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THE GOVERNMENT OF VIETNAM
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THE SOCIALIST REPUBLIC OF VIETNAM
Independence - Freedom – Happiness
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No: 214/2025/ND-CP
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Hanoi, August 04, 2025
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DECREE
ON ELABORATION OF AND MEASURES
FOR IMPLEMENTATION OF THE BIDDING LAW REGARDING CONTRACTOR SELECTION
Pursuant to the Law on
Government Organization No. 63/2025/QH15;
Pursuant to the Law on Organization of Local Government No.
72/2025/QH15;
Pursuant to the Law on Bidding No. 22/2023/QH15, as amended
and supplemented by Law No. 57/2024/QH15, Law No. 90/2025/QH15;
At the request of the Minister of Finance;
The Government promulgates a Decree on elaboration of and
measures for implementation of the bidding law regarding contractor selection.
Chapter I
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Article 1. Scope
1. This Decree elaborates
certain articles of the Bidding Law regarding contractor selection, including: Clause 5, Article 3;
Clause 1, Article 5; Clause 6, Article 6; Clause 6, Article 10; Clause 3,
Article 15; Clause 4, Article 19; Clause 2, Article 20; Article 23; Clause 1,
Article 24; Clause 2, Article 29; Clause 2, Article 29a; Clause 3, Article 29b;
Clause 4, Article 36; Clause 2, Article 39; Clause 2, Article 43; Clauses 2 and
4, Article 44; Clause 3, Article 45; Article 50; Clauses 3 and 7, Article 53; Clauses
3 and 4, Article 55; Article 57; Clause 1, Article 61; Clause 4, Article 67;
Clause 6, Article 70; Clause 2, Article 84; Clause 4, Article 86; Clause 5,
Article 87; Clause 4, Article 88; Clause 5, Article 89 of the Law on Bidding.
2. Measures to implement
the Law on Bidding regarding contractor selection, including:
a) Register on Vietnam National E-Procurement
System (VNEPS);
b) Contractor selection duration;
c) Disclose information in bidding activities;
d) Bidder management.
Article 2. Interpretation of terms
1. Online quotation is a repeated process where bidders electronically submit
new prices or non-price values (quantifiable according to bidding document
criteria) for ranking or re-ranking bids on VNEPS.
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3. Successful bid is the price stated in the decision on approval for
contractor selection result.
4. Online procurement is direct procurement of goods and services on VNEPS from
the bidder who has won the bid for the package for procurement of goods and
services through centralized procurement.
Article 3. Application of the Law on Bidding in cases where
there are provisions different from international treaties, foreign loan
agreements
Before signing international treaties, or foreign loan
agreement containing specific regulations on bidding which are different from
those of the Law on Bidding or are not included in the Law on Bidding, the
Government shall decide whether to apply regulations on bidding following
procedures as follows:
1. Before negotiations,
the governing authority of the project shall send a written proposal to the
authority in charge of negotiation on the application of regulations on bidding
which are different from those of the Law on Bidding or are not included in the
Law on Bidding. The contents of the written proposal shall include:
a) Regulations adopted by the donor or international
organization which are different from those of the Law on Bidding or are not
included in the Law on Bidding;
b) Necessity and impact assessment of the application of
the regulations mentioned in point a of this Clause.
2. The authority in charge
of negotiation shall solicit opinions from the Ministry of Foreign Affairs,
Ministry of Justice, and relevant agencies on the proposal to apply regulations
on bidding which are different from those of the Law on Bidding or are not
included in the Law on Bidding and contents of international treaties or
foreign loan agreements. The enquired authorities shall respond in writing
to the authority in charge of negotiation within 5 working days from the
receipt of the request for opinions and relevant documents.
3. Before signing
international treaties or foreign loan agreements, the authority in charge of
negotiation shall request the Government to consider deciding the
application of regulations adopted by the donor or international organization
of which the State or Government of the Socialist Republic of Vietnam is a
member.
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1. A bidder for
construction, goods procurement, non-consulting service, or PC package must be
legally and financially independent from the following parties:
a) The consultants that provide the following consulting
services for that package: preparation, verification of the engineering design, design
of construction drawing design, estimate, design of Front-End Engineering
Design (FEED); valuation; supervision and appraisal of the contract
performance; preparation and appraisal of the prequalification document or
bidding documents; evaluation of prequalification applications or bids;
appraisal of the prequalification result or contractor selection result;
management of the project or contract; other consulting services directly to
the package;
b) The employer specified in point d Clause 1 Article
6 of the Law on Bidding.
2. A bidder for consulting
service package must be legally and financially independent from the following
parties:
a) The consultants that provide the following consulting
services for that package: preparation, appraisal of the expression of interests (EOI)
request, bidding documents; evaluation of the EOIs or bids; appraisal of the
EOI result or contract selection result; management of the project or contract
and other consulting services directly to the package;
b) The employer specified in point d Clause 1 Article
6 of the Law on Bidding;
c) Apart from point a and b of this clause, a bidder for
consulting service package related to a goods procurement, construction, or
non-consulting service package, including: preparation, verification of the engineering design; design
of the construction drawing, estimate; preparation, evaluation of FEED;
valuation; preparation, appraisal of the prequalification document or bidding
documents; evaluation of prequalification applications or bids; appraisal of
the prequalification result or contractor selection result; appraisal,
supervision of the contract performance must be legally and financially
independent from the following parties.
3. A bidder for EPC, EP,
or EC package must be legally and financially independent from the following
parties:
a) The contractor that prepares, verifies FEED;
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c) The contractor that prepares, verifies a
technical-economic report in case of neither preparing a feasibility study
report nor preparing a FEED as per the construction law;
d) The consultant for project management, supervision,
appraisal, or contract management who works for or is hired by the employer or
procuring entity;
dd) The consultant that conducts valuation; the contractor
that prepares, evaluates the prequalification document or bidding documents;
the consultant that evaluates the prequalification applications or bids; the
consultant that appraises prequalification application result or contractor
selection result; other consultants directly participating in the contractor
selection process;
e) The employer specified in point d Clause 1 Article
6 of the Law on Bidding;
The EPC, EP, EC contract packages shall be formed based on
FEED or basic design; however, if engineering design is mandated, these
contract packages cannot be formed.
4. A bidder for turnkey
package must be legally and financially independent from the following parties:
a) The contractor that prepares, verifies the
pre-feasibility study report;
b) The consultant for project management, supervision,
appraisal, or contract management who works for or is hired by the employer or
procuring entity;
c) The consultant that conducts valuation; the contractor
that prepares, evaluates the prequalification document or bidding documents;
the consultant that evaluates the prequalification applications or bids; the
consultant that appraises prequalification application result or contractor
selection result; other consultants directly participating in the contractor
selection process;
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5. Except for the case
where the bidder performing the design work of the EPC, EP, EC, turnkey package
must be legally and financially independent from the consultants specified in
Points a , b, c, d and dd Clause 3 of this Article, Points a, b and c Clause 4
of this Article, consultants may provide single or multiple consulting services
within the same project or package below:
a) Prepare, verify investment policy proposals;
b) Prepare, verify pre-feasibility study reports;
c) Prepare, verify feasibility study reports;
d) Prepare, verify technical and economic reports;
dd) Conduct construction survey;
e) Prepare, verify design drawings and estimates;
g) Prepare, appraise the overall contractor selection
plan, specific contractor selection plan, prequalification documents,
EOI requests, bidding documents, RFPs; evaluate prequalification applications,
EOI responses, bids, and proposals; appraise the results of evaluating
prequalification applications, results of evaluating EOI responses, and
contractor selection results;
h) Supervise construction.
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6. The ratio of shares and
capital contribution among parties is determined at the bid submission deadline
and based on the ratio reflected in the business registration certificate,
establishment decision, or other equivalent documents.
