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Yu An: Preliminary Assumption of Constructing Performance-based Government Procurement System

来源: 中国政府采购报打印10:19, November 25, 2019 Source: China Government Procurement News [ Print ]

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◆ The background of the amendment: The current government procurement system is almost equivalent to the contract-making system centered on public bidding. When legislating, such a system was selected based on a presumptive concept that market competition will naturally bring reasonable prices and Fair selection of suppliers. Practice has proved that the realization of this concept requires some conditions objectively. Unfortunately, we are not always able to provide these conditions, so its practical effects have been questioned and challenged.

◆ The new system of budgetary unit centralism: the restructuring of the government procurement system structure involves the structural adjustment of the relationship between purchasers, non-profit centralized procurement agencies, for-profit procurement agencies, review experts, and regulatory agencies.

◆ The nature of government procurement contracts: The civil procurement contract law is applicable to government procurement contracts. Its shortcomings are too narrow and cannot reflect the particularity of government procurement contracts. Government procurement contracts should be classified according to the specific content, and a diversified structure based on ad hoc systems should be implemented in the procedures for handling disputes. What kind of content in a contract occupies a dominant position is determined as what kind of contract it is, and relevant contract rules, including administrative agreement rules and rules of civil and commercial contracts, apply.

◆ Difference between new resultism and old complianceism: the procedure-oriented system emphasizes procedure complianceism, and the result-oriented performance orientation emphasizes the final evaluation function of results, while procedure compliance is only a stage to achieve legal purposes and cannot show procurement The full legitimacy of the activity. This difference directly gave birth to a new perception of the structure of legal validity.

■ Yu'an

Performance-based government procurement system is a sign of the modernization of government procurement system, and building this system is an important step for China to establish a government procurement system with global competitiveness. 8 31 日,第十二届全国人大常委会第 10 次会议通过《中华人民共和国预算法》修正案,其中提出了实行绩效预算的法律要求。 On August 31 , 2014, the Tenth Session of the Twelfth National People's Congress Standing Committee adopted the amendments to the "Budget Law of the People's Republic of China", which proposed legal requirements for implementing performance budgeting. 9 月,中共中央、国务院发布了《关于全面实施预算绩效管理的意见》,全面实施预算绩效提升到国家治理高度。 In September 2018 , the Central Committee of the Communist Party of China and the State Council issued the "Opinions on the Comprehensive Implementation of Budget Performance Management", and the overall implementation of budget performance has been elevated to the height of national governance. 11 月,中央全面深化改革委员会第五次会议审议通过《深化政府采购制度改革方案》。 In November of the same year , the Fifth Meeting of the Central Committee for Comprehensive and Deepening Reform considered and approved the "Plan for Deepening the Reform of the Government Procurement System." The "Proposal" proposes to establish, in accordance with the requirements of the fiscal and taxation system reform, the establishment of high-quality and favorable price procurement results and user feedback as the guidance, clear responsibilities of procurement entities, scientific and efficient trading rules, sound regulatory mechanisms, complete policy functions, complete legal systems, and advanced technical support The modern government procurement system has accelerated the establishment of a modern financial system. Therefore, the entire government procurement should gradually shift to a new modern performance-oriented system.

In recent years, the Ministry of Finance has conducted important explorations on reforms to promote the transformation of the government procurement system into a performance-oriented transformation. 11 月,财政部发布《关于进一步加强政府采购需求和履约验收管理的指导意见》(财库〔 2016 205 号)等文件,为系统地进行政府采购制度改革提供了重要经验。 In November 2016, the Ministry of Finance issued documents such as "Guiding Opinions on Further Strengthening the Management of Government Procurement Demand and Performance Acceptance" (Cai Ku [ 2016 ] No. 205 ) and other documents, which provided important experience for the systematic reform of the government procurement system. At present, one of the tasks to implement the requirements of the Party Central Committee and the State Council is to actively prepare for the revision of the Government Procurement Law and promote the establishment of a new legal system of performance-based government procurement. Here, from the two aspects of basic understanding and system construction, we explore the preliminary assumptions of a transition to a performance-based government procurement system.

