The Contract Law of People's Republic of China (PRC) (hereinafter referred to as the Contract Law), which came into effect on June+10/October 1 99, not only clarified the rights and obligations of the parties in the process of contract performance, but also established the negligence liability of the parties in the process of contracting. It is of great significance to understand the relevant legal provisions and manifestations of contracting fault in construction project bidding for preventing contracting fault in bidding process and protecting the legitimate rights and interests of the parties involved in bidding activities.
1 the concept of liability for fault in contracting and the legal provisions of liability for fault in contracting in China
The so-called liability for negligence in concluding a contract refers to the civil liability that one party should bear because it violates the obligation of the principle of good faith and causes the loss of the trust interests of the other party.
The theory of contracting fault was founded by the German jurist Yelling. In the article "Negligence in Contract Making" published by 186 1, he made a systematic study on the compensation of contracting negligence and reliance interest. He pointed out: "The law protects not only the existing contractual relationship, but also the ongoing contractual relationship. Otherwise, the contract transaction will be exposed and unprotected, and one party to the contract will inevitably become the victim of the other party's negligence or inattention. " That is to say, if the liability for fault in contracting is not stipulated, the behavior of the parties after entering the contracting stage will lack the adjustment of legal norms, and the trust interests of the parties who believe that the other party has the sincerity to conclude a contract will not be protected, thus forming a vacuum of rights protection in the contracting stage. Therefore, it is very necessary to establish the liability system for fault in contracting. Germany first adopted Huning's thought and established the liability system for fault in contracting. Since then, more and more countries have realized the importance of liability for fault in contracting and established the liability for fault in contracting.
In the past, China's legislation on liability for fault in contracting was stipulated in Article 6 1 of General Principles of Civil Law and Article 61of Economic Contract Law, but they only contained a part of liability for fault in contracting, and did not stipulate general liability clauses, which was not comprehensive enough. "Contract Law" fills this gap, clarifies the definition of liability for fault in contracting, and makes the provisions on liability for fault in contracting in our legislation more complete.
Article 42 of the Contract Law stipulates: "In the process of concluding a contract, if one of the following circumstances causes losses to the other party, it shall be liable for damages: (1) maliciously negotiating under the guise of concluding a contract; (2) Deliberately concealing important facts related to the conclusion of a contract or providing false information; (3) Other acts that violate the principle of good faith. " At the same time, Article 43 of the Contract Law also stipulates that if the parties disclose or improperly use the business secrets they know in the process of concluding a contract, they shall be liable for damages. This makes it clear that although the contract may not be established, declared invalid or revoked in the end, in the process of concluding the contract, as long as one party violates the principle of good faith and causes losses to the other party, it should bear the responsibility for contracting negligence. The provisions of the contract law on the liability system for fault in contracting are of great significance for maintaining the fairness and safety of transactions.
2. The manifestations of contracting fault liability in construction project bidding
Since the implementation of market economy, bidding for construction projects has become the main form of project contracting. According to the statistics of China Statistical Yearbook, in 1997, the number of unit projects contracted by state-owned construction enterprises nationwide through bidding was 87,997, with a construction area of 28 16 billion square meters, accounting for 396% of the number of projects under construction and 700% of the construction area respectively. With the implementation of "Bidding Law" of 5438+ 10/in June 2000 and the requirements of China's entry into WTO, bidding will further become the most important form of engineering construction contracting. However, in the process of bidding, the phenomenon of violating the principle of good faith is still widespread. Therefore, it is an urgent problem to understand the manifestations of contracting fault liability in the process of bidding for construction projects, ensure the normal bidding activities, and clarify the rights and obligations of both parties in the contracting stage. We believe that in the process of bidding for construction projects, the parties' liability for contracting fault mainly has the following manifestations:
2. 1 Main performance of the tenderer's fault liability in contracting.
2. 1. 1 The tenderer fails to perform the notification obligation after changing or modifying the tender documents.
