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NATIONAL
ASSEMBLY
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No.
61/2005/QH11
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Hanoi,
November 29,2005
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LAW
ON TENDERING
NATIONAL ASSEMBLY OF THE SOCIALIST REPUBLIC OF VIETNAM
LEGISLATURE XI, SESSION 8
(from 18
October until 29 November 2005)
Pursuant to the 1992 Constitution of the
Socialist Republic of Vietnam as amended by Resolution 51-2001-QH10 passed by
Legislature X of the National Assembly at its 10th Session on 25 December 2001;
This Law regulates tendering.
Chapter I
GENERAL PROVISIONS
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This Law regulates tendering activities in order
to select contractors for provision of consultancy services, for procurement of
goods, and for construction and installation for tender packages belonging to
the following projects:
1. Investment and development projects financed
by the State as to thirty (30) per cent or more, comprising:
(a) New construction and investment projects,
and upgrading and expansion of construction projects in which investment has
already been made;
(b) Investment projects for procurement of
assets including equipment and machinery not required to be installed;
(c) Projects for planning for regional
development, planning for industry development, and planning for construction
of urban and rural areas;
(d) Projects for scientific research, for
development of technology, and for technical assistance;
(dd) Other projects for purposes of investment
and development.
2. Projects financed by the State for procurement
of assets for the purpose of maintaining regular activities of State bodies,
political organizations, socio-political organizations,
socio-political-occupational organizations, social organizations,
socio-occupational organizations and units of the armed forces.
3. Projects financed by the State for
procurement of assets for the purpose of renovation or major repairs to
equipment, production lines, building works and factories of State owned
enterprises in which investment has already been made.
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1. Domestic and foreign organizations and
individuals participating in tendering activities for tender packages belonging
to the projects stipulated in article 1 of this Law.
2. Organizations and individuals involved in
tendering activities for tender packages belonging to the projects stipulated
in article 1 of this Law.
3. Organizations and individuals with projects
not within the governing scope of this Law may choose to apply this Law.
Article 3 Application of
Law on Tendering, related laws, international treaties and international
agreements
1. Tendering activities must comply with the
provisions of this Law and other related laws.
2. If there are any special matters on tendering
stipulated in any other Law, then such Law shall apply.
3. Tendering for projects using official
development aid (abbreviated as ODA) shall be implemented on the basis of
provisions in international treaties of which the Socialist Republic of Vietnam
is a member or international agreements signed by authorized bodies or
organizations on behalf of the Socialist Republic of Vietnam.
Article 4 Interpretation
of terms
In this Law, the following terms shall be
construed as follows:
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2. Tendering means the process of selecting a
contractor who satisfies the requirements set by the party calling for tenders
in order to implement a tender package belonging to a project stipulated in
article 1 of this Law, on the basis of ensuring competitiveness, fairness,
transparency and economic efficiency.
3. Tendering activities means activities of the
parties involved in the process of selecting a contractor.
4. Sequence for implementation of tendering
means the steps being preparation for tendering; organization of tendering; assessment
of tenders; evaluation and approval of the results of tendering; notification
of the results of tendering; and negotiation, finalization and signing of a
contract.
5. Domestic tendering means the process of
selection of a contractor who satisfies the requirements of the party calling
for tenders, in which domestic tenderers participate.
6. International tendering means the process of
selection of a contractor who satisfies the requirements of the party calling
for tenders, in which both foreign and domestic tenderers participate.
7. Project means a set of proposals for
implementing a part or the whole of works aimed at achieving an objective or
requirement within a specified period of time and based on a specified
financing source.
8. Authorized person means the person with the
right pursuant to law to make project decisions. In the case of projects
financed by the State as to thirty (30) per cent or more, excluding projects
financed by the State as to hundred (100) per cent, the authorized person is
the board of management or authorized representative of the capital
contributing parties.
9. Investor means the entity owning the
financing capital or the entity assigned responsibility to represent such
owner, or the borrower directly managing and implementing any project as
defined in clause 7 of this article.
10. Party calling for tenders means the investor
or a professional organization with sufficient capability and experience in
accordance with the law on tendering for the investor to hire in order to hold
tendering.
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12. Head contractor means a tenderer liable for
its participation in tendering which gives its name to a tender, and which
signs and implements a contract if selected (hereinafter referred to as a
participating tenderer). A tenderer participating in tendering independently is
referred to as an independent tenderer. A tenderer participating in tendering
jointly with one or more other tenderers to submit the one tender is referred
to as a partnership tenderer.
13. Consultancy tenderer means a tenderer
participating in tendering for the supply of products, who satisfies the
requirements on knowledge and professional experience stipulated in clause 34
of this article.
14. Supply tenderer means a tenderer
participating in tendering for tender packages for the supply of goods as
defined in clause 35 of this article.
15. Construction tenderer means a tenderer
participating in tendering for tender packages for construction and
installation as defined in clause 36 of this article.
16. EPC tenderer means a tenderer participating
in tendering for the performance of an EPC tender package as defined in clause
21 of this article.
17. Sub-contractor means a contractor performing
part of the work of a tender package on the basis of an agreement or contract
signed with the head contractor. A sub-contractor is not a contractor liable
for participation in tendering.
18. Domestic tenderer means any tenderer
established and operating pursuant to the law of Vietnam.
19. Foreign tenderer means any tenderer
established and operating pursuant to the law of the country of nationality of
such tenderer.
20. Tender package means a part of a project, and
in a number of special cases means the entire project; a tender package may
comprise items for the procurement of similar goods for a number of projects or
a one-off procurement in recurrent procurement of goods.
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22. Pre-qualification invitation documents means
all of the documents stipulating the requirements on capability and experience
of tenderers as the legal basis for the party calling for tenders to select a
list of tenderers to be invited to submit tenders.
23. Pre-qualification application means all of
the documents prepared by a tenderer in accordance with the requirements of the
pre-qualification invitation documents.
24. Tender invitation documents means all of the
documents used for open or limited tendering stipulating the requirements for
any one tender package and providing the legal basis for tenderers to prepare
their tenders and for the party calling for tenders to assess tenders aimed at
selection of a winning tenderer; and also providing the basis for negotiation,
finalization and signing of a contract.
25. Tender means all of the documents prepared
by a tenderer in accordance with the requirements of the tender invitation
documents and submitted to the party calling for tenders in accordance with the
provisions in the tender invitation documents.
26. Tender package price means the value of a
tender package specified in the tendering plan based on the approved total
invested capital, total estimated budget or estimated budget and current
regulations.
27. Tender price means the price stated by a
tenderer in its tender. If a tenderer provides a discount letter, then the
tender price is the price after deducting the discount.
28. Proposed contract sum means the sum proposed
by the party calling for tenders on the basis of the tender price of the
tenderer selected to be awarded the contract after errors have been rectified
and discrepancies have been adjusted as required by the tender invitation
documents.
29. Winning tender price means the price
approved in the results of selection of contractor as the basis for
negotiation, finalization and signing of a contract.
30. Equal footing price means the tender price
submitted by a tenderer to implement a tender package after errors have been
rectified and discrepancies have been adjusted, and after adding all necessary
operating and maintenance costs and other costs relating to the schedule,
quality and origin of goods or construction works under the tender package for
the entire use life. Equal footing prices shall be used to compare and rank
tenders and are referred to as the assessment prices.
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32. Tender guarantee means the tenderer provides
security by one of the methods of paying a deposit, providing collateral or
providing a letter of guarantee for a definite term as stipulated in the tender
invitation documents, in order to secure the liability of the tenderer for its
tender.
33. Contract performance guarantee means the
tenderer provides security by one of the security methods of paying a deposit,
providing collateral or providing a letter of guarantee for a definite term as
stipulated in the tender invitation documents, in order to secure the liability
of the winning tenderer to perform the contract.
