To grasp the "substantive content change" of the winning contract, attention should be paid to the extent of the change and the boundary between the "black and white contract" and the normal contract change
The so-called "substantive content of the contract" generally refers to the project price, project quality, project duration and project nature agreed in the contract. At the same time, to grasp what is the change of substantive content, we should also pay attention to the following points:
(1) Grasp the extent of the change. Not all amendments or changes to the above-mentioned substantive contents are the cases of signing a "black and white contract", which must lead to an imbalance in the interests of the two parties and need to be judged according to the actual situation of the specific contract.
(2) Grasp the boundary between the signing of the "black and white contract" and the change of the normal contract. Contract modification is a fundamental right conferred on both parties to a contract by law. The exercise of the right to change the contract exists in all contract performance processes. If in the process of actual performance of the contract, there are design changes, increases in the amount of work, or other statutory or winning contract agreements that affect the performance of the winning contract, it is normal to modify the content of the winning contract. If the reason for the change is the assumption of liability for breach of contract by one party, the purpose of the change is to better perform and promote the winning contract, and it is not appropriate to simply identify it as a "black and white contract", and it needs to be judged according to the specific circumstances.
2. Whether there is a change in substantive content can be judged from whether the change in substantive content is more conducive to the quality of the project, and whether the change in the contract price exceeds more than 1/3 of the recorded contract, we believe that it can be considered from two aspects: First, to see whether the change in substantive content is more conducive to the quality of the project. If the quality of the project is required to be qualified when bidding and signing the contract, and the project is required to be excellent after the conclusion of the contract, the project price will inevitably be increased accordingly, so the change of the contract conforms to the principle of consistency of rights and obligations, and there is no problem affecting the interests of other units that participate in the bidding but do not win the bid, so it can be determined that the contract is a supplement to the winning contract, although it has not been filed, it should be valid. Conversely, if the quality requirements are excellent at the time of bidding, and a separate contract is concluded to reduce the quality standard and reduce the price, unless it is filed, it can be found to be a "black contract" and should be found to be invalid. The second is to see whether the change in the contract price exceeds 1/3 of the recorded contract. When bidding and bidding, because the procedures such as professional bid evaluation, issuance of bidding announcements, and preparation of bidding documents by bidders have been completed, the general scope of the project and the amount of the project have been roughly determined, and even if there are some slight changes, the project price should not fluctuate greatly. If there is a big change, the bidding should be re-conducted and filed for the record, otherwise there is a suspicion of colluding with each other to harm the interests of other bidders, and then it can be identified as a "black contract" with different substantive contents. To determine whether the change in the quantity, scope of the project, and the price of the project is large or small, it is recommended to rely on whether the change in the performance of the contract exceeds 1/3 of the recorded contract, which is within the normal scope within 1/3, and more than 1/3, and is identified as a "black contract" because it is not filed. Therefore, whether it is a change in substantive content can be grasped from the above two aspects according to the different circumstances of the case, and it is obviously not appropriate to deny the validity of the undocumented contract.
3. The determination of inconsistencies in substantive content requires comprehensive review and judgment, and it is not as long as there is an inconsistency between the contract separately concluded by the parties and the agreement on the project price, project quality and duration of the winning contract for the record. Where inconsistent substantive content is determined, a comprehensive review and judgment may be made from the time of signing a separate contract, whether the other contract has made significant changes to the main rights and obligations of the filing contract, and whether the purpose of the change is collusion in bidding to harm the interests of other bidders:
(1) If the winning contract for the record and the contract signed separately are inconsistent only in the agreement on the project price, and there is no substantial difference in the agreement on the scope, quality and duration of the project, it shall be determined that the substantive content of the separately signed contract is inconsistent with the substantive content of the winning contract in the filing, and the settlement of the project price shall be carried out according to the agreement of the winning contract in the filing.
(2) If the winning contract for the record and the contract signed separately are not only inconsistent in terms of price, but also have changed in terms of the scope of the project, the quality of the project, the construction period, etc., and the change is basically equivalent to the change in the project price, and the parties actually perform the contract after the change, it should not be found that it belongs to the situation of "the substantive content of the separately signed contract and the winning contract for the record" stipulated in the Interpretation of the Construction Contract for Construction Projects, in which case, The project price shall be settled in accordance with the contract signed separately.
(3) If the separately signed contract is mainly a supplement or increase in the construction content of the winning contract, the project price of the supplementary or increased part can be calculated with reference to the agreement on the price of the winning contract for the record; if it is difficult to calculate the project price by reference to the agreement on the winning contract in the filing, the project price of the changed part shall be calculated according to the contract separately signed by the two parties.
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【Risk Lawyer】Mr. Xu Haifeng, who has been engaged in legal research and legal practice for more than 20 years, has published more than 20 legal works and represented many major difficult and complicated cases, especially civil and commercial cases of the Supreme People's Court and the Provincial High Court, which has aroused many social repercussions.
【Areas of Expertise】Contracts, real estate, construction projects, financial lending, guarantees, corporate equity, securities and other civil and commercial fields.
【Practice philosophy】Charge after success, no charge if it is not successful.
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