corresponding provisions of construction project approval, planning, land management and other laws.
3, the tenderer has implemented the tender project funds or sources of funds. Bidders should pay attention to investigate and understand the implementation of the project funds of the tenderee to prevent financial risks.
4. If the tenderer chooses a bidding agency to entrust it with bidding, the bidding agency shall meet the qualification conditions stipulated in Article 13 of the Bidding Law and the Ministry of Construction and other relevant departments.
It is necessary for bidders to examine whether the tenderer has the legal tender qualification, and the bidder's obligation to examine the tenderer's qualification is almost unavoidable in law. In the practice of construction engineering, due to the failure to examine the qualifications of tenderers in the bidding stage, there are many disputes that lead to invalid bidding.
Special attention should be paid to Article 9 of the "Bidding Law" clearly stipulates: "If a bidding project needs to go through the project approval procedures in accordance with relevant national regulations, it shall first go through the approval procedures and obtain approval". Whether the tenderer has obtained the administrative license for the establishment, planning and land use of the construction project is the fundamental and substantive requirement for the qualification of the tenderer of the construction project, and the key to the qualification examination of the tenderer. The lack of these aspects will directly lead to the invalid bidding activities. In accordance with the provisions of my country's "Urban Planning Law" and other laws, the tenderer shall obtain the "Construction Land Planning Permit" and "Construction Project Planning Permit" for project construction within the urban planning area ". Obtaining these two planning permits generally goes through a series of administrative licensing processes: the project must have a pre-feasibility analysis report and a feasibility study report, and obtain the permission of the national fixed asset investment authority to obtain the project approval; obtain the project approval After that, apply for the project planning site selection permit. The planning site selection is the pre-review of the construction land permit. If the site selection permit is not passed, the "construction land planning permit" cannot be applied "; if it is a real estate project, it is also necessary to obtain the permission of the municipal construction departments involved in the construction land, such as electricity, water, sewage, transportation, communications, post and telecommunications, commerce, education and other aspects of capacity and facilities, it is necessary to consult the relevant municipal and public facilities competent departments and obtain supporting permits; after obtaining the site selection permit documents, the architectural design plan and the documents approved by the relevant departments shall be declared, apply for the" Construction Land Planning Permit "based on the planning and site selection permit documents; after obtaining the" Construction Land Planning Permit ", apply for the land use procedures, obtain the allocation or transfer of land from the government land authority, and apply for the land use approval certificate or land use right Certificate; after obtaining the land use right, apply for the" Construction Project Planning Permit "based on the architectural design approved by the planning and the permission documents of relevant municipal and public departments".
Legitimacy Review of 2. Bidder's Qualification
Article 26 of the "Bidding Law" stipulates: "Bidders shall have the ability to undertake bidding projects; if the relevant provisions of the state have provisions on the qualifications of bidders or the qualifications of bidding documents, the bidders shall have the prescribed qualifications". Article 26 of the "Construction Law" stipulates: "A unit that contracts a construction project shall hold a qualification certificate obtained in accordance with the law and undertake the project within the scope of business permitted by its qualification level. Construction enterprises are prohibited from contracting projects beyond the scope of business permitted by the enterprise's qualification level or in any form in the name of other construction enterprises. It is forbidden for construction enterprises to allow other units or individuals to use their qualification certificates and business licenses in any form to contract projects in the name of the enterprise". At the same time, the Ministry of Construction's "Regulations on the Administration of the Qualification of Construction Enterprises" (implemented on July 1, 2001), "Standards for the Qualification of Construction Enterprises", "Regulations on the Administration of Foreign-invested Construction Enterprises" (implemented on October 1, 2003), and "Regulations on the Administration of Foreign-invested Construction Enterprises" The Measures for the Implementation of Relevant Qualification Management have made specific provisions on the construction qualifications of construction enterprises as bidders in construction projects.
In accordance with the above provisions, construction bidders with legal qualifications shall meet the following requirements:
1. The bidder is a construction enterprise or other organization established by law. The bidder holds a valid business license for a construction enterprise registered and established by the corresponding industrial and commercial administration authority in accordance with China's domestic company enterprise law, foreign-invested enterprise law and other laws. Other organizations mainly refer to joint tenders.
2. The bidder has the construction qualification level required by the bidding project. Bidders shall obtain valid construction qualification grade certificates in accordance with the specific regulations of the Ministry of Construction on construction qualification management, and participate in the construction bidding of the corresponding construction type and scale according to the qualification grade and category.
