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International Procurement

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Abstract

This year in review article for 2011 focuses on developments in Chinese procurement law in the realm of socio-economic policies, most notably, policies aimed at (1) enhancing contracting opportunities for China's small and medium business, and (2) preferential treatment of domestically-developed technology products.
International Procurement
H
OWARD
A. W
OLF
-R
ODDA AND
D
ANIEL
J. M
ITTERHOFF
*
This year in review article for 2011 focuses on developments in Chinese procurement
law in the realm of socio-economic policies, most notably, policies aimed at (1) enhancing
contracting opportunities for China’s small and medium business, and (2) preferential
treatment of domestically-developed technology products.
I. Developments in Socio-Economic Policies in Chinese Government
Procurement
In 2011, China launched a significant experiment to increase public contracting oppor-
tunities for the country’s small and medium enterprises but abandoned a key pillar of its
domestic product purchase preference regime.
1
A. T
HE
D
EMISE OF
P
URCHASING
P
REFERENCES FOR
“I
NDIGENOUS
I
NNOVATION
In 2006, China’s central government formally launched a national industrial policy to
encourage government agencies to “work cooperatively to develop measures that favor
products that use Chinese-developed ideas and technology.”
2
A significant component of
this policy was to fashion preferences in government procurement for the purchase of
domestically-developed, innovative products.
* Howard Wolf-Rodda served as editor of the International Procurement Committee’s 2011 YIR
contribution. Mr. Wolf-Rodda is a Counsel with the law firm Brown Rudnick LLP in Washington, D.C.
Daniel J. Mitterhoff authored this year’s committee submission outlining recent developments in Chinese
procurement law. Professor Mitterhoff is Founding Director of the Research Center for Government
Procurement and Public Construction, Central University of Finance and Economics, Beijing (CUFE). He
also serves as a Senior Lecturer with University of Maryland School of Law and is Director of the Maryland-
CUFE Cooperative Program. For developments in earlier years, see David P. Goodwin et al., International
Procurement, 44 I
NT
L
L
AW
. 261 (2010).
1. Article 9 of China’s 2002 Government Procurement Law provides that government procurement shall
contribute to the development of the country’s economic and social development targets, among them, the
promotion of small and medium enterprises. Article 10 of China’s 2002 Government Law favors the
purchase of Chinese domestic products over the purchase of products of foreign origin. People’s Republic of
China, The Government Procurement Law (Order of the President No. 68) (June 29, 2002) [hereinafter
Government Procurement Law 2002], http://www.gov.cn/english/laws/2005-10/08/content_75023.htm.
2. U.S.–China Bus. Council, Issues Brief: China’s Domestic Innovation and Procurement Policies, 1 (2010),
http://www.uschina.org/public/documents/2010/05/domestic_innovation_policies.pdf.
231
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232 THE INTERNATIONAL LAWYER
From 2007 to 2010, the Chinese government issued a number of national level rules
designed to qualify indigenously created technology products and to develop formulas for
providing price advantages and evaluation point advantages in China’s government pro-
curement processes.
3
This included the development of specific product lists identifying
items slated for preferences by both central and local government purchasing entities.
4
At the same time, China’s trade partners began an all-out assault on China’s “indige-
nous innovation,” bemoaning the policy as disguised protectionism.
5
Boisterous opposi-
tion drew Chinese regulators into a rather mature dialogue as to how the policy might be
tailored to offset the concerns of foreign companies. Indeed, by 2010, revisions to the
policy to ensure that foreign invested enterprise products produced in China were treated
equally under the policy began to form.
6
Thus, many were caught by surprise when
China—first through an informal understanding during a January 2011 high-level meet-
ing between Presidents Hu and Obama, and then again by formal decision at the May
2011 Strategic and Economic Dialogue between the two countries—abandoned the pol-
icy.
7
The calmness of the policy’s demise contrasted significantly with the loudness that
accompanied its controversial formation. Five years of Chinese policy-making were
shelved rather quietly. Chinese regulatory notices advising of the “separation” of govern-
ment procurement from the broader indigenous innovation policy were quite brief, with
no explanation or justification.
