Hello, I am Attorney Eom Sang-yoon from Cheongchul Law Firm.

Today, we will look into whether the content of a bidding announcement can be included in the contract.

[Question]

After reviewing the content of the bidding announcement, I participated in the bid and concluded a contract, but later I found that the contract's content is different from the bidding announcement.

In such cases, can it be seen that the content of the bidding announcement is included in the contract terms?

[Answer]

The Supreme Court precedent states, "If a separate contract is made after the bidding and successful bid, the bidding announcement is merely an invitation to offer and does not constitute the content of the contract,” which means that the bidding announcement is not considered as part of the contract (74Da402).

As a reference, the establishment of contracts involving the state or local government is conditioned upon the creation of a written contract (Article 11 of the National Contract Act), so the contract is not formed immediately by determining the successful bidder through the bidding process; a separate contract execution act is necessary (94Da41454). Therefore, the determination of the successful bidder under the National Contract Act implies that a separate contract is to be concluded, which constitutes a reservation of contract rights according to case law.

However, the Supreme Court has ruled that, “Even if the determination of the successful bidder in the bidding procedure under the 'Law on Contracts with the State' is at a stage where a reservation has been established and the main contract has not yet been formed, the main contents and conditions of the contract, such as the subject matter, contract amount, and fulfillment period, have already been determined when the local government decides the successful bidder through the bidding announcement and the highest (or lowest) bidder's bid; therefore, exceeding the adjustment of contract details beyond this to change the main contents or conditions of the contract contrary to the bidding announcement or to add new conditions is contrary to the obligation to accept the established reservation and cannot be permitted unless special circumstances exist.” (2005Da41603). Thus, the successful bidder can demand the conclusion of the contract with the bid price as the contract amount as per the content and conditions of the bidding announcement.

In other words, it cannot be assumed that the content of the bidding announcement is necessarily included in the contract, but if the successful bidder points out a discrepancy between the content of the bidding announcement and the conditions of the proposed contract, demanding that the terms of the contract be the same as those in the bidding announcement, the bidder cannot refuse this. Therefore, it is necessary to carefully examine if there are any discrepancies with the bidding announcement in the main parts of the contract when drafting the contract.

Cheongchul Law Firm is a corporate-focused law firm established by attorneys from the four major law firms, providing comprehensive solutions for national contracts, public contracts, and bidding. If you have further inquiries, please feel free to contact us via email or phone.