There are mainly four clauses in the interpretation (2) concerning bidding activities and contracts, namely, Article 1, paragraph 1, Article 9, Article 10 and Article 11
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The first paragraph of Article 1 follows the provisions of Article 21 of interpretation (1), that is, if the construction contract signed separately by the parties is inconsistent with the substantive content of the bid winning contract, the bid winning contract shall be used as the basis for determining the rights and obligations (including settlement of project price)
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The difference is that article 21 of interpretation (1) uses “the contract winning the bid for record”, while interpretation (2) uses “the contract winning the bid”, without the word “the contract winning the bid for record”
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Why? On May 18, 2018, the general office of the State Council officially announced the notice of the general office of the State Council on carrying out the pilot reform of the examination and approval system of engineering construction projects (GBF [2018] No
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33), which includes the cancellation of the construction contract filing and other matters, and the clarification of the housing construction projects with social investment, and the construction unit can independently decide the contracting mode
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On September 19, 2018, the fourth ministerial meeting of the Ministry of housing and urban rural development deliberated and passed the decision of the Ministry of housing and urban rural development on Revising the administrative measures for bidding and tendering of housing construction and municipal infrastructure projects, deleting the first paragraph of Article 47 of the original administrative measures: “within 7 days after the signing of a written contract, the successful bidder shall send the contract to the local people at or above the county level where the project is located In other words, according to the revised Measures for the administration of tendering and bidding for housing construction and municipal infrastructure projects, there is no need to record the winning contract
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We need to pay attention to the differences between Article 10 and paragraph 1 of Article 1: first, the scope is different
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The scope of the first paragraph of Article 1 is the winning contract; the scope of Article 10 is the bidding documents, the bidding documents and the letter of acceptance
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Generally speaking, the bidding documents, the bidding documents and the letter of acceptance can be agreed or understood as an integral part of the winning contract in the winning contract
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Second, the influence is different
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The winning contract affects the rights and obligations of the parties, covering a wide range; the bidding documents, tender documents and the letter of acceptance can be used as the basis for the settlement of the project price of the parties, and it is obvious that the rights and obligations include the settlement of the project price
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On the understanding of Article 9 of interpretation (2)
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The first paragraph of Article 3 of the bidding law specifies the survey, design, construction, supervision of projects that must be subject to bidding, as well as the procurement of important equipment and materials related to the project
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The second paragraph of the article also stipulates the specific scope and scale standards of the first paragraph of the project, which shall be formulated by the development planning department of the State Council together with the relevant departments of the State Council and submitted to the State Council for approval
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On March 30, 2018, the national development and Reform Commission issued the regulations on engineering projects subject to bidding (Order No
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16 of the national development and Reform Commission), which changed the scope and scale standard of engineering projects subject to bidding
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The newly promulgated regulations on engineering projects subject to bidding greatly reduced the scope of Engineering projects subject to bidding
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Before June 1, 2018, the scope of engineering projects subject to private investment was reduced, Such as commercial housing, residential quarters, shopping centers, etc., due to the amount of project construction, procurement, etc
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exceeding the provisions, or based on public safety considerations, it is necessary to carry out bidding, according to the new provisions, there is no need to carry out bidding
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However, in order to maintain the order of the bidding market and ensure the fairness and impartiality of bidding, the article 9 stipulates that for the construction projects that are not subject to bidding, the parties involved in the bidding shall take the winning contract as the basis for settling the project price
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The second half of the article makes an exception according to the actual situation, that is, due to the unforeseen changes in the objective situation, the construction contract of the construction project is concluded separately..
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