**What should I do if the merchant does not receive the bid winning and transaction notice?Can the purchasing agency require the merchant to pay the service fee and the entry transaction fee before receiving the notice of winning the bid and closing the transaction?**What should I ......do if the merchant refuses to sign the contract on the grounds that he has not received the notice of winning the bid or closing the contract?In practice, the audio team of Yali Chat Politics often receives inquiries with similar questions.
On December 5, 2023, the Supreme People's Court promulgated the Interpretation on Several Issues Concerning the Application of the General Principles of Contracts of the Civil Code of the People's Republic of China (Fa Shi 2023 No. 13, hereinafter referred to as the "Interpretation"), which came into force on the same day. Article 4 stipulates that "if a contract is concluded by way of bidding, and the parties request confirmation that the contract is established when the notice of winning the bid reaches the winning bidder, the people's court shall support it". This explanation has sparked heated discussions among the procurement peers, making the issue of the validity of the notice of winning the bid, or whether its validity adopts the principle of dispatch or the doctrine of arrival, has once again become a hot topic of discussion. So, will the latest judicial interpretation of SPC No. 13 have a new impact on the nature of the notice of winning the bid in future procurement practice?Today, Yali will talk to your peers based on my personal understanding of the legal system of procurement.
Article 46 of the Procurement Law of the People's Republic of China (hereinafter referred to as the "Procurement Law") clearly states that the purchaser and the winning bidder shall sign the procurement contract in accordance with the matters determined in the procurement documents within 30 days from the date of issuance of the notice of winning the bid and the transaction. The notice of winning the bid and the transaction has legal effect on the purchaser and the winning bidder and the contractor. Paragraph 2 of Article 43 of the Regulations for the Implementation of the Procurement Law stipulates that the purchaser or the procurement agency shall issue a notice of winning the bid or closing the transaction within 2 working days from the date of determination of the winning bidder or the contractor.
In procurement practice, this issue has become very complicated because the merchant does not receive the notice of winning the bid and the transaction, the notice of winning the bid and the transaction is lost, and the procurement agency requires the merchant to pay the service fee and even the entry transaction fee of the public resource trading venue and the bidding and response validity period of the merchant.
What is the relationship between the issuance of the notice of winning the bid and the establishment of the procurement contract?Article 46 of the Procurement Law stipulates that after the notice of winning the bid or transaction is issued, if the purchaser changes the result of winning the bid or the transaction, or the winning bidder or the contractor gives up the winning bid or transaction project, it shall bear legal responsibility. What is the responsibility?Article 71 of the Procurement Law stipulates the legal responsibilities of the purchaser: it shall be ordered to make corrections within a time limit, given a warning, may be fined concurrently, and the person in charge who is directly responsible and other persons directly responsible shall be punished by the administrative department or relevant authority and shall be notified. Article 72 of the Regulations for the Implementation of the Procurement Law stipulates the responsibilities of the first businessman, and the punishment shall be imposed in accordance with Article 77 of the Procurement Law, that is, a fine of between 5 and 10 thousandths of the procurement amount shall be imposed, and the administrative penalty shall be included in the list of bad behavior records and prohibited from participating in the procurement activities within one to three years.
Of course, if the procurement contract is a special civil contract, and the Procurement Law and its implementing regulations do not make special provisions on it, the provisions of the Civil Code on civil contracts shall apply.
According to Article 137 of the Civil Code, the expression of intent made in a non-dialogue manner, such as a procurement offer and commitment, shall take effect when it reaches the counterpart. That is to say: the validity of the notice of winning the bid will only take effect when it reaches the winning bidder, rather than the starting point of the notice of winning the bid issued by the purchaser. The provisions of the Civil Code and the latest judicial interpretation of the Supreme People's Court support the doctrine of arrival, rather than the doctrine of issuance, on the validity of the notice of winning the bid.
The key to whether to adopt the doctrine of arrival or the doctrine of dispatch lies in how the risks in transit (e.g., lost letters) are allocated. If it is determined to be an arrival doctrine, then the risk in transit should be borne by the person who issued the expression of intent. In the procurement activities, the risk in transit after the issuance of the bid winning and transaction notice shall be borne by the purchaser or the procurement agency.
It should be pointed out that, in accordance with Articles 480 and 481 of the Civil Code, the undertaking shall be made by way of notice, and the undertaking shall reach the offeror within the time limit specified in the offer. Therefore, before arriving at the winning bidder, the obligation and risk of issuing the notice of winning the bid are in the purchaser. The purchaser or the procurement agency has the obligation to ensure that the notice of winning the bid is served.
Please note that in practice, the practice of requiring the winning bidder to receive the winning bid and transaction notice on the spot is not standardized, and it is easy to have problems such as the refusal of the first bidder to receive the winning bid and the transaction notice, and the refusal of the first merchant to sign the contract on the grounds that the first bidder has not received the winning bid and the transaction notice. Therefore, it is more secure for the purchaser or the procurement agency to mail the winning bid and the transaction to ensure that the winning bid and the transaction notice arrives at the first business.
Of course, some procurement peers may be worried: if the arrival doctrine is adopted, what if the first merchant gives up the bid at will before the arrival of the bid winning notice?
In fact, this worry is unnecessary. First of all, the judicial interpretation of the Supreme People's Court is based on the general provisions of civil contracts, and cannot offset or reduce the administrative penalties for abandoning winning bids and refusing to sign contracts in the procurement legal system. As far as civil liability is concerned, the judicial interpretation of the Supreme People's Court means that before the notice of winning the bid arrives at the bidder, the procurement contract is not established, and there is no liability for breach of contract in civil terms. However, if the winning bidder is negligent in giving up the bid and refusing to sign the contract, it may be required to bear the liability for negligence in contracting in accordance with Article 179 of the Civil Code. Even if the letter issuing doctrine is adopted, the winning bidder gives up the winning bid, which constitutes a liability for breach of contract, and can only require it to compensate for losses. Therefore, although the arrival doctrine bears the liability for negligence in contracting the contract, and the transmission doctrine bears the liability for breach of contract, the civil liability for refusal to sign the contract or non-performance of the contract is the same.
Therefore, there is no contradiction between the judicial interpretation of the Supreme People's Court and the current legal system of procurement after the issuance of the notice of winning the bid, and there is no problem of weakening administrative liability and civil liability.