7. For bidders
participating as a joint venture or consultants selected as a joint
venture, the capital ownership ratio, of other members will be determined using
the following formula:
Where:
Xi: is the capital ownership ratio of other members in “the ith
joint venture party”;
Yi: is the percentage (%) of the workload of “the ith joint
venture party” in the joint venture agreement;
n: is the number of parties in the joint venture.
Article 5. Principles of incentives
1. Bidders eligible for
multiple incentives in the capacity and experience or financial assessments
will receive only the most advantageous incentive
per evaluation item.
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3. For mixed packages, the
calculation of incentives is based on all proposals of the bidders in the
consulting work, supply of goods, construction.
Bidders qualify for incentives if they propose
domestic costs (costs of consulting, non-consulting, Vietnamese-origin
goods, construction) of at least 25% of the work value of the package.
4. The bidder must prove
that they, goods and services offered by the bidder are eligible for incentives
as prescribed in Clause 1, Article 10 of the Bidding Law.
Article 6. Incentives for Vietnamese-origin goods
1. Incentives for
Vietnamese-origin goods with a domestic production cost ratio of less than 50%
and no goods with a domestic production cost ratio of 50% or more are
determined as follows:
a) For least-cost selection (LCS), non-incentive goods and
drugs will be adjusted for comparison and ranking by adding 7.5% of the bid
price (after error correction, deviation adjustment, and any discounts) offered
for the goods to that bid price;
b) For evaluated price selection, non-incentive goods and
drugs will be adjusted for comparison and ranking by adding 7.5% of the bid
price (after error correction, deviation adjustment, and any discounts) offered
for the goods to the bidder’s evaluated price;
c) For quality- and cost-based selection (QCBS), incentive
goods or drugs receive an incentive point added to their aggregate score based
on the following formula:
Incentive point= 7.5% x (incentive good or drug price/bid
price (after error correction, deviation adjustment, and any discounts)) x
aggregate score
Where: Incentive good or drug price is the bid price (after error
correction, deviation adjustment, and any discounts) of the incentive good;
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2. Incentives for
Vietnamese-origin goods with a domestic production cost ratio of at least 50%
are determined as follows:
a) For least-cost selection (LCS), non-incentive goods
shall be adjusted for comparison and ranking by adding 10% of the bid price
(after error correction, deviation adjustment, and any discounts) to that bid
price; incentive goods with a domestic production cost ratio below 50% will be
adjusted for comparison and ranking by adding 2.5% of the bid price (after
error correction, deviation adjustment, and any discounts) to that
bid price; bidders offering Vietnamese-origin
goods with a domestic production cost ratio below 50% and employing at least
50% disabled, war invalids, or ethnic minorities under valid 3-month contracts
or longer at the bid submission deadline are exempt from adding an
amount to the bid price for comparison and ranking;
b) For evaluated price selection, non-incentive goods will
be adjusted for comparison and ranking by adding 10% of the bid price (after
error correction, deviation adjustment, and any discounts) to the
bidder’s evaluated price; incentive goods with a domestic production cost ratio
below 50% will be adjusted for comparison and ranking by adding 2.5% of the bid
price (after error correction, deviation adjustment, and any
discounts) to the bidder’s evaluated price; bidders offering Vietnamese-origin
goods with a domestic production cost ratio below 50% and employing at least
50% disabled, war invalids, or ethnic minorities under valid 3-month contracts
or longer at the bid submission deadline are exempt from adding an amount to
the bid price for comparison and ranking;
c) For quality- and cost-based selection
(QCBS), incentive goods with a domestic production cost ratio at least 50%
receive an incentive point added to their aggregate score based on the
following formula:
Incentive point= 10% x (incentive good price/bid price
(after error correction, deviation adjustment, and any discounts)) x aggregate
score
Where: Incentive good price is the bid price (after error
correction, deviation adjustment, and any discounts) of the good with a
domestic production cost ratio at least 50%.
Incentive goods with a domestic production cost ratio below
50% will apply the formula in point c clause 1 of this Article; bidders
offering Vietnamese-origin goods with a domestic production cost ratio below
50% and employing at least 50% disabled, war invalids, or ethnic minorities
under valid 3-month contracts or longer at the bid submission deadline qualify
for a 10% incentive coefficient.
d) In cases stipulated in points a, b, and c of this
Clause, bidders offering Vietnamese-origin goods with a domestic production
cost ratio below 50% and employing at least 50% disabled, war invalids, or
ethnic minorities under valid 3-month contracts or longer at the bid submission
deadline shall be eligible for a 12% incentive coefficient instead of 10%;
3. Incentives for
innovative Vietnamese-origin products and products stipulated in point i Clause
1 Article 10 of the Law on Bidding are determined as follows:
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b) For evaluated price selection, non-incentive goods shall
be adjusted for comparison and ranking by adding 15% of the bid price (after
error correction, deviation adjustment, and any discounts) to that bid price;
incentive goods with a domestic production cost ratio below 50% will be
adjusted for comparison and ranking by adding 7.5% of the bid price (after
error correction, deviation adjustment, and any discounts) to that
bid price; incentive goods with a domestic production cost ratio at least 50%
will be adjusted for comparison and ranking by adding 5% of the bid price
(after error correction, deviation adjustment, and any
discounts) to the bidder’s evaluated price;
c) For quality- and cost-based selection (QCBS), bidders
offering innovative Vietnamese-origin products and products stipulated in
point i Clause 1 Article 10 of the Law on Bidding receive an incentive point
added to their aggregate score based on the following formula:
Incentive point= 15% x (incentive good price/bid price
(after error correction, deviation adjustment, and any discounts)) x aggregate
score
Where: Incentive good price is the bid price (after error
correction, deviation adjustment, and any discounts) of the innovative Vietnamese-origin product;
Non-innovative Vietnamese-origin products and products
other than products stipulated in point i Clause 1 Article 10 of the Law on
Bidding, bidders offering Vietnamese-origin goods with a domestic production
cost ratio below 50% shall be eligible for a 15% incentive coefficient instead
of 7,5%; Vietnamese-origin products with a domestic production cost ratio
at least 50% shall be eligible for a 15% incentive coefficient instead of 10%.
d) For quality-based selection (QBS), bidders offering
innovative Vietnamese-origin products and products stipulated in point i Clause
1 Article 10 of the Law on Bidding will be adjusted for comparison and ranking
by adding 7.5% of the aggregate score to the bidder’s aggregate score.
4. Innovative Vietnamese-origin
products receive incentives according to Clause 3 of this Article if they are:
a) Products falling under the list of high-tech products
prioritized for investment and development or encouraged for development, as
designated by the Prime Minister's decision;
b) Products, goods resulting from special scientific,
technological, and innovative tasks, products, goods resulting from domestic
scientific, technological, and innovative tasks as prescribed by the law on
science, technology, and innovation;
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d) Semiconductor chip products;
dd) Products that have won the Ho Chi Minh awards, state
awards for science and technology as stipulated by laws on emulation and
commendation and laws on science, technology, and innovation;
e) New products created from research and development
results at one of the facilities of the National Innovation Center or
national-level innovation centers, provincial-level innovation centers;
g) New products created from research and development
results and recognized in accordance with the law on technology transfer.
Innovative products specified in this Clause are entitled
to incentives for a period of 6 years from the first-time production and
meeting the conditions for placing on the market.
