Viewpoint... A brief description of the legal application of government procurement projects.

In the field of procurement bidding, there are great differences between the government procurement system based on the government procurement law and its implementing regulations and the bidding system based on the bidding law and its implementing regulations in terms of legislative purpose, scope of application, procedural selection and value pursuit. As a competing part of the adjustment scope of the two laws, the legal application of government procurement projects is still a difficult problem in practice. This paper takes the construction project procurement case of the central budget unit as a hypothetical case, and briefly analyzes the competition and convergence of the "two laws" in government procurement projects, focusing on practical issues such as the scope of government procurement projects, application of law, budget management, demand management, implementation of government procurement policies, selection of procurement methods and procurement procedures.

A central budget unit (a unit in Beijing) has a budget of 5 million yuan, and plans to purchase a mechanical and electrical building to convey the construction project (hereinafter referred to as "the project").

1. Under the basic facts, the budget of this project is changed to 1.3 million yuan.

2. Under the basic facts, the budget fund of this project is changed to 1.1 million yuan, and only this project is purchased by Unit A for the same item.

3. Under the basic facts, the purchase target of Unit A is changed to a separate demolition project for the mechanical and electrical building.

The Government Procurement Law stipulates that this Law shall apply to government procurement conducted within the territory of the People's Republic of China. Accordingly, the adjustment object of the Government Procurement Law is government procurement activities.

The "Government Procurement Law" stipulates that government procurement refers to the use of financial funds by state agencies, institutions and organizations at all levels to purchase goods, projects and services within the legally established centralized procurement catalog or above the procurement limit. Accordingly, to define whether the procurement behavior belongs to government procurement should comprehensively consider the four elements of the procurement subject, the source of funds, the centralized procurement catalog and the procurement quota standard, and the procurement target.

It can be seen that the definition of government procurement is mandatory, that is, the scope of adjustment of the Government Procurement Law is a mandatory norm.

The "Government Procurement Law" stipulates that projects refer to construction projects, including the new construction, reconstruction, expansion, decoration, demolition, and repair of buildings and structures. In order to further clarify the application of the law and effectively link up with the law of bidding and bidding and its implementing regulations, the concept of "project", "goods related to project construction" and "services related to project construction" is completely consistent with the implementation regulations of the law of bidding and bidding, that is, "project refers to construction project, including the new construction, reconstruction, expansion of buildings and structures and related decoration, demolition, repair, etc." "The goods related to the construction of the project refer to the equipment and materials that constitute an integral part of the project and are necessary to realize the basic functions of the project" "The services related to the construction of the project refer to the survey, design, supervision and other services required for the completion of the project". Accordingly, government procurement works include construction works, goods related to construction works and services related to construction works.

On the basis of the concepts of "project", "goods related to project construction" and "services related to project construction", the "Regulations for the Implementation of the Government Procurement Law" stipulates that government procurement of projects and goods and services related to project construction shall be conducted through bidding. For procurement by means of bidding, the the People's Republic of China Bidding Law and its implementation regulations shall apply; for procurement by other means, the Government Procurement Law and these Regulations shall apply. Based on the relevant provisions of the "Government Procurement Law" and its implementing regulations and the "Tendering and Bidding Law" and its implementing regulations, government procurement projects are divided into projects that must be tendered in accordance with the law and projects that are not tendered in accordance with the law.

According to the "Notice of the General Office of the State Council on Printing and Distributing the Catalogue and Standards for Centralized Government Procurement of Central Budget Units (2020 Edition)" (Guo Ban Fa [2019] No. 55, hereinafter referred to as "Guo Ban Fa [2019] No. 55"), The projects in the procurement projects of centralized procurement agencies include projects within the limit of the procurement investment budget of central budget units in Beijing above 1.2 million yuan, decoration projects, demolition projects and repair projects; except for the procurement projects of centralized procurement institutions and centralized procurement projects of departments, the procurement quota standard for engineering projects of central budget units is more than 1.2 million yuan. In addition, the State Office issued [2019] No. 55 document also will be the central budget units in Beijing to apply the bidding law in the procurement of engineering supervision services other than the single or batch amount of more than 200000 yuan of construction projects (including buildings and structures of new construction, reconstruction, expansion, decoration, demolition, repair) project supervision services into the centralized procurement catalog.

