The research of the protection of bidder’s interest

The trade means of invite public bidding bids is an internationally accepted procurement method for commodities, engineering works and services. Through meticulous analysis of the trade means of invite public bidding bids, I think legal persons, other organizations and natural persons are the bidder. In the different phases of invite public bidding bids, the range of bidder is different. As invite public bidding bids progressed, there exists three types’ bidders respectively; they are potential tenderers, bidders and the bid winner. In order to regulate invite public bidding bids, Chinese government promulgated and implemented “invite public bidding bids law”. As the Law doesn’t explicitly stipulate the legal attributes, the time of concluding the contract in the different phases of invite public bidding bids, leading to there are different viewpoints both in the research and application.

I think after “invite public bidding bids law” was issued, the formulation of tender documents is normative and meticulous increasingly and become more similar to the offer of contract law. But through comparison analysis on the tendering procedure, the offer of contract law and commitment theory, no matter how well crafted tender documents may be, invite public bidding bids are claimed for market competition essentially it still determines tender documents might not have the real elements to become the offer(such as price terms). Bid inviting is still invitation for offer. Through analysis on bidding behavior, bidding is the offer. It is legally effective after the bid-winning notice issued, this clause have nothing debatable. But the debate on if the bid-winning notice is the commitment in the meaning of “Contract Law” and give rise to the formation of the contract, the act of damaging bid after the bid-winning notice had issued should bear what responsibility never cease. The court make mistakes on this issue are not uncommon. Through in-depth analysis on bid-winning notice, I think bid-winning notice is the commitment in the meaning of “Contract Law”. The tendere’ saction of issuing the bid-winning notice give rise the legal effect of the formation of the contract.

I think the bidders have fair competition interests or trust-benefits during Tendering stage. The bid winners have expectant interests after the issue of the bid-winning notice. The tenderee must undertake contracting negligence responsibility (Before the issue of the bid-winning notice,) and breach of contract responsibility (after the issue of the bid-winning notice) for their illegal administrative activities. The mark of dividing contracting negligence responsibility or breach of contract responsibility is the issue of the bid-winning notice (Not obtain the condition of invalid bid). As “invite public bidding bids law” has the attribute of administrative procedure law, the stipulation of the protection of bidder’s interest in the law doesn’t have the feasibility. And some items only stipulate the bidder’s obligation but don’t stipulate the civil liability for violation of civil responsibility. The issue of the protection of potential tenderers’ fair competition interests is always neglected by the theoretical boundary and the judicial practice and don’t have referential theory and judicial precedent. I think the protection of potential tenderers’ fair competition interests; social benefit is higher than the injured persons’ interests. If the injured persons have sufficient legal basis to take judicial proceedings, sink or swim, it can produce favorable social effect, reduce the illegal activities, and promote the social equity and justice.

Through comparison analysis on the solution mechanism and civil liability provisions of invite public bidding bids dispute, combing some related cases, analyze the protect profits’ legal basis and the feasible way when the tenderers’ fair competition interests, trust-benefits, expectant interests are harmed under the current conditions.

Through the analysis, I have found out the weak points, proposed the suggestion of uniformly accept bidding complaints and the legislative proposal to draw up the compensation range and the minimum compensation standard for violating “invite public bidding bids law”. I think the “invite public bidding bids law enforcement regulation” still focus on guaranteeing the openness, fairness and justness in the bidding activities by administration means, without adopting the way that give operators the statutory rights to strengthen the supervision. Enforcement regulation on the stipulation of civil responsibility almost has any progress. The research of the protection of bidder’s interest has far-reaching social and practical significance. The paper is for purpose of casting a brick to attract jade, hoping this thesis can arouse the attention of other researchers. If through the intensive research can make supreme people’s court issue corresponding juridical interpretations for “invite public bidding bids law”, it will contribute enormously to the uniform of trial standards, ensure the security of the trade means of invite public bidding bids, protect the legal benefits of the bidders.