From the analysis of contract law, the tenderer stipulates in the tender documents that "regardless of whether the bid is won or not, the tender plan will be owned by the tenderer or used free of charge." This clause has no legal effect on the unsuccessful bidder. From the analysis of intellectual property law, the intellectual property rights of the bidding documents are enjoyed by the bidders in accordance with the law. From an economic analysis, the purpose of construction project bidding is to maximize investment benefits and optimize project quality. In construction project bidding, the intellectual property rights of bidders should be fully respected and reasonably protected to encourage technological innovation. 1. Contents and legal nature of bidding documents, bid documents, and notice of winning bids In the bidding process, three legal documents are inevitably involved: bidding documents, bidding documents, and notice of winning bids. The three legal documents are closely related and cannot be used. Or missing. 1. Contents and legal nature of bidding documents Article 19 of the "Tendering and Bidding Law" stipulates that the tenderer shall prepare bidding documents based on the characteristics and needs of the bidding project. The bidding documents shall include all substantive requirements and conditions such as the technical requirements of the bidding project, criteria for review of bidder qualifications, bid quotation requirements and bid evaluation criteria, as well as the main terms of the contract to be signed. Article 15 of the "Measures for Bidding for Survey and Design of Engineering Construction Projects" stipulates that survey and design bidding documents shall include the following contents: bidding instructions; bidding document format and main contract terms; project description, including source of funds; scope of survey and design, and requirements for survey and design. Design progress, stage and depth requirements; basic information on survey and design; payment methods for survey and design fees, whether compensation will be given to unsuccessful bidders and the compensation standard; bid quotation requirements; criteria for review of bidder qualifications; bid evaluation standards and methods; bid validity period . Article 24 of the "Measures for Bidding and Bidding for Engineering Construction Projects" stipulates that construction bidding documents generally include the following contents: invitation to bid; instructions to bidders; main terms of the contract; bidding document format; if a bill of quantities is used for bidding, the project shall be provided Bill of quantities; technical terms; design drawings; bid evaluation standards and methods; bidding auxiliary materials. It can be seen that the content of the bidding document is relatively comprehensive, and its purpose is to clearly express the bidding intention, provide relevant information to potential bidders, and put forward substantive requirements and conditions. According to Article 15 of the Contract Law, bidding documents are legal documents for invitation to tender under the Contract Law of the People’s Republic of my country. That is to say, the bidding document as an invitation to offer is mainly to attract the other party to make an offer, that is, to attract bids. The bidding document is only an expression of hope that others will make an offer to you, and has no legal binding force. However, due to the particularity of tendering and bidding, the bid must comply with the substantive requirements and conditions set forth in the bidding documents. Therefore, once a bidder wins the bid, the tenderer and the winning bidder shall enter into a written contract in accordance with the bidding documents and the bidding documents of the winning bidder ("Tendering"). Article 46 of the Bidding Law). It can be seen that the bidding document is an invitation to tender in legal nature and is not binding on the bidder, but it has certain legal binding force on the tenderer and the winning bidder. 2. Content and legal nature of bidding documents Article 27 of the "Tendering and Bidding Law" stipulates that bidders shall prepare bidding documents in accordance with the requirements of the bidding documents, and the bidding documents shall respond to the substantive requirements and conditions put forward in the bidding documents. Article 36 of the "Construction Tendering and Bidding Measures for Engineering Construction Projects" stipulates that construction bidding documents generally include the following contents: bid letter; bid quotation; construction organization design; commercial and technical deviation tables. The bidding document for an engineering construction project is a clear and specific expression of intention made by the bidder in accordance with the substantive requirements and conditions put forward in the bidding document, as well as the project progress and survey and design or construction technical plan. As long as the bidder accepts it, the bidder must follow its instructions. The contents of the bidding documents shall be used to undertake the bidding project. Therefore, the bidding document is legally an offer made by the bidder. 3. Legal nature of the bid winning notice After the bids have been opened and evaluated, and the winning bidder is determined, the tenderer shall issue a bidding winning notice to the winning bidder and notify all unsuccessful bidders of the winning bid results at the same time. The notice of winning the bid is a kind of commitment in legal nature. Article 21 of the Contract Law stipulates: Commitment is the offeree’s expression of intention to agree to the offer. The tenderer's acceptance of the bidding conditions proposed by the bidder means that it has accepted its offer, which constitutes a commitment. According to the provisions of contract law, an acceptance becomes effective when it reaches the offeror, and once the acceptance becomes effective, the contract is established. Therefore, Article 45 of the "Tendering and Bidding Law" clearly stipulates: "The notice of winning the bid shall have legal effect on the tenderer and the winning bidder.
