政府代建制度的英文文献翻译.doc

The Regulatory FrameworkMost countries that rely ongeneral contract law regulate publicprocurement by internal rules that prescribe the formal process of bidding,the evaluation of bids, the award and conclusion of contracts, and contractmanagement (Box 9.3). The rules also mandate procedures for dealing withpossible court challenges from unsuccessful bidders, and procedures forcontract interpretation, breach of contract, and dispute resolution andarbitration. The intention is to provide a self-contained regime for contractaward and management, which would avoid recourse to external arbitrators.The procurement regulations and audit rules place great reliance oncompetition and objective decision making (except in specified emergenciessuch as natural disasters). This approach often results in extensive regulatorycontrol and oversight by external agencies, and heavy bureaucratic reviewand approval processes. Many government entities feel that the procurement324TO SERVE AND TO PRESERVEBox 9.3Procurement Guidelines in the United KingdomIn the United Kingdom, the Procurement Practice and Development teamis the central unit in the Treasury that promotes best practices and thedevelopment of procurement strategies by departments. The Government hasstipulated the following key points for its senior management: value for money;compliance with national and international legal obligations; cost-effectivefulfillment of users needs; appropriate level of competition; and honest andimpartial relationships with suppliers. The procurement process would ensurefairness, efficiency, courtesy, and firm dealings; high professional standards;wide and easy access to information on the procurement process anddocumentation; prompt notification of the outcome of the bidding; efficiencyand integrity in contract management; and prompt response to suggestionsand complaints.In selecting bidders, undue emphasis should not be placed on size, andthe standards of financial and technical capacity should be proportionate tothe contract in question. The criteria for the award should not consist of pricealone, but should also consider other factors like whole-life cost, quality, anddelivery. Whole-life cost is relevant in complex procurements, including largesupply and service contracts and construction projects, and in offsetting higherexpenditure for better quality against the lower maintenance costs over theassets life.New Zealand has published Government Purchasing: A Guide for Suppliersto help suppliers understand and operate in the government purchasingenvironment. It is intended to improve communication between public sectorbuyers and industry to their mutual benefit. Canada provides an integratedelectronic public tendering service, which supports open, cost-effectiveprocurement for all levels of government, and all sizes of suppliers in the privatesector._Source: UK Government and World Trade Organization web cess has become an end in itself, stressing compliance with rules to theneglect of economy or efficiency. In 1993, the US had 889 laws thatcontrolled every aspect of defense procurement alone, making a product50 percent by estimate more costly simply because it was being purchasedby the government. Federal regulations filled 1,600 pages, supplementedby 2,900 pages of agency-specific regulations, supplemented in turn byinstructions and case law (US Government 1993). Some of these additionalregulations are important in public procurement because of its special natureAcquiring Goods and Services: Public Procurement325and risks. In many countries, however, procurement rules would besubstantially simplified without compromising the integrity of the process.After the award of contracts, additional regulations to deal with breachof contract and unsatisfactory contractor performance can be reduced inthe first instance through clear and complete specifications, well-definedperformance standards, and the inclusion of incentives and penalties in thecontract. However, these measures inevitably add costs and delays to theinitial phases of contract execution. Formal legal remedies, such as financialpenalties or exclusion from future contracts, are costly and dilatory incountries with inadequate judicial systems.Many countries are consequently moving to streamline andconsolidate existing laws and regulations, or writing simpler laws andregulations to govern procurement transactions. In the US, as recommendedby the National Performance Review, the Federal Acquisition StreamliningAct of 1994 repealed or modified 225 provisions, and raised the thresholdsabove which the agencies needed to follow the regulations, thus exempting95 percent of transactions.Model CodesThe stress in recent years has also been on a uniform procurementcode to set the basic framework for procurement, supplemented by themore detailed rules