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"Practical Use" of Competitive Negotiation and Procurement by PPP Project

来源: 中国政府采购报打印08:30, December 26, 2019 Source: China Government Procurement News [ Print ]

■ Zhou Jinfu, Deng Jingxiang

Operation of competitively negotiated procurement methods

The PPP model is a life-cycle partnership established between the government and social capital to provide public goods or services. It is based on the granting of franchise rights and is characterized by benefit sharing and risk sharing. By introducing market competition and incentive and restraint mechanisms, Take advantage of both parties to improve the quality and supply efficiency of public goods or services. 模式要处理好政府与市场主体之间的关系,由“经营者”转变为“监管者”“合作者”,是发挥投资人在整合设计、建设、运营、管理等方面的综合优势的特殊采购活动。 The PPP model needs to handle the relationship between the government and market entities, and change from "operator" to "supervisor" and "cooperator". It is a special case that takes advantage of the comprehensive advantages of investors in integrated design, construction, operation, and management. Procurement activities. Paragraph 7 of Article 2 of the "Government Procurement Law" clearly states that services referred to in this law refer to objects of government procurement other than goods and projects, which are the bottom-line provisions of government procurement services. PPP 项目属于服务类项目的政府采购范畴。 From the legal definition, PPP projects belong to the government procurement category of service projects. PPP 合作供应商时都遵循政府采购规则,并把服务和工程特许经营权的授予也视为政府采购公共服务的范畴,将其纳入政府采购监管范围。 The major international organizations and countries in the world follow the government procurement rules when selecting PPP cooperative suppliers, and also consider the granting of service and engineering franchise rights as the scope of government procurement public services, and include them in the scope of government procurement supervision. PPP 项目选择合作伙伴的过程纳入政府采购管理,促进了我国政府采购制度与国际规则的接轨。 Therefore, the process of selecting partners for PPP projects is incorporated into government procurement management, which promotes the convergence of China's government procurement system with international rules.

Accurately define the scope of application. PPP 项目则要求纳入中长期财政预算管理。 PPP projects and government purchase service projects are both connected and different. Government purchase services must be budgeted before purchasing, while PPP projects are required to be included in the medium and long-term fiscal budget management. 2014 214 号)(以下简称“ 214 号文” ) 第三条规定的条件。 Therefore, the competitive negotiation procurement method must meet the conditions stipulated in Article 3 of the Interim Measures for the Management of Competitive Consultative Procurement Methods for Government Procurement (Cai Ku [ 2014 ] No. 214 ) (hereinafter referred to as " Document 214 " ) .

Strict implementation of approval procedures. The competitive negotiation and procurement method is a method of government procurement, and it is a non-public bidding method. The provisions of the "People's Republic of China Government Procurement Law" and related supporting policies must be strictly implemented. Article 4 of Circular No. 214 stipulates that if the procurement of goods and services that meets the standard of public bidding is planned to adopt the competitive negotiation procurement method, the purchaser shall report to the competent budget unit before the procurement activity begins, and shall establish a district in accordance with the law. Of the municipalities, autonomous prefectures and above have applied for approval. PPP 项目,政府直接批准竞争性磋商采购方式;二是经过二次公开招标或者邀请招标失败,政府批准改变采购方式为竞争性磋商。 In some provinces, there are two main methods of competitive negotiation and procurement: first , the government directly approves competitive negotiation and procurement methods for PPP projects that meet the conditions of competitive negotiation; Change procurement methods to competitive negotiation.

Standardize the preparation and demonstration of procurement documents. The main documents of the PPP project include “two reports and one plan”, procurement announcements, procurement documents (including pre-announcement announcements, pre-qualification documents, competitive negotiation documents, supplementary documents), contract texts, etc. These documents all require professionals or intermediaries (consultation ) Institutional establishment and demonstration methods are three types: first, the purchaser hires a procurement expert to demonstrate; second, the purchaser hires a third-party intermediary consulting agency to demonstrate; third, the administrative supervision department demonstrates.

