In order to strengthen the management of signing contracts with municipal organs and institutions, and earnestly safeguard the legitimate rights and interests of organs, institutions and contract counterparts, the Measures for the Administration of Contracts for Administrative Units are formulated in accordance with relevant laws, regulations and rules.
Measures for contract management of administrative units 1 article 1 these measures are formulated in accordance with the contract law of People's Republic of China (PRC) and the administrative procedure regulations of Shandong province, combined with the actual situation of our county, in order to standardize the contract signing behavior of the county government and its administrative institutions, reduce the losses caused by improper contract signing and performance, and earnestly safeguard the legitimate rights and interests of the government and departments.
Article 2 These Measures shall apply to the contracts, agreements and other legal documents (hereinafter referred to as contracts) concluded by the administrative organs of our county with citizens, legal persons or other organizations when performing their duties, providing public services or engaging in civil legal acts.
The term "administrative institutions" as mentioned in these Measures refers to the county government and its subordinate administrative organs, institutions, agencies, directly affiliated institutions, development zone management committees and township people's governments.
Article 3 The contracts of administrative institutions mentioned in these Provisions mainly include the following types:
(1) Contracts for leasing, contracting, contracting and transferring state-owned land, beaches, waters, forests, barren hills, mines and other natural resources;
(2) Contracts for the construction, maintenance, leasing, contracting and sale of state-owned assets;
(3) administrative expropriation, requisition and entrustment contracts;
(4) Government procurement contracts;
(five) the government franchise contract;
(6) Policy credit contract;
(seven) scientific research and consulting contracts entrusted by administrative institutions;
(8) Investment contracts signed by administrative institutions;
(9) Loan contracts of administrative institutions;
(ten) family planning management contract;
(eleven) other contracts signed by administrative institutions.
Article 4 The legal institutions of the government and government departments are specifically responsible for the contract management of their own units.
Government departments should assist government legal institutions to manage government contracts.
Article 5 When an administrative institution signs a contract, it shall be clear that the undertaking department and the undertaking unit are specifically responsible for the negotiation, drafting and performance of the contract.
In a contract in which the county government is a party, the undertaking department refers to the relevant department specifically responsible for the preliminary work of the contract; In a contract in which the county government department is a party, the undertaking department refers to the office of the county government department.
Article 6 The main responsibilities of the contract undertaking department are:
(a) responsible for the investigation, evaluation and preliminary opinions of the contract project;
(two) to review the subject qualification, credit standing and performance ability of the other party to the contract;
(three) to be responsible for the negotiation and negotiation of the conclusion of the contract, and to draft and modify the contract text;
(four) the text of the contract and other information submitted to the legal institution of the department for legal review;
(five) the county government or the county government authorized or entrusted to sign the contract, should be promptly submitted to the legal institution of the county government for review;
(six) provide relevant materials according to the requirements of legal institutions, and cooperate with legal institutions to supervise and inspect the contract;
(seven) responsible for the performance of the contract, investigate and deal with disputes and problems found in the process of contract performance;
(eight) responsible for the negotiation, mediation, arbitration, litigation and other activities of contract disputes;
(nine) keep the contract texts and documents related to the performance, modification and dissolution of the contract, and be responsible for sorting and handing over according to the regulations.
Article 7 When concluding a contract, an administrative institution shall follow the principles of legality, fairness, good faith and consistency of rights and obligations.
Article 8 An administrative institution shall generally conclude a contract according to the following procedures:
(1) Market research. If it is necessary to conclude a contract, it shall conduct a market survey, form a written feasibility study report, put forward an invitation or offer according to the market situation of the subject matter of the contract and the specific requirements of the contract content, and report it to the person in charge of the unit for approval and sign an opinion.
(2) Credit investigation. The potential contracting party shall investigate and study its registration, shareholding structure, business performance, management level, financial status, industry reputation and past credit status. And form a written credit report and submit it to the person in charge of the unit for review.
(3) negotiation. For contracts with huge contract amount or complicated legal relationship, the person in charge of the unit and personnel with corresponding technical, economic and legal knowledge shall form a negotiation team or a bidding team.
(4) Drafting the contract text. Should be based on the provisions of relevant laws and regulations and the specific requirements of the contract content, to achieve clear objectives, complete content, complete terms, clear responsibilities, strict and standardized terms. Where the relevant departments of the state, province and municipal government have printed format contracts, the contents of the contracts shall be determined in accordance with the requirements of the format contracts.
(5) legality review. Before the contract is formally signed, it shall be submitted to the legal institution of the unit or organize relevant experts to review the legality. The contract shall not be signed without legal review or unqualified review.
