Audit thinking about the inconsistent issues of the construction contract and the bidding documents

With the continuous advancement of investment audit transformation, local audit organs focus on government work centers, focus on major investment projects, conduct in -depth final account audits, and achieve better results. However, the author found that during the audit process, the problem of inconsistency between the construction contract and the bidding documents were often encountered, and it was often closely related to the settlement price and caused greater controversy. The following author combines the audit work practice to talk about his personal point of view.

1. The composition and interpretation order of the construction contract document

According to the "Construction Engineering Construction Contract (Demonstration Text)" (GF-2017-0201) (hereinafter referred to as the "Demonstration Text"), in addition to the provisions of the special contract terms, the composition and interpretation order of the construction contract documents is as follows: (1) Contracts Agreement; (2) notice of bidding (if yes); (3) bidding letter and its appendix (if there are); (4) dedicated contract terms and its attachments; (5) general contract terms; (6) technical standards and technical standards and technical standards and technical standards and technical standards and technical standards and technical standards and technical standards and technical standards and Requirements; (7) drawings; (8) list of price project quantities or budget books; (9) other contract documents. The above contract documents, including the supplementary and modification of the contracting parties to the contract documents, belong to the documents of the same type of content, shall be subject to the latest signing. The documents related to the contract formed during the contract for the contract and the performance of the contract form a part of the contract document, and determine the order of the preferred interpretation according to its nature.

It is worth noting that the "Demonstration Text" is not a compulsory use of text. The situation shall be established in accordance with the "Demonstration Text", and shall bear the corresponding legal liability and contract rights and obligations in accordance with the provisions of laws and regulations and the contract.

Second, the legal status of the bidding documents

As an important basis for engineering settlement, the bidding documents have always been the focus of engineering audit attention. At present, the industry generally believes that it is not part of the construction contract. First, in the composition of the contract document in the "Demonstration Text", the bidding documents are not listed, resulting in the bidding documents when signing the contract. It aims to invite relevant units that meet the qualifications to issue offer offers to the construction unit, and it does not have legal binding power.

The author believes that first of all, the "Demonstration Text" is not a compulsory provision of the law. According to Article 12 of the Contract Law of the People's Republic of China: "The content of the contract shall be agreed by the parties ... "Demonstration Text" does not limit the parties to the parties to agree on the bidding documents in the contract as part of the contract document.

Secondly, although the industry is currently an offer to the bidding documents or invites, there are still controversy, but according to Article 46 of the "Tendering and Bidding Law of the People's Republic of China": "The bidder and the winning bidder shall Within 30 days, a written contract is concluded in accordance with the bidding documents and the bidding documents of the winner. If the contract is entered into a contract in accordance with the bidding documents and the bidder of the bidder, or the bidder or the winner of the bidder will establish an agreement to set the deionship of the substantive content of the contract, it shall be ordered to make corrections; it may be fined for more than 5 thousandths of the bid projects. "The construction contract can be regarded as the continuation of the bidding documents. The essence of the essence should be consistent with the bidding documents, and it is constrained by the mandatory regulations of law.

Third, the audit response to the conflict between the two

It must be pointed out that the project is a long -term process from bidding and bidding to the contract for contracting, and then completion acceptance. The construction project often has the characteristics of wide professional, influencing factors, and unpredictable. In the process, it is normal and necessary to further refine and improve the construction contract.

The author believes that when the construction contract conflicts with the bidding documents, if the project price, engineering period, and engineering quality are involved, the bidding documents shall be subject to the bidding documents; if the non -real content is involved, the construction contract shall prevail. The relevant legal basis is as follows:

According to Article 52 of the Contract Law of the People's Republic of China: "If one of the following circumstances, the contract is invalid: (1) one party seizes contracts with fraud and coercion to harm national interests; , Collective or third party interests; (3) covering illegal purposes in legal forms; (4) harming social public interests; (5) compulsory regulations that violate laws and administrative regulations. "When the construction contract violates the substantial content of the bidding documents At the time, it is invalid due to the provisions of Article 46 of the Law of the People's Republic of China.

According to the "Interpretation of Legal Issues of the Supreme People's Court on Trial Construction Project Construction Contract Disputes (2)": "Construction contracts signed by the parties and the scope of engineering scope of the projects, bidding documents, and bid notice stated in the bidding documents, bidding documents, and bid notices The construction period, engineering quality, and engineering price are inconsistent. If one party requests to use the bidding documents, bidding documents, and bid notices as the basis for the settlement of the settlement project price, the people's court shall support If the parties request to use the bidding documents as the basis for the setting price of the settlement project, they shall be supported.

Source: Hubei Province Xiaoye City Audit Bureau

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