The Guangzhou Municipal Government contract regulations
(February 20, 2012, Guangzhou City people's Government, the 5th Executive meeting on March 28, 2012, people's Government of Guangzhou City, the 69th release come into force on July 1, 2012) Chapter I General provisions
First to standardize the contract management of Government, preventing the contract risk and reduce disputes, protect State-owned assets, financial security and natural resources, the efficient use of public resources, in accordance with the People's Republic of China contract law and other relevant laws and regulations, combined with the city's actual, these provisions are formulated.
Second Government contracts in these rules refers to municipal governments and their departments in the Administration, public services and civil and economic activity, as made by a party concerning State-owned assets, financial and natural resources, public resource-use agreement, including the following types:
(A) urban infrastructure such as State-owned assets (including intangible assets) in investment, construction, leasing, Contracting, managed, lending, trading, security and property management contracts;
(B) land, forests, land, water, sea, beaches, right to use State-owned natural resources such as mineral according to sell, transfer, lease and contract;
(C) administrative expropriation and requisition, contract;
(D) loan, financing, subsidies and other contracts;
(E) the public utility franchise contracts;
(Vi) investment contracts;
(VII) other government contracts.
Provisions of this article apply to municipal governments and their departments the conclusion, performance and management activities of government contracts.
Take emergency measures for dealing with unexpected events, Government contract concluded, these provisions do not apply.
Fourth municipal government departments shall, in accordance with the provisions of article and the actual situation of the sector, develop the Department's contract management system, strengthening the management of departments and their subordinate units of the formation and performance of contracts.
Subordinate units of the Municipal Department for one of the parties entered into involving State-owned assets, financial and natural resources, the amount of public resources in more than 100 million Yuan (100 million yuan) contracts shall be submitted to the municipal government sector review.
Fifth formation and performance of contracts by the Government to follow legal, prudence, fairness and good faith principles, protection of State-owned assets, financial security and natural resources, the efficient use of public resources.
Government contract management follow the prior legal risk legal risk control, in-and ex post facto law, remedies, supplemented by the principles.
Article sixth legal body responsible for the formation of this Government contract work in supervision and guidance, organize the implementation of these provisions.
Legal institutions to participate in municipal government as a party of government contract negotiations, drafting, review, signing and implementation.
Article seventh municipal governments and their departments enter into government contracts, the following actions are forbidden:
(A) violations of due process and legally qualified to enter into a contract;
(B) within the provisional institutions and agencies as one of the parties entered into the contract;
(C) in violation of laws and regulations as the guarantor of the contract;
(D) commitment contracts illegal requirements of the other party or a third person;
(E) contract other violations of laws, rules, regulations or damage the interests of the State, a collective or a third party's content.
Chapter II contract demonstration text Article eighth when drafting Government contracts, contract demonstration text takes precedence.
Country, province, did not develop a model contract text, municipal governments and their departments can develop contract demonstration text. Nineth contract demonstration text by the legal bodies of the Municipal Government is responsible for leading the development. Departments contract demonstration text developed by the sector organizations.
Covers more than one sector, developed jointly by two or more departments.
Article tenth contract demonstration text shall strictly abide by the relevant legal provisions and regulations to guard against risks of contract to protect State-owned assets, financial security and natural resources, the principle of the effective use of public resources. 11th sector contract demonstration text shall be submitted to legal bodies to review.
Without a legal mechanism to review, shall not be used.
Departments contract demonstration text submitted to review, should be submitted to the development of model description of the text and background material.
12th a legal mechanism to review Department contract demonstration text mainly reviewed the following:
(A) the contract demonstration text would create legal risks of State-owned assets, financial security, and natural resources, adversely affect the effective use of public resources;
(B) the contract demonstration text is complete, detailed, and consistent with the People's Republic of China contract law provisions of 12th;
(C) the model contract language of the text is accurate, rigorous;
(D) whether the contract demonstration text agreed to dispute resolution specification;
(E) the contract demonstration text in terms of the presence of any other illegal content.
13th develop and review Government contract demonstration text, if necessary, you can listen to the views of the public, social organizations, and contract terms are fair and reasonable.
Government contract demonstration text involved in professional and technical fields, delegates and invited experts and scholars, professionals involved in developing and reviewing.
Chapter III contract negotiation and drafting
Article 14th municipal governments and their departments shall, in accordance with laws, regulations, procedures and criteria to determine the other party of the contract.
