9.508 Examples.
Subpart 9.6. Contractor Team Arrangements
Subpart 9.7. Defense Production Pools and Research and Development Pools
9.702 Contracting with pools.
9.703 Contracting with individual pool members.
评价与解释：
《联邦征收条例》（Federal Acquisition Regulation）是本次法律文献检索中搜索到的与行政合同有关的、最为完整的联邦行政法规。其中对于行政合同的各方面作出了规定，上列条款标题便是我认为与行政合同最有关系的一些内容。鉴于该条例篇幅较大，不宜全部罗列，故我仅选取一些我认为较为重要的条款，具体列出如下。
48 C.F.R. 9.000 Scope of part. (See also 48 C.F.R. 9.100 Scope of subpart.)
This part prescribes policies, standards, and procedures pertaining to prospective contractors'' responsibility; debarment, suspension, and ineligibility; qualified products; first article testing and approval; contractor team arrangements; defense production pools and research and development pools; and organizational conflicts of interest.
48 C.F.R. 9.102 Applicability.
(a) This subpart applies to all proposed contracts with any prospective contractor that is located--(1) In the United States or its outlying areas; or (2) Elsewhere, unless application of the subpart would be inconsistent with the laws or customs where the contractor is located.
(b) This subpart does not apply to proposed contracts with (1) foreign, State, or local governments; (2) other U.S. Government agencies or their instrumentalities; or (3) agencies for the blind or other severely handicapped (see subpart 8.7).
48 C.F.R. 9.103 Policy.
(a) Purchases shall be made from, and contracts shall be awarded to, responsible prospective contractors only.
(b) No purchase or award shall be made unless the contracting officer makes an affirmative determination of responsibility. In the absence of information clearly indicating that the prospective contractor is responsible, the contracting officer shall make a determination of non-responsibility. If the prospective contractor is a small business concern, the contracting officer shall comply with subpart 19.6, Certificates of Competency and Determinations of Responsibility. (If Section 8(a) of the Small Business Act (15 U.S.C. 637) applies, see subpart 19.8.)
(c) The award of a contract to a supplier based on lowest evaluated price alone can be false economy if there is subsequent default, late deliveries, or other unsatisfactory performance resulting in additional contractual or administrative costs. While it is important that Government purchases be made at the lowest price, this does not require an award to a supplier solely because that supplier submits the lowest offer. A prospective contractor must affirmatively demonstrate its responsibility, including, when necessary, the responsibility of its proposed subcontractors.
2.1.3.Cases（判例）
2.1.3.1.United States v. Winstar Corp., 518 U.S. 839 (1996)
The Supreme Court, Justice Souter, announced the judgment of the Court and held that: (1) United States was contractually obligated to permit financial institutions to use special accounting methods with regard to their acquisitions of failing thrifts, despite regulatory changes, pursuant to agreements with federal regulatory agencies; (2) United States breached contracts to permit financial institutions to use special accounting methods with regard to their acquisitions of failing thrifts when its agencies, pursuant to FIRREA (Financial Institutions Reform, Recovery, and Enforcement Act of 1989), barred use of those methods; (3) doctrine of unmistakability did not bar contracts'' enforcement, inasmuch as they neither bound government''s exercise of authority to modify banking regulation or other sovereign power, and awarding damages would not be tantamount to such limitation; (4) United States'' liability for breaching contracts was not precluded under reserved powers doctrine, inasmuch as contracting agencies did not strip United States of its legislative sovereignty when they contracted to assume risk of loss resulting from future regulatory changes; (5) lack of express delegation of purported authority to fetter United States'' sovereign power to regulate banking did not render contracts ultra vires, in that agencies'' assumption of risk of loss resulting from future regulatory changes did not surrender such power; (6) contracting agencies had statutory authority to assume risk of loss resulting from regulatory changes; (7) FIRREA was not “public and general” act for purposes of sovereign acts defense; and (8) even if FIRREA was “public and general” act, legal impossibility defense did not apply so as to protect United States from liability.
评价与解释：
United States v. Winstar Corp.是我在法律文献检索过程中发现的、在行政合同领域中影响最为重大的案例。该案的历史颇为反复，相关的案例数目也很庞大。本案的判决理由明确指出，政府在缔结行政合同后应履行相应的义务（United States was contractually obligated to permit financial institutions to use special accounting methods with regard to their acquisitions of failing thrifts, despite regulatory changes）；违反合同后，也应当承担相应的赔偿责任（United States'' liability for breaching contracts was not precluded under reserved powers doctrine）。
2.1.3.2.Conner Bros. Const. Co., Inc. v. Geren, 550 F.3d 1368 (Fed.Cir. Dec 31, 2008)
The Court of Appeals, Bryson, Circuit Judge, held that: (1) commander''s exclusion order was sovereign act precluding governmental liability, and (2) COE (Army Corps Of Engineers) had no contractual duty to issue suspension of work order in response to government''s sovereign act.