34. Consultancy services comprise:
(a) Consultancy services on project preparation
comprising formulation and assessment of planning reports, charts on overall
development, architecture, pre-feasibility and feasibility study reports;
(b) Consultancy services on project
implementation comprising surveying, design, total estimated budgets and
estimated budgets, preparation of tender invitation documents, assessment of
tenders, and supervision of execution of building and installation of
equipment;
(c) Consultancy services on project management,
arranging finance, training, technology transfer and other consultancy
services.
35. Goods means machinery, equipment, raw
materials, fuel, supplies, consumer goods, and services other than consultancy
services.
36. Construction and installation comprises work
which is part of the process of building and installing equipment in
construction works and items of works, and of renovation and major repairs.
37. Protest regarding tendering means a request
from any tenderer participating in tendering for reconsideration of the results
of selection of contractor or regarding any other relevant matter during the
tendering process when such tenderer considers his rights and interests have
been adversely affected.
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39. Tendering evaluation means check and
assessment by the body or organization in charge of the evaluation of tendering
plans, tender invitation documents and results of selection of contractor as
the basis for the authorized person to consider and make a decision in
accordance with this Law. An evaluation of the results of selection of
contractor is not a re-assessment of tenders.
Article 5 Information on
tendering
1. The following information on tendering must
be published in the Tendering Newsletter and on the tendering website of the
State administrative body for tendering:
(a) Tendering plans;
(b) Notices inviting pre-qualification
applications; results of pre-qualification;
(c) Invitations to tender in the case of open
tendering;
(d) Lists of tenderers invited to participate in
tendering;
(dd) Results of selection of contractor;
(e) Information on how breaches of the law on
tendering have been dealt with;
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(h) Other relevant information.
2. After the information stipulated in clause 1
of this article has been published in the Tendering Newsletter and on the
tendering website, it may also be published on other mass media in order to
facilitate access by interested organizations and individuals.
The Government shall provide detailed
regulations on information on tendering.
Article 6 Tendering
plans
1. The authorized person must provide written
approval of a tendering plan after approval of the investment decision, or the
tendering plan may be approved at the same time as the investment decision in
cases where there are adequate conditions providing a legal basis for the
investor to hold selection of a contractor, except for tender packages which
must be implemented prior to an investment decision. The person approving a
tendering plan shall be liable before the law for his decision.
2. A tendering plan must be formulated for the
entire project; in cases where there are inadequate conditions to formulate a
tendering plan for the entire project, it shall be permitted to formulate a
tendering plan for some tender packages to be implemented in advance, but only
when essential.
3. A tendering plan must set out clearly the
number of tender packages and the contents of each tender package. The contents
of each tender package shall comprise:
(a) Name of the tender package;
(b) Tender package price;
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(d) Form of selection of contractor; method of
tendering;
(dd) Scheduled time for selection of contractor;
(e) Form of contract;
(g) Scheduled period for performance of the
contract.
4. Division of the project into different tender
packages shall be based on the technical nature of the project and the sequence
for its implementation, ensuring unity within the project and that each tender
package is of an appropriate size. There shall be only one set of tender
invitation documents for any one tender package, and tendering shall only be
held once. Each tender package shall be implemented by only one contract,
except where a tender package is made up of several independent components in
which case it may be implemented by more than one contract.
Article 7 Eligibility of
tenderers being organizations
A tenderer being an organization shall be deemed
to be eligible when it satisfies the following conditions:
1. It has a business registration certificate or
investment certificate issued pursuant to law, or a decision on establishment
in the case of a domestic tenderer which is an organization without business
registration. A foreign tenderer must have registration for its operation
issued by the competent authority of the country of nationality of the
tenderer.
2. It is an independent cost accounting entity.
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Article 8 Eligibility of
tenderers being individuals
A tenderer being an individual shall be deemed
to be eligible when he or she satisfies the following conditions:
1. Having full capacity for civil acts pursuant
to the law of the country of which such individual is a citizen;
2. Having lawful registration for operation or
an appropriate professional certificate issued by the competent authority;
3. The individual is not subject to
investigation for a criminal offence.
Article 9 Requirements
applicable to a party calling for tenders and to an expert tendering group
1. Individuals being members of a party calling
for tenders must satisfy all the following conditions:
(a) Be knowledgeable about the law on tendering;
(b) Be knowledgeable about project management;
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(d) Have foreign language skills sufficient to
satisfy the requirements for tender packages for which international tendering
is held and for tender packages of ODA financed projects.
2. Depending on the nature and complexity of a
tender package, the expert tendering group shall include experts in technical,
financial, commercial, administrative, legal and other relevant fields. Members
of an expert group must satisfy all of the following conditions:
(a) Have a certificate of attendance at a
training course on tendering;
(b) Have professional expertise relevant to the
tender package;
(c) Be knowledgeable about the specific contents
of the tender package;
(d) Have at least three years' working
experience in fields relating to the economic and technical contents of the
tender package.
Members of an expert tendering group do not
necessarily have to be members of the party calling for tenders, and vice
versa.
3. If an investor has sufficient personnel who
satisfy the conditions stipulated in clause 1 of this article, the investor may
itself act as the party calling for tenders. If the investor has insufficient
personnel or if it has personnel but they fail to satisfy the conditions
stipulated in clause 1 of this article, then the investor shall conduct a
selection process in accordance with this Law to select a consultancy
organization or a professional tendering organization with sufficient
capability and experience to represent the investor in acting as the party
calling for tenders. In all cases investors shall be liable for the process of
selection of contractor and for signing a contract with the winning tenderer
after negotiation and finalization of the contract pursuant to the provisions
of this Law.
Article 10 Conditions
for participation in tendering for any one tender package
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1. Be eligible pursuant to articles 7 and 8 of
this Law.
2. Submit only one tender, either as an
independent tenderer or in partnership, for each tender package. In the case of
a partnership there must be a written agreement between the partners specifying
the person heading the partnership and the general and specific
responsibilities of each partner with respect to the tender package works.
3. Satisfy the requirements set out in the
notice inviting tenders or in the letter inviting tenders from the party
calling for tenders;
4. Ensure competitiveness in tendering pursuant
to the provisions in article 11 of this Law.
Article 11 Ensuring
competitiveness in tendering
1. Any tenderer who participates in tendering
for a tender package belonging to the projects stipulated in article 1 of this
Law must satisfy the following requirements on competitiveness:
(a) A consultancy tenderer who prepared a
feasibility study report shall not be permitted to participate in tendering for
the provision of consultancy services to prepare the technical designs of the
same project. Any consultancy tenderer who has already participated in the
technical designs of a project shall not be permitted to participate in
tendering for the subsequent steps, except in the case of an EPC tender
package;
(b) Any tenderer participating in tendering must
be organizationally independent of, financially independent from, and not under
the control of the managing body of the consultancy tenderer who prepared the
tender invitation documents or who will assess the tenders;
(c) A consultancy tenderer who supervises
implementation of a contract must be organizationally independent of,
financially independent from, and not under the control of the managing body of
the consultancy tenderer who performs the contract;
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2. The provisions in clause 1 of this article
must be implemented at the latest by three years, in accordance with a schedule
stipulated by the Government, from the date this Law takes effect.
The Government shall provide detailed
regulations on ensuring competitiveness in tendering.
Article 12 Prohibited
conduct in tendering
1. Giving, accepting or requesting any object of
value by an individual or organization involved in the process of selection of
contractor or of contractual performance, resulting in dishonest or partial
behaviour when deciding on selection of contractor or when signing and
implementing the contract.
2. Using personal influence to affect or to
intervene in, or intentionally making a false or dishonest report about
information thus distorting the result of selection of contractor or the
signing and implementation of the contract.
3. Collaboration or collusion between the party
calling for tenders and tenderers, or between the State administrative body and
the party calling for tenders and/or tenderers in order to change tenders;
collusion with the evaluating organization or an inspectorate in order to
affect the collective or national interest.
4. Participation by an organization or
individual in both assessment of tenders and in evaluation of the results of
selection of contractor within the same tender package.
5. Imposition of specific requirements regarding
brand names and country of origin of goods in tender invitation documents
applicable to tendering for procurement of goods, for construction and
installation and EPC tender packages.
