On February 7, 2021, the Ministry of Finance issued the "Measures for the Supervision and Management of the Performance Evaluation of Third-Party Institutions (for Trial Implementation)" (Draft for Solicitation of Comments) to publicly solicit legislative suggestions from the public.

Based on the practice of participating in PPP projects and performance evaluation for many years, combined with the natural advantages of the lawyer industry and the internal relationship between the two, the Guo Songlin lawyer team of our firm proposes the necessity and feasibility of lawyers participating in performance evaluation from three aspects, and believes that lawyers are The indispensable performance evaluation force encourages and advocates for lawyers to participate in performance evaluation: first, the closed-loop management content of performance evaluation is highly consistent with the logic of lawyers’ practice activities; second, the law firm’s strict admission system and systematic practice regulations determine It is a professional social organization worthy of entrustment. Third, in practice, law firms are one of the main types of institutions involved in performance evaluation. Based on this, two legislative proposals for lawyers to participate in performance evaluation were put forward and mailed to the Supervision and Evaluation Bureau of the Ministry of Finance within the specified time.

  On May 13, the "Interim Measures for the Supervision and Management of the Budget Performance Evaluation of Third-Party Organizations" was formally promulgated. The two clauses of Article 2 and Article 7 (3) adopted the amendment suggestions proposed by Lawyer Guo Songlin and stipulated Law firms and lawyers are statutory institutions and professionals participating in performance evaluation. This regulation will strengthen the practice quality and level of performance evaluation of my country's third-party institutions, and will also provide a legal basis for the entire lawyer industry to expand its business fields and provide the possibility of top-level design. The two contents officially promulgated are as follows:

Article 2 The term “third-party institutions” as used in these Measures refers to the provision of budget performance evaluation services to financial departments, budget departments and units at all levels that manage and use financial funds (hereinafter collectively referred to as the entrusting party), independent of the entrusting party and The organizations of budget performance evaluation objects mainly include professional consulting agencies, accounting firms, asset appraisal agencies, law firms, scientific research institutes, universities, etc.

Article 7 The budget performance evaluation report issued by a third-party institution shall be signed and confirmed by its chief reviewer. The performance evaluation chief reviewer is selected and evaluated by a third-party organization based on the following conditions:… (3) Have intermediate or senior professional titles or be recognized by relevant industry management departments such as certified accountants, appraisers, lawyers, internal auditors, registered cost engineers, registered consulting engineers, etc. Professional qualifications;.......

  The full text of Mr. Guo Songlin's proposal letter is as follows:

"Draft for Solicitation of Opinions on the Supervision and Management Measures for the Performance Evaluation of Third-Party Institutions (Trial)"

Letter of suggestion

Suggested by: Attorney Guo Songlin

Industry: Legal Service Industry

Work Unit: Jinyan Lawyer (Beijing) Firm

Contact: Email rongde163@163.com

1. It is proposed to modify the first paragraph of Article 2

Reason for modification:

1. From the perspective of the relevance of the legal profession and performance evaluation. In the enumeration expression of this article, "social consulting agencies, accounting firms, asset appraisal agencies, etc." did not list important legal service industries in the participating industries, as well as the major unit law firms in this category. It is recommended to list and modify it to "main Including consulting companies, accounting firms, law firms, asset appraisal agencies and other intermediary organizations". The reasons are: (1) The closed-loop management content of performance evaluation is highly consistent with the logic of lawyers' practice activities. The complete performance evaluation activities include pre-argument (such as fund-raising compliance), rule-making (performance indicators and standard system formulation), process evidence collection and correction (performance operation monitoring), and rule-based refereeing (using pre-determined rules to evaluate budget execution) Circumstances, policies, and project implementation effects) and the execution of the judgment results (applying the evaluation results to accountability, investigating the responsibility for breach of contract, deducting expenses, etc.). Another main line of the entire performance evaluation process is the compliance of policies and project implementation. It can be seen that the management logic of performance evaluation has a natural connection with the practice logic of lawyers’ participation in law and policy formulation, usage, and participation in adjudication. The lawyer industry is one of the indispensable and most similar professional social forces in performance evaluation. (2) The law firm's strict admission system and systematic practice regulations determine that it is a professional social organization worthy of entrustment. According to the "Lawyers Law", the practice of lawyers and law firms has strict access restrictions and uses administrative licenses, while the consulting agencies listed in this article have no access restrictions and almost zero threshold. The practice of lawyers is under the dual management of the association's self-discipline management and judicial administration, and has strict professional ethics and practice discipline standards, which can maximize the independence, professionalism, objectivity, and compliance of the performance evaluation consulting results. (3) In practice, law firms are one of the main types of institutions participating in performance evaluation. Taking the PPP project performance evaluation in the project performance evaluation as an example, it can be seen from the PPP consulting agency management database of the Ministry of Finance that law firms, accounting firms, and consulting companies are the main participants in the whole process of PPP project consulting.

2. In terms of industry classification. The Classification of National Economic Industries (GB/T 4754—2017) stipulates that the 72nd category is business services, the 723 category is legal services, including lawyers, notarization, and other legal services; the 724 category is consultation and investigation. Including accounting, auditing, taxation, other professional consulting and investigation and other sub-categories. Social consulting service agencies include accounting firms, asset appraisal agencies, law firms, etc. Therefore, the “social consulting agencies, accountant firms, asset appraisal agencies and other social organizations or intermediary agencies” stated in this clause, suggest that people generally think that: Enumerate inclusion and included concepts together, and the expression logic is questionable. The suggestion is to state "mainly including intermediary organizations such as consulting companies, accounting firms, law firms, asset appraisal agencies, etc."

3. From the perspective of legislative technical specifications. (1) It is recommended to modify the expression of "...asset appraisal agencies and other social organizations or intermediary agencies". The concept of social organizations and intermediary agencies is the relationship between inclusion and inclusion. Intermediary agencies are a type of social organization. Refer to Article 229 of the Criminal Law. The article stipulates: "The personnel of the intermediary organization responsible for asset evaluation, capital verification, verification, accounting, auditing, legal services, sponsorship, safety evaluation, environmental impact assessment, environmental monitoring, etc., deliberately provide false certification documents, if the circumstances are serious,..." The suggestion is expressed as "...an intermediary organization such as an asset appraisal agency". (2) The expression "scientific research institutes, institutions of higher learning and other institutions, etc." is not smooth. There are two "etc." in the expression. The first is waiting for an exhaustive list of scientific research institutes and other institutions, and the latter is waiting. Units outside the category of public institutions are not exhausted, that is, there are other organizations engaged in research in addition to public institutions, but they are not public institutions. This expression falls into the non-profit legal person stipulated in Article 87 of the Civil Code , Article 87 of the Civil Code stipulates: "A legal person established for public welfare or other non-profit purposes without distributing profits to investors, founders, or members is a non-profit legal person. Non-profit legal persons include public institutions and society Organizations, foundations, social service organizations, etc." It is recommended to amend to "Scientific research institutes, colleges and universities and other non-profit legal persons"

2. It is proposed to amend item (3) of Article 9

Modification reason: same as reason "1" in the first modification proposal

Due to the limitations of my knowledge, if there is any inappropriateness, please ignore this letter of recommendation. Please forgive me for the waste of time caused by this!

Jinyan Lawyer (Beijing) Office Guo Songlin

March 7, 2021