Abstract: The owner invited tenders to manufacture two 50-ton tower cranes. The tender documents include 98 pages of technical specifications, which specify the design requirements in detail. After reading 2-3 pages and understanding the main requirements, the person in charge of the bidder thinks that the required tower crane belongs to the light tower crane of the bidder company, and only the corresponding tower crane of the bidder company needs to be modified. In fact, the last 90 pages have more details about tower cranes, not light tower cranes at all, but heavy tower cranes. The bidder's bid was less than $4 million, while the second lowest bid was over $7 million. Because the gap is too big, the owner asks the bidder to confirm his quotation. The bidder confirmed the bid price in writing. The owner was still uneasy about the confirmation, and held a meeting before winning the bid to further confirm whether the bidder understood the requirements of the technical specifications and could complete the requirements. The owner asked the bidder to provide cost analysis data, but the bidder did not provide it. However, it claims that there are no other errors except a trivial error, which has no influence on the total quotation. Considering that the bidder has repeatedly promised to perform the contract in accordance with the requirements of technical specifications, the owner awarded the contract to the bidder.

During the preliminary design, the owner realized that there was a performance problem and decided to hold a meeting to discuss it. At this time, bidders can find a huge difference in prices.

The bidder requests to modify the contract, extend the construction period and increase the cost. The bidder believes that if the contract price deviates far from the actual cost due to the mistakes of both parties, then the owner has no right to require the bidder to perform the contract; If the owner insists on fulfilling the contract, it is necessary to make a fair adjustment to the contract price and construction period so that the contract price reflects the cost. [ 1]

Key words: bidding stage, contract management, bidding documents.

Audit the tender documents, first of all, audit whether the tender documents conform to the principle of signing construction contracts, and whether they conform to the relevant laws, regulations and provisions of the state. Only in this way can bidders be guaranteed to bid fairly, justly, competitively and orderly. Secondly, it is necessary to review its contents to ensure that the enterprise's own conditions can meet the needs of the bidding documents and ensure that the bidding documents respond to the bidding requirements. Clarify the unclear places. Clarification documents, meeting minutes, other supplementary documents and subsequent bid-winning notice of the bidder will all become an integral part of the contract, but the most important thing is to review and analyze the contract conditions in the bidding documents. [2]

With the gradual improvement of bidding management, the owner listed the contract terms in the bidding documents at the bidding stage. This is good for bidders, but it also has disadvantages. The advantage is to know the contract situation when bidding, which is convenient for the preparation of bidding price and bidding strategy; The disadvantage is that the current construction market is basically a buyer's market. Some owners, by virtue of their own position and advantages, have set up obviously unfair clauses in the contract that obviously aggravate the contractor's responsibilities, exempt themselves from their responsibilities and exclude the contractor's main rights. Therefore, it is necessary for the tendering units to carefully review and analyze the contract terms, so as to have a clear idea to determine the bidding strategy. A construction contract generally consists of eleven parts, namely: definitions of words and contract documents, general rights and obligations of both parties, construction organization design and construction period, quality and inspection, safe construction, contract price and payment, materials and equipment supply, engineering change, completion acceptance and settlement, claims and breach of contract disputes, and other clauses. As the saying goes, a contract is no small matter. If the audit fails on the one hand, it may bring hidden dangers to future construction. Therefore, we should review these terms one by one.

1. Definition of words and contract documents. The focus is on the interpretation order of contract documents, applicable languages and laws, standards and specifications used, supervision units and drawings. The order of interpretation of contract documents has a great influence on the construction process, and generally should be: this contract agreement, bid-winning notice, tender and its attachments, special contract terms, general contract terms, bidding documents, standards and specifications, relevant technical documents, drawings, bill of quantities, project quotation or budget. The explanation sequence must be adhered to, otherwise the construction will be very passive if similar problems occur.

2. General rights and obligations of both parties. This paper mainly examines whether the employer has the advantages and status of drafting the tender documents by himself, and sets up obvious unfair clauses in the contract that obviously aggravate the contractor's responsibilities, exempt himself from responsibilities and exclude the contractor's main rights. If so, it can be put forward in the tender clarification stage. If the employer is tough, the contractor should consider the corresponding increase in expenses caused by these unfair factors and how to avoid risks.

3. Construction organization design and construction period. Generally speaking, the contractor should consider advancing the construction period, because the owner can get extra points when bidding, but first of all, it is necessary to analyze whether the construction period in the bidding documents is reasonable and whether there is a vicious compression of the construction period because the owner wants to catch up with the progress. If this phenomenon exists, it is necessary to consider a series of problems such as rushing to work, increasing the deployment of personnel and equipment, and accommodation. In addition, the owner will provide a preliminary progress plan in the bidding documents, and the contractor should not only refine it when bidding, but also pay attention to the requirements of the arrival plan for the drawings, materials and equipment supplied by the owner, so as to create conditions for future time limit and cost claims.

4. Quality and inspection. In this regard, the contractor should pay attention to two points: first, the provisions on intermediate acceptance and re-inspection of concealed works; On the other hand, pay attention to whether the contents of the project trial run are clearly stipulated in the tender documents and whether the project trial run is included in the bill of quantities, because in general, the contractor is responsible for the single-machine no-load trial run and the developer is responsible for the no-load linkage trial run, and the contractor does not bear any expenses.

5. Safe construction. Mainly depends on what standards are adopted and whether the requirements are strict. Because of the different standards and requirements, the quotation will be very different.

6. Contract price and payment. We should mainly focus on the way to determine the contract price. At present, the contract price is mainly based on fixed unit price, especially fixed comprehensive unit price, so it is particularly important to determine the level of comprehensive unit price when quoting. For the fixed lump sum contract, the contractor's risk is relatively large, so it is necessary to stipulate the scope of risk included in the contract price and the calculation method of risk cost in the contract. The contract price adjustment beyond the risk scope should also be agreed in the contract.