8
The demise of China’s indigenous innovation purchasing preferences was never going
to suddenly level the playing field for contractors in China’s government procurement
market. An April 2011 report by the European Union Chamber of Commerce in China
3. U.S.–China Bus. Council, PRC Policies, Laws, and Regulations that Provide Government Procurement Pref-
erences for Indigenous Innovation Products, 1–3 (2010), https://www.uschina.org/public/documents/2010/10/
procurement_domestic_innovation.pdf.
4. Id. at 2.
5. Jason Matechak & Brett Gerson, Can China’s Government Procurement Market Be Cracked, C
HINA
B
US
.
R
EV
. (2010), https://www.chinabusinessreview.com/public/1005/matechak.html.
6. Id.
7. Hilary Rodham Clinton, Sec’y of State; Timothy Geitner, Sec’y of Treasury; Wang Qishan, Chinese
Vice Premier; & Dai Bingguo, Chinese State Councilor, Joint Closing Remarks for the Strategic and Eco-
nomic Dialogue (May 10, 2011), available at http://www.state.gov/secretary/rm/2011/05/162969.htm; Press
Release, U.S. Chamber of Commerce, U.S. Chamber of Commerce Welcomes Results of S&ED (May 10,
2011), available at http://www.uschamber.com/press/releases/2011/may/us-chamber-welcomes-results-us-
china-sed.
8. Zhonggu ´o jiang qu´anmi`an sh´ıshi zh`engfu caig `ou yu z`ızhu chu `angxin fenl´ı zh`engc`e
() [China Will Completely Separate the Policy of Indigenous
Innovation from the Implementation of Government Procurement], May 16, 2011, available at http://
www.cinic.org.cn/site951/zcdt/2011-05-16/480248.shtml (reporting on Vice-Director of China’s National
Development and Reform Commission, Zhang Shaoqiang’s, announcement that China had promised to sep-
arate the two policies); C´aizh`eng b `u guany ´u t´ıngzhi zh´ıx´ıng “z`ızhu chu `angxin chanpin zh`engfu caig`ou y `usu`an
guanli b`anfa” deng san g`e w ´enji `an de tongzhi
() [Ministry of Finance
Notice About the Stopping of the Application of ‘Management Measures for Government Procurement
Budget for Indigenous Innovation Products’ and Three Other Documents] (issued by Ministry of Finance,
Department of Treasury, June, 23, 2011), Document No. 85, available at http://vip.chinalawinfo.com/
newlaw2002/slc/slc.asp?db=chl&gid=153552.
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INTERNATIONAL PROCUREMENT 233
makes this clear.
9
The report is the first effort by a Western outfit to track discriminatory
practices on the ground in China at the level of contract formation. The report details a
chaotic regulatory environment and a number of questionable practices by Chinese public
purchasers, which sadly serve to limit access to China’s substantial public procurement
market.
10
China continues to struggle with choices over whether to pursue further liberalization
of its government procurement market by acceding to the Government Procurement
Agreement of the World Trade Organization or by deepening a domestic product prefer-
ence regime. Confusingly, China’s Ministry of Finance (MoF), the chief regulator for
China’s government procurement market, apparently does not see these as incompatible
choices, but as equal policies to be pursued with equal vigor.
11
Yet rational balancing of
the overarching policy of open competition, in relation to ancillary socio-economic poli-
cies like “buy domestic,” remains elusive.
12
A comprehensive draft regulation on the sub-
ject has yet to be finalized.
13
Indeed, China’s overall design for a domestic product
preference regime in government procurement remains a work in progress.
B. C
HINA
L
AUNCHES A
T
WO
-Y
EAR
E
XPERIMENT TO
F
ACILITATE
T
HE
I
SSUANCE OF
L
OAN AND
P
ERFORMANCE
G
UARANTEES TO
S
MALL AND
M
EDIUM
G
OVERNMENT
S
UPPLIERS
The year 2011 also witnessed China’s first national level attempt to provide more public
procurement contracting opportunities for small and medium enterprises. On September
15, 2011, China’s Ministry of Finance issued its “Notice on Launching Experimental
Work of Credit Guarantees in Government Procurement” (hereinafter MoF Document
No. 124), which designates China’s central government, Beijing municipality, Heilongji-
ang Province, Guangdong Province, Jiangsu Province, Hunan Province, Henan Province,
Shandong Province, and Shaanxi Province as experimental jurisdictions to employ a surety
bond and guarantee system designed to expand government procurement contracting op-
9. European Union Chamber of Commerce in China, Public Procurement in China: European Business Ex-
periences Competing for Public Contracts in China, Apr. 21, 2011, http://www.europeanchamber.com.cn/images/
documents/marketing_department/beijing/publications/2011/PP%20Study%20EN%20Final_0421.pdf.
