Legislation of Russia and China on public procurement
The article analyzes the general provisions of the legislation on public procurement in Russia and China, compares various institutions with each other in order to identify similarities and differences between them and establish more effective mechanisms for appropriate legal regulation. The author defines the positive experience of resolving some legal problems in the field of public procurement in Russia and China with a view to its possible borrowing. The Russian legislator should pay attention to the development of the institution of rationing in the field of procurement of the People's Republic of China, as well as to the strict system of support for domestic manufacturers in China. In the procurement system of the People's Republic of China, it is quite possible to take into account the Russian experience of building a unified information system and establishing various legal regimes for state (municipal) and "corporate" procurement.
Keywords: public procurement in Russia and China, types of procurement, procurement methods, unified information system, support for domestic manufacturers, rationing.
Recently, the study of the Chinese experience of legal regulation of relations in various sectors of the economy has become especially relevant. And it's not just that Russia and China are allies in the foreign policy arena, as well as important economic partners. And not only in the emerging reorientation of Russia from the West to the East. The need to study the Chinese experience is also dictated by the fact that China is at least a "not quite capitalist" country, and therefore its legislation in many cases differs significantly from modern Russian (including in the field of procurement).
Introduction
Public procurement is a capitalist institution. In a planned economy, a different institution is used instead of procurement - the state order. Such an "order" differs from "purchases" in that it is "communicated" to the performers and is mandatory for them, i.e. the order is a kind of order <2>. "Purchases", as a general rule, are carried out among an indefinite range of potential subjects who independently decide on concluding a contract with the customer.
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<2> The Russian legislator during the period of validity of Federal Law No. 94-FZ dated July 21, 2005 "On placing orders for the supply of goods, performance of works, provision of services for state and municipal needs" (NW RF. 2005. N 30 (part I). Article 3105. It became invalid; hereinafter - Law No. 94-FZ), i.e. in 2006-2013, tried to use the old terminology to describe the new relationship: customers "placed an order", and not "carried out purchases". "Placing orders" currently also exists in Federal Law No. 275-FZ of December 29, 2012 "On the State Defense Order" (NW RF. 2012. No. 52 (Part I). Article 7600), because this special law was adopted during the operation of general Law No. 94-FZ. But in general, the logic of the legislator is clear: we are moving (almost moved) from "ordering" to "procurement".
It is well known that the principle of "One country, two systems" is proclaimed in Chinese politics. One of these systems is the capitalist system, and therefore purchases are carried out in the PRC. But these purchases, we repeat, have significant specifics, the study of which seems not only useful, but necessary both from the point of view of building economic and other relations with China, and from the point of view of studying relevant positive experience with a view to its possible borrowing.
The People's Republic of China is a modern "economic giant" <3>. At the same time, General Secretary of the CPC Central Committee Xi Jinping notes that "if earlier China's economic development was characterized by excessive dependence on investment and exports, now it is increasingly based on domestic demand, in particular consumer demand" <4>.
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<3> China is characterized as an "economic giant" by both Russian and foreign experts. See, for example: Deutsch T.L. Africa in China's strategy. Moscow: Institute of Africa of the Russian Academy of Sciences. 2008. p. 5; Rana Eijaz Ahmad, Abida Eijaz. China as an Emerging Economic Giant and its Impact on the Region // British Journal of Economics, Finance and Management Sciences. 20 September 2011, Vol. 1 (2). P. 20; Cable Vincent, Peter Ferdinand. China As an Economic Giant: Threat or Opportunity? // International Affairs (Royal Institute of International Affairs 1944), vol. 70, No. 2, 1994, P. 243 - 261, etc.
<4> Xi Jinping. About public administration. Beijing, 2017. p. 467.
Public procurement in China appears to be one of the most efficient in the world <5>, as evidenced by statistics <6>.
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<5> See: For government needs. The procurement system should include the advantages of capitalism and the planned management model (interview with K.V. Kichik) // Bulletin of operational information "Moscow auctions". pp. 42-45.
