Free possession of property overlord clause

From the analysis of contract law, the clause that "the bidding scheme is owned by the tenderer or used free of charge" stipulated by the tenderer in the bidding documents has no legal effect on the unsuccessful bidder. From the analysis of intellectual property law, the intellectual property rights of bidding documents should be enjoyed by bidders according to law. From the perspective of economic analysis, the purpose of bidding for construction projects is to maximize investment benefits and optimize project quality. In the bidding of construction projects, the intellectual property rights of bidders should be fully respected and reasonably protected to stimulate technological innovation. I. Contents and legal nature of bidding documents, bidding documents and bid-winning notice In the bidding process, three legal documents are inevitably involved: bidding documents, bidding documents and bid-winning notice, which are closely related and indispensable. 1, the content and legal nature of the tender documents Article 19 of the Bidding Law stipulates that the tenderer shall prepare the tender documents according to the characteristics and needs of the project subject to tender. The tender documents shall include all substantive requirements and conditions such as the technical requirements of the project subject to tender, the standards for qualification examination of bidders, the requirements for bid quotation and evaluation criteria, and the main terms of the contract to be signed. Article 15 of the Measures for Bidding and Bidding of Survey and Design of Engineering Construction Projects stipulates that the bidding documents for survey and design shall include the following contents: instructions for bidding; The format of the bidding documents and the main contract terms; Description of the project, including the source of funds; The scope of survey and design, as well as the requirements for the progress, stages and depth of survey and design; Basic data of survey and design; The payment method of survey and design fees, and whether to give compensation and compensation standards to unsuccessful bidders; Bid quotation requirements; Criteria for qualification examination of bidders; Criteria and methods for bid evaluation; Validity of bidding. Article 24 of the Measures for Bidding and Tendering of Construction Projects stipulates that construction bidding documents generally include the following contents: an invitation to bid; Instructions to bidders; The main terms of the contract; Format of bidding documents; The bill of quantities shall be provided when bidding; Technical terms; Design drawings; Criteria and methods for bid evaluation; Auxiliary materials for bidding. It can be seen that the content of the tender documents is comprehensive, and its purpose is to clearly express the bidding intention, provide relevant information to potential bidders, and put forward substantive requirements and conditions. According to Article 15 of the Contract Law, the tender documents belong to the legal documents of invitation to offer stipulated in the Contract Law of our country. That is, the tender documents as an invitation to offer are mainly to attract the other party to make an offer, that is, to attract bids. The tender documents only express the intention of others to make an offer to themselves, and are not legally binding. However, due to the particularity of bidding, bidding must meet the substantive requirements and conditions specified in the bidding documents. Therefore, once the bidder wins the bid, the tenderer and the winning bidder shall conclude a written contract according to the bidding documents and the winning bidder's bidding documents (Article 46 of the Bidding Law). It can be seen that the tender documents belong to the invitation to offer in legal nature, which is not binding on the bidder, but legally binding on the tenderer and the winning bidder. 2. Content and legal nature of bidding documents Article 27 of the Bidding Law stipulates that bidders shall prepare bidding documents in accordance with the requirements of the bidding documents, and the bidding documents shall respond to the substantive requirements and conditions put forward in the bidding documents. Article 36 of the Measures for Bidding and Tendering of Construction Projects stipulates that the construction bidding documents generally include the following contents: a tender letter; Bid quotation; Construction organization design; Business and technical deviation table. The bidding documents of engineering construction projects are the clear and specific quotations, project progress, survey and design or construction technical schemes made by bidders according to the substantive requirements and conditions put forward in the bidding documents. As long as the tenderer accepts it, the bidder must undertake the project subject to tender according to the contents of its bidding documents. Therefore, the bidding documents belong to the bidder's offer in legal nature. 3. The legal nature of the letter of acceptance After the bid opening and evaluation, the tenderer shall issue a letter of acceptance to the winning bidder and notify all bidders who have not won the bid. The bid-winning notice is a kind of commitment in legal nature. Article 21 of the Contract Law stipulates that acceptance is an expression of the intention of the offeree to agree to an offer. The tenderer's acceptance of the bidding conditions put forward by the bidder means acceptance of its quotation, which constitutes a commitment. According to the contract law, the acceptance takes effect when it reaches the offeror, and once the acceptance takes effect, the contract is established. Therefore, Article 45 of the Bidding Law clearly stipulates: "The bid-winning notice has legal effect on the tenderer and the winning bidder. After the bid-winning notice is issued, if the tenderer changes the bid-winning result, or if the winning bidder abandons the bid-winning project, it shall bear legal responsibility according to law. " Second, the contract law analysis of the "overlord clause" Article 15 of