The legal basis of performance bond, the performance bond is mainly to better urge both parties to conclude a contract and stipulate their respective obligations, so as to facilitate the implementation of the main contents of the contract and the projects pursued by both parties. Let's look at the legal basis of the performance bond.
Legal basis of performance bond 1 1. Legal provisions of performance bond
Article 46 of the Bidding Law stipulates: "If the bidding documents require the winning bidder to submit a performance bond, the winning bidder shall submit it".
Article 55 of the Regulations for the Implementation of the Bidding Law stipulates: Article 55 of the Regulations for the Implementation of the Bidding Law stipulates that
Article 58 of the Regulations stipulates: "If the tender documents require the winning bidder to submit a performance bond, the winning bidder shall submit it in accordance with the requirements of the tender documents. The performance bond shall not exceed 10% of the winning contract amount ". It can be seen that the performance bond is a special guarantee method stipulated in the Bidding Law, which should be applied to the bidding field, but neither the Bidding Law nor the Regulations for the Implementation of the Bidding Law stipulates the nature and definition of the performance bond.
Article 85 of the Measures for the Administration of Bidding for Construction Projects (Order No.30) and Article 59 of the Measures for the Administration of Bidding for Construction Projects (Order No.27) jointly issued by the National Development and Reform Commission and other seven ministries and commissions clearly stipulate that "if a tenderer fails to perform the contract concluded with the winning bidder, it shall double the performance bond of the winning bidder; If the losses caused to the winning bidder exceed the returned performance bond, compensation shall also be made for the excess;
If the performance bond is not submitted, it shall be liable for the losses of the winning bidder. If the contract cannot be performed due to force majeure, the provisions of the preceding paragraph shall not apply. These two provisions essentially equate the performance bond with the deposit. Because the Measures for the Administration of Tendering and Bidding for Construction Projects and the Measures for the Administration of Tendering and Bidding for Construction Goods belong to departmental regulations, their effectiveness is at a lower level and they can only be applied in the process of bidding and bidding for construction projects and goods.
However, in real life, there is often an agreement on the performance bond in the contract of the parties, and the scope of application is not limited to the bidding field. Some contracts even stipulate deposit, liquidated damages and performance bond. After a contract dispute, how to apply the performance bond and how to define the relationship among performance bond, deposit and liquidated damages is a very realistic problem, especially for the court's judgment.
Second, the nature and significance of the performance bond
Regarding the nature of the performance bond, some people think that it is essentially a performance bond or a default bond, but it is still quite different from the bond. First, the penalty for the deposit is very clear and rigid, that is, the party who pays the deposit cannot ask the other party to return the deposit in case of breach of contract, while the party who receives the deposit will double the deposit in case of breach of contract.
However, the performance bond has great freedom. For example, Party A and Party B sign a sales contract, and Party B supplies the goods to Party A four times. Three months after the completion of the four times, Party A pays the payment to Party B, but the contract stipulates that 10% of the total payment shall be taken as the performance bond of Party B. If Party B delays delivery once, Party A will deduct 25% of the performance bond, and Party B will delay delivery twice, and Party A will deduct 50% of the performance bond.
If Party B delays the delivery for three times, Party A will deduct 75% of the performance bond. If Party B delays the delivery for four times, Party A will deduct all the performance bond. From this case, we can see that the application freedom of performance bond is great, depending on the agreement of both parties and the corresponding market position, and it is flexible compared with the rigid provisions of deposit.
In this case, both parties may agree to use part of the payable amount as the performance bond, or agree that Party B shall pay a certain amount to Party A first as the performance bond, or even agree that Party A shall pay part of the money to Party B as the performance bond or both parties shall pay the performance bond to each other. It can be seen that the performance bond is flexible and changeable, and it is a flexible contract debt guarantee method to adapt to the active and changeable market.
Legal basis of performance bond 2 I. Provisions on the proportion of performance bond
The proportion is generally 5%-25%, and it is generally 10% in China. Performance bond: Performance bond is a kind of financial guarantee for both buyers and sellers to ensure performance.