Basic facts, extension of facts 1 situation,Unit A uses financial funds to purchase construction projects, which are government procurement projects.In the case of Fact Extension 3,Unit A uses financial funds to purchase a separate demolition project, which is also a government procurement project. Basic case, case change 1 and case change 3 are all within the scope of adjustment of the Government Procurement Law.

Fact extension 2 situation,Although the projects within the quota of the central budget unit in Beijing are included in the centralized procurement catalog, the investment budget is required to be above 1.2 million yuan, and the budget amount of the same product of unit A is 1.1 million yuan. Therefore, the procurement activities in this case do not belong to Government procurement does not fall within the adjustment scope of the Government Procurement Law.

1. The scope of adjustment of the Tendering and Bidding Law

The Law on Tendering and Bidding stipulates that this Law shall apply to tendering and bidding activities conducted within the territory of the People's Republic of China. Accordingly, the object of adjustment of the Tendering and Bidding Law is tendering and bidding activities.

The Tendering and Bidding Law stipulates that large-scale infrastructure, public utilities and other projects related to social public interests and public safety, projects that use state-owned funds or state financing in whole or in part, projects that use loans and aid funds from international organizations or foreign governments, etc. Three types of construction projects include project survey, design, construction, supervision, and procurement of important equipment and materials related to construction, A tender must be made. The specific scope and scale standards shall be formulated by the development planning department of the State Council in conjunction with the relevant departments of the State Council and submitted to the State Council for approval. If the law or the State Council has provisions on the scope of other projects that must be subject to bidding, such provisions shall be followed.

It can be seen that bidding activities can be divided into voluntary bidding and compulsory bidding. For construction projects of a specific scope and scale, bidding must be compulsory according to law, that is, it belongs to the compulsory adjustment scope of the Bidding Law.

2. Connotation of projects that must be tendered in accordance with the law

The "Regulations for the Implementation of the Bidding and Bidding Law" stipulates that the term "construction projects" mentioned in Article 3 of the Bidding and Bidding Law refers to projects and goods and services related to project construction. Accordingly, projects that must be tendered in accordance with the law clearly include the project and the goods and services related to the construction of the project. Different from the connotation of government procurement projects, projects that must be tendered according to law only adjust the "decoration, demolition and repair" related to the new construction, reconstruction and expansion of buildings and structures. The separate "decoration, demolition and repair" of buildings and structures is not a project that must be tendered according to law.

3. The scope and scale standard of the project that must be tendered according to law.

About the State Council<必须招标的工程项目规定>(State letter [2018] No. 56), "provisions on projects that must be tendered" (National Development and Reform Commission order No. 16), "National Development and Reform Commission on the issuance<必须招标的基础设施和公用事业项目范围规定>Notice of the General Office of the National Development and Reform Commission (2018 No. 843) and the General Office of the National Development and Reform Commission on Further Doing a Good Job<必须招标的工程项目规定>and<必须招标的基础设施和公用事业项目范围规定>The implementation of the notice (Development and Reform Office Regulations [2020] No. 770) and other laws and regulations on the law must be tendered in accordance with the scope and scale of the project standards for specific and clear provisions.

On the scope:

(1) Projects that use state-owned funds or state financing in whole or in part include: projects that use budget funds of more than 2 million yuan, and the funds account for more than 10% of the investment; projects that use funds of state-owned enterprises and institutions, and the funds occupy a controlling or dominant position.

(2) Projects that use loans and aid funds from international organizations or foreign governments include: projects that use loans and aid funds from international organizations such as the World Bank and the Asian Development Bank; and projects that use loans and aid funds from foreign governments and their institutions.