<6> See: China's GDP growth rate in 2021 reached its highest in 10 years.
The volume of public procurement conducted in China is very impressive. According to the Ministry of Finance of the People's Republic of China, over the past two decades, the volume of public procurement has increased significantly: 3.1 billion yuan in 1998, 213.57 billion yuan in 2004, 310.89 billion yuan in 2016 and 330.67 billion yuan in 2019. The volume of purchases in 2019 is more than 1,000 times higher than in 1998, and the average annual growth rate of public procurement in the country is about 11% <7>.
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<7> Wu Hua. Brief introduction to the legal system of government procurement in China // Public procurement law around the world: collection of articles / ed. by K. Kichik and G. Mordokhov; Procurement Law Center of MSU. Vol. II. Moscow: Yustitsinform, 2022. P. 35.
It seems obvious that the pace of economic growth in China over the past 20 years is unprecedented. No country in the world has demonstrated the same impressive economic growth as China during this period.
It is well known that most of the Chinese economy (as, indeed, in Russia) is state-owned (or "state-owned"). This means that the main "engine" of economic growth in the People's Republic of China were state business entities (government agencies, institutions, etc.), which in all countries, including the People's Republic of China, belong to the category of state customers in accordance with procurement legislation.
In other words, the PRC's procurement legislation has been "accompanying" the process of China's economic growth all this time. In this regard, it would seem that the PRC's procurement system should "automatically" receive a positive assessment from the scientific and practical community. But it's not that simple.
There is also a very harsh criticism of the Chinese procurement system from Chinese specialists themselves. Thus, Jingzhao Fan writes: "The public procurement sector in China is characterized by high levels of corruption, lack of integrity, poor quality of projects (especially in terms of quality and safety of public works) and public dissatisfaction with the enforcement of public procurement laws." <8> Other problems are also noted: "unscientific budgeting of purchases; insufficient planning of purchases; ambiguity of goal-setting in purchases; non-compliance of procurement procedures with established standards, etc." <9>.
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<8> Fan Jingzhao. Coupling of Public-Private Partnerships in the Public Procurement Law in China // Public procurement law around the world: collection of articles / ed. by K. Kichik and G. Mordokhov; Procurement Law Center of MSU. Vol. II. Moscow: Yustitsinform, 2022. P. 60 - 68.
<9> Xu Chushen. The procedure of public procurement, the study of the procurement system and their possible alternatives // China Academic Journal Electronic Publishing House. 2021. November. P. 38 - 40.
According to Chinese experts, public procurement of the People's Republic of China "was established in connection with the transition from a planned economy to a reasonable market economic system" <10>, because "in 2013, the 3rd Plenum of the 18th Congress of the Communist Party of China (CPC) proclaimed the exclusively dominant place of the market in the development of the country's economy" <11>. At the same time, experts from China still point to the "planned nature of the Chinese economy" <12>.
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<10> Fan Jingzhao. Ibid.
<11> Ziwei Zhang. Foreign Investment and Public-Private Partnerships in China // European Procurement & Public Private Partnership Law Review. 2017. Vol. 12. Iss. 1. P. 29 - 39.
<12> Ibid.
In general, it is quite difficult to determine the nature of the Chinese economy (market economy or not). This is confirmed by the following words of the General Secretary of the CPC Central Committee Xi Jinping: "At the 3rd plenum of the CPC Central Committee of the 18th convocation, an amendment was made to the understanding of the role of the market - the "fundamental role" in the allocation of resources was replaced by the wording "decisive role". Although the difference is only in two words, however, it is expressed that the role of the market is evaluated in a completely new way. The two assessments - "decisive role" and "fundamental role" - are interrelated, they reflect continuity and consistency. This is an organic unity. They do not deny each other and they cannot be separated and opposed to each other. On the one hand, it is impossible to replace or even abandon the decisive role of government in order to emphasize the decisive role of the market in the allocation of resources, on the other hand, it is also impossible to replace or abandon the decisive role of the market in the allocation of resources in order to better identify the role of government in this area" <13>.
