I, must bidding construction projects.
1, according to the provisions of the bidding law must be bidding projects.
According to the latest revision of the "Bidding Law," Article 3 provides that "in the Chinese people's *** and the State of the following construction projects, including project investigation, design, construction, supervision and procurement of important equipment and materials related to construction must be tendered: (a) large-scale infrastructure, public utilities and other social and public *** interests, public safety projects; (b) the public's interest, public safety projects; (c) the public's interest in the project; (d) the public's interest in the project; (e) the public's interest in the project. public safety projects; (ii) the use of state-owned funds in whole or in part or state-financed projects; (iii) the use of international organizations or foreign governments, loans, aid funds.
According to the above provisions, the construction projects which must be subject to bidding are categorized from the stage of construction, including the construction stage contracts involved in "investigation, design, construction, supervision, and procurement of important equipment and materials related to the construction of the project", etc.; from the type of project, including projects related to the interests of the public and public * * * safety; from the type of funding, including projects related to the interests of the public and public safety; from the type of project, including projects related to the interests of the public and public safety. * * * security projects; from the nature of the funds include the use of state capital, and the use of foreign capital projects.
2, according to the provisions of departmental regulations should be bidding projects.
The old version of the "scope of construction projects and scale standards for bidding regulations", as well as the re-revision of the "must bidding project regulations", is the "Bidding Law," Article 3 of the scope of the project must be tendered in specific detail. Of particular note are the provisions on the scope of public utility projects for the benefit of the public **** and public safety. According to Article 3 of the old version of the Provisions on the Scope and Scale Standards for the Tendering of Construction Projects, the specific scope of the six categories of public utility projects relating to the interests of the social public **** and public safety, including commercial residences, is clearly stipulated. According to the newly promulgated "must bidding project regulations," the provisions of Article IV, the relationship between the social public **** interests, public safety, the scope of public utilities projects only a general description, without specific enumeration, which provides that "large-scale infrastructure, public utilities, and other relationships between the social public **** interests, public safety projects, must be bidding the specific scope of the project by the Development and Reform Department of the State Council, in conjunction with the relevant departments of the State Council in accordance with the principle of necessity, strictly limited to develop, reported to the State Council for approval." It can be understood that the new provisions of the scope of the project must be bidding projects have been narrowed, the previous must be bidding, such as the construction of commercial housing, in the absence of the introduction of a specific scope of the relevant provisions of the project does not belong to the project must be bidding. And article 5 on the scale of the standard provisions must be tendered, compared with the old provisions of the amount of the standard doubled, that is, from the old version of the service, procurement, construction, respectively, 500,000, 1 million, 2 million yuan, to 1 million, 2 million, 4 million yuan.
Two, the legal nature of the bidding documents, notice of award.
The legal nature of the construction project bidding, according to the "contract law" and "bidding law" to be determined. The bidding and tendering parties through the bidding, bidding, winning the bid, after the bidder to the bidder issued a notice of award, bidding documents and notice of award, the bidding and tendering parties are legally binding.
Article 13 of the contract law provides that " the parties to enter into a contract, to take the offer, commitment." Article 15 provides that "the invitation to offer is the hope that others to send an offer to their own expression of intent. Price lists, auction notices, tender notices, prospectuses, commercial advertisements, etc. are sent as invitations to make offers. Commercial advertisements are regarded as an offer if their contents are in line with the provisions of an offer." According to Article 45 of the Bidding Law, "After the successful bidder is determined, the bidder shall issue a notification of award to the successful bidder and at the same time notify all unsuccessful bidders of the result of the award. The notice of award has legal effect on the bidder and the successful bidder. If the bidder changes the winning result after the notice of award is issued, or if the winning bidder abandons the winning project, it shall bear legal responsibility according to law."
Tendering is an invitation to make an offer, bidding is an offer, and winning is a promise; therefore, bidding is a form of contract formation. ① construction project bidding is an invitation to offer, inviting bidders to make an offer on the main terms of the contract. ② tender is an offer, is the bidder according to the conditions of the tender documents, put forward their own construction works on the technical, price and other contractual conditions. ③ notice of award is a commitment, once the notice of award is issued, it is indicated that the bidder accepts the bidder's tender conditions, accept the bidder's offer conditions.
In the case No.: (2014) Minyi Final Word No. 155, Guangsha Construction and Taijiang Company Construction Engineering Bidding Dispute, the Court of First Instance held that: Taijiang Company's public bidding on the Fukushima bt project did not violate the prohibitions of laws and regulations, and it was a lawful bidding. After going through the procedures of public bidding, tendering and notification of the winning bid, a contractual relationship was established between Taijiang and Guangsha based on the bidding documents. As no formal contract was signed between the two parties after the project was awarded, the rights and obligations between the two parties should be determined in accordance with the bidding documents and the provisions of the contract law. The court of second instance held that the judgment of first instance was correct in determining that the contractual relationship between Guangsha and Taijiang was established for the project in question based on the bidding notification. The rights and obligations of the parties in this case should be determined on the basis of the Bidding Documents of Taijiang, the Bidding Documents of Guangsha, the Notification of Award and relevant evidence. It can be seen that, after bidding and winning the tender, even if the bidding parties have not signed a formal construction contract, but based on the bidding documents, the notice of award, it can still be determined that the parties have established a contractual relationship, and can be determined in accordance with the contents of the bidding documents and the notice of award, the contractual rights and obligations of the parties.