After the bid winning notice is issued, if the tenderer changes the bid winning result, or if the winning bidder abandons the winning project, he shall bear legal responsibility in accordance with the law." 2. Contract Law Analysis of "Overlord Clause" Article 15 of my country's Contract Law clearly stipulates that bidding The document is an invitation to offer, and the invitation to offer is not legally binding. Therefore, the so-called "overlord clause" in the bidding document of the tenderer is not legally binding on the bidder. That is, the tenderer will transfer the bid of the unsuccessful bidder according to the agreement of this clause. There is no legal basis for the ownership or free use of the bidding plan. Of course, according to the provisions of Article 46 of the Bidding and Bidding Law, the tenderer and the winning bidder shall enter into a written contract in accordance with the bidding documents and the bidding documents of the winning bidder. After the bidder wins the bid, the bidding documents will be legally binding on the winning bidder. The bidding plan stipulated in the "overlord clause" shall be owned by the bidding party or used free of charge and shall be valid in accordance with the law. Of course, the bidding documents are only the bidder's offer to enter into a construction project contract. invitation, this does not mean that it cannot become an offer for other contracts. We can consider that a contract is first established between the bidders to conclude a contract for a specific engineering construction project. During the process of establishing the contract, the bidding document should be an offer. , the bidding document is a commitment, that is, the bidding document should become the content of the contract. However, not all contracts are valid. Obviously, the "overlord clause" in the bidding document falls within the format stipulated in Article 39 of the Contract Law. Article 39 of the "Contract Law" clearly stipulates that "if a contract is concluded using standard terms, the standard terms shall be provided." One party shall follow the principle of fairness to determine the rights and obligations between the parties, and shall use reasonable means to draw the other party's attention to clauses that exempt or limit its liability, and explain the clauses at the request of the other party. Article 40 of the "Contract Law" further clearly stipulates, "...if the party providing the standard clause exempts it from liability, increases the liability of the other party, or excludes the other party's main rights, the clause shall be invalid." "The bidding documents stipulate that "regardless of whether the bid is won or not, the bidding plan shall be owned by the tenderer or used free of charge." This clause is a standard clause entered into by the tenderer taking advantage of its advantageous position. It will inevitably lead to the unsuccessful bidder only bearing responsibilities but not enjoying rights. Obviously It is unfair and seriously violates the principle of fairness to increase the bidder's responsibilities or even exclude the bidder's main rights and exempt the tenderer from the responsibilities. According to the provisions of the Contract Law, this clause is invalid from the beginning. 3. Intellectual Property Law Analysis of Bidding Documents. Documents are documents completed by bidders in response to the substantive requirements and conditions put forward in the bidding documents. There is no doubt that bidding documents are intellectual achievements embodying the wisdom of bidders, and the intellectual property rights enjoyed by bidders should be fully respected and protected. Judging from the expression form of the bidding document, the bidding document itself is a work in the sense of copyright law, and its textual expression part is a literary work, the engineering design drawing is a graphic work, and the engineering model is a model work according to the principle of automatic copyright acquisition of the copyright law. The copyright of the work is automatically generated when the creation of the work is completed, and no formalities are required. Moreover, the bid documents are completed independently by the bidder and no cooperative relationship is formed with the bidder. Therefore, once the bid documents are created, the bid will be finalized. Everyone has copyright in accordance with the Copyright Law, and no one may publish, modify, or copy the bidding documents without the bidder's permission. The tenderer's actions such as copying the bidding documents of the unsuccessful bidder, making them public, and providing them to the winning bidder for modification are infringements. The unsuccessful bidder has legal rights to copyright (right to reproduce, publish, modify, etc.) the bid document. From the content of the bid document, the core is the technical solution, which is the key to measuring the quality of the bidder's bid. The competitiveness of bidders is reflected. Therefore, in order to win the bid, bidders will often make efforts to develop technical solutions, or the bidders have existing technical solutions (patented technology or technical secrets). Or a combination of the two. Obviously, the bidder enjoys patent rights over the existing patented technology in the technical solution, and no one may implement the patented technology without its permission; the bidder enjoys patent rights over the existing technical secrets in the technical solution. The bidder shall not disclose, use or allow others to use the technical secrets without its permission. For innovative technical solutions, the right to apply for a patent and the patent right after authorization belong to the bidder.
Innovative technical solutions that have not been patented or have not been granted patent rights, if they meet the conditions of confidentiality, economic practicability and confidentiality of trade secrets, will also constitute the bidder’s technical secrets, and the bidder shall not disclose, use or allow them without its permission. Others use this technical solution. Without the bidder's permission, the tenderer provided the unsuccessful bidder's technical solution to the successful bidder and required it to learn from the strengths of each company to optimize the winning solution. This behavior infringed on the unsuccessful bidder's trade secret rights or patent rights.