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Making the fair competition review system better

Author: reporter Rongsu Mei Source: China Financial and Economic News Published: 2019-10-09

How to make the fair competition review system better implemented in the field of government procurement?

Zhang Xudong, deputy director of the Government Procurement Supervision Department of the Zhejiang Provincial Department of Finance, believes that, from the perspective of policy formulation practices, if a government department wants to formulate a system document, it will often consider the impact of the other side of the system comprehensively and solicit opinions from all sectors of society. Taking the government procurement system as an example, during its brewing process, the financial department will also organize discussions and discussions with stakeholders such as budget units, procurement agencies, suppliers, review experts, and even actively solicit opinions from auditing and supervision departments. In the perspective of competition, after various layers of checks and full discussions, this system may finally be introduced. After the system is promulgated, it will also be released to the public in accordance with the relevant requirements of the "Regulations on the Disclosure of Government Information." In addition, the special right relief mechanism for government procurement has also laid the foundation for ensuring fair competition. Everyone knows that the system as an abstract administrative action is not actionable, but when prosecuting a specific administrative action, the legality of the abstract administrative action behind the review can be required. If a system impedes fair competition, when a case occurs, such as specific to a procurement project, the supplier believes that a government procurement system causes damage to its own rights and interests, and it will have a strong willingness to monitor and be targeted, and then raise questions. Complaints and even lawsuits. If a supplier files an administrative lawsuit, the legality of the system will be subject to judicial review. Therefore, the system design of the administrative department's complaint decision on the complaint handling of the financial department has largely ensured that the government procurement system document maker has implemented the fair competition review mechanism well.

Professor Cheng Xie of China University of Political Science and Law further explained that administrative actions can be divided into specific administrative actions and abstract administrative actions. Specific administrative actions refer to unilateral acts, such as administrative licenses and administrative penalties, that are performed by state administrative agencies against specific citizens, legal persons, and other organizations that affect their rights and obligations. Abstract administrative action refers to the general binding decisions and orders made by administrative subjects against non-specific subjects. Regarding the acts of restricting and excluding competition in the field of government procurement, there are two ways to seek judicial relief. The first is to directly sue specific administrative actions, based on Article 12, Item 8 of the Administrative Procedure Law, that is, citizens, legal persons, and other organizations "considered that administrative organs abuse administrative power to exclude or restrict competition." If the document issued by the administrative agency explicitly excludes foreign products from entering a market in a certain place for sale, or a procurement activity uses a specific brand of product, the rights and obligations of the relevant clauses are very clear, which constitutes a specific administrative act. Excluded market entities can directly file administrative lawsuits. The second is the use of collateral review of general policy documents, abstract administrative actions. Article 53 of the Administrative Procedure Law clearly states that citizens, legal persons or other organizations consider that the normative documents formulated by the State Council departments and local people's governments and their departments on which administrative actions are based are illegal. A review of this regulatory document is also requested. For example, a supplier wants to enter a market in a certain place or obtain a license, and the market supervision department, industry and commerce department, or development and reform department restricts its entry into the local market or refuses according to a regulatory document issued by the government at a higher level or an administrative authority at a higher level. To issue a license to it, the supplier can file a lawsuit against this specific decision, with an accompanying requirement to review whether the regulatory documents on which the relevant authority is based are legal. However, in the incidental review of normative documents, the court only examines the legitimacy of the normative documents, that is, whether it violates superior law, not whether it hinders fair competition. Therefore, the court's review of regulatory documents is relatively limited, which is an external judicial supervision. The current fair competition review system is mainly an internal review carried out by policy-making organs before the release of relevant policies, which reflects the process supervision within the administrative system. The effective functioning of this system should not only be improved in terms of review methods and legal responsibilities, but also be corrected through external administrative supervision and judicial review. In the field of government procurement, whether a large number of technical requirements surrounding procurement documents constitutes doubts and complaints caused by "unreasonable conditions that cause differential or discriminatory treatment of suppliers" indicates that the introduction of external forces to monitor fair competition in government procurement policies is Very necessary.

In addition, some interviewed experts pointed out that the State Council's "Opinions on Establishing a Fair Competition Review System in the Construction of the Market System" (Guo Fa [2016] No. 34) and the implementation of the "Fair Competition Review System" by five ministries including the National Development and Reform Commission and the Ministry of Finance The Detailed Rules (Interim) (Faikai Jianjian [2017] No. 1849) has stipulated the review mechanism, review procedures, review standards, social supervision, and accountability of the fair competition review system. The relevant departments of government procurement shall refer to its provisions to implement can. According to these two regulatory documents, any unit or individual may report to the superior authority of the policy-making organ or the anti-monopoly law enforcement agency if the policy-making organ is suspected of not conducting fair competition review or introducing policy measures in violation of review standards. If the policy-making agency fails to conduct a fair competition review or introduces policy measures in violation of the review standards, corrections shall be ordered by the higher authorities; if it is refused or is not corrected in a timely manner, the person in charge directly responsible and other directly responsible personnel shall Sanctions shall be given to laws and regulations such as the Regulations on Disposition of Public Servants of Government Organs. In case of violation of the Anti-Monopoly Law, the anti-monopoly law enforcement agency may make recommendations to the policy-making organ or its superior organs to suspend the implementation or adjust the policy measures.

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