On The Twin-Contracts In Construction Project Inviting And Bidding

Construction Project Inviting and Bidding is at present one of the most widelyused methods of competitive selection in the field of architecture in China as well as a statutory form required for some engineering projects that meet the requirements,which provides a technical support for the development of China's market economy.However,certain problems such as inadequate institutional norms and repeated illegal activities are still existed,especially the situation to prevail of the‘twin-contracts'.Interpretation of the Applicable Legal Issues Concerning the Trial of Contract Disputes in Construction Projects of the People's Republic of China,issued by The Supreme People's Court in 2004,the Article 21 of which has clearly defined the‘twin-contracts' and the rules for dealing with it,intended to regulate the issue of the‘twin-contracts'.Whereas,the introduction of the above Interpretation has not played a positive role,the Article 21 has also aroused a great deal of controversy in theory and practice.Many discussions and researches on the ‘twin-contracts' have been made,but so far no unified understanding has been reached.In this paper,Construction Project Inviting and Bidding and the issues of ‘twin-contracts' have been discussed and studied in depth,some comments on the Article 21 of the above mentioned Interpretation have also been made,which will benefit the unification of the reality regulation and the understanding of the ‘twin-contracts'.This paper has been constructed in five parts,with a framework as follows:The first part is mainly outlined on the related issues of the construction project inviting and bidding.Firstly,the concept of inviting and bidding for construction project has been analyzed,summed up the construction project inviting and bidding system in the domestic development;then,a sum-up has been made for the identification of the projects which the inviting and bidding must be made,an analysis for the statutory inviting and bidding form has also been given.The second part is mainly outlined on the related issues of the ‘twin-contracts'.In this part,on the basis of the introduction of definition and origin of the‘twin-contracts',it has focused on the analysis of how to identify it and put forward criterions including whether it is in forms of bidding in conformity with the requirements,whether there are two and more than two contracts,whether the substantive content of the contract varies and whether it is strictly different from alteration of contract according to law.The third part is an analysis for the reasons for causes of the ‘twin-contracts'.On the premise of deep analysis of inviting and bidding system,this paper has creatively put forward the main reasons for the formation of the ‘twin-contracts' as follows,including the scope of the projects which must be invited and bid is too broad,statutory authorization and its validity,the pursuit of illegal interests by the subject,the absence of administrative supervision.Analysis have been carried out in details from various aspects.The fourth part is the comment focused on the Article 21 of the Interpretation with both theoretical researches and judicial case analysis.Firstly,it has analyzedand expounded the reasons and purposes of the Article 21,and has analyzed the applicable conditions of this provision.Then,it has made comments with case study on the issue of the ‘twin contracts',giving analysis and elaboration,including its effectiveness issues,the dispute between partially-invalid and all-invalid,desirability of avoiding the effect of the Article 21.At last,this part has put forward the problems of this Article,such as its insufficient theoretical support,its lack of practical necessity,its contrary to the value orientation of good faith and purpose set and so on.The fifth part mainly expounds the opinions of the rule of law put forward by the author after analysis and research,including opinions for adjustment of the scope of inviting and bidding projects and for amendment to the Article 21,making a unified administrative supervision,establishing a linkage mechanism,in order to make the ‘twin-contracts' be effectively regulated.