Article 23 of "Bidding Law of People's Republic of China (PRC)" (hereinafter referred to as "Bidding Law") stipulates: "If a tenderer makes necessary clarifications or amendments to the issued bidding documents, it shall notify all recipients of the bidding documents in writing at least fifteen days before the deadline for submitting the bidding documents." If the tenderer fails to fully fulfill the obligation of informing and changes or modifies the bidding documents without authorization, it shall bear the liability for contracting fault. Bidding documents are invitations to offer and have no effect in contract law, but this does not mean that bidding documents cannot be adjusted by legal norms. From the point of view of maintaining the fairness and security of the transaction, if an invitation to offer that violates the principle of good faith has adverse legal consequences, the inviter of the offer shall bear corresponding civil liabilities. For the bidding documents, the content and form are enough to make the bidders have a certain trust, and the bidders pay a certain amount of manpower, material resources and financial resources for bidding. If the bidder suffers from the loss of reliance interests due to the fault or even malicious behavior of the tenderer, the tenderer shall bear the liability for contracting fault.
2. 1.2 The tenderer and the bidder collude maliciously.
Article 32 of the Law on Tendering and Bidding clearly stipulates: "Bidders shall not collude with the tenderee to bid, which will harm the national interests, social public interests or the legitimate rights and interests of others." Article 53 further stipulates that if a bidder colludes with the tenderer to win the bid, the bid is invalid and the bidder shall bear corresponding responsibilities. The tenderer and the bidder collude maliciously, which not only harms the interests of the state and society, but also causes losses to other bidders, and shall bear the responsibility for contracting negligence. Malicious collusion between tenderers and bidders is an unfair competition. This behavior is mainly manifested as follows: before the bid opening, the tenderer opens the bidder's bidding documents privately and leaks them to a specific bidder; The tenderer shall treat different bidders differently when evaluating and selecting tenders; The tenderer and the bidder collude with each other, and the bidder lowers the price in the open tender, and then gives the bidder additional compensation after winning the bid; The tenderer divulges his pre-tender estimate to a specific bidder, and so on.
2. 1.3 The tenderer divulges or improperly uses the technical achievements and business information of the non-winning bidder.
Under the condition of market economy, due to the relative independence of economic interests, the technical achievements and commercial information involved in the tender may be the core secrets of bidders. These technical achievements and business information are related to the survival and development of bidders in the market competition. If a bidder provides technical achievements and commercial information to the tenderer due to the needs of competition or the requirements of the tenderer, and declares that the technical achievements and commercial information belong to trade secrets, and the tenderer leaks or improperly uses the technical achievements and commercial information, thus causing losses to the bidder, it shall bear the liability for contracting fault.
2. 1.4 The tenderer violates the attached obligations.
According to the requirements of the principle of good faith, in the process of concluding a contract, the parties have the obligation to inform, inform, protect, care, cooperate and pay attention. Those who violate these obligations and cause losses to the other party shall bear the liability for contracting fault. In the process of bidding for construction projects, the behaviors that the tenderee violates the attached obligations include: the tenderee conceals the real situation of the project (such as construction conditions, technical conditions, investment, material guarantee, etc.). ); The tenderee found errors in the tender (these errors are inevitable due to the negligence of the bidder or other reasons), and the tenderee maliciously used the errors in the tender to award the contract without giving proper confirmation.
2. 1.5 The tenderee rejects all bids that violate the principles of fairness, justice and good faith.
In the construction project bidding, most bidding documents have similar provisions. "At any time before signing the contract, the tenderer accepts or rejects any bid, declares the bidding procedure invalid, or rejects all bids, and does not assume any responsibility for the impact on the bidders, nor does it need to inform the affected bidders of the reasons for doing so." At the same time, Article 42 of the Law on Tendering and Bidding also stipulates: "If the bid evaluation committee considers that all bids do not meet the requirements of the bidding documents after review, it may reject all bids." But this does not mean that the bidder's right to reject all bids is unlimited, and he should exercise this right under the principle of safeguarding public interests and protecting equal competition. Otherwise, the tenderer's unlimited exercise of the power of "rejecting all bids" will lead to the waste of manpower, material resources and financial resources of bidders, which is extremely unfair to bidders; Moreover, the unrestricted exercise of the right to "reject all bids" may lead to the behavior of the contractor in breach of contract. Therefore, if the tenderer violates the principles of fairness, justice and good faith when exercising this power, and causes losses to the bidder, he shall bear the responsibility for contracting negligence.