3. Bidders shall not bid in the name of other construction enterprises in any form such as borrowing or affiliation. The Construction Law strictly prohibits any form of bidding using the construction qualification certificates and business licenses of other units, and bidders must bid in the name of the enterprise.
4. The bidder meets the special conditions required by the bidding documents. Many tenderers often set special requirements for the qualifications of bidders when bidding, such as successful construction performance or experience in special construction projects, but such requirements should not constitute the departmental system, geographical exclusion or exclusion of potential bidders as stipulated in Articles 6 and 18 of the Bidding Law.
When participating in the bidding of construction projects, construction enterprises should be careful to examine their own qualifications, so that they can strive for good business results in the bidding of construction projects. There are many examples of invalid bids due to the lack of qualifications of bidders, but the formation of invalid bids and invalid bids often involves little damage to the interests of other parties, thus forming lawsuits, which seems to be of low concern. However, as a bidder's construction enterprise, it should be noted that due to their lack of qualifications leading to invalid bids have actually caused some of their own "insignificant" losses, such as project tracking, bidding and other costs. Strengthening the examination of the qualifications of bidders can avoid the loss of these costs as much as possible and improve the efficiency of bidding.
Review of the legal validity of 3. bidding procedures
Due to the importance and seriousness of bidding, the "Bidding Law" and relevant departmental regulations, local regulations, and regulations all strictly stipulate the procedures for bidding for construction projects. The main procedures for bidding include invitation to bid, prequalification of bidders, clarification of bidding documents, preparation and submission of tenders, opening of tenders, evaluation of tenders (including clarification of tenders) and winning of bids, and the following issues should be noted in these procedures:
1. Invitation to Bid: Public bidding is an invitation to unspecified bidders. Article 16 of the Bidding Law stipulates the bidding announcement for public bidding. At the same time, Article 14 of the Measures for the Administration of Bidding for Construction of Housing Construction and Municipal Infrastructure Projects stipulates that for projects that must be subject to public bidding, bidding announcements shall be published in newspapers, information networks or other media formulated by the state or local authorities, and at the same time in the Chinese engineering construction and construction industry information online tender notice. Invitation to bid is an invitation to a specific bidder, and Article 17 of the Bidding Law stipulates that an invitation to bid shall be issued to more than three specific bidders. Both the tender announcement and the invitation to bid must contain the name and address of the tenderer, the nature, quantity, place and time of implementation of the tender project and the method of obtaining the tender documents.
2. Bidder prequalification: Bidder prequalification is essentially the tenderer's examination of whether the bidder has the legal bidding qualification. The tenderer may pre-examine the qualifications of the bidders as required, mainly examining the qualifications, performance, technical equipment, financial status of the bidders, resumes and performance of the project managers and key technical personnel to be dispatched, etc., and after the pre-examination, a notice shall be sent to the bid applicants who have passed the pre-examination to inform them of the relevant matters to participate in the bidding. When there are too many bid applicants, the tenderer may choose not less than 7 pre-qualified bid applicants.
3. Clarification of bidding documents: at least 15 days before the deadline for submission of bidding documents required by the bidding documents, the tenderee may make necessary clarifications and modifications to the issued bidding documents, notify all recipients of the bidding documents in writing, and report to the construction administrative department of the local government at or above the county level where the project is located for the record.
4. Preparation and submission of tender documents
Bidders shall respond to the substantive requirements and conditions set forth in the bidding documents in accordance with the requirements of the bidding documents. The bidding documents mainly include the basic information of the bidder (including construction qualification, performance, financial status, advantages and characteristics, etc.), construction organization design (including overall deployment and construction plan, project department organization, quality, construction period, safety, civilization and environmental protection assurance measures, civil decoration installation and construction measures, new technology and process measures, construction machinery and equipment allocation, labor force arrangement, project delivery return visit and maintenance, etc.), quotation sheet and compilation instructions, etc. Except in special circumstances, the Bidder shall prepare the bid documents in accordance with the construction standards and specifications and the project pricing methods and standards in force in the country and the location of the project at the time of bidding, for example, the Regulations on the Quality Management of Construction Projects (Order No. 279 of the State Council), the Code for Quality Acceptance of Building Decoration Projects (GB50210-2001), the Measures for the Management of Construction Contracting and Contracting Valuation (Order No. 107 of the Ministry of Construction), the Code for Valuation of the Bill of Quantities of Construction Projects (GB50500-2008) and so on, the local construction pricing specification where the project is located is also the most commonly applicable, such as the Rules for the Calculation of Construction Quantities in Shandong Province (DXDGZ37-101-2002) and so on. The bidding documents shall not only fully respond to the substantive requirements of the bidding documents according to the bidding project and the specific conditions of the bidders themselves, but also shall not violate the mandatory provisions of relevant national and local laws and standards.
