Government procurement contract refers to government departments, government agencies or other directly or indirectly under the control of the government of any unit, enterprise, in order to realize the government functions and social public **** interests, the use of financial funds in the capacity of a consumer to obtain the goods, services, works and other contracts.
①Government procurement activities must be carried out in the form of a contract, so the government procurement contract should also be subject to the adjustment of the Chinese People's **** and State Contract Law. However, as a kind of public *** economic behavior, government procurement has policy, that is, any government procurement should reflect the national policy, realize the strategic goal of the government at a certain stage, and serve the interests of the state and the society; and at the same time, it has social responsibility, that is, the process and results of the government procurement should be accountable to the state and the public, and bear social responsibility.
② Because government procurement has the above characteristics, so that the government procurement contract is very different from the general economic contract. Government procurement contract signing, fulfillment and other processes should be supervised and managed by the government procurement management organs. The author believes that the supervision and management of government procurement contract mainly involves the following aspects:
1. Threshold price of government procurement contract. Threshold price refers to the procurement unit's procurement scale reaches the required amount must be unified tender procurement price, but also the minimum amount of competitive bidding. For example, the World Trade Organization Agreement on Government Procurement stipulates that the threshold price for the implementation of international bidding is 130,000 special drawing rights. Whether the threshold price is set reasonably or not directly affects the efficiency of government procurement. If the threshold price is set too high, it will not be conducive to the role of bidding and procurement and will reduce the efficiency of government procurement; if it is set too low, it will increase the cost of government procurement, and the loss will outweigh the gain. Taking into account the financial situation and economic situation between the various regions of China are different, the threshold price of government procurement should not be "one size fits all", should be allowed to different areas of the threshold price is different. The author suggests that the central, provincial, municipal and county procurement entities in accordance with the four levels of procurement threshold price of the four levels.
2. Contract valuation. Contract valuation is also an important issue of government procurement contract management. Procurement units in order to avoid the implementation of tender procurement, the procurement contract will be artificially split, so that the contract amount is lower than the threshold price, from which to make personal profit. Providing for the method of contract valuation can prevent procurement units from artificially splitting government procurement contracts to avoid tendering. The European Union and the United States government procurement system have made detailed provisions on contract valuation. The World Trade Organization's Agreement on Government Procurement (GPA), Article II is dedicated to the method of contract valuation .......
3. Approval of the contract. Once the content of the government procurement contract is finalized, the procuring authority shall submit the draft procurement contract to the government procurement management body for approval. The contract can be formally signed only after approval by the management organ. Article 2 of China's "Interim Measures for Supervision of Government Procurement Contracts" stipulates that the government procurement management authority shall review the procurement contract from the following aspects: "(1) whether it is in line with the relevant policies of government procurement; (2) whether it is in line with the requirements of the government procurement budget; (3) whether the main terms of the contract are in line with the main requirements of the bidding documents; (4) whether the contract includes government procurement management authority's special requirements for the acceptance of the performance of the government procurement contract."
In fact, the government procurement management authority should also review the following:
(1) whether the valuation of the government procurement contract is accurate and reasonable;
(2) whether the government procurement method is correct and the procurement procedure is fair and just;
(3) whether the supplier is capable of performing the government procurement contract.
4. Contract fulfillment supervision. Government procurement contract in the fulfillment of the process, the government procurement authority shall supervise the whole process. In the supervision process, the government procurement authority shall enjoy:
(a) the right to unilaterally change the contract. When the interests of the public **** change, the procurement authority shall have the right to change the contract, but the other party shall be able to receive compensation for the loss of the changed contract;
(b) the right to terminate the contract. The Public Procurement Authority shall have the right to terminate the contract in the event of a change in the interests of the public **** and in the event of default by the supplier.
(c) Power to sanction. The Government Procurement Agency has the right to impose sanctions when the supplier violates the contractual agreement.
5. Audit of the contract. Government procurement is the use of financial resources to meet the needs of public **** interests, so it is necessary to audit the government procurement contract. Audit should be divided into procurement audit and management audit. Procurement audits should include: reviewing procurement procedures and policies, auditing the use of financial funds, auditing the quantity and cost of procurement, and all financial matters occurring in the procurement process. Management audits mainly include: observing the organizational structure and information system of suppliers, and assessing the implementation of contracts and the progress of procurement work in the procurement department. Audit should be a combination of regular and irregular audits, internal and external audits.