Government procurement or tendering method is adopted to determine the other party of the contract, should strictly abide by the People's Republic of China Government procurement law and the People's Republic of China bidding provisions of the Act and other laws and regulations. 15th Government contract work by the City Department responsible for drafting. In the process of drafting the contract, contract the Parties shall conduct full consultations.
Contract demonstration text, should be in the contract demonstration text on the basis of full consultation. 16th in contract negotiations and in the drafting process of the Government, municipal government departments should contract with legal, economic, technical and social stability, advance analysis of the risk and, if necessary, can risk evaluation.
Involve the major, difficult or risky, experts may be invited to participate in demonstration. 17th in contract negotiations and in the drafting process of the Government, municipal government departments should contract the party assets, credit, compliance capabilities, full understanding of the situation, if necessary, credit investigation.
Involve the major, difficult or risky, and may appoint a professional body to investigate.
The fourth chapter review of legality 18th article Government legality examination should be carried out prior to the signing of the contract.
Without a legal review, and their departments of the Municipal Government shall enter into government contracts.
Government contracts are legal requirements for the review included in the Department's annual budget. Article 19th in municipal government as a party to contracts concluded by the legal bodies responsible for the review of legality.
Contract departments of the Municipal Government is a party by this Department is headed by legal institutions or supervisory, auditing bodies responsible for legal review.
Contract departments of the Municipal Government is a party, which belongs to the provisions of this article 22nd, after the Department reviews the legality, need legal bodies.
In the process of reviewing, and may appoint a professional legal service advice.
20th legality examination content includes:
(A) whether the content of the contract will create legal risks of State-owned assets, financial security, and natural resources, adversely affect the effective use of public resources;
(B) the contract subject qualification;
(C) compliance with the statutory procedure of contract;
(D) the contract is complete, effective;
(E) are in breach of the provisions of this article seventh.
National, provincial and municipal departments to promote model text and changes to the main articles, the adjustment of the Government contract, which examined whether the subject is suitable, the development of the legality of the program, and so on.
21st to guarantee the quality of contract review, guard against legal risk in government contracts, submitting unit shall set aside the validity time shall not be less than 5 business days.
22nd following the contracts departments of the Municipal Government is a party, should be sent for legal institutions for review before signing:
(A) the amount set for the party in the municipal sector more than 100 million Yuan (100 million yuan) of contracts;
(B) Department of the Municipal Government of RMB 100 million Yuan set for the party involves complicated legal risks, think of contracts for review by the legal bodies of the municipal government.
National, provincial and municipal departments to promote model text and changes to the main articles, the adjustment of the Government contract, the provisions of the preceding paragraph shall not apply.
Article 23rd the municipal government departments to send legal mechanism to review Government contracts, shall submit the following materials:
(A) the letter of approval;
(B) contractual text;
(C) in connection with the contract notes, background materials, including the drafting of procedures, risk evaluation, contract, credit investigation of the other party and the need to focus on issues such as;
(D) sector within the legal institutions for review or supervision and auditing bodies;
(E) the legal authorities need to provide materials.
Submission does not meet the above requirements, legal agencies may require the approval of the municipal government departments supplemented within the time limit specified in the material is not added within a specified period, legal institutions submitting materials can be returned to the submitting departments.
Article 24th legal institutions of municipal works departments originated with the Government contract shall be collected within 10 working days from the approval date of the materials review has been completed, and will review the opinion in writing notify the submitting departments.
25th after validity of legal authority, the municipal government departments and the contract to the other party in the course of consultations, materially alters the content of contracts, changes to legal bodies should be reviewed again.
Article 26th legitimacy certificate issued by the review bodies review, restricted to government departments for internal use, the city government works departments and relevant personnel are not allowed to leak-related content.
Chapter fifth contract signing and performance
27th the city government work departments should be based on validity observations modifications to the draft contract, formed the official text.
Official text of the contract by the municipal government and their departments, legal representative or authorized signature of the legal representative and stamped with the Executive's cachet or contract seal.
Laws, statutes, rules and regulations should be reported to the relevant authorities, registration of the contract, by the municipal government and their departments in accordance with legal procedures.
28th article this article 22nd Government provided after the contract is signed by the parties to the contract, the City Government Department shall, within 7 working days will be full text copy to the legal bodies.
