Research On The Validity Of "Black And White Contracts" Of Construction Projects And Their Consequences

The problem of "black and white contract" has existed in the construction contract for a long time and is the focus of controversy in the practical and academic circles.The article discusses the problems related to "black and white contract" of construction project as the research object.Although China has introduced "Bidding and Tendering Law" and three judicial interpretations on construction contract disputes,which have reduced the appearance of "black and white contracts" to a certain extent and regulated the competition order of construction market.However,the relevant judicial interpretations only regulate the basis for settlement of construction price,which cannot fundamentally solve the problem of "black and white contracts".The definition of "black and white contract" is mainly concerned with how to judge the substantive content of the contract has changed,where the content may have a decisive impact on the outcome of the winning bid belong to the substantive content.The main reason for the emergence of "black and white contracts" is the imbalance between supply and demand in the market,the unequal status of construction units and construction units;the imperfection of China’s bidding system and the existence of illegal bidding behavior.The construction contract is a special contract of contracting,which is naturally bound by the provisions of the Civil Code on the validity of the contract.The rule of "conspiracy to misrepresent" in the Civil Code can be applied to the determination of "black and white contract" in construction.There are different judgments of the same case when the court is hearing the construction contract case.The main reasons are: the judicial interpretation does not clearly stipulate the effectiveness of "black contract";the quantitative standard for judging the change of material content has not been unified;some of the adjudication rules tend to protect the interests of construction units;it is not clear that Article 46 of the Bidding and Tendering Law is a valid or regulatory mandatory provision.The validity of "black and white contract" of construction project should be discussed in different situations,The "black-and-white contract" can be divided into "pre-bid","time-bid" and "post-bid" according to the time of contract signing.The pre-bid "black and white contract" belongs to the explicit bid and secret bid,prior collusion,violating the validity of the mandatory provisions of laws and regulations,"black and white contract" are considered invalid;bid-time type "black and white contract ",when a separate supplementary agreement is signed to change the substantive content of the winning contract,the "black contract" is considered invalid,the "white contract" to perform the bidding process is valid;after the bid type The "black and white contract",when the supplementary agreement changes the substantive content of the winning contract,but the fulfillment of the legal change procedures,is considered valid,and the opposite is considered invalid.Non-mandatory bidding projects voluntarily perform bidding procedures to conclude a contract,subject to the "Bidding and Tendering Law",in violation of its mandatory provisions of validity,was found to be invalid contract.In the two cases where the amount of "white contract" is higher or lower than the amount of"black contract",the "black contract" is considered invalid,and the "white contract" is used as the settlement of the project amount.The "white contract" will be used as the basis for settlement.When "black and white contract" is invalid,the price of the project shall be determined according to the following settlement rules: the project is completed and accepted with qualified quality;when "black contract" is invalid,the winning contract shall prevail;when "black and white contract When "black and white contracts" are invalid,the actual performance of the contract shall prevail.When the construction contract is invalid,the liability loss determination should be based on the degree of loss to establish compensation standards and scope,in accordance with the construction cost of discount compensation.The construction project involves multiple interests and other reasons,which determines that the construction contract is more complex and special than the general contract.For the emergence of new situations and new problems,the judicial interpretation needs to be updated in time to make up for the lag of the law.Combined with the Civil Code and other relevant provisions to fill the legal gap in the issue of "black and white contracts" in China.Clarify the identification method of collusion,implement pre-qualification and continuously improve the bidding system,which can reduce or avoid the phenomenon of "black and white contracts" in construction projects.