Definition of government procurement projects that apply to the Government Procurement Law
1. Definition of government procurement projects
Government procurement projects shall apply to the "Tendering Law" or the "Government Procurement Law", which consists of two concepts: government procurement and engineering.
(I) Government Procurement
Article 2, paragraph 2 of the Government Procurement Law stipulates: "The government procurement referred to in this Law refers to the act of state organs, public institutions and groups at all levels to purchase goods, projects and services within the centralized procurement catalog formulated in accordance with the law or above the procurement limit standards." It can be seen from this that whether the procurement behavior belongs to government procurement should be judged from the four requirements of the procurement entity, the source of funds, the scope of procurement and the target. If one requirement is not met, it does not belong to government procurement, and its procurement behavior is not adjusted by the Government Procurement Law.
(II) Project
Article 2, Paragraph 6 of the Government Procurement Law stipulates: "The project referred to in this Law refers to a construction project, including the new construction, reconstruction, expansion, decoration, demolition, repair, etc. of buildings and structures." According to this provision, it has nothing to do with the new construction, reconstruction, and expansion of buildings and structures, and separate decorations belong to government procurement projects.
Article 2, paragraph 2, the first half of the sentence stipulates that a project refers to a construction project, including the new construction, reconstruction, expansion of buildings and structures and related decoration, demolition, and repairs.
Article 7 of the "Regulations on the Implementation of the Government Procurement Law" stipulates that if government procurement projects and goods and services related to engineering construction are purchased through bidding, the "Tendering Law" and its implementation regulations shall be applied; if other procurement methods are purchased through bidding, the Government Procurement Law and these Regulations shall be applied. The project referred to in the preceding paragraph refers to construction projects, including the new construction, reconstruction, expansion of buildings and structures and their related decoration, demolition, and repairs; the goods related to engineering construction refer to equipment, materials, etc. that constitute an inseparable part of the project and are necessary to realize the basic functions of the project; the services related to engineering construction refer to survey, design, supervision and other services required to complete the project. Government procurement projects and goods and services related to engineering construction shall implement government procurement policies.
The "Government Procurement Catalog" defines decoration projects as including woodworking decoration, masonry decoration, tile decoration, glass assembly, plastering decoration, stone decoration, door and window installation, paint decoration and other decorations.
The "Government Procurement Catalog" defines repair projects as: it mainly refers to the demolition, renovation and maintenance of built buildings, including earthquake-resistant reinforcement, energy-saving transformation, sewer pipeline transformation, waterproofing, wooden doors and windows, steel doors and windows and wood repairs.
2. Government procurement projects that must be tendered in accordance with the law
As mentioned above, “the projects that must be tendered as stipulated in the Bidding Law” are clearly stipulated in the “Provisions for Projects that must be tendered” (National Development and Reform Commission Order [2018] No. 16), the purchaser shall adopt the public bidding method to purchase clearly. In accordance with Article 4 of the Government Procurement Law, if government procurement projects are bidding and tendering, the provisions of the "Tendering and Bidding Law" and the provisions of the "Regulations on Implementing the Government Procurement Law" shall apply. If government procurement projects are purchased through bidding, the "Tendering and Bidding Law" and its implementation regulations shall apply.
It must be emphasized that although the "Tendering Law" is applicable, the purchaser must implement the government procurement policy, and the relevant financial departments must also supervise the budget implementation of this project and the implementation of the government procurement policy.
3. The situation where government procurement projects do not bid in accordance with the law
Article 25 of the "Regulations on the Implementation of the Government Procurement Law" stipulates: "If government procurement projects do not bid in accordance with the law, they shall be purchased in accordance with the competitive negotiations stipulated in the Government Procurement Law and these Regulations or single-source procurement methods." There are usually three situations in which government procurement projects that do not bid in accordance with the law
(I) The situation where bid in accordance with the law
Situation 1 is not a government procurement project that must be bid in accordance with the law.If the purchaser does not purchase by bidding, he will not conduct bidding. According to Articles 7 and 25 of the Regulations on the Implementation of the Government Procurement Law, the purchaser shall use competitive negotiations, competitive negotiations or single source procurement methods stipulated in the Government Procurement Law, which means that the Government Procurement Law shall apply.