7. Supply of materials and equipment. In this regard, an agreement should be reached on the contents of materials and equipment provided by the employer. In general, the employer shall provide a list of materials and equipment supplied by it, including varieties, specifications, arrival place, supply quantity, supply time, etc. Sometimes Party A requires Party B to put forward the materials and equipment provided by Party A in the tender documents, so that Party B should also specify the detailed requirements such as the arrival time. The contract shall stipulate the settlement method when the unit price, specification, variety, location, time and quantity of materials and equipment supplied by Party A do not conform to the list during the execution of the contract, and shall also provide the settlement method of materials and equipment supplied by Party A..

8. Engineering changes. Mainly depends on the provisions of the tender documents and contract conditions. If there is any design change, it is a change limited by the price range, or as long as there is any change, Party A will pay the change price. If so, the bid price can be appropriately reduced; On the contrary, if Party A stipulates that all changes in this contract are excluded, the bid price will be relatively high in order to avoid risks.

9. Completion acceptance and settlement. The employer shall stipulate in the contract conditions the detailed requirements for the contractor to provide specific completion data, such as whether the number of copies of the as-built drawings meets the normal requirements, so as to avoid the event that the owner delays the acceptance without compensating the contractor. At the same time, the time range of completion settlement and the settlement method of delayed settlement by both parties should be specifically agreed to avoid increasing the financial expenses and other expenses of the contractor due to the intentional delay of settlement by the owner.

10. Breach of contract, claims and disputes. Mainly depends on whether the provisions of the liability for breach of contract that both parties should bear are fair and just. If the Employer does not make any compensation for its breach of contract, the bid price shall properly consider the influence of this factor. There is also whether the contract gives a formal claim procedure, and the contractor should consciously look for potential claim points when reviewing the bidding documents and contract terms, because with the improvement of management level, claim has become a major source of profit for the contractor.

1 1. Others. Mainly depends on the employer's requirements for engineering subcontracting and engineering insurance. If the employer allows subcontracting and the contractor has work to subcontract, the information of subcontractors shall be listed in detail in the bidding documents for the employer's review. For engineering insurance, accidental injury insurance is compulsory for employees engaged in dangerous operations at present, and all risks of construction and installation and third party liability insurance are not compulsory. If the owner stipulates in the contract that the contractor shall be responsible, the contractor shall include the insurance premium in the quotation. [3]

The court in this case held that the bidder only read part of the technical specifications, and the bid based on part of the technical specifications was misjudged, not misreading the technical specifications, so it rejected the bidder's claim to modify or terminate the contract.

Lawyer's comment: The bidder and the winning bidder have signed a construction contract, and the bidder requests to amend the contract at this time. The behavior of both parties is regulated by the contract law. According to Article 54 of the Contract Law, if a contract is concluded due to a major misunderstanding, one party has the right to request the people's court or an arbitration institution to modify or cancel it. The people's court or arbitration institution shall not revoke the request of the parties. Why does one party have the right to change or cancel a contract concluded due to a major misunderstanding? Because from the perspective of civil law theory, one of the effective elements of the establishment of civil acts is the expression of true will. The expression of will made by the parties due to major misunderstanding is obviously not their true expression of will, so their so-called civil acts lack the premise of effectiveness. However, the right to change or cancel must be exercised through the court. What is a "major misunderstanding"? It refers to the behavior that one party concludes a contract because of his own fault, which leads to misunderstanding of the contract content. Elements of a major misunderstanding: (1) The misunderstood party expresses its intention because of misunderstanding. (2) The misunderstood party has a serious misunderstanding about the nature of the contract, the identity of the parties, the situation of the subject matter, the price or remuneration, etc. (3) The misunderstanding is caused by the fault of the misunderstood party, not by the deception or improper influence of the other party. Accordingly, although the bidder misunderstood the bidding documents due to his own fault, this behavior still falls within the scope of major misunderstanding in the contract law. However, if the bidder requests to change the contract, whether to change it depends on the court's discretion. According to the principle of fairness, the fault lies with the bidder and the tenderer. If the court changes the contract, it is obviously unfair to the tenderer's construction unit. If the tenderer requests to terminate the contract, this lawyer believes that the court's decision to terminate the contract can better reflect the spirit of civil law. The consequences of the termination of the contract shall conform to the provisions of Article 58 of the Contract Law. "After the contract is invalid or cancelled, the property acquired as a result of the contract shall be returned; If it is impossible or unnecessary to return it, it shall be compensated at a discount. The party at fault shall compensate the other party for the losses suffered as a result. If both parties are at fault, they shall bear their respective responsibilities. Therefore, as a faulty bidder, it should compensate all the losses caused to the tenderee.

Therefore, the main work of contract management in the bidding stage is to review the contract conditions. Because many domestic companies have not adopted a common contract text, the contract terms drafted by employers are not the same. Therefore, the focus of each employer may be different. It is necessary for bidders and contract signing personnel to carefully review each bidding document and its contract terms, accumulate experience, strengthen the study and training of relevant contract laws and regulations, clarify the rights and obligations of both parties, improve contract awareness, make the contract truly a "amulet" of their own interests, reduce the occurrence of contract disputes, and effectively guide future quotation, contract signing and contract execution. This will get twice the result with half the effort.

[1] Case 10 "The contractor bids without reading all the bidding documents" in the case analysis folder of engineering construction bidding.

[2] Jiang Chuanhui, Project Cost Management, Jiangxi University Press, 2005.

[3], Ma Xiujian, Guide to Bidding for Construction Projects, Jiangxi Science and Technology Press, 2000.3.