Research On The Legal System Of Government Procurement Of Domestic Products

It is well known that government procurement policies have strong policy significance. As one of the government procurement policy goals,"buy national" policy is conducive to protect the employment of domestic workers, enhance the competitiveness of domestic industries, promote development of domestic industries and indigenous innovation and safeguard national economic security. Therefore, it is of significance both on theory and practice to research on Chinese legal system of government procurement of domestic products."Buy national" policy has been embodied in many States’legislation. As with other countries that carry out government procurement,"buy national" policy is also provided in the Government Procurement Law of China and other relevant regulations; however, there are also some problems in the legislation,for example, the legislation on "buy national" is not perfect, domestic products standard is not clear and so on. Therefore, it is necessary to further study how to improve our legal system of government procurement of domestic products. It should be pointed out that, currently, China is negotiating the accession to the WTO Agreement on Government Procurement (GPA), therefore, it is especially important to study how to improve the Chinese legal system of government procurement of domestic products. The reason is that, although GPA requires GPA Parties not discriminate foreign products while conducting government procurement, and not providing preferential treatment to their domestic products and suppliers, it does not mean that buying national is forbidden and making or improving domestic legislation on "buy national" policy is not allowed after accession to the GPA. It is only part rather than all of the government procurement market of the Parties are regulated by the GPA. The current GPA parties (such as the United States of America) usually have perfect domestic legal system on "buy national". Improving domestic legal system on "buy national" policy as soon as possible is helpful for dealing with challenges of joining GPA, and avoiding the excessive openness of the Chinese government procurement market. The main purpose of this essay is to research how to improve the Chinese legal system of government procurement of domestic products by reference to experience of other states with advanced government procurement legislation, and how to determine a suitable domestic products standards as well as to establish the "Buy Chinese Products Law" and implementing regulations which are suitable for the Chinese situations. The author mainly used research methods of literature analysis and comparative analysis in this paper. The main part of this paper is organized as follows:First, there is a brief overview of some background knowledge on government procurement legal system, starting from the basic goals and policy objective of government procurement, this paper points out the necessity of government procurement of domestic products, and introduces the theoretical basis and advantages and disadvantages of the "buy national" policy, and then briefly explains the domestics products standards in United States and in China..Secondly, this paper studies the US legal system of government procurement of domestic products. The author analyzes the US legal framework on government procurement of domestic products and detailed provisions on "buy national", and then summarizes the useful experience, including enacting specialized legislation, clearly defining domestics products standards and making clear the relevant obligations and legal responsibilities, etc.Thirdly, the author analyzes problems existed in the current Chinese legislation on government procurement of domestic products and in practice. By analyzing provisions on "buy national" policy contained in "Government Procurement Law of China" and other laws and regulations concerning government procurement, the author finds that the main problems existed in the current legislation include that the current legislation is not perfect, the domestics products standard and the conditions for purchasing non-domestic goods are not clear enough, and the punishment provisions are not made clear, etc. The main problems existing in practice include the discrimination against domestic products, the poor implementation of "buy national" policies, the lack of supervision in government procurement of works through tendering as well as the formalization of imported products specialist review and approval.Finally, this paper makes suggestions on how to consummate the Chinese legal system of government procurement of domestic products. The author puts forward the following suggestions, by reference to the US experience of government procurement of domestic products:one is in the aspect of legislation, to establish special "Buy Chinese Products Law". Before adopting this Law, the existing legislation should be improved to consummate "buy national" system. To concretely speaking, first, domestic products standard should be made clear, and then the conditions for purchasing non-domestic products should also be made clear, and the penalty provisions should be improved. Another suggestion is, by further regulating government procurement process, to strengthen the construction of central purchasing organisations, to establish and improve mechanisms of supervision and accountability, and to consummate supporting measures related to government procurement.There are two possible innovative points in this paper. The first one is that this paper provides a systematic analysis of those problems existed in the current Chinese legislation on government procurement of domestic products and in practice, the author attempts to explore some content of the "Buy Chinese Products Law", and puts forward some suggestions for improving the current legislation before the adoption of the aforesaid Law. The second one is this paper points out that improving the Chinese legislation on government procurement of domestic products is not in conflicts with the accession to the GPA. The shortcomings of this paper are that some analyses are not specific and thorough enough due to the author’s capacity constraints.