Article 24 of the Tendering and Bidding Law stipulates: "The tenderer must determine the reasonable time required for the bidder to prepare the tender documents, but for projects that must be tendered according to law, the minimum time shall not be less than 20 days from the date when the tender documents are issued to the date when the bidder submits the tender documents". The bidder shall deliver the sealed and stamped bid documents to the tenderee at the designated place within the submission period required by the bidding documents, otherwise the bid will be rejected.
5. Bid opening, bid evaluation (clarification of bid documents) and bid winning: All bid documents shall be kept confidential before bid opening. Bid opening shall be presided over by the tenderee. All bidders shall be invited to participate. All bid documents shall be opened and sung in public. Then, the bid evaluation committee organized by the tenderee in accordance with the law shall evaluate the bid, and the list of members of the bid evaluation committee shall be kept confidential until the bid winning result is determined. In the course of bid evaluation, the bid evaluation committee may require the bidder to make clarification or explanation on the relevant contents of the bid documents without changing the substance. The bid evaluation committee shall evaluate the bid in accordance with the Interim Provisions on Bid Evaluation Committees and Bid Evaluation Methods promulgated and implemented by the State Planning Commission and other ministries and commissions on August 1, 2001. After the bid evaluation, the bid evaluation committee shall recommend the candidate for winning the bid. The winning bidder shall be determined by the tenderer, or the winning bidder shall be directly determined by the bid evaluation committee authorized by the tenderer. After the winning bidder is determined, the tenderer shall issue a notice of winning the bid to the winning bidder and sign a written construction contract with the winning bidder within 30 days in accordance with the tender documents and bid documents.
6. Prohibited items of bidding:
The tenderer shall not adopt other bidding methods in the projects that must be subject to public bidding according to the law; shall not illegally restrict or exclude bidders outside the region or the system, or exclude potential bidders; shall not entrust bidding agencies that do not have the qualifications required by law to conduct bidding; shall not disclose the bottom of the bid; shall not require or indicate specific producers and suppliers; and shall not collude with bidders in bidding; it is not allowed to compel bidders to form a joint bid body and to restrict competition among bidders; it is not allowed to disclose any bid documents submitted by any bidder before the bid opening or the list of members of the bid evaluation committee before the bid is determined; it is not allowed to negotiate with bidders on substance before winning the bid.
Bidders shall not collude with other bidders and tenderers to participate in bidding, harming the national interests, social public interests or the legitimate rights and interests of other people; shall not bribe the tenderer or members of the bid evaluation committee; shall not compete with the cost quotation, resort to fraud or other means to win the bid; shall not negotiate with the tenderer on the substance before winning the bid.
Legal issues related to 4. construction bidding
1Legal analysis of consortium bidding
Article 27 of the "Construction Law" stipulates: "Large-scale construction projects or construction projects with complex structures may be jointly contracted by two or more contracting units. The parties to the joint contracting shall bear joint and several liability for the performance of the contract. Where two or more units with different qualification grades practice joint and joint contracting, the project shall be contracted within the scope of business license of the unit with the lower qualification grade". This provision is the legal basis for consortium bidding. Since the Construction Law allows two or more units to jointly undertake construction projects, it is necessary to allow the consortium to bid, and it is necessary to further regulate the consortium bidding. Article 31 of the Bidding Law further stipulates the qualifications, procedures, methods and legal responsibilities of the consortium's bidding. So what is the legal nature of the consortium bidding for construction projects? There is no direct answer to this question in the Construction Law and the Bidding Law.