5. Domestically circulated
Vietnamese-origin goods (goods manufactured in Vietnam) are entitled to
the following incentives:
a) Drugs:
Criteria for determining domestically-produced drugs
eligible for incentives comply with the guidelines provided by the Ministry of
Health;
b) For goods other than those specified in Point a of this
Clause and point i Clause 1 Article 10 of the Law on Bidding:
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Direct formula: D (%) = G*/G x 100%
Indirect formula: D (%) = (G - C)/G x 100%
Where:
G*: is the domestic production cost;
G: is the quoted price of the goods in the bid or proposal
minus the tax value; for bidders who are manufacturers, G is the ex-works price
(EXW price) of the goods;
C: is the value of foreign import costs, excluding taxes and
fees related to import;
D: is the percentage of domestic production costs of goods. If
D ≥ 30%, then those goods are entitled to incentives according to this Article
and Articles 7, 8, 9, 10, and 11 of this Decree.
For products specified in point i Clause 1 Article 10 of
the Law on Bidding, goods eligible for incentives are determined in accordance
with the laws managing sectors and fields.
Article 7. Incentives for international bidding
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a) For least-cost selection (LCS), non-incentive bidders
shall be adjusted for comparison and ranking by adding 7.5% of the bid price
(after error correction, deviation adjustment, and any discounts) to that
bid price;
b) For quality-based selection (QBS), incentive bidders
will be adjusted for comparison and ranking by adding 7.5% of the technical
score to the bidder’s technical score;
c) For quality- and cost-based selection (QCBS), incentive
bidders will be adjusted for comparison and ranking by adding 7.5% of the
aggregate score to the bidder’s aggregate score;
2. For non-consulting,
construction, and mixed packages:
a) a) For least-cost selection (LCS), non-incentive bidders
shall be adjusted for comparison and ranking by adding 7.5% of the bid price
(after error correction, deviation adjustment, and any discounts) to that
bid price;
b) For evaluated price selection, non-incentive goods will
be adjusted for comparison and ranking by adding 7.5% of the bid price (after
error correction, deviation adjustment, and any discounts) to the
bidder’s evaluated price;
c) For quality- and cost-based selection (QCBS), incentive
bidders will be adjusted for comparison and ranking by adding 7,5% of the
aggregate score to the bidder’s aggregate score;
d) For quality-based selection (QBS), incentive bidders
will be adjusted for comparison and ranking by adding 7,5% of the technical
score to the bidder’s technical score.
3. For goods procurement
packages, the application of incentives for Vietnamese-origin goods shall
comply with Article 6 hereof; the application of incentives for products
specified in point i Clause 1 Article 10 of the Law on Bidding shall comply
with Clause 3 Article 6 hereof.
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5. Incentives for domestic
bidders that produce Vietnamese-origin goods shall comply with Article 10
hereof
6. Incentives for
information technology services specified in point i Clause 1 Article 10 of
the Law on Bidding shall comply with Clauses 1 and 2 hereof.
Article 8. Incentives for domestic bidding
1. For goods procurement
packages, the application of incentives for Vietnamese-origin goods shall
comply with Article 6 hereof; the application of incentives for products
specified in point i Clause 1 Article 10 of the Law on Bidding shall comply
with Clause 3 Article 6 hereof.
For goods procurement packages with a package price under
500 million VND, the decision to only allow bidders employing at least 50%
disabled, war invalids, or ethnic minorities under valid 3-month contracts or
longer at the bid submission deadline to participate in the procurement shall
be made by the employer. In cases where the employer decides to apply this
requirement but no bidders participate or no bidders meet the criteria, it will
be re-organized to allow participation from a wider pool of bidders.
2. For construction
packages with a package price of up to 5 billion VND, incentives for micro and
small enterprises shall comply with point dd Clause 2 Article 10 of the Law on
Bidding.
3. Incentives
for individuals, domestic innovative start-ups, and domestic bidders shall
comply with Article 9 hereof.
4. Incentives for domestic
bidders that produce Vietnamese-origin goods shall comply with Article 10
hereof
5. Incentives for
information technology services specified in point i Clause 1 Article 10 of
the Law on Bidding shall comply with Clauses 1 and 2 Article 7 hereof.
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1. Domestic innovative
start-ups offering innovative products specified in Clause 4 Article 6 hereof
are exempted from the revenue and same-industry operational history
requirements (within 6 years of qualified product launch).
2. Domestic bidders
specified in point g Clause 1 Article 10 of the Law on Bidding that offer their
own products or services are exempted from the competition assurance conditions
in evaluation criteria for eligibility and capacity requirements within 5 years
from the date of recognition by the competent authority.
3. When goods of
individuals, group of individuals, or innovative start-ups which qualify as
innovative products specified in Clause 4 Article 6 hereof participate in
bidding, they are entitled to incentives according to Clause 3 Article 6
hereof.
4. When services of
innovative start-ups which qualify as innovative products specified in Clauses
1 and 2 Article 7 hereof participate in domestic or international bidding, they
are entitled to incentives according to Clauses 1 and 2 Article 7 hereof.
Article 10. Incentives for domestic bidders that produce
Vietnamese-origin goods
1. For domestic bidders
adopting transferred technology to produce Vietnamese-origin goods in
accordance with the bidding documents:
a) They are exempt from the revenue and same-industry
operational history requirements (within 5 years of qualified product launch);
b) Transferred technologies on the lists for investment
incentives and technology transfer are exempt from the requirements of
demonstrating successful operation and user confirmation of quality, in
addition to the incentives in point a of this clause. If the technology
transferor guarantees the quality of products produced by the bidder at the
employer's request, the technology transferee (bidder) can use the transferor's
data and test results to demonstrate the transferred technology's effectiveness
and suitability for the produced goods. This evidence can be based on the
technology transfer contract or technology transfer certificate issued in
accordance with Clause 4 hereof by a competent authority;
c) All participating bidders will be evaluated on the same
basis for capacity, experience, goods quality, technical requirements, and
other package requirements, except for those specified in points a and b of
this clause. Where
necessary, the employer can make additional requests to bidders receiving
incentives, including: extended warranty period, stricter production quality
control, factory testing, and comprehensive operation and maintenance services,
and other services to ensure reliable product operation.
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a) They are exempt from the revenue and same-industry
operational history requirements (within 5 years of qualified product launch
before the bid submission deadline). Bidders are entitled to this incentive from the time the
bidder is established but not more than 7 years from the bid submission
deadline;
b) They receive incentives as prescribed in Point b, Clause
1 of this Article for the technology transfer component from other entities (if
any).
3. Individuals and groups
of individuals offering innovative products specified in Clause 4 Article 6
hereof are exempted from the revenue and same-industry operational
history requirements (within 6 years of qualified product launch).
4. Domestic bidders
adopting transferred technology or technology encouraged for transfer to
produce Vietnamese-origin goods shall be determined on the basis of Certificate
of registration of technology transfer, Certificate of technology encouraged
for transfer in accordance with technology law and investment law.
Article 11. Incentives for products and services certified
with ecology labels, energy labels and equivalent
1. Products and services
certified with ecology labels, energy labels and equivalent as per the law are
entitled to incentives according to Clause 3, Article 10 of the Bidding Law.
2. The employer, based on
the package nature and usage needs, may specify requirements for purchasing
products, services certified with eco-labels, energy labels, and equivalents in
RFPs and bidding documents, based on the compliance with Clause 3 Article 4 of
the Law on Bidding; and specify price evaluation formula for prioritizing
products, services certified with eco-labels, energy labels, and equivalents.
Article 12. Sustainable bidding
Based on the package nature, the employer may specify
sustainable bidding requirements in the bidding documents and RFPs in one or
more of the following methods:
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2. Specifying the price
evaluation formula, which quantifies the sustainability factors of bidding into
the price evaluation formula for comparison and ranking of bidders.
Article 13. Rules of applying contractor selection methods
1. The investor may select
to apply contractor selection methods in accordance with Article 29b of the Law
on Bidding.
2. If the package meets
the conditions for applying online quotations under simplified procedure and
online procurement stipulated in Clause 3 Article 99, Article 103 hereof but
the investor decides not to apply these methods, the competitive bidding or
shopping method shall apply in accordance with Article 21 and Article 24 of the
Law on Bidding.
