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Reply to the Proposal to "Revise the Government Procurement Law"

来源: 财政部打印October 9, 2017 10:54 Source: Ministry of Finance [ Print ]

Since the "Government Procurement Law" was implemented on January 1, 2003, it has played an important role in promoting the establishment of the government procurement system and the development of the procurement industry in China. The scale of government procurement and the proportion of government procurement expenditure in fiscal expenditure have increased significantly. . But as you have suggested, with the deepening of the reform, there are still some unreasonable and imperfections in the current Government Procurement Law, which are difficult to meet the needs of actual procurement operations. We basically agree with your analysis of the existing problems in the legal construction of government procurement, and we agree with the proposal on amending the Government Procurement Law.  

I. Scale and scope of government procurement

The second paragraph of Article 2 of the "Government Procurement Law" stipulates that "Government procurement referred to in this Law refers to national government agencies, institutions, and group organizations at all levels, which use fiscal funds to purchase within the centralized procurement catalogue established by law or the procurement quota standards The above-mentioned behaviors of goods, engineering and services "have defined the scope of government procurement from three aspects, namely, the procurement subject, the source of funds, and the procurement target. To some extent, the problem of narrow scope does exist.

Regarding the procurement subject, whether state-owned enterprises are included in the scope of government procurement was controversial at the beginning of the "Law on Government Procurement". At that time, the main consideration was that state-owned enterprises, as market entities, should operate independently in accordance with market laws. At present, China's accession to the WTO "Government Procurement Agreement" (GPA) negotiations, whether state-owned enterprises are open, how to open, and the scope of opening is also one of the focus of the negotiations. GPA participants' bids on state-owned enterprises mainly depend on whether they are controlled or affected by the government, but foreign state-owned enterprises are very different from China in terms of nature, management method, and quantity. For example, the US federal government has less than 30 state-owned enterprises , Are set up for specific public management or service purposes, and are similar to government agencies in management, so they are basically included in the scope of government procurement.

In terms of funding sources, there is currently no precise definition of "financial funds". The "Government Procurement Law Implementation Regulations (Draft)", which is currently being formulated, intends to define fiscal funds by including "budget management". In foreign legislation, such as the Government Procurement Agreement (GPA), the United Nations Model Law on Public Procurement, and the EU Government Procurement Directive, the scope of application of government procurement generally does not involve the source of funds of the procuring entity, but mainly through the procurement of funds. The scope of the entity, whether it is for government purposes, etc.

Regarding the subject matter of procurement, the "Government Procurement Law" includes three types of goods, engineering and services, but also stipulates that "the tendering and bidding law shall apply to government procurement projects for bidding and tendering". The implementation regulations of the two laws are intended to further consolidate this. Because most government procurement projects are subject to the Bidding and Tendering Law, the size of government procurement statistics is relatively small. As China's entry into the GPA negotiations deepens, it will inevitably involve the legal application of government procurement projects. Negotiations need to be adjusted in accordance with Chinese bidding and laws, and the Government Procurement Law and the Tendering and Bidding Law will be revised accordingly.

2. About government procurement budget

Article 33 of the Government Procurement Law stipulates that "the departments that have the responsibility for preparing the department's budget shall, when preparing the department's budget for the next financial year, list the projects and funds budgets for government procurement in the financial year and report them to the financial department at the same level. Approval of departmental budgets shall be carried out in accordance with budget management authority and procedures. " The government procurement budget is an integral part of departmental budgets. The NPC is currently revising the Budget Law. The Legislative Affairs Office of the State Council will also amend the Regulations on the Implementation of the Budget Law to further strengthen budget management and supervision and regulate government expenditures. The "Government Procurement Law Implementation Regulations (Draft)" intends to strengthen the preparation of procurement plans, requiring purchasers to prepare government procurement implementation plans based on the centralized procurement catalog, procurement quota standards and approved department budgets, in order to facilitate centralized bulk procurement and procurement activities. Supervise and avoid unbudgeted, over-budgeted, temporary or casual purchases.

Functions and Legislative Purposes of Government Procurement

At the time of drafting the "Government Procurement Law", China was still in the initial exploration period of the socialist market economy system. The planned economy has obvious traces. The legislation mainly draws on the 1994 Model Law on Procurement of Goods and Services of the United Nations. Fiscal funds and the goal of preventing corruption have been given prominence, weakening other economic and social goals. Judging from the more than two hundred years of historical experience of foreign government procurement systems, most countries focus on the value goal of "value for money". On the basis of establishing complete and clear fair trading rules through legislation, they strengthen the government procurement policy's economic and social goals. Regulatory capabilities. Therefore, emphasizing economic and social goals in government procurement is a common international practice and one of the characteristics of government procurement that is different from general market behavior. How to play the role of policy functions and balance various policy goals requires the revision of the Government Procurement Law. Consider it.

4. About government purchase services

Paragraph 2 of Article 7 of the "Government Procurement Law" provides that "services referred to in this law refer to objects of government procurement other than goods and projects", which is a pocket-style definition and does not limit the services required by the government's own operations . All service items purchased by the purchaser using financial funds, including public service items, shall apply the Government Procurement Law. In order to further clarify the scope of government procurement services and avoid the misunderstanding that public procurement targets are not included in government procurement targets, the "Implementation Regulations of the Government Procurement Law (Draft)" intends to clearly stipulate that the services referred to in the "Government Procurement Law" include government provision to the public Public services.

