Promoting government procurement services is an important reform task decided by the Third Plenary Session of the 18th CPC Central Committee. It is conducive to accelerating the transformation of government functions, improving the supply of public services, and promoting the reform of fiscal expenditure methods. However, China's current regulations on PPP and government procurement services are unclear and contradictory, and need to be further clarified. In order to further clarify the connotation and extension of PPP and government procurement services, the author sorts out the current regulations of China and briefly analyzes them for reference.
Viewpoint 1: PPP mode belongs to government purchase service
The Notice of the Ministry of Finance on Promoting the Use of Government and Social Capital Cooperation Models (Finance [2014] No. 76) stipulates that “the essence of the government and social capital cooperation model is that the government purchases services and requires a budget from the previous single year. Branch management has gradually turned to strengthening medium- and long-term fiscal planning, which is highly consistent with the direction and objectives of deepening the reform of the fiscal and taxation system."
Supplementary Notice of the Ministry of Finance on the Relevant Issues Concerning the Interim Measures for the Administration of Procurement Management of Competitive Procurement in Government Procurement (Caiwan [2015] No. 124) stipulates that “Government purchase services (including government and social capital) purchased through competitive negotiation procurement methods Cooperative project), there are only 2 suppliers (social capital) that meet the requirements in the procurement process, and competitive negotiation procurement activities can continue. Only one supplier (social capital) that meets the requirements in the procurement process, the purchaser (The project implementation agency) or the procurement agency shall terminate the competitive negotiation procurement activities, issue the project termination notice and explain the reasons, and re-launch the procurement activities."
Viewpoint 2: Government purchase services belong to PPP mode
According to the "Opinions of the Central Committee of the Communist Party of China and the State Council on Deepening the Reform of Investment and Financing System", "(9) Encourage cooperation between the government and social capital. All localities and departments can, according to their needs and financial resources, through franchising and government procurement services, etc. In the fields of transportation, environmental protection, medical care, and old-age care, we will expand the supply of public goods and services by taking various forms such as individual projects, combined projects, and contiguous development."
The National Development and Reform Commission's Guiding Opinions on Government and Social Capital Cooperation (Development and Reform Investment [2014] No. 2724) stipulates that “for projects that lack the 'user pays' basis and rely mainly on 'government payment' to recover investment costs, It can be promoted through the government's purchase of services, using market-based models such as construction-ownership-operating (BOO) and entrusted operations."
The Notice of the National Development and Reform Commission on Printing and Distributing the Guidelines for the Implementation of the Government and Social Capital Cooperation Projects in the Traditional Infrastructure Sector (Development and Reform Investment [2016] No. 2231) stipulates that “the government and social capital cooperation models mainly include franchising and The government buys two types of services."
Viewpoint 3: Government purchase services are independent of PPP model
"Notice of the Ministry of Finance on Printing and Distributing the Administrative Measures for Government Purchase of Services (Provisional)" (Cai Zai [2014] No. 96) stipulates that "the government purchases services refers to the part of public services directly provided by the government through the role of market mechanisms. The matters and services required by the government for performance of duties shall be borne by qualified social forces and institutions in accordance with certain methods and procedures, and the government shall pay the fees according to the contract."
The Outline of the Thirteenth Five-Year Plan for National Economic and Social Development of the People's Republic of China stipulates that “the diversification of supply methods can be provided by the government to purchase services, and the government will not directly undertake them; it can be provided by government and social capital cooperation. , widely attracting social capital participation."
"Notice of the Ministry of Finance on Regulating the Operation of the Integrated Information Platform for Government and Social Capital Cooperation (PPP)" (Finance [2015] No. 166) stipulates that "for the implementation of the "Office of the State Council, the Ministry of Finance and Development, the People's Bank of the People's Bank of China government services, promote cooperation and social capital model guidance notice "(Guo Ban Fa [2015] No. 42) spirit, the Ministry of Finance the development and construction of social capital and government cooperation (Public-Private Partnership, PPP) comprehensive information platform." " All PPP projects must be included in the project library.” “In principle, national and provincial demonstration projects, local PPP annual plans and medium-term planning projects need to be selected and identified from the PPP Integrated Information Platform project library. PPP comprehensive information is not included. Projects of the platform project library shall not be included in the catalogue of PPP projects in various places. In principle, expenditures may not be arranged through budget."
