招标投标合同成立问题之厘清

Clarification of the Establishment of Bidding Contracts

《招标投标法》第45条规定中标通知书对招标投标关系双方当事人具有法律效力,但是,由于本条对合同何时成立问题未有规定,导致理论上与实务上对此问题争议较大,大多以要约承诺规则套用于招投标合同中。《民法典合同编通则若干问题的解释》第4条似乎对该问题进行了解答,即中标通知书到达投标人时合同方为成立。但本条的理论基础仍有错误。《民法典》规定了以其他方式订立合同的方式,以竞争性缔约为典型。招标投标合同由于其特殊性,应当适用法典规定的以其他方式订立合同的规则,以承诺无须通知对方的意思实现方式订立合同。

Article 45 of the Tendering and Bidding Law stipulates that the notice of winning the bid has legal effect on both parties involved in the tendering and bidding relationship.However,because this article does not stipulate when the contract is established,there are a lot of disputes about this issue in theory and practice,and most of the offer and acceptance rules are used in the tendering and bidding contracts.Article 4 of the Interpretation of Several Issues on the General Provisions of Contracts in the Civil Code seems to answer this question,that is,the contract party is established when the notice of award reaches the bidder,but the theoretical basis of this article is still wrong.The Civil Code provides for other forms of contracting,typically competitive contracting.Due to its particularity,the bidding contract should apply the rules of other forms of contract stipulated in the code,and conclude the contract by means of the realization of the intention of the promise without notifying the other party.