6. Quality acceptance of the contract. Government procurement contract fulfillment, the quality of the contract acceptance by a third party. Government procurement management organs shall not participate in the acceptance of the performance of the contract.
7. Custody of contract documents. After the signing of the government procurement contract, should be specialized government departments for safekeeping. Such as the World Trade Organization "Agreement on Government Procurement," Article XX, paragraph 4, provides: "Each Contracting Party shall ensure that the scope of this Agreement and all aspects of the procurement process related to the documents, may be retained for a period of three years".
Precisely because of the special nature of government procurement contracts, many countries and regions have formulated special government contract law to manage government procurement contracts. For example, Singapore formulated the Financial Procedures Act, the Government Contracts Act, South Korea formulated the National Contract Act, the United States formulated the Contract Competition Act to regulate government procurement contracts. China's Ministry of Finance has formulated the Interim Measures for Supervision of Government Procurement Contracts, which specializes in the management of government procurement contracts. The measures for the approval of government procurement contracts, changes, suspension and acceptance are made in principle, but there are still the following deficiencies:
(1) does not specify the method of contract valuation. This creates a legal loophole that allows the procuring authority to split the contract and avoid bidding for the procurement;
(2) There are no specific provisions on the conditions for the government procuring authority to change or suspend the contract. The method only gives the government procurement organs the right to change, suspend the contract, but did not specify in detail under what conditions the government procurement organs can change, suspend the contract, giving the government procurement organs too much discretion. At the same time, there is no provision on whether the supplier who suffers loss due to contract change or suspension can get compensation;
(3) the acceptance authority is not clear. Interim Measures for the Supervision of Government Procurement Contracts, Article 8 states: "The third party shall be responsible for the quality acceptance of government procurement contracts." But the identity of this third party needs to be further clarified. Can both parties to the contract agree on the inspection authority? The State Quality and Technical Supervision Agency suggests that the "third-party product quality inspection organization to carry out inspection of goods" is worth considering. In fact, many countries specializing in the establishment of government procurement quality inspection agency, such as South Korea in the Government Procurement Office has set up a government procurement quality testing laboratory; the United States also has a specialized intermediary institutions on the quality of government procurement inspection. Our country can also learn from.
(4) contractual sanctions. When the supplier default, whether the procurement authority has the right to rely on the administrative power not through the court ruling on the direct sanctions. If not, what procedures should be taken to resolve disputes. This must be further clarified.
In order to strengthen the supplier's information, where there is an intention to supply goods or services to the government procurement of enterprises, should be applied to the relevant departments, registration, analysis of enterprises in accordance with the standards set by the state, assessment, review, classification and archiving of qualified enterprises, and publish a list of qualified suppliers. At present, China has still not established a comprehensive system for evaluating government procurement suppliers, and government procurement management organs do not have complete information about suppliers. When the government procurement management organs review the procurement contracts, they cannot confirm whether the suppliers are capable of fulfilling the government procurement contracts, which weakens the regulatory role of the management organs. As a matter of urgency, China should speed up the establishment of the supplier evaluation system to facilitate the realization of the management function of the management organs.
There are many significant differences between government procurement contracts and general economic contracts, and the special terms and conditions of government procurement contracts should be gradually refined for reference when signing contracts. The standardization of government procurement contracts and the standardization of terms is an important way in the management of government procurement contracts. The development of specifications and standards in the contract not only involves the quality and technical performance of procurement quality, but also relates to the implementation of domestic standardization. For example, the Korea Procurement Agency has set up a "specification development committee" under the authority of the director to design specifications in bidding documents and contract texts. These practices are worthy of our government procurement management organs to promote the management of government procurement contracts.
The special nature of government procurement behavior determines that the government procurement contract has the characteristics different from the general economic contract, it must be supervised and managed by the management organs. At present, China's supervision and management of government procurement contracts are still deficient, and it is necessary to improve the following aspects:
(1) formulate the Government Procurement Contracts Law and improve the supervision system of procurement contracts;
(2) establish a supplier evaluation system to improve the quality of suppliers;
(3) accelerate the standardization of government procurement contracts and improve the supervision efficiency.
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