Ninth key projects of the county government or projects involving national interests and social interests, and the contract amount is more than 5 million yuan, should be submitted to the legal institution of the county government for legal review before the contract is signed.
In the name of the county government or the county government office, the legal institution of the county government shall organize relevant experts to review the legality.
Article 10 The legality review shall be conducted in written form, and the submitting entity shall be responsible for the authenticity and completeness of the submitted materials. The submitting unit shall submit the following materials: the identity certificate of the parties to the contract; Credit certificates of both parties to the contract; Contract text and relevant legal documents.
Article 11 Where it is necessary to handle legal affairs such as examination and approval of matters involved in the contract, contract registration and filing or contract notarization, it shall be handled according to law or in accordance with the contract. Article 12 A contract shall generally have the following clauses:
(a) the name or name and domicile of the contract subject;
(2) Details of the subject matter of the contract or project;
(3) The rights and obligations of the parties to a contract;
(4) Time limit, place and method of performance;
(five) the calculation method of liability for breach of contract and compensation for losses;
(6) Conditions for alteration, rescission and termination of the contract;
(seven) the way to solve the contract dispute;
(8) conditions for entry into force and date of conclusion.
Thirteenth administrative institutions in the conclusion of the contract, prohibit the following acts:
(a) by fraud, coercion, malicious collusion and other illegal means to conclude a contract;
(two) beyond the scope of authority of administrative institutions to make commitments or mandatory provisions;
(three) using the contract to convert shares at a low price or transfer state-owned assets at a low price for free;
(four) the use of contracts, subcontracting, subcontracting, to seek illegal benefits;
(5) monopolizing business by contract, restricting competition and undermining the fair competition order in the market;
(six) in violation of the provisions of the "People's Republic of China (PRC) Guarantee Law", directly or indirectly provide guarantees for other economic organizations or individuals in the name of administrative organs;
(seven) other violations of laws, regulations, rules or the use of contracts to endanger the public interests of the state and society.
Article 14 When concluding a contract, an administrative organ shall pay attention to the following matters:
(a) a comprehensive understanding of the assets, qualifications, credit and performance ability of both parties to the contract; {Contract management system of administrative institutions}.
(2) When choosing the contract dispute settlement method, Linyi Arbitration Commission is preferred for arbitration, and China laws and arbitration rules are applicable to foreign-related contracts;
(3) The time limit for the performance of the contract shall be specified, and the contract modification and termination clauses shall be established. If it is difficult to perform the contract due to changes in national policies and laws, local planning adjustments, local major municipal engineering projects, etc., the contract will be unconditionally changed or terminated;
(four) involving the lease of state-owned assets, the contract period is not more than five years;
(five) involving state secrets and commercial secrets, should do a good job of confidentiality.
Fifteenth legal institutions of administrative institutions shall conduct legal review of the contract from the following aspects:
(a) the qualifications, qualifications and performance ability of the contract subject;
(2) the legality and rationality of the contents of the contract;
(3) Normality of the contract text;
Measures for the administration of contracts of administrative units 2 general principles
Article 1 In order to standardize contract management of administrative organs, prevent contract risks of administrative organs, and safeguard national interests, social public interests and the legitimate rights and interests of contract parties, these Provisions are formulated in accordance with the provisions of relevant laws and regulations and in light of the actual situation of this Municipality.
Article 2 These Provisions shall apply to the management activities of the municipal government and its departments in concluding and performing contracts.
These provisions shall not apply to those who take emergency measures to deal with emergencies and conclude administrative agency contracts.
Article 3 The term "administrative agency contract" as mentioned in these Provisions refers to the written agreement and other legal documents reached by the municipal government and its working departments as a party with citizens, legal persons or other organizations on administrative management and public services, including but not limited to the following types:
(a) the transfer, transfer, lease and contract of the right to use state-owned natural resources such as land, forest, wasteland, waters, sea areas, beaches and mineral deposits;
(2) Contracts for contracting, selling or leasing state-owned assets (including intangible assets);
(three) the contract signed after the investor's bidding, project construction bidding, government procurement and other procedures;
(four) administrative expropriation, requisition and purchase of reserve contracts;
(5) Administrative entrustment and incentive contracts;
(6) Policy credit contract;
(seven) the strategic cooperation contract between administrative organs and enterprises.
Article 4 The contract management of administrative organs shall follow the principles of clear rights and responsibilities, standardized procedures, legal contents and timely handling.