10. Id. at 5; see also Daniel Mitterhoff, Grappling with the Regulatory Environment for Chinese Public Procure-
ment, 3 I
NT
L
G
OV
T
C
ONTRACTOR
¶ 17 (2006), available at http://digitalcommons.law.umaryland.edu/
fac_pubs/545/.
11. Guany ´u y`ınfa 2011 ni´an zh`engfu caig `ou gongzu `o y`aodian de tongzhi
() [Notice of the Publishing of the Essentials for Government Pro-
curement Work for Year 2011] (issued by Ministry of Finance, Treasury Department, 2011) Document No.
15, available at http://jsz.mof.gov.cn/lanmudaohang/zhengcefagui/201102/t20110218_455490.html.
12. See Daniel Mitterhoff, Huigui ‘sangong’ genben yuanze kebu ronghuan [The Imperative of Returning to the
Fundamental Principles of ‘Openness, Fairness and Justice’], G
ONGGONG
C
AIGOU
[P
UBLIC
P
ROCUREMENT
],
Oct. 3, 2011, at 60–61, available at http://digitalcommons.law.umaryland.edu/fac_pubs/1162/ (arguing that
China must make distinct choices in prioritizing its policies in government procurement and advocating
China return focus to achieving open competition domestically before working further on either secondary
socio-economic policies or accession to the Government Procurement Agreement of the WTO).
13. Guany ´u “zh`engfu caig `ou bengu ´o chanpin guanli b`anfa (zhengqi ´u y`ıji `an gao)” Gongkai zhengqi ´u y`ıji `an
de gongg`ao ( ) [Management
Measures for Government Procurement of Domestic Products (draft for soliciting opinions)] (issued by Min-
istry of Finance, June 21, 2010), available at http://www.mof.gov.cn/zhengwuxinxi/bulinggonggao/
tongzhitonggao/201005/t20100521_318992.html.
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portunities for small and medium businesses.
14
Under the experiment, which is to pro-
ceed from 2012 to 2013, each jurisdiction would promote guaranteed lending to small and
medium government suppliers and, importantly, dispense with mandatory cash security
for bidding and performance on government procurement projects. Instead, localities are
now expected to accept bid and performance security provided by specialty guarantee
companies on behalf of small and medium enterprises (SMEs). This new regulatory initi-
ative is distinct from the use of corporate surety in construction, which runs under sepa-
rate regulators charged with supervising construction, public and private.
15
Indeed, the
new Ministry of Finance initiative will largely cover the procurement of goods and ser-
vices and have little to do with public construction in China.
16
One key measure of the SME initiative requires public purchasers to amend their solici-
tation documents to instruct suppliers that they can “pay in” their bid and performance
security in the form of a surety bond issued by a specialty guarantee company.
17
This
change arguably helps specialty guarantee companies as much as SMEs by targeting ex-
isting discrimination by public purchasers that favor bank-issued guarantees to the detri-
ment of specialty guarantee companies. This policy does not eliminate cash and bank
guarantees, which remain acceptable surety under the reform. The key shift is that now
suppliers, not procuring agencies, will choose the form of security to post. Indeed, under
MoF Document No. 124, government purchasers—whether directly or through commer-
cial bidding agents—are barred from forcing suppliers to use bank guarantees or cash
security.
18
Those who violate the new policies are subject to penalties such as the with-
holding of budget funds from the purchaser, the cancellation of the license of the relevant
commercial bidding agent, and even civil liability damages payable to harmed suppliers.
19
By November 30, 2011, each relevant jurisdiction was required to submit an action plan
for the implementation of the directives of MoF Document No. 124.
20
Thereafter, pro-
gress reports must be submitted every six months, with any pressing problems reported
immediately to China’s Ministry of Finance.