Article 14. Contractor selection fees
1. For international
bidding, the employer will determine, based on the project scale and
nature, the purchase price of the electronic bidding document or
RFP to be paid by bidders, aligning with international practices.
For state-funded packages, revenues from selling
electronic bidding documents or RFPs shall be transferred by the employer to
the state budget according to the State Budget Law. For non-state-funded
packages, revenues from selling electronic bidding documents or RFPs are
the employer's revenues and are managed and used according to the
employer's financial mechanism.
2. Fees
for preparation and appraisal of documentation during the contractor
selection process:
a) The fee for hiring a bidding
consultant to perform any work during contractor
selection process is not subject to the fees outlined in
Clauses 3, 4, 5, 6, and 7 hereof;
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c) If an expert team or appraisal team is established by
the employer to prepare and evaluate prequalification documents, EOI requests,
bidding documents, and RFPs; to evaluate prequalification applications, EOI
responses, bids, and proposals; to appraise contractor selection results, the
costs incurred in their tasks are included in the contractor selection cost
estimate according to Clauses 4, 5, 6 and 7 of this Article;
d) The costs specified in Clauses 3, 4, 5, 6 and 7 of this
Article are determined in the total estimated investment, procurement estimate,
investment preparation estimate, or recurrent expenditure estimate of the
agency;
dd) The management and use of the costs specified in
Clauses 3, 4, 5, 6 and 7 of this Article are carried out according to the
employer's financial mechanism.
3. The fee
for preparing or appraising the overall contractor selection plan
is 0.5% of the feasibility study report fee, capped at a minimum of
5,000,000 VND and a maximum of 40,000,000 VND.
4. Fees for preparing
and appraising documentation:
a) The fee for preparing an EOI
request or prequalification document is 0.1% of the package
price, capped at a minimum of 2,000,000 VND and a maximum of 30,000,000 VND;
b) The fee for appraising an EOI
request or prequalification document is 0.06% of the package
price, capped at a minimum of 2,000,000 VND and a maximum of 30,000,000 VND;
c) The fee for preparing bidding documents or RFP
is 0.2% of the package price, capped at a minimum of 3,000,000 VND and a
maximum of 60,000,000 VND;
d) The fee for appraising bidding documents or
RFP is 0.1% of the package price, capped at a minimum of 2,000,000 VND and
a maximum of 60,000,000 VND.
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a) The fee for evaluating an EOI response
or prequalification application is 0.1% of the package price, capped
at a minimum of 2,000,000 VND and a maximum of 30,000,000 VND;
b) The fee for evaluating a bid or proposal
is 0.2% of the package price, capped at a minimum of 3,000,000 VND and a
maximum of 60,000,000 VND;
6. The fee for
appraising the contractor selection result, including cases where no
bidder is selected, is 0.1% of the package price, capped at a minimum of
3,000,000 VND and a maximum of 60,000,000 VND.
7. The fee
for preparing and appraising EOI requests, prequalification documents,
bidding documents, or RFPs for similar packages within the same project or
procurement by the same employer, or for packages requiring contractor
selection reorganization, is capped at 50% of the fee specified in
Clause 4 of this Article. If a part of a divided package needs to be
re-bid, the maximum fee is 50% of the estimated value of the
re-bid part. If contractor selection needs to be reorganized, the
contractor selection cost will be calculated based on the specific
circumstances of the package and added to the project and procurement estimate. In case of international
bidding, the document translation fee is calculated in
accordance with market prices, ensuring the effectiveness of the package.
8. The petition fee
paid to the Petition Resolution Council (hereinafter referred to as “Advisory
Council”) regarding selection results is calculated as a percentage of the bid
price of the petitioning bidder, as follows:
a) For bid price less than 50,000,000,000 VND, the rate is
0.03%, but not less than 5,000,000 VND;
a) For bid price from 50,000,000,000 VND to less
than 50,000,000,000 VND, the rate is 0.025%, but not less than 15,000,000
VND;
c) For bid price from 100,000,000,000 VND to less than
200,000,000,000 VND, the rate is 0.02%, but not less than 25,000,000 VND;
d) For bid price from 200,000,000,000 VND, the rate is
0,015%, but not less than VND 40.000.000 and no greater than 60,000,000
VND.
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9. Fees for contractor
selection on VNEPS include:
a) The fee for maintaining the name and capacity
profile of the bidder on VNEPS is 330,000 VND for 1 year (including value added
tax). Bidders
pay this fee from the second year onwards after the year of
registration to participate in VNEPS;
b) The fee for submission of bids on VNEPS is 330,000 VND
for 1 package (including value added tax) for competitive bidding, limited
bidding, online quotation under ordinary procedures; 220,000 VND
for 1 package (including value added tax) for shopping method;
c) The winning bidder fee for a package under
competitive bidding, limited bidding, shopping method, or online bidding under
ordinary procedures, applying online bidding:
For undivided packages: 0.022% of the successful bid but not
greater than 2,200,000 VND (including value added tax).
For packages divided into multiple parts, total winning
bidder fee for all winning bidders must not exceed 2,200,000 VND (value added
tax included). In case the value of 0.022% multiplied by the total
successful bid of the package is lower or equal to 2,200,000 VND, the winning
bidder fee of each bidder is 0.022% of the total successful bid for
the package part that the bidder wins. In case the value of
0.022% multiplied by the total successful bid of the package exceeds 2,200,000
VND, the winning bidder fee of each bidder is calculated according to the
following formula:
The winning bidder fee (including value added tax) =
2,200,000 VND x (total successful bid for the package part that the bidder
wins/total successful bid of the package);
d) The connection fees for electronic bid security between
VNEPS and various institutions are determined by agreements between the VNEPS
operator/supervisor and these entities, which include domestic credit
institutions, branches of foreign banks established under Vietnamese law,
domestic non-life insurers, and branches of foreign non-life insurers established
under Vietnamese law.
10. Bidders are
responsible for paying the fees stipulated in Clause 9 hereof. If the bidder
fails to make payment by the payment deadline, its account shall be suspended
and the bidder may not perform any transactions via VNEPS until the payment
obligations are fulfilled as prescribed.
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1. Detailed expenditures: direct remuneration for
members of the Advisory Council to perform tasks, per diem, expenditures on
stationery, translation and interpretation, printing, meetings and other
expenses serving the resolution of petitions.
The use of funds to pay
the Advisory Council for resolving petitions shall be performed in lump-sum
payments. The total amount of expenditures must not exceed the fee that the
petitioner has paid as prescribed in Clause 8, Article 14 of this Decree.
2. If the bidder's
petition is upheld, the petitioner shall be refunded the amount equal to the
amount already paid.
3. The bidder shall not be
refunded the amount already paid in the following cases:
a) One or more aspects of the bidder's petition are
determined to be incorrect;
b) The bidder withdraws the petition during the resolution
process.
Article 16. Preparation, submission, appraisal of, and
approval for the overall contractor selection plan for the project
1. Depending on the
project bidding's scale and nature, the employer (if appointed) may
request the competent person to consider developing an overall contractor
selection plan. If the employer has not been appointed yet, the agency assigned
to prepare the project may request the competent person to consider developing
an overall contractor selection plan.
2. If the competent person
approves the development of an overall contractor selection, the employer or
the agency assigned to prepare the project if the employer is not yet
determined (hereinafter referred to as employer) shall use the following
documents to create the plan:
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b) Project approval (if any);
c) International treaties, loan agreements for ODA-funded
projects, concessional loans from foreign sponsors (if any);
d) Project financing plan or project funding source plan
(if any);
dd) Relevant legal documents (if any).
The overall contractor selection plan includes the contents
specified in Article 17 of this Decree. The employer may hire a
consultant to make an overall contractor selection plan for the project in case
the employer's personnel are not qualified to do that.
