Legal Effect Research Of Bid-winning Notice

In China's tending and bidding system, what legal relationship are the tenderee and the bid winner in after the issue of the bid-winning notice? Does the bid-winning notice have constraining force over the tenderee and the bid winner? What legal responsibility does the party that withdraws the tender or bidding shall undertake after the issue of the bid-winning notice? All these issues have not been solved.China's tending and bidding activities have uneven understanding about the legal nature and effect of the bid-winning notice, especially the nature of the bid-winning notice in judicial practice. Cases where the tenderee or the bidder withdraws their tender or bidding after the issues of the bid-winning notice are widespread. Due to different understanding about the legal nature and effect of the bid-winning notice,courts have different decisions concerning whether the tending and bidding contract is effective and whether the party withdrawing the tender or bidding shall undertake the contracting fault liability before the establishment of the contract or the responsibility for breach of contract. Considering the great disparity between the contracting fault liability and the responsibility for breach of contract in legal assistance and interests, this paper maintains that it is necessary to analyze the legal nature of the bid-winning notice, and based on the uniqueness of the tending and bidding contract, determine the effect of the bid-winning notice. In theory, the commitment view and the pre-contract view determine the legal nature and effect of the bid-winning notice and have widespread impact. The former is put forward based on the application of the theoretical system of the contract law in the tending and bidding system and maintains that the bid-winning notice shall be considered as a commitment in the tending and bidding contract and the effect of the bid-winning notice leads to the establishment of the tending and bidding contract. But, this paper finds that the view is in conflict with provisions of China's Contract Law. Article 46 of the Tending and Bidding Law provides the signing form of the tending and bidding contract, i.e. contract in written form. In addition, the Contract Law provides that a contract that is established in the form of a contract note takes effect when partiessign or seal it, which is in conflict with the commitment view. The going into effect principle of the bid-winning notice is different from that of commitment as provided by the Contract Law. The conflicts between the commitment view and the civil law theory and relevant laws and regulations cannot be fixed or removed through the theory. And the bidding announcement view based on the commitment view lacks practical meaning for its false theoretical construction. Therefore, scholars introduce the concept of pre-contract to deal with the legal effect issue concerning the bid-winning notice, thus determining the legal responsibility of the party withdrawing the tender or bid after the issue of the bid-winning notice. The pre-contract view divides the tending and bidding activities into two stages and maintains that the first stage is the establishment process of the pre-contract while the issue of the acceptance letter merely means the establishment of the pre-contract, rather than that of the tending and bidding contract. However, the pre-contract lacks clear laws and regulations in China and thus is incomplete, especially its responsibility type and assistance way. This paper reconstructs the pre-contract view and maintains that the legal effect of the bid-winning notice represents the commitment of the pre-contract and the party that withdraws the tender or bidding shall undertake the responsibility for breach of contract, rather than the contracting fault liability. The responsibility for breach of pre-contract offers compliance of contract many assistance ways and can better protect the legitimate interests of the party concerned, which helps realize the goal of tending and bidding activities.