评价与解释：
在Westlaw中，本案属于United States v. Winstar Corp.一案的negative citing reference (declined to extend)，排除了COE的合同责任，给出的理由亦十分简单，未见细致的分析。
2.1.3.3.Holmes v. United States., 92 Fed.Cl. 311 (Fed.Cl. Apr 15, 2010)
The Court of Federal Claims, Hewitt, Chief Judge, held that:(1) settlement agreements were not money-mandating source required for Tucker Act jurisdiction, and (2) breach of settlement agreements claims were time-barred.
评价与解释：
在Westlaw中，本案属于United States v. Winstar Corp.一案的negative citing reference (declined to extend)。可惜的是，法官在探讨违约问题时仅指出相关的诉求已经罹于时效（time-barred），而未就合同的具体事项有进一步的论述。
2.1.3.4.Lurline Gardens Ltd. Housing Partnership v. United States, 37 Fed.Cl. 415 (Fed.Cl. Feb 28, 1997)
The Court of Federal Claims, Weinstein, J., held that: (1) there was no contract between developers and Commissioner in which Commissioner agreed to permit prepayment after 20 years; (2) Commissioner did not have authority to enter into contract to permit prepayment irrespective of any future regulatory amendments; and (3) regulations that parties agreed were to rule Regulatory Agreements provided that prepayment was not permitted.
评价与解释：
在Westlaw中，本案属于United States v. Winstar Corp.一案的negative citing reference (distinguished)。法官在本案中清楚地界定了在开发商与行政专员（Commissioner）之间并无合同关系，且行政专员也无允许预付（permit prepayment）的缔约权限。
2.1.3.5.Schism v. United States, 972 F.Supp. 1398 (N.D.Fla. Jun 10, 1997)
The District Court, Vinson, Chief Judge, held that: (1) decisions of military at issue were reviewable by district court; (2) plaintiffs (retired military veterans) could maintain action under Little Tucker Act for breach of implied-in-fact contract; (3) plaintiffs could not recover under equitable estoppel theory; (4) plaintiffs could assert claim under Fifth Amendment of unjust taking without compensation; (5) claim under Age Discrimination in Employment Act (ADEA) was defeated by failure to comply with notice requirements; and (6) rational basis existed for exclusion of Medicare-eligible military retirees from Tricare program, thus defeating equal protection claim of age discrimination.
评价与解释：
在Westlaw中，本案属于United States v. Winstar Corp.一案的negative citing reference (distinguished)。法官在本案中作出的判决不仅涉及地方法院的管辖权，还就合同非违约方的相应后果作出了裁判。值得一提的是，该案中涉及的Little Tucker Act与Age Discrimination in Employment Act均可能与行政合同有关，值得进一步关注。
2.1.3.6.Barseback Kraft AB v. United States, Nuclear Reg. Rep. P 20,583, 121 F.3d 1475, 42 Cont.Cas.Fed. (CCH) P 77,187 (Fed.Cir. Jul 31, 1997)
The Court of Appeals, Mayer, Circuit Judge, held that: (1) USEC was not constrained to use cost-recovery pricing policy; (2) pricing policy did not violate treaties between United States and Swedish and Spanish governments respecting such services; and (3) USEC was not shown to be including charge for decontamination and decommissioning (D&D) costs.
评价与解释：
在Westlaw中，本案属于United States v. Winstar Corp.一案的negative citing reference (distinguished)。本案涉及了瑞典、西班牙的公司与美国能源部(Department of Energy, DOE)的合同。值得一提的是，该案还涉及了美国与瑞典、西班牙之间签订的条约（treaties between United States and Swedish and Spanish governments respecting such services）。这是否说明在国家条约中，也会有“跨国行政合同”的存在？其与美国国内的行政合同相比，是否又有一些特殊性？
2.1.3.7.United States.v. Essley, 284 F.2d 518, C.A.10 1960, (Nov.8, 1960)
The Court of Appeals, Pickett, Circuit Judge, held that considered as a whole, together with Mineral Lands Leasing Act, 17, 30 U.S.C.A. 226, and regulations adopted pursuant thereto, the leases clearly disclosed that the parties intended the rentals for fourth and fifth lease years to be 25? per acre, and not 25? per lease, the that cause of action for recovery of rentals provided for in such leases was not subject to state statute of limitations.