80 年代以来国际上以绩效为导向的公共部门改革,而我国政府采购制度是新世纪引入的。 The performance-based government procurement system originated from the international performance-oriented public sector reform since the 1980s , and China's government procurement system was introduced in the new century. Due to insufficient theoretical preparations, China did not pay due attention to the performance-oriented government procurement that was taking shape when the government procurement system was established. At that time, the basic concepts and attentions about government procurement were more focused on the formation of the government procurement market, so a system that highlighted government procurement procedures was formed. The procedural government procurement system emphasizes the protection of supplier rights and the fairness of market competition, especially the competitive system in the conclusion of contracts. The government procurement system is almost equivalent to a contract-making system centered on public bidding. At that time, the choice of such a system was based on a presumptive concept that market competition would naturally lead to reasonable prices for government procurement and fair selection of suppliers. Practice over the years has proved that the realization of this concept objectively requires some conditions. Unfortunately, we are not always able to provide these conditions, so its practical effects have been questioned and challenged. Government procurement is a system that uses the market to improve government efficiency. Regarding the government's ability to use the market without being counter-exploited by the market and not being captured by the market, it has long lacked effective measurement methods and made accurate judgments. Practice has proved that when the government's ability to use the market is insufficient, the government may be counter-exploited by the market. The typical manifestation of the government's anti-utilization by the market is that it did not work or spent a lot of money for wrongdoing. Now it is necessary to completely reform this system.

In order to effectively play the role of government procurement and achieve the purpose of government procurement, to prevent and solve the problem of government anti-utilization and even market capture, a basic choice is to implement a new, performance-based system. The new model of performance-oriented government procurement can be considered from two aspects: First, the restructuring of the institutional structure, that is, the implementation of a new unit-centered budget system. This system involves the structural adjustment of the relationship between purchasers, non-profit centralized procurement agencies, for-profit procurement agencies, review experts and regulatory agencies. When designing the system in this regard, priority should be given to the construction and improvement of the government's ability to use the market, and at the same time, basic systems such as performance goals, evaluation of performance goals, and performance responsibility should be designed. The second is the reconstruction of the process structure, that is, a new process structure based on performance results. The basic links are the management of procurement requirements, the flexible use of contracting parties, active contract performance, and the evaluation and application of final procurement results. This new structure will end the procedural-oriented competitive centric procurement process.

The system structure of the Government Procurement Law should be adjusted significantly in accordance with the requirements of the performance-based system. According to the needs of the construction of a performance-based system, performanceism is taken as the vertical pillar and overall center of the new "Government Procurement Law", and a new system structure of parallel performance management and procurement contract systems is implemented. The system is conceived as ten aspects, including general principles, government purchasers, suppliers, agency and consulting services, government procurement management, public policy functions, contract formation, contract performance, business environment and supervision management, and dispute resolution. Procurement methods and procedures are only used as a link and placed in the system of contract formation. The new system is envisaged to highlight the role of performance in two main areas. The first is to establish a performance responsibility system, that is, a procurement system centered on the purchaser. “政府采购人”单独设立为一章,强调采购人的主体地位,解决其主体责任问题。 The "government purchaser" was set up as a separate chapter, emphasizing the main position of the purchaser and solving its main responsibility problem. The second is to add a chapter "Government Procurement Management", centering on demand management and performance acceptance management to establish performance management issues for government procurement. Through the reform of the system, the main responsibility status of purchasers was emphasized, and the government's ability to use the market was enhanced by strengthening performance management.