Article 5 The legal department of the municipal government (hereinafter referred to as the municipal legal department) shall be responsible for organizing the implementation of these Provisions, and the specific transactional work may be entrusted to the legal advisory body of the municipal government.
Article 6 The municipal legal department shall formulate the rules for the review of administrative organ contracts and the provisions on the model text of administrative organ contracts. These are related to the whole city.
The working department of the municipal government shall formulate the contract management system of the administrative organ of this department, and strengthen the management of the conclusion and performance of the contract of this department and its subordinate units, and the legal institution of this department shall be responsible for the specific work.
Article 7 When concluding a contract, an administrative organ shall determine the undertaking department. The contract of an administrative organ with the municipal government as a party shall be undertaken by the department that performs its duties or the department designated by the municipal government; The administrative organ contract with the working department of the municipal government as one party shall be undertaken by all departments.
The contract undertaking department is responsible for the preliminary preparation, drafting, performance, dispute resolution and file management of the contract.
Article 8 When concluding a contract, an administrative organ shall not commit any of the following acts:
(a) in violation of the conditions and procedures prescribed by laws and regulations;
(two) temporary institutions and internal institutions as one party;
(three) illegal guarantee;
(four) the illegal demands made by the other party or the third party;
(five) other acts in violation of laws and regulations.
Ninth administrative agency contract model text formulation and release, legal review (including legality review and appropriateness review, the same below), supporting system and commissioned intermediary agencies to carry out investigation and demonstration work required funds, included in the annual financial budget of the department.
Chapter II Formulation of Model Text of Administrative Organ Contract
Article 10 This Municipality implements the model text system of administrative organ contracts. Model texts of administrative agency contracts include the following types:
(a) the model text of the administrative organ contract formulated by the state and the province;
(two) the state and the province have not formulated a model text, and this Municipality has formulated a common and similar model text of the administrative organ contract;
(three) it is really necessary to change the national and provincial contract model text and make a separate model text.
Eleventh administrative contract model text and its explanation (hereinafter referred to as the model text) shall be formulated by the municipal legal department.
The model text of the administrative organ contract with the municipal government as a party shall be drafted by the municipal legal department in conjunction with the contract undertaking department. The model text of the administrative organ contract with the working department of the municipal government as one party is drafted by each department; The model text of an administrative organ contract involving more than two departments as a party shall be drafted by a department jointly with relevant departments determined by the municipal legal department.
Article 12 The model text of administrative organ contracts shall be formulated in strict compliance with the provisions of relevant laws and regulations, and follow the principles of preventing legal risks of contracts, ensuring the safety of state-owned assets and financial funds, and effectively utilizing natural resources and public resources.
Thirteenth municipal government departments to draft the administrative organ contract model text, shall be submitted to the municipal legal department for legal review, and provide the following materials:
(1) Letter of submission for trial;
(two) the draft model text of the administrative organ contract;
(three) information and materials related to the model text of the contract of the administrative organ;
(four) the review opinions put forward by the legal institutions or specialized agencies of the department;
(5) Other materials that need to be provided.
If the materials submitted do not conform to the provisions of the preceding paragraph, the municipal legal department may require them to make corrections on the spot or within a time limit; If no correction is made within the time limit, the municipal legal department may return the submitted materials.
Fourteenth drafting and reviewing the model text of the administrative organ contract, it shall solicit the opinions of the relevant parties as needed, and conduct investigation, evaluation and demonstration; Involving professional and technical fields, experts, scholars and professional institutions may be invited to participate or entrusted to undertake.
Fifteenth the provisions of article tenth (two), (three) refers to the administrative organ contract model text issued by the Municipal Bureau of legal affairs; Not published, shall not be used.
If it is really necessary to change the model text of the administrative organ contract after its release, it shall be implemented in accordance with the procedures for formulating the relevant model text.
Chapter iii conclusion of contracts of administrative organs
Article 16 An administrative organ shall determine the counterpart of a contract in accordance with the procedures and conditions prescribed by laws and regulations.
Where the counterparty of an administrative organ is determined through government procurement or bidding, it shall abide by the provisions of laws and regulations such as the Government Procurement Law of People's Republic of China (PRC) and the Bidding Law of People's Republic of China (PRC).
Seventeenth when drafting the administrative organ contract, the model text of the administrative organ contract shall be used.
The administrative organ contract signed by the municipal government as a party or approved by the municipal government (hereinafter referred to as the municipal government administrative organ contract) shall be drafted by the contract undertaking department. The administrative organ contract of the working department of the municipal government shall be drafted by each department.
