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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08:31, December 26, 2019 Source: China Government Procurement News [ Print ]

■ Zhou Jinfu, Deng Jingxiang

PPP ”)项目中得到了广泛应用,取得了良好的社会、经济效益。 In recent years, the competitive negotiation and procurement method has been widely used in government procurement projects, goods and services, especially in government and social capital cooperation (hereinafter referred to as " PPP ") projects, and has achieved good social and economic benefits. PPP 项目采购领域得到更为普遍的运用。 With the advancement of innovative work such as government procurement of services, competitive negotiation procurement methods may be more widely used in the field of PPP project procurement. PPP 项目的应用来研究及解读竞争性磋商采购方式具有积极意义。 Therefore, it is of great significance to study and interpret the competitive negotiation and procurement method with the application of PPP projects.

Background of the introduction of competitive negotiation procurement methods

Accurately understand the production process of competitive negotiation procurement methods. PPP 模式等重要改革任务。 The Fourth Plenary Session of the 18th CPC Central Committee put forward important reform tasks such as advancing government purchase of services and promoting the PPP model. PPP 项目的公共性和公益性,财政部遵循立法先行和依法采购原则,依据《中华人民共和国政府采购法》(以下简称《政府采购法》)第二十六条规定,借助欧盟国家广泛运用的竞争性对话采购方式,于 2014 12 31 日印发了《政府采购竞争性磋商采购方式管理暂行办法》(财库〔 2014 214 号)(以下简称“ 214 号文” ) ,依法创设了竞争性磋商这一全新的采购方式。 Aiming at the new situations encountered in practice in terms of procurement requirements, procurement methods, contract management, performance acceptance, performance evaluation and other aspects in the procurement of goods, engineering and services, new problems were found, especially the publicity and public welfare of PPP projects The Ministry of Finance follows the principle of legislation first and lawful procurement, and in accordance with Article 26 of the Government Procurement Law of the People's Republic of China (hereinafter referred to as the "Government Procurement Law"). On December 31 , 2014 , the Interim Measures for the Administration of Competitive Consultative Procurement Modes in Government Procurement (Cai Ku [ 2014 ] No. 214 ) (hereinafter referred to as " Document 214 " ) was created, and a brand-new competitive procurement was created in accordance with the law the way. 3 家的问题,于 2015 6 30 日印发了《关于政府采购竞争性磋商采购方式管理暂行办法有关问题的补充通知》(财库〔 2015 124 号)并明确,采用竞争性磋商采购方式采购的政府购买服务项目(含 PPP 项目),在采购过程中符合要求的供应商(社会资本)只有 2 家的,竞争性磋商采购活动可以继续进行。 At the same time, the Ministry of Finance issued the "About the Government" on June 30 , 2015 in accordance with the new situation and new problems encountered by localities in competitive negotiation and procurement activities, especially the number of suppliers participating in the competitive negotiation. Supplementary Notice on Issues Concerning the Interim Measures for the Management of Procurement Competitive Negotiation Procurement Methods (Cai Ku [ 2015 ] No. 124 ) and it is clear that government procurement service items (including PPP projects) purchased using competitive negotiation procurement methods comply with the procurement process. With only two suppliers (social capital) required , competitive negotiation and procurement activities can continue. 1 家的,采购人(项目实施机构)或者采购代理机构应当终止竞争性磋商采购活动,发布项目终止公告并说明原因,重新开展采购活动。 If there is only one supplier (social capital) that meets the requirements during the procurement process , the purchaser (project implementation agency) or procurement agency shall terminate the competitive negotiation of procurement activities, issue a project termination announcement and explain the reasons, and restart procurement activities. This has played a good guiding role in improving the competitive negotiation and procurement method.