3. The employer is
responsible for submitting the overall contractor selection plan to the
competent person for review and approval.
4. Based on the
request for approval for the overall contractor selection plan, the competent
person shall approve the overall contractor selection plan after approving the
project itself. The contents of contractor selection plan must align with the approved
overall contractor selection plan; if there are any deviations, the employer
shall report them to the competent person for consideration and decision
without resubmitting and reapproving the overall plan.
5. The employer is
responsible for publishing the overall contractor selection plan on VNEPS
within 5 working days from the date on which the document is issued.
Article 17. Contents of the overall contractor selection
plan for the project
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Determine specific requirements and objectives of the
project, analyze factors in the project execution context that can impact
bidding activities; the bidder's willingness to bid; factors include: legal regulations,
economic, social, technological factors, sustainable bidding, and other
factors.
2. Evaluation of the
employer's capacity, resources, and experience:
The evaluation of the employer's capacity, resources, and
experience in bidding includes:
a) The capacity to carry out the contractor selection
process from the contractor selection overall plan (if any) to contract
management;
b) The employer's bidding performance, through the
following indicators: the average savings rate; the average number of
bidders participating in competitive bidding, limited bidding, shopping, online
quotation under normal procedures, the percentage of packages with
only one participating bidder under competitive bidding, limited
bidding, shopping, or online quotations under normal procedures, in the total
number of packages; percentage of packages with petitions on other contents
during the contractor selection process, contractor selection results; the
number of instances where the employer did not respond to requests for
clarification on bidding documents or bidders’ petitions regarding bidding
documents, other aspects in the contractor selection process and contractor
selection results; other indicators (if any);
c) Experience in executing similar projects, resolving
petitions in contractor selection, complaints and denunciations;
d) Other factors.
3. Market analysis and
consultation:
a) Market analysis and consultation include assessment of
market risks and opportunities associated with the chosen contractor selection
method; bidder's ability to participate in the bidding process; market
landscape for goods and services needed for the project; market trends that
could impact project execution. Based on the scale and nature of the package,
market analysis and consultation include the following information: the
availability of goods and services needed for the package on the market; costs
that may incur in cases where it is necessary to apply innovative and creative
solutions; content of warranty terms and contract types commonly applied to
packages for procurement of similar goods and services from other employers;
legal regulations (if any) for goods and services needed for the package; the
ability to apply sustainable bidding, procurement of environmentally friendly
services, information about goods and services that use recycled and
energy-saving materials; the accessibility of the bidding process for the
following groups: small and micro enterprises, IDEs, businesses that employ
many female workers, war invalids, people with disabilities, and ethnic
minorities; supply chain analysis (ability to provide supplies, materials,
goods, and services for contract performance); the feasibility of a contractor
selection process that exclusively allows bids for Vietnamese-origin goods
according to Point e, Clause 3, Article 10 and Clause 1, Article 56 of the
Bidding Law and other necessary information;
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c) The employer can hire consultants to research and
analyze the market, use the advice of experts or independent authorities or
businesses in the market in making an overall contractor selection plan, specific
contractor selection plan, bidding documents, RFPs but must ensure the
principles of competition, fairness and transparency;
d) In case of not making an overall contractor selection
plan, the employer can conduct market analysis and consultation to prepare a
specific contractor selection plan, bidding documents, and RFPs.
4. Risk identification and
management in bidding:
a) Analyze main risks related to the operating environment,
market conditions, the capacity of the entity that organize contractor selection
and the complexity of bidding activities;
b) Assess the likelihood and impact of each risk on the
project's bidding;
c) Develop a management plan and minimize risks in the
project's bidding through the application of appropriate forms and methods of
contractor selection, technical requirements, standards and methods of
evaluation of contract conditions.
5. Specific objectives of
bidding activities:
Identify specific objectives of bidding activities
(including specific objectives on sustainable procurement, if applicable) to
ensure the overall objectives of the project.
6. Plan
on schedule of main tasks and the package:
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7. Management of
contractor selection:
a) Package division: the package division is based on the scale and nature of
the project's tasks, project execution progress and based on the results of
market analysis and consultation; determine the number of packages and the scope
of work of each package, identify packages to be divided into many parts;
b) Form and method of contractor selection: determine
the appropriate form and method of contractor selection for each package of the
project, clearly stating whether the package applies centralized procurement,
whether the package applies shortlisting, domestic or international bidding;
c) Contract type: determine the appropriate contract type for each package;
d) Key considerations when developing bidding documents,
RFPs, and managing contract performance (if any).
Article 18. Package price and contractor selection
duration
1. The package price
accurately reflects all costs to perform the package, including: contingency
costs (price slippage and volume variations), fees, charges and taxes. For construction packages
applying fixed unit price and adjustable unit price contracts, contingency
costs include provisional amounts (if any) and are only used when they incur. Packages with a short
performance duration and little possibility of risks or price slippage may have
a zero contingency cost for price slippage. Contingency costs are determined by
the employer according to the nature of each package but must not exceed the
maximum level prescribed by law (if any). In case the law stipulates that the
goods are exempt from taxes or free of charge, the package price does not
include exempted taxes and fees. The package price is updated within 28 days before the bid
opening date if necessary.. In case the package consists of many separate parts,
clearly state the estimated value of each part.
2. Grounds for determining
package price:
The package price is established based on one of the
following information:
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b) Description and scope of work, number of experts,
performance duration, capacity and experience of consultants, expert salaries
in accordance with law (if any) and other factors;
Ministries responsible for managing the labor sector shall
take lead and cooperate with other relevant ministries and agencies to issue
regulations on salaries of domestic consultant experts to serve as the basis
for determining package price specified in this point;
c) Contractor selection results for similar goods and
services for a maximum period of 12 months before the date of submitting the
specific contractor selection plan, which may be adjusted based on changes in
procurement volume or market prices for the goods or services needed so as to
determine the package price. The market price at procurement time can be determined
through market consultation specified in Point b, Clause 3, Article 17 of this
Decree. If no similar goods or services were procured within the past 12
months, the package price shall be determined by contractor selection results
for similar goods or services from previous years, adjusted for changes in
procurement volume and market prices. When submitting the specific contractor selection plan, the
employer attaches a list of selection results of similar goods and services
extracted from VNEPS (if any);
d) At least one quotation is required for goods or
services; collecting more than one quotation is encouraged. If multiple
quotations are received, the average price should be used.
For packages for procurement of drugs; chemicals, testing
supplies, medical equipment; components, accessories, and replacement materials
used for medical equipment: based on specialized requirements, the employer decides on
technical criteria and requests for quotations. The employer shall publish a
request for quotations on VNEPS. It is encouraged to publish such request on
its portal or website, Ministry of Health’s portal, or public service portal on
medical device management. Bidders must submit quotations within a minimum
period of 10 days from the date on which the request for quotations is
published on VNEPS. If there are two or more quotations, the employer may
choose the highest quotation that aligns with their budget and professional
requirements.
For other goods and services, the employer may publish the
request for quotations on VNEPS or other methods; bidders must submit
quotations within a minimum period of 5 days from the date on which the request
for quotations is published on VNEPS.
The employer is responsible for collecting quotations in a
public and transparent manner. The quoting entity must provide accurate prices of goods or
services based on their supply capabilities; and ensure the quotation complies
with competition law, anti-dumping regulations, and fair pricing practices;
dd) Price appraisal results of an organization with the
function of providing price appraisal services or of the price appraisal
council in accordance with regulations (if any);
e) List prices of manufacturers, importers, agents,
distributors, suppliers, businesses;
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3. For divided packages,
the package price shall be determined based on information stipulated in Clause
2 hereof, where each part of the package may be based on different contents of
information stipulated in Clause 2 hereof.
