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1
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What are the five situations in which the construction contract is invalid? 1
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The subject of the contract is not qualified and should be deemed invalid
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Construction is very important, even related to the safety of public life and property
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Therefore, it is particularly important for the constructors to have the corresponding qualifications
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Therefore, the identification of subject qualification should be listed as the first work of contract validity identification
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Construction contracts signed by unqualified, lower than the corresponding level of qualification requirements or unqualified actual constructors in the name of qualified construction enterprises are invalid
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Article 13 of the “construction law” stipulates that construction enterprises, survey units, design units and project supervision units engaged in construction activities are divided into different qualification levels according to their registered capital, professional and technical personnel, technical equipment and completed construction project performance and other qualification conditions
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Only after passing the qualification examination and obtaining the corresponding level of qualification certificate, can they enter the construction industry They are engaged in construction activities within the scope permitted by their qualification level
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It can be seen that only legal entities with corresponding legal qualifications are qualified to sign construction contracts with construction units
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Construction contracts signed by individuals or legal entities without corresponding qualifications, or by exceeding the qualification level or borrowing qualifications, should be strictly recognized as invalid contracts according to law
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2
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If a construction contract for a construction project is concluded by illegal bidding or tendering, or if a construction project must be tendered but not tendered, or there are other situations in which the bid is invalid, it shall be deemed as invalid
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In the aspect of bidding, this point is easy to be ignored in such cases
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Because not all construction projects need bidding at present, the parties have signed the construction contract
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If the bidding link is ignored, the wrong identification of the validity of the contract is easy to occur
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Therefore, in dealing with such cases, we should pay attention to and skillfully use the relevant provisions of the bidding law
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Article 3 of the law of the people’s Republic of China on bidding and tendering stipulates that the following construction projects, including survey, design, construction, supervision and procurement of important equipment and materials related to engineering construction, must be subject to bidding: large infrastructure, public utilities and other projects related to social and public interests and public safety; projects wholly or partly invested with state-owned funds or financed by the state; projects involving large-scale infrastructure, public utilities, etc; Projects that use loans or aid funds from international organizations or foreign governments
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In addition, articles 50, 52, 53, 54, 55 and 57 of the law of the people’s Republic of China on Tendering and bidding stipulate six situations of “invalid bid winning”
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In practice, it is mainly manifested as collusion and fraud in the process of bidding
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If the bid is invalid, the construction contract signed by the parties will be invalid
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However, illegal bidding and tendering lead to invalid construction contract of construction project, and there are many situations, which are as follows: the project that should be invited for bidding is not invited for bidding; the bidder divulges the base price; the bidder colludes to cheat and bid up the bid price, which makes it difficult or impossible to bid; the bidder colludes with individual bidders maliciously to bid up the bidder internally; the bidder colludes with individual bidders maliciously to bid up the bidder internally; In the case of public bidding for state key construction projects and large-scale construction projects, there are less than three bidding units, less than two bidding units and so on
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3
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The construction contract of illegal subcontracting or subcontracting should be deemed invalid
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Article 24 of the construction law stipulates that dismemberment of construction projects is prohibited
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Article 272 of the contract law also has similar provisions on prohibiting illegal subcontracting and subcontracting
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In addition, Article 28 of the construction law stipulates that illegal subcontracting and dismemberment of subcontracting by contractors are prohibited
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However, in order to obtain greater benefits, some contractors divide their contracted projects into several small projects and subcontract them to other constructors, or the contractors subcontract all the projects they undertake to others
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This actually constitutes illegal subcontracting and dismemberment
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The regulations on quality management of construction projects has made special provisions on how to correctly define the subcontracting and subcontracting behaviors of contractors
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According to Article 78 of the regulations, dismemberment contracting as mentioned in the Regulations refers to the act of a construction unit dividing a construction project that should be completed by one contractor into several parts and contracting them out to different contractors
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It can be seen that although construction projects can be sub contracted, they can not be contracted separately
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2、 How to review the construction contract of the construction project 1
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The content of the employer (1) the main qualification, that is, whether the construction related procedures are complete
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For example, whether the construction land has been approved? Whether it has been included in the investment plan? Whether the planning and design have been approved? Whether the bidding has been carried out, etc.; (2) the problem of funds
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Whether the funds required for construction have been implemented or whether the sources of funds have been implemented is the obligation of the employer, which should be truthfully stated in the bidding documents
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2
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The contents to be examined for the contractor are as follows: (1) qualification and qualification: whether the contractor has the qualification of project contracting subject and corresponding qualification, so as to avoid invalidation of the contract; (2) construction capacity: it is also related to the qualification, mainly examining whether the contractor has signed the contract beyond the qualification, otherwise the contract may be invalid
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In addition, the construction capacity of the contractor is also related to whether the contract can be delivered on time; (3) social reputation: mainly investigate the integrity and reputation of the enterprise; (4) financial situation: related to the efficiency of contract performance, which directly affects the employer’s late liability for breach of contract with the owner
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The main body of the construction contract is limited, and the contractor can only be qualified to engage in survey, design, construction and installation
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As the subject matter of construction project is real estate, the project construction has a great impact on all aspects of national and social life
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In the conclusion and performance of construction project contract, it has a strong color of state intervention
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Make project budget on behalf of others
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Settle project budget, settlement, quota, quantity and price, tender preparation (Engineering, procurement and service), construction organization design, completion data preparation, drawing design, house decoration budget and project cost consultation
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Professional direction: Civil Engineering, installation, municipal, garden, hardcover, steel structure, water conservancy, highway, bridge, electric power, oil
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Budget of agent project www.yusuanw.com List quota, drawing quantity group price.
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