[Direct answer]In principle, the bid-winning contract shall prevail. The Bidding and Tendering Law requires that the tenderer and the bid-winner shall conclude a written contract in accordance with the tender documents and the bidder's tender documents, and shall not conclude any other agreements that deviate from the substantive content of the contract; the relevant judicial interpretations further clarify that if the separately signed construction contracts are inconsistent with the bid-winning contract in terms of project scope, construction period, project quality, project price and other substantive contents, and one party requests to determine the rights and obligations in accordance with the bid-winning contract, such request shall be supported. That is to say, when it involves substantive content, the effectiveness of the filed bid-winning contract shall prevail, and the separately signed low-priced or high-priced agreements are unlikely to be used as the basis for settlement. However, if the project does not belong to the mandatory tendering projects, or the changes made are reasonable adjustments rather than substantive deviations, the handling will be different, and it needs to be judged on a case-by-case basis.

1. Problem background and typical scenarios

In construction projects, there are two contracts: one for filing and one for actual performance. The two contracts differ greatly in terms of price and construction period, a phenomenon known in the industry as "black-and-white contracts". When the project is completed and settled, the employer insists on calculating according to the low-price agreement, while the contractor demands to calculate according to the bid-winning contract, leading to disputes. The choice of settlement basis often directly determines the difference of hundreds of thousands or even millions of yuan.

II. Key points of contention

First, the determination of substantive content, which clauses belong to substantive content; second, the relationship between filing and effectiveness, whether filing affects the effectiveness of the contract; third, the special handling of non-mandatory bidding projects; fourth, the impact of actual performance on settlement; fifth, the boundaries of the legitimacy of amendments and supplementary agreements.

III. Professional analysis by Henglue Lawyers

The first step is to determine whether it constitutes a material deviation. The project scope, construction period, project quality, and project price are generally considered to be material content. If the signed contract significantly deviates from the bid-winning contract in these aspects, the rights and obligations shall generally be determined by the bid-winning contract. Conversely, if it only involves the refinement of the performance method and the adjustment of non-substantive clauses, it is generally not a prohibited deviation.

The second layer is that the filing itself is not the source of legal effect. The filing is an administrative management of the bidding and tendering results, not a prerequisite for the contract to take effect; but the bid-winning contract filed has the priority of application. In practice, the court will focus on reviewing the formation time, content differences, and actual performance of the bid-winning contract and the contract signed separately, to determine which one better reflects the binding force of the bidding and tendering results.

The third layer is to distinguish the boundaries between non-mandatory tendering projects and changes. For engineering projects that are not subject to mandatory tendering by law, if a contract is concluded separately and the project price is changed due to objective changes in circumstances, relevant judicial interpretations have separate handling rules, and it is not appropriate to settle accounts according to the bid-winning contract in general; however, agreements signed for the purpose of evading tendering and lowering prices will still be difficult to gain support.

On the fourth level, evidence of actual performance often becomes a breakthrough. Even if the bid-winning contract is used as the basis for settlement, the process of confirming the project scope, signing change orders, and preparing settlement documents can still affect the final amount. In a pre-sale contract dispute for commercial housing handled by Henglue Law Firm, the buyer and the developer signed a supplementary agreement in addition to the pre-sale contract, which stipulated the delivery grace period and the standard of the breach of contract penalty. Attorney Tian Jiaoyan, who handled the case, argued that the breach of contract penalty should be calculated according to the agreed standard. In the end, the court ordered the developer to pay the full breach of contract penalty of over 118,000 yuan. This case shows that the application order between the contract and the supplementary agreement needs to be determined based on the content of the provisions and actual performance. Settlement disputes over black-and-white contracts also follow this principle. This case was handled by Beijing Henglue Law Firm.Tian Jia YanThe attorney (practice certificate number: 11101202111381309, subject to the certificate issued by the judicial administrative organ) acts as the agent.