4. The employer can
consider sustainable bidding factors as prescribed in Article 12 of this
Decree and environmentally friendly products and services when determining the
package price. In
this case, the package price includes the costs necessary to meet sustainable
bidding requirements.
5. For contractor
selection within the procurement estimate, the employer must state the
following contents in the specific contractor selection plan:
a) The state budget estimates approved by competent
authority according to the budget year or expected budget estimate to be
allocated in the budget year or expected budget estimate to be allocated in
next years in case of procurement for the next year or procurement for many
years; expected legal financial resources in the fiscal year or expected legal
financial resources for the following years in case of procurement for the next
year or procurement for many years;
b) Value of procurement performed in the fiscal year or
budget year;
c) The part of the budget not used for procurement;
d) The procurement estimate, calculated by subtracting the
budget specified in points b and c from the budget specified in point a of this
Clause . The employer is not required to appraise or approve the procurement
estimate.
In case the employer has available funds for procurement in
the budget year or fiscal year and does not use the expected revenue for the
year, it is not required to determine the procurement estimate according to
this Clause. In this case, the procurement estimate is the available funding
for procurement in the budget year or fiscal year.
In case the package has a contract performance period
longer than 1 year or the effective date of the contract and the date of
completion of contract obligations are not in the same financial year, clearly
state the procurement estimate of the budget year or fiscal year and estimated
procurement estimates for the following years.
Employers are responsible for ensuring
adequate funds to pay the contract each year. Payments for each year are made after the annual
expenditure estimate is approved.
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7. Based on the scale,
nature, and progress of the project or package, the employer shall decide the
contractor selection duration for each package, which is the number of days
from the date of issuing bidding documents/RFPs to the date of receiving the
contractor selection results, incorporating appraisal time. In case the package
applies the short list selection procedure, the contractor selection duration
is from the date of issuing the prequalification documents and EOI requests
until the date of contractor selection results.
If necessary, the time for evaluating bids,
proposals, and appraisal can be clearly stated.
8. For the approved
estimates as prescribed in point c Clause 8 Article 39 of the Law on Bidding
and Clause 2 Article 140 of this Decree, in the case where there are
regulations on preparation and authority for approval of estimates, the
preparation and approval of estimates shall comply with these regulations;
otherwise, the investor or the competent authority shall approve the estimates.
Article 19. National database on bidders and quality of
goods used
1. National database of
bidders includes:
a) Information about the bidders’ legal status;
b) Information about the bidder's violations;
c) Information about the bidder's capacity and experience,
including: financial
statements or documents on revenue and net assets; the implementation of tax
declaration and tax payment obligations; financial resources; key personnel;
major machinery and equipment; contracts completed or ongoing under its
execution, production capacity, contracts with public main contents within the
scope of the Bidding Law;
d) Information about the bidder's reputation in
participating in bidding, including information about violations during the
bidding process specified in Clause 1 Article 20 of this Decree;
dd) Information about the bidder's contract performance
results, including information specified in Clause 3 Article 20 of this
Decree and information about the contract performance process;
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2. National database on
quality of goods used includes the following information:
a) Name of goods;
b) Origin, manufacturer, marking, label;
c) Main specifications;
d) Employer, goods users;
dd) Quality of goods as prescribed in Clauses 5, 6 and 7,
Article 20 of this Decree;
e) Other information.
3. The national database
on bidders and quality of goods used is regularly updated to ensure objective
and truthful information for contractor selection.
4. The Ministry of Finance
elaborates this Article.
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1. Except in cases where
the bidder is simultaneously ranked first in multiple packages or due to force
majeure, the bidder's reputation in participating in the bidding will be
assessed when performing the following acts:
a) The bidder fails to participate in, or refuses document
verification, or has completed the document verification but refuses to sign
the document verification minutes during the bid or proposal's validity period;
b) The bidder fails to participate in, or refuses contract
negotiation (if any), or has participated in contract negotiation but
refuses to sign the contract negotiation minutes during the bid or proposal's
validity period, except for the case specified in Clause 7 Article 45 of this
Decree;
c) The bidder is selected as the winning bidder but does
not proceed or refuses to finalize the contract or framework agreement or fails
to sign the contract or framework agreement, except for the case specified in
Clause 4 Article 34 of this Decree;
d) The bidder has signed the framework agreement but does
not proceed or refuses to finalize the contract or fails to sign the contract.
dd) The bidder withdraw the bid, proposal after the bid
submission deadline and during the bid or proposal's validity period;
e) The bidder fails to submit the original copy of bid
security at the employer's request or fails to pay in cash, or fails to submit
a deposit in cheque, letter of guarantee, or certificate of surety bond
insurance in accordance with regulations of laws on bidding;
g) The successful bidder fails to furnish the required performance
security;
h) The bidder refuses or fails to accept the contract award
approval within 03 days from the date the employer request the bidder to accept
the contract award approval on VNEPS or has been awarded the contract but fails
to fulfill the commitments in its bid for shortened online quotation process;
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2. Within 7 working days
from the dates on which bidders commit any acts specified in Clause 1 of this
Article, the employer shall post the list of violating bidders and related
documents on VNEPS, specifically stating the dates on which the acts were
committed. For consulting service packages, information about the bidder's
reputation in participating in bidding serves as basis for technical evaluation
(if any). For other packages, bidders in this list must provide bid security
with a value three times higher than the required value for other bidders
within a period of 02 years from the last time they committed the acts
specified in Clause 1 of this Article without being considered the technical
evaluation during the contractor selection process.
3. Information about the
bidder's contract performance results includes:
a) Progress of contract performance;
b) Quality of goods, services, works, including incidents
that occur during contract performance (if any) and other relevant factors;
c) Violations of contract, termination of contract and
reasons;
d) Other information (if necessary).
4. The employer
or unit with procurement needs in centralized procurement shall
publish the bidder's contract performance results on VNEPS. Contract performance results
must be published for each contract, based on the completed work scope. The results can be
published during or after the package performance period but no later than 6
months from the period ends. If the warranty period is longer than 6 months, the
employer or unit with procurement needs in centralized procurement must
also update the bidder's contract performance results after completing the
warranty obligation (if any).
Within 20 days from the date on which the employer or unit
with procurement needs in centralized procurement posts information about
the bidder's contract performance results, the bidder may send feedback on
VNEPS. If the
bidder’s feedback is correct, the employer or the unit with procurement needs
in for centralized procurement is responsible for updating the
information.
5. Information on quality
of goods used includes:
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b) The severity of good defects and the actions taken to
remedy them, including replacement of goods (if any);
c) Frequency of defects and problems of goods and quality
of warranty, repair and remedial services (if any);
d) Reliability, durability, performance, capacity (if
necessary);
dd) Other information (if necessary).
6. Information on the quality
of goods used for drugs, testing supplies, medical equipment and supplies and
components for preparing the medical equipment shall comply with the law
on pharmacy, medical equipment.
7. The employer or unit
with procurement needs in centralized procurement shall publish the
quality of goods used as prescribed in Clause 5 of this Article on VNEPS. The quality can be
published during or after the package performance period but no later than 6
months from the period ends. If the warranty period is longer than 6 months, the
employer or unit with procurement needs in centralized procurement must
also update the quality of goods used after completing the warranty obligation
(if any).
Within 20 days from the date the employer or unit with
procurement needs in centralized procurement posts information about the
quality of goods used, the bidder may send feedback on VNEPS. If the bidder’s feedback
is correct, the employer or the unit with procurement needs in for
centralized procurement is responsible for updating the information.
8. The employer or unit
with procurement needs in centralized procurement shall take legal
responsibility for the truthfulness and objectivity of information on published
contract performance results and quality of goods used.