6. Participation in the capacity of a tenderer
in tendering for a tender package for which such participant is also the party
calling for tenders.
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8. Participation by a tenderer in tendering for
the supply of goods or for construction and installation in a tender package
for which such participant has provided consultancy services, except for EPC
tender packages.
9. Disclosure of the following data and
information regarding tendering:
(a) Contents of tender invitation documents
prior to the stipulated date for issuance of such documents;
(b) Contents of tenders, notebooks and minutes
of tender consideration meetings, comments and assessments from experts and
consultants regarding each tender prior to the announcement of the results of
selection of contractor;
(c) Requests for clarification of tenders made
by the party calling for tenders and responses of tenderers during the process
of tender assessment prior to announcement of the results of selection of
contractor;
(d) Reports by the party calling for tenders, by
the expert group, by consultants or any professional organization involved in
the tendering process, or consideration of tenders and evaluation prior to
announcement of the results of selection of contractor;
(dd) Results of selection of contractor prior to
the stipulated time for announcement;
(e) Other relevant tendering documents which are
stamped "confidential" pursuant to the law on confidentiality.
10. An arrangement by a person so that his or
her natural parent, parent-in-law, spouse, natural child, adopted child, son or
daughter-in-law or sibling participates in tender packages for which such
person is the party calling for tenders, a member the expert tendering group or
expert group evaluating the results of selection of contractor or the person
approving the results of selection of contractor.
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12. An arrangement or collusion between two or
more tenderers participating in tendering for the one tender package so that
one of the tenderers will be awarded the contract; between the contractor
implementing a tender package and the consultant supervising implementation; or
between a contractor implementing a tender package with the body or
organization assigned the task of check and acceptance of the results of
implementation.
13. Provision of one's name as the tenderer for
a tender package belonging to a project of an organization or body for which
such person worked, within a period of one year from the date on which such
person ceased to work for such body or organization.
14. Permitting another tenderer to use one's
legal status in order to participate in tendering; or assignment by a
contractor who is a winning tenderer of the performance of the contract to
another contractor.
15. Using a protest regarding tendering in order
to impede the tendering process and the signing of a contract, or to prevent
other tenderers from participating in tendering.
16. Application of a form of selection of
contractor other than open tendering when the conditions stipulated in articles
19 to 24 inclusive of this Law have not been satisfied.
17. Holding tendering when the financing source
for the tender package has not yet been determined, resulting in insolvency of
the contractor.
Article 13 International
tendering
1. International tendering shall be held in the
following cases:
(a) Tender packages belonging to projects using
ODA in which the donor stipulates that international tendering must be held;
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(c) Tender packages in which domestic tenderers
are incapable of satisfying the requirements of the party calling for tenders,
or in which domestic tendering has been held but without selection of a winning
tenderer.
2. In a case where a winning foreign tenderer
fails to correctly fulfil undertakings in the partnership agreement or fails to
employ a Vietnamese contractor (if any) to perform the volume and value of work
assigned to the party being the Vietnamese contractor and as stipulated in the
tender, such tenderer shall be rejected.
3. Any foreign tenderer who is a winning
tenderer for implementation of a tender package in Vietnam must comply with
regulations of the Government of Vietnam on management of foreign contractors.
Article 14 Preferential
treatment in international tendering
Entities entitled to preferential treatment in
international tendering shall comprise:
1. Tenderers being enterprises established and
operating in Vietnam pursuant to the Law on Enterprises and the Law on
Investment.
2. Partnership tenderers where one of the
partners being an entity prescribed in clause 1 of this article undertakes work
valued at over fifty (50) per cent of a tender package for consultancy services
or for construction and installation, or of an EPC tender package.
3. Tenderers participating in tendering for
tender packages for procurement of goods where the ratio of the domestic
manufacturing costs of such goods is thirty (30) per cent or more.
The Government shall provide detailed
regulations on preferential treatment in international tendering.
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1. The currency to be used in tendering shall be
stipulated in the tender invitation documents on the principle of one currency
for any one volume offered.
2. During the process of assessment of tenders,
the conversion to a common currency for purposes of comparison must be based on
the exchange rate between Vietnamese dong and foreign currencies in accordance
with the clauses set out in the tender invitation documents.
3. All types of domestic costs must be quoted in
Vietnamese dong.
Article 16 Language to
be used in tendering
The language to be used in tender invitation
documents, tenders and data exchanged between the party calling for tenders and
tenderers shall be Vietnamese in the case of domestic tendering, and Vietnamese
and English in the case of international tendering.
Article 17 Expenses for
tendering
1. Expenses for preparation of tenders and
participation in tendering shall be borne by tenderers.
2. Expenses of the process of selection of contractor
shall be included in the total invested capital or total estimated budget of
the project.
3. Tender invitation documents may be sold to
tenderers.
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Chapter II
SELECTION OF CONTRACTORS
SECTION 1. FORMS OF SELECTION
OF CONTRACTORS
Article 18 Open
tendering
1. The form of open tendering must be held for
the selection of a contractor to implement a tender package belonging to the
projects stipulated in article 1 of this Law, except in the circumstances
stipulated in articles 19 to 24 inclusive of this Law.
2. In open tendering, the number of
participating tenders shall be unrestricted. Prior to issuing the tender
invitation documents, the party calling for tenders must publish a notice
inviting tenders in accordance with article 5 of this Law so that tenderers
will have information about participation. The party calling for tenders must
supply tender invitation documents to any tenderer who wishes to participate in
the tendering. The tender invitation documents must not include any term or
condition aimed at restricting the participation of tenderers or favouring one
or more tenderers thereby causing unfair competition.
Article 19 Limited
tendering
1. Limited tendering shall apply in the
following cases:
(a) Where a foreign donor providing the
financing source for the tender package so requests;
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2. When limited tendering is held, a minimum of
five tenderers considered to have the capability and experience to participate
in the tendering must be invited; if in fact there are less than five
tenderers, the investor must make a submission to the authorized person for his
consideration and decision on permission to continue to hold limited tendering
or to apply another form of selection of contractor.
Article 20 Direct
appointment of contractor
1. Direct appointment of a contractor shall
apply in the following cases:
(a) In the case of an event of force majeure due
to a natural disaster, war or a breakdown which should be immediately dealt
with. The investor or the body responsible for managing the building works or
assets affected shall be permitted to immediately appoint a contractor to carry
out the work. Within a time-limit not to exceed fifteen (15) days as from the
date of making a direct appointment, the investor or the body responsible for
management of the building works or assets affected must, together with the
appointed contractor, carry out the stipulated procedures for appointment of a
contractor;
(b) Tender packages in which the foreign donor
stipulates that there shall be direct appointment of a contractor;
(c) Tender packages belonging to national
confidential projects; and urgent projects in the national interest or for the
safety and security of energy as decided by the Prime Minister of the
Government when deemed necessary;
(d) Tender packages for the procurement of any
type of materials and equipment in order to restore, maintain or expand the
capacity of equipment and technological production lines which were previously
purchased from the one supplier, and in order to ensure compatibility of
facilities and technology it is not possible to purchase such materials and
equipment from other supply tenderers;
(dd) Tender packages for consultancy services
with a tender package price of less than five hundred million dong, tender
packages for the procurement of goods or for construction and installation with
a tender package price of less than one billion dong belonging to projects for
investment and development; tender packages for the procurement of goods with a
tender package price of less than one hundred million dong belonging to a
project or estimated budget for recurrent procurement; however tendering shall
still be held when deemed necessary.
2. When conducting direct appointment of a
contractor, the selection must be of a contractor who is determined as having
sufficient capability and experience to satisfy the requirements of the tender
package and there must be compliance with the procedures stipulated by the
Government for carrying out direct appointment of a contractor.
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Article 21 Direct
procurement
1. Direct procurement shall apply when a
contract was signed for a tender package with similar contents within the
previous six (6) months.
2. When conducting direct procurement, it shall
be permitted to invite the tenderer who was selected via tendering to implement
the earlier tender package with similar contents.
