1. Who will pay the performance bond?
Laws and regulations do not clearly stipulate to whom the performance bond should be delivered. On the surface, the performance bond is closely related to the performance of the contract, and it seems that it should be collected by the purchaser, but this is one-sided. Government procurement has the function of public policy and should be comprehensive and specific, including the management of performance bond. Centralized procurement institutions should not let the performance bond become a weapon for the purchaser to dispose of the winning bidder at will.
In fact, there are cases where the purchaser improperly uses the performance bond. For example, taking the performance bond as a threat condition, forcing the winning bidder to increase or change some contract contents, and using the performance bond to offset the contract advance payment. After the execution of the contract, the performance bond is delayed or occupied. From this point of view, the performance bond should be collected by centralized procurement institutions, so as to maintain the consistency and consistency of operation. As an intermediary, centralized procurement institutions can correctly handle the performance issues from a fair standpoint, and at the same time facilitate effective control of buyers and suppliers and safeguard the legitimate rights and interests of both parties.
2. What are the characteristics of performance bond?
1, the tenderer must clearly stipulate in the tender documents that this clause is only valid if the winning bidder submits the performance bond. If it is not clearly stipulated in the tender, it shall not be added after winning the bid. In this way, the authenticity of the invitation and the rights and interests of bidders are maintained, and the project tenderer can choose whether to bid for the project according to his own conditions. Therefore, the performance bond is selective.
2, the performance bond is different from the deposit, the purpose of the performance bond is to ensure that the contractor fully perform the contract, mainly to ensure that the construction period and quality conform to the contract. When the contractor successfully performs its obligations, the tenderer must return it to the contractor in full. The function of the performance bond is to compensate the losses of the tenderee when the contractor breaches the contract, that is, if the contractor breaches the contract, he will lose the right to recover the performance bond, but it is not limited to this.
The content that is agreed to be returned twice or has the unique attribute of deposit is the deposit if it meets the requirements of deposit law; If the word "deposit" does not appear, and there is no clear agreement on the application of liquidated damages in the nature of deposit, then the performance bond already paid is not a deposit, but other monetary pledges. If the performance bond is agreed but not paid, the agreement on the performance bond is established but does not take legal effect (because the pledge contract is also a practical contract, and the effective condition must be delivery).
3. The performance bond emphasizes ensuring the interests of the tenderer or investors. This letter of guarantee can be jointly undertaken by the winning contractor and a third party, but it is valid only if it is approved by the tenderer, and the third party bears joint liability, so it is replaceable. When the winning bidder breaches the contract, the compensation liability of the winning bidder shall be borne by the third party. In order to balance the interests of the tenderee and the winning bidder, Article 62 of the Measures for Bidding and Bidding of Construction Projects, which was formally implemented by seven ministries and commissions on March 1 1 2003, stipulates: "If the tenderee requires the winning bidder to submit a performance bond or other forms of performance guarantee, the tenderee shall also provide the winning bidder with a guarantee for payment of project funds."
4. The proportion of performance bond is specified, which is 5%~ 10% of the project cost. The specific implementation ratio shall be determined by the tenderer according to the project cost. Generally, the higher the project cost, the lower the proportion, so it is relatively fixed. The tenderer can't make wild speculations, but must act according to law.
5, the performance bond must be free from the project cost, only as compensation for the loss of the tenderer when the winning bidder defaults. The tenderer must be a legal person with the ability to bid, and its construction funds have been put in place. The performance bond cannot be used as a supplement to the project cost. Therefore, the performance bond is independent and must be collected, kept, executed and returned by institutions recognized by both parties.
Third, legal advice.
Netizen: What are the legal consequences of not submitting the performance bond?
Lawyer: If the tender documents require the winning bidder to submit a performance bond or other forms of performance guarantee, if the winning bidder refuses to submit it, it will be regarded as abandoning the winning project. At this point, the tenderer can choose other successful candidates as the winning bidder. The bid bond of the original winning bidder will not be returned, and if the losses caused to the tenderer exceed the amount of the bid bond, the original winning bidder shall also compensate for the excess. Article 48 of the Interim Provisions on the Bid Evaluation Committee and Bid Evaluation Methods stipulates that if the candidate winning the bid ranked first in the bidding documents fails to submit the performance bond within the prescribed time limit, the tenderer may determine the candidate winning the bid ranked second as the winning bidder. Article 62 of the Measures for Tendering and Bidding of Construction Projects stipulates: "If the tender documents require the winning bidder to submit a performance bond or other forms of performance guarantee, the winning bidder shall submit it; Refuse to submit, as to give up the winning project. Article 85 of the Measures for Tendering and Bidding of Construction Projects and Article 59 of the Measures for Tendering and Bidding of Construction Projects both stipulate: "If a tenderer fails to perform the contract concluded with the winning bidder, it shall return the performance bond of the winning bidder; If the losses caused to the winning bidder exceed the returned performance bond, compensation shall also be made for the excess; If the performance bond is not submitted, it shall be liable for the losses of the winning bidder.
To sum up, the performance bond can be realized by means of draft, check, confirmed check or performance guarantee, and the amount does not exceed 10% of the price of the subject matter of the main contract. The above is about who paid the performance bond, I hope it will help you. If you have any other questions, please consult a lawyer.