9. The database on
contract performance results and quality of goods used as prescribed
in clauses 3, 5, and 6 hereof is used as a basis for setting technical
evaluation criteria, forming formula for determining the evaluated price (if
any). If necessary, the employer may disclose additional information in
addition to the information specified in Clauses 3, 5 and 6 of this Article to
serve as a basis for setting technical evaluation criteria and forming formula
for determining the evaluated price (if any). The formulation of technical
evaluation criteria must not contain any restrictions that limit bidder
participation or give any bidder an unfair advantage, which may cause unfair
competition as prescribed in Clause 3, Article 44 of the Bidding Law.
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1. Members of the expert
team and appraisal team must meet the following requirements:
a) Have a professional certificate in bidding,
except for the cases specified in Clauses 2 of this Article;
b) Obtain at least a bachelor’s degree; for packages in the
fields of security, national defense, education, the investor shall decide to
select members to participate in the expert team, appraisal team to ensure the
members’ capacity;
c) Have active legal capacity as per the law; not being
prosecuted for criminal liability;
d) Have at least 3 years of work in one of the
fields related to the legal, technical, financial aspect of the package: have experience or
perform technical-related tasks stated in the EOI request, prequalification
document, bidding document, RFP or financial- or legal-related tasks.
2. For packages in projects related to science, technology,
and innovation as per the laws on science, technology, and innovation; projects
applying high technology as per the laws on high technology and projects
applying new technology as per the laws on technology transfer, the employer
may decides to select members to participate in the expert team, appraisal team
to ensure they have the capacity to perform the assigned tasks regardless of the qualifications in Points a and d Clause 1 of this
Article, except in cases where the members of
the expert team, appraisal team are individual consultants or individuals from
bidding consulting organizations
In case the opinion of specialized experts is needed, these
experts are not required to have a professional certificate in bidding.
3. For the medical
field, in the case where the employer does not have personnel who meet the
requirements specified in Clause 1 of this Article, they may mobilize and
assign tasks to personnel under their management authority or invite cadres
from the Department of Health, Ministry of Health, and experts in the medical
field to participate in the expert team, appraisal team without having to meet
the requirements at points a and b of this Article 1 or hire a consulting
entity. The
organization of contractor selection must meet the objectives of bidding which
are competition, fairness, transparency, economic efficiency, and accountability.
Article 22. Publicizing information on contractor selection
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a) Untrustworthy bidders
b) Contractors having their contract terminated due to
their faults;
c) Contractors that are prohibited from participating in
bidding activities as per laws on bidding and other violating organizations and
individuals.
The employer may modify this information by attaching the
decision on modifications and specifying the reasons for the modifications. The
employer shall take responsibility for the amended information.
2. The Ministry of Finance
shall elaborate regulations on posting, management, and use of information as
prescribed in Clause 1 of this Article.
Article 23. Registration and management of accounts on
VNEPS
1. Registration to
participate in VNEPS is carried out according to the following process:
a) Organizations and individuals fill into the registration
form created on VNEPS or National Public Service Portal (if any);
b) The organization submits an application on VNEPS or
National Public Service Portal (if any), including: Application form
specified in Point a of this Clause, which is electronically signed or
authenticated, stamped (if any) by the legal representative of the
organization; power of attorney (if any); establishment decision or enterprise
registration certificate, or registration certificate of household business,
cooperatives, cooperative union, or cooperative group, or other equivalent
documents in case the organization’s name is not listed on the National
Business Registration Information System;
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2. Update of account
information on VNEPS is done as follows:
a) Updated information includes: additions and
modifications to registered information; supplementing and modifying roles in
bidding activities; terminate, suspend, and restore participation status;
b) Organizations and individuals update account information
and perform digital signature confirmation on VNEPS.
3. The documentation
specified in Clause 1 of this Article will be processed within 2 working days
from the receipt of the request on VNEPS. The results of processing documentation are announced on
VNEPS, National Public Service Portal (if any), and e-mails.
4. Organizations and
individuals who provide false information according to Clause 2 hereof or
Articles 7 and 8 of the Law on Bidding shall have their accounts locked for 12
months upon detection.
5. In case where a bidding
consultant is hired to form the expert team, appraisal team or to provide
bidding consulting services, the consultant is not allowed to post the content
under the responsibility of the investor stipulated in Articles 7 and 8 of the
Bidding Law. In
case a bidding consultant, any organizations or individuals uses their account
to post information on behalf of the employer, the bidding consultant,
organization, or individual will have their account locked for 6 months upon
detection.
Chapter II
OFFLINE COMPETITIVE
BIDDING, LIMITED BIDDING FOR NON-CONSULTING, GOODS PROCUREMENT, CONSTRUCTION,
MIXED PACKAGES UNDER SINGLE-STAGE METHOD
Section 1. SINGLE-STAGE AND ONE-ENVELOPE METHOD
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1. Contractor selection
preparation, including:
a) Shortlisting (if necessary);
b) Prepare bidding documents;
c) Appraise (if any) and approve bidding documents.
2. Contractor selection
organization, including:
a) Invite bids;
b) Issue, modify and clarify bidding documents;
c) Prepare, submit, receive, manage, modify, and withdraw
bids;
d) Open bids.
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a) Check and evaluate the validity of bids:
b) Evaluate bids in details and rank bidders (if there is
more than 1 bidder);
c) Submit bid evaluation result;
4. The contract
negotiation (if any) shall comply with Article 45 of this Decree for goods
procurement packages, construction packages, non-consulting service packages
applying international bidding, mixed packages, and packages applying limited
bidding as prescribed in Clause 1 Article 22 of the Law on Bidding.
5. Appraise, approve, and
publicize the contractor selection result and explain reasons for unsuccessful
bidders upon their requests (if any).
6. Finalize, sign, and
manage contract performance.
7. Bidding in advance
stipulated in Article 42 of the Law on Bidding shall comply with Clauses 1, 2,
3, 4, and 5 hereof. The finalization, signing, and management of the contract
performance stipulated in Clause 6 hereof shall only be carried out after the
project has been approved for investment.
For goods procurement packages, in addition to
organizations, individuals and group of individuals may also participate as
bidders to offer their own innovative products in accordance with Clause 4
Article 6 of this Decree.
Article 25. Shortlisting
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1. For competitive
bidding:
a) Prepare prequalification documents:
The prequalification documents include the following
contents: brief description of the project, procurement estimate, package;
instructions on preparing and submitting prequalification applications;
evaluation criteria for the validity of prequalification applications; criteria
for bidder capacity and experience.
Prequalification applications are evaluated using pass/fail
criteria, which define the minimum acceptable level for each element of the
bidder's capacity and experience;
b) Appraisal and approval of prequalification applications:
The appraisal of prequalification applications is not
required; in cases where an appraisal is requested, it shall comply with
Article 135 of this Decree before approval. The approval of prequalification applications is done in
writing based on the approval report and appraisal report (if any) of the
prequalification documents;
c) Invitation for pre-qualification applications shall
comply with Point b, Clause 1, Article 8 of the Bidding Law;
d) Issue prequalification documents:
Prequalification documents are published for free on VNEPS; the preparation time for
prequalification documents must be at least 9 days for domestic bidding and 18
days for international bidding. Any modification must be made at least 3 working days
before the bid submission deadline;
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The employer shall confidentially receive and manage
prequalification applications until the preliminary results are announced;
e) Open and evaluate prequalification applications:
Prequalification applications are submitted by the deadline
and at the location specified in the prequalification documents and are opened
immediately after the bid submission deadline.
The record of the prequalification application
opening will be sent to participating bidders and posted on VNEPS within 24 hours
upon bid opening. Prequalification applications submitted after the bid
submission deadline are invalid, cannot be opened and will be disqualified. The evaluation of
prequalification applications is carried out according to the evaluation
criteria specified in the prequalification documents Bidders whose
prequalification applications meet all capacity and experience requirements
will be shortlisted.