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<13> Xi Jinping. About public administration. Beijing, 2017. p. 467.
In this regard, it is of great interest to study the legal regulation of relations in the field of public procurement in the People's Republic of China, the specifics of the relevant "procurement" institutions, comparison of the procurement systems of Russia and the People's Republic of China, identification of similarities and differences between them.
Comparison of procurement systems in Russia and China
As of September 1, 2022, China has two main special laws in the field of public procurement: 1) The Law of the People's Republic of China dated June 29, 2002 "On Government Procurement", entered into force on January 1, 2003 (hereinafter - the Law of the People's Republic of China "On Government Procurement"); 2) The Law of the People's Republic of China dated August 30, 1999 "On Tenders", entered into force on January 1, 2000 (hereinafter - the Law PRC "On bidding").
As we can see, both Laws of the People's Republic of China were adopted more than 20 years ago and their effect fell just during the period of the "Chinese economic miracle".
However, in the field of procurement, as Chinese scientists write, there are serious problems. Thus, Xu Chushen writes: "The Law of the People's Republic of China "On Public Procurement" establishes that public auctions are the main method of public procurement and that bidding activities should be carried out in accordance with the Law of the People's Republic of China "On Auctions", however, there are significant contradictions between these two Laws <14> in terms of regulating the circle of persons, qualifications a bidder, an authorized supervisory authority, etc." <15>.
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<14> Here and further in the text, all the bold or italics are by the author (K.K.).
<15> Xu Chushen. In the same place. The author also gives specific examples of contradictions between these two Laws: "So, the Law of the People's Republic of China "On Public Procurement" clearly establishes that the Law of the People's Republic of China "On Tenders" must be applied in public procurement, but the possibility of application in relation to purchases of goods and services is not determined in any way. However, the Law of the People's Republic of China "On Tenders" provides that this Law is subject to application to all purchases in the country. Also, for example, the Law of the People's Republic of China "On Public Procurement" provides that individuals are allowed to participate in tenders, but at the same time, according to the Law of the People's Republic of China "On Tenders", individuals are allowed to participate only when they carry out research projects. Another example is that according to the Law of the People's Republic of China "On Public Procurement", it is necessary to obtain the approval of a financial authority for conducting closed auctions, and according to the Law of the People's Republic of China "On Auctions", approval of a financial authority is not required for an invitation to participate in closed auctions" (ibid.).
The fundamental difference in the areas of application of these Laws is that "The Law on Tenders applies exclusively to the implementation of construction PPP projects, and the Law on Public Procurement applies to all other projects. Thus, depending on the type of project, different procedures for determining the supplier (contractor, contractor) will be applied to it)" <16>.
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<16> Ziwei Zhang. Ibid.
Wang Jiwei notes that "in practice, due to the fact that the objects of regulation in the Law on Government Procurement and the Law on Tenders contain "construction works", they overlap in the field of law enforcement, therefore all emerging law enforcement problems require further certainty" <17>.
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<17> Wang Jiwei. The legal system of government procurement in the People's Republic of China and the main current problems of legal regulation of procurement activities of state-owned enterprises // Public procurement in foreign countries: dynamics of legal regulation: monograph / ed. O.A. Belyaeva, V.A. Vaypan, K.V. Kichik. M., 2017. p. 301.
The regulatory regulation of procurement in the People's Republic of China is complemented by numerous by-laws, often very voluminous.
As we know, there are also two special procurement laws in force in Russia: 1) Federal Law No. 44-FZ of April 5, 2013 "On the Contract System in the field of procurement of goods, works, services for State and Municipal Needs" <18> (hereinafter - Law No. 44-FZ); 2) Federal Law No. 223-FZ of July 18, 2011 "On procurement of goods, works, and services by certain types of legal entities" <19> (hereinafter referred to as Law No. 223-FZ). In this regard, in Russia it is customary to distinguish several types of public procurement: state and municipal (Law No. 44-FZ), "corporate" (Law No. 223-FZ) and other public (general provisions of civil legislation). In China, there is no division of public procurement into any types (however, there is no such division in most countries of the world).
