National Procurement Law is the general term for the legal norms that regulate and regulate government procurement behavior. Government procurement has a history of more than 200 years in market economy countries. With the signing of the WTO "Government Procurement Agreement" by some World Trade Organization member states in 1994 and the adoption of the "Model Law on the Procurement of Goods, Projects and Services" by the United Nations Commission on Trade Law that year, the Ninth National People's Congress of our country on June 29, 2002 The "Government Procurement Law of the People's Republic of China" was adopted at the 24th meeting of the Standing Committee and promulgated by Presidential Order No. 68, which will come into effect on January 1, 2003.

The "Government Procurement Law" stipulates that government procurement refers to the use of fiscal funds by state agencies, institutions and organizations at all levels to purchase goods within the centralized procurement catalog formulated in accordance with the law or above the procurement quota or standard. , works and services.

The meaning of procurement, goods and projects here is specific. Procurement refers to the act of obtaining goods, projects and services for a fee in the form of a contract, including purchase, leasing, entrustment, employment, etc. Goods refer to items of various forms and types, including raw materials, fuel, equipment, products, etc. Engineering refers to construction projects, including the new construction, reconstruction, expansion, decoration, demolition, repair, etc. of buildings and structures.

Scope of application of the Government Procurement Law

Government procurement conducted within the territory of the People’s Republic of China shall be governed by the Government Procurement Law.

Government procurement as mentioned in the Government Procurement Law refers to the use of fiscal funds by state agencies, institutions and organizations at all levels to purchase goods and projects within the centralized procurement catalog formulated in accordance with the law or above the procurement quota standard. and acts of service.

The government’s centralized procurement catalog and procurement quota standards are formulated in accordance with the authority specified in this law.

Procurement as mentioned in the Government Procurement Law refers to the act of obtaining goods, projects and services for a fee through contracts, including purchase, leasing, entrustment, employment, etc.

Goods as mentioned in the Government Procurement Law refer to items of various forms and types, including raw materials, fuel, equipment, products, etc.

The term "project" in the Government Procurement Law refers to construction projects, including the new construction, reconstruction, expansion, decoration, demolition, repair, etc. of buildings and structures.

The term “services” in the Government Procurement Law refers to other government procurement objects other than goods and projects.

Explanation Regarding the provisions on the scope of application of the Government Procurement Law, the first seven paragraphs of the entire article respectively stipulate the scope of application of this law and the explanation of related terms.

1. Determination of the scope of adjustment of the Government Procurement Law

Due to the public nature of government procurement, it has many similarities or similarities with some other public procurements. Sex, people often confuse it with public procurement. In order to illustrate the relationship between the two, we first conduct a necessary discussion on the concept of public procurement.

The so-called public procurement means that the procurement funds come from the national finance, state-owned enterprises and institutions, social donations, funding from foreign governments or international organizations, or low-interest loans, etc., and the procurement objects serve the relevant public companies. ***Procurement activities of interest. In fact, public procurement is a general concept that summarizes all procurement activities involving public interests. It includes not only government procurement, but also procurement by state-owned enterprises and institutions and other procurement related to the interests of the public. .

There is no doubt that government procurement should standardize the procurement of government departments, excluding the procurement of state-owned enterprises and institutions and other public procurement. However, what should be included in government procurement? There has been a big debate on this issue during the drafting: one opinion is that the so-called government procurement is to guide the procurement of items needed for the normal operation of the government and relevant departments, and this kind of procurement is limited to the procurement activities of the government and its relevant departments , other than that, public procurement is not included; another opinion is that the so-called government procurement refers to procurement activities whose funds come from finance. Accordingly, the scope of government procurement should include the procurement and funds of the government and its departments. Procurement from financial party agencies and other social groups, as well as procurement from public institutions fully funded by the state. According to my country's current budget management system, government procurement must ensure the effectiveness and transparency of budget allocation procurement activities. Therefore, it is more appropriate to determine the scope of adjustment of the Government Procurement Law according to the second opinion. However, determining the scope of adjustment based on this idea also requires consideration of two factors: First, with the reform of the budget system, although it is currently allocated by the finance, it may be changed to self-financing or other expenditure methods in the next reform. Second, for the procurement of treasury bond projects, since the interest on treasury bonds is borne by the state, but many projects are operated by enterprises after completion, it is best not to include this part of the procurement within the scope of this law. These two parts of procurement are currently government procurement, but they will change in the future, and their inclusion in this law will inevitably affect the stability of the law. For the regulation and supervision of this type of procurement, it may be considered to first provide for it by administrative regulations or departmental rules, and then incorporate it into the scope of corresponding legal adjustments after the system changes are finalized.

There is also a different opinion regarding the determination of the scope of adjustment of the Government Procurement Law, that is, it is recommended that construction projects in government procurement be excluded from the scope of adjustment of this law. The main reason is that this part of the bidding law has been regulations, and the regulatory systems for this type of procurement activities are different.

