01 gist of the judgment: the project involved in the case is a commercial residential project.
In the housing construction projects invested by the private sector, explore the contracting method independently determined by the construction unit.
Considering the principles of protecting the safety and stability of market transactions and good faith, the construction contract of the construction project involved in the case should now be recognized as valid.
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Although it is reasonable, it can not fully and accurately reflect the reasonable construction period of different construction enterprises in different projects when there are differences in actual technical expertise, management level and construction experience.
Speed up the revision of the provisions on the scope and scale standards for engineering construction projects, narrow and strictly define the scope of engineering construction projects that must be subject to bidding, relax the relevant scale standards, and prevent the implementation of” one size fits all “bidding for engineering construction projects.
Case source: this case comes from China judicial document network, case No.: (2018) Supreme faminzai No.
In view of the new provisions of the national development and Reform Commission, it is no longer regarded as the scope of projects subject to bidding, the construction contract can be determined to be valid with reference to the new provisions.
In this regard, the Institute believes that, on the one hand, the quota construction period is usually formulated according to the construction specifications, typical engineering design, the average level of construction enterprises and other factors.
Meanwhile, considering that the opinions of the general office of the State Council on promoting the sustainable and healthy development of the construction industry was clearly put forward on February 21, 2017, “(2) improve the bidding system.
On the other hand, in this case, China Construction Third Engineering Bureau, as a large professional construction enterprise, based on the comprehensive consideration of its own construction capacity and market and through equal consultation with Jinyin company, agreed on the construction period clause of 580 calendar days in the construction project construction contract, which is a punishment for its own rights and an expression of its true intention.
02.
The claim of China Construction Third Engineering Bureau for retrial also lacks factual basis and cannot be established, which is not supported by the court.
Therefore, Jinyin company invites companies such as China Construction Third Bureau to participate in the project bidding, which is implemented according to the administrative Reply of the administrative department, The construction contract of the construction project involved in the case was signed without public bidding procedures, and the rules cannot be simply applied to Jinyin company.
The reason why the original judgment found that the project involved in the case did not belong to the scope of the project that must be subject to compulsory bidding was that the project involved in the case was constructed by Jinyin company with its own funds and adopted independent bidding, which has been approved by Nanning development and Reform Commission.
163 civil judgment.
03.
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” On March 27, 2018, the national development and Reform Commission stipulated in Article 4 of the regulations on engineering projects subject to bidding that the specific scope of bidding for projects related to social and public interests and public safety that do not fall under the circumstances specified in Articles 2 and 3 of the regulations shall be strictly limited by the development and Reform Department of the State Council in conjunction with relevant departments of the State Council in accordance with the principle of necessity.
Judgment results according to Article 3 of the bidding law and item (5) of Article 3 of the original provisions on the scope and scale of bidding for engineering construction projects, commercial housing is a project that must be subject to bidding and has a bearing on social and public interests and public safety.
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China Construction Third Engineering Bureau also claimed that the 580 calendar day construction period clause in the construction contract of construction projects was invalid because it violated the mandatory provision of administrative regulations that “reasonable construction period shall not be arbitrarily reduced”.
Subsequently, on June 6, 2018, the national development and Reform Commission promulgated the provisions on the scope of infrastructure and public utility projects subject to bidding, which further defined the scope of large-scale infrastructure, public utilities and other projects related to social and public interests and public safety that do not fall under the circumstances specified in Articles 2 and 3 of the provisions on engineering projects subject to bidding, The specific scope of bidding does not include commercial housing.
In this regard, the court believes that because it is clear in the reply document of Nanning development and Reform Commission that “the project legal person shall independently decide whether to bid for the project and what bidding method to choose”, and Nanning construction project bidding supervision and management office has reviewed the development and contracting relationship involved in the case, The “special seal for construction project filing of Nanning construction project tendering and bidding supervision and management office” is affixed at the filing unit of the issuance and contracting review notice, which reflects the approval of the local administrative department for the project related to the issuance and contracting relationship.
In this case, although the construction contract of the construction project involved in the case was signed without public bidding procedures, the occurrence of this behavior has not absolutely damaged the national interests or social public interests.
In the absence of other evidence to the contrary, It cannot be presumed that Jinyin company forces it to reduce the reasonable construction period.