评价与解释：
本案的前因后果虽然不是太清晰，但是很明显地，法官在裁判中对租赁合同作出了相关的解释，厘清了合同条款中的不确定法律概念（the parties intended the rentals for fourth and fifth lease years to be 25? per acre, and not 25? per lease）。从行政诉讼的视角研究行政合同，或许也是一个新的视角。
2.1.3.8.Turney v. Marion County Bd. of Educ., 481 So.2d 770, Miss.,1985. (Nov.27, 1985)
The Supreme Court, Prather, J., held that: (1) prior recorded lease, which lessees chose not to sign, was void; (2) board was authorized to draw up renewal lease without request being made by lessees; (3) board was authorized to require lessees'' signature on renewal lease; (4) board was authorized to impose certain conditions demanded in lease; and (5) board made no mistake in arriving at fair rental value of $5.25 per acre, with no credit for taxes being given against the rent.
评价与解释：
与上一个案例一样，本案法官在（1）中不仅对合同是否有效作出了裁判，还在（2）、（3）、（4）中对教育委员会（Board of Education）是否有权在租赁合同履行过程中作出某些行为进行了裁判。可见，租赁合同在实践中还是有非常多的问题会产生，其并不因为合同当事人的特殊性而降低产生争议的可能性。
2.1.3.9.U.S. v. General Petroleum Corp. of Cal., 73 F.Supp. 225, D.C.Cal. 1946., (Mar. 30, 1946)
Action by United States of America against the General Petroleum Corporation of California and others for a declaratory judgment as to the authority of the Secretary of the Interior to place minimum limitations upon valuations for royalty purposes of the interests of the United States in oil and gas produced from public lands in the Kettleman Hills field of California held by the defendants under oil and gas leases, and for other relief.
Judgment in accordance with opinion.The action was dismissed as to The Texas Company and Kettleman North Dome Association.
评价与解释：
虽然本案的前因后果并不是特别明晰，但是其涉及公共土地上所产油、气（oil and gas produced from public lands）的使用费数目决定权归属。值得注意的是，法官还在判决中提出了要考量美国的国家利益（for royalty purposes of the interests of the United States），行政合同的特征（正如之前搜索到的法律规范所规定的）在此案中又得以显现。
2.2.Secondary Sources（二次资源）
2.2.1.Books: scholarly and practicing materials（图书：学术与实务）
2.2.1.1.Peter Leyland, Terry Woods, Textbook on administrative law, Blackstone, 1994.
本书是一本供初学者所用的入门教材，并不是专门的行政法著作，因此铺面较广。但是，本书设立了专门的一节讨论外包（Contracting out）。总体来说，该书的借鉴意义不大。
2.2.1.2.Richard J. Pierce, Administrative law treatise: 2007 cumulative supplement, Aspen, 2007.
本书涵盖了截止到2007年前美国行政法的各种新动向、新发展。值得注意的是，作者对Ace Property and Casualty Ins. v. Federal Crop Insurance Corp.这一案子给予了高度的关注。作者指出：……Ace Property and Casualty Ins. v. Federal Crop Insurance Corp. (FCIC), in which the Eighth Circuit agreed with the Ninth Circuit and disagreed with the Second Circuit in holding that the statute that requires exhaustion of administrative remedies as a prerequisite to a breach of contract action against FCIC is not jurisdictional. 该案出现在了本书第15章Exhaustion, Finality, and Ripeness与第18章Remedies中。该案对于行政救济与违约救济的衔接值得本论文在写作时进行参考。
2.2.1.3.A.C.L.Davies, The public law of government contracts, Oxford, 2008.
本书是我目前搜索到的英文文献中唯一一本针对政府合同的专著，包含的主题较为广泛，包含：Introduction, Regulation government contracts, The public law perspective, The decision to use contract, Awarding the contract, Dealing with policy changes, Contract management, Government contractors: public or private?, Social and environmental goals, Employment matters, Conclusion and future prospects. 虽然本书未设专门章节讨论民事合同和行政合同，但是其从公法（public law）视角进行的探讨必定会涉及到私法（private law），从中进行比较便是我在论文写作过程中需要关注的对象。
2.2.1.4.P.P. Craig, Administrative law, 4th ed., Sweet & Maxwell, 1999.