3. The unit price of the items of a tender
package for which the form of direct procurement is applied shall not exceed
the unit price of the corresponding items of the previous tender package for
which a contract was signed.
4. Direct procurement may apply in order to
implement a similar tender package belonging to the same or another project.
Article 22 Competitive
quotation in procurement of goods
1. The form of competitive quotation shall apply
in cases which satisfy all the following conditions:
(a) The tender package price is less than two
billion dong;
(b) The items to be purchased are commonly used
goods which are readily available on the market, which have standardized
technical features and which are similar to each other in quality.
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Article 23 Self-implementation
1. The form of self-implementation shall apply
where the investor is also a contractor with sufficient capability and
experience to implement the tender package belonging to the project which such
investor manages and uses.
2. The estimated budget for the tender package
must be approved in accordance with regulations in order to apply the form of
self-implementation. The entity supervising the implementation of the tender
package must be organizationally and financially independent of the investor.
Article 24 Selection of
contractor in special cases
In the case of a tender package with particular
requirements for which the forms of selection of contractor stipulated in
articles 18 to 23 inclusive of this Law cannot be applied, the investor shall
prepare a plan for selection of contractor which ensures competitiveness and
economic effectiveness and submit same to the Prime Minister of the Government
for his consideration and decision.
SECTION 2. GENERAL PROVISIONS
ON TENDERING
Article 25 Conditions
for issuance of tender invitation documents
Tender invitation documents shall be issued when
the following conditions have been satisfied:
1. The tendering plan has been approved.
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3. The notice inviting tenders or the list of
tenderers invited to participate in tendering has been published pursuant to
the provisions in article 5 of this Law
Article 26 Methods of
tendering
1. The single envelope method of tendering shall
apply to the forms of open tendering and limited tendering for tender packages
for the procurement of goods and for construction and installation, and to EPC
tender packages. A tenderer shall submit his tender in one envelope including
his technical and financial proposals in accordance with the requirements set
out in the tender invitation documents. There shall only be one opening of
tenders.
2. The dual envelope method of tendering shall
apply to both open tendering and limited tendering for the provision of
consultancy services. A tenderer shall submit his technical proposals and
financial proposals in two separate envelopes in accordance with the
requirements set out in the tender invitation documents. There shall be two
openings of tenders: first the technical proposals shall be opened for assessment,
and then the financial proposals of all tenderers whose technical proposals
have been assessed as satisfying the requirements shall be opened in order to
make an overall assessment. In the case of tender packages with high technical
requirements, the financial proposals of the tenderer who is awarded the
highest technical score shall be opened for consideration and negotiation.
3. Two-phase tendering shall apply to the forms
of open tendering and limited tendering for tender packages for the procurement
of goods and for construction and installation, and for EPC tender packages
with technical, new technological, complex and diversified requirements. The
sequence of two-phase tendering shall be as follows:
(a) In the first phase, tenderers shall submit
their technical and financial proposals without a tender price, in accordance
with the phase one tender invitation documents; the phase two tender invitation
documents shall be settled on the basis of discussions held with each tenderer
who participated in phase one.
(b) In the second phase, in accordance with the
phase two tender invitation documents, the tenderers who participated in the
first phase shall be invited to submit stage two tenders comprising technical
proposals, financial proposals with a tender price, and a method for securing
their tender.
Article 27 Tender
guarantee
1. Tenderers participating in tendering for
tender packages for the procurement of goods, for construction and installation
and for EPC tender packages must provide a tender guarantee prior to the
deadline for tender closing. In cases of two phase tendering, tenderers must
provide a tender guarantee during phase two.
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3. The term of validity of a tender guarantee
shall be equal to the term of validity of the tender plus thirty (30) days.
4. Where it is necessary to extend the period of
validity of tenders, the party calling for tenders shall require tenderers to
extend the period of validity of their tender guarantees for an equivalent
term; in such a case, tenderers shall not be permitted to change the contents
of their submitted tenders including tender prices, and tenderers shall then
extend the period of validity of their tender guarantees. If any tenderer
refuses to extend the period of validity of his tender, the party calling for
tenders shall return the tender guarantee to the tenderer.
5. Tender guarantees shall be returned to
non-winning tenderers within a time-limit not to exceed thirty (30) days as
from the date of notification of results of tendering. The tender guarantee of
the winning tenderer shall be returned to such tenderer after provision of a
contract performance guarantee pursuant to article 55 of this Law.
6. A tenderer shall not be refunded his tender
guarantee in the following cases:
(a) Withdrawal of tender after tender closing
when the tender still remains valid;
(b) Within a period of thirty (30) days from the
date of receipt of notification of winning tenderer from the party calling for
tenders, the tenderer refuses or fails to negotiate and finalize the contract,
or having negotiated and finalized the contract refuses to sign the contract
without a legitimate reason;
(c) Failure to provide a contract performance
guarantee pursuant to article 55 of this Law.
Article 28 Principles
for assessment of tenders
1. Assessment of tenders must be based on the
criteria for assessment of tenders and other requirements stipulated in the
tender invitation documents, in order to ensure selection of a contractor with
adequate capability and experience and with feasible solutions for
implementation of the tender package.
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3. The sequence of assessment of tenders shall
be implemented in accordance with the provisions in article 35 of this Law.
Article 29 Method of
assessment of tenders
1. The method of assessment of tenders must be
conducted in accordance with the assessment criteria stipulated in the tender
invitation documents. Criteria of assessment of tenders shall comprise
assessment criteria of capability and experience when pre-qualification does
not apply, assessment criteria of technical aspects, and overall assessment
criteria in the case of a tender package for consultancy services or of items
in order to convert prices regarding technical, financial and commercial
aspects to an equal footing basis for the purpose of comparing and ranking
tenders in the case of tender packages for the procurement of goods, for
construction and installation, and EPC tender packages.
2. Technical assessment of tender packages for
consultancy services shall be carried out by the method of marking a score.
Assessment criteria as formulated in the tender invitation documents must
stipulate a minimum technical requirement which shall not be less than seventy
(70) per cent of the total points for technical aspects; in the case of a
tender package with high technical requirements, the minimum technical
requirement must be stipulated as not less than eighty (80) per cent of the
total points for technical aspects. The formulation of assessment criteria in
order to compare and rank tenders shall be implemented in accordance with the
following provisions:
(a) In the case of a tender package for
consultancy services in which the technical requirements are not high, an
overall point score shall be used in order to rank tenders. Points for
technical aspects shall not account for less than seventy (70) per cent of the
overall points score. The tender of the tenderer with the highest overall
points score shall be ranked first;
(b) In the case of a tender package for
consultancy services with high technical requirements, the tenderer with the
tender which is awarded the highest technical points shall be ranked first and
thereafter the financial proposals of such tenderer shall be considered.
3. In the case of tender packages for the
procurement of goods, for construction and installation and EPC tender
packages, technical aspects shall be assessed by using the method of marking a
score or by using the criterion of pass or fail. If the overall points score is
formulated as the method of assessing technical aspects, it must stipulate a
minimum level for technical requirements of not less than seventy (70) per cent
of the total points for technical aspects; in the case of high technical
requirements, this minimum level for technical requirements must be stipulated
as not less than eighty (80) per cent of the total points for technical
aspects. The equal footing prices for technical, financial and commercial
aspects of tenders which have passed the technical assessment stage shall then
be compared and ranked. The tender of the tenderer which has the lowest price
on an equal footing basis shall be ranked first.
The Government shall provide detailed
regulations on assessment of tenders.
Article 30 Tendering
via the internet
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The Government shall provide detailed
regulations on application of the form of tendering via the internet.
Article 31 Regulations
on time-limits applicable during tendering
Depending on the nature of each tender package,
the authorized person shall make a specific decision on the time-limits
applicable during tendering in accordance with the following provisions:
1. The maximum permissible duration for
pre-qualification as from the date of issuance of pre-qualification invitation
documents up until the date of approved results of pre-qualification shall be
thirty (30) days in the case of domestic tendering and forty five (45) days in
the case of international tendering.
