Viewpoint. The practical relationship between government procurement services and government procurement services -- from the perspective of legal service procurement of provincial budget units in Shandong Province.

As an important reform measure to innovate the way of providing government public services, promote the transformation of government functions and fully implement performance management, government purchase of services is an important institutional innovation of government procurement. In view of the subtle differences between the central budget unit and the local budget unit in Shandong Province in government procurement services and government purchase services, in order to accurately explain the practical relationship between the two and reflect the correlation between the two and specific industries, this paper only takes the legal service procurement of the provincial budget unit in Shandong Province as the perspective to discuss the government procurement services and government purchase services, in order to provide ideas and practical reference for government procurement and government purchase services.

According to the provisions of the Government Procurement Law, 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 centralized procurement catalog formulated in accordance with the law or above the procurement limit standard; this law applies to government procurement within the territory of the People's Republic of China. Accordingly, the government procurement behavior should be defined from the aspects of the procurement subject, the source of funds, the centralized procurement catalogue and the procurement quota standard, the procurement target, the geographical scope and so on.

According to the provisions of the measures for the Administration of Government purchase of Services (decree No. 102 of the Ministry of Finance), government purchase of services refers to the behavior that state organs at all levels hand over to qualified service suppliers in accordance with the methods and procedures of government procurement that fall within the scope of their own duties and are suitable for providing services through market-oriented means, and pay fees to them according to factors such as the quantity and quality of services; the specific scope and content of services purchased by the government shall be managed by guiding catalogues, which shall be made public in accordance with the law. It is generally believed that the government's purchase of services should be defined in terms of the purchasing subject and the guiding catalogue.

1. On the subject, the subject of government procurementIncluding state organs, institutions and organizations.Government Purchase Service SubjectFor state agencies, at the same time, party agencies, CPPCC agencies, democratic party agencies, public institutions that undertake administrative functions, and group organizations that use administrative establishments should use financial funds to purchase services.

2. In terms of scope, government procurement projectsItems included in the centralized procurement catalog, as well as items outside the centralized procurement catalog and above the procurement limit standard. In practice, the centralized procurement catalogue stipulated in the Notice of Shandong Provincial Department of Finance on Printing and Distributing the Centralized Procurement Catalogue and Standards of Shandong Provincial Government (Lu Cai Cai [2020] No. 30, hereinafter referred to as "Lu Cai [2020] No. 30") includes 13 service items;Government Purchase of ServicesIt is an item in the guiding catalogue. The notice of Shandong Provincial Department of Finance on printing and distributing the guiding catalogue of services purchased by Shandong provincial government (2021 Edition) (Lu Cai Cai [2021] No. 18, hereinafter referred to as "Lu Cai [2021] No. 18 document") stipulates the guiding catalogue, including 232 three-level service catalogues.

3. In the preparation of the budget,Both government procurement services and government procurement services shall be budgeted in accordance with the law. In addition, the Shandong Provincial Department of Finance on the issuance<山东省政府购买服务管理实施办法>Notice (Lu Caicai [2021] No. 10, hereinafter referred to as "Lu Caicai [2021] No. 10"), "Notice of Shandong Provincial Department of Finance on the preparation and implementation of the provincial government procurement and government purchase service budget in 2022" (Lu Caicai [2021] No. 22, hereinafter referred to as "Lu Caicai [2021] 22 document") and the notice of Shandong Provincial Department of Finance on the preparation and implementation of provincial government procurement and government purchase service budget in 2021 (Lu Caicai [2020] No. 36, hereinafter referred to as "Lu Caicai [2020] No. 36 document"), the government purchase of service items also belongs to government procurement, the budget for government purchase of service items shall be prepared in combination with the government procurement budget.

4. In terms of procurement methods and procedures,Government procurement service projects can adopt six procurement methods, such as open bidding, invitation bidding, competitive negotiation, single-source procurement, competitive consultation and framework agreement, and organize procurement activities in accordance with relevant procurement procedures. In principle, government purchases of service items should be implemented in accordance with the methods and procedures of government procurement. However, local purchasers in Shandong Province who purchase service items outside the government centralized procurement catalog and below the procurement limit standard can use simple methods such as competitive evaluation and directional entrustment to determine the undertaking. Subject.

5. In the application of the type of contract,The types of contracts for government procurement services and government procurement services shall be determined in accordance with the typical contract categories stipulated in the Civil Code and in the light of the actual situation of the subject matter of the procurement.