本书设置了专章介绍了行政合同，题为Contract, Service Provision and Governance；下设的节如下：Towards "better procurement": the framing of government procurement policy, Towards "better procurement": contract and service provision by central government, The private finance initiative: contract and service provision by central government, Towards "best value": contract and service provision by local government, Making the specific contract: general principles, Making the specific contract: public procurement, consumer protection and the E.C., Limits on contractual effectiveness: crown service. 作者在论述行政合同的思路与我国作者“总论——分论”式有很大的不同，这或许也能为本论文的写作提供另一条思路。
2.2.1.5.Peter L. Strauss, Todd D. Rakoff, Cynthia R. Farina, Gellhorn and Byse''s administrative law: cases and comments, Rev. 10th ed., Foundation Press, 2003.
2.2.1.6.Richard J. Pierce, Administrative law, Thomson/West, 2008.
2.2.1.7.Stephan W. Schill, International investment law and comparative public law, Oxford University Press, 2010.
2.2.1.8.Carol Harlow & Richard Rawlings, Law and administration, Butterworths, 1997. [6]
2.2.2.Dissertations（硕士与博士学位论文）
未找到相应的硕士与博士学位论文。
2.2.3.Law review articles（法学评论文章）[7]
2.2.3.1.Ayoub M. Al-Jarbou, Administrative Contracts under Saudi Arabian Law, 41 Pub. Cont. L.J. 75 2011.
Saudi law acknowledges the distinction between administrative and nonadministrative government contracts. This distinction is referenced in the statutory law and clearly defined in the Board of Grievances'' case law.
There are three elements that make a government contract administrative in nature: (1) an administrative authority must be a party to the contract, (2) the contract must serve the public interest or the public good, and (3) the contract must contain some special clauses not usually found in private contracts. The main types of clauses are those that show the inequality of parties, or clauses conferring a right of private entities to occupy the public domain.
The distinction between administrative and nonadministrative contracts is important because agencies have considerable power over private contractors in administrative contracts, whereas in nonadministrative contracts the Board considers the private party and the public agency to be on equal footing. In the event of a contractual dispute over an administrative contract, as long as the agency is acting in the public''s interest and within its statutory limits, the Board will support the agency''s actions. Thus, the distinction between administrative and nonadministrative contracts is not technical--it has real consequences for the rights of the parties involved.
评价与解释：
本文的介绍重点是沙特阿拉伯的行政合同制度，其不仅有实定法基础，还有Board of Grievances的案例法作为支撑。尤其值得注意的是，本文介绍了判定行政合同的三个标准：一，行政机关必须为合同一方（an administrative authority must be a party to the contract）；二，该合同必须为公共利益而缔结（serve the public interest or the public good）；三，该合同必须包含一些普通民事合同不包含的条款（contain some special clauses not usually found in private contracts）。本论文虽不打算包含比较法部分，但这三条具体标准仍不失为论文的宝贵素材。
2.2.3.2.Riley Snow, Federal Court of Claims Further Defines Nuclear Power Companies'' Ability to Collect Damages, 24 J. Land Resources & Envtl. L. 151 2004.
As a result of this case (Commonwealth Edison Co. v. United States), power companies should note that takings arguments will be rejected, despite the length of time it takes for the government to accept and remove its waste. The government should note that although this decision favors it in the short term, it could end up paying more in damages than under condemnation if the delays continue. Furthermore, this decision bolsters the case law stating the government should be granted no deference in its interpretations of the Standard Contract terms. This determination takes away any deferential treatment the government might receive and keeps it on the level of a private party. It remains to be seen whether it is good public policy to hold the government to a private contractual standard under the Standard Contract when it seeks to remedy a situation that private industry seems unable, or unwilling, to address.
评价与解释：
本文通过Commonwealth Edison Co. v. United States，剖析了美国各核能源公司与美国能源部之间的（United States Department of Energy, DOE）各种合同纠纷.在本案中，Commonwealth Edison Co.起诉美国政府部分违约（a partial breach of contract regarding the acceptance, transport, and removal of spent nuclear fuel）。作者指出了政府在履行相关合同的过程应当注意的事项，并且就行政合同中双方地位的不平等是否有益进行了思考。尤其值得注意的是，本文提及了Standard Contract，我认为这也值得深入研究，当然，需要据此作出更为细致的文献检索。
2.2.3.3.Jacqueline Wood, Government Contractor Standards of Ethical Conduct: the Need for a More Detailed Regulatory Scheme, 36 Pub. Cont. L.J. 437 2006-2007.
By passing a comprehensive code of ethics applicable to government contractors, Congress would eliminate a major barrier to entry for unsophisticated smaller contractors and allow greater competition for government contracts. Additionally, such a system would make prosecutorial enforcement easier. A clear regulatory scheme would promote integrity in public procurement, saving taxpayer dollars and promoting public confidence in the contracting system. After all, government contractors can only accomplish so much through compliance systems and employee training if the guidance the Government provides is insufficient.