2. The minimum duration of advertising a notice
inviting tenders shall be for ten (10) days prior to the date of issuance of
tender invitation documents.
3. The minimum period allowed for preparation of
tenders shall be fifteen (15) days as from the date of issuance of tender
invitation documents up until the tender closing date in the case of domestic
tendering, and thirty (30) days in the case of international tendering.
4. The maximum period of validity of a tender
shall be one hundred and eighty (180) days as from the tender closing date; in
necessary cases a tenderer may request extension of the period of validity of
his tender, but an extension shall not exceed thirty (30) days.
5. The maximum time allowed for assessment of
tenders shall be forty five (45) days in the case of domestic tendering and
sixty (60) days in the case of international tendering as from the date of
tender opening up until the date the investor submits a report on tendering
results to the authorized person for his consideration and decision.
6. The maximum time allowed for evaluation shall
be twenty (20) days applicable to evaluation of each item in a tendering plan,
tender invitation documents, and of the results of selection of contractor. In
the case of tender packages for which the Prime Minister of the Government must
approve evaluations, the maximum time allowed shall be thirty (30) days for an
evaluation of each item in a tendering plan and the results of selection of
contractor.
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Article 32 Preparation
for tendering
1. Pre-qualification of tenderers:
Pre-qualification of tenderers shall be
conducted in accordance with the following provisions:
(a) Pre-qualification of tenderers shall be conducted
prior to holding tendering in order to select a list of tenderers with the
capability and experience required for the tender package in order to invite
them to participate in tendering; pre-qualification of tenderers shall be
mandatory in the case of tender packages for the procurement of goods and EPC
tender packages with a tender package price of three hundred billion dong or
more, and in the case of tender packages for construction and installation with
a tender package price of two hundred billion dong or more;
(b) The sequence for conducting
pre-qualification of tenderers shall be as follows: Formulation of
pre-qualification invitation documents; notice inviting pre-qualification
applications; receipt and retention of pre-qualification applications;
assessment of pre-qualification applications; submission and approval of
pre-qualification results; and notification of results of pre-qualification;
(c) The criteria for evaluation of
pre-qualification applications must be set out in the pre-qualification
invitation documents in accordance with the sample pre-qualification invitation
documents regulated by the Government and shall include criteria on technical
capability, and standards on financial capability and experience.
2. Preparation of pre-qualification invitation
documents:
Pre-qualification invitation documents shall be
formulated in accordance with the sample form regulated by the Government and
shall comprise the following contents:
(a) Technical requirements:
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In the case of tender packages for procurement
of goods, the technical requirements shall include requirements on the scope of
supply; on the quantity and quality of goods determined via specifications,
technical parameters, technological standards and manufacturing standards; the
period of warranty; environmental requirements, and other necessary
requirements.
In the case of tender packages for construction
and installation, the technical requirements shall include the requirements set
out in the technical design file, and shall include cost estimates, technical
instructions and other necessary requirements;
(b) The financial and commercial requirements
shall comprise costs for implementing the tender package, the offered price and
a detailed price list, delivery terms, method and terms of payment, financing
source, tendering currency, and the other clauses and conditions which will be
set out in the general and specific provisions of the contract.
(c) Assessment criteria, important requirements,
preferential conditions (if any), tax, insurance and other requirements.
3. Invitation to submit tenders:
Invitations to submit tenders shall be conducted
in accordance with the following provisions:
(a) Notification of invitation to submit tenders
in the case of open tendering;
(b) Sending of letters inviting submission of
tenders in the case of limited tendering or in the case of open tendering for
which pre-qualification has been conducted.
Article 33 Organization
of tendering
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The tender invitation documents shall be issued
to all tenderers participating in open tendering, to all tenderers on the list
of tenderers to be invited to participate in limited tendering, or to all
tenderers who have passed the pre-qualification stage.
If there needs to be an amendment to the tender
invitation documents after they have been issued, a notice must be sent to all
tenderers who received the tender invitation documents at least ten (10) days
prior to the deadline for tender closing.
2. Receipt and retention of tenders:
The party calling for tenders shall accept all
tenders which are submitted in accordance with the requirements set out in the
tender invitation documents, and shall retain the tenders in accordance with
the regime for retention of confidential documents.
3. Tender opening:
All tenders which have been submitted in
accordance with the requirements set out in the tender invitation documents
shall be opened publicly immediately after the deadline for tender closing.
The main information set out in the tenders of
each tenderer must be announced at the tender opening session and must be
recorded in the minutes of the tender opening and signed by the representative
of the party calling for tenders, the representatives of the tenderers and the
representatives of any relevant bodies present.
Article 34 Clarification
of tender invitation documents
1. If any tenderer requires clarification of the
tender invitation documents, he shall send a written request to the party
calling for tenders for the latter's consideration and action.
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(a) By sending a letter clarifying the tender
invitation documents to all the tenderers who have received tender invitation
documents;
(b) In necessary cases, by holding a
pre-tendering meeting in order to discuss the contents of the tender invitation
documents which are unclear to tenderers. All issues discussed at the
pre-tendering meeting must be recorded in minutes and a letter of clarification
of the tender invitation documents must be sent to all tenderers.
3. The letter of clarification of tender
invitation documents shall form an integral part of such tender invitation
documents.
Article 35 Sequence of
assessment of tenders
1. A preliminary assessment of tenders shall be
held in order to eliminate tenders which are invalid or which fail to satisfy
the important requirements of the tender invitation documents.
2. A detailed assessment of tenders shall be
held in accordance with the following provisions:
(a) A technical assessment of tenders shall be
held in order to confirm which tenders basically satisfy the requirements of
the tender invitation documents;
(b) In the case of tender packages for
procurement of goods, for construction and installation, and EPC tender
packages, there shall be a conversion of prices to an equal footing basis as
regards technical, financial and commercial aspects in order to compare and
rank tenders. In the case of tender packages for provision of consultancy
services, an overall assessment shall be made in order to compare and rank
tenders; and in the case of tender packages for provision of consultancy
services with high technical requirements, the financial proposals of the
tenderer who is given the highest technical ranking shall be considered.
Article 36 Clarification
of tenders
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2. After opening of tenders, tenderers shall be
responsible to clarify their tenders on request from the party calling for
tenders. The clarification of a tender may be made either by direct or indirect
communication, but must ensure that there is no change to the main substance of
the submitted tender and tender price. Any item of clarification of a tender
must be made in writing, and the party calling for tenders must retain it as an
integral part of the tender.
3. Clarification of tenders shall only be made
as between the party calling for tenders and a tenderer who has a tender which
needs to be clarified.
Article 37 Consideration
for recommendation as the winning tenderer in the case of tendering for
provision of consultancy services
A consultancy tenderer who satisfies all the
following conditions shall be considered for recommendation as the winning
tenderer:
1. Having a valid tender.
2. Having technical proposals comprising
capability, experience, solutions and personnel which have been assessed as
satisfying the requirements.
3. Having the highest overall score for
technical aspects and for financial aspects; in the case of a tender package
with high technical requirements, having the highest score for technical
aspects.
4. The proposed contract sum does not exceed the
approved tender package price.
Article 38 Consideration
for recommendation as the winning tenderer in the case of tendering for
procurement of goods, and for construction and installation
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1. Having a valid tender.
2. The tenderer is assessed as having satisfied
the requirements on capability and experience.
3. Having technical proposals which have been
assessed as satisfying the requirements pursuant to the method of marking a
score or pursuant to the criterion of pass or fail.
4. Having the lowest price on an equal footing
basis.
5. The proposed contract sum does not exceed the
approved tender package price.
Article 39 Submission
for approval and evaluation of the results of tendering
1. The party calling for tenders shall prepare a
report on the results of tendering in order for the investor to submit it to
the person authorized to consider and make a decision thereon, and also send it
to the body or organization responsible to make the evaluation.
2. The body or organization assigned the task of
making the evaluation shall be responsible to prepare a report on evaluation of
the results of tendering on the basis of the report from the investor, in order
to submit it to the authorized person to consider and make a decision thereon.