29th to appear one of the following circumstances, commitment to honour the responsibility claim by a municipal government department shall, without delay, take measures to prevent and respond to risk:
(A) in cases of force majeure, which may affect the normal performance of the contract;
(B) the contract amended or annulled according to laws, rules and regulations, which may affect the normal performance of the contract;
(C) significant changes in the objective circumstances of the contract, which may affect the normal performance of the contract;
(D) deterioration leading to loss of property or of the other party of the contract may lose their ability to perform;
(E) breach of the other party of the contract;
(Vi) other circumstances that there may be a risk.
Municipal Government is a party entered into government contracts as well as the provisions of this article 22nd Government contracts are in the process of implementation of the foregoing, assumed duties of Municipal Government Department shall timely early warning report to the municipal government, with a copy to legal bodies.
30th in the performance of a Government contract disputes in the process, assumed duties of municipal departments should be promptly dealt with.
Municipal Government made for the party to have a major dispute during the performance of the contract, assumed duties of municipal works departments should collect evidence, and proposed treatment program reported to the municipality for approval purposes.
Legal institutions to participate in municipal government as party government contract dispute made coordination and processing. 31st Government contract disputes should be resolved first consultation, mediation.
Reach agreement by negotiation or mediation, shall sign a written agreement. By negotiation or mediation fails to reach consensus, assumed duties of government departments should be resolved in time to go to arbitration or litigation, in accordance with the Statute of limitations, as well as rules of arbitration, litigation, collecting evidence, to deal with and prevent lost due to improper response to risk.
If necessary, outside counsel or entrust a legal body to deal with.
Articles 32nd to government contracts made by the Municipal Government is a party, in the dispute process, without consent of the municipal government, the municipal government departments belonging to the municipality the legitimate interests of a party cannot be waived.
Departments of the Municipal Government is a party the Government contract, dispute resolution process, without the consent of Department legal representative, any organizations or individuals may give up government departments the legitimate interests of a party.
Article 33rd after the contract or requires supplementary contracts during implementation or modification, rescission of contracts, departments shall, in accordance with the provisions of the municipal government contracting procedures.
34th Government contract, to perform the following archival material obtained in the course of, the municipal government departments shall be given a serial number, registration, filing in a timely manner:
(A) the official text of the contract, the supplementary contract;
(B) the assets of the other party of the contract, credit, compliance survey of materials such as;
(Iii) contract negotiation and consultation material;
(D) the basis for the conclusion of the contract, approval documents;
(E) review of legality;
(Vi) the Court judgment, arbitration body ruled, mediation instruments;
(VII) other materials that require archiving.
General Government contract files should be kept for more than 10 years after the contract expires, Government contract files should be provided in this article 22nd starting from the day of the conclusion of permanent custody.
The sixth chapter legal liability
35th city government departments and their staff members in violation of the provisions of any of the following acts, by the competent authority shall order rectification caused large economic losses, appointment and dismissal by the organ, the supervisory organ or any other authority shall be subject to administrative liability; a suspected crime, transferred to judicial organs for criminal liability:
(A) development contract demonstration text was not submitted to the legal body;
(B) without authorization, without legal review or review by external contracts;
(C) in the performance of contract, review, colluding with others, damage the lawful rights and interests and their departments of the municipal government;
(D) conclusion of the contract, review, during the performance of duty, abuse of power, taking bribes;
(E) prohibition of the violation of the provisions of article seventh enter into government contracts;
(Vi) is not required to keep a secret;
(G) without giving up the legitimate rights and interests enjoyed by municipal governments and their departments;
(VIII) not keep government contract information, archive materials.
Article 36th validity of institutions and their staff in the review of legality in a major fault, causing great economic losses, appointment and dismissal by the organ, the supervisory organ or any other authority shall be subject to administrative liability; a suspected crime, transferred to judicial organs for criminal responsibility shall be investigated according to law.
The seventh chapter by-laws
37th city government agencies (including non-permanent establishment), districts (county-level cities) Government and the Department entered into government contracts, reference to these provisions.
Article 38th municipal State-owned specialized financing group shall, in accordance with the requirements and the actual situation of the group, make the Group's contract management system, strengthen the management of the group formation and performance of contracts.
Municipal State-owned specialized financing group amount set for the party of more than 1 billion yuan (including 1 billion yuan) of government debt contracts should be reported to legal bodies, review procedures and requirements with reference to these provisions. 39th article of the regulations come into force on July 1, 2012.