Carry out market testing at the right time. 87 号)、《关于推进和完善服务项目政府采购有关问题的通知》(财库〔 2014 37 号)等相关规定,对经济、社会和环境影响重大的、社会公众普遍关注的公益性建设项目,以及社会资本方参与度不高的项目,有必要在实施方案批复之后,在省一级的政府网站上公开发布征集社会资本方的公告,邀请有意向的社会资本方对项目方案进行测试,通过市场测试和政府的推介会,使项目更好地适应市场需求,更好地编制项目实施方案,从而提高 PPP 项目落地成功率。 According to the "Administrative Measures on Tendering and Bidding of Government Procurement of Goods and Services" (Order of the Ministry of Finance No. 87 ), "Notice on Promoting and Improving Government Procurement of Service Items" (Cai Ku [ 2014 ] No. 37 ) and other relevant regulations, Public welfare construction projects that have significant social and environmental impacts and are generally concerned by the public, as well as projects with low participation by the social capital side, need to be publicly posted on the provincial government website to collect social capital after the implementation plan is approved. The party ’s announcement invites interested social capital parties to test the project plan. Through market testing and government promotion meetings, the project can better adapt to market demand and better compile the project implementation plan, thereby improving the success rate of PPP project landing. .

Conduct pre-qualification in accordance with law. 政府和社会资本合作项目政府采购管理办法》(财库〔 2014 215 号)(以下简称“ 215 号文” ) 第五条规定, PPP 项目采购应当实行资格预审。 Article 5 of the " Administrative Measures on Government Procurement of Government and Social Capital Cooperation Projects" (Cai Ku [ 2014 ] No. 215 ) (hereinafter referred to as " Document 215 " ) stipulates that pre-qualification review shall be implemented for PPP project procurement. PPP 中心)备案。 The project implementation agency shall prepare pre-qualification documents according to the needs of the project, issue pre-qualification announcements, invite social capital and financial institutions that cooperate with it to participate in the pre-qualification review, verify whether the project can obtain social capital response and achieve full competition, and submit a pre-qualification review report Submit to the financial department ( PPP center) for the record. The pre-qualification announcement shall be published on the media designated by the financial department of the people's government at or above the provincial level. 项目资格预审文件的发售期不得少于 5 日。 The sale period of the pre-qualification documents for PPP projects shall not be less than 5 days. 2014 113 号)(以下简称“ 113 号文” ) 第十四条明确,提交资格预审申请文件的时间自公告发布之日起不得少于 15 个工作日。 In addition, Article 14 of the "Notice on Printing and Distributing the Operational Guidelines for the Cooperative Model of Government and Social Capital (Trial)" (Cai Jin [ 2014 ] No. 113 ) (hereinafter referred to as " No. 113 " ) specifies the time for submitting prequalification application documents No less than 15 working days from the date of the announcement .

Post purchase announcement. 214 号文第十条,从磋商文件发出之日起至供应商提交首次响应文件截止之日止不得少于 10 日,磋商文件的发售期限自开始之日起不得少于 5 个工作日,这些时限规定都必须严格遵守。 According to Article 10 of Circular 214 , the period from the date of issue of the consultation document to the deadline for the submission of the first response document by the supplier shall not be less than 10 days, and the sale period of the consultation document shall not be less than 5 working days from the date of commencement . These time limits must be strictly adhered to.

Pay attention to Q & A and clarification. 214 号文第十条的规定,提交首次响应文件截止之日前,采购人、采购代理机构或者磋商小组可以对已发出的磋商文件进行必要的澄清或者修改,澄清或者修改的内容作为磋商文件的组成部分。 Pursuant to Article 10 of Circular 214 , before the deadline for submission of the first response document, the purchaser, procurement agency or consultation group may make necessary clarifications or amendments to the consultation documents that have been issued, and the contents of the clarifications or amendments shall be used as consultation documents. component. 5 日前,以书面形式通知所有获取磋商文件的供应商;不足 5 日的,采购人、采购代理机构应当顺延提交首次响应文件截止时间。 If the clarification or modification may affect the preparation of the response document, the purchaser and the procurement agency shall notify all suppliers that have obtained the consultation document in writing at least 5 days before the deadline for submitting the first response document ; if less than 5 days, the purchaser, The procurement agency shall postpone the deadline for submitting the first response document. It should be noted that it is not recommended to disclose the overall implementation plan before procurement, and some contents may be announced. The purpose of the investment promotion stage is to test the responsiveness of social capital and facilitate the selection of the best social capital party in the procurement process.