Article 40 Approval of
the results of tendering
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2. Where there is a winning tenderer, the
document approving the results of tendering shall include the following
particulars:
(a) Name of the winning tenderer;
(b) Winning tender price;
(c) Form of contract;
(d) Duration for implementation of contract;
(dd) Other items which need to be noted (if
any).
3. In a case where there is no winning tenderer
the document approving the results of tendering must state this fact, and
cancel the tendering in order to conduct selection of contractor in accordance
with the provisions in this Law.
Article 41 Notification
of the results of tendering
1. The results of tendering shall be notified
immediately after there is a decision by the authorized person approving the
results of tendering.
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Article 42 Negotiation,
finalization and signing of the contract
1. The negotiation and finalization of a
contract for signing with the winning tenderer shall be based on the following
matters:
(a) Approved results of tendering;
(b) Sample contract form in which specific
information about the tender package has been filled in;
(c) Requirements stipulated in the tender
invitation documents;
(d) Contents of the tender and any clarification
provided by the tenderer;
(dd) Contractual items which require to be
negotiated and finalized as between the party calling for tenders and the
winning tenderer.
2. The results of negotiation and finalization
of the contract shall be the basis on which the investor and the tenderer shall
conduct signing of the contract.
3. If negotiation and finalization of the
contract is unsuccessful, the investor must provide a report to the authorized
person for his consideration to select the next-ranking tenderer. If the
next-ranking tenderer also fails to satisfy the requirements, the investor
shall report to the authorized person for his consideration and decision.
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Article 43 Cancellation
of tendering
1. Cancellation of tendering shall apply in any
one of the following cases:
(a) Alteration of the objectives or scope of the
investment stated in the tender invitation documents;
(b) There is evidence showing that the party
calling for tenders colluded with tenderers;
(c) All tenders failed to satisfy the basic
requirements of the tender invitation documents;
(d) There is evidence to show that all tenderers
colluded to adversely effect the interests of the party calling for tenders.
2. Based on the decision of the authorized
person, the party calling for tenders shall be responsible for notifying all
tenderers who participated in the tendering of the cancellation of the
tendering.
Article 44 Financial
liabilities when tendering is cancelled
1. In a case of cancellation of tendering not
due to the fault of tenderers, the party calling for tenders shall be
responsible to compensate tenderers for their costs of participation in the
tendering on the basis of the current State regime and cost levels, except in a
case where the tendering was cancelled because no tenderer satisfied the requirements
of the tender invitation documents.
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3. If tendering was cancelled due to collusion
by the party calling for tenders with one or more tenderers, the individuals
responsible for such collusion shall be liable to compensate the other
tenderers for their costs.
Article 45 Rejection of
tenders
Tenders shall be rejected in the following
cases:
1. A tender fails to satisfy the important
requirements set out in the tender invitation documents.
2. A tender fails to satisfy the technical
requirements based on the assessment criteria.
3. A tender contains arithmetical errors with a
total absolute value of more than ten (10) per cent of the tender price, except
for tender packages for consultancy services or except where a tenderer does
not accept the arithmetical error identified by the party calling for tenders.
4. A tender contains discrepancies with a total
absolute value of more than ten (10) per cent of the tender price, except for
tender packages for consultancy services.
Chapter III
CONTRACTS
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1. Contracts must comply with the provisions of
this Law and other relevant laws.
2. In the case of a partnership tender, the
contract signed with the investor must contain the signatures of all partners.
3. The contract sum shall not exceed the winning
tender price, except for the case stipulated in clause 4 of this article.
4. In cases where a volume of works or a
quantity of goods arises which exceeds the scope of the tender invitation
documents leading to the contract sum exceeding the winning tender price, then
the authorized person shall consider and make a decision thereon.
Article 47 Contents of
contracts
1. Subject of the contract.
2. Quantity or volume of the contract.3.
Specifications, quality and other technical requirements.
4. Contract sum.
5. Form of contract.
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7. Terms and conditions on, and method of
payment.
8. Terms and conditions on check and acceptance,
and on hand-over.
9. Warranty applicable to goods to be procured,
or to items to be constructed and installed.
10. Rights and obligations of the parties.
11. Liability for breach of contract.
12. Term of validity of the contract.
13. Other items depending on each form of
contract.
Article 48 Forms of
contract
1. Lump-sum contract.
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3. Time based contract.
4. Percentage based contract.
Article 49 Lump-sum
contract
1. The form of lump-sum contract shall apply to
items of works which are clearly definable in terms of quantity or volume.
2. The contract sum shall not be altered throughout
the entire duration for implementation of the contract. The investor shall pay
the contractor the correct amount being the sum stated in the contract, after
the contractor has discharged all his contractual obligations.
Article 50 Form of unit
price contract
1. The form of unit price contract shall apply
to those items of works which cannot yet be clearly defined in terms of
quantity or volume.
2. The investor shall pay the contractor in
accordance with the actual quantity or volume of work completed on the basis of
the unit price stipulated in the contract or on the basis of the unit price
adjusted and approved in accordance with article 57 of this Law.
Article 51 Form of time
based contract
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2. The investor shall pay the contractor in
accordance with the actual time worked calculated in months, weeks, days and
hours on the basis of the expert remuneration rates stipulated in the contract
or on the basis of remuneration rates adjusted and approved in accordance with
article 57 of this Law.
Article 52 Form of
percentage based contract
1. The form of percentage based contract shall
apply to common and simple consultancy work.
2. The contract sum shall not be altered
throughout the entire duration for implementation of the contract. The contract
sum shall be calculated as a percentage of the value of the works or of the
volume of works. The investor shall pay the contractor the correct amount being
the sum stated in the contract, after the contractor has discharged all his
contractual obligations.
Article 53 Multiple
contractual forms within the one contract
1. If any one contract contains one or more
components being forms of contract stipulated in articles 49 to 52 inclusive of
this Law, then the payment principles stipulated in the corresponding articles
shall apply.
Article 54 Signing of
contract
1. The signing of the contract shall be based on
the following documents:
(a) Results of negotiation and finalization of
the contract;
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(c) Tender and any documents clarifying the
tender provided by the selected contractor;
(d) Tender.
2. The signing of the contract must ensure
compliance with the following conditions:
(a) The tender of the selected contractor still
remains valid;
(b) The information on the technical and
financial capability of the contractor has been updated as at the date of
signing the contract and satisfies the requirements set out in the tender
invitation documents.
Article 55 Contract
performance guarantee
1. The winning tenderer must provide a contract performance
guarantee prior to the date on which the contract takes effect, except in the
case of tendering for the provision of consultancy services and except in the
case of self-implementation of a contract.
2. The value of a contract performance guarantee
shall be stipulated in the tender invitation documents and shall be a maximum
of ten (10) per cent of the contract sum; in cases where there is a need to
guard against high risks, then the value of the contract performance guarantee
shall be higher but shall not exceed thirty (30) per cent of the contract sum
and in such case there must be permission from the authorized person.
3. The term of validity of a contract
performance guarantee must extend until the date of transfer of warranty
obligations (if any).
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Article 56 Warranty
Any contract containing contents being goods to
be procured or items to be constructed and installed must contain a warranty
provision. The term of the warranty, the amounts payable pursuant to the
warranty, and other clauses and conditions of the warranty shall be set out in
the contract and must be based on provisions of law.
The Government shall provide detailed
regulations on the warranty applicable to contractual contents being goods to
be procured or items to be constructed and installed.
Article 57 Adjustment
to contracts
1. Adjustment to contracts shall only apply to
unit price contracts and time based contracts, and shall be carried out as
follows:
(a) When there is a change in State policy in
relation to tax or wages which directly impacts on the contract sum, the
contract shall be adjusted in accordance with such policy as from the date the
policy take effect;
(b) When there are increases or decreases in the
volume or quantity of works throughout the process of contractual performance,
but such changes are within the scope of the tender invitation documents and
are not caused by the fault of the tenderer, then the calculation of the value
of such increases or decreases shall be based on the unit price of the
contract;
(c) When there are major fluctuations in State
controlled prices of fuel, supplies and equipment as set out in the contract
and such fluctuations directly impact on contractual performance, then such
situation must be reported to the authorized person for his consideration and
decision.
