The Law on Government Procurement stipulates that government procurement refers to the procurement of goods, works and services within the centralized procurement catalog formulated by law or above the procurement limit or standard by state organs, institutions and organizations at all levels, using financial funds.
The meaning of procurement, goods and works here is specific. Procurement refers to the act of obtaining goods, works and services in a contractual manner for a fee, including purchase, lease, entrustment, employment and so on. Goods refer to various forms and types of items, including raw materials, fuel, equipment, products and so on. Works refer to construction works, including new construction, alteration, extension, renovation, demolition, repair of buildings and structures.
Scope of Application of the Government Procurement Law
The Government Procurement Law applies to government procurement conducted within the territory of the People's Republic of China*** and the State.
Government procurement, as referred to in the Government Procurement Law, refers to the procurement of goods, works and services within the centralized procurement catalog formulated in accordance with the law or above the procurement limit standard by state organs, institutions and organizations at all levels, using financial funds.
The centralized government procurement catalog and procurement limit standards shall be formulated in accordance with the authority prescribed by this Law.
Procurement, as referred to in the Law on Government Procurement, refers to the act of acquiring goods, works and services in a contractual manner for a fee, including purchasing, leasing, commissioning, hiring and so on.
Goods, as referred to in the Government Procurement Law, are items in various forms and types, including raw materials, fuels, equipment, and products.
Works, as referred to in the Government Procurement Law, means construction works, including new construction, alteration, extension, renovation, demolition, repair, etc. of buildings and structures.
Services, as referred to in the Government Procurement Law, are objects of government procurement other than goods and works.
Interpretation of the provisions on the scope of application of the Government Procurement Law, the whole article *** seven paragraphs, respectively, the scope of application of this law and the relevant terms and interpretations.
I. Determination of the scope of adjustment of the government procurement law
Because of the public **** nature of government procurement, so that it and some other public **** procurement has more of the same or similarity, people tend to confuse it with public **** procurement. In order to illustrate the relationship between the two, we begin with a necessary discussion of the concept of public **** procurement.
The so-called public **** procurement, refers to the procurement of funds from the state treasury, state-owned enterprises and institutions, social donations, foreign governments or international organizations, such as funding or low-interest loans, the object of procurement to serve the interests of the public **** procurement activities. In fact, the public **** procurement is a generalization of all the public **** interests of the procurement activities of the concept, which includes both government procurement, including state-owned enterprises and institutions of procurement and other relations to the interests of the social public **** procurement.
There is no doubt that government procurement should regulate procurement by government departments, excluding procurement by state-owned enterprises and other public **** procurement. However, what should be the scope of government procurement? For this issue in the drafting of the view has been a large debate: one view that the so-called government procurement is to guide the government and related departments of the normal functioning of the procurement of goods, this procurement is limited to the government and its related departments of the procurement activities, in addition to public **** procurement are excluded; another view that the so-called government procurement refers to the financial source of funds from the procurement activities, accordingly, the scope of government procurement should include the government and its related departments of the procurement activities, excluding public **** procurement. According to another view, government procurement refers to procurement activities whose funds originate from the treasury, and accordingly, the scope of government procurement should include procurement by the Government and its departments, procurement by party organizations and other social organizations whose funds originate from the treasury, and procurement by fully-funded State institutions. According to China's current budgetary management system, government procurement should ensure the effectiveness and transparency of procurement activities funded by the budget, and thus it is more appropriate to determine the scope of adjustment of the Government Procurement Law in accordance with the second opinion. But according to this idea to determine the scope of adjustment also need to consider two factors: one is with the reform of the budgetary system, although currently funded by the financial allocation, but in the next step of the reform may be changed to self-supporting or other means of expenditure units should not be included in the scope of the adjustment; two for the procurement of the national debt project, due to the interest on the national debt is borne by the state, but many projects are built after the completion of the enterprise business, it is this part of the procurement It is also better not to include the scope of this law. These two types of procurement are currently government procurement, but will change in the future, and their inclusion in the Law will inevitably affect the stability of the law. For the regulation and supervision of this type of procurement, can be considered first by administrative regulations or departmental regulations, to be institutional changes in the stereotypes and then included in the scope of the corresponding legal adjustments.
For the government procurement law to determine the scope of adjustment, there is also a different opinion, that is, it is recommended that the government procurement of construction projects are excluded from the scope of adjustment of the law, the main reason is that this part of the content of the bidding and tendering law has already been provided for, and for this type of procurement activities for the supervision of the regulatory system is different. The majority of comrades think that this opinion is worth discussing: Firstly, the Bidding and Tendering Law for the procurement of construction projects only stipulates how to mandatory bidding, but for the procurement other than bidding has not been stipulated, so it is inappropriate to exclude the regulation of this part of this law; Secondly, as a government procurement law only stipulates the government procurement of goods and services, and will be the government procurement of construction projects out of the other laws, even if the integrity of the law is not clear. Separate provisions, even if the integrity of the law is affected, but also may make the same procurement project to apply different practices, affecting the unity and dignity of the law; Third, for the difference in the management system does not necessarily affect the unification of the legislation, for such a problem, can be unified in the law, can be unified provisions, can not be unified provisions, can be differentiated from different situations to make differentiated provisions, which is also a precedent in the legislation of our country. There are precedents in our legislation. In the light of this situation, they believe that this part of the Government Procurement Law or in the unified provisions of the better.
