The Empirical Research On Substantive Deviation In Bidding And Tendering Practice

Although there are many researches and discussions on the issue of "black and white contract" in the bidding and bidding process,there are still few studies on how to determine the effectiveness of the bidding contract and the bidding documents in the bidding process.According to Article 46 of the Tendering and Bidding Law and the limited content stipulated in Article 57 of the Implementation Regulations of the Tendering and Bidding Law,the problem of legal application differences caused by substantive deviations in judicial practice cannot be completely solved.There is no final conclusion on the specific identification of the substantive deviation,the deviation from the legal consequences and the existence of exceptions.The research on this has considerable theoretical and practical significance.Based on this,this paper uses empirical research methods to retrieve a large number of relevant judgment documents,and finds many practical problems.In addition to the introduction,the paper is divided into five parts.The first part analyzes the reasons on the basis of investigating and studying the actual deviation from the applicable conditions of the legal provisions.First of all,through the search of a large number of relevant referee documents in the Chinese refereeing paper network for nearly five years,the specific application of Article 46 of the Tendering and Bidding Law in judicial practice is reviewed.At the same time,according to the main research directions of this paper,12 representative judgments were selected to make the research materials of this paper,and the content of the judgment was summarized and refined.The main differences between the substantive deviations in the bidding method and the applicable results were compared and analyzed.After a comprehensive analysis in theory and practice,find out the reasons why the applicable differences appear at the level of law making and law.In the second part,the basis for judging whether the substantive deviation is effective is to confirm whether Article 46 of the Tendering and Bidding Law is a effective mandatory norm.This section will analyze the concept of the effective mandatory norm and the method of identification,and specifically analyze the mandatory provisions of Article 46 of the Tendering and Bidding Law.The third part,combined with the specific differences in the application of the substantive divergence problem found in the first part of the investigation and study,from the perspective of violating the validity of Article 46 of the Tendering and Bidding Law,specifically analyzes two aspects,one is a violation of there are two practical differences in the invalidity of Article 46 of the Tendering and Bidding Law,namely,the substantial deviation of the contract that put on record/bid contract,the substantial deviation from the bidding of the non-essential bidding project;on the other hand,the violation of Article 46 of the Tendering and Bidding Law Invalid exceptions,that is,substantial deviations from changes in circumstances.The fourth part specifically analyzes the content of the provisions of Article 46 of the existing Tendering and Bidding Law and Article 57 of the Regulations for the Implementation of the Tendering and Bidding Law,and combines the relevant provisions of Article 30 of the Contract Law to specifically analyze the bidders and When the winning bidder signs a written contract after winning the bid,the specific content of the clause changes constitutes a substantial deviation.In the fifth part,based on the analysis of the previous four parts,we return to practice and try to propose solutions and suggestions on the legal formulation level and the legal application level in order to play a certain role in the substantive divergence from the legal application.