In case the bidding package is performed by a dependent accounting unit, the implementation plan must include a draft contract. In case the organization directly managing and using a bidding package does not have a dependent accounting unit, the implementation plan must include a draft agreement on assigning it to an affiliated unit for implementation. In the process of implementing self-executing bidding packages, the unit of Mr. Huynh Quang (in Da Nang) encountered a number of problems with the self-implementation process as follows: In Clause 3, Article 62 of the Government's Decree No. 63/2014 / ND-CP stipulates: "3. Signing of a contract or assignment agreement: The organization that directly manages and uses the bidding package shall sign a contract with dependent units or sign an assignment agreement with the assigned unit to perform the bidding package by itself ".
However, according to Article 385 of Civil Code 2015on the concept of a contract, "Contract is an agreement between parties on the establishment, change or termination of civil rights and obligations".
Besides, in Article 117 of this Law, "Conditions of validity of civil transactions are also provided:
1. A civil transaction takes effect when it fully satisfies the following conditions:
a) The subject has civil legal capacity, civil act capacity appropriate to the established civil transaction;
b) Subjects participating in civil transactions are completely voluntary;
c) The purpose and contents of a civil transaction do not violate prohibitions of the law, nor are it contrary to social morality.
2. Form of a civil transaction is an effective condition of a civil transaction if it is provided for by law ".
Compared with Clause 1, Article 84 of the 2015 Civil Code, "1. A branch or representative office is a dependent unit of a juridical person, not a legal entity".
From the above bases, the enterprise and its branches are not two parties (because the enterprise branch has no legal status) to enter into the contract as prescribed by law, or In case of assignment agreement, its nature is also a name of the contract. As a result, when signed, the basic contract will be invalidated according to Article 122 of the 2015 Civil Code.
Article 122. Invalidity of civil transactions:
A civil transaction without one of the conditions specified in Article 117 of this Code shall be invalid, unless otherwise provided for by this Code. "
Mr. Quang would like to ask, is the contract signed between the company and his branch in case of self-implementation of the bidding package in accordance with the law?
The Ministry of Planning and Investment answers this issue as follows:
According to Article 61 of the Government's Decree No. 63/2014 / ND-CP, conditions for applying the form of self-implementation include:
- The licensed business lines are suitable for the contract requirements;
- The ability to mobilize manpower and equipment to ensure punctuality must be proven in the self-supply plan;
- The unit appointed to perform the contract must not transfer any part thereof if its value is 10% of the contract value or higher than VND 50 billion, whichever comes first.
If the bidding package is performed by a dependent accounting unit, the implementation plan must include a draft contract. In case the organization directly managing and using a bidding package does not have a dependent accounting unit, the implementation plan must include a draft agreement on assigning it to an affiliated unit for implementation.
Accordingly, self-realization is applied in accordance with the above provisions.
According to Chinhphu.vn