21
14. C´aizh `eng b `u guany´u kaizhan zh`engfu caig `ou x`ıny `ong danbao sh`ıdian gongzu `o fang’ `an
() [Ministry of Finance Notice Regarding the Launching of
Experimental Work for Credit Guarantees in Government Procurement] (issued by Ministry of Finance,
Treasury Department, Sept. 20, 2011) Document No. 124, available at http://www.ccgp.gov.cn/cgtt/201109/
t20110920_1787871.shtml [hereinafter MoF Document No. 124].
15. See Guanyu zai jianshe gongcheng xiangmu zhong jinyibu tuixing gongcheng danbao zhidu yijian
[Opinions on Promoting the Construction Guarantee System on Construction and Engineering Projects]
(issued by Ministry of Construction, Market Administrative Division, Dec. 7, 2006), Document No. 326.
16. See Government Procurement Law 2002, supra note 1. Although China’s 2002 Government Procure-
ment Law defines government procurement as, among other things, the purchase of goods, construction and
services (Government Procurement Law, art. 2), China’s public purchasing system is not unified and the
supervision of public construction remains largely outside the regulatory sphere of the Ministry of Finance.
Accordingly, when one refers to “government procurement” in China, it means the purchase of goods and
services under the system supervised by China’s Ministry of Finance and local finance departments. See
generally, Mitterhoff, supra note 12.
17. MoF Document No. 124, supra note 14, ¶ 2.3.
18. Id.
19. Id. ¶ 5.
20. Id. at pmbl, ¶ 3.
21. Id.
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INTERNATIONAL PROCUREMENT 235
MoF Document No. 124 actually builds upon reforms launched over a decade ago. In
June 1999, China’s State Economic and Trade Commission (since merged into China’s
Ministry of Commerce) issued “Guiding Opinions on Establishing Pilot Projects for the
Guarantee System for Small and Medium Enterprises” (hereinafter SETC Document No.
540).
22
SETC Document No. 540 began the official reliance on guarantee companies to
tackle the problem of the lack of credit available to small and medium enterprises. In the
1990s, roughly two-thirds of Chinese bank lending went to China’s state-owned enter-
prises, with a mere ten percent going to new entrants into China’s socialist market econ-
omy.
23
To correct this imbalance, a multitude of financial guarantee companies emerged
to serve as credit enhancers for SMEs seeking bank loans (i.e., provide third-party guaran-
tees for the repayment of loans to SMEs).
24
The fast development of the industry pro-
ceeded in the absence of strong regulation, with guarantee companies essentially
qualifying themselves individually through entering into long-term arrangements with
banks willing to accept their guarantees for individual loans. A national level document
unifying the regulation of financial guarantee enterprises, with respect to licensing, re-
quired capitalization, posting of loss reserves, limits on writings, and other operational
controls did not appear until 2010.
25
The emergence of China’s guarantee industry temporarily alleviated the credit barriers
facing some small, private enterprises in China,
26
but, recently, as the bills for China’s
2008 stimulus package become due, the dearth of credit for all but China’s larger state-
22. Guanyu jianli zhongxiao qiye xinyong danbao tixi shidian de zhidao yijian [Guiding Opinions on Estab-
lishing Pilot Projects for the Guarantee System for Small and Medium Enterprises] (issued by Econ. & Trade
Comm’n, June 1999), Document No. 540.
23. M
INXIN
P
EI
, C
HINA
S
T
RAPPED
T
RANSITION
: T
HE
L
IMITS OF
D
EVELOPMENTAL
A
UTOCRACY
116
(2006). Interestingly, the private sector created over forty percent of the new jobs and over sixty percent of
urban jobs during the same time-period. See R
ANDALL
P
EERENBOOM
, C
HINA
S
L
ONG
M
ARCH TOWARD
R
ULE OF
L
AW
193 (2002) (citing I
NTERNATIONAL
F
INANCE
C
ORPORATION
, C
HINA
S
E
MERGING
P
RIVATE
E
NTERPRISES
, 2000).
24. By 2007, one source claimed that China had 4,000 registered guarantee enterprises in China. Liang
Bao Zhong, Zhiyuan xingfang: Danbao tixi de gouzhu yu quan dongtai fengxian guanli [Round in Knowl-
edge, Square in Practice: Overall Trends in Risk Management and the Formation of the Guarantee System] 6
(China Economic Publishing House 2007). By 2009, the number of guarantee enterprises reached 5,547.