Bidders who are individuals or groups offering innovative
products that meet the requirements in Clause 4, Article 6 of this Decree may
be exempt from certain criteria outlined in Clause 3, Article 10 of this
Decree.
g) Submit, appraise, and approve prequalification results:
The expert team shall prepare the prequalification
application and submit it to the employer for consideration without appraisal.
The prequalification application shall be appraised upon request of the
employer in accordance with Clauses 1 and 2 Article 136 of this Decree. Based
on the prequalification approval proposal report and appraisal report (if any),
the employer shall approve the results in writing. If a shortlist is
created, the prequalification approval shall specify successful bidders and
relevant notes (if any). If a shortlist is not created, the prequalification
approval must clearly state the reason/
h) Publish the shortlist: the shortlist will be posted as required in Point b Clause
1 and Clause 4 Article 8 of the Law on Bidding and shared with bidders who
submitted prequalification applications.
2. For limited bidding:
a) Identify and approve a shortlist of at least 3 bidders
who have the capacity and experience to meet the requirements of the package
and wish to participate in the bidding. If less than 3 bidders meet the requirements, follow the
procedures outlined in Clause 3, Article 140 of this Decree;
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3. Shortlisted bidders
cannot form a joint venture for this bidding process; If they participate as a
joint venture with a non-shortlisted bidder, it must be granted the
approval by the employer before the bid deadline.
Article 26. Preparation of bidding documents
1. Grounds for preparing
bidding documents:
a) Approved overall contractor selection plan (if any);
b) Approved specific contractor selection plan;
The draft bidding documents shall be made after the
contractor selection plan is approved or may be made during the formulation of
contractor selection plan but must ensure approval after the contractor
selection plan is approved
c) Documentation on design, drawings, and notes to the
package (if any);
d) Technical specifications of the package including: characteristics,
specifications, technology requirements, service quality, inspection, testing,
taking-over inspection and other technical requirements ( if any);
dd) Legal regulations on bidding and related laws;
international treaties and loan agreements (if any) for ODA-funded projects and
concessional loans;
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g) Other related grounds.
2. Bidding documents must
provide all necessary information for bidders to prepare competitive bids and
cannot contain any restrictions that limit bidder participation or give any
bidder an unfair advantage, which may cause unfair competition as prescribed in
Clause 3 Article 44 of the Law on Bidding. The bidding documents must contain:
a) Terms of instructions to bidders, additional purchase
option (if any);
b) Bid data sheet;
c) Evaluation standards for the validity of bidding
documents; bidder’s capacity and experience (if any); technical requirements;
financial, commercial requirements; results of previous similar contract
performance and quality of similar goods used.
In case of using special subcontractors, bidding
documents must specify the scope of work and requirements for the capacity,
experience of the special subcontractors
d) Bidding and bid forms;
dd) Scope of supply, technical requirements;
e) Contract conditions and forms;
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3. The bidding documents
must specify the criteria for evaluating the validity of bids, including:
a) There is the original bid;
b) There is a letter of bid signed and stamped by the
bidder's legal representative (if any) according to the requirements of the
bidding documents; the signing date of the letter of bid must be after the
issuance date of the bidding documents; do not propose different bid prices or
include conditions that are disadvantageous to the employer. For a joint venture
bidder, the letter of bid must be signed and sealed by the legal representative
of each joint venture party (if any) or the party assigned to by the joint
venture to sign the letter of bid according to the assigned responsibilities in
the joint venture agreement;
c) The validity of the bid meets the requirements as
prescribed in the bidding documents;
d) There is a bid security with value and validity period
and the beneficiary meets the requirements of the bidding documents. Bid security, in the form
of a bank guarantee or certificate of guarantee insurance, may not violate any
of the following requirements: their value or validity period must meet the
minimums specified in the bidding documents, the beneficiary name must be
correct, a valid signature must be present, the signature cannot be dated
before the bidding documents were issued, the document cannot contain any
conditions that disadvantage the employer. The bank guarantee or certificate of guarantee insurance
must be signed and stamped by a legal representative of a domestic credit
institution or foreign bank branch established under Vietnamese law, a domestic
non-life insurer, branch of foreign non-life insurer established under
Vietnamese law (if any). For insurance packages, participating bidders may not
present their own certificate of guarantee insurance; For pre-bid package
according to Article 42 of the Law on Bidding, bidders are not required to
provide bid security but they must commit in the bid to participate in bidding;
dd) The bidder is not named in two or more bids as an
independent bidder or a joint venture party;
e) There is a joint venture agreement (in case of joint
venture) signed and sealed by the legal representative of each joint venture
party (if any); the joint venture agreement must clearly state the specific
work each party will perform and the estimated value of each party's work. Work assignments within
the joint venture will be determined by: items listed in the bid price schedule
or tasks required to produce those items. Tasks unrelated to these items or the
production of these items must not be assigned.
The bidder must meet the eligibility requirements in
accordance with Article 5 of the Law on Bidding;
For international bidding, in cases where the
conditions for determining domestic bidders that are ineligible to
participate in any part of the package, the employer may conduct a survey on
VNEPS as follows: post a notice requesting domestic bidders to participate
accompanied by the bidding documents for domestic bidders to register for one
or several specific tasks of the package that they can undertake within at
least 05 working days; upon the registration deadline, if no domestic bidders
register, foreign bidders are not required to enter into a consortium with a
domestic bidder or subcontract domestic bidders. In this case, the bidding
documents shall not stipulate that foreign bidders are required to enter into a
consortium with a domestic bidder or subcontract domestic bidders.
h) In the 3 years before the bid submission deadline, the
bidder did not have employed personnel (signed a labor contract with the bidder
at the time they committed the violation) who were convicted by a court of a
bidding violation leading to serious criminal consequences, with the intent for
that bidder to win the contract.
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a) Evaluation criteria for capacity and experience:
Bidders’ capacity and experience are evaluated using
pass/fail criteria, which define the minimum acceptable level for each element
of the bidder's capacity and experience, including: experience in supplying
similar goods (if any); production capacity (if any), and financial capability
(net asset value, revenue); fulfillment of tax declaration and payment
obligations and other necessary indicators to evaluate the bidder's financial
capability; technical facilities, qualifications of professional staff to
perform related services (if required).
The specific requirements for each criterion will be
determined based on the individual package requirements. Bidders that are assessed
to meet all the criteria specified in this point meet the requirements for
capacity and experience.
For goods procurement packages, bidders who are individuals
or groups offering innovative products that meet the requirements Clause 4
Article 6 hereof may be exempt from certain criteria outlined in Clause 3
Article 10 hereof.
Bidders who are household businesses are exempt from
financial statements and the net asset value requirements.
b) Technical evaluation criteria:
Technical evaluation criteria are set based on pass, fail
criteria or scoring methods.
In case of using pass/fail method, for general evaluation
criteria, only pass/fail criteria are used. For basic detailed criteria in the general criteria, only
pass and fail criteria are used; for non-basic detailed criteria in the general
criteria, in addition to the pass and fail criteria, additional acceptable
criteria may be applied but must not exceed 30% of the total number of detailed
criteria in the general criteria. General criteria are assessed as passed when
all basic detailed criteria are assessed as passed and non-basic detailed
criteria are assessed as passed or acceptable.
In case a scoring method is used, the minimum score and
maximum score must be specified for each general criterion. The minimum scores
for basic detailed criteria can be specified in the general criteria; there is
no minimum score for non-basic detailed criteria. The minimum technical score is not
lower than 70% of the total maximum technical score. For a package with high
technical requirements, the minimum technical score is from 80% to 90% of the
total maximum technical score; for a package that need to be considered on the
basis of focusing on technical and price factors, the employer can stipulate
that the minimum technical score is not lower than 80% of the total maximum
technical score. Technical evaluation