According to the "Government Procurement Law" and its implementing regulations, services refer to other government procurement objects other than goods and projects, including services required by the government itself and public services provided by the government to the public.

Ministry of Finance on the issuance<政府采购品目分类目录>(Caiku [2013] No. 189, hereinafter referred to as "the catalogue"), as an important administrative normative document regulating the application of centralized procurement catalogues, government procurement budgeting and other government procurement activities, has made specific norms on the relevant contents of legal services. According to the catalogue, "legal services" is a secondary item of business services, including legal litigation services, legal advisory services, legal aid services, intellectual property legal services, legal document agency services, notarization services, arbitration services, mediation services and 9 tertiary items of other legal services.

Legal litigation services include criminal litigation legal services, civil litigation legal services, administrative litigation legal services, foreign-related litigation legal services and other legal litigation services; legal advisory services include criminal litigation legal advisory services, civil litigation legal advisory services, administrative litigation legal advisory services, foreign-related litigation legal advisory services and other legal advisory services; legal aid services include legal aid services for minors, legal aid services for vulnerable groups and other legal aid services; intellectual property legal services include trademark rights, patent rights, agency applications and other legal services; legal document agency services include contract document agency services, will document agency services, property document agency services, foreign-related legal document agency services and other legal document agency services; notarization services include contract notarization services, will notarization services, property notarization services, document and certificate notarization services, notarization services for identity and social relations, notarization services for public welfare activities and other notarization services; arbitration services include foreign-related arbitration services, economic arbitration services, labor arbitration services, patent and other intellectual property arbitration services and other arbitration services; mediation services include civil mediation services, labor mediation services and other mediation services. Other legal services include law-related investigation, evidence collection, identification services, etc.

According to the "Administrative Measures for Government Purchase of Services" (Order No. 102 of the Ministry of Finance) and the "Opinions of the Ministry of Justice and the Ministry of Finance on Establishing and Improving the Mechanism for Government Purchase of Legal Services" (Si Fa Tong [2020] No. 72, hereinafter referred to as "Si Fa Tong [2020] No. 72"), the scope of government purchase of legal services includes public legal services provided by the government to the public and auxiliary legal services required for the government to perform its duties.

According to the provisions of Sifatong [2020] No. 72, the public legal services provided by the government to the public are mainly public, public, inclusive and comprehensive legal services provided by the government to citizens, legal persons and other organizations in order to protect and improve people's livelihood, promote grass-roots governance according to law, and maintain social harmony and stability. Including legal aid services; legal assistance services for lawyers on duty; village (residential) legal advisory services; rule of law publicity and education services; people's mediation services; public legal service hotlines, networks, and physical platform legal consulting services; public welfare lawyer mediation, lawyer agency complaints, Lawyers resolve legal and litigation-related petition cases; public welfare notarization, judicial appraisal services; arbitration committees participate in grassroots dispute resolution services; etc.

According to the provisions of 2020 No. 72, the auxiliary legal services required by the government to perform its duties are mainly government legal advisory services and other auxiliary legal services provided by social forces such as lawyers and grass-roots legal service workers entrusted by the government, including participation in major decision-making, review of the legality of major law enforcement decisions, and provision of legal advice for major decision-making and major administrative acts; participate in the negotiation of cooperation projects, draft and modify important legal documents or contracts; participate in the handling of administrative reconsideration, litigation, arbitration and other legal affairs; provide legal services for the handling of law-related litigation cases, letters and visits, and major emergencies; participate in the rule of law Construction-related research, training, supervision, etc.; handle contract certification, rights confirmation, evidence preservation, on-site supervision and other notarization for administrative activities; etc.

Although Lu Caicai [2021] No. 18 only stipulates "legal services" in the second-level catalog of the government's auxiliary service catalog, it includes "public welfare" in the "social security" second-level catalog of the basic public service catalog. Three items including basic legal services, implementation of legal aid projects, and legal aid for notarization and judicial appraisal. Therefore, the guiding catalogue of services purchased by the Shandong provincial government is included in seven three-level catalogues related to legal services, which are public welfare basic legal services, including public welfare legal advisers, consultation, defense, agency, notarization, judicial appraisal and other services for vulnerable groups, small and micro enterprises, rural collective economic organizations, villages (communities), and the implementation of legal aid projects, that is, to provide free legal services for parties with financial difficulties and in line with the scope of assistance matters or special cases; legal aid for notarization and judicial expertise; community (village) legal adviser services; administrative litigation agent response legal services, that is, administrative litigation agent response, Administrative reconsideration legal services; government legal advisory services; government legal advisory services.

