Government Procurement Law of the German rules of evolution to promote SME development and enlightenment

Keywords: Germany Government Procurement Law / <<GPA>> / SME promotion / split tender

Summary: Government Procurement Law contains general provisions to promote SME development. China's "Government Procurement Law>> only a matter of principle for the Government procurement should contribute to the development of SMEs, still need refinement, but must also consider the future accession <<GPA>> bear the relevant treaty obligations German Government Procurement Law explicitly split tender as specific measures to promote SME development, and rule - exceptions to requirements to ensure their effective implementation of its rules of evolution that , split the tender does not violate non-discrimination, etc. <<Agreement on Government Procurement>> Rules of the German Government Procurement Law to promote SME development rules worth our learning.



First, he can jade stone mountain

Government procurement is huge, significant Economic impact on countries in the world's major economies, government procurement accounts for gross domestic product 10% to 15% [1] China's government procurement market has great potential, governments and multinational companies had high hopes entering this market in China's accession to the World Trade Organization (hereinafter referred to as the WTO, some countries have asked China to join together with WTO <<Agreement on Government Procurement>> (hereinafter referred to as GPA, China has also made relevant commitment.

In early 2008, China submitted a preliminary bid to join the GPA list, officially opened the process to join the GPA, so in the future to join the agreement and commitment of the relevant treaty obligations, the country how to make use of its exceptions, continue to use government procurement means to serve the Economic , social policy, has become an important and urgent research topic. [2]

SME development is China's government procurement system, a basic principle of law. <<Government Procurement Act>> Article 9 stipulates that government procurement should contribute to the development of SMEs. <<SME Law "Article 34 also requires that government procurement should give priority to purchase goods or services to SMEs, but they are only a provision of principle, the relevant specific measures to be implemented urgently. To this end, relevant depArtments of the <<Interim government procurement to support the development of SMEs, "forthcoming. [3] Nevertheless, the" provisional "still need to improve on its word, especially in compliance with the rules on the basis of GPA in the future the improvement of China's government procurement legislation in how to promote the development of SMEs, need to continue to explore the study, while understanding and analysis of government procurement in other major WTO members to the relevant provisions of the law, it will help our country to determine its negotiation and implementation of the GPA's stance, and to develop appropriate strategies, but also the improvement of legislation to provide for our reference.

The world's major economies, German SMEs in the national economy especially in the important position [4] Although the concept of small and medium enterprises in Germany is divided and the size of theoretical differences still exist, but according to its official standard, the number of employees 500 The following and an annual turnover of less than EUR 50 million SMEs, including small businesses with less than 10 employees and annual turnover of less than 1 million euros, according to this concept, the total number of small and medium German companies accounted for 99.7 %, about half of Germany's gross domestic product contributed by the SMEs, SMEs in Germany, 45% of net domestic investment, and provides more than 70 percent of national employment and about 83% of training positions. Therefore, SMEs are the lifeblood of the economy as Germany [5] The German government explicitly support the development of SMEs as an important task, almost every state law to develop small and medium enterprises, and even some of the state constitution also stipulates that should be Promotion and protection of small and medium enterprises. To this end, the government adopted a series of specific policies and legal measures, including the Government Procurement Law in support of SME development rules.

Second, the German legal system, government procurement: redundant

For the study and understanding of the German government procurement law specific rules to support the development of SMEs, it is necessary to make its legal system, government procurement, a brief introduction. [6] due to historical tradition and for the implementation of relevant EU law and for the clear-cut reform German legal system is very complex government procurement.

Germany's Basic Law, the government procurement system is federal <<budget principle Law "Article 30" open tender ", and then lay the <<Federal budget rules>> and state and local government budgetary regulations, known collectively as" Federal Budget Law . "The specific measures for implementation are provided in <<construction bidding and contract regulations>> (hereinafter referred to as VOB and <<of goods and services, bidding and contract regulations>> (hereinafter referred to as being VOL. into the origins can be traced back two regulations to the 1920s when, due to government institutions and the division of the reason, different government depArtments are responsible for construction projects bidding and other government procurement tenders, and the corresponding work to develop their own constitution. This system was inherited and based on the formation of these two regulations, which the German legal system of traditional government procurement system of domestic law.

Tender for the project the way of special legislation for the first reference by the Government Procurement Law European Community. Formulated by the EC in the 1970s <<goods procurement directives>> and <<public works procurement directives>>, with the 1992 <<public procurement directives>>, until 2004 together with the 2004/18 <<public procurement directives>> replaced.

