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Ministry of Finance: PPP legislation will open up a number of "pain points"

Author: reporter Zhang Yuxin Source: China Financial and Economic News Published: 2019-10-10

The Ministry of Finance has recently introduced in its reply to the suggestions of the National People's Congress on accelerating PPP legislation. The newly revised "Interim Regulations on Government and Social Capital Cooperation (Revised Draft)" has conflicts with departmental documents, inconsistent top-level design, and PPP projects. Issues such as generalization and alienation and "new officials ignoring old accounts" have been formulated.

Establish a coordination mechanism for departmental file conflicts

According to the Ministry of Finance's Reply to the Second Session of the Thirteenth National People's Congress No. 5517, in order to regulate PPP activities according to law, the Ministry of Justice, together with the Development and Reform Commission and the Ministry of Finance, drafted the "Government and Social Capital in the Infrastructure and Public Service Sectors". The "Regulations on Cooperation (Draft for Soliciting Opinions)" has solicited opinions from the public and relevant central units, local people's governments, relevant social organizations, social capital parties, intermediary agencies, and research institutions. According to the opinions of various parties, the Ministry of Justice, together with the Development and Reform Commission and the Ministry of Finance, further revised and improved, and formed the "Interim Regulations on Government and Social Capital Cooperation (Revised Draft)" (hereinafter referred to as the "Revised Draft"), which includes the decision-making and implementation of cooperation projects. , Supervision and management, dispute resolution, and legal liability. The Ministry of Finance also introduced in the reply the provisions of the revised draft on a number of hot issues in the PPP field. Regarding the problems of conflicts in departmental documents and inconsistent top-level design, the Ministry of Finance stated that in accordance with the principles of avoiding "policy and multiple policies" and giving full play to policy synergy, the revised draft clearly states that the investment department and the financial department of the State Council are within their respective responsibilities. Responsible for the guidance and supervision of government and social capital cooperation; other relevant departments of the State Council are responsible for related work of government and social capital cooperation within their respective responsibilities; major policy measures and management systems of government and social capital cooperation are jointly undertaken by relevant departments of the State Council Formulated and reported to the State Council for approval when necessary; the State Council establishes a government and social capital cooperation coordination mechanism to timely coordinate and resolve major issues in government and social capital cooperation.

Set prerequisites for project generalization and alienation

In response to the issue of generalization and alienation of PPP projects, the Ministry of Finance stated that according to the actual situation in China and drawing on the experience of PPP legislation in other countries and regions, the revised draft clearly specifies the conditions under which the government and social capital cooperation model projects can be adopted, including the market's inability to effectively allocate resources. The government has the responsibility to provide, the public has long-term and stable demand for the project, and the construction and operation of the project is specifically undertaken by the social capital party or the project company. The revised draft also requires that projects that do not meet the requirements may not adopt the government and social capital cooperation model.

In order to solve the problem that the government-led right to speak harms the fair cooperation between the public sector and social capital, the revised draft stipulates that the government and social capital cooperation should follow the principles of equal consultation, risk sharing, honesty and trustworthiness, openness and transparency; government implementing agencies The social capital party selected by them shall sign a cooperation project agreement on the basis of consensus; if the content of the cooperation project agreement needs to be changed, the two parties to the agreement shall reach consensus. The policy is quite arbitrary, and "new officials ignore old accounts" is also a focus of attention for all parties in the PPP field. In this regard, the Ministry of Finance made it clear that while the revised draft stipulates that the government and social capital parties should fully perform their obligations under the cooperation project agreement, In practice, social capital parties are generally worried about the "government's arbitrary change of agreement" and "new officials ignore old accounts". It is also stipulated that local people's governments at or above the county level should strengthen the construction of government integrity, strictly implement cooperation project agreements, and must not adjust by administrative divisions, government Fiscal changes such as the change of term and the adjustment of institutions, functions, or changes in the person in charge; the government's payment or government's subsidy, compensation, and government's risk sharing in the cooperation project agreement should be included in the budget, and the social capital party or project should be timely reported. The company pays the funds. The revised draft also clarified the legal responsibilities of the government and its relevant departments, competent departments, government implementing agencies, responsible leaders and directly responsible personnel for violating the above provisions. In terms of safeguarding the public interest and clarifying the qualifications, responsibilities and rights and obligations of the parties involved in the PPP project, the revised draft stipulates that during the implementation of the cooperative project, a serious emergency that jeopardizes public interests and public safety may be designated by the people's government at the corresponding level. Relevant units temporarily take over the cooperation project; if the government, social capital party or project company seriously breaches the contract and endangers the public interest, the cooperation project agreement may be terminated in advance. At the same time, the revised draft has two chapters, "Decision-making for cooperation projects" and "Implementation of cooperation projects". The main body and basis for the cooperation project are proposed, the implementation plan of the cooperation project is drafted, reviewed and released, the choice of the social capital party, and the cooperation project agreement The signing and content of the agreement, the implementation, change and early termination of the cooperation project agreement, the transfer of the equity of the project company, and the transfer of assets after the expiration of the cooperation project period have made clear provisions, further clarifying the qualifications, responsibilities and Rights and obligations. Regarding the issue of comprehensive regulation of PPP project feasibility studies, project financing, government credit, etc., the revised draft stipulates that the competent authority should formulate a cooperation project implementation plan with the relevant departments in terms of economic and social benefits. The social capital cooperation model is necessary and reasonable to organize an evaluation; the social capital party or the project company can use project financing to raise funds, and the relevant financial institutions should support it; the government, relevant government departments, and their staff members in the government and social capital The dishonesty during cooperation shall be counted into the government's dishonesty record and punished in accordance with the relevant requirements for the construction of the social credit system. The Ministry of Finance also stated that the next step will be to actively cooperate with the Ministry of Justice to further improve the revised draft, strengthen coordination, build consensus, and continue to advance PPP legislation.

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