"Ministry of Finance on the government to further promote cooperation and social capital to work in public service notice" (Cai Jin [2016] No. 90) states that "to avoid the purchase of services instead of the current government expenditure expenditure responsibilities of long-term PPP projects, PPP related to circumvent Evaluating the argumentation procedure and aggravating the hidden dangers of local government fiscal debt."
The Notice of the Ministry of Finance on Printing and Distributing the Interim Measures for the Financial Management of Government and Social Capital Cooperation Projects (Finance [2016] No. 92) stipulates that “the financial department shall strictly control and control according to the results of the financial sustainability and the PPP project contract. To implement the project payment responsibility, the current government purchase service expenditure shall not replace the medium and long-term payment responsibility of the PPP project, and evade the PPP project related evaluation and demonstration procedures."
"Notice of the CSRC's China Banking Regulatory Commission of the Ministry of Finance of the People's Bank of China on Further Regulating the Local Government's Debt Financing Behavior" (Caiyue [2017] No. 50) stipulates that "the promotion of government procurement services shall be open, and local governments and their departments shall focus on Open government procurement service decision-making body, purchase entity, undertaking entity, service content, contract capital scale, annual financial fund arrangement, contract term, performance evaluation, etc. Promote government and social capital cooperation (PPP) project information disclosure, local government and Its affiliated departments should focus on publicizing government and social capital cooperation (PPP) project decision-making bodies, government and social capital party information, cooperation project content and financial affordability arguments, social capital purchase information, project return mechanism, contract duration, performance evaluation. And so on."
"Notice of the Ministry of Finance on Resolutely Stopping Local Financing in the Name of Government Purchasing Services" (Caiyue [2017] No. 87) stipulates that "the government's purchase of service content shall be strictly limited to the scope of government duties and suitable for market-oriented provision. The service items that social forces can undertake, the focus is on the basic public service projects with budgetary arrangements.... The government purchases services in strict accordance with the scope of services determined by the Government Procurement Law of the People's Republic of China, and may not use raw materials, fuels, equipment, products, etc. Construction of new products, renovations, extensions and related renovations, demolition and repairs of buildings and structures as government procurement services. It is strictly forbidden to use railways, highways, airports, communications, utilities, and education, technology, and medical care. Infrastructure construction in the fields of health, culture, sports, etc., pre-development of reserve land, farmland water conservancy and other construction projects as government procurement service projects. It is strictly forbidden to package construction projects and services as government procurement service projects. It is strictly forbidden to financial institutions, financial leasing companies, etc. Nonfinancial Financing structure provided by the behavior of the scope of services into the government buy government construction projects do need to use financial resources, should be in accordance with the "People's Republic of China Government Procurement Law" and its implementing regulations, "People's Republic of China Tendering" standardize the implementation. "
"Notice of the Ministry of Finance on Issues Concerning the Operation and Management of the Government's Purchase of Service Information Platforms" (Cai Zai [2017] No. 57) stipulates that "to strengthen the government's purchase of service information networks, build government and society, central and local, and The information communication and work exchange platform between the departments promoted the government's purchase of service reform work. The Ministry of Finance established the 'Chinese government purchase service information platform' based on the 'China Government Procurement Network' and officially opened on October 31, 2017."
"Several Opinions of the National Railway Administration of the National Railway Administration of the National Tourism Administration of the Ministry of Transport of the State Administration of China on the Promotion of the Integration of Transport and Tourism" (CIC [2017] No. 24) stipulates that "further innovation mode, Increase investment and financing, form a diversified tourism transportation development investment and financing pattern. Actively explore the adoption of infrastructure franchise, government procurement services, government and social capital cooperation (PPP) and other modes, encourage integration of tourism and land resources, and achieve transportation along the line Integrated development with tourism resources development."
Lawyer analysis:
From the evolution of China's relevant regulations, the connotation and extension of government procurement services are constantly changing. In the early stage of PPP promotion, government procurement services have broad and narrow meanings. The general government procurement services are not limited to direct purchases, but also include society. Capital cooperation, PPP mode is a way for the government to purchase services in a broad sense, and the narrow government purchase service method is equivalent to the government payment method, which is a way of PPP mode. However, judging from the documents released in recent years, China is increasingly inclined to adopt the third viewpoint, which distinguishes the government purchase service from the government payment method. The government purchase service focuses on short-term payment, the amount is small, and only the service is involved. Involved in engineering construction, the information disclosure platform purchases service information platform for the Chinese government; while the government payment method focuses on medium and long-term payment and large amount, which is applicable to the public service and infrastructure fields, and the information disclosure platform is the national PPP comprehensive information platform.
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