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<18> NW OF the Russian Federation. 2013. N 14. St. 1652.
<19> Federal Law of the Russian Federation. 2011. N 30 (part I). Article 4571.
It should also be noted that there is no special legislation on public-private partnership (PPP) in the PRC, since PPP relations in the PRC are regulated by the above two Procurement Laws <20>.
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<20> See: Ziwei Zhang. Foreign Investment and Public-Private Partnerships in China // European Procurement & Public Private Partnership Law Review. 2017. Vol. 12. Iss. 1. P. 29 - 39. It is worth noting that in Japan, South Korea, Malaysia and Vietnam, relations in the field of PPP are also included in the subject of regulation of procurement legislation (see: Russian Business Law: results, trends and ways of development: a monograph, a team of authors / Lomonosov Moscow State University / ed. E.P. Gubin. M.: Justicinform, 2019. p. 344 (the author of the chapter is K.V. Kichik)).
As we can see, the subjects of regulation of the two Laws of the People's Republic of China on Procurement and the two Laws of Russia on Procurement do not fully coincide. This difference can be traced further when determining the list of customers according to the laws of the PRC and Russia under consideration.
The Law of the People's Republic of China "On Government Procurement" defines as customers "state bodies of all levels, as well as budgetary institutions and corporations engaged in activities in the field of public procurement in the territory of the People's Republic of China" <21>. According to the Law of the People's Republic of China "On Tenders", the customers are "interested persons, public-private persons, which include both government agencies and private enterprises" <22>.
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<21> Wang Jiwei. Ibid., pp. 299-300. Some experts from the People's Republic of China propose to expand the scope of the Law of the People's Republic of China "On Government Procurement", namely, "to include purchases of monopolistic or state-owned, partially non-profit, organizations in the regulation of public procurement, which will further expand the scope of application of the rules on public procurement" (Xu Chushen. Ibid.).
<22> Wang Jiwei. Ibid., p. 300. The Law of the People's Republic of China "On Bidding" "regulates the procurement activities of both public and private organizations (including state-owned enterprises) related to large infrastructure works funded by the state and related supplies and services" (Ghossein T., Hoekman B., Shingal A. Public Procurement, Regional Integration, and the Belt and Road Initiative // The World Bank Research Observer, Volume 36, Issue 2, August 2021. P. 131 - 163).
Based on the above, it turns out that the customers under the Law of the People's Republic of China "On Government Procurement" are entities that should be considered state-owned both from an economic and legal point of view (with the exception, perhaps, of the above-mentioned "corporations"). Thus, the list of customers under this Law almost repeats the list of customers under Russian Law No. 44-FZ.
The list of customers under the Law of the People's Republic of China "On Auctions" corresponds to the lists of Russian "corporate" customers (i.e. customers under Law No. 223-FZ) and "other" customers (i.e. customers not subject to Law No. 44-FZ and Law No. 223-FZ).
So, at first glance, the Law of the People's Republic of China "On Government Procurement" is very similar in terms of the list of customers to the Russian Law No. 44-FZ (we can call it the Chinese equivalent of Law No. 44-FZ with a certain degree of conditionality), and the Law of the People's Republic of China "On Auctions" - to the Russian Law No. 223-FZ (analog of Law No. 223-FZ).
However, an important element that distinguishes these laws from each other should be taken into account - the source of financing for purchases conducted under these laws.
In Russia, the source of financing, as a rule, does not affect the choice of the procurement law to be applied: both under Law No. 44-FZ and Law No. 223-FZ, purchases can be made from budgetary and extra-budgetary sources (in this regard, by the way, we have not considered since the time of Law No. 94-FZ budgetary sources of financing as a sign of a state order (public procurement) <23>, which, however, is still being done by some authors <24>).
