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Reply to the "Recommendation 7402 of the Second Session of the Thirteenth National People's Congress" (excerpt)

来源: 中国政府采购网打印September 6, 2019 13:16 Source: China Government Procurement Network [ Print ]

On September 3, the website of the Ministry of Finance released the “Ministry of Finance's Reply to the Second Session of the 13th National People's Congress No. 7402” (hereinafter referred to as the “Reply”), which disclosed the amendments proposed by the Ministry of Finance to the representative of the National People's Congress Wang Ling. The content of the reply to the recommendations of the "Public Law of the People's Republic of China on Tendering and Bidding" (hereinafter referred to as the "Tendering and Bidding Law") and the "People's Republic of China's Government Procurement Law" (hereinafter referred to as "Government Procurement Law") for maintaining a uniform legal system.

The "Reply" was written by the Ministry of Finance on July 9 this year.

The Ministry of Finance stated in the "Reply" that "the scope of application of the" Tendering and Bidding Law "and the" Government Procurement Law "is inconsistent to a certain extent. The" Tendering and Bidding Law "applies to bidding and tendering activities in China. The scope of application of the Government Procurement Law involves procurement units (state agencies, institutions, and organizations), procurement funds (financial funds), and procurement targets (goods, engineering, and services). Only the three aspects that meet the legal requirements are included. The scope of adjustment of the government procurement law. As the "Tendering and Bidding Law" was enacted earlier, engineering bidding has been regulated by the "Tendering and Bidding Law", and the "Government Procurement Law" stipulates that: 'Tendering and bidding for government procurement projects shall apply the Tendering and Bidding Law. '. The "Implementation Regulations of the Tendering and Bidding Law" implemented in 2012 and the "Implementation Regulations of the Government Procurement Law" implemented in 2015 have converged the legal application of government procurement projects procured by means of tendering, stipulating government procurement projects and related to project construction. If the goods and services are purchased by bidding, the legal system of bidding and tendering shall be applied. For other forms of procurement, the legal system of government procurement is applicable. The institutional connection between the two laws' implementation regulations has clarified the 'Chu and Han circles' of the two laws to a certain extent. However, in practice, due to the Differences in the understanding of law have led to certain obstacles to the application of law. "

The Ministry of Finance stated in the "Reply" that "the existence of two sets of legal systems, the" Government Procurement Law "and the" Tendering and Bidding Law, "has resulted in the same bidding and tendering. Under different systems, the procurement methods, procurement procedures, review experts and agencies There are many differences in the regulations on management, complaints, legal responsibilities, etc. From an international perspective, most countries only have the "Government Procurement Law" and follow unified procurement rules. There is no "Tendering and Bidding Law", and the relevant rules of tendering and bidding are subject to We serve the government procurement. We support the formulation of a unified "Government Procurement Law" in accordance with international rules and practices, combined with China's procurement practice experience. Taking into account the actual situation of the legislative system and management system, if the Government Procurement Law and the The "Tendering and Bidding Law" does not meet the requirements. We will strengthen our research and propose a domestic government procurement legal system construction plan that is in line with international standards. "

"Early" Government Procurement Law "and" Tendering and Bidding Law "did have the problems of overlapping regulatory bodies and overlapping regulatory content. It is worth noting that the implementation rules of the Tendering and Bidding Law implemented in 2012 further clarified the allocation of supervision power. Article 4 stipulates that the right to guide and coordinate bidding and bidding activities shall be exercised by the development and reform departments, the relevant departments shall supervise the bidding and bidding activities in accordance with the specified division of responsibilities, investigate and deal with illegal acts in the bidding and bidding activities in accordance with the law, and The implementation of the supervision of the implementation of government procurement policies for bidding government procurement engineering construction projects has, to a certain extent, resolved the conflict between the two laws' regulatory powers. "The Ministry of Finance stated in the Reply," About your proposed management power and supervision We strongly agree with the idea of separation of powers and powers. According to the "Government Procurement Law", the government procurement supervision and management department shall not set up centralized procurement agencies or participate in the procurement activities of government procurement projects, basically forming a 'separation of management and procurement, institutional separation, and administrative affairs. Separate and mutually restrictive 'management system. Internally, the government procurement supervision and procurement responsibilities are performed by different agencies, and internal control and supervision and control mechanisms such as division of powers and division of powers are implemented to avoid injustices in the situation of being both referees and athletes. . "

The Ministry of Finance introduced the revision of the Government Procurement Law in the Reply.

"With the continuous deepening of the reform of the government procurement system, the" Government Procurement Law ", which has been implemented for 16 years, has not been able to meet the needs of practical work. There are existing regulations and effective breakthroughs and amendments cannot be achieved in some areas. In recent years, both the theoretical and practical circles, as well as representatives of the National People's Congress and CPPCC members, have proposed legal amendments in different ways, and the Government Procurement Law has been amended. It became a consensus among all parties. "The Reply stated," On November 14, 2018, the Fifth Meeting of the Central Committee for Comprehensive and Deepening Reform reviewed and approved the "Plan for Deepening the Reform of the Government Procurement System," and put forward clear requirements for improving the legal system for government procurement. I The Ministry has included the revision of the "Government Procurement Law" as a research project in the Ministry of Finance's 2019 legislative work plan. In the next step, we will, in accordance with the legislative plan, combine the implementation of the reform plan and China ’s accession to the WTO ’s Government Procurement Agreement negotiations Work needs, focusing on the responsibility of government procurement entities, transaction mechanisms, demand management, performance In terms of contract management, accountability, etc., put forward suggestions for amending the law, and actively promote the work related to the amendment of the "Government Procurement Law."