Peter Situ & the Working Group on Inclusive Finance in China, Guarantee Funds for Inclusive Finance in China
11, (April 2011), http://www.microfinanceforum.org/cm_data/WMFG-paper3_Guarantee_Funds.pdf. In
contrast, China’s ‘Guaranty Alliance,’ an informal national association of guarantee enterprises established in
2001 counts only 76 members. See Z
HONGGU ´
O DANBAO XI´
EHU`
I
[C
HINA
G
UARANTY
A
SSOCIATION
]
() (Feb. 16, 2012), http://www.cncga.org/huiyuan.asp. In Beijing, the municipal Credit Guar-
anty Association cites a membership of 154 companies. B
EIJING X`
INY `
ONG DANBAO XI ´
EHU`
I
[B
EIJING
C
REDIT
G
UARANTEE
A
SSOCIATION
] ( ) (Feb. 16, 2012), http://www.bjdbxh.org.cn/news/XHWZ
ZL/2011/47/1147152056AB4EJA17IJH5HK16BGHB.html.
25. R ´ongzi x`ıng danbao gongsi guanli zh`anx´ıng b`anfa ( ) [Temporary Mea-
sures for the Management of Financial Guarantee Companies] (issued by China Banking Regulatory Comm.,
The Nat’l Dev. & Reform Comm’n, the Ministry for Indus. & Informationalization, the Ministry of Fin., the
Ministry of Commerce, the People’s Bank of China, and the State Admin. for Indus. & Commerce, Mar. 8,
2010), Order No. 3, available at http://www.law-lib.com/law/law_view.asp?id=311548.
26. Zhang Jianhua, Zhongguo noncun duocengci xindai shichang wenti yanjiu [Research on Problems in
the Small Loans Market at all Administration Levels in Rural China] 2 (contending that by 2006 the level of
SME borrowing from financial institutions had reached around forty-five percent of all such enterprises).
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owned enterprises has come back with a vengeance.
27
This may help explain why China’s
Ministry of Finance is trying to hoist the pre-existing guarantee enterprise system onto
government procurement, expanding the system’s remit beyond mere loan guarantees to
providing bid and performance surety bonds on individual procurement projects.
28
MoF Document No. 124 purports to employ market mechanisms to spread risk and
reduce costs to SMEs in government procurement.
29
This is belied, however, by the plan
set out in the document and the nature of financial guarantees in China. China’s guaran-
tee industry still relies on large public subsidies to compel its commitment to policy pre-
scriptions and assume the risks associated therewith.
30
Only by allowing investors to
leverage the public subsidy, and other public support, for commercial ends can the Chi-
nese government recruit private investment and skilled management to the guarantee in-
dustry. In return, the commercial guarantee entity manages the policy-driven credit
enhancement programs desired by the government.
31
MoF Document No. 124 offers nothing different. Indeed, in the document, the Minis-
try of Finance expects each experimental region to designate only one guarantee company
to forge implementation of the policy. Remarkably, MoF Document No. 124 expressly
identifies China National Guaranty and Investment Company, China’s largest guaranty
company and a good example of the hybrid policy/commercially driven enterprise,
32
as the
designated guarantee company for carrying out the new SME government procurement
guarantee system policy at the national level.
33
For the listed experimental localities, it is
not clear whether the designated guarantee company will be a pre-existing outfit or a new
rent-seeking group that establishes an entirely new guarantee enterprise in response to the
reforms. Much will depend on the level of internal public support, as MoF Document
No. 124 makes clear that any guarantee premiums charged must be of a reduced nature to
make the system more affordable to small and medium enterprises.
34
Noticeably, MoF
Document No. 124 fails to mention how much public subsidy is going to be provided to
each designated guarantee company to induce the same to issue guarantees on behalf of
SMEs in Chinese government procurement. Nevertheless, clues on implementation are
offered by experiments in Heilongjiang Province, which paired a government-designated
guarantee entity with a more commercial-oriented guarantee enterprise to jointly issue
such guarantees. Through the provincial designated entity, the provincial people’s gov-
ernment provided ¥1.688 billion (U.S. $267.9 million) to the endeavor.