(3) Large-scale infrastructure, public utilities and other projects related to social public interests and public safety, the specific scope of bidding must include: coal, oil, natural gas, electricity, new energy and other energy infrastructure projects; railways, highways, pipelines, and water Transportation, as well as public aviation and A1 general airports and other transportation infrastructure projects; telecommunications hubs, communication information networks and other communication infrastructure projects; water conservancy infrastructure projects such as flood control, irrigation, drainage, and water diversion (supply); urban construction projects such as urban rail transit.

On the scale criteria:

For projects within the aforementioned scope, if the survey, design, construction, supervision, and procurement of important equipment and materials related to engineering construction meet one of the following standards, bidding must be conducted:

(1) The estimated price of a single construction contract is above 4 million yuan;

(2) For the purchase of important equipment, materials and other goods, the estimated price of a single contract is above 2 million yuan;

(3) For the procurement of survey, design, supervision and other services, the estimated price of a single contract is above 1 million yuan. For the procurement of survey, design, construction, supervision and important equipment and materials related to project construction that can be combined in the same project, if the total estimated contract price meets the standards specified in the preceding paragraph, bidding must be invited.

4. Assumed cases and projects that must be tendered by law.

basic facts of the situation,Unit A uses financial funds to purchase construction projects that are within the scope and above the scale standard and must be tendered according to law, and fall within the scope of compulsory adjustment of the Bidding Law.

Fact extension 1 situation,Because it does not meet the scale standard, it does not belong to the project that must be tendered according to law, and does not belong to the scope of compulsory adjustment of the bidding law.

In the case of Fact Extension 3,Because the subject matter of the procurement is a separate demolition, which has nothing to do with the new construction, reconstruction and expansion of buildings and structures, it does not belong to the project that must be tendered according to law, and does not belong to the scope of compulsory adjustment of the bidding law.

1. Scope of projects not subject to bidding according to law

According to the Government Procurement Law and its implementing regulations, the Law on Forwarding the Legislative Affairs Office of the State Council.<对政府采购工程项目法律适用及申领施工许可证问题的答复>According to the provisions of the notice of the Ministry of Finance (2015 No. 352) and the reply on the application of laws related to government procurement projects (2020 No. 385), no bidding projects shall be carried out in accordance with the law, including:(1) separate decoration, demolition and repair projects above the bidding limit and unrelated to new construction, reconstruction and expansion projects of buildings and structures;(2) Government procurement projects within the government centralized procurement catalog and below the project bidding limit standard;(3) Government procurement projects above the government procurement project limit standard and below the project bidding limit standard are not projects that must be tendered according to law.

2. Assumed cases and projects that are not subject to tender in accordance with the law

In the case of factual extension 1, because it is above the quota standard of government procurement projects and below the quota standard of project bidding, it belongs to the scope of compulsory adjustment of the Government Procurement Law.

In the case of factual extension 3, the subject matter of the procurement is a separate demolition and has nothing to do with the new construction, alteration or expansion of buildings and structures. Although the budget amount in the case of fact extension 3 is as high as 5 million yuan, it is a separate decoration, demolition and repair project unrelated to the new construction, reconstruction and expansion of buildings and structures, so it belongs to the project that does not carry out bidding according to law and belongs to the scope of compulsory adjustment of the government procurement law.

The Government Procurement Law stipulates that the procurement methods of government procurement include public bidding, invitation bidding, competitive negotiation, single-source procurement, inquiry, and other procurement methods recognized by the government procurement supervision and management department of the State Council. Among them, public bidding should be used as government procurement. The main procurement method. In addition, up to now, other procurement methods identified by the Ministry of Finance include competitive negotiation procurement and framework agreement procurement.

Among the above procurement methods, the inquiry procurement method and the framework agreement procurement method are not applicable to the procurement of engineering projects. In practice, although public bidding and invited bidding, as the procurement methods of government procurement, are generally consistent with the bidding, bidding, bid opening, bid evaluation and bid winning stipulated in the "Bidding Law" and its implementing regulations in procedures, but look at the differences between the government procurement legal system and the bidding legal system in various aspects such as budget management, demand management, information disclosure, and rights relief, in the government procurement activities of goods and services unrelated to the project, even if the purchaser adopts the public bidding and invitation bidding procurement methods in accordance with the Government Procurement Law, the project should also be in accordance with the Government Procurement Law and its implementing regulations. Legal provisions for procurement activities.