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<23> See: Kichik K.V. State (municipal) order of Russia: legal problems of formation, placement and execution: monograph. M.: Justicinform, 2012. p. 29.
<24> See, for example: Shmeleva M.V. The concept of state (municipal) procurement in the Russian Federation: dis. ... Dr. yurid. sciences'. Saratov, 2022. P. 21. By the way, D.A. Chvanenko notes that the "source of financing" cannot be a sign of a state contract, since the legislator allows to conclude a state contract with a price equal to zero (Chvanenko D.A. State contract as a special model of a civil contract: dis. ... cand. Jurid. sciences'. Moscow, 2021. pp. 69-70).
In the PRC, the situation is different: "public procurement must be carried out at the expense of budgetary funds, the Law on Government Procurement does not apply to purchases carried out at the expense of extra-budgetary funds... Borrowed funds repaid at the expense of budgetary funds are considered budgetary funds. In practice, if both budgetary and extra-budgetary funds are used in the procurement, it is first necessary to determine whether the procurement project can be divided according to different sources of financing. If it can be divided, that is, if procurement projects can be divided into various independent subprojects, then the part using budgetary funds should be regulated by the Law and the decree on government procurement; if the part using budgetary funds and the part using extra-budgetary funds cannot be divided, then the procurement should be regulated by the Law and the decree on government procurement in full" <25>.
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<25> Wu Hua. Brief introduction to the legal system of government procurement in China // Public procurement law around the world: collection of articles / ed. by K. Kichik and G. Mordokhov; Procurement Law Center of MSU. Vol. II. Moscow: Yustitsinform, 2022. P. 35 - 50.
In this regard, it seems appropriate to say that the legislator of the People's Republic of China defines the "level of publicity" <26> of customers according to the Law of the People's Republic of China "On Government Procurement" as strictly as possible - using both criteria of this "level of publicity": both the organizational and legal form and the source of financing.
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<26> For more information about the category "level of publicity", see: Kichik K.V. "Level of publicity" of economic entities as a criterion for their assignment to the number of customers in public procurement // Entrepreneurial law: a modern view: a monograph, a team of authors / Lomonosov Moscow State University / ed. S.A. Karelin, P.G. Lakhno, I.S. Shitkina. M.: Justicinform, 2019. pp. 503 - 514.
In Russia, as we know, the organizational and legal form is the determining criterion for classifying entities as customers under Law No. 44-FZ or Law No. 223-FZ. And only in the cases provided for in Article 15 of Law No. 44-FZ, this Law extends its effect to other (any) customer entities (it is just about receiving budget funds).
It is interesting to note that when "mixing" sources of financing (budgetary and extra-budgetary) in procurement, the Law of the People's Republic of China "On Government Procurement" takes precedence, and not the Law of the People's Republic of China "On Bidding".
This logic is obviously applicable in the Russian procurement system: if an economic entity that is not classified by Law No. 44-FZ as a customer receives the funds specified in Article 15 of Law No. 44-FZ, it is obliged to conduct purchases taking into account the provisions of Law No. 44-FZ. If this entity conducts purchases at the expense of the specified budgetary funds and extra-budgetary funds (at the same time), then it should also be guided by the provisions of Law No. 44-FZ, because these budgetary funds increase the "level of publicity" of the entire purchase to the level of the state (municipal) (even if their ratio with extra-budgetary funds is 1 to 100).
A comparison of the procurement methods used in China and Russia deserves special attention.
The Law of the People's Republic of China "On Government Procurement" provides for the following procurement methods (Article 26): public auctions, selective purchases, competitive negotiations, request for quotations and purchases from a single supplier. It is also allowed to use other procurement methods if they are approved by the Public Procurement Control Authority (GPRA) of the State Council <27>.
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<27> See: Wu Hua. Ibid.
The Law of the People's Republic of China "On Auctions" provides for the following procurement methods (art. 10): open bidding, selective bidding.
As we can see, the list of procurement methods in accordance with the Law of the People's Republic of China "On Government Procurement" is open.
