" Bidding Law " and "Government Procurement Law" need to be integrated with two laws?
Unlike most countries in the world that have a unified government procurement legal system, my country's government procurement field adopts a decentralized legislation model. In 1999, the " Bidding Law of the People's Republic of China " (hereinafter referred to as the "Bidding Law") was promulgated. In 2002, the "Government Procurement Law of the People's Republic of China" (hereinafter referred to as the "Government Procurement Law") was promulgated. The adjustment scope of the two methods has its own focus and is relatively independent, but there are certain overlaps and overlaps, which brings many problems to the practical operation of bidding and government procurement. There is a cross and conflict between the two methods of adjustment objects
The scope of adjustment of the bidding method conflicts with the scope of adjustment of the government procurement method. Article 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 use fiscal funds to purchase goods, projects and services within centralized procurement catalogue formulated in accordance with the law or above the procurement limit standards." Undoubtedly, government procurement should include engineering procurement. However, Article 4 of the Government Procurement Law stipulates: "If government procurement project bids and bids, the Bidding Law shall be applied." This provision leads to some misunderstandings. This is the basis for projects to be excluded from government procurement, and it is believed that only government procurement of goods and services shall be subject to the Government Procurement Law. In addition, Article 2 of the Bidding Law stipulates: "This Law shall apply to conduct bidding activities within the territory of of the People's Republic of China." This provision has made the provisions of Article 4 of the Government Procurement Law meaningless. That is, whether it is government procurement for engineering, goods or services, as long as it is purchased through bidding, the bidding and tendering law shall be applied.
If the cross-section and conflicts in the above adjustment scope are not resolved at the legislative level, more conflicts in bidding and government procurement practices will not be resolved.
Bidding cannot guarantee the quality of the project
Government procurement law and bidding method can be co-existed. It is very important that the mainstream view believes that bidding and bidding can guarantee the quality of the project. The emergence of this view is not unrelated to the legislative purpose of the Bidding Law. Article 1 of the Bidding Law reveals the legislative purpose of the law. That is, in order to standardize bidding and bidding activities, protect the national interests, social public interests and the legitimate rights and interests of the parties to bidding and bidding activities, improve economic benefits, and ensure project quality, this Law is formulated. In addition, the " Interpretation of the Bidding Law of the People's Republic of China " compiled by the Policy and Regulations Department of the State Planning Commission (now the National Development and Reform Commission) and the Finance and Legal Affairs Department of the State Council Legislative Affairs Office at that time also emphasized: "Because the characteristics of bidding are open, fair and just, procurement activities are placed in a transparent environment, effectively preventing the occurrence of corruption, and ensuring the quality of projects such as engineering and equipment procurement." As a result, the mainstream view of society erroneously believes that only the bidding method can ensure the quality of projects.
Assuming that the bidding method can ensure project quality, one conclusion can be drawn: the quality requirements for projects that have been tendered are high, and the quality requirements for projects that have not been tendered are low. But that's not the case. Generally speaking, the tenderer should clarify the quality requirements before bidding. The Bidding Law stipulates that bidding documents should include the technical requirements of the bidding project, and technical requirements are precisely the main content of quality. If the tenderer cannot determine the technical requirements, then according to Article 30 of the " Regulations on the Implementation of the Bidding Law of the People's Republic of China", "For projects with complex technology or cannot accurately formulate technical specifications, the tenderer can bid in two stages. In the first stage, the bidder submits technical suggestions without quotations in accordance with the requirements of the bidding announcement or bid invitation letter, and the tenderer determines the technical standards and requirements based on the technical suggestions submitted by the tenderer and prepares the bidding documents." Therefore, the tender documents should have specified technical requirements during the bidding, and then bidding is carried out.
In addition, there is another question worth paying attention to.After the quality standards are clarified in the bidding, are bidders allowed to improve the quality standards? The answer is no. Generally, this is not allowed. Because projects that must be tendered, in most cases, state-owned funds are used, and quality requirements often have standards, and encouraging the improvement of quality standards may result in excess of the standard. In practice, construction project bidding documents generally implement national standards. Therefore, after the quality standards are clarified in the bidding, the contract will not be concluded according to the quality requirements of the standard, and the quality requirements of the projects that have been biddered will not occur if there are high quality requirements for projects that have been biddered and low quality requirements for projects that have not been biddered. Therefore, bidding does not necessarily guarantee quality.