Article 18 Before an administrative organ concludes a contract, the contract undertaking department shall examine and demonstrate the feasibility of the contract project, investigate the qualifications, assets, credit and performance ability of the other party to the contract, and collect and sort out relevant information.
If the contract project of the administrative organ involves the functions of other departments, the contract undertaking department shall solicit the opinions of other relevant departments before concluding the contract.
Nineteenth administrative organs in the process of concluding a contract, the parties shall negotiate as necessary. If there is a model text of the administrative organ contract, it shall be negotiated on the basis of the model text.
When negotiating the terms of the contract, the contract undertaking department shall, according to the complexity of the project, the amount involved in the subject matter and other factors, designate a special person to be responsible for or organize the establishment of a negotiating team, and clearly authorize the scope of negotiation.
The contract project of the administrative organ of the municipal government needs to organize the establishment of a negotiating team, and the contract undertaking department shall notify the municipal legal department to send personnel to participate.
Twentieth in any of the following circumstances, the contract undertaking department shall submit the draft contract to the municipal government for legal review no later than 10 working days before signing the contract:
(a) the state, province and city have not yet formulated the model text of the administrative organ contract;
(two) the subject, object, rights and obligations, liability for breach of contract and other substantial changes. Model contracts of administrative organs;
(three) the municipal government requires the municipal legal department to conduct legal review.
In addition to the provisions of the preceding paragraph, the legal institution of the contract undertaking department is responsible for the legal review of the contract of the administrative organ.
Article 21 The legal review of the administrative organ contract by the municipal legal department mainly includes:
(1) Whether the subject is qualified;
(two) whether the matters involved can be agreed in the form of a contract, whether it violates the statutory management authority;
(three) whether the content is obvious in obviously unfair, and whether there are legal risks;
(4) Whether dispute settlement clauses, liability clauses for breach of contract and confidentiality clauses have been agreed upon;
(5) Whether it complies with the legal procedures for concluding a contract;
(six) whether it violates relevant laws and regulations.
Twenty-second municipal legal departments on administrative contract related issues to the contract department, the contract department shall give a written reply within 3 working days.
Article 23 If the legal review opinions involve legal contents, the contract undertaking department shall revise the draft contract of the administrative organ according to the legal review opinions. If it belongs to the contract of the municipal government administrative organ, it will form an official text of the contract after being approved by the municipal government.
If the legal review opinions involve appropriate contents, which belong to the contract of the municipal government administrative organ, the contract undertaking department shall fully explain the reasons and basis, and draw the municipal government to make a decision according to the actual situation; Whether the contract belongs to the administrative organs of various departments of the municipal government is adopted or not is decided by each department, and then a formal contract text is formed.
Without legal review or legality review, the administrative organ may not sign a contract.
Twenty-fourth legal review opinions are limited to the internal work of administrative organs, and the relevant departments of the municipal government and insiders may not disclose relevant contents.
Article 25 The official text of an administrative organ contract shall be signed by the legal representative of the administrative organ or a representative authorized by the legal representative in writing, and stamped with the official seal of the unit or the special seal for the contract.
Contracts of administrative organs that are required by laws, regulations and rules to be submitted to the relevant departments for examination and approval, registration and filing shall be handled in accordance with legal procedures.
Performance of the contract of the administrative organ
Twenty-sixth after the administrative organ signs the contract, the contract undertaking department shall promptly deal with the problems in the process of performance and claim the rights in time.
Where the performance of the administrative organ contract involves other departments of the municipal government, the contract undertaking department shall coordinate the relevant departments in a timely manner; The relevant departments shall, in accordance with the division of responsibilities, fulfill the relevant provisions of the contract in a timely manner.
Twenty-seventh administrative organs in the process of contract performance in any of the following circumstances, the contract undertaking department shall promptly claim the right to take measures to prevent and deal with the occurrence of contract risks:
(1) The laws, regulations or policies on which this contract is based are amended or abolished, which may affect the normal performance of this contract;
(2) Significant changes have taken place in the objective circumstances at the time of conclusion of this contract, which may affect the normal performance of this contract;
(3) The deterioration of the property status of the other party leads to the loss or possible loss of performance ability;
(4) Force majeure may affect the normal performance of the contract;
(5) The other party clearly indicates or indicates by its own behavior that it will not perform its contractual obligations;
(six) other circumstances that affect or may affect the performance of the contract.
In case of the circumstances mentioned in the preceding paragraph in the performance of the contract by the administrative organ of the municipal government, the contract undertaking department shall submit an early warning report to the municipal government in a timely manner, and send a copy to the municipal legal department.