In order to further promote the government's purchase of services, our ministry has issued the “Notice on Budget Management of Government Purchase of Services” (Cai Yu [2014] No. 13), and the “Notice on Doing a Good Job Purchase of the Central Government in 2014” (Cai Zong [2014] No. 18), "Notice on Promoting and Perfecting Government Procurement of Service Projects" (Cai Ku [2014] No. 37), etc., budget management, item classification, demand management, and procurement of government procurement services Procedures, contract requirements, implementation monitoring, performance evaluation, supervision and inspection, and performance inspection and acceptance management have clearly stipulated. In Caiku [2014] No. 37, the service items are clearly divided into three categories according to the service beneficiaries: the first category is the services that need to be purchased from the society to ensure the normal operation of the government department; the second category is the government department to implement the macro Services that need to be purchased from the society for functions such as regulation and market supervision; the third category is public services provided by the government to the general public in order to increase national welfare and the benefit targets to be determined. In order to nurture the government procurement service supply market and promote the development of social organizations as the undertaking body, Caiku [2014] No. 37 document also provides for the division of large-scale projects, the purchase of new projects from other suppliers, and the signing of long-term government procurement. Contract and other specific measures.

V. Disclosure of government procurement information

Article 3 of the Government Procurement Law establishes the principle that government procurement should be open and transparent. Our ministry has also made specific regulations on the scope, method, and content of government procurement information announcements, information announcement management, and designated media management in relevant department regulations. In order to further improve transparency and strengthen social supervision, the "Implementation Regulations of the Government Procurement Law (Draft)" intends to further refine and increase the disclosure of information, such as requiring government procurement project information to be published on designated media; the procurement documents are listed in the procurement document Amount of project budget; projects with single-source procurement above the standard for public bidding shall be publicly announced in advance; announcement of winning bids, transaction results, including bidding documents, names, specifications, models, quantities, unit prices, service requirements of the main winning bids or closing bids, evaluation experts List of key information; public procurement contracts; public complaint handling results, etc.

6. About government procurement to support the development of SMEs

Small and medium-sized enterprises are an important force to promote the development of the national economy and society. Promoting the development of small and medium-sized enterprises is one of the government procurement policy objectives stipulated in Article 9 of the Government Procurement Law. In order to implement the provisions of the "Government Procurement Law" and promote the development of small and medium-sized enterprises that are in line with national economic and social development policy goals and have good products, services, and credibility, our Ministry issued a pilot project on conducting government procurement credit guarantees in 2011. Notice (Caiku [2011] No. 124) and the Interim Measures for Government Procurement to Promote the Development of Small and Medium-sized Enterprises (Caiku [2011] No. 181) and other regulatory documents, adopting reserve procurement quotas, lowering thresholds, deducting prices, and encouraging A number of policy measures including consortium bidding and subcontracting and credit guarantees are encouraged to support SMEs in participating in government procurement. Financial departments at all levels have also introduced relevant systems to support SMEs' participation in government procurement.

Seven, the government procurement supervision mechanism

The "Government Procurement Law" provides for different entities and different levels of supervision mechanisms for government procurement activities, and establishes relief mechanisms for queries and complaints. The legal responsibilities of purchasers, purchase agents, suppliers, and other procurement parties and related personnel have been clearly specified. Our Ministry has formulated regulations on supplier complaint handling, review expert management, and centralized procurement agency supervision and evaluation management. Regulatory documents. In order to further strengthen the supervision, the "Government Procurement Law Implementation Regulations (Draft)" is planned to improve the supervision of procurement procedures, improve related requirements such as procurement requirements management, performance acceptance, and legal liability, and expand social supervision through more transparent information disclosure. Suppliers and purchasing agents record their bad behaviors and integrate them into a unified credit information platform. Especially in terms of legal liability, the "Implementation Regulations of the Government Procurement Law (Draft)" for various types of illegal subjects supplemented unauthorized changes in procurement methods or procurement procedures, collusive manipulation of procurement, illegal review, illegal bidding or closing of suppliers, Illegal acts such as signing contracts in accordance with procurement documents, failing to organize performance inspections and acceptances in accordance with regulations, and legal responsibilities of regulatory authorities.

About the next step

(1) Proposed amendments to the Government Procurement Law in due course. In the ten years since the implementation of the Government Procurement Law, it has played an important role in promoting the establishment of the government procurement system and the development of the procurement industry in China. However, with the deepening of the reform, in addition to the aforementioned issues, the procurement law also exists in terms of institutional mechanisms and supervision methods. Certain limitations and deficiencies. As China ’s entry into the GPA negotiations goes deeper, legal adjustments are also needed. Our ministry will strengthen research, consider your suggestions, and recommend to the National People ’s Congress to amend the “Government Procurement Law” in a timely manner. , Procedural management, contract and performance management, franchise management and performance audit evaluation, complete and operable government procurement law, expanding the scope of government procurement, establishing a core mechanism for government procurement fair transactions, and giving play to government procurement policy functions , Strengthen supervision, maintain a unified, open, competitive and orderly government procurement market, so that the government procurement system truly becomes the government's important public management system and departmental expenditure management system.

(2) Actively promote the early implementation of the Regulations on the Implementation of the Government Procurement Law. The "Government Procurement Law Implementation Regulations (Draft)" will further refine and improve government procurement system provisions, strengthen government procurement policy functions, increase government procurement transparency, and standardize government procurement activities, which will help solve existing problems in government procurement activities to a certain extent. problem. At this stage, we will cooperate with the Legislative Affairs Office of the State Council to actively do relevant legislative work and strive for early release.

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