2. 1.6 The tenderer adopts unfair and reasonable bidding methods for bidding.
If the tenderer conducts the tender in an unfair and unreasonable way, causing losses to the bidder, it shall bear the responsibility for contracting fault. This bidding method includes: the tenderer restricts or excludes potential bidders with unreasonable conditions; Discrimination against potential bidders; Requiring bidders to form a consortium to bid or restricting competition among bidders.
In addition, if the tender is terminated or failed due to the tenderer's reasons, causing losses to the bidder, the tenderer shall bear the liability for contracting fault. However, unless the tender is terminated or the tender fails due to force majeure.
2.2 The main performance of the bidder's fault liability in concluding a contract
2.2. 1 The winning bidder refuses to sign the contract for an excuse.
Article 60 of the Bidding Law stipulates: "If the winning bidder fails to perform the contract concluded with the tenderer, the performance bond will not be returned, and if the losses caused to the tenderer exceed the amount of the performance bond, the excess shall be compensated; If the performance bond is not submitted, it shall be liable for the losses of the tenderer. " In other words, if the bidder fails to sign a project contract with the tenderer after winning the bid, it will cause losses to the tenderer. At this time, although the project contract has not yet been established, he must bear the responsibility of contracting fault and compensate the other party for the corresponding economic losses. However, from the perspective of maintaining social fairness, the winning bidder can be exempted from this restriction because of the mistakes in the tender, and the court found that the mistakes belonged to the category of "major misunderstanding". Generally, a tender error that constitutes a "major misunderstanding" should meet the following conditions: 1). The error is significant, and if it is awarded to the bidder according to this error, it will be obviously obviously unfair; 2) The error is caused by the unintentional and insignificant fault of the bidder. Although the bidder is cautious enough, it is difficult to completely avoid it. 3) The bidder shall notify the tenderer of the error in time before the award; 4) Except that the bidder can't win the bid, this error has not caused other losses to the tenderer. However, due to the bidder's misjudgment of the technical conditions, materials, equipment prices and other factors of the construction project, it is generally not a "major misunderstanding", and the bidder should bear the responsibility for contracting negligence.
2.2.2 Bidders collude in bidding.
Article 32 of the Law on Tendering and Bidding stipulates: "Bidders shall not collude with each other to make quotations, and shall not crowd out fair competition from other bidders, thus harming the legitimate rights and interests of the tenderee or other bidders." Article 53 also clearly stipulates that bidders who collude in bidding and cause losses to others shall be liable for compensation according to law. It is unfair competition for bidders to collude in bidding. This kind of behavior has the following two forms: driving up the bid price, causing the tenderer to be unable to make a bid or forcing the tenderer to bid at a high price, and suffering inappropriate losses; Lowering the bidding price makes all bidding prices far from the pre-tender price, which leads to the failure of bidding.
2.2.3 The bidder cheats the bid by false means.
Article 54 of the Tendering and Bidding Law stipulates: "If a bidder cheats to win the bid in the name of others or by other means, the bid will be invalid, and if losses are caused to the tenderer, it shall be liable for compensation according to law; If it constitutes a crime, criminal responsibility shall be investigated according to law. " That is, if the bidder wins the bid by fraud and causes losses to the tenderer, it shall bear the responsibility for contracting fault. In bidding activities, the false means of bidders include: not filling in the bidding application form truthfully and concealing their actual situation (such as corporate reputation, operation and management level, etc.). ) can have a significant impact on the bidder's award; Falsely reporting the qualification grade of an enterprise, or falsely claiming the qualification grade of other enterprises; Bidding in the name of others and so on.
To sum up, in the process of bidding for construction projects, the fault of one or both of the tenderee and the bidder may lead to the invalidation or failure of the bidding, which will cause the bidder or the tenderee to suffer huge losses in economy and also have a negative impact on the bidding activities. Therefore, both sides fully understand the responsibility of contracting fault in the process of bidding for construction projects, and strengthen the identification and prevention of contracting fault behavior, which will be conducive to maintaining the open, fair and just implementation of bidding activities, protecting national interests, social interests and the legitimate rights and interests of the parties involved in bidding activities, improving economic benefits and ensuring the quality of construction projects.
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