Research On American PPP Legal System

In the United States,the PPP Law usually refers to PPP statute law.PPP law in the United States refers to the law that contains the words "public private partnership" or "public private" in the name,as well as the content of PPP.The historical background of PPP law in the United States is also the historical background of PPP law in the United States.Different societies breed different laws,and the growth of PPP law also has its social soil,including practical needs,legal environment,theoretical basis,etc.The needs of the society for PPP law should first be the needs of PPP,and then the needs of regulating PPP operation in legal form.As far as the social reality needs of PPP are concerned,the old infrastructure needs to be improved,the financial tension needs to ease the pressure,the further marketization of public utilities,the return from the big government to the limited government,the pursuit of commercial interests by the private sector,and the vigorous development of American populism are all objective PPP driving forces.As far as the necessity of PPP legislation is concerned,after the emergence of PPP,how to promote the realization of its advantages and prevent the risk of alienation,all of them put forward requirements for the long-term and special specifications of PPP operation;however,due to the limitations of traditional federal laws,state constitutions and other state laws on PPP,it is necessary to authorize the operation of PPP in the form of law in order to eliminate legal obstacles.Whether it is PPP application or PPP legislation,it is not only for the needs of practice,but also the result of theoretical choice,and the new public management theory provides theoretical support here.From 1989 to 2019,PPP law in the United States has gone through three decades of development.The PPP law of the United States takes the development of the federal PPP law as the main line.According to the phased characteristics of the exercise of the legislative power of the federal PPP and its influence on the state PPP law,it can be divided into three periods: the initial period,the foundation period and the mature period.In the initial period(1989-1997),PPP rose,some states have tried PPP through authorized legislation,and the United States PPP law officially appeared.Although there were few federal PPP laws in this period,they changed the attitude of the former federal laws and changed from setting obstacles to laissez faire,which had an impact on the state PPP laws.Until the foundation period(1998-2013),the federal law began to change from passive non objection to clear support for PPP,including opening up market access,providing financial support,etc.,which had more and more obvious impact on the state PPP law.As for the PPP laws at the state level,they have been increasing and becoming larger.However,due to the financial crisis,the PPP market has been implicated,from prosperity to decline.In the mature period(2014 to now),after the financial crisis,PPP began to revive,and state laws continued to develop and become more perfect.The federal PPP law began to change from support to guidance,which had a more profound impact on the state PPP law.In the United States,there is no primary or secondary division between federal law and state law,nor is it completely independent.The federal PPP law plays a more cohesive Role between the state PPP law and other federal laws,and between the state PPP laws,so as to eliminate the federal legal barriers and state legal barriers as much as possible for the implementation of the United States PPP.Whether or not to carry out PPP projects and how to carry out them are state affairs,which are at the discretion of the state.The federal government has no right to replace them,but they can be led by laws and policies.Therefore,the United States Federal PPP law and state PPP law constitute neither a unitary governance pyramid system nor a pluralistic separation and governance pattern of the Federalist countries,but a dual co governance pattern.The next development trend is to formulate a comprehensive,beneficial and basal federal PPP basic law,aiming to realize the relationship between the Federal PPP laws,between the federal PPP laws and the state PPP laws Harmony between laws and state PPP laws.The above is a macro examination of the evolution of the PPP law in the United States.We will continue to explore under different levels,different forms and numerous PPP law.Further exploring the legal system of the PPP in the United States,we can see that the authorized legal system of the PPP is the fundamental system,the project implementation legal system of the PPP is the basic system,and the project financing legal system of the PPP is the core system.These three main legal systems of PPP come down in turn,from coarse to fine in terms of normative matters and from shallow to deep in terms of regulated contents.The authorization legal system of PPP in the United States aims to provide legal basis for PPP project development,including two steps: one is the federal deregulation of legal restrictions,the other is the explicit authorization of state laws.At the federal level,on the one hand,through the development of new laws to break through the traditional federal laws in PPP project financing obstacles.Since the existing legal barriers are concentrated in the transportation industry,most of the new laws issued are also aimed at the transportation projects,such as ISTEA,TEA-21,SAFETEA-LU.On the other hand,the federal government grants FHWA the right to approve the innovative delivery mode of highway projects in the name of "innovative contracting technology",and fixes the successful local innovative practices through innovation plans such as sep-14 and sep-15.In fact,it breaks through the restrictions of the Federal Public Procurement Law on PPP procurement by expanding the interpretation.At the state level,PPP legal authorization focuses on the field of transportation,which is characterized by strict authorization,including the on-the-spot provisions on project content,project quantity,project type,public sector scope,etc.Meanwhile,it also defines the Accountability Standard and procurement standard,balancing the two different value orientations of maximizing benefit and protecting public interest in the whole authorized law.The project implementation legal system of PPP in the United States aims to provide a full life cycle operation and regulatory framework for PPP projects.As how to carry out the PPP project is a state affair,the implementation legal system of PPP project is regulated by the state PPP law,including the establishment of the government PPP agency,the life cycle management of PPP project,the PPP contract framework and basic requirements,and the implementation supporting system of PPP project.PPP project implementation legal system and other contents.The government PPP agencies include PPP office and PPP Committee,but they are only the promotion agencies for the implementation of PPP projects.They are neither the owner units of the projects,nor the competent departments,nor the implementation agencies.The implementation process of PPP projects in the United States is generally divided into screening,identification,preparation,procurement and implementation,with procurement as the core.The whole life cycle management system of PPP project is the consistency of operation procedures and regulatory requirements at each stage.Throughout the whole project implementation process,PPP contract,including temporary agreement,comprehensive agreement and service agreement,and comprehensive agreement is the most important,which is a comprehensive agreement concluded by both public and private sectors,with complex structure and rich content.In order to implement the PPP project implementation laws and regulations,local governments generally attach importance to the supporting system construction with the implementation rules as the core.The project financing legal system of PPP in the United States aims to provide financial support for PPP project financing,such as financial subsidies,credit plans,financing tools,etc.The essence of PPP financing is project financing.Under the dual pattern of PPP law in the United States,the legal system of PPP project financing is mainly regulated by the federal law,while the state law generally makes general provisions or leaves blank for the project financing mode,and the project parties can choose flexibly according to their own needs.In order to provide more financial support for PPP project financing,the federal government has formulated a series of laws,among which ISTEA,TIFIA and WIFIA are of great significance: the first one is the "starting point" of opening the curtain of PPP project funded by Federal Credit;the second one is the climax;The third is the turning point of the Federal Credit plan extending from the transportation industry to other industries.In a word,the United States PPP law forms a dual governance pattern based on the division of legislative power under the federal system.In the legal system of authorization,the federal PPP law just does not prohibit,and the state PPP authorization law makes clear provisions;in the legal system of project implementation,because how to carry out the PPP project belongs to the state affairs,the regulatory adjustment is basically the state law;in the legal system of project financing,the federal PPP law adopts fund subsidies,credit plans,financing tools and other ways Provide financial support for eligible PPP projects in the United States,while state PPP laws generally do not limit it.The United States has a unique style of the legal system of PPP.Jade can be polished by stones from other hills.Although there are different countries in PPP law,the concepts are common,the problems are similar,but there are regional differences in the form of expression and response.Therefore,although the system,national conditions,social conditions and PPP development of China and the United States are different,the legal situation of PPP in the United States has important reference value for the ongoing PPP legislation in China and the improvement of the whole PPP governance system.