评价与解释：
本文探讨了行政合同一方——行政机关在缔结行政合同时应当注意的伦理道德规范（ethics），更呼吁要通过一部相应的、具有全面性的法典（a comprehensive code）来规范行政机关的行政合同活动。作者的视野甚至已经扩展到了刑事犯罪领域，这对于我来说又是一个新的思考方向——为何行政合同需要有特殊的伦理道德规范？为何民事合同的规范不能直接套用？
2.2.3.4.Randall James Bunn, Contractor Recovery for Current Environmental Cleanup Costs Under World War II-Era Government Contract Indemnification Clauses, 41 A.F. L. Rev. 163, 1997.
This article begins with a brief discussion of liability under Comprehensive Environmental Response Compensation and Liability Act (CERLA). Then, after a discussion of the historical basis of the World War II-era military contracts, the theory of indemnification as a basis for recovery under World War II-era contracts is explored. This article concludes with an overall assessment of the theory and its potential as a successful method of shifting liability for current environmental cleanup costs.
评价与解释：
本文探讨了二战时期政府合同补偿条款（World War II-Era Government Contract Indemnification Clauses）下的环境清理费用问题（Environmental Cleanup Costs）。虽然本文的侧重点可能更偏侵权法（torts），但是其花了不少笔墨分析了二战时期的相关军事合同（military contracts，也算是行政合同的一种），对我来说是较为有益的历史资料。
2.2.3.5.Rachel Grace Stabler, Adding Insult to Injury: Opportunities for Fraud in the Katrina-Related Government Contracts Under the False Claims Act, 58 Ala. L. Rev. 631, 2007.
As of January 8, 2007, the Federal Emergency Management Agency (FEMA) had awarded almost $8.6 billion in contracts for Katrina-related work. Additionally, the United States Army Corps of Engineers (USACE) has granted nearly $3.5 billion in Katrina-related contracts. With so much money being awarded by the government to private contractors, it seems likely that some fraud will be committed in the performance of these contracts.This Comment seeks to explore the possible opportunities for fraud in the government contracts awarded by FEMA and the USACE for Katrina-related work and whether such fraud would be subject to prosecution under the civil False Claims Act (FCA), the primary federal statute used to prosecute fraudulent government contractors.
评价与解释：
本文探讨了卡特里娜飓风来袭后将出现的相关行政合同（Katrina-related government contracts）的问题，其侧重点在于政府拨款被欺诈的可能性及相应对策。本文的特殊之处在于，作者就与卡特里娜飓风的行政合同进行了深入的探讨，较泛泛探讨行政合同的文章来说更具有针对性。另外，本文还涉及了False Claims Act (FCA)。值得注意的是，作者将该法律定位为民事法律规范（civil）；这又涉及到民事法律规范对行政合同的渗透，颇具研究价值。
2.2.3.6. Sheryl L. Floyd, William M. Jack, Heather Kilgore Weiner and Deanna M. Remmes, A Review of Recent Decisions of the United States Court of Appeals for the Federal Circuit: Area Summary: 2008 Government Contract Law Decisions of the Federal Court, 58 Am. U.L. Rev. 1051, April, 2009.
In 2008, the U.S. Court of Appeals for the Federal Circuit issued 242 precedential opinions. Of these, twenty-two were government contract cases. This article discusses all twenty-two precedent-setting opinions involving government contract law issues, setting forth the relevant facts, the Federal Circuit''s analysis, and, where appropriate, the ramifications of these cases. The decisions are grouped into the following categories: jurisdiction, bid protests/preferences, contract formation, contract interpretation, contract performance/breach, assignment of claims, damages, attorneys'' fees, and attorney sanctions.
2.2.3.7.评价与解释：
本文可谓是一篇探讨行政合同案例的综述性文章，其仔细分析了22个案例中的法律问题，覆盖面相当广，包含了管辖权（jurisdiction）、投标抗议/偏好（bid protests/preferences）、合同缔结（contract formation）、合同解释（contract interpretation）、合同履行/违约（contract performance/breach）、债权让与（assignment of claims）、损害赔偿（damages）、律师费（attorney''s fees）、律师制裁（attorney sanctions）等内容。上述每一部分下，都有相关的案例支撑论述。
Jody Freeman, The Contracting State, 28 Fla. St. U. L. Rev. 155, 2000.