Traders in the futures market must deposit a certain amount of performance bond when trading. The amount of bonds is set by the exchange that provides contract transactions, usually 5- 15% of the total contract value. Of course, brokers or entrusted brokers will also set an additional margin on their own, which will not be lower than the level set by the exchange.
The performance bond emphasizes the protection of the interests of the tenderer or investors, which can be shared by the winning contractor and the third party, provided that the tenderer recognizes that the party is effective and the third party bears joint and several liabilities, so it is replaceable.
The performance bond is independent and must be collected, stored, executed and returned by institutions recognized by both parties.
Second, the performance bond collection standard
The performance bond collection standard should follow several principles:
First, the amount of performance bond is greater than the amount of contract advance payment to avoid possible risks;
Second, the amount of performance bond should be equal to or slightly higher than the bid bond. Projects with high technical content and unable to perform on time will bring huge losses to the purchaser, and the amount of performance bond should be appropriately increased;
Thirdly, the determination of the amount of performance bond should be related to the contract payment terms, and it is preliminarily assumed that the relationship between them should be inversely proportional, that is, when the installment payment terms are beneficial to suppliers, the performance bond should be overcharged, and vice versa.
Legal basis of performance bond 3 I. Provisions on the refund of performance bond
In general, the contractor can return it after completing the contract-related matters. However, if the unit requires to pay the repair or maintenance deposit, the refund time should be after the repair or maintenance deposit is completed.
In addition, we should also pay attention to the collection form of performance bond. If a bank guarantee is adopted, it is necessary to pay attention to whether the validity period of the guarantee is consistent with the contract period, so as to avoid the situation that the guarantee has expired but the contract period has not expired.
Characteristics of performance bond
first
The tenderer must clearly stipulate in the tender documents that this clause is only valid if the winning bidder submits the performance bond. If it is not clearly stipulated in the tender documents, it shall not be added after winning the bid. This maintains the authenticity of the tender offer and the rights and interests of bidders, and the project tenderer can choose whether to bid for the project according to his own conditions. Therefore, the performance bond is selective.
second
Performance bond is different from deposit. The purpose of the performance bond is to ensure that the contractor fully performs the contract, mainly to ensure that the construction period and quality meet the contract requirements. When the contractor successfully performs its obligations, the tenderer must return it to the contractor in full. The function of the performance bond is to compensate the losses of the tenderee when the contractor breaches the contract, that is, if the contractor breaches the contract, he will lose the right to recover the performance bond, but it is not limited to this.
The content that is agreed to be returned twice or has the unique attribute of deposit is the deposit if it meets the requirements of deposit law; If the word "deposit" does not appear, and there is no clear agreement on the application of liquidated damages in the nature of deposit, then the performance bond already paid is not a deposit, but other monetary pledges.
If the performance bond is agreed but not paid, the agreement on the performance bond is established but does not take legal effect (because the pledge contract is also a practical contract, and the effective condition must be delivery).
third
The performance bond emphasizes the protection of the interests of the tenderer or investors, which can be shared by the winning contractor and the third party, provided that the tenderer recognizes that the party is effective and the third party bears joint and several liabilities, so it is replaceable. When the winning bidder breaches the contract, the compensation liability of the winning bidder shall be borne by the third party.
In order to balance the interests of the tenderee and the winning bidder, Article 62 of the Measures for Bidding and Bidding of Construction Projects, which was formally implemented by seven ministries and commissions on March 8, 2003, stipulates: "If the tenderee requires the winning bidder to submit a performance bond or other forms of performance guarantee, the tenderee shall also provide the winning bidder with a guarantee for payment of the project funds."
fourth
The proportion of performance bond is specified, which is 5% ~ 10% of the project cost. The specific implementation ratio shall be determined by the tenderer according to the project cost. Generally speaking, the higher the project cost, the lower the proportion, so it is relatively fixed. The tenderer can't make wild speculations, but must act according to law.
fifth
The performance bond must be separated from the project cost and only used as compensation for the loss of the tenderer when the winning bidder breaches the contract. The tenderee must be a legal person with bidding ability, and its construction funds have been put in place, so the performance bond cannot be used as a supplement to the project cost. Therefore, the performance bond is independent and must be collected, kept, executed and returned by institutions recognized by both parties.