For the implementation of <<public procurement directives>>, Germany in 1997 specifically to develop a <<Freelance Services Tender Regulations>> (hereinafter referred to as VOF.1998 years, Germany has enacted a uniform implementation of EU procurement law, government law, known as <<Tender Law Amendment Act>>; and formulated in 2001 <<tendering regulations>> as a very brief nature of guide regulations for links <<Tender Law Amendment Act>> and the aforementioned three existing regulations. Since then, the <<Tender Law Amendment Act>> be included <<Against Restraints of Competition Law>> as of today <<Against Restraints of Competition Act Part IV>>.

For the implementation of the EU since 2004, various items of the Government Procurement Law new instructions, Germany has launched a domestic government procurement law reform. After several years of debate, the reform was finally completed in 2009, the results are: First, a special "Utility Bill>> to implement the EU 2004/17 <<European utilities directive>> Second, for the 2004/18 <<public procurement directives>> implementation, and still retain the traditional system of regulations is divided into three which, because of <<Freelance Services Tender Regulations>> was originally developed for the implementation of EU law, it was essential to retain. The other two regulations, namely <<construction bidding and contract regulations>> with the "goods and services tenders and contracts Regulations>> the basic structure of the original reservation on the basis of the first part of the original terms into the regulations, in addition, for the implementation of EU law, the second part of separate regulations, although the rules are mostly the same as the first part of the rules, but The second part applies specifically to be announced within the EU government procurement activities. In sum, <<construction bidding and contract regulations>> and <<of goods and services, bidding and contract regulations>> The first part of the European Union does not meet applicable threshold price (ie not within the EU announcement, the government procurement projects, the second part of the two regulations and the <<Freelance Services Tender Regulations>> "Utilities Regulations>> the implementation of the EU is the result of the Government Procurement Law.

Third, specific measures to promote SME development: Split tender

<<Against Restraints of Competition Act Part IV>> called "public project tender" and its Article 1 (ie, <<Against Restraints of Competition Law>> of Article 97 provides a series of basic principles of government procurement, where the first 3 is in the government procurement activities to support and promote the development of SMEs in the principles and specific measures in 2009 to complete reform of government procurement law, the provisions of paragraph 3 is an important part of the legislative amendments, provision was greatly changes, but the new rules and related provisions in the old basis of judicial practice have, therefore, a more accurate and in-depth understanding of the current rules, about 2009, the pre-amended provisions of paragraph 3 is necessary.

Article 97, paragraph 3, in 2009, more brief presentation before the amendment: "the interests of SMEs should be given priority by way of specialization or partial tender and proper care."

Accordingly, support and promote the development of SMEs has been established as the basic principles of government procurement law, one to look after the interests of SMEs in government procurement activities as a legitimate considerations. In relation to Article 97, paragraph 2, the general principles of equal treatment under the terms of paragraph 3 constitute an exception. [7]

It is noteworthy that the requirements of paragraph 3 is to the interests of SMEs "appropriate care." This means that the legislature did not give the SMEs in government procurement tenders in the general priority [8] especially not contrary to article 97 the provisions of paragraph 5, the subject of the most Economic principles [9] So, how to take care of "appropriate" mean? legislators in the use of this vague concept of administrative discretion and judicial practice, leaving space at the same time, also explicitly states that to achieve "appropriate care "should give priority to the way that split the tender.

Split tender refers to a procurement project subdivided into several small projects to tender and if the number of standards according to space or split, the so-called "partial tender", such as an underground tunnel into multiple sections of tender, if in a particular area of ​​expertise or industry to split, it is "the professional division of the tender," such as the tunneling of the different types of tasks are tender.

From the wording of paragraph 3 above point of view, only to split the tender care of the interests of SMEs and should be "priority" measures taken which may have two problems: first, in addition to split the tender, but whether the law allows other measures adoption? Second, the "priority" does not mean "should", then, should decide whether or under what conditions, split tender? how to apply in practice for the third requirements, the importance of these two issues is self-evident Therefore, the German judicial practice and academic discussions have to explain this more, and on this basis, the 2009 Government Procurement Reform Act provisions of paragraph 3 of the amendment.