PPP 模式需求特点,推广应用竞争性磋商等非招标采购方式, 2015 年财政部政府采购工作要点要求开展政府购买服务结果评价试点工作。 In order to adapt to the characteristics of government procurement services and PPP model demand, and promote the application of non-tender procurement methods such as competitive negotiation, the main points of the government procurement work of the Ministry of Finance in 2015 require the pilot evaluation of government procurement service results. PPP 模式,规范 PPP 项目采购活动,财政部借鉴了国际经验,特别是联合国贸易法委员会《私人融资基础设施项目示范法》及其立法指南中的有效做法,并与《关于印发政府和社会资本合作模式操作指南(试行)的通知》(财金〔 2014 113 号)(以下简称“ 113 号文” ) 第四章“项目采购”中的有关内容作了衔接, 2014 12 31 日财政部印发了《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” ) ,其中的第四条规定,“ PPP 项目采购方式包括公开招标、邀请招标、竞争性谈判、竞争性磋商和单一来源采购”,再一次巩固了竞争性磋商采购方式在 PPP 项目采购中的法律地位。 In order to better promote the PPP model and regulate PPP project procurement activities, the Ministry of Finance draws on international experience, in particular the effective practices in the UNCITRAL Model Law on Privately Financed Infrastructure Projects and its legislative guide, and is in line with the Notice of the Guidance on the Operation of the Government and Social Capital Cooperation Model (Trial) (Cai Jin [ 2014 ] No. 113 ) (hereinafter referred to as " No. 113 " ) The relevant content in Chapter 4 "Project Procurement" was linked, December 2014 On March 31 , the Ministry of Finance issued the "Measures for the Administration of Government and Social Capital Cooperation Projects for Government Procurement" (Cai Ku [ 2014 ] No. 215 ) (hereinafter referred to as " Document 215 " ) , and Article 4 of which stipulates that "the PPP project procurement method Including public bidding, invitation to bid, competitive negotiation, competitive negotiation and single-source procurement, "once again consolidated the legal status of competitive negotiation procurement methods in PPP project procurement.

Innovations in the PPP government procurement management approach. PPP 项目采购中涉及的制度主要有 214 号文、 215 号文、 113 号文等。 Competitive negotiation and procurement methods The systems involved in the procurement of PPP projects mainly include Circulars 214 , 215 , and 113 . 号文在 PPP 项目采购中具有重要地位,创新举措很多,笔者认为,可以概括为六个方面:一是竞争性磋商这一新的采购方式,引入了两阶段采购模式,能够确保 PPP 项目采购高效,实现“物有所值”的价值目标。 Circular 215 plays an important role in PPP project procurement, and there are many innovative measures. The author believes that it can be summarized into six aspects: First, the new procurement method of competitive negotiation, the introduction of a two-stage procurement model, which can ensure the procurement of PPP projects. Efficient and achieve the value goal of "value for money". PPP 项目采购的成功率和减少质疑投诉及其他争议。 The second is to increase pre-qualification, on-site inspections and Q & As, procurement results, and disclosure of contract texts, to ensure the success rate of PPP project procurement and reduce the number of complaints and other disputes. The third is to set up the negotiation results confirmation clauses, and authorize the project implementation agency to select procedures such as review experts to ensure the quality and effectiveness of project procurement. The fourth is to reflect the policy function of government procurement to maintain national security, emphasizing the policy requirements for procurement of domestic goods and services, technology introduction and transfer, etc., in the pre-qualification announcement, procurement announcement, procurement documents, and project contracts. Fifth, the supervision of government procurement has been optimized. PPP 项目采购金额大、后续监管链条长、过程复杂等特点,创新了监管方式,对项目履约实行强制信用担保,用市场化方式引入第三方监管,项目采购完成后公开项目采购合同,引入社会监督,弥补了行政监督手段的不足。 Combining the characteristics of large purchase amount of PPP project, long follow-up chain of supervision, and complicated process, it has innovated the supervision method, implemented compulsory credit guarantee for project performance, introduced third-party supervision with marketization method, and released project procurement contract after the completion of project procurement to introduce society Supervision has made up for the lack of means of administrative supervision. Sixth, the government procurement agency business was clarified. PPP 项目复杂程度高和采购人专业性、经验不足的实际,规定可以由政府采购代理机构承担 PPP 项目的采购代理业务,财政部还专门印发了《政府和社会资本合作( PPP )咨询机构库管理暂行办法》(财金〔 2017 8 号)的配套文件。 In light of the complexity of PPP projects and the professionalism and lack of experience of purchasers, it is stipulated that government procurement agencies can undertake the procurement agency business of PPP projects. The Ministry of Finance has also specially issued the "Government and Social Capital Cooperation ( PPP ) Consulting Agency Database" Supporting documents of the Interim Measures for Administration (Cai Jin [ 2017 ] No. 8 ).

