Study On The Legal Validity Of Notice Of Bid In The Field Of Construction Engineering

The contracting method of tendering and bidding is widely used in the field of construction engineering,which is regulated by both the contract law and the bidding and tendering law.The latter is more administrative,so to conclude a contract in this way should not only reflect the autonomy of will,but also meet many restrictions and requirements.In view of the potential logic contradictions between the internal provisions of the law,and the difficulty in determining the details of the contract concluded by means of tendering and bidding,coupled with the lack of explicit provisions on the effectiveness of various stages of the process,resulting in a variety of disputes,especially on the effectiveness of the letter of acceptance.Up to now,regarding this question,the legislation stipulation is absent,the judicial practice judgment is different,the theory viewpoint debates endlessly,the academic circle and the practical circle all have no conclusion.First of all,this article from the judicial practice of the 125 cases of dispute involving the bid-winning notice for separately sponsored by the analysis of the distribution,ruling ideas,appeal rate and summarize its discretion process,in order to clarify the judicial referee three kinds of typical point of view,including: "no contract","contract takes effect","said appointment contract comes into effect.Secondly,this paper aims at the "contract has not been established" and "the formation of the contract into effect" to verify."The theory that the contract is not established" takes the written contract provisions of the law on bidding and tendering as the essential conditions for the establishment of a construction project contract,and claims that although the notice of award of the contract has the essence of the contract,it still cannot be deemed that the contract is established.This viewpoint neglects the particularity of the tendering and bidding procedure in the choice of theory,that is,it is a complete chain connected by the stages of bidding,bidding,winning the bid and signing the written contract.Written form rules can only explain the problems in the signing stage of the contract,but cannot prove the validity of the bid-winning notice,which results in the conclusion against the legal provisions.The "contract formation into force theory" adopts the offer acceptance theory,and determines that the acceptance of the construction project contract has been constituted based on the substantial content of the bid-winning notice,while the written contract is only a procedural arrangement rather than a mandatory standard.This point of view does not break through the traditional theory,can not completely fit with the special bidding process;And its interpretation of the written contract conflicts with the logic of the legal system.To sum up,neither of the two theories can be justified.Finally,this paper supports the use of the open contract theory to explain the effectiveness of the letter of acceptance,that is,when it is issued and arrives at the winning bidder,the open contract is established,which is proved from the two perspectives of the letter of acceptance meeting the constitution requirements of the open contract and the applicable value of the open contract.From the point of view of the purpose of the letter of acceptance,it has the meaning of future contract,in line with the purpose of appointment;According to the content of the letter of acceptance,the content should be clear and definite.From the perspective of the relationship of an appointment with this about,should be clear to make an appointment with this there is no conversion between say,after the bid-winning notice to the winning bidder,yet to conclude a written contract happens when actual performance,should be applied to "contract law" article 36 on main duty leads to the provisions of the contract,this kind of situation,to make an appointment contract already exist,this about contract established by applicable to cure rules,cannot think is transformed into an appointment book about.In terms of applicable value,and make an appointment to this about two phases and the bid-winning notice for the node is divided into two stages of the bidding program to perfect fit,and the written contract to narrowed the explanation and give the dual meaning,form and content is more consistent with the law,in addition,through the appointment contract liability for breach of regulations,to balance the interests of the tenderee and the bidder.In conclusion,the determination of the validity of the letter of acceptance as the establishment and effectiveness of the open contract not only considers the particularity of the bidding procedure,but also conforms to the theoretical interpretation and legal logic system.