In the United States, federal, state, and local governments now routinely employ contracts with private providers to furnish services, deliver benefits, and perform significant (and sometimes traditionally “public”) functions. Less visibly, a number of federal agencies have begun experimenting with contractual approaches to regulation as well, sometimes pursuant to statutory mandates, and other times as part of agency enforcement discretion. Governments increasingly act in all of their capacities, it seems, via contractual devices.
Despite the rising prominence of contract as an administrative and regulatory instrument, its implications for administrative law are not well understood. In this Article, I begin a much-needed discussion of contractual governance by focusing on two species of contract—contracts to provide services or benefits and regulatory contracts. I explain the practical and the theoretical problems these contracts pose, chief among which is their potential to undermine accountability in decision-making.
评价与解释：
Jody Freeman是当代美国著名的行政法学者，其《合作治理与新行政法》（Cooperative Administration and New Development Direction of Modern Administrative Law）一书在国内行政法学界享有盛名。本文提出了contracting state这一宏大命题，但没有仅在宏观层面对行政合同进行宽泛的论述，而是将行政合同进一步分为提供服务与利益的政府合同（contracts to provide services or benefits）与管制合同（regulatory contracts）两类进行论述。
2.2.3.8.David B. Hatch, BLM, Stop Dithering Over Federal Oil and Gas Leases: Why the Leases Must Be Issued within 60 Days, 31 Utah Envtl. L. Rev. 461, 2011.
Over the past decade, the traditional method for leasing federal lands for onshore oil and gas exploration seems to have hit a wall. It has become a matter of practice for wildlife and environmental groups to protest nearly every parcel of land the Bureau of Land Management (BLM) submits to a federal oil and gas lease sale. These protests require a lot of time and effort by the BLM and its staff to review each claim in order to determine which, if any, have any merit. Despite the BLM''s practice to carefully review and select lands through its resource management plans and environmental studies, these protests often cause the BLM to attach further stipulations to lands, postpone leasing the lands, or eliminate the lands entirely from the lease sale. What is most troubling is the BLM''s recent practice to hold the leases, even after they have been purchased, in order to continue its review of the environmental protests. During this time, the lease payments are held in a sort of limbo where neither the federal government nor the successful bidder has access to the funds. The end result is massive delay in the development of oil and gas, affecting the productivity of oil and gas companies, the revenue of state and federal governments, the jobs in local communities, and diminished access to resources that are vital for our fuel and transportation needs.
The problem is that the BLM does not have any authority to hold these leases after they have been purchased at a lease sale. Federal law is clear that the BLM must issue a lease within 60 days following the successful bidder''s payment. The BLM is overstepping its authority when it does not issue a lease within 60 days of payment. While the BLM has discretion to lease federal lands before a lease sale, and should use that discretion when the lands will be negatively impacted by oil and gas development, the BLM does not have discretion to withhold or delay the issuance of a lease after the lease sale takes place.
评价与解释：
在前期的资料检索中，土地管理局（Bureau of Land Management）经常会在法律规范中出现。从法律规范中，我只能了解到“静态”的土地管理局；然而，从这篇文章中，我开始了解到在租赁实务中“动态”的土地管理局。在土地管理局的部分职权（authority to hold these leases after they have been purchased at a lease sale）不明晰的情况下，土地管理局可能作出了违背立法本意的行为。本文对特定情况进行了区分，并得出了土地管理局在租赁已经达成的前提下并没有相关裁量权的结论（BLM does not have discretion to withhold or delay the issuance of a lease after the lease sale takes place）。
2.2.3.9.Bruce M. Pendery, BLM''s Retained Rights: How Requiring Environmental Protection Fulfills Oil and Gas Lease Obligations, 40 Envtl. L. 599, 2010.
There are approximately 39,000,000 acres of federal mineral estate in the eleven western states subject to onshore oil and gas leases issued by the Bureau of Land Management (BLM). The leases grant the lessee the right to extract any oil or natural gas that may be found on the lease. However, the leases make the grant of rights “subject to” a number of reservations of authority to the federal government. The BLM lease provides that these retained rights stem from applicable laws; the terms, conditions, and stipulations in the lease; the Secretary of Interior''s regulations and formal orders in effect when the lease is issued; and regulations and formal orders issued afterward if not inconsistent with the lease rights granted. A BLM regulation makes the lease subject to three further reservations of authority: stipulations; restrictions deriving from specific, nondiscretionary statutes; and reasonable measures the BLM authorized officer might require. A review of these authorities shows BLM retains substantial rights allowing it to regulate the time, place, and manner of oil and gas development. Development can be conditioned by regulating the timing of operations and the siting and design of facilities, as well as specification of the rates of oil and gas development and production. BLM can suspend operation of leases and can even prohibit development if impacts are substantially different or greater than normal. BLM retains the right to prevent “adverse impacts” by requiring “reasonable measures” to prevent environmental harms. ...This Article argues that given the mandatory, nondiscretionary nature of many of the authorities a federal onshore oil and gas lease has been made subject to, not only does BLM have numerous retained rights, it in fact has an obligation to fully assert them, and several policy changes that could accomplish this are suggested.