The revised Article 97, paragraph 3 states: "the interests of SMEs in public projects should be given priority in the tender care of the project number or area of ​​expertise should be split tender if the Economic and technical reasons requirements, and more a project of this split can be tender. "

About the first question above, though the old provision does not preclude the possibility of using other measures, but in practice, the split did not lead to legal tender is the only controversial and effective implementation of the measures [10] This practice has been in the new provisions confirmed. Under the new regulations, "care" qualifier is no longer "appropriate", but "first", "priority" is no longer limited to split the tender that way, but "take care of." Yi words, the new regulations on the one hand calls for the interests of SMEs to be "priority care", rather than merely "proper care", but on the other hand, has been split tender to become the only express provision of the "priority to" small business interests of the measures. Thus, while the old terminology in the provisions of regulations, the new regulations did not change but a recognition that the existing practice and in law to eliminate the practice of using other methods due to the controversy and doubts arising.

However, the wording of the new regulations may bring a new question: If the split tender is the only "priority care" measures, then the first sentence of paragraph 3 may lose the separate existence of the necessary, therefore, according to the principle of effective interpretation, the first In addition to a split from bidding is required (ie when awarding the contract to give priority to small and medium enterprises, and thus violate the principle of equality it? In this regard, some scholars have pointed out that under the revised <<Against Restraints of Competition Act Part IV>> Legislative description , lawmakers still tender process to the design - tender tender through split - giving priority to small and medium enterprises [11] Therefore, the "preferential treatment" should not be interpreted as giving priority when awarding contracts Paragraph 3 of the aim is still to allow SMEs to scale will not cause the loss of participation in government procurement tenders equal opportunities, contract awards is still the most Economical based on standard principles.

Fourth, the effectiveness of security measures to split the tender: the rules - exceptions

Prerequisite for the decision on the basis of which tenders or split the problem, although the old Article 97, paragraph 3, of unknown words, but in the time of the tender regulations has two further requirements.

Article 4 of the original VOB, large-scale construction projects should be as split tender, belong to different crafts, commercial industry, engineering tasks are usually areas of expertise or industry should be split tender, but based on economic or technical reasons can be be tender.

VOL original Article 5 provides that, as long as the nature and scale of the project in accordance with the Department is right, the purchaser shall be split tender, so that SMEs can participate in these split parts of the tender, the arrangement should be to avoid the non-economic Split prevail.

Based on the above two provisions, split tender should be of general practice, do not split the tender is the exception, the purchaser has the responsibility to make a special explanation, which is split and not split between a rule - exception relationship for can According to the split to give specific reasons, the provisions of the original is not very clear and consistent doctrine, the purchaser can not just in general that does not split for the better to achieve the project objectives, but must explain the exact reason, the purchaser can not just point out that split the tender will bring additional difficulties in coordination and the corresponding administrative burden, because the legislator's intention is to promote the development of SMEs are willing to bear the burden of these, while a German court's decision that only when the partial purchase will increase the cost or disproportionate would seriously delay the completion of the project, the only give up the [12]

Now, this rule - an exception in the amended Article 97, paragraph 3, in the form of provisions of law has been established, and in accordance with the provisions of the amendment, VOB and VOL two tenders in the relevant provisions of the Ordinance has been amended accordingly, new VOB Article 5, paragraph 2 and VOL 2, paragraph 2, with the use of paragraph 3 of Article 97 of the second and third sentences are basically the same wording. In addition, VOL give up the explanatory note to further split made interpretation of the tender points: First, it illustrates a partial purchase allows to give reasons, including: the cost of disproportionate increase in serious delays in completion of the project, coordinating cost reduction, easier to achieve security and to ensure commitment purchase in batches caused by non-economic split for the last reason, especially the explanation that when the amount of the project itself has been small enough so that the participation of SMEs have been a time when the line can then be split is non- economic. Second, the provisions of section 20 of the record of the tendering process the request, to explain clearly that the record must include the reason to give up split tender. In this way, the purchaser of this burden of proof has been further enhanced.

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V. split the tender in line with the relevant rules of international law: as a reference to EU law

By splitting the tender measures to support and promote the development of SMEs is in line with relevant rules of international law in particular GPA question whether our country learn from the German government for the procurement of great significance to the practice of law, although German scholars little attention to the split tender and the GPA match, but no lack of compliance with EU law of the measures discussed, while the EU reference method for the analysis of the legality of the split tender, it will help to grasp the EU's position on this issue, but also as a split tender and GPA learn from the compatibility analysis, because the EU government procurement law and the principles and rules of GPA is similar to a large extent, based on the European Union in the demonstration effect of trade liberalization, WTO rules often draw on the interpretation of the rules of EU law and jurisprudence.