Third, the effective bidding documents on both sides of the legally binding.
The bidding documents on the main terms of the contract, the two sides are legally binding.
After winning the bidding, the main terms of the construction contract signed by the two sides shall be consistent with the main terms of the contract set out in the bidding documents. Article 46 of the bidding law provides that "the bidder and the successful bidder shall, within thirty days from the date of issuance of the notice of award, in accordance with the bidding documents and the bidding documents of the successful bidder to enter into a written contract. The bidder and the successful bidder shall not enter into any other agreement that departs from the substance of the contract."
As in Case No.: (2013) Min Shen Zi No. 876, Xinxiang Company and Second Construction Group Construction Project Contract Dispute, the Court of Reexamination held that "the bidder and the successful bidder shall enter into a written contract in accordance with the bidding documents and the bidding documents of the successful bidder within thirty days from the date of the issuance of the notification of the successful bid. The bidder and the successful bidder shall not enter into any other agreement that deviates from the substantive content of the contract." The above provisions are mandatory provisions of the law. The so-called "deviation from the substantive content of the contract", refers to the price of the project, the duration of the project, as well as the quality of the project and other aspects of the content of the violation, rather than the general contract content changes or other terms of the modification. In this case, the construction contract signed between the new star company and the second construction company after the project bidding, the price of the project, the quality of the project is inconsistent with the content of the bidding documents, belong to the bidder and the successful bidder then entered into other agreements that deviate from the substantive content of the contract. The contract violates the mandatory provisions of article 46 of the bidding law, should be recognized as invalid contract.
Four, illegal bidding behavior and legal consequences.
According to the provisions of chapter 5 of the bidding law, the bidding process, listed in the bidding process, including bidders and bidders in the bidding before the negotiation of substantive content of the six kinds of illegal bidding situation, the six kinds of illegal bidding situation, all lead to the bid is invalid.
As in the case No.: (2015) Min Shen Zi No. 728, Hengrui Company and Huafeng Company construction project construction contract dispute, the court held that: Hengrui Company on December 20, 2010 and June 15, 2011, in two public bidding. However, as early as October 28, 2010, it and Huafeng signed a framework agreement for general construction contracting, and then signed the Construction Contract for Construction Works in the same month. Supervision log on the record of the start of construction is November 24, 2010 . It can be seen that the project in question clearly belonged to the illegal bidding of first fixing and then bidding. Therefore, the original judgment found that the series of contracts between the parties were invalid for violating the provisions of the Law of the People's Republic of China on Bidding and Tendering.
Fifth, should be tendered without bidding the effect of the construction contract signed.
According to "contract law" article 52 provides that "one of the following circumstances, the contract is invalid: (e) violation of laws and administrative regulations mandatory provisions." ; According to Article 3 of the Bidding Law, "The following projects within the territory of the People's Republic of China*** and the State, including the investigation, design, construction, supervision of the project, as well as the procurement of important equipment and materials related to the construction of the project, must be tendered: (a) large-scale infrastructure, public utilities, and other projects related to the social interests of the public, public safety; (b) the use of all or part of the state-owned funds to invest in the construction of the project; (c) the use of state-owned funds to invest in the construction of the project. ) Projects invested wholly or partly with state-owned funds or financed by the state; (iii) Projects using loans or assistance funds from international organizations or foreign governments." According to Article 1 of the Judicial Interpretation of Construction Projects, if a construction contract has one of the following circumstances, it shall be recognized as invalid according to the provisions of Item (5) of Article 52 of the Contract Law: (3) the construction project must be tendered but not tendered or the winning bid is invalid.
According to the above laws and judicial interpretations, violation of the "bidding law" and related laws and regulations, the construction works must be tendered without bidding, is a violation of the "contract law" mandatory validity of the contract signed by the construction contract for the invalid contract.
As the case number: (2015) civil a final word No. 118 Zheng Yan company and eight Wei company, the county government construction project contract dispute case: two levels of the court that: eight Wei company and Zheng Yan company signed the "contracting agreement" and supplemental agreement, the nature of the construction project contracting contract, because of the project involved in the construction of the government investment and the interests of the public * * * *, according to the provisions of the bidding law belongs to the construction project must be carried out The contract was a contract for the contracting of construction works. The contract is signed without bidding, in violation of the mandatory provisions of the bidding law should be recognized as invalid contract.