It should be noted that although the government procurement project is a complex technical project, the author of this paper believes that the government procurement project is a systematic and comprehensive legal project. Exhausting the author's cognition and work experience, government procurement projects need to at least consider the Budget Law, the Government Procurement Law, the Bidding Law, the Civil Code, the Construction Law, and the SME Promotion Law in the practical operation of government procurement projects. Laws and regulations such as the Energy Conservation Law, the Environmental Protection Law, and the Government Investment Regulations. Due to the author's ability level, in this part of the discussion, only a preliminary discussion of the Budget Law, the Government Procurement Law, the Tendering and Bidding Law, the Civil Code and other laws and regulations related to government procurement projects and often wrong.

In terms of budget management, purchasers who purchase government procurement projects shall prepare government procurement budgets in accordance with the Budget Law, the Government Procurement Law and other laws and regulations. For government procurement projects that belong to the capital construction of new construction, continued construction, reconstruction and expansion, relocation, large-scale maintenance and renovation projects and related work with the main purpose of increasing project benefits or expanding production capacity, the project construction unit shall also follow the relevant provisions on budget management and performance evaluation in the financial rules for capital construction (Order No. 81 of the Ministry of Finance and revised by Order No. 90 of the Ministry of Finance).

In terms of demand management, the demand management of government procurement projects applies to the Ministry of Finance on the issuance of the Ministry of Finance.<政府采购需求管理办法>(Treasury [2021] No. 22). When determining the procurement demand, the project procurement project with more than 30 million yuan shall carry out the procurement demand investigation according to law. When preparing the procurement demand plan, the purchaser shall determine the type of contract in accordance with the typical contract categories stipulated in the Civil Code and the actual situation of the subject matter of the government procurement project: the type of procurement contract for engineering survey, design, and construction shall be determined as a construction project contract in accordance with the law. At the same time, if there are no provisions on the civil code construction project contract chapter, the relevant provisions of the civil code contract chapter shall be applied in accordance with the law; the type of procurement contract for engineering supervision shall be determined as an entrustment contract in accordance with the law.

Government procurement policies include energy conservation, environmental protection, support for underdeveloped areas and ethnic minority areas, and promotion of the development of small and medium-sized enterprises. Whether it is a government procurement project that must be tendered in accordance with the law, or a government procurement project that is not tendered in accordance with the law, it is a government procurement project and the government procurement policy should be implemented. In view of the complexity of government procurement policy, this paper only takes promoting the development of small and medium-sized enterprises as an example.

In the procurement bidding activities of government procurement projects, the "Regulations on Printing and Distributing" shall be implemented.<政府采购促进中小企业发展管理办法>(Treasury [2020] No. 46). For engineering procurement projects above the procurement quota standard and below 4 million yuan, which are suitable for small and medium-sized enterprises, the purchaser shall specifically purchase for small and medium-sized enterprises. For engineering procurement projects exceeding 4 million yuan that are suitable for small and medium-sized enterprises, more than 30% of the total budget of this part of the procurement project (Shandong province requires "40%") is reserved for small and medium-sized enterprises, of which the proportion reserved for small and micro enterprises is not less than 60% (Shandong province requires "70%"). For procurement items that have not reserved shares for procurement specifically for small and medium-sized enterprises after being coordinated by the competent budget unit, and for non-reserved parts of procurement packages in reserved share items, the purchaser and procurement agency shall deduct 3%-5% of the quotations of small and micro enterprises that meet the requirements, and participate in the review with the deducted prices. If the government procurement construction project applicable to the bidding law adopts the comprehensive evaluation method but does not use the low-price priority method to calculate the price score, 3%-5% of its price score shall be added as its price score on the basis of the original quotation. For procurement projects that accept a consortium of large and medium-sized enterprises and small and micro enterprises or allow large and medium-sized enterprises to subcontract to one or more small and micro enterprises, if the contract share of small and micro enterprises stipulated in the joint agreement or subcontracting intention agreement accounts for more than 30% of the total contract amount, the purchaser and procurement agency shall deduct 1%-2% of the quotation of the consortium or large and medium-sized enterprises and participate in the evaluation with the deducted price. If the government procurement construction project applicable to the bidding law adopts the comprehensive evaluation method but does not use the low-price priority method to calculate the price score, the price score shall be increased by 1%-2% on the basis of the original quotation. The price deduction ratio or price score ratio of specific procurement items shall be determined by the purchaser within the prescribed range according to the average profit margin of the relevant industry of the procurement subject matter, the market competition situation, etc.