Article 52 of China's General Principles of Civil Law stipulates: "Where enterprises or enterprises and institutions jointly operate and do not have the conditions of a legal person, the parties to the joint venture shall bear civil liability for the property they own or manage in accordance with the proportion of capital contribution or the agreement. If they are jointly and severally liable in accordance with the provisions of the law or the agreement, they shall bear joint and several liability". This is the general principles of civil law on partnership-type joint venture, I think from the characteristics of the consortium bid, it belongs to the partnership-type joint venture, should apply the legal provisions of the partnership-type joint venture.
In the consortium bidding, the parties to the consortium shall participate in the bidding in accordance with the provisions of the Bidding Law, and the legal relationship within the consortium shall be paid attention to, if the internal relationship is not well regulated, it will lead to the failure of the consortium bid and the joint construction disputes and losses. The legal documents that restrict the internal relations of the consortium are mainly the consortium agreement. Before participating in the bidding, the parties to the consortium shall sign a legal and clear agreement, which clearly stipulates the rights and obligations of the parties in the joint bidding activities regarding the commitment of bidding fees, the division of bidding and other rights and obligations, the organizational structure and operation mode of the consortium, the contracting arrangement after winning the bid, the claim for breach of contract and the dispute settlement method, etc. Where a domestic enterprise and a foreign-invested enterprise jointly bid, special attention shall also be paid to whether the foreign-invested enterprise has the qualifications to engage in construction in China, foreign-related guarantees, official language of the contract, application of the law and dispute resolution, so as to avoid disputes in violation of domestic law.
2Analysis of the Legal Nature of Bid Guarantee
In the practice of bidding for construction projects, almost without exception, the tenderer requires the bidder to provide a bid guarantee or bid bond as a bid guarantee when participating in the bid. Tender guarantees are mainly bank guarantees, bid bonds are mainly cash, checks, bills of exchange, etc., and most tenderers also require tender guarantees, bid bonds must be deposited in their bank accounts or otherwise controlled by them. Due to the lack of relevant laws and regulations, bid guarantee involves more civil disputes, and even some people with ulterior motives use false bidding to defraud bid bonds, causing irreparable losses to the parties concerned.
Article 27 of the Measures for the Administration of Tendering and Bidding for the Construction of Housing Construction and Municipal Infrastructure Projects, Decree No. 89 of the Ministry of Construction, stipulates that the tenderer may require the bidder to submit a bid guarantee in the tender documents. The bid guarantee may be in the form of a bid guarantee or a bid bond, which shall generally not exceed 2% of the total bid price and shall not exceed 500000 yuan. The bidder shall, in accordance with the manner and amount required by the tender documents, submit the tender guarantee or tender deposit to the tenderer with the tender documents. Article 47 also stipulates that if the winning bidder fails to enter into a contract with the tenderer, the bid bond shall not be refunded and his qualification for winning the bid shall be canceled, and if the loss caused to the tenderer exceeds the amount of the bid bond, the excess shall be compensated, and if the bid bond is not submitted, the tenderer shall be liable for the loss of the tenderer. If the tenderer causes losses to the winning bidder by failing to conclude a contract with the winning bidder without justifiable reasons, the tenderer shall compensate the winning bidder. I think the above provisions of Decree No. 89 of the Ministry of Construction have the following problems:
First of all, the provisions of this departmental regulation can not be found in the laws or administrative regulations of its superior level. Article 71 of my country's "Legislative Law" stipulates: "The matters stipulated in departmental rules shall belong to the implementation of laws or administrative regulations, decisions and orders of the State Council". Therefore, its legal effect is not high. Secondly, the regulations of this department are inconsistent with the principle of fairness and justice stipulated in the bidding law, the general principles of civil law and other laws. Bidders may have false bidding, collusive bidding, unauthorized abandonment after winning the bid, and the tenderer may also have false bidding, collusive bidding, unauthorized change of the winning bid after determining the winning bidder, etc., which may lead to the failure of bidding. Therefore, in the practice of bidding for construction projects, it is necessary to bind bidders to participate in the bidding activities of construction projects with bid guarantees such as bid guarantees or bid bonds, but the tenderers also need to use corresponding methods to be legally bound. Why only use the bid guarantee to bind the bidder but not the tenderer? This is obviously unfair and unjust. Third, the tender guarantee stipulated in this departmental regulation is inconsistent with the manner and nature of the guarantee stipulated in China's Guarantee Law. Since Order No. 89 of the Ministry of Construction clearly stipulates that the bid bond and the bid bond are bid security, the provisions of China's Guarantee Law should be applied. The Guarantee Law provides for five types of guarantee, namely, guarantee, mortgage, pledge, lien and deposit, from the actual situation, the tender guarantee seems to be close to the guarantee, the bid bond seems to be close to the deposit, but can not strictly apply the legal provisions of the guarantee, also completely inconsistent with the legal provisions of the deposit.