2. Adjustments to a contract shall only be
applied within the period for implementation of the contract as set out in the
signed contract and the authorized person must consider and make a decision on
any adjustment. The adjusted contract sum shall not exceed the total estimated
budget, estimated budget or tender package price set out in the approved
tendering plan, unless the authorized person otherwise permits.
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Article 58 Contract
payment
The contract sum and the specific terms and
conditions on payment as set out in the contract shall be the basis on which
the investor shall make payment to the contractor.
Article 59 Supervision
of implementation of contract, check and acceptance, and liquidation of the
contract
1. Supervision of implementation of the contract
shall be carried out in accordance with the following provisions:
(a) The investor shall be responsible to
supervise the contractor throughout performance of the contract;
(b) Any individual assigned the task of
supervision of implementation of the contract must ensure that he or she is
disinterested, honest, objective, capable, experienced and has the professional
knowledge necessary to carry out such supervision, and such individual shall be
liable before the investor and the law for carrying out the tasks;
(c) If any consultant supervising execution of
building is irresponsible or colludes with the construction contractor to
certify an incorrect quantity or quality of works, then both the consultancy
contractor and the construction contractor must pay compensation for loss and
damage and shall be dealt with in accordance with article 75 of this Law and
other relevant laws;
(d) The community of citizens shall participate
in supervision of tendering activities in accordance with regulations of the Government.
2. Check and acceptance of the contract shall be
implemented in accordance with the following provisions:
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(b) Any individual assigned the task of
supervision of implementation of the contract must ensure that he or she is
disinterested, honest, objective, capable, experienced and has the professional
knowledge necessary to carry out such supervision, and such individual shall be
liable before the investor and the law for carrying out the tasks;
3. Liquidation of the contract shall be
completed within a time-limit of forty five (45) days from the date on which
the investor and the contractor fully discharge their contractual obligations;
in the case of a very complex tender package, it shall be permissible to extend
the time-limit for liquidation of the contract but not in excess of ninety (90)
days.
Chapter IV
RIGHTS AND OBLIGATIONS
OF PARTIES IN TENDERING
Article 60 Responsibilities
of the authorized person
1. To approve the tendering plan.
2. To approve, or to delegate authority to
another to approve, the tender invitation documents.
3. To approve, or to delegate authority to
another to approve, the results of selection of contractor.
4. To make a decision dealing with any
exceptional situation during tendering.
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6. To deal with breaches of the Law on Tendering
pursuant to article 75 of this Law and other relevant laws.
7. To be legally liable for his or her
decisions.
Article 61 Rights and
obligations of investors
1. To make a decision on items relevant to
pre-qualification of tenderers.
2. To approve a list of participating tenderers.
3. To establish an expert tendering group; to
select a consultancy organization or a professional tendering organization
pursuant to this Law to represent the investor in acting as the party calling
for tenders.
4. To approve the list of tenderers who have
satisfied the technical requirements, and the list ranking the tenderers.
5. To approve the results of direct appointment
of contractor in the cases stipulated in sub-clauses (a) and (dd) of clause 1 of
article 20 of this Law.
6. To be responsible to formulate the
requirements applicable to a direct appointment tender package.
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8. To be legally liable for the process of
selection of contractor pursuant to this Law.
9. To pay compensation for loss and damage to
related parties pursuant to this Law if such loss and damage was caused by the
investor's fault.
10. To provide information to the Tendering
Newsletter and to the tendering website.
11. To resolve protests regarding tendering.
12. To maintain confidentiality of documents on
tendering pursuant to the provisions of this Law.
Article 62 Rights and
obligations of parties calling for tenders
1. A party calling for tenders shall have the
following rights and obligations:
(a) To conduct preparations for tendering, to
organize tendering, and to assess tenders in accordance with this Law;
(b) To request tenderers to clarify their
tenders during the process of assessment of tenders;
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(d) To negotiate and finalize a contract on the
basis of the approved results of selection of contractor;
(dd) To prepare the contents of the contract in
order for the investor to consider such contents and sign the contract;
(e) To ensure honesty, objectivity and
impartiality throughout the process of tendering;
(g) To pay compensation for loss and damage to
relevant parties pursuant to this Law if such loss and damage was caused by the
fault of the party calling for tenders;
(h) To provide information to the Tendering
Newsletter and to the tendering website;
(i) To resolve protests regarding tendering;
(k) To maintain confidentiality of documents on
tendering pursuant to this Law.
2. In a case where the party calling for tenders
is concurrently the investor, then in addition to the rights and obligations
stipulated in clause 1 of this article the party calling for tenders must also
comply with article 61 of this Law.
Article 63 Rights and
obligations of expert tendering groups
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2. To maintain confidentiality of documents
regarding tendering pursuant to this Law throughout the process of
implementation of their duties.
3. To reserve their own opinions.
4. To be honest, objective and impartial
throughout the process of assessment of tenders and reporting on the results of
assessment.
5. To pay compensation for loss and damage to
relevant parties pursuant to this Law if such loss and damage was caused by the
fault of the expert tendering group.
6. To exercise other rights and to discharge
other obligations in accordance with law.
Article 64 Rights and
obligations of tenderers
1. To participate in tendering in the capacity
of an independent tenderer or a partnership tenderer.
2. To request the party calling for tenders to
clarify the tender invitation documents.
3. To fulfil the contractual undertakings
provided to the investor and to sub-contractors (if any).
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5. To comply with the provisions of the law on
tendering.
6. To be honest and accurate during the process
of participation in tendering and whilst lodging protests or making complaints
and denunciations regarding tendering.
7. To pay compensation pursuant to law for loss
and damage to relevant parties, if such loss and damage was caused by the fault
of the tenderer.
Article 65 Rights and
obligations of evaluating bodies or organizations
1. To act independently and to comply with the
provisions of this Law and other relevant laws when conducting evaluations.
2. To request the investor and the party calling
for tenders to provide all relevant documents and data.
3. To maintain confidentiality of documents and
data throughout the process of evaluation.
4. To be honest, objective and impartial
throughout the process of evaluation.
5. To reserve their own opinion and to bear
liability for their evaluation report.
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Chapter V
ADMINISTRATION OF
TENDERING ACTIVITIES
Article 66 Contents of
State administration of tendering
1. Promulgating, disseminating, guiding and
organizing implementation of legal instruments and policies on tendering.
2. Training and capacity building for senior
personnel engaged in tendering work.
3. Summarizing, assessing and reporting on the
status of implementation of tendering activities.
4. Administering on a nationwide basis the
tendering information system comprising the Tendering Newsletter, the tendering
website and the national tendering network.
5. Conducting international co-operation
regarding tendering.
6. Conducting checks and inspections; resolving
protests, complaints and denunciations regarding tendering, and dealing with
breaches of the law on tendering in accordance with this Law and other relevant
laws.
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1. The Government shall exercise unified
administration of tendering throughout the country.
2. The Prime Minister of the Government shall
discharge the following responsibilities and exercise the following powers:
(a) Direct the work of conducting inspections
and of resolving protests about tendering in accordance with this Law and the
law on inspections;
(b) Regulate which evaluating body and/or organization
shall assist the authorized person throughout the process of consideration and
approval of tendering issues;
(c) In the case of investment projects
formulated pursuant to resolutions of the National Assembly, make decisions on
the tendering issues stipulated in article 60 of this Law.
(d) Discharge other responsibilities and
exercise other powers in accordance with this Law and other relevant laws.
Article 68 Responsibilities
and powers of the Ministry of Planning and Investment
1. To be responsible before the Government for
the exercise of State administration of tendering activities.
2. To evaluate tendering plans and results of
selection of contractor in tender packages belonging to projects within the
decision-making power of the Prime Minister of the Government and stipulated in
sub-clause (c) of clause 2 of article 67 of this Law.
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4. To act as the co-ordinator assisting the
Government and the Prime Minister of the Government in conducting international
co-operation in the tendering sector.
