According to Article 567 of the Civil Code, “the termination of the rights and obligations of the contract does not affect the effectiveness of the settlement and liquidation clauses in the contract”.
Compared with “before determining the winning bidder, the tenderee shall not negotiate with the bidder on the bid price, bidding scheme and other substantive contents”, it is a more serious violation of the Bidding Law to determine the project contractor in essence before bidding.
Later, the Company A failed to pay the money, which led to the lawsuit in this case.
During the performance of the contract, both parties signed the Supplementary Agreement, which stated that Party B had completed the project amount of 20 million yuan.
There is a view that, according to Article 1 of the Interpretation of the Supreme People’s Court on the Application of Law in the Trial of Disputes over Construction Contracts (I), a construction contract shall be deemed invalid in accordance with the provisions of Paragraph 1 of Article 153 of the Civil Code if it meets one of the following circumstances: (1) The contractor has not obtained the qualification of a construction enterprise or has exceeded the qualification level; (2) The unqualified actual constructor borrows the name of a qualified construction enterprise; (3) A construction project must be subject to tender but has not been invited to tender or has been invalidated.
The first paragraph of Article 1 of the Interpretation of the Supreme People’s Court on the Application of Law in the Trial of Disputes over Construction Contracts (I) stipulates that: “A construction contract for a construction project shall be deemed invalid in accordance with the provisions of the first paragraph of Article 153 of the Civil Code in any of the following circumstances: (I) The contractor has not obtained the qualification of a construction enterprise or has exceeded the qualification level; (II) The unqualified actual constructor borrows the name of a qualified construction enterprise; （3） The bid for a construction project must be invited, but the bid is not invited or the bid is invalid.
Therefore, the Supplementary Agreement is not necessarily invalid because the Construction Contract of Construction Project is invalid.
01 The construction contract of the construction project signed by both parties is invalid due to violation of the provisions of the Bidding Law.
Is the supplementary agreement for settlement of project price reached by both parties during the performance of the contract necessarily invalid? Analysis: Party A and Party B signed the Construction Contract for Construction Projects without going through the legal bidding procedures, stipulating that Party B should undertake the project involved in the case, and Party A did not pay the progress payment as agreed.
If the main contract is invalid, the supplementary agreement shall also be invalid.
Source: For more Sichuan legal advice from the First People’s Court of the Supreme Court, please call Qin Fangyun’s lawyer at 13308083838 [Disclaimer]: “Qin Fangyun, a civil and commercial lawyer in Chengdu”.
And from the principle of good faith, improper expansion of the boundary of the consequences of invalid contracts is also likely to lead to the imbalance of the interests of the parties.
02 For construction projects that must be subject to tender according to law, if the tenderee signs a construction contract with the bidder before performing the legal tender and bidding procedures, how should the validity of the contract be determined? Analysis: Article 43 of the Bidding Law stipulates: “Before determining the winning bidder, the tenderee shall not negotiate with the bidder on the bid price, bid scheme and other substantive contents.” This regulation is of great significance for realizing the legislative purpose of the Bidding Law, namely, regulating bidding activities, protecting national interests, social public interests and the legitimate rights and interests of the parties involved in bidding activities, improving economic benefits and ensuring project quality.
” Therefore, the construction contract of the construction project signed by the tenderee and the bidder before the implementation of the legal tendering and bidding procedures is invalid because it violates the mandatory provisions of laws and administrative regulations.
If the content of the agreement belongs to the liquidation of the existing creditor’s rights and debts by both parties, it is independent.
We believe that we should comprehensively analyze the nature of the relationship between the rights and obligations of the parties reflected in the agreement and the legal relationship between the parties and the construction contract, and should not simply identify the principal subordinate relationship between the two parties based on whether they are entitled “supplementary agreement”.
Because the Construction Contract for Construction Projects signed by both parties violates the mandatory provisions of the bidding law and is invalid, the parties involved in the performance of the construction contract as a supplementary agreement to the main contract will certainly be invalid.
Party A should pay the price and interest within three months until the date of actual payment.