Support and promote small and medium enterprises development and environmental protection, protection of employment of the disabled, etc., is in most countries the government procurement law in government procurement should be considered social and economic policy objectives. In this regard, the EU Directive 2004/18 Article 26 clearly states: "The government procurement can be implementing provisions for the procurement of additional conditions, as long as these conditions are consistent with Community law and in the tender notice or documents in the express these conditions, especially with social and environmental considerations related. "This article clearly recognize the social and environmental factors can be taken into account in procurement activities, but no mention of the development of SMEs. [13] However, the split command repeatedly referred to the tender, such as Article 9, paragraph 5, which shows that, although there is no EU law and German law is similar to the provisions of government procurement, but at least split this way is in compliance with EU tendering procurement directives Germany in government procurement to take this approach, the Department of the EU Member States have implemented the Directive within the scope of discretion, not inconsistent with the EU directive.

Article 26 of the Directive also requires that the conditions must be "consistent with Community law." The Basic Law for the European Union within the meaning of the relevant provisions of the EU's basic treaty, which mainly related to the "four freedoms" [14], especially the flow of goods and services free provisions of the German Government Procurement Law provisions on split tender, no limit to participate in the bidding of either the nationality of SMEs, there is no limit of large enterprises. only or can be questioned but not sufficient reason is that small and medium enterprises in Germany the proportion of the economy significantly higher than the proportion in other EU member states can benefit from this provision of the enterprise will represent a larger proportion of German companies.

Split tender compliance with EU law in Germany to promote SME development can also be changed into the rules of evidence in 2009 before the amendment of the VOL, in addition to split the tender, there is another measure to promote SME development. its requirements, restricted tendering, as general rule, within reasonable limits procurement for SMEs should also be invited to participate. the requirement to participate in such government procurement for SMEs to provide a guarantee, in fact, one kind of preferential treatment given to small and medium enterprises. and split the tender is different from the provisions of this invitation to participate in small and medium enterprises in the EU directive did not mention that there is no way to get through the recognition of EU law, although the law from the point of view, it is not linked with corporate citizenship , do not require preferential treatment in the awarding of contracts for SMEs, it seems that there is no discrimination against foreign suppliers, but in practice, the purchaser will usually invited to their knowledge and understanding of SMEs - to common sense, the natural mostly from the local or regional companies around, so this practice constitutes a considerable extent, de facto discrimination, and even different regions within a country constitute discrimination between companies due to this "common sense" practices may violate EU France, in 2009, legislative amendments in the invitation to participate in measures for SMEs to be removed, and split the tender requirement to be retained and clarified. Thus, SMEs invited to participate with different rules, legislators believe the split Bidding stand the test of EU law.

Finally, the EU member states apply the EU government procurement law, within the European Union issued a tender notice is required by EU law to achieve the threshold price is limited, so if you split the project below the threshold price of the tender result in circumvention of the EU application of the Act, the law may be incompatible with the EU this regard, the EU Directive 2004/18, Article 9, paragraph 3, prohibits the circumvention instructions and artificially reduce the value of the project. and the tender for the split, instruction articles 9, paragraph 5 shall make special provisions: Under normal circumstances, in considering whether to apply instructions, should split the tender value of the cumulative projects, if the cumulative value reaches the threshold value, the instruction for each project after the split, so in follow these rules under the premise of the tender will not cause the split to avoid the occurrence of EU law applies to the case.

Sixth, enlightenment

Currently, the national government procurement law to support and promote the development of specific measures for SMEs vary and some of the measures of compliance with the GPA can be considered very, for example, SMEs should be the lowest share of government procurement contracts, in the evaluation to give a certain percentage of SMEs in the tender offer and so forth. [15] Some of the measures even if not explicitly limit access to preferential corporate citizenship, may also constitute a de facto discrimination, while the preceding analysis shows that the German Government Procurement Law in the EU split the tender shall not violate the relevant rules of law, based on the same reason, split tender in this way has been both a GPA of admitted [16] as support measures for SME development should meet the GPA in the non-discrimination, contract award criteria and other rules, so such measures should the Government Procurement Law used. Specifically, the German Government Procurement Law with the relevant provisions of China's three areas of reference:

First, the German government procurement legislation contains not only promote the development of SMEs in terms of principle, and to split the tender should be expressly provided for specific measures. In China, the relevant legislation includes only a means to promote the development of SMEs in government procurement principles and rules of the specific means of implementation is still in the exploration stage of experiment and gain experience, <<the Government Procurement Law>> not provide for specific measures in this context, the establishment of such tenders as split GPA rules consistent with the specific measures particularly significant, therefore, China should consider amending the <<Government Procurement Act>> and the relevant law clearly provides a means to split the tender support and promote the development of SMEs.