In Russia, the situation is similar: in the first Law (Law No. 44-FZ), the list of procurement methods is closed, in the second Law (Law No. 223-FZ) - open. The difference, however, lies in who has the right to supplement this open list: in the People's Republic of China, such powers are vested in a state body (the Public Procurement Control Authority (GPRA) of the State Council), and in Russia - the customers themselves under Law No. 223-FZ (i.e. not government agencies). The difference also lies in the fact that the open list of purchases in the People's Republic of China is provided for by an analogue of Law No. 44-FZ (the Law of the People's Republic of China "On Government Procurement"), and not by an analogue of Law No. 223-FZ (the Law of the People's Republic of China "On Tenders").
At the same time, it should be noted that the Government of the Russian Federation, in accordance with Law No. 44-FZ, has the right to determine the specifics of a specific purchase, including establishing a method for determining a supplier (contractor, contractor) not provided for by Law No. 44-FZ (Article 111 of Law No. 44-FZ). Moreover, the President of the Russian Federation and the Government of the Russian Federation have the right to determine by their decrees or orders the sole suppliers (contractors, executors) of the purchased products (paragraph 2 of Part 1 of Article 93 of Law No. 44-FZ).
According to statistics from the Ministry of Finance of the People's Republic of China, in 2018, the national volume of public procurement amounted to 35.8614 billion yuan. Public auctions, selective purchases, competitive negotiations, competitive dialogue, request for quotations and purchases from a single supplier, respectively 70,5%, 1,1%, 3,6%, 8,3%, 2,3% and 11.8% of the national volume of public procurement <28>.
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<28> Wu Hua. Ibid.
As we can see, more than 70% of the total volume of purchases in China is occupied by public auctions. In Russia, the volume of tenders in the field of state (municipal) procurement is approximately the same: of the total volume of competitive procurement methods in 2021, the share of tenders in the total value of purchases conducted in accordance with Law No. 44-FZ was approximately 70%. In the field of "corporate" procurement (Law No. 223-FZ), the share of tenders from the total volume of competitive procurement methods in 2021 was 43% <29>.
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<29> According to the data of the Ministry of Finance of the Russian Federation, the methods of competitive procurement in the total value for 2021 are distributed as follows (Law No. 44-FZ): electronic auction - 64%; open competition in electronic form - 24%; competition with limited participation in electronic form - 6%; closed auction - 2%; joint tenders and auctions - 3%; other forms of competitive procurement - less than one percent. Purchase from a single supplier - 31%. According to Law No. 223-FZ, the figures are as follows: competitive "other methods" in electronic form - 32%; competitive "other methods" in non-electronic form - 4%; non-competitive "other methods" in electronic form - 6%; non-competitive "other methods" in non-electronic form - 15%. Consequently, all other procurement methods are auctions, 43% (see: Summary Analytical Report on the results of monitoring purchases of goods, works, and services carried out in accordance with the Federal Law "On the Contract System in the field of procurement of Goods, Works, and Services for State and Municipal Needs", for 2021
Chinese researcher Xu Chushen believes that the legislator of the People's Republic of China carries out "excessive emphasis" on open tenders, in connection with which, according to the author, customers should be given the right to choose procurement methods <30>. A similar point of view was voiced in Russia more than ten years ago. Moreover, this idea was implemented in the early years of the application of Law No. 223-FZ: regulatory authority (until 2017 this was the Ministry of Economic Development of Russia) regularly issued reports on the application of Law No. 223-FZ, according to which, among the total volume of "corporate" purchases, the share of non-competitive procurement methods was more than 95%. In our opinion, Chinese scientists should take into account the relevant negative Russian experience and abandon this idea.
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<30> Xu Chushen. In the same place.