From the above-mentioned norms, different from the government procurement of legal services based on legal relations, the scope of government procurement of legal services highlights the public and public welfare, focusing on improving people's livelihood, serving the important goal of transforming government functions and improving the performance of financial funds.

Lu Caicai [2020] 30 provisions of the centralized procurement directory, including the "legal services" items (code: C0801). Lu Caicai [2021] No. 18 also contains legal services related content. Therefore, different budgets should be prepared according to different subjects.

State organs, party organs, CPPCC organs, democratic party organs, public institutions undertaking administrative functions and mass organizations using administrative establishment,It should be in accordance with the "Notice of the Shandong Provincial Department of Finance on the Preparation and Implementation of the Provincial Government Procurement and Government Purchase Service Budget in 2021" (Lu Caicai [2020] No. 36), and the "Shandong Provincial Department of Finance on the Provincial Government Procurement and Government Purchase Service Budget in 2022" "Notice on the Preparation and Implementation" (Lu Caicai [2021] No. 22) and other documents related to budgeting requirements, when purchasing legal services, the government procurement budget and the government purchase service budget should be combined.

The provincial budget units in Shandong Province, other than the main body of government purchase services, need to prepare the government procurement budget if they use financial funds to purchase legal services.

According to the provisions of Lu Cai Cai [2020] No. 30, legal services are included in the centralized procurement catalogue of local budget units in Shandong Province. According to the "Government Procurement Law" and its implementation regulations, Lu Caicai [2020] No. 30, Lu Caicai [2021] No. 10, and the "Shandong Provincial Finance on Printing and Distributing the Shandong Provincial Government Purchase Service Competitive Evaluation and Directional Entrustment Management Measures" Notice "(Lu Caicai [2020] No. 8), the provincial purchasers in Shandong Province can organize the procurement of legal services by means of public bidding, invitation to tender, competitive negotiation, single-source procurement, competitive consultation and framework agreement, but it is not appropriate to purchase legal services through competitive evaluation, directional entrustment and other simple methods.

It should be noted that if the annual legal service procurement budget reaches more than 4 million, the public bidding procurement method should be adopted. Due to special circumstances, if it is necessary to adopt procurement methods other than public bidding, an application shall be submitted through the "Official Document Circulation" module of the "Shandong Provincial Government Procurement Management Transaction System" before the start of the procurement activity. Except for the single-source procurement application, which is reviewed by the Shandong Provincial Department of Finance, the other procurement method change applications are reviewed by the competent budget unit.

In addition, for the purchase of legal services by means of framework agreement procurement, it should be noted that the first stage of the solicitation process and the conclusion of the framework agreement are the responsibility of the centralized procurement agency.

At the same time, the "Interim Measures for the Administration of Shandong Provincial Government Procurement Online Shopping Mall" (Lu Cai Cai [2020] No. 34) and the "Notice of Shandong Provincial Department of Finance and Shandong Provincial Department of Justice on Further Doing a Good Job in Legal Service Designated Procurement" (Lu Cai Cai [2020] No. 34) stipulate that if the annual budget does not exceed 4 million yuan, it can be implemented through designated procurement in Shandong Provincial Government Procurement Online Shopping Mall. In the procurement mechanism, if the procurement budget amount does not reach 500000 yuan, the legal service organization can be determined through direct purchase or bidding. For more than 500000 yuan, the legal service organization shall be determined through bidding.

State organs, party organs, CPPCC organs, democratic party organs, public institutions undertaking administrative functions and mass organizations using administrative establishment,In accordance with the requirements of laws and regulations such as the Government Procurement Law and its implementation regulations, the measures for the Administration of Government purchase Services (decree No. 102 of the Ministry of Finance) and the Circular of the Shandong Provincial Department of Finance on issuing the measures for the Administration of performance acceptance of Government Procurement (Lu Cai [2021] No. 25), the performance acceptance of the procurement of legal services shall be carried out, and the purchase of legal services shall be evaluated in advance.

If the provincial budget units of Shandong Province, other than the main body of government purchase services, use financial funds to purchase legal services, they need to carry out the performance acceptance of the procurement legal services.