Form a consultation group. 215 号文第七条、 113 号文第十六条都规定,应组建磋商小组,由磋商小组对响应文件进行两阶段评审。 Article 14 of Circular 214 , Article 7 of Circular 215 , and Article 16 of Circular 113 stipulate that a consultation group shall be established and the consultation group shall conduct a two-stage review of the response document. The first stage: determine the final procurement requirements program. The consultation group may conduct multiple rounds of negotiations with social capital. During the negotiation process, the technical and service requirements of the procurement documents and the terms of the draft contract may be substantially revised, but the core non-negotiable conditions specified in the procurement documents may not be revised. The second stage: comprehensive scoring. After the final purchase demand plan is determined, the review expert will comprehensively score the final response file submitted by social capital, prepare a review report, and submit a sorted list of candidate social capital to the project implementing agency.

Sign memorandum. 113 号文第二十条、第二十一条和 215 号文第十六条规定进行确认谈判,确认谈判不得涉及合同中不可谈判的核心条款,不得与排序在前但已终止谈判的社会资本进行再次谈判。 If the negotiation group is not authorized in writing to directly determine the closing supplier , confirmation negotiations shall be conducted in accordance with Articles 20, 21, and 215 of Article 215 , and the confirmation shall not involve core non-negotiable clauses in the contract. Shall not be renegotiated with the social capital that has been ranked first but whose negotiations have been terminated. 5 个工作日。 After the confirmation negotiation is completed, the project implementation agency shall sign the confirmation negotiation memorandum with the selected candidate, and publicize the procurement results and the procurement documents, response documents, addendum documents and contract texts prepared by the confirmation negotiation memorandum. The publicity period shall not be less than 5 working days. . The text of the contract shall include the important commitments and technical documents in the selected social capital response document as attachments. The contents of the contract that involve state secrets and trade secrets may not be publicly disclosed. PPP 项目合同的重要依据之一。 It is confirmed that the negotiation memorandum has the legal effect of a phased framework agreement. The government and social capital have confirmed in the form of a memorandum of important terms in the procurement negotiations as one of the important basis for the two parties to sign a PPP project contract after the announcement of the winning bid .

Standardize contract negotiations. The PPP contract should be fully negotiated by the two parties, mainly to negotiate matters that are not clear in the contract text and matters that need to be improved. During the negotiation process, both the purchaser and the pre-bid supplier can raise issues, including issues not considered in the procurement stage and the implementation of the latest national policy. However, the procurement documents, the text of the procurement contract, the conditions that the supplier has promised, and other core terms must not be changed. The contract negotiation team is composed of professionals from the project implementation agency and relevant administrative departments, and may also be composed of procurement experts.

Sign the contract in a timely manner. In terms of contract signing, three main points should be grasped: First, the contract text is submitted for approval. The PPP project contract shall be submitted to the people's government at the same level for approval after it has been reviewed by relevant functional departments, such as industry authorities, financial departments, and legal departments, after the project procurement announcement is completed and before it is officially signed. The second is the signing time. 30 日内,由项目实施机构与成交供应商签订政府采购合同(合作协议)。 The purchaser and the contracted supplier shall sign a government procurement contract (cooperation agreement) between the project implementation agency and the contracted supplier within 30 days of the date of the contract notification . Where the consortium bids, all parties to the consortium shall participate in the signing of the cooperation agreement. After the project company is established, the project company must sign a project contract with the project implementation agency, or sign a supplementary contract to inherit the project cooperation agreement. The third is to publicize the contract text. 2 个工作日内,将项目合同在省级以上人民政府财政部门指定的媒体上公告,但合同中涉及国家秘密、商业秘密的内容除外。 The project implementing agency shall announce the project contract on the media designated by the financial department of the people's government at or above the provincial level within 2 working days from the date of signing the project contract, except for the contents involving state secrets and commercial secrets in the contract.

PPP 项目,有其规范的采购程序。 In summary, a complete PPP project has its standardized procurement procedures. PPP 项目采购中得到广泛应用,是因为其不仅符合政府采购法要求,也是发挥竞争性磋商采购方式特点的积极表现,只要依法有序规范操作,相信竞争性磋商方式将在政府采购项目,尤其是 PPP 项目采购中发挥应有的作用。 The competitive negotiation method is widely used in PPP project procurement because it not only meets the requirements of the government procurement law, but also is a positive expression of the characteristics of the competitive negotiation procurement method. As long as it operates in an orderly and standardized manner, it is believed that the competitive negotiation method will Procurement projects, especially PPP projects, play their due role.

(Author: Zhou Jinfu, Jiangshan Municipal Finance Bureau of Zhejiang Province; Deng Jingxiang, Jiangshan Public Resources Trading Supervision Office)