The development of the institution of rationing in the PRC's procurement legislation seems to be very positive. The by-laws of the People's Republic of China describe in detail which property (for example, cars) can be claimed at public expense by officials holding various positions in state authorities at various levels. Thus, Professor Liu Xiaohong notes that in accordance with the provisions of the "Administrative Measures for official vehicles of Party and Government Bodies", party and government bodies equipped with official vehicles must strictly comply with the following standards: (1) the main vehicles may be cars or small buses worth less than 120,000 yuan with a working engine capacity less than 1.6 liters (inclusive); (2) Emergency vehicles and other official vehicles equipped in accordance with the regulations may be cars or small buses worth less than 180,000 yuan with an engine displacement of less than 1.8 liters (inclusive). Under "special circumstances", it is allowed to purchase small buses, medium-sized buses with a price of less than 250,000 yuan with an engine displacement of less than 3.0 liters (inclusive) or large buses with a price of less than 450,000 yuan; (3) Law enforcement vehicles on duty may be cars or small buses worth less than 120,000 yuan with an engine displacement of less than 1.6 liters (inclusive). Due to "work needs", it is allowed to purchase cars or small buses worth less than 180,000 yuan with an engine displacement of less than 1.8 liters (inclusive). In the presence of "special circumstances", it is allowed to purchase small buses, medium-sized buses with a price of less than 250,000 yuan with an engine displacement of less than 3.0 liters (inclusive) or large buses with a price of less than 450,000 yuan <31>.
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<31> See: Interview with the Rector of Shanghai University of Politics and Law, Professor Liu Xiaohong // Procurement and Law. 2023. N 1. P. 9.
China's experience in building a rationing system in the field of procurement is of great interest. Russia also has an institution of rationing in the field of procurement (Article 19 of Law No. 44-FZ). The Government of the Russian Federation adopted a Resolution approving the indicators to which property (for example, the same cars) purchased for the needs of some customers under Law No. 44-FZ <32> should correspond. However, such detailed rationing in the field of procurement, which is available in China, is not currently available in Russia, which can hardly be considered correct.
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<32> See: Decree of the Government of the Russian Federation of September 2, 2015 No. 927 (as amended on 12/9/2020) "On determining requirements for certain types of goods, works, and services purchased by customers (including marginal prices of goods, works, and services)" // SZ RF. 2015. N 37. St. 5142.
Attention should be paid to the most important component of any procurement system - information openness. In Russia, the unified information system in the field of procurement has been functioning for many years. Such a system is currently being formed in China.
Chinese experts note the problem of the lack of a "single open information platform for government procurement" <33>.
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<33> Wang Jiwei. Decree. op. c. 310.
In China, information about purchases should be posted not only in online sources, but also in some "paper" media. Thus, information on purchases conducted in accordance with the Law of the People's Republic of China "On Government Procurement" should be posted by the Central Government Procurement Center on the website (in addition, local governments have their own government procurement platforms). Information about purchases conducted in accordance with the Law of the People's Republic of China "On Bidding" should be published in the following newspapers, "information networks and other media": China Procurement and Bidding Net; China Daily; China Economic Herald; China Construction News. Announcements of international auctions should be published in the English version of the China Daily newspaper and available at:. Construction projects under the jurisdiction of the Ministry of Housing and Urban and Rural Development of the People's Republic of China are published by the Chinese Association of Management of Construction Enterprises on the website. Information about tenders for the purchase of machinery and electrical products is published on the website <34>.
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<34> See: Rademacher S., Wang-Metzner J., Cheng J., Henke S., Li C. China: Public procurement - opportunities and challenges // Beiten Burkhardt. 11/2018.
P.V. Troshchinsky draws attention to a large number of Internet sites that host information on public procurement in China, noting, in particular, that "every major region of the People's Republic of China has also created its own Internet sites for public procurement (for example: in Jiangsu Province:; in Guangdong Province:; in Henan Province:" <35>.
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<35> Troshchinsky P.V. Legal regulation of public procurement in China: a view from Russia // Public procurement in foreign countries: dynamics of legal regulation: monograph / ed. O.A. Belyaeva, V.A. Vaypan, K.V. Kichik. M., 2017. p. 331.
