A Study On The Legal Regulation Of Competition Restrictive Conducts In Local Government Procurement

The legislator has negated the restrictive competition conducts such as restricting non-local operators from entering the local market and setting discriminatory conditions in procurement activities by means of prohibitive norms as early as the promulgation of Government Procurement Law in 2002.Anti-Monopoly Law,which was subsequently promulgated,also included these conducts.The Regulations on the Implementation of the Government Procurement Law which was promulgated in 2015 further clarified many of the local government procurement non-local suppliers on competition by enumeration.In recent years,with the construction of the fair competition review system and the implementation of the policy of optimizing the business environment,the restriction of competition in the field of government procurement,especially in the local government procurement activities,has attracted attention again.Regulations for the Implementation of the Tendering and Bidding Law which was subsequently promulgated,the Interim Provisions on the Prevention of the Abuse of Administrative Power to Exclude and restrict competition conducts,Administrative Measures on Government Purchase of Services which was promulgated in 2020 all regard this issue as a regulatory focus,which shows its seriousness.This shows the seriousness of the problem.Therefore,it can be concluded that the legal regulation of local government procurement non-local suppliers on competition is a key issue in theoretical research and law enforcement practice.Restrictive competition conducts in local government procurement refers to the behavior of eliminating and restricting competition implemented by purchasers with administrative power in the process of local government procurement.Because of the administrative nature of the procurement subject and the publicity of the procurement funds,it satisfies the constitutional requirements of general administrative violations.It also becomes an administrative monopoly due to the destruction of the unique competition order in the procurement market.Restrictive competition conducts in local government procurement presents a systemic local protectionist tendency,sometimes with discriminatory abstract procurement policy guidelines,or violations of procurement procedure rules,or violation of the procurement of substantive norms,it is essentially an administrative alienation of power.This alienation of power may be due to the unilateral improper involvement of the administrative power in procurement activities,or it may be caused by malicious collusion between the purchaser and the supplier.The specific problem is that it avoids public tendering,establishes discriminatory clauses,builds information barriers,tends to evaluate bids,and restricts competition in cases such as designated transactions.Behind the appearance are deep-level systems such as local interest groups and fiscal decentralization.Restrictive competition conducts in local government procurement is also a direct damage to the order of market competition.It splits the unity of the procurement market and deviates from the requirements of the use of financial funds.It leads to the failure of economic goals such as improving procurement efficiency and achieving value for money.It also causes the distortion of policy value goals such as promoting the development of small and medium-sized enterprises and protecting the environment.It also makes macroeconomic regulation and maintenance of social stability Harmonious development and other major procurement goals are difficult to achieve.In addition,it also damages the interests of multiple parties including foreign operators and local residents,and aggravates the problem of corruption in procurement.Therefore,it is necessary to impose some control,restraint and guidance on it by means of regulation.The law undoubtedly is the best choice as an established,unified,universal and mandatory social code of conduct.Legal regulation is based on legal norms to control,restrict and guide the implementation of behavior.As a kind of normative regulation,the legal regulation of restrictive competition conducts in local government procurement is based on legal and economic theories such as justice,state intervention,fair competition,government procurement market regulation,incentive regulation and so on,and is based on laws such as the Government Procurement Law,the Anti-Monopoly Law and other legal systems,as well as fair competition review,optimizing business environment and other policies to regulate and control the whole process of government procurement activities,and the key point of legal regulation lies in the restrictive competition conducts in local government procurement.In order to achieve better regulatory effects,legal regulation itself is also evolving itself.And it has been from the general,vague and generalized at the beginning of legislation to the current system,accuracy and norms.The relatively complete regulatory system has been preliminary established and improved day by day,and gradually formed a double-layer regulation of abstract procurement policies and specific implementation conducts,control regulations and enforcement regulations in specific implementation conducts,and adopted the pre-event,during,and post-event regulations.And it also has a regulation model which is guided by the Government Procurement Law,Anti-Monopoly Law,Budget Law,Regulations on the Implementation of the Government Procurement Law.It also specifically shows that the anti-competitive factors in