Liu Xiaochuan: Interpretation of the Administrative Measures for Government Purchase

The system construction of government purchase of serviceis an important role in the transformation of government functions and thereform and development of socialist market economy. Recently, the Ministry ofFinance promulgated the Administrative Measures for Government Purchase ofServices (hereinafter referred to as the Measures), which has laid a solidfoundation for the establishment and improvement of normative governmentpurchase of service markets.

The content and scope of government purchase of servicesis one of the key elements in the system of government purchase of service, andalso the common concern of both the buyer and the recipient of the governmentpurchase of service.

The definition of “What Services the GovernmentPurchases” in the Measures includes the contents from three aspects: the firstis the definition of the scope and nature of the purchase of services; thesecond is the definition of forbidden areas of the purchase of services; thethird is the definition of catalogue of the purchase of services.

The government purchase of services contains the servicesprovided by the government for the society and the government’s own performanceservices. What kind of services the government purchases should be defined bythe “Negative List” of the purchase of services, that is, all public servingproducts that are not in the “Negative List” should be included in the scope ofthe government purchase of services. In order to effectively implement thegovernment purchase of services, the services beyond the “Negative List” arealso needed to be guided in accordance with the guiding catalogue. It isobvious that the definition of “What Services the Government Purchases” in theMeasures has formed a normative system with internal logical relations. On thepremise of defining the nature of “What Services the Government Purchases”, thescope boundary of the government purchase of services is determined by the“Negative List”; on the basis of clear scope of the purchase of services, it isimplemented through the way of formulating the guiding catalogue of thepurchase of services.

For the scope and nature of the government purchase ofservices, Article 9 of the Measures stipulates that “the contents of thegovernment purchase of services contains the public services provided by thegovernment for the public and the subsidiary services required by thegovernment to perform its duties.” The public services provided by thegovernment for the public refer to the external basic public functions of thegovernment, of which scope covers education, culture and sports, medical andhealth, social security, public security and other service fields; thesubsidiary services of the government to perform its duties refer to theinternal management functions, of which scope mainly covers governmentactivities, government consultation, government finance, government securityand other service fields.

For the subdivision scope of the government purchase ofservices, Article 10 of the Measures uses the form of “Negative List” toclarify the six major fields that cannot be included in the government purchaseof services. First, it is prohibited to purchase the services that do notbelong to the scope of the governmental duties, which reflects the idea thatgovernment behavior cannot “go beyond” and is favour of the avoidance of thegovernment’s “taking over everything”. Second, it is prohibited to buy theitems that should be directly performed by the government, that is to say, theaffairs related to the government administration and national security shouldnot be entrusted to social forces, but should be directly undertaken by thegovernment functional departments. Third, it is prohibited to include thegoods, the projects and the items packaged by the projects and service into thescope of the government purchase of service, which reflects the requirementthat the content of government purchase of services must belong to the natureof “service” and the interpretation of “service” can not be expandedarbitrarily. Fourth, it is prohibited to include the financing behavior intothe scope of the government purchase of services, which reflects that thegovernment purchase of services is an innovation of government service mode andshall not be alienated as a tool for government debt financing. Thegovernmental financing activities and government purchase of services belong todifferent behaviors. No matter whether the market way is adopted, they must beimplemented under the guidance and restriction of corresponding nationalpolicies. Fifth, it is prohibited to include the recruitment, employment andother employment behaviors of the buyer into the the scope of the governmentpurchase of services, which reflects the result orientation of the governmentpurchase of services and is essentially different from the employment behavior.Moreover, for the various working staff of the governmental department, due totheir particularity and importance of the work nature, the recruitment ofrelevant personnel needs to be checked by special department of the government.Sixth, other matters stipulated by laws, administrative regulations nad theState Council shall not be as the contents of the government purchase ofservices.

In a word, except for the matters beyond the scope ofgovernmental duties and which do not belong to the services and are notsuitable for marketization, most public services provided by the government andsome subsidiary services required by the performance of duties can use the modeof the government purchase of services.

The specific management issue of “What Services theGovernment Purchases” is mainly carried out through the way of guidingcatalogue. Article 12 of the Measures stipulates the institutional arrangementfor the formulation of guiding catalogue of the government purchase ofservices, that is, “the central and province shall implement the level-to-leveladministration, the Ministry of Finance and provincial financial departmentsshall respectively formulate the guiding catalogue of the government purchaseof services at the corresponding level, and each department shall prepare itsguiding catalogue of the government purchase of services within the scope ofthe guiding catalogue at the corresponding level.” This reflects the financialmanagement principle combining our unified leadership with level-to-leveladministration. For the formulation principle of the guiding catalogue for thegovernment purchase of services, Article 15 stipulates that “the governmentpurchase of services shall highlight the characters of the public and publicwelfare, focus on and give priority to the projects that are closely related tothe improvement of people’s livelihood and conductive to the transformation ofgovernmental functions and the improvement of financial fund performance.”Thisreflects the policy function requirements of the scope of the governmentpurchase of service.

Along with the advancement of the national governancesystem and governance capacity modernization and the deepening of the reform ofnational administrative institutions, the promulgation of the Measures is justin right time. In terms of objectives and fields of “What Services theGovernment Purchases”, it is not only clearly defines the field and scope ofthe government purchase of services, but also correspondingly makes thearrangement of system and mechanism, which is beneficial to the link betweenthe buyer and the recipient for the government purchase of services at alllevels, as well as the fair competition between the recipients, laying a solidinstitutional foundation and legal guarantee for the healthy development of thegovernment purchase of services market in China.