by implementing ministries. For example, in Australia,the procurement framework is contained in the 93-page CommonwealthProcurement Guidelines issued in December 1997. In the UK, theprocurement function is exercised under Treasury guidance (Box 9.4). Atthe subnational level one of the earliest efforts at a uniform procurementcode was the Model Procurement Code for State and Local Governmentsinthe US. This was the most comprehensive and consistent attempt to applythe elements of good practice, and was meant to be adapted to particularstate and local circumstances. The EU insists on enforcing a modelprocurement code (Box 9.4) as a condition for membership of countries inthe Union. The Peoples Republic of China, for its part, has draftedprocurement legislation with Asian Development Bank support.326TO SERVE AND TO PRESERVEBox 9.4Procurement Regulations in EuropeCountries seeking Eurpean Union (EU) membership are required toestablish and maintain procurement systems that meet standards oftransparency and of open and fair competition. Central and eastern Europeancountries have been working to establish modern public procurement systemsfrom the start of their transition to a market economy. Creating such systemsis part of the process of forging an efficient, competitive market economy andis necessary for these countries full integration into the international tradingcommunity.To build and implement the system, significant changes have had to bemade from the days of the command economy, when procurement was part ofthe central planning system. In particular, central and eastern Europeancountries are designing a legal and administrative framework that facilitatesthe integration of the myriad procurement entities throughout the public sectorinto a functional and coherent network with high professional standards, andthat is consistent with international obligations. Such a framework would definethe financial and legal responsibilities of all participants in the procurementprocess, including suppliers and procurement entities in central and localgovernment.Slovakia and Latvia have already passed a national procurement lawconsistent with international standards. Poland has set up a central organizationto draft and disseminate procurement regulations and rules for decentralizedoperation. The Organisation for Economic Co-operation and Developmentand the International Labour Organisation have collaborated in preparing apublic procurement manual for central and eastern Europe._Source: OECD (1999a).The most widely used model public procurement law is the oneadopted by the UN Commission on International Trade Law (UNCITRAL)in 1994,5 consolidating previous model laws. A detailed guide was laterissued. The model law was intended to be a model for developing andtransitional economies in modernizing their procurement regulations or inestablishing such regulations. It is expected to address the inefficienciesand the potential for abuse in the laws of many countries, and to makethese laws more compatible with international trade practices. The law hasformed the basis for national procurement legislation in many developingcountries, with support from international donor agencies. Annex V liststhe provisions of the model law. The model law does not supersedeAcquiring Goods and Services: Public Procurement327international obligations or the applicable national laws for contract,criminal, and judicial procedures. Although as a framework law theUNCITRAL model law does not itself set forth all the necessary regulations,it mandates open tendering as the method of procurement that is generallymost effective in promoting competition, economy, and efficiency inprocurement. For circumstances in which tendering is not feasible, the modellaw suggests alternative methods of procurement.采购规定管理的构架大多数国家依赖于一般合同法规定的政府采购的正式投标过程中的内部规定，投标的价格，奖励和签订合同，和合同的管理（在专栏9。3可见）。规定还要求处理从失败的投标人可能受到的法院的挑战的程序，合同的解释，合同的违约，和争议的解决方法和仲裁。这种目的是为合同奖励和合同管理提供一个自足合同制度，这将避免外部仲裁员追索。采购法规和审计规则很大程度上依赖于竞争和客观的决策（除了特定的紧急情况以外比如自然灾害）。这种方法往往导致广泛的监管控制外部机构的监督，严格的官僚审查和审批程序。很多政府机构认为采购程序已经成为一个本身，强调遵守规则并忽略经济性和效率性。在1993年，美国有889条法律来控制国防采购的每个方面，单单是因为它被联邦政府的法规购买，这使产品50%估计为更昂贵。联邦的法规有1600页，补充了2900页的特定机构的具体规定，又加以指令和案例法（美国政府1993年的）。这些额外的法律在政府采购中很重要是因为它的特殊性质和风险性。然而，在许多国家，采购规定可以是持续简化而不损害过程中的完整性的。批出合约之后，额外的规定将处理违反规定合同，并且承包商表现欠佳的情况将会在第一时间通过清晰和完整的规格，定义良好的表现标准和列入奖励和惩罚的合同。然而，这些措施仍然不可避免的增加了费用和延误了合同执行的初始阶段。正式的法律补救措施如从未来的合同中的处罚和排斥，是对于司法体系不足的国家中是昂贵和拖延时间的。因此许多国家都趋向于精简和巩固现存的法律和法规，或者编写简单的法律和法规来管理政府采购交易活动。在美国，由美国绩效评估委员会推荐的，联邦精简采购活动于1994废除或修改了225条款，并且提出了临界条件，在此之内上述机构必须遵守规定，因此豁免了95%的交易。专栏9.3英国的采购指南在英国，采购活动和发展团队是财政部的中心部门，它促进了最佳的做法和各部门采购策略的发展。政府为高级管理人员规定了下列要点：钱有所价值，符合满足国家的和国际上的法律义务，成本效益满足用户需求；适当水平的竞争，与供应商诚实和公正的关系。采购过程将保持公平，效率，礼貌和公司的处理。高的专业标准，在采购过程中广泛和方便的获取采购信息和文件；及时通报招标公告，在合同管理的效率性和完整性，对建议和投诉的迅速反应。在投标过程中，不应当过分强调单位的大小，资历水平和技术能力应当在合同问题上相匹配。奖励的标准不应该仅包括价格，也应该考虑其他因素比如全寿命成本，质量，和交货。全寿命成本在复杂的采购过程中相关的，大型供应和服务合同