In order to solve the above problems, according to the provisions of the guarantee law on deposit, the bidding law and other relevant laws and regulations can be amended to clearly stipulate that the bid guarantee is the contract deposit, and the deposit penalty shall be applied to restrict the tenderer and the bidder equally. The deposit used for bid guarantee shall not be controlled by the tenderer, but shall be jointly supervised by both parties or a third party agreed by both parties, So as to ensure the safety of funds used for bid guarantee, A real guarantee. At the same time, the state should vigorously develop the bidding insurance and establish the third party construction project guarantee system. The bidding parties shall take out the bidding liability insurance when participating in the bidding, and the civil compensation liability for the failure of the bidding due to the reasons of the bidding parties shall be settled by the insurance company; the establishment of a company specializing in the guarantee of construction projects shall be entrusted by the party accepting the bidding The guarantee company provides guarantees or other guarantees that comply with the provisions of the Guarantee Law to the relevant parties.
3Analysis of the legal nature of the results of the bid, change and waiver.
Article 45 of the "Bidding Law" stipulates that after the winning bidder receives the bid-winning notice, the tenderer changes the bid-winning result without authorization, or the winning bidder abandons the bid-winning project, shall bear legal responsibility. This is because the tenderer changes the winning result without authorization or the winning bidder abandons the winning project, and the winning bidder fails to implement the winning project, the relevant parties shall bear the legal responsibility. But in the end should bear the nature of the legal responsibility? Bidding law is not clearly defined. In my opinion, this kind of responsibility should include two kinds of responsibilities, namely civil liability and administrative liability.
Is the civil liability of the party who changes or waives the winning result the liability for breach of contract, the liability for contracting negligence or the liability for tort? It needs to be clarified. The liability for breach of contract stipulated in China's civil law is based on the premise of an established valid contract, and there is no liability for breach of contract if the contract is not established or invalid. Tort liability is based on the premise of infringing upon the property and personal or other legitimate rights and interests of the obligee. Generally, there is no contractual relationship between the infringer and the obligee. Contractual negligence refers to the negligence of the parties at the conclusion of the contract, which leads to the contract, legal liability for causing damage to the other party.
According to Article 26 of China's Contract Law: "The notice of commitment shall take effect when it reaches the offeror. If the commitment does not require notice, it shall take effect when the act of commitment is made in accordance with the trading habits or the requirements of the offer". Article 32 stipulates: "If the parties conclude a contract in the form of a contract, the contract shall be established when the parties sign or seal it". According to the provisions of the bidding law, the bid winning notice is issued to the winning bidder, and the construction law and the contract law both stipulate that the construction project should sign a written contract. Therefore, I think that before the bidding parties sign a written construction contract after winning the bid, the construction contract has not yet been established, and only the process of offer and commitment before the contract is signed has been completed. When the winning bidder receives the notice of winning the bid, the tenderer changes the winning result without authorization, or the winning bidder abandons the winning project, in fact, the tenderer and the bidder violate the principle of good faith in the process of contracting, there is contracting negligence, shall bear the liability for contracting negligence in accordance with the law, to compensate the loss to the non-fault party.
The parties concerned who change or abandon the winning bid shall bear administrative responsibility, but the Bidding Law does not specify it. The "Bidding Law" includes the bidding of construction projects under the management and supervision of relevant administrative departments. For various behaviors that violate the "Bidding Law", the administrative agencies entrusted with supervisory functions should correct and punish them. The behavior of changing or abandoning the bid-winning result seriously endangers the legal and smooth progress of the bidding, and should be subject to administrative punishment, but there is a lack of clear legal provisions. This cannot but be said to be another loophole in the Bidding Law, and legislative amendments are recommended.
4Legal analysis of the construction project that has not signed a written contract after winning the bid but has been implemented by the winning bidder.
After issuing the bid-winning notice, the tenderer shall sign a written construction contract with the winning bidder within 30 days. In construction practice, there are some cases where written contracts have not been signed after winning the bid. The legal consequences and responsibilities are clear and this paper does not analyze the failure to sign a written contract due to the invalid winning result of illegal bidding. This paper analyzes the legal problems of not signing a written contract but the construction project has been implemented after winning the bid, provided that the legal bidding results are valid.