In fact, tendering cannot guarantee project quality not only stands firm at the theoretical level, but also has problems at the practical level. Bidding is a process of contract conclusion. Once a contract is signed through a bidding label, the quality of the project should be ensured through the performance of the contract, and the contract should have clear provisions on quality. In practice, based on the same quality requirements in the contract, some projects have better final quality, while some projects have poor final quality. This is related to various factors, such as the uneven quality management capabilities of different construction enterprises and construction units, the different quality control capabilities of supervision units, and the differences in quality supervision capabilities of government construction engineering quality supervision agencies. However, these are all differences in contract performance and have nothing to do with whether to bid. Bidding only solves the issue of contract conclusion. At present, there are generally misunderstandings in society about the quality assurance role of bidding, and quality issues are often attributed to bidding. For example, in 2017, two articles published by People's Daily , "Quality should be the foundation of an enterprise's establishment" and "'s lowest price wins , which should be changed - Investigation on the operating conditions of hundreds of physical enterprises", made many criticisms about winning the bid at low prices, believing that winning the bid at low prices cannot improve product quality. This argument greatly misunderstands the bidding system and misleads people's ideas. For example, my country's drug procurement attaches great importance to quality. The drugs purchased through bidding are all medical insurance drugs. Medical insurance drugs only need to meet the basic efficacy. If the quality of the drug is required to further improve the quality of the drug on the basis of the basic efficacy of medical insurance drugs, the inevitable problem is that due to funding restrictions, the amount of drugs that could have met the needs of 100 patients can only meet the amount of drugs that 50 people can only meet the amount of drugs. In a society that truly achieves fairness, the answer is self-evident whether to choose to meet the basic medication needs of more patients or to choose a few people to use medication needs better. Therefore, from the perspective of drug bidding, bidding cannot guarantee better project quality. In summary, it prompts us to rethink the legislative purpose of the Bidding Law. If we confirm that bidding is not the only way to "guaranteed project quality", the reasons for the existence of the Bidding Law are insufficient. If we consider the various disadvantages caused by the coherence of the two laws, then "the integration of the two laws" is an inevitable choice.
"Two laws are integrated" is a necessary measure for my country to join GPA
my country to join World Trade Organization (WTO) " Government Procurement Agreement " (GPA) negotiation motivation promotes "two laws are integrated". GPA is one of the WTO's plurilateral trade agreements. It officially came into effect on January 1, 1996 and is only binding on the signed member states. Many developed countries have signed agreements one after another, with the goal of promoting the participants to open the government procurement market and expand the international trade of . When my country joined the WTO, it promised to start joining the negotiations as soon as possible. The United States, , EU, , etc. have always paid great attention to China's accession to the GPA. The main contents of joining the GPA negotiation are the scope of government procurement opening (GPA is called bidding) and relevant domestic legal adjustments. my country started negotiations on joining the GPA in 2007 and submitted its first bid. At present, my country has submitted its seventh bid to the WTO, which shows my country's sincerity to join the GPA and its determination to maintain the multilateral trading system. After my country joins GPA, which procurement scope applies to the provisions of GPA, this involves the issue of opening the scope of my country's government procurement market and is also the first issue that my country needs to solve when joining GPA negotiations.
First, the GPA requires that each party include the entity list in the 5 annexes to the GPA Appendix I. The procurement entity is an entity directly or basically controlled by the government or other entities established by the government, including not only the government agencies themselves, but also other entities, such as government agencies; not only government entities at the central level, but also local government procurement entities. Most of the engineering procurement in my country's central government procurement entities and local government procurement entities are not included in the supervision of my country's financial system and have not been purchased through the government procurement center . Once my country joins GPA, it is obvious that it cannot only use the procurement volume purchased through government procurement centers regulated by my country's financial system as the target of applicable GPA.
Secondly, from the perspective of the procurement object, GPA is suitable for purchasing products, construction projects and services in any contract form, including purchase, leasing, installment purchase, whether there are options purchases, etc. From this point of view, engineering procurement should be included in government procurement.
Finally, whether it is included in the government procurement should be divided by procurement funds, and the regulatory or enforcement department should not be used as the division standard. As long as fiscal funds are used, procurement within the centralized procurement catalog or above the procurement limit standards are all government procurement. From the perspective of countries around the world, government procurement has different models. Some countries have centralized procurement models, some countries have decentralized procurement models, and some countries have a model that combines centralized and decentralized. my country's government procurement law establishes a model that combines centralized and decentralized. Therefore, the government procurement volume cannot be used only as the execution volume of the government procurement center. After joining the GPA, the total amount of government procurement in my country that applies to the GPA should include all the use of fiscal funds to purchase goods, projects and services above the GPA procurement limit standard.
Author: He Hongfeng Professor of Law School of Nankai University
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