The connection and difference between competitive negotiation and competitive negotiation procurement methods. Competitive negotiation and competitive negotiation can be distinguished from various aspects and angles from the legislative level, the approval of procurement methods, and final quotation. “先明确采购需求、后竞争报价”的两阶段采购模式,自始至终倡导“物有所值”。 The core of the competitive negotiation procurement method is the two-stage procurement model of “clear procurement requirements first, then competitive quotation”, and advocate “value for money” from beginning to end.

“明确采购需求”阶段,二者关于采购程序、供应商采购方式、磋商或谈判公告要求、响应文件要求、磋商或谈判小组组成等方面的规定基本一致。 The two procurement methods of competitive negotiation and competitive negotiation are both related and different in terms of process design and specific rules: at the stage of "clarifying procurement requirements", the two have concerns about procurement procedures, supplier procurement methods, negotiation or negotiation announcement requirements, The requirements for response documents, consultations, or the composition of the negotiating group are basically the same. 项目在建设、运行、移交阶段,对中标供应商的实践能力要求很高,价格因素不能作为决定因素。 As the PPP project is in the construction, operation and transfer stage, it requires high practical ability of the winning bidder, and the price factor cannot be used as the determining factor. PPP 项目都有其自身的特殊性,不同的 PPP 项目在投融资模式、收益分配、风险分担、考核指标(绩效评价)、政府付费(或者使者讨费)等方面,都或多或少存有差别。 At the same time, each PPP project has its own particularities, and different PPP projects have more or less in terms of investment and financing models, income distribution, risk sharing, assessment indicators (performance evaluation), government payments (or messenger fees), etc. There are fewer differences. 项目更侧重提供公共服务所产生的社会效益、项目能否顺畅运行、能否达到预期目标,需要的是有专业技术、融资能力、建设和运营管理能力的供应商,这是竞争性谈判方式难以保证的。 PPP projects focus more on the social benefits provided by the provision of public services, whether the project can run smoothly, and whether it can achieve the expected goals. What is needed is a supplier with professional technology, financing capabilities, construction and operation management capabilities. This is a competitive negotiation method. Hard to guarantee. At the "competitive quotation" stage, competitive negotiation adopted a "comprehensive scoring method" similar to open tendering, which is different from the principle of "equal procurement requirements, equal quality and service, and lowest quotation" as stipulated in Article 38 of the Government Procurement Law "Determine the supplier to be negotiated."

Adaptability of competitive negotiation procurement methods

Article 2 of Circular 214 stipulates that the competitive negotiation procurement method is applicable to the procurement of goods, engineering and services. This scope of application is from tangible products to intangible products, from patents, proprietary technologies to scientific and technological research, and scientific and technological achievements, thereby effectively filling the gaps in the Government Procurement Law.

Optimization of principle and flexibility. PPP 项目一般投资较大、建设内容(需求)复杂、技术要求高、运行时间长、采购对象复杂,项目实施机构大多由于第一次做 PPP 项目,很难在短时间内对项目进行设计、预算,甚至有的项目实施机构对项目的技术需求、运行要求等也不是很清楚。 The procurement of PPP projects is mainly in the field of public products and public services. Generally , PPP projects have large investment, complicated construction content (demand), high technical requirements, long operating time, and complicated procurement targets. Most of the project implementation agencies have done PPP projects for the first time. It is difficult to design and budget for the project in a short time, and even some project implementation agencies are not very clear about the technical requirements and operational requirements of the project. The social capital side has more advantages and experience because it has done similar projects or engaged in research in professional fields. Establish a competitive consultation group and negotiate with suppliers in a targeted manner, which will help buyers and buyers better understand project needs. PPP 项目政府采购在政策层面和具体项目层面掌握的原则性和灵活性,这是其他采购方式不具有的,说明在政府购买服务或 PPP 项目的采购上,竞争性磋商适应性更强。 Competitive negotiation Procurement method In addition to the negotiation phase of the review, there is also a process of negotiation of the buyer's confirmation phase and the negotiation of contract details, which further optimizes the principles and flexibility of PPP project government procurement at the policy level and the specific project level. It is not available in other procurement methods, which indicates that in the government procurement of services or procurement of PPP projects, competitive negotiation is more adaptable.