(II) The situation where bidding is not carried out according to law 2
Situation 2 is a government procurement project that must be carried out according to law. Bidding may not be carried out because it complies with Article 66 of the "Tendering Law" or Article 9 of the "Implementation Regulations of the Bidding Law".
Article 66 of the "Bidding Law" stipulates two special circumstances that are not suitable for bidding. First, it involves national security, state secrets, and emergency rescue and disaster relief. According to Article 85 of the Government Procurement Law, "This Law does not apply to emergency procurement carried out due to serious natural disasters and other force majeure incidents and procurement involving national security and secrets." That is, such procurement projects are not subject to the provisions of the Government Procurement Law, and the purchaser may purchase directly. The second is to use poverty alleviation funds to implement labor-for-relief and require the use of migrant workers. This type of project is paid for by those who receive relief to participate in the construction of the project. This is currently rare and will not be explained here.
The four types listed in Article 9 of the "Implementation Regulations of the Bidding Law" may not be subject to bidding in a specific situation that requires classification before determining the application of the law. The first item If the tender is not carried out in the case where "irreplaceable patents or specialized technologies are required" and the fourth item "It is necessary to purchase projects, goods or services from the original successful bidder, otherwise it will affect the construction or functional supporting requirements" is not carried out, the legislative principle is the same as the one-source procurement method stipulated in Article 31 of the "Government Procurement Law" "can only purchase from the only supplier" and the third item "The consistency of the original procurement project or service supporting requirements must be ensured, and the purchase amount must continue to be purchased from the original supplier, and the total amount of purchase funds shall not exceed 10% of the original contract procurement amount". In these two situations, it is appropriate to purchase by a single-source procurement method, that is, the "Government Procurement Law" applies. 》; Its second item "The purchaser can build, produce or provide it by himself in accordance with the law" and the third item "The investor of the franchise project selected through the bidding method can build, produce or provide it by himself in accordance with the law". From the perspective of economic benefits, if the purchaser (the investor of the winning franchise project) constructs it by himself, the statutory may not conduct bidding; it builds it by himself and no longer conducts procurement, and of course the "Government Procurement Law" does not apply; if it does not build by himself, this is a project that must be bid according to the law, and government procurement must be bidding according to the law, and the purchaser (the investor of the winning franchise project) shall purchase by bidding, that is, the "Tendering Law" is applicable.
(III) The situation where no bidding is carried out according to law 3
Situation 3 is a government procurement project that must be traded according to law. After two bidding failed, bidding may be stopped after approval by the project approval department. For government procurement projects that fall into this situation, the purchaser cannot choose to directly contract or purchase through non-government procurement methods such as random selection. He shall use competitive negotiations, competitive negotiations or single-source procurement methods stipulated in the "Government Procurement Law" to purchase, that is, the "Government Procurement Law" shall apply.
needs to point out two points. First, the competitive negotiation and single-source procurement methods stipulated in the "Government Procurement Law" only targets government procurement of goods and services, and does not mention government procurement projects. However, its subordinate laws "Regulations on the Implementation of the Government Procurement Law" and "Regulations on the Management of Government Procurement Non-Tender Procurement Methods" (Ministry of Finance Order No. 74) have supplemented and improved this, stipulating that the above two government procurement methods are also applicable to government procurement projects. Second, although the government procurement methods stipulated in Article 25 of the Implementation Regulations of the Government Procurement Law do not mention "competitive consultation" and do not use "etc" to include other government procurement methods that are not listed, according to the provisions of Article 26, Paragraph 1, item (6) of the "Government Procurement Law" and the "Interim Measures for the Management of Competitive Consultation Procurement Methods of Government Procurement" (Caiku [2014] No. 214), the competitive negotiation procurement methods are also applicable to government procurement projects.