It can be found that the procurement activities in the case of basic facts fall within the scope of the simultaneous adjustment of the Government Procurement Law and the Tendering and Bidding Law; in the case of factual extension 1 and factual extension 3, the procurement activities are only adjusted by the Government Procurement Law. In practice, two important issues can be outlined in the above situation: First, can the procurement methods of projects that fall within the scope of both the Government Procurement Law and the Tendering and Bidding Law adopt competitive negotiation, competitive consultation, and single-source procurement methods., And then only adjusted by the "Government Procurement Law? Second, can the project that is not subject to bidding according to law only adjusted by the government procurement law adopt the bidding procurement method, and then adjusted by the bidding law? In this regard, the" Government Procurement Law "and its implementing regulations are more clearly stipulated.

The "Government Procurement Law" stipulates that the bidding and bidding law shall apply to the bidding and bidding of government procurement projects. The regulations on the implementation of the Government Procurement Law stipulates that if the government purchases projects and goods and services related to project construction by means of bidding, the the People's Republic of China Law on tendering and bidding and its implementing regulations shall apply; if other means of procurement are used, the Government Procurement Law and these regulations shall apply.

The Regulations for the Implementation of the Government Procurement Law stipulate that government procurement of projects and goods and services related to project construction shall implement government procurement policies; if government procurement projects are not subject to bidding in accordance with the law, they shall be subject to competitive negotiations as stipulated in the Government Procurement Law and these regulations Or single-source procurement. At the same time, the Ministry of Finance on the issuance<政府采购竞争性磋商采购方式管理暂行办法>The Notice (Caiku [2014] No. 214) stipulates that government procurement of construction projects other than construction projects that must be tendered in accordance with the Tendering and Bidding Law and its implementing regulations may be procured through competitive consultation.

Therefore, for government procurement projects that must be tendered in accordance with the law, bidding and procurement methods should be adopted, and procurement activities should be carried out in accordance with the bidding and bidding system such as the Bidding Law and its implementing regulations, but such projects should implement government procurement policies; For government procurement projects that are not subject to bidding in accordance with the law, competitive negotiation, competitive negotiation, and single-source procurement methods should be adopted, conduct procurement activities in accordance with the Government Procurement Law and its implementing regulations and other government procurement systems.

The contradiction in the application of government procurement engineering laws is mainly focused on procurement methods, procurement procedures, etc. In practice, to correctly handle the related issues of the application of government procurement engineering laws, we should return to the legal system of the economic law legal department as the "Government Procurement Law". The legislative intent of the "Government Procurement Law" regulates government procurement behavior, promotes the reform of the fiscal budget system, and gives play to the government's macro-control role in the development of national economy. At the same time, it is also necessary to return to the "Tendering and Bidding Law" as the legal system of the legal department of civil law and commercial law, and understand the legislative intent of the "Tendering and Bidding Law" to promote bidding and bidding activities, ensure project quality, and curb improper transactions and corruption.

Because the government procurement project involves government procurement, bidding, government investment, construction, and even civil and commercial legal relations, administrative legal relations, due to the wide scope of legal adjustment, the depth of legal theory, limited to space and ability, this paper is only a brief analysis, with a view to throwing bricks and jade.