China's "Contract Law" clearly stipulates that the tender documents belong to the invitation to offer, and the invitation to offer is not legally binding. Therefore, the so-called "overlord clause" in the tender documents of the tenderer is not legally binding on the bidder, that is, the tenderer owns the bidding scheme of the unsuccessful bidder or uses it for free according to this clause, which lacks legal basis. Of course, according to Article 46 of the Bidding Law, the tenderer and the winning bidder shall conclude a written contract in accordance with the bidding documents and the bidding documents of the winning bidder. After the bidder wins the bid, the bidding documents are legally binding on the winning bidder, and the bidding scheme agreed in the "overlord clause" is owned by the tenderer or used free of charge, which is valid according to law. Of course, the tender documents are only an invitation for bidders to conclude a construction project contract, which does not mean that they cannot be an offer for other contracts. We can think that the contract to conclude a specific construction project contract is first established between bidders. In the process of concluding the contract, the tender documents should belong to the offer and the promise, that is, the tender documents should become the contents of the contract. However, not all established contracts are valid. Obviously, the "overlord clause" in the bidding documents belongs to the format clause stipulated in Article 39 of the Contract Law, which was drawn up by the tenderer in advance for reuse, without consulting the other party when concluding the contract. Article 39 of the Contract Law clearly stipulates that "if a contract is concluded by standard terms, the party providing the standard terms shall follow the principle of fairness to determine the rights and obligations between the parties, and take reasonable measures to draw the attention of the other party to the terms exempting or limiting its liability, and explain the terms according to the requirements of the other party." Article 40 of the Contract Law further clearly stipulates that "... if the party providing the standard clause exempts its liability, aggravates the other party's liability or excludes the other party's main rights, the clause is invalid." It is stipulated in the tender documents that "whether the bid is won or not, the bidding scheme shall be owned by the tenderer or used free of charge", which is a format clause concluded by the tenderer by taking advantage of its dominant position, which will inevitably lead to the unsuccessful bidder only taking responsibility and not enjoying rights, obviously aggravating the bidder's responsibility, and even excluding the bidder's main rights and exempting the tenderer from responsibility. Obviously unfair, a serious violation of the principle of fairness. According to the contract law, this clause is invalid from the beginning. Three. Intellectual Property Law Analysis of Bidding Documents Bidding documents are documents completed by bidders in response to the substantive requirements and conditions put forward in the bidding documents. Undoubtedly, the tender documents are the intellectual achievements that condense the wisdom of bidders, and the intellectual property rights enjoyed by bidders should be fully respected and protected. Judging from the forms of expression of the tender documents, the tender documents themselves are works in the sense of copyright law, and their written expressions belong to written works, engineering design drawings belong to graphic works and engineering models belong to model works. According to the principle of automatic acquisition of copyright in copyright law, the copyright of a work is automatically generated with the completion of the creation of the work without any formalities. Moreover, the bidding documents are independently completed by the bidder and do not form any cooperative relationship with the tenderer. Therefore, once the tender documents are created, the bidder shall enjoy the copyright stipulated in the Copyright Law, and no one may publish, modify or copy the tender documents without the permission of the bidder. The behavior of the tenderer to copy, disclose and provide the bidding documents of the unsuccessful bidder for modification infringes the copyright (the right to copy, publish and modify, etc.). ) shall be enjoyed by the unsuccessful bidder according to law. Judging from the contents of the tender documents, its core is the technical scheme. Technical scheme is the key to measure the quality of bidders' bidding, and it also reflects the competitiveness of bidders. Therefore, in order to win the bid, the bidder will make every effort to formulate the technical scheme. The technical scheme is either an innovative technical scheme, or the bidder's existing technical achievements (patented technology or technical secrets), or a combination of the two. Obviously, the bidder has the patent right to the patented technology in the technical scheme, and no one may implement the patented technology without its permission; The bidder has the right to know the existing technical secrets in the technical scheme (that is, the right to know the commercial secrets), and the tenderer shall not disclose, use or allow others to use the technical secrets without the permission of the tenderer. For innovative technical solutions, the right to apply for a patent and the authorized patent right belong to the bidder. An innovative technical scheme that has not been patented or granted a patent right, if it meets the conditions of confidentiality, economic practicability and keeping business secrets, also constitutes the technical secret of the bidder. Without its permission, the tenderer shall not disclose, use or allow others to use the technical scheme. Without the bidder's permission, the tenderer will provide the unsuccessful technical scheme to the winning bidder, asking him to learn from the strengths of various companies and optimize the winning scheme. This behavior infringes on the business secret right or patent right of the unsuccessful bidder.