Most comrades believe that this opinion is worth discussing: First, the Bidding and Bidding Law only stipulates how to compulsory bidding for the procurement of construction projects, but does not provide for procurement other than bidding, thereby excluding the regulation of this part of the law. Second, as a government procurement law, it only stipulates government procurement of goods and services, while government procurement of construction projects is separately stipulated by other laws. Even if the integrity of the law is affected, it may cause The same procurement project is subject to different practices, which affects the unity and dignity of the law; thirdly, differences in management systems do not necessarily affect unified legislation. For such issues, if they can be uniformly stipulated in the law, they can be stipulated uniformly, but it is really not possible If the provisions are unified, differentiated provisions can also be made according to different situations. This also has precedents in our country's legislation. Based on this situation, they believe that it is better for this part to be unified and stipulated in the government procurement law.

2. Limitation of the scope of adjustment by the Government Procurement Law

(1) Concept of government procurement. Generally speaking, government procurement refers to the procurement of goods, services or engineering projects by government departments to meet the needs of the department to perform its duties. Government procurement is a common concept, and this concept of procurement has existed since the founding of the People's Republic of China. Under the previous system, since the government's fiscal revenue and expenditure implemented a unified revenue and expenditure system, this kind of procurement was usually carried out by relevant government departments based on the needs of performing their duties. The expenditure plan was compiled and submitted to the financial department for inclusion in the budget. The relevant departments then It is carried out according to the funds allocated in the budget. Therefore, this kind of procurement is usually different from what we now call government procurement.

Since the reform and opening up, with the changes in the fiscal revenue and expenditure system, the country has carried out important reforms on the traditional government procurement system. Especially in 1996, based on the reform situation and drawing on foreign experience, it has been widely implemented the current government procurement system. This government procurement system is different from traditional government procurement. According to the second paragraph of this article, government procurement refers to the behavior of state agencies, institutions and organizations at all levels using fiscal funds to purchase goods, projects and services that are within the centralized procurement catalog established in accordance with the law and above the procurement quota standard. The government's centralized procurement catalog and procurement quota standards are formulated in accordance with the authority specified in this law. This concept is the concept of government procurement we are talking about now.

(2) Scope of adjustments to the Government Procurement Law. The scope of legal adjustment is the object of a legal norm, which includes the subjects, objects and behaviors involved in relevant legal relationships. Paragraph 1 of this article stipulates that state agencies, institutions and organizations at all levels use fiscal funds to purchase goods, projects and services that are within the centralized procurement catalog established in accordance with the law and above the procurement quota standard. According to this provision, all government procurement activities referred to in paragraph 2 of this article are subject to adjustment by this law. According to this provision, procurement included in this law should have the following characteristics:

1. The Government Procurement Law applies to state agencies, public institutions and social groups. State agencies refer to government agencies established in accordance with the law to undertake statutory functions and exercise relevant state powers, such as party agencies, government agencies, people's congress agencies, CPPCC agencies, etc. at all levels. Public institutions refer to social organizations established in accordance with the law to engage in certain public functions, such as schools, hospitals, scientific research institutions, etc. Social groups refer to group organizations established in accordance with the law to engage in certain social activities, such as enterprise federations and relevant industry associations. These institutions are social public institutions, their functions are to carry out activities in accordance with legal responsibilities, and their business has a non-profit public welfare nature.

2. Use fiscal funds. The sources of funds for procurement by the above-mentioned institutions may be multi-faceted, some from finance, and some from loans or donations. According to the second paragraph of this article, only if these institutions use fiscal funds, that is, the funds they use for procurement come from the fiscal budget, can they be included in the government procurement adjusted by this law. If they are the above-mentioned institutions, but the funds used for procurement are not If it comes from social donations, it does not fall within the scope of this law. For example, some schools use donated funds for school construction, and research institutions use project funds entrusted by society for procurement, which are not regulated by this law.

3. Procurement within the centralized procurement catalog or above the procurement quota standard. The so-called centralized procurement catalog refers to the centralized procurement catalog determined by the relevant government procurement authorities for centralized procurement of some general and large-volume procurement objects in order to improve procurement quality and reduce procurement costs (the centralized procurement catalog is based on Article 7 of this Law) Regulations should be determined by the government procurement authorities at or above the provincial level). The so-called procurement quota standard refers to the government procurement activities that should be included in the adjustment of this law as stipulated by the government procurement department. Since government procurement includes both large-volume purchases and general daily purchases of low-value consumables, it is neither necessary nor possible to include them in the adjustment of this law for general daily purchases of low-value consumables. , According to the provisions of Article 8 of this Law, the government procurement quota standards shall be determined according to local conditions and incorporated into the government procurement quota standards adjusted by this Law. According to this characteristic requirement, only purchases above the centralized procurement catalog and quota standards are included in the adjustment objects of this law. However, purchases outside this scope, such as taxis, buying a few brooms, and other daily purchases, are general purchases and should still be included. Implement according to the original relevant measures.

(3) Determination of centralized procurement catalog and procurement quota standards.

Since the centralized procurement catalog and quota standards determine the content and relevant procurement behaviors that are included in the adjustments of this law, they should be formulated in accordance with the authority specified in the relevant provisions of this law in accordance with the requirements of Paragraph 3 of this article. Articles 7 and 8 of this Law provide for this (please refer to the interpretation of Articles 7 and 8).