Since 2020, there has been a tendency in China to abandon "paper" sources of information on public procurement. As Wu Hua notes, the Order of the Ministry of Finance of the People's Republic of China No. 101 dated November 27, 2019 (entered into force on March 1, 2020) "defines the Chinese Public Procurement Network and its regional subnets as a platform for collecting information on public procurement, requiring that information on public procurement be published on the Chinese Public Procurement Network or its regional subnets, excluding locations... that newspapers, magazines and other paper media can be used as sources for information disclosure" <36>.
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<36> Wu Hua. Ibid.
An important distinctive feature of the PRC's procurement system is the strict support of domestic manufacturers, which many authors pay attention to <37>. In China, public procurement of goods (works, services) abroad is possible only if there are no Chinese analogues of these products (see Article 10 of the Law of the People's Republic of China "On Government Procurement"). This legal regime is very similar to purchases in Russia carried out within the framework of the state defense order (in accordance with the special Law on the state defense Order). In other cases, in Russia (not with the state defense order), more "soft" tools are used to support domestic manufacturers (mainly preferences of 15-20% of the initial contract price; Article 14 of Law No. 44-FZ).
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<37> See: Troshchinsky P.V. Ibid., p. 321; Rademacher S., Wang-Metzner J., Cheng J., Henke S., Li C. Ibid.; Erixon F., Guildea A., Guinea O., Lamprecht Ph. China's Public Procurement Protectionism and Europe's Response: The Case of Medical Technology // ECIPE Policy Brief. 2021. N 12; Ghossein T., Hoekman B., Shingal A. Ibid. and others .
Another important feature of the PRC's procurement system should be noted, which is the special role of the Chinese Communist Party in the relations that develop during public procurement. In the People's Republic of China, control over the activities of public procurement entities is carried out by state party and law enforcement agencies. The ruling Communist Party of China defines the vector of development of the Institute of procurement. As noted by P.V. Troshchinsky, freedom of contract in the field of public procurement, unlike in Russia, in China is limited by the decisions of local party officials, who mainly support those state-owned enterprises that bring the greatest income to the regional budget <38>. CPC representatives have significant authority in forming orders and conducting purchases.
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<38> Troshchinsky P.V. Ibid. pp. 334-335.
Conclusions
Based on the analysis, the following conclusions can be drawn.
1. There are three types of public procurement in Russia: state (municipal), "corporate" and others. Different laws apply to different types of purchases, and different legal regimes apply. There is no such division into types of procurement in the PRC, the two basic laws of the PRC on procurement regularly "overlap" with each other due to the unclear division of their fields of application, which causes problems in practice.
2. The laws of Russia on procurement do not fully coincide with the laws of the People's Republic of China on procurement in terms of regulation: in particular, in the People's Republic of China, procurement legislation includes relations that develop in public-private partnerships; various lists of customers are defined; various legal procurement regimes are established at the expense of funds from extra-budgetary sources, etc.
3. The lists of procurement methods in Russia and China are similar in many ways. The difference lies in the fact that in Russia, in the field of state (municipal) procurement, the list of procurement methods is closed, while in the PRC it is open (authorized state bodies have the right to supplement this list). In both Russia and China, the legislator focuses on bidding.
4. In China, rationing in the field of procurement applies to all "party and government" bodies, in Russia - only a part of customers according to Law No. 44-FZ. It seems necessary to take into account the Chinese experience of rationing in the Russian procurement system, namely, the extension of the institution of rationing to all state (municipal) and "corporate" customers.
5. A unified information system in the field of procurement has been formed in Russia. In China, this system is in the process of formation.
6. China has the most stringent support system for domestic manufacturers (you can only buy products whose analogues are not produced in China). A similar legal regime in Russia exists only for purchases within the framework of a state defense order. In other cases, Russia uses more "soft" tools to support domestic producers (mainly preferences of 15-20% of the initial contract price).
7. In the PRC, the Chinese Communist Party plays a special role in public procurement relations. CPC representatives have significant authority in forming orders and conducting purchases. In Russia, no political party has similar powers.
