Research On The Legal Validity Of Bid-winning Notification

Article 45 of he Tendering and Bidding Law of the People’s Republic of China stipulates that the bid-winning notification has legal validity,but it does not specifically stipulate the content of the legal validity such as the effective time of the bid-winning notification and the scope of validity of the bid-winning notification.Many disputes have arisen in the practice of tendering and bidding.The theoretical circles about the problems caused by the imperfections of the provisions for the effectiveness of the notification of bids in the judicial practice are also quite different.This article will start with from the perspective of the current judicial adjudication,combined with the existing theoretical research,and analyze the main issues involved in the legal effect of the bid notification notice.In addition to the introduction and conclusion,this article is divided into four parts:The first part introduces the existing provisions of the legal validity of bid-winning notification in China and systematically reviews the status of the referees.On the one hand,the provisions of the Chinese law on the legal validity of the notification of winning bids are mainly concentrated in Article 45 of the Tendering and Bidding Law,and have not yet addressed the specific issues of legal validity.Therefore,there is ample room for interpretation and worthy of in-depth study;The following are some of the differences of the legal validity of bid-winning notification in the judicial through the search:First,some courts have different opinions on the effective time of the bid winning notice;Second,after tenderer issues the bid winning notice,there is also an inconsistent view on the legal status of the bidding contract.Thirdly,one party fails to perform the provisions of the bid-winning notice,and does not sign a written contract with the other party.What kind of legal liability does the party have?By analyzing,inducting and summarizing the batch cases,the following directions for the above three issues are pointed out.The second part analyzes the effective time of the notification of successful bids.Clearly clarifying the legal nature of the notification is the premise of studying the effective date of the bid-winning notification.In the theoretical circle,the legal nature of the notice of winning the bid has two kinds:the promise statement and the confirmation notice.Among them,the promise statement has been widely recognized.On the basis of acknowledging that the bid-winning notice is a commitment,there is also a difference between mail-box rule and arrival rule regarding the effective date of the bid-winning notice.Through the understanding of the provisions of the Tendering and Bidding Law and the practice of the bidding system,the author believes that the effective time of the notification of winning bids should adopt the mail-box rule,that is,the notification of successful bids once issued will be effective,regardless of whether or not the notice has been reached.The third part definite reasonably the scope of the legal validity of the bid-winning notice.After the issuance of the successful tender notification,the legal status of the tender contract has always been controversial,which is also the core issue of the scope of validity.Academically,for the dispute,there are mainly the following doctrines:The bidding contract is not yet established,the bidding contract is established but not yet effective,and the bidding contract is established and effective.After analyzing and demonstrating the above-mentioned theoretical viewpoints,the author believes that all three doctrines have non-periodic features,and cannot accurately grasp the actual legal status of the bidding contract after the issuance of the winning bid notice.Therefore,after analyzing the Written Contract in Article 46 of the Tendering and Bidding Law,the author believes that after the bid-winning notification has been issued,although the bidding contract has not yet been established,a pre-contract for the purpose of concluding the bidding contract is established.The tender and he winning bidder have the obligation to conclude this contract.The fourth part discusses the performance validity of the bid-winning notice.After the confirmation of the establishment of the pre-contract after the issuance of the third part of the bid-winning notice,if the tenderer changes the result of bidding or the winning bidder abandons the winning project,the party shall bear the liability for the breach of the pre-contract.Neither the liability for breach of contract in the bidding contract nor the liability for fault in contracting;at the same time,in light of the theory of legal effectiveness of the pre-contract,the pre-contractual obligation between the tenderer and the successful bidder shall adopt the theory of dutiful concluding a treaty,that is,both parties shall eventually conclude the contract.The bidding contract,and when one party fails to perform the pre-contractual obligation,the other party may request the mandatory conclusion of the bidding contract.