The Effectiveness Of A Contract Under The Way Of Tendering And Bidding

Contract is an important means for civil subjects to practice the autonomy of will.In modern society,no one can live without contract.Tendering and bidding,as a special way to conclude a contract,has been fully developed since its introduction due to its unique advantages,especially in the signing of construction contracts.When adopting the method of tendering and bidding to conclude a contract,the theory of offer and acceptance should be applied.There is no difference that the nature of the letter of acceptance is acceptance,but there is a dispute on the status of the contract after the letter of acceptance is effectiveness.Different understandings of the "written contract" in Article 46,paragraph 1 of the Law of the People's Republic of China on Tendering and Bidding give rise to the following four viewpoints.The theory that the contract has not yet been established holds that the "written contract" of Article 46,paragraph 1 belongs to statutory form and the contract document.According to Article 32 of the Contract Law of the People's Republic of China,the contract shall be formed when the tenderee and the winning bidder sign a written contract and seal on it.If the form are not met,but the tenderee and the winning bidder have fulfilled the main obligations of the contract,the contract may also be established in accordance with Article 36 of the Contract Law of the People's Republic of China.The author considers that the tendering and bidding contract shall not comply with the provisions of Article 32 and Article 36 of the Contract Law of thePeople's Republic of China.Firstly,the "written contract" in Article 46,paragraph 1of the Law of the People's Republic of China on Tendering and Bidding is a contract in nature,but it does not belong to the situation of concluding a contract in the form of a contract.Secondly,the "written contract" is the confirmation and improvement of the tendering and bidding contract which has already been established and become effective.The performance of the tenderee or the winning bidder cannot make up the deficiency of the "written contract" in Article 46,paragraph 1of the Law of the People's Republic of China on Tendering and Bidding.The theory that the contract is established but not effective holds that the "written contract" provided in Article 46,paragraph 1of the Law of the People's Republic of China on Tendering and Bidding shall be statutory form and regarded as an essential element for the contract to take effect.When the contract is formed after the letter of acceptance is issued,the contract can take effect only when the written contract is signed.In respect of the attribute of the legal form,Germany and Taiwan classify it as the effective element.The essence of a contract is "agreement",so the contract shall be established only when the parties reach agreement.In mainland China,it is generally believed that form is an important condition for the formation of a contract,and the author is in favor of this viewpoint.Firstly,consensus refers to the externalization of intention,which is the scope of the parties' expression of intention.It does not belong to the evaluation of the validity of consent by law.Secondly,form is an additional element of formation besides consent.Finally,in terms of the system of the Contract Law of the People's Republic of China,the form of contracts is placed in the chapter of contract formation.Above all,it is more reasonable to identify the form as the element of formation of a contract.So the said theory is insufficient to be adopted.The pre-contract theory believes that the "written contract" in Article 46,paragraph 1 of the Law of the People's Republic of China on Tendering and Bidding is the contract,and the pre-contract is valid when the letter of acceptance becomes effective.First of all,the establishment of a pre-contract shall requires the agreement of the parties to enter into this contract in the future.However,throughout the wholebidding process,the tenderee and the winning bidder participate in the bidding process for the concluding of this contract,without the intention of entering into the appointment,so it is considered that the appointment of the contract after the issuance of the letter of acceptance goes against the real meaning of the parties.In addition,in the process of concluding this contract in the future,the parties to the pre-contract may alter their agreement on the content of this contract.However,according to the relevant provisions of the Law of the People's Republic of China and the Regulations,"no further agreement deviating from the substantive content of the contract" can be concluded in the future.Therefore,the theory of pre-contract is difficult to conform with the provisions of the Law of the People's Republic of China and the Regulations Finally,the theory of pre-contract is not conducive to the protection of the parties' interests.So it is unreasonable to believe that the pre-contract is effective upon the letter of acceptance coming into effect.The theory that the contract has been established and effective believed that the "written contract" in Article 46,paragraph 1 of the Law of the People's Republic of China on Tendering and Bidding is a contract in nature and needs to satisfy the requirements of the contract.Its purpose is the confirmation of the content of the contract which has been legally valid and the supplement of the non-substantial content agreed by the parties.Whether the written contract is concluded or not does not affect the effective bidding contract.Although the Law of the People's Republic of China on Tendering and Bidding and its implementation regulations stipulate the legal liability for non-signing of written contracts,it is limited to the administrative liability.The author sorted out several main forms of refusing to sign written contracts in judicial practice and considers that they are all liabilities for breach of contract.The non-breaching party may claim liability for breach of contract in accordance with Articles 107,112 and 113 of the Contract Law of the People's Republic of China,as well as rescind the contract.The right of rescission shall be exercised in accordance with the provisions of the relevant law.Through the systematic analysis and demonstration of the four viewpoints,the pros and cons of each viewpoint are obtained.Finally,considering the legislativepurposes of relevant laws such as the Tender and Bidding Law and the Contract Law,the relationship of each regulation,the actual meaning of the parties concerned and the actual situation of the tendering and bidding procedure in China,it is the most desirable that the bidding contract has be established and effective upon the issuance of the letter of acceptance.The theory can be integrated with the current legal system of China and conform to the doctrinal structure which is suitable for China.