Therefore, the current Government Procurement Law will undergo major adjustments. The current "Government Procurement Law" is divided into nine chapters, including general rules, government procurement parties, procurement methods, government procurement procedures, government procurement contracts, queries and complaints, supervision and inspection, legal responsibilities and supplementary provisions. This system is built around procurement methods and procedures, or it is built around the contract or the conclusion of the contract. Because a basic assumption in the legislation is that according to the established procurement methods and procedures, government procurement can obtain the best prices, achieve procurement objectives, and select suppliers most impartially. The system construction at the time was to serve procedures and methods. As a result, buyers were marginalized. In this way, no one is responsible for the final result of the procurement, so according to the principle of performance management, this system must be completely reformed.

The government's use of the market is achieved through contracts, so the contract issue is the basic issue of government procurement and the basic system for handling the relationship between the government and suppliers. The current "Government Procurement Law" stipulates that the contract law, that is, the civil and commercial contract law, applies to government procurement contracts. This provision was restricted by the development of the domestic contract legal system at that time. Its shortcoming is that it is too narrow to reflect the particularity of government procurement contracts, but to completely equate government procurement contracts with civil contracts. From the analysis of the object, content and purpose of the government procurement contract, it is very different from the civil commercial contract. The government's use of the market is different from the civil and commercial activities of enterprises. The purpose of government procurement is not to make a profit, but to perform government functions and provide public services, and to implement related national policies. Therefore, the design of the new system should differentiate the types of government procurement contracts according to specific content, and implement a diversified structure based on the matter in the procedures for handling disputes. What kind of content in a contract occupies a dominant position is determined as what kind of contract it is, and relevant contract rules, including administrative agreement rules and rules of civil and commercial contracts, apply.

An important legal issue in implementing the new system is to properly handle the relationship between new resultism and old complianceism. The procedure-oriented system emphasizes procedural complianceism, and the results-oriented performance orientation emphasizes the final evaluation function of results, while procedural compliance is only a stage to achieve legal purposes and cannot show the full legitimacy of procurement activities. This difference directly gave rise to a new understanding of the structure of legal validity, which is a very important fundamental legal issue. The legal validity of procurement activities is not limited to whether the legal rules themselves have been complied with, but also whether the ultimate social purpose of the legal system design can be achieved. As a result, the structure of legal validity must be changed. Therefore, the implementation of the results-based performance system can promote the reconstruction of the legal value system of the government procurement system, especially regarding the definition of legal efficiency and the structure of legal effectiveness. Of course, the introduction of a results-oriented performance system will also change the structure of the object of legal protection and the mechanism of system implementation.

“修订《政府采购法》研讨会”上的演讲内容整理而成,有删节) (The author is the person in charge of the research project on the revision of the Government Procurement Law, a member of the drafting advisory group of the former Government Procurement Law of the Financial and Economic Committee of the National People's Congress, a professor at the School of Public Management of Tsinghua University, and the director of the government research institute. The content of his speech at the "Revision of the" Government Procurement Law "Seminar organized by the Law School of Nankai University has been compiled, with abridgement)

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Recently, a seminar on the revision of the "Government Procurement Law" was held at the Law School of Nankai University in Tianjin. Well-known scholars from the theoretical world and representatives of the operational department conducted in-depth exchanges on several major issues in the revision of the "Government Procurement Law" in accordance with budget performance requirements. “大咖”的引导下,与会嘉宾结合修法研究提纲,分别就总则、政府采购人、供应商、代理与咨询服务、政府采购管理等十个方面的内容进行了研讨,迸射出思想的火花。 Under the guidance of "big coffee" such as Professor Yu An from the School of Public Management of Tsinghua University, Professor He Hongfeng from the Law School of Nankai University, and Fu Dean, the Deputy Dean of the Tianjin University of Technology , the participating guests combined the law revision research outlines with regard to the general rules and government purchasers. , Suppliers, agents and consulting services, government procurement management and other ten aspects of the content were discussed, and the sparks of ideas were launched. In this issue, this special issue of the report by Professor Yu An on the revision of the "Government Procurement Law" at this seminar, followed by the wonderful speech content of the guests at various discussion sessions, to learn and think with readers .