Twenty-eighth early warning report shall include the following contents:
The text of the contract of the administrative organ in dispute and relevant supplementary contracts;
(two) the administrative organ's explanation of the conclusion and performance of the contract;
(three) the main contents of the administrative organ's contract risk and the preliminary treatment plan;
(four) the details of the problems that need to be demonstrated;
(5) Evidence materials and list;
(6) Other materials that need to be submitted.
Article 29 When an administrative organ handles a contract dispute, the contract undertaking department shall settle it through consultation and mediation.
If an agreement is reached through consultation or mediation, a written agreement shall be signed; If no consensus can be reached through negotiation and mediation, the contract undertaking department shall handle it according to law, and if necessary, hire an external lawyer or submit it to the municipal legal department for assistance.
Where an administrative organ's contract is sued, submitted for arbitration or applied for administrative reconsideration due to a dispute, the contract undertaking department shall do a good job in responding to the lawsuit.
Thirtieth municipal government administrative organs contract disputes, the contract undertaking department shall collect evidence materials in a timely manner, and put forward a response plan to the municipal government for approval.
The municipal legal department is responsible for organizing the municipal government administrative organs to handle and dispose of contract disputes.
Thirty-first administrative contract dispute settlement process, without the consent of the municipal government or its departments, any institution or individual shall not give up the legitimate rights and interests of the municipal government or its departments.
Article 32 If an administrative organ needs to conclude a supplementary contract, modify or terminate the contract after the conclusion or performance of the contract, it shall follow the procedures for concluding the contract by the relevant administrative organs in these Provisions.
Article 33 The following archival materials formed by an administrative organ in the process of concluding and performing a contract shall be numbered, registered, kept and filed by the contract undertaking department in time:
(1) Formal and supplementary contract texts;
(2) Investigation materials on the assets, credit and performance ability of the other party to the contract;
(3) Contract negotiation and negotiation materials;
(four) the basis for the conclusion of the contract and the approval documents;
(5) Legal review opinions;
(6) materials such as court judgment documents, arbitration institution ruling documents and mediation documents formed in the process of handling contract disputes;
(seven) other materials that need to be filed.
Legal liability
Thirty-fourth administrative organs and their staff in violation of these provisions, one of the following acts, the competent authority shall order it to correct; Causing heavy economic losses, the appointment and removal organ, the supervisory organ or other competent authorities shall be investigated for administrative responsibility according to law; If the case constitutes a crime, criminal responsibility shall be investigated according to law:
(1) Using the model text of the contract in violation of regulations;
(2) Signing contracts with foreign countries without legal review or legality review;
(3) Malicious collusion with others in the process of contract conclusion, review and performance, which damages the legitimate rights and interests of administrative organs;
(four) in the process of contract conclusion, review and performance, dereliction of duty, abuse of power, accepting bribes;
(5) Concluding a contract in violation of the prohibitive provisions of Article 8 of these Provisions;
(6) Failing to keep secrets as required;
(seven) to give up the legitimate rights and interests enjoyed by the administrative organ without authorization;
(8) Failing to properly keep the contract materials and archives.
Article 35 If the municipal legal department and its staff make major mistakes in the legal review, resulting in significant economic losses, the appointment and removal organ, the supervisory organ or other competent authorities shall investigate the administrative responsibility according to law; If a crime is constituted, criminal responsibility shall be investigated according to law.
Article 36 If an administrative organ illegally concludes, alters or terminates an administrative organ contract, thus causing damage to citizens, legal persons or other organizations, it shall make compensation according to law.
Supplementary rules
Article 37 The administrative organ contracts signed by the Administrative Committee of High-tech Zone, the Administrative Committee of Bonded Zone and the district (county) government authorized by the municipal government shall be implemented in accordance with the relevant provisions on contract management of administrative organs of the municipal government.
Thirty-eighth High-tech Zone Management Committee, Bonded Zone Management Committee, district (county) government and its departments shall refer to these Provisions for the contract management of administrative organs or subordinate units at the same level.
With municipal state-owned companies (enterprises) and financing platform companies as one party, government debt contracts with a target amount of more than 1 100 million yuan shall be reported to the municipal legal department for review, and the review procedures and requirements shall be implemented with reference to these Provisions.
Thirty-ninth administrative organs involved in the administrative decision of the municipal government shall be implemented in accordance with the procedures for reviewing the legality of administrative decisions, and their contents shall meet the requirements of these Provisions.
Article 40 These Provisions shall come into force as of May 20xx 1 day.
;