评价与解释：
本文作者跳出了法律规范的桎梏，从动态的角度梳理出土地管理局在租赁实务中所保有的各种可以由法律规范引出的、隐含的权利（the leases make the grant of rights "subject" to a number of reservations of authority to the federal government）。然而，作者又清晰地指出，在享有这些权利的同时，土地管理局更需要履行相应的义务。可见，在行政合同双方当事人之间，虽然行政机关看似是强势一方，但是基于权利与义务对等的原则，强势一方也需要肩负起相应的义务，尤其要为了公共福祉而履行。
2.2.3.10. Laura Lindley, Of Teapot Dome, Wind River and Fort Chaffee: Federal Oil and Gas Resources, 10-SUM Nat. Resources & Env''t 21, 1995.
The leasing system as ultimately adopted in the 1920 Act distinguished between known petroleum lands and “wildcat” lands. In “known geologic structures,” leases were to be issued competitively for a fixed term of twenty years with the right to renew and a maximum size of 640 acres. On wildcat lands, a permit system was established. ...Revenues from the leasing system were to be allocated as follows: 521/212 percent to the Reclamation Fund, 371/212 percent to the state in which the lands are located, and 10 percent to the federal treasury. The allocation has since been amended and revenues are now distributed (in the lower forty-eight states) 50 percent to the states, 40 percent to the Reclamation Fund, and 10 percent to the U.S. treasury.
评价与解释：
本文介绍了租赁制度适用的两种不同的土地：已知的藏有石油的土地与“野猫”土地。两种类型土地的具体制度区别表明。行政机关对于不同的公共土地会采用不同的方式订立行政合同；换言之，行政合同的订定也需要“量体裁衣”。另外，本文亦提及了租赁收入的分配，较上列法律规范而言，更具体、更具有操作性。
2.2.3.11. James B. Martin, The Interrelationships of the Minerals Lands Leasing Act, the Wilderness Act, and the Endangered Species Act: a Conflict in Search of Resolution, 12 Envtl. L. 363, 1982.
The essential features of oil and gas leasing are as follows: within the known geologic structure of a producing oil or gas field, all lands must be leased to the highest responsible qualified bidder. The term of these leases is five years. Thereafter, these leases extend for as long as oil or gas is produced in paying quantities. Lands that are not within a known geologic structure of a producing oil or gas field must be leased to the first qualified applicant. These leases are not subject to competitive bidding. The term of these leases is ten years. Thereafter, these leases also extend for as long as oil and gas is produced in paying quantities.
评价与解释：
跟上文一样，本文亦涉及了两种不同性质土地的不同租赁方式。当然，本文的重点是在于探讨矿藏土地租赁法（Minerals Lands Leasing Act）、荒地法（Wilderness Act），濒危物种法（Endangered Species Act）之间的冲突。
2.2.3.12. Robert A. Nelson, Oil and Gas Leasing on Forest Service Lands: a Question of NEPA Compliance, 3 Pub. Land L. Rev. 1, 1982.
A. Historical Development
The first national law to establish policy concerning exploitation of minerals was the Mining Law of 1866, as substantially amended by a later act entitled “An Act to Promote the Development of the Mining Resources of the United States.” Several minerals, including oil and gas, were removed from the Mining Law by the 1920 Mineral Leasing Act which applied to all lands belonging to the Federal Government that had not been privately owned. Federal mineral leasing authority was further extended by the 1947 Mineral Leasing Act which applies to acquired mineral estates which were patented and subsequently returned to Federal ownership through purchase, donation, condemnation, special act of Congress, or exchange under the Weeks Law.
The basic policy of promoting mineral exploitation has remained unchanged by the Mineral Leasing Acts of 1920 and 1947. The major changes made were: title to minerals remains with the United States, which has full discretion whether to make the resources available through leasing; the United States must be compensated for resource exploitation by payment of rentals or royalties; monopoly in federal mineral holdings is prevented and development is required.
B. Current Practices
Oil and gas leases are issued under two basic processes: competitive and non-competitive. When an area is within a known geological structure (KGS), competitive leases are issued. (Omitted.) Non-competitive leases are issued for lands outside a KGS. (Omitted.)
C. Decision-making Authority
(Omitted.)
