Theoretical Research On The Bidding Based On The Theories Of The Contractual Manangement

This dissertation, based on the theories of the contractual conclusion and the contractual relativity, and by employing the economic theories, has achieved, in combination with lots of practical and theoretical problems existing in the field of the bid invitation and offer, and also integrating the theoretical study with the qualitative analysis, the following objectives:1. Doing researches on the fundamental problems in the field of bid-invitation-and-offer. First, a clear conception on bid-invitation-and-offer is provided. Then, this dissertation points out, based on the elaboration of this conception, that there are differences between the bid-invitation and auction, and in the meanwhile, gives the reasons why the bid-invitation and auction are often confused by us. Just because we have misunderstanding on the conception of bid-invitation-and-offer, it is natural for us to find several laws in China are misapplied. To solve this situation, some legislative suggestions have been put forward. Second, this dissertation put highlights on the relationship between the bid-invitation-and-offer mechanism and the governmental procurement system. An idea is clearly coming out that The Law of PRC on Bid Invitation and Bid Offer should be incorporated intoThe Law of PRC on Governmental Procurement, or the former should function at the sub-level to the latter.2. Doing researches, based on the contractual conclusion theory, on the certain problems in the field of bid-invitation; doing researches on those contracts which are made by open bids. The different stages of the bid-invitation-and-offer process should be characterized as follows: the bid-invitation is an invitation to offer, the bid-offer is an effective offer and the issuance of the bid-winning notification is an effective promise. The bid-winning notification leads to the contract establishment. Starting from this base, another two problems have also been studied: (a) how to characterize the legal responsibilities of different stages of the whole process of bid-invitation-and-offer and who should be held for responsible once legal problems arise. (b) whether the bid-inviter should enjoy the right to denounce the bid. Therefore, a study on the nature of the tender bond is subsequently carried out. And we find the tender bond should be relegated to jus ad rem, say, a kind of the hypothecation guarantee.3. Doing researches, based on the contractual relativity theory, on the certain problems in the field of the bid-invitation. Put into the consideration the fact that the bid-winner should pay the service fee to the public bidding agent, we find this practice is going against the contractual relativity theory and there is lack of any sound basis, upon which the contractual relativity theory can be broken up. Doing researches on the priority enjoyed by the bid-winner to give up the project fund. We conclude that the bid-winner cannot, without any qualifications or conditions, give up the project fund priority. Doing researches on the right to rescind the contract made by open bid, we realize it improper to subject the contract made by open bid only to PRC Contractual Law. The administrative organs should perform the right to rescind those contracts made by open bids.4. An analysis, form the multi-angles, is made on differences between the auction and bid-offer. By employing the Friedman model and Hassman-Rivett model, and by taking example the number of participants into bid-offer and auction respectively, we have qualitatively studied the distinction between auction and bid-invitation. After the theoretical analysis has been made, we can find the descriptive models applied to the auction and bid-offer are utterly different. By thorough study on the theoretical characteristics of the bid-offer decision economic model as the bid-invitation basis, we find it easy for us to misplace some models when using them. Doing researches on applying the Game Theory into the bid-invitation, especially on the Static Basil Game Model in the bilateral non-open bidding, we find the most optimum strategy for those offering bid in this model. The study on the optimum strategy for bid-providers is beneficial to the work-out of the best bid-invitation plan.