35
MoF Document
27. China’s Economy: Hitting the Kerb, T
HE
E
CONOMIST
, Oct. 22, 2011, at 79–80, available at http://
www.economist.com/node/21533412.
28. See MoF Document No. 124, supra note 14, ¶¶ 4.1–4.3.
29. Id. at pmbl.
30. See Situ, supra note 24, at 13.
31. Id. (but “government involvement remains very much present, either through direct or indirect invest-
ments in guarantee institutions from governments of different levels, or through the latter’s de facto regula-
tory functions, which to some extent control [the guarantee entity’s] business scope and management
orientation”).
32. See The Introduction of China National Investment and Guaranty Co., Ltd., http://
www.guaranty.com.cn/en/about/index.htm (last visited Feb. 3, 2012).
33. MoF Document No. 124, supra note 14, ¶ 3.
34. Id.
35. Caizhengbu kaizhan zhengfu caigou xinyong danbao shidian [The Ministry of Finance Launches an Experiment
in Credit Guarantees in Government Procurement], G
ONG
G
ONG
C
AIGOU
, [P
UBLIC
P
ROCUREMENT
], Oct. 3,
2011, at p. 49.
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INTERNATIONAL PROCUREMENT 237
No. 124 also fails to identify the expected penal sum value of the new bid and performance
bonds envisioned in the reform. Arguably, the government should set this value low, as it
is directly related to the ultimate cost of the guarantee product to the SMEs. Government
purchasers, however, may want higher penalty bonds to offset greater risks presented by
small-and medium-sized government contractors.
Surprisingly, MoF Document No. 124 provides an appendix with both a bid bond form
and a performance bond form, which, for China, are rather detailed. Importantly, the
bond forms read as conditional bonds, rather than demand instruments, which among
other things require the project owner to prove supplier default, and no breach of its own,
before it can collect on the bond.
36
Thus not only does MoF Document No. 124 relieve
SMEs of the burden of providing unaffordable cash deposits to the procuring agency (and
the associated risk of wrongful forfeiture of the same), but the written bid and perform-
ance bonds that they will provide in the future as substitute allow the SME (and the
surety) the chance to dispute the legality of the claim before having to make payment
(with a forum-selection clause included in the bond forms).
37
An important question re-
mains, however, as to whether the conditional nature of the guarantee will persuade the
issuing guarantee companies to refrain from requiring the SME post high value collateral
for the guarantee company’s issuance of the bond. Excessive collateral requirements
might defeat the overall purpose of MoF Document No. 124, which is to free up capital
for SMEs to better participate in China’s government procurement market. Indeed,
China’s national government may eventually find itself heeding the advice of the Director
of Tianjin Municipality’s Government Procurement Center, who argues for dispensing
with bid and performance security entirely in order to lower the cost of supplier participa-
tion in the government procurement market.
38
36. MoF Document No. 124, supra note 14, at apps. 1–2.
37. See id.
38. Chen Yan Ping, Tianjinshi zhengfu caigou zhongxin de shijian yu sikao [Considerations and Practice at
Tianjin’s Government Procurement Center], 1 Conference Papers of the International Public Procurement Fo-
rum II: New Directions, New Discipline, New Profession, Central University of Finance and Economics
204, Oct. 10, 2010 (on file with the author).
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PUBLISHED IN COOPERATION WITH
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ResearchGate has not been able to resolve any citations for this publication.
Hitting the Kerb, THE ECONOMIST
  • China's Economy
China's Economy: Hitting the Kerb, THE ECONOMIST, Oct. 22, 2011, at 79-80, available at http:// www.economist.com/node/21533412.
MoF Document No. 124, supra note 14, ¶ 3. 34. Id. 35. Caizhengbu kaizhan zhengfu caigou xinyong danbao shidian [The Ministry of Finance Launches an Experiment in Credit Guarantees in Government Procurement
  • Gonggong Caigou
MoF Document No. 124, supra note 14, ¶ 3. 34. Id. 35. Caizhengbu kaizhan zhengfu caigou xinyong danbao shidian [The Ministry of Finance Launches an Experiment in Credit Guarantees in Government Procurement], GONGGONG CAIGOU, [PUBLIC PROCUREMENT], Oct. 3, 2011, at p. 49.