There are several levels of decision-making authority within the Forest Service itself. The District Ranger reviews all lease and permit applications and operating plans relating to his district. He then makes a recommendation to the Forest Supervisor on whether or not the permit or lease should be issued and what stipulations should be attached. The Regional Forester is responsible for the final review of recommendations on the lease or permit, which he then forwards to the appropriate BLM official for action. The Forest Service Chief retains final authority to make recommendations with regard to certain Forest Service lands, including wildernesses designated under the Wilderness Act of 1964, primitive areas, recreation areas designated by the Secretary of Agriculture, and irrigation districts.
评价与解释：
搜索至此，我已经发现有关油、气开发土地租赁的文献相当丰富。本文分别从历史发展（historical developments）、现行实务（current practices）以及决策权归属（decision-making authority）三个角度对相关制度进行了梳理。其中，第三部分对于行政合同的研究最为有益，体现了行政机关在租赁合同订立过程中的优势地位。
2.2.3.13. Long-term Leasing in Urban Renewal: an Alternative Method of Municipal Land Disposition, 68 Yale L. J. 1424, 1959.
One social implication of municipal leasing is that it implies a new theory of urban landholding—public ownership combined with private exploitation—in those parts of a city''s center which require renewal. Critics of private land ownership have suggested that since the community gives land its value, the community should reap the profits through public ownership of all urban land. But such a proposal is unjust to private interests, when the city takes no responsibility for the land''s use or condition. Under such circumstances community land ownership would constitute nothing more than the appropriation of profit derived wholly from private effort. Through urban renewal programs, however, the community has begun to assume these liabilities; resuscitation of blighted urban land is now undertaken at public expense. In light of these public undertakings municipal leasing appears as a more realistic method of adjusting the interests of the community and the land occupier in land crucial to the urban community. Leasing places no greater restraints on land use than sale. Private parties profit to the same or a greater extent by leasing from the municipality. Primary responsibility for proper upkeep remains focused upon the land occupier. Meanwhile, the public is more fully compensated for the renewal costs it must sustain. In short, the long-term lease device can be a satisfactory means of recognizing the accomplished fact of public responsibility for land use, and repaying the public for its renewal costs, without reducing the incentives and rewards which have made private ownership so vital to democratic prosperity.
评价与解释：
本文的主题是在旧城改造过程中的长期租赁（Long-term Leasing in Urban Renewal）。但是，本文引起我兴趣的地方恰恰在于其对公有制与私有制的思考。在进行相关法律文献搜索前，我并不了解美国公共土地的租赁制度与实务，遑论从所有制的高度来剖析相关的内容。虽然行政合同与所有制等政治经济学问题并无太大的关涉，但若能以此为内容增加研究的深度，也是极有裨益的。 I.A clear statement of the issue/topic/area of law being researched（一段清晰的有关你研究的法律焦点、问题、或部门的陈述）
1.论文题目：
民事合同与行政合同之关系研究——以国有土地使用权出让合同为例
2.选题背景概述：
《中国行政审判案例》（第2卷）中刊登了第68号案例“无偿收回闲置土地决定应以相对人不存在免责事由为前提——爱克福得有限公司诉广东省深圳市国土资源和房产管理局无偿收回国有土地使用权案”（以下简称爱克福得案）。[1]该案例为我提供了两个层次的思路：第一层次在于对本案例的微观思考，旨在厘清本案中的争议点，并以此为基础提炼出相关的法律问题。在解决这些问题的过程中，我必定要进入到第二层次，即对民事合同与行政合同之间关系进行中观思考；中观思考的成果不仅有助于解决微观思考中提出的问题，更有可能超越案例、引申出新的理论论点。我将分别列出两个层次的法律焦点,以期使行文的过程更为清晰。至于关键词，则可以贯穿于微观与中观两个层面，故不分开列明。
3.法律焦点（第一层次）——基于对爱克福得案的微观思考
3.1.国有土地使用权出让合同作为一种典型的行政合同，其“行政合同成分”与“民事合同成分”各占多少？
3.2.土地行政主管部门以土地使用权受让方违反合同约定、超期未动工开发为由，单方解除合同、作出无偿收回闲置土地的决定这两个行为究竟应当受合同法规范约束、还是相关行政法规范的约束，抑或是两者兼具？
3.3.国有土地使用权出让合同中的免责事由究竟应该适用哪些行政法规范、是否允许自由约定？
3.4.民法中的诚实信用原则与行政法中的信赖利益保护原则的关系如何？
4.法律焦点（第二层次）——基于对民事合同与行政合同关系的中观思考