Two, the government procurement law on the adjustment of the scope of the limitations
(I) the concept of government procurement. Generally speaking, government procurement refers to government departments to meet the needs of the department to perform their duties and procurement of goods, services or projects. Government procurement is a common concept and this concept of procurement has existed since the founding of the country. Under the past system, because of the government's financial revenue and expenditure system, this kind of procurement is usually made by the relevant government departments according to the needs of the performance of their duties to put forward a purchase plan, the preparation of expenditure plans submitted to the financial sector for inclusion in the budget, and then by the relevant departments in accordance with the budget allocation of funds to carry out. Thus, this kind of procurement is usually different from what we now call the concept of government procurement.
Since the reform and opening up, with the changes in the system of financial revenue and expenditure, the state of the traditional government procurement system has carried out important reforms, especially in 1996, according to the reform, and drawing on foreign experience, and the general implementation of the current government procurement system. This system of government procurement is different from the traditional procurement by the relevant government departments. According to paragraph 2 of this article, government procurement refers to the procurement by State organs, institutions and organizations at all levels of government of goods, works and services within the centralized procurement catalog and above the procurement limit standard established by law, using financial funds. The centralized procurement catalog and procurement limit standards are formulated in accordance with the authority stipulated in this Law. This concept is what we are talking about the concept of government procurement.
(ii) the scope of adjustment of government procurement law. Scope of legal adjustment is a legal norms of the object, it includes participation in the legal relationship between the subject, object and behavior. The first paragraph of this article provides that state organs, institutions and organizations at all levels, the use of financial funds to purchase goods, works and services within the centralized purchasing directory formulated in accordance with the law, the procurement of goods, works and services above the limit standard. In accordance with this provision, all acts of government procurement referred to in paragraph 2 of this article are the subject of this Law. According to this provision, the procurement included in this law shall have the following characteristics:
1. Government procurement law is the state organs, institutions and social organizations. State organs are established by law to assume the statutory functions and exercise the relevant state power of the government organs, such as the party organs at all levels, government organs, the National People's Congress organs, the Chinese People's Political Consultative Conference organs and so on. Institutions are social organizations established by law to perform certain public **** functions, such as schools, hospitals and scientific research institutions. Social organizations refer to organizations established by law to engage in certain social activities, such as enterprise federations, relevant industry associations, etc. These organizations belong to the social public **** institutions, their function is to carry out activities in accordance with the legal duties, business has a non-profit public welfare nature.
2. Use of financial funds. The sources of funds for procurement by the above-mentioned organizations may be manifold, either from financial sources or from loans or donations. According to the provisions of paragraph 2 of this article, these institutions only the use of financial funds, that is, they are used for procurement of funds from the fiscal budget, is included in the adjustment of government procurement under this Law, if the funds used for procurement, although the above institutions are from social donations, does not fall within the scope of the adjustments of this Law. For example, if some schools utilize donated funds for school construction, and research institutions utilize subject fees entrusted by the society for procurement, they are not subject to the adjustment of this Law.
3. Procurement of centralized purchasing catalog or above the procurement limit standard. The so-called centralized purchasing directory means that the relevant government procurement authorities in accordance with the improvement of procurement quality, reduce procurement costs and a number of common, large-volume procurement objects for centralized purchasing and centralized purchasing directory (centralized purchasing directory in accordance with the provisions of Article 7 of this Law shall be determined by the competent authorities of government procurement at or above the provincial level). The so-called procurement limit standard refers to the government procurement activities that shall be included in the adjustment of this Law, as stipulated by the competent government procurement authority. Since government procurement includes both large-volume procurement and procurement of general daily-use consumables, and for the procurement of general daily-use consumables, due to the large number of points neither necessary nor possible to be included in the adjustments of this Law, according to the provisions of Article 8 of this Law, the limit standard of government procurement according to the local situation to determine the limit standard of government procurement to be included in the adjustments of this Law. In accordance with the requirements of this feature, where the centralized purchasing catalog and limit standards above the procurement is included in the adjustment of this law, and outside the scope of the procurement, such as cabs, buy a few brooms and other day-to-day purchases belong to the general procurement, should still be implemented in accordance with the original relevant methods.
(c) centralized procurement catalog and procurement limit standards. As the centralized purchasing directory and limit standards determine the content of the adjustments incorporated into this Law and the relevant procurement practices, in accordance with the requirements of subparagraph (c) of this article, shall be formulated in accordance with the authority set out in the relevant provisions of this Law. Provisions are made in articles 7 and 8 of this Law (see the contents of the interpretation of articles 7 and 8).