Keywords:
Plastic runway;Type of Contract;Performance acceptance.
Case playback
On June 1, 2022, a senior high school opened a public tender for the construction of a playground on a new campus (including plastic runway), and the construction unit A (hereinafter referred to as A** business) won the bid and signed a contract with B plastic runway manufacturer (hereinafter referred to as B company), which stipulated that Company B would provide plastic runway and artificial grass and other materials to A** business, as well as transportation, laying, etc. After the contract was signed, Company B provided the materials in accordance with the contract, and Company A paid part of the payment to Company B after receiving the materials. The project site was put into use after the acceptance on June 25, 2022. However, business A** has not stamped and confirmed on the acceptance form of company B, and the remaining payment has not been settled. Company B sent people to negotiate and communicate many times, but Business A** prevaricated for various reasons and delayed the payment of the remaining amount, and Company B demanded it many times to no avail, so it sued Business A** in court, demanding that it pay the remaining amount and liquidated damages for deferred payment.
A** argued in court that it was wrong to characterize this case as a dispute over a sales contract, and it should actually be a contract dispute. According to the actual performance of the contract, the relationship between us and the plaintiff (Company B) is not a pure sale of goods, but we complete the construction of the playground in accordance with the requirements and design plan of the purchasing unit, among which the laying of the plastic runway needs to be processed and laid according to the design plan of the playground. Therefore, Company B was based on the delivery of work products, rather than the delivery of runway materials and artificial turf materials, which fully met the constitutive elements of the contract. On the other hand, the total price of the contract includes not only the materials and transportation, but also the construction costs, which also proves that it is not only the goods that are supplied, but the entire processing process of the package. In addition, we have a contractual relationship with the purchasing unit, and the actual owner of the playground project is the school, so it is impossible for us to carry out the acceptance on behalf of the school.
Questions arise
1.What is the nature of the contract signed between the construction party and the plastic runway material manufacturer for the plastic runway project?
2.For the plastic runway project, is the subject of acceptance the purchaser or the project contractor?
Expert commentary
Question 1: Wang Qiguang, a procurement review expert in Shandong Province, believes that if the project only has two parts: a plastic runway and an artificial turf, the winning bidder A will directly subcontract to Company B to perform the contract, which is an illegal subcontracting prohibited by lawIf the plastic runway and artificial turf of this project are only a small part of the project, it is not an illegal subcontracting, and the A** business only purchases materials from the plastic runway material manufacturer and lays them incidentally, so the situation mentioned in the case should be characterized as a sales contractAt the same time, Company B completed the supply and paving of the plastic runway and artificial turf as agreed in the contract, which means that Company B has transferred the ownership of the subject matter, and Company A should pay all the amounts agreed in the contract.
Huang Xin, general manager of Guangzhou CEFC Bidding, said that the situation in this case mainly depends on how the contract signed by the two parties is agreed, if it is only the purchase of goods and simple laying, it belongs to the sales contract, and the installation obligation is only an ancillary obligation of the sales relationship, and Company B is not the construction party of the entire project, but is responsible for the quality and installation of its materials.
The person in charge of an enterprise in Jiangsu said that before the cancellation of the professional contracting qualification of sports venue facilities engineering, the plastic runway industry had a qualification certificate, which was managed by the housing and urban-rural development department, mainly involving engineering construction qualifications, so the contract signed by A** business and company B belonged to the engineering category (contracting). However, after the qualification is cancelled, the plastic runway project does not need to be qualified, and the material manufacturer mainly sells materials and attaches to the laying, etc., and the contract type becomes a sales contract.
Question 2: In Huang Xin's view, this kind of project is generally accepted by the purchaser or a third-party agency, and the first merchant can participate in the acceptance. However, Company B is not the winning bidder of the project, but a material manufacturer, so it does not need to accept the acceptance of the purchasing unit.
A procurement review expert in Beijing believes that this project should be accepted by A** business according to the contract signed with Company B, and then accept the acceptance of the procurement unit according to the contract signed with the procurement unit, and there is no direct contact between the purchaser and Company B.
Huang Heping, deputy director and chief technical expert of the Sports Facilities Professional Committee of Jiangxi Floor Industry Association, believes that the project acceptance party in this case should be the procurement unit (referring to the university), and Company B does not need to wait for the acceptance of the procurement unit. Judging from the case, the a** business is maliciously owing, looking for excuses and reasons.
Regulations apply
Civil Code of the People's Republic of China
Article 595:A sales contract is a contract in which the seller transfers ownership of the subject matter to the buyer and the buyer pays the price.
Article 771: The content of a contract generally includes terms such as the subject matter, quantity, quality, remuneration, method of contracting, provision of materials, performance period, acceptance criteria and methods, etc.