the abstract procurement policy with fair competition review system;to prevent the differentiation of administrative power in specific procurement activities from the perspective of pre-event regulation such as procurement procedure system,information disclosure system,internal control system,expert review system,and to treat individual cases from the Perspective of post regulation such as questioning,complaint and subsequent law enforcement system We should correct and remedy the illegal acts in the course of the investigation.It shows the seriousness of local government procurement to restrict competition.However,the legal regulations under the current system design still need to be improved: legal competitions still exist,and there are legislative omissions in the transfer of jurisdiction in the Anti-Monopoly Law,which leads to conflicts with the Government Procurement Law and anti-monopoly law enforcement in practice,institutions may also be suspected of crossing boundaries;the definition standards need to be improved,and the procedure norms interfere with the definition of substantive violations.It is sometimes difficult to define the elements of behavior constituted by the phenomenon of abuse of administrative power;the setting of responsibility is out of balance: the property liability is only attached to the unit but not to the individual which leads to the lack of equivalence between behavior and responsibility and the phenomenon that the individual violates the law and the unit bears the responsibility occurs from time to time;the regulation mode is still insufficient and can not get out of the dilemma of self-correcting regulation all the time;the competition mode has limitations,emphasizing the openness of the market while neglecting the reasonable protection of local interests,the problem of unequal status between state-owned enterprises and private enterprises needs to be further solved,and the agency market of centralized procurement agencies also needs to be opened up urgently.Therefore,the legal regulation of restrictive competition conducts in local government procurement should be improved.To perfect the legal regulation of restrictive competition conducts in local government procurement,it should be guided by the value concept of fairness and justice,order and regulation,and integrate the regulation concept of international law,so as to creatively construct a two-tier legal regulation system of international and domestic,and coordinate the application conflict of domestic law.On this basis,innovative proposed a dual regulation model of command control regulation and incentive regulation should be adopted.Command-and-control regulation is the most traditional legal regulation mode,and also the main method adopted by the current legal system when regulating local government procurement to restrict competition.To apply it,the relevant system must be first improved.This improvement should be carried out according to the basic logic of“Subject-Behavior-Result”.And it is expressed as follows: as far as the subject of regulation is concerned,the antitrust law enforcement agency should be given the right to intervene and retain it so that it can be rejected by the financial department.Supplementary remedies are implemented when performing duties according to law;for regulated behavior,result-oriented behavior definition standards should be implemented to avoid interference with the definition of behavior by procedures,and competition analysis should be conducted on behavior results when necessary;In terms of regulatory results,legal responsibility should be strengthened to enhance the accountability of procurement personnel by increasing political accountability and implementing "double punishment system",and at the same time,increase the responsibility for violating the fair competition review system and internal control system,in order to increase the cost of illegality personnel form deterrence and effective sanctions.Incentive regulation is an important complement to command-and-control regulation,which focuses on stimulating the enthusiasm of regulated persons to implement certain behaviors through incentives and encouragement means such as rewards and support.For the restrictive competition conducts in local government procurement,incentive regulation is a new approach.The construction of its system should include: we should improve the performance evaluation system of local officials,changing the past “GDP ” evaluation criteria for official performance,including the influencing factors of competition order into the reference factors of the construction of rule of law so as to weaken its connection with local interests in procurement;we should restrain local protection in government procurement by giving legitimacy to special protective procurement;we should establish creative centralized procurement competition mechanism to weaken the connection between centralized procurement competition institutions and local interests;we should improve social supervision mechanism to mobilize the enthusiasm of public opinion supervision and third-party supervision.The research on the restrictive competition conducts in local government procurement has both theoretical value and practical significance.In theory,it fills up the gaps in current theoretical research,and is also beneficial to the study on fair competition review,government procurement,administrative monopoly and other related theories.In practice,it can not only achieve better regulation,but also provide some ideas for the revision of laws such as Government Procurement Law and Anti-Monopoly Law.