5. To organize training and capacity building
for senior personnel engaged in tendering work.
6. To summarize, assess and provide reports on
the status of implementation of tendering activities.
7. To resolve, within the scope of its
authority, protests regarding tendering.
8. To preside over co-ordination with other
relevant bodies in conducting checks and inspection of tendering on a
nationwide basis.
9. To implement other duties regarding tendering
as assigned to it by the Government.
Article 69 Responsibilities
and powers of ministries, ministerial equivalent bodies, and all level people's
committees
Ministries, ministerial equivalent bodies and
people's committees at all levels shall, within the scope of their respective
duties and powers, have the following responsibilities and duties:
1. To exercise administration of tendering work.
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3. To summarize and assess the status of
implementation of tendering activities.
4. To provide reports on tendering activities
pursuant to regulations of the Government.
5. To resolve protests regarding tendering
pursuant to this Law.
6. To conduct checks and inspections of
tendering.
7. To deal with breaches of the law on tendering
by organizations and individuals involved in tendering activities.
8. In cases where a minister, head of a
ministerial equivalent body or chairman of a people's committee at any level is
concurrently the authorized person, then such minister, head or chairman must
also discharge the responsibilities stipulated in article 60 of this Law.
Article 70 Dealing with
exceptional situations in tendering
1. Exceptional situations in tendering shall be
dealt with in compliance with the following principles:
(a) Ensuring competitiveness, fairness,
transparency and economic efficiency;
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(c) The authorized person shall be the person
making a decision on dealing with any exceptional situation in tendering, and
shall be responsible before the law for his decision.
2. Categories of exceptional situations shall
comprise:
(a) Regarding preparation for and organization
of tendering: items adjusting a tendering plan, a tender package price or other
contents of a tender package; amendments to tender invitation documents;
submission of tenders if tenders are submitted out of time or if too few
tenders have been submitted; and amendments to the number of participating
tenderers;
(b) Regarding assessment of tenders: situations
in which tender prices exceed the tender package price, and tender prices made
up of unusual unit prices;
(c) Regarding recommendation of winning tenderer
and signing of the contract: situations in which the winning tender price is
below fifty (50) per cent of the tender package price or the approved estimated
budget; situations in which two tenders are both assessed as the best price and
are identical, or where the proposed contract sum exceeds the approved winning
tender price;
(d) Regarding the procedures and sequence
for implementation of tendering.
The Government shall provide detailed
regulations on dealing with exceptional situations in tendering.
Article 71 Tendering
Inspectorate
1. Tendering inspections shall be carried out of
organizations and individuals who are involved in tendering activities in order
to implement a tender package belonging to any of the projects stipulated in
article 1 of this Law.
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Article 72 Resolution
of protests regarding tendering
1. Tenderers shall have the right to protest
about the results of selection of contractor and about other relevant matters
during the tendering process.
2. The entities responsible for resolution of a
protest made by a tenderer during the tendering process shall be the party calling
for tenders, the investor and the authorized person. The authorized person
shall resolve any protest by a tenderer regarding results of selection of
contractor on the basis of a report from the Consulting Council for Resolution
of Protests pursuant to article 73 of this Law.
3. With regard to protests about relevant
matters during the tendering process other than the results of selection of
contractor, the time-limit for lodging a protest shall be calculated as from
the date the event protested about arose until the date of the notification of
results of tendering. The time-limit for lodging a protest about the results of
selection of contractor shall be a maximum of ten (10) days after the date of
notification of results of tendering.
Article 73 Procedures
for resolution of protests regarding tendering
1. The resolution of protests about relevant
matters during the tendering process shall be implemented as follows:
(a) The party calling for tenders shall be
responsible to resolve a protest regarding tendering made by a tenderer within
a time-limit of a maximum five (5) working days from the date of receipt of the
written protest of the tenderer. If the party calling for tenders is unable to
resolve the protest or if the tenderer disagrees with the resolution as made by
the party calling for tenders, the tenderer shall have the right to lodge the
protest with the investor for the latter's consideration and resolution in
accordance with the provisions in sub-clause (b) of this clause.
(b) The investor shall be responsible to resolve
a protest regarding tendering made by a tenderer within a time-limit of a
maximum seven (7) working days from the date of receipt of the written protest
of the tenderer. If the investor is unable to resolve the protest or if the
tenderer disagrees with the resolution as made by the investor, the tenderer
shall have the right to lodge the protest with the authorized person for the
latter's consideration and resolution in accordance with the provisions in
sub-clause (c) of this clause.
(c) The authorized person shall be responsible
to resolve a protest regarding tendering made by a tenderer within a time-limit
of a maximum fifteen (15) working days from the date of receipt of the written protest
of the tenderer. If the authorized person is unable to resolve the protest or
if the tenderer disagrees with the resolution as made by the authorized person,
the tenderer shall have the right to institute court proceedings.
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(a) In accordance with the provisions in
sub-clause (a) of clause 1 of this article.
(b) In accordance with the provisions in
sub-clause (b) of clause 1 of this article. If the investor is unable to
resolve the protest or if the tenderer disagrees with the resolution as made by
the investor, the tenderer shall have the right to concurrently submit the
written protest to the authorized person and to the chairman of the Consulting
Council for Resolution of Protests for consideration and resolution pursuant to
sub-clause (c) of this clause.
(c) The Consulting Council for Resolution of
Protests (hereinafter referred to as the Consulting Council) shall be
responsible to request the tenderer, the investor and other bodies involved in
the tendering to provide necessary information, data and opinions in order to
formulate a report on the results of the tendering work. If necessary, the
Consulting Council may work directly with the parties involved in order to
clarify issues. The time-limit within which the Consulting Council shall
provide it's report shall be a maximum twenty (20) days after the date of
receipt of the written protest of the tenderer. The chairman of the Consulting
Council shall be a representative of the State administrative body for
tendering, and members of the Consulting shall include a representative of the
authorized person and a representative of the relevant occupational
organization concerned. The authorized person shall be responsible to issue a
decision on resolution of the protest of the tenderer within a time-limit of a
maximum five (5) working days after the date of receipt of the report on
results of tendering work from the Consulting Council. If the tenderer
disagrees with the resolution made by the authorized person, the tenderer shall
have the right to institute court proceedings.
3. A tenderer who wishes to make a protest
regarding tendering shall have the right to institute court proceedings. If the
tenderer chooses not to institute court proceedings, then the protest shall be
resolved in accordance with clauses 1 and 2 of this article.
The Government shall provide detailed
regulations on resolution of protests and on the operation of the Consulting Council.
Article 74 Complaints
and denunciations about tendering
The making of complaints and denunciations about
tendering and the resolution of such complaints and denunciations shall be
implemented in accordance with the law on complaints and denunciations.
Article 75 Dealing with
breaches of the law on tendering
1. Any organization or individual who breaches
the law on tendering shall be dealt with by one of the following forms:
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(b) A fine shall be imposed on any organization
or individual who acts in breach of the Law on Tendering and causes loss and
damage to the interests of related parties;
(c) The penalty of prohibition from
participation in tendering shall apply to any organization or individual who
commits a breach being one of the acts stipulated in article 12 of this Law.
2. Any individual who commits a breach of the Law
on Tendering where such conduct also constitutes a criminal offence shall be
dealt with in accordance with the criminal law.
3. Any breach of the Law on Tendering by an
organization or individual shall, in addition to being dealt with pursuant to
the provisions in clause 1 of this article, be listed in the Tendering
Newsletter and on the tendering website.
The Government shall provide detailed
regulations on dealing with breaches of the law on tendering.
Chapter VI
IMPLEMENTING PROVISIONS
Article 76
The Government shall
provide detailed regulations and guidelines for implementation of this Law.
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This Law shall be of full
force and effect as of 1 April 2006.
This Law was passed by Legislature XI of the
National Assembly of the Socialist Republic of Vietnam at its 8th Session on 29
November 2005.
THE
CHAIRMAN OF THE NATIONAL ASSEMBLY
Nguyen Van An