Research On The Application Of Law For PPP Procurement

In June 2014,the Ministry of Finance issued the "Government and Social Capital Cooperation Mode Operation Guide(Trial)",emphasising that the PPP procurement should be implemented in accordance with the Government Procurement Law and the relevant rules and regulations.In the same year,the Development and Reform Commission promulgated the "Opinions on the Cooperation of Government and Social Capital",stipulating that the choice of PPP procurement partners should be based on the laws and regulations such as the Bidding Law and the Government Procurement Law.These are the two major public procurement laws in the current government bidding and procurement.They are different in terms of scope of application,procurement methods,procurement procedures,supervisory organs and legal liability.What's more,the PPP procurement differs in the traditional government procurement,as a result,the former one can not be fully applied to the two laws for it will bring about serious disputes.In view of this,the article carried out on the PPP project procurement applicable to the two law issues.This dissertation is divided into four parts:The first part analyzes the contradictions and shortcomings of the PPP project in the process of implementation of the two laws and specializes mainly in the scope of application,procurement methods,procurement procedures and regulatory methods.First of all,from the scope of application analysis,due to the lack of specific legislation,when applying PPP,these two laws contradicted each other a lot,which also directly affect the follow-up procurement methods,procurement procedures and regulatory options.The second part further points out the root causes of the contradiction between the two laws.Mainly through the following three aspects:1.Compared with the traditional procurement,the PPP project is defined indistinctly,as a result,these two laws will overlap each other when regulating the PPP;2.The features of PPP procurement projects demonstrate that both the two laws are not fully applicable;3.These two laws,to some extent,are act beyond their authorities if fully regulate the PPP project.The third part is to introduce foreign governing experience in the PPP project.Mainly divided into two blocks:1.From complete legislative level.Introduced the German implementation of the special legislation,the improved the public procurement law in the United Kingdom and Canada has developed a sound legal system.2.From specific institutional level,mainly introduced the characteristics of the system in such three countries,including the introduction of competitive negotiations in Germany procurement methods,a dynamic selection system in British procurement process and the establishment of a specific institution in Canada with integration of power and responsibility.The fourth part is to make suggestions for the enhancement of establishing PPP project legal system in our country.The upper law system has not been established,while the lower ones are contradicted each other,so the coordination the PPP project management mechanism-paralleled controlled by the Ministry of Finance and Development and Reform Commission-is the most practical way.Then the author concludes some suggestions to the above four contradictions:1.Define the scope of application uniformly;2.Coordinate the two major procurement methods,and actively promote competitive negotiations;3.Normative the prequalification system;4.Clear rights and responsibilities of each supervision organs,and establish a multi-regulatory system.