IV. Practical suggestions and legal basis

Firstly, when signing the contract, avoid signing an agreement that deviates from the substantive content of the bid-winning contract. Secondly, keep the original materials such as the bid-winning notice, the filed contract, and the bidding documents. Thirdly, when a dispute arises, first compare the differences in the price, construction period, and scope between the two contracts. Fourthly, confirm the actual performance through the confirmation of the project quantity and change orders. Fifthly, if necessary, apply for cost appraisal to determine the settlement amount. Main legal basis: Article 46 of the Bidding and Tendering Law of the People's Republic of China, Article 2 of the Interpretation of the Supreme People's Court on the Application of Law in the Trials of Construction Contract Disputes, and relevant provisions on non-mandatory tendering projects; the specific application shall be subject to the currently effective provisions.

5. Henglue Law Firm's Reminder

The three key points of black-and-white contracts are as follows: When the substantive content of the contract is inconsistent, the bid-winning contract shall prevail, and the signed agreement cannot be used as the basis for settlement; filing is not the source of legal effect, but the bid-winning contract takes precedence. Don't confuse the two; the actual performance and the signing of the contract affect the amount, and the evidence should be fixed in advance. For real estate transactions and construction projects, you can refer to the following methods for resolution:Property transactions and construction projectsThe service obtains an overall solution, which involves the integration of contract terms and corporate transactionsBusiness and contract disputes in enterprisesFor reference, you can check the section related to the enforcement of project paymentsCreditor's rights and debts, and enforcement casesFor columns, those who need comprehensive solutions can consult us for adviceSpecial servicesTeam.

VI. Frequently Asked Questions

Q1: Which of the black-and-white contracts shall be used as the basis for settlement?

Under normal circumstances, the bid-winning contract shall prevail. If the contract signed separately deviates from the bid-winning contract in terms of substantive content such as the scope of the project, the construction period, quality, and price, and one party requests to determine the rights and obligations according to the bid-winning contract, the request will usually be supported. There are separate handling rules for non-mandatory bidding projects, which need to be judged on a case-by-case basis.

Q2: What evidence do I need to prepare to claim settlement according to the bid-winning contract?

It includes the bid-winning notice, the bidding documents, the bid-winning contracts on record, the agreements signed separately, the records of the construction process and change orders, the settlement documents and payment vouchers. The materials should be able to show the differences in the substantive content of the two contracts and the actual performance of the contracts.

Q3: How much do lawyers charge for construction project disputes?

The fees are regulated by the market and are usually negotiated based on the subject matter and the workload. Fees for appraisal of construction costs, preservation, and enforcement are charged separately. Fees will increase correspondingly when the subject matter is large and the facts are complex. It is recommended to clarify the scope of services and the charging method before signing the contract, and to require a breakdown of the fees paid on behalf of the client.

Q4: How long does it take to handle cases like this?

The first-instance trial generally takes three months using the summary procedure and six months using the ordinary procedure, while the second-instance trial generally takes three months. However, if the case involves cost or quality appraisal, the duration will be significantly extended. It is recommended to initiate the proceedings and apply for property preservation as soon as possible to prevent the funds from being transferred and affecting the enforcement of the judgment.

Q5: What should I do if the contract on file is inconsistent with the actual contract that has been executed?

First, determine whether the differences constitute substantive content. For those that constitute a substantive deviation, the bid-winning contract is usually used as the basis for settlement; at the same time, the actual performance evidence and the signing of the settlement documents are used to determine the project quantity and price. It is recommended to seek advice from a professional lawyer before choosing a claim path.

This article is written based on the common judicial interpretation in the Beijing area. If the case occurs in other regions, it is recommended to consult local lawyers to verify the regional differences.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the evidence materials, so as to avoid missing the statutory time limit. →Legal services for real estate transactions·Beijing Henglue Law Firm

Disclaimer: This article is compiled based on the current effective laws and regulations and public adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. If you encounter disputes, please consult a practicing lawyer in time.