Conducive to improving the business environment. The basic requirements of a good business environment are openness, fairness, justice and order. Article 23 of Circular 214 clearly stipulates the comprehensive scoring method. The competitive negotiation has prevented the vicious competition of low prices to a certain extent. During the "competitive quotation" stage, the consultation team used the comprehensive scoring method to comprehensively score the response documents of the last quoted supplier and the final quote, and the highest comprehensive score was the concluded supplier. The price score is no longer the dominant factor in competition. During the negotiation process, more comprehensive capabilities such as the supplier's qualifications, credit, investment and financing capabilities, and operational management experience are taken into consideration to meet the procurement requirements to the greatest extent. The possibility of low-cost and low-performance transactions for suppliers is greatly reduced. Comprehensively and accurately inspect the supplier's corporate strength, proprietary capabilities, business level and other corporate credibility. The selected supplier is more suitable for the project, facilitates the sustainable implementation of the project, and promotes the best combination of economic and social benefits.

Conducive to achieving win-win cooperation. Article 17 of Circular 113 stipulates that the review team conducts two-stage review of the response document. The first stage: determine the final procurement demand plan; the second stage: comprehensive scoring. The core content of the two-phase negotiation is "determining procurement requirements first and then adopting competitive quotations." This mechanism grasps the individual characteristics and important links of the project. The negotiation team and the supplier can start negotiations on the differences in project procurement, which is beneficial to Achieving the government's ultimate goal of project procurement fully embodies the principles of fairness, impartiality, and reasonableness, which is conducive to the performance of the contract between the two parties, and can better reflect the legislative spirit of the Government Procurement Law.

Reduce procurement time and improve procurement efficiency. PPP 项目投资大、技术复杂,涉及规划、设计、环评、水保、用地政策处理等问题,前期决策、论证和审批过程较长。 Due to the large investment and technical complexity of PPP projects, which involve issues such as planning, design, environmental assessment, water conservation, and land use policy processing, the preliminary decision-making, demonstration, and approval processes are relatively long. 号文第十条规定“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”。 Article 10 of Circular 214 stipulates that "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". Compared with the "Government Procurement Law" Article 35, "If the procurement of goods and services is conducted through tendering, the period from the date of the issuance of tender documents to the deadline for submission of bids by bidders shall not be less than 20 days. "The time requirement was cut in half.

Effectively alleviate the shortage of suppliers. Articles 6 and 7 of Circular 214 stipulate that there are three ways to select suppliers: one is to randomly select from a supplier database established by provincial (including provincial) or higher financial departments; the other is written by the purchaser and review expert Recommended; the third is to invite by announcement. In the event of inviting suppliers by means of announcement, the purchaser and procurement agency shall issue a competitive consultation announcement in the government procurement information release media designated by the financial department of the people's government at or above the provincial level. This extensive method of soliciting suppliers provides a legal basis for buyers to choose their own suppliers. If the purchaser wants to solicit suppliers from all over the country, it can use the method of public announcement. If it wants to invite capable suppliers, it can use the recommended method to solicit suppliers. 号文第二十一条还指出,“符合本办法第三条第四项情形的,提交最后报价的供应商可以为 2 家”, 124 号文同时指出,在采购过程中符合要求的供应商只有 2 家的,竞争性磋商采购活动可以继续进行,这样规定,能最大限度地解决特殊项目供应商不足的难题。 Article 21 of Circular 214 also states that “in the case of Article 3 and Paragraph 4 of these Measures, there can be 2 suppliers who submitted the final quotation. Circular 124 also states that in the procurement process, suppliers that meet the requirements There are only two suppliers, and the competitive negotiation and procurement activities can be continued. In this way, the problem of insufficient suppliers for special projects can be solved to the greatest extent.

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