The failure to sign a written contract after winning the bid for a construction project can be divided into two types: one is that a written contract has not been signed after winning the bid, and the project has not been actually implemented by the winning bidder; the other is that a written contract has not been signed after winning the bid but the project has been actually implemented by the winning bidder. Although the reasons for not signing a written contract after winning the bid are various in practice, there are no more than subjective and objective reasons. Subjective reasons such as improper or malicious change of the winning result or abandonment of the winning project by the parties concerned, malicious delay in signing the contract or refusal to sign the contract in order to evade legal liability by the tenderee, and both the tenderee and the winning bidder agree to cancel the winning bid, etc. Objective reasons such as deterioration of the operation of the parties concerned and inability to implement the project, changes in national policies and regulations, etc. If the project is not signed in writing after the winning bid and the winning bidder has not actually implemented the project, unless the winning bid is revoked by the agreement of both parties, the parties concerned shall bear the liability for contracting negligence and administrative liability, which has been discussed in this article "Analysis of the legal nature of the result of the change and waiver of the winning bid" and will not be repeated here. The following analysis mainly analyzes the situation that the project has been actually implemented by the winning bidder without signing a written contract after winning the bid.
First of all, after winning the bid, no written contract has been signed but the project has been actually implemented by the winning bidder, and the project contract has been established and entered into force. Article 36 of the Contract Law stipulates: "If the law, administrative regulations or the parties agree to conclude a contract in writing, the parties have not adopted a written form but one party has performed its main obligations, and the other party accepts it, the contract is established". Both the Construction Law and the Contract Law clearly stipulate that a written contract should be signed for a construction project. However, for various reasons or motives after winning the bid, the employer and the winning bidder did not sign a written contract, but the employer ordered or allowed the winning bidder to enter the site for construction. The winning bidder also actually carried out the construction according to the employer's instructions or permission and fulfilled the main contractual obligations, namely, the construction obligations, in line with the provisions of Article 36 of the Contract Law, it should be determined that the construction contract between the two parties has been established, and Article 44 of the Contract Law stipulates that the contract established in accordance with the law shall take effect from the time of its establishment, and the contract formed in this case is also a valid contract.
Secondly, the parties concerned shall determine the rights and obligations of both parties in accordance with the bidding documents, construction drawings, etc., and bear the corresponding contractual responsibilities. Now that the construction contract of the two parties has been established and entered into force, they should bear their respective contractual responsibilities and exercise their respective contractual rights. However, after all, the two parties have not formed a written contract with detailed and specific written terms. In this case, the rights and obligations of both parties shall be determined in accordance with the bidding documents, bid-winning notice, construction drawings, effective construction standards and specifications, technical documents, and various visas and meeting minutes formed by both parties in actual construction. If any party violates the provisions of the above documents, it shall be regarded as a breach of contract and shall bear the liability for breach of contract.
Again, after winning the bid without signing a written contract but the project has been the actual implementation of the winning bidder more prone to disputes. Although there are various documents such as bidding documents that bind both parties, various disputes caused by the lack of detailed and specific contracts are still inevitable. Some specific problems that arise during construction are often not based on bidding documents and other documents. For example, there is often no clear agreement in the bidding documents for design changes and construction measurement fees, specific liability for breach of contract, etc. Therefore, various disputes are more likely to occur and unnecessary losses are caused. Therefore, this situation is not conducive to the full protection of the legitimate rights and interests of the parties concerned.
Fourth, the parties concerned shall bear administrative responsibility for the failure to conclude a written contract. The actual construction without a written contract after winning the bid is not only detrimental to the protection of the legitimate rights of both parties, but also disrupts the construction market and violates the laws and regulations of the Bidding Law, and should bear administrative responsibility. However, the "Bidding Law" does not clearly stipulate this. It is recommended to improve the construction contract filing system and the corresponding administrative penalty system to facilitate relevant government departments to strengthen supervision.
(This article won the first prize of 2010 Jinan excellent lawyer paper)
Key words:
Related News
Zhongcheng Qingtai Jinan Region
Address: Floor 55-57, Jinan China Resources Center, 11111 Jingshi Road, Lixia District, Jinan City, Shandong Province
Business License