Second, the law requires the appropriate mechanisms to guarantee its effective compliance with the German Government Procurement Law provides that "split tender is common practice, does not split is the exception," requested the government procurement records to give people clear instructions and split tender justifying the provisions can be effectively bound by the purchaser, so that it can not easily be split to avoid the requirements of the tender, if the instructions not justified, it is likely lost after the review process therefore, liable for damages. In our case, despite the split will give the public procurement tender bring some coordination and management burden, but to support the development of SMEs should be subject to the rules and meet GPA requirements, so in the "Government Procurement Law>> added to split the tender requirements, while appropriate to the corresponding kinds of rules - exceptions.

Third, specific measures to support SME development, the German law there is a ban from the original is not now only allow other measures to split the progressive development of the tender process and therefore, according to China's national conditions, China's "Government Procurement Law>> also be considered in well-defined split the tender at the same time, temporarily banned the use of other measures, allows the practice to continue to explore other measures of effectiveness and compliance with the rules of international law.





Notes:
[1] http://www. wto. org / english / tratop_e / gproc_e / gproc_e. htm, last access date: October 22, 2010.

[2] measures on China's accession to the overall GPA of research, can be found in the North Shaw G: < > Intellectual Property Press, 2010 edition.

[3] "to support the development of SMEs in government procurement means the forthcoming", in Chinese government procurement tenders net http://www. chinabidding. org. cn/NewsDetails_nid_8437. html, last access date: October 22, 2010.

[4] For example, in the United States, SMEs provide about half of the jobs, the U.S. Small Business Administration Web site contains http://web. sba. gov / faqs / faqindex. cfm? areaID = 24, last access date: October 22, 2010.

[5], "SME policy" ("Politik für den Mittelstand", containing the German Economic Ministry website http://www.bmwi.de/BMWi/Navigation/Mittelstand/mittelstandspolitik.html, last access date: October 2010 22.

[6] on the German administrative system of government procurement, see the white leave Jie: <<German legal system, government procurement>> set <<Chinese government procurement>> 2007 10.

[7] Article 97 paragraph 2 provides that: "participants in tendering procedures should be treated equally. This Act expressly required or permitted differential treatment, unless."
[8] M. Kaltenborn, Mittelstandsf  rderung im Konflikt mit europ  ischem Vergaberecht?, In: Gewerbearchiv 2006:8,322.

[9] 997, paragraph 5 states: "Contracts should be awarded the most economical bid." GPA is the most economical standard required by the most favorable standard.

[10] For example, according to the German court ruling related to small and medium enterprises form a consortium to bid the replacement of split tender, not enough to achieve the legislative intent.

[11] A. Kus, Losvergabe und Ausführungskriterien, in: Neue Zeitschrift für Baurecht und Vergaberecht 2009:1,22.

[12] M. Kaltenborn, Mittelstandsf  rderung im Konflikt mit europ  ischem Vergaberecht?, In: Gewerbearchiv 2006:8,323.

[13] Of course, SMEs in providing employment to the important role of the grounds, or will support the development of SMEs into the scope of social factors, but to a greater extent is an economic policy.

[14] that the free flow of goods, freedom of movement, freedom and the opening of capital and services, and payment free, see Zeng Liang: <<European Union law remarks>>, Wuhan University Press, 2007, the first 92-95 pages.

[15] See Wang Long John Silver's, Liang Yong: <<to support SMEs in China's government procurement of the Road>> set <<Chinese government procurement, "No. 11, 2008, Zhao Huiping: <<Jiangsu Provincial Department of Finance <on government procurement for small and medium business development advice> s>>, set <<Chinese government procurement>> 2010 2. In the United States, to support SMEs, <<Federal Government Procurement Act>> Section 19.5 and other relevant legislation provides $ 100,000 project to purchase the small and medium enterprises, 23 percent of federal procurement contracts should be given to small and medium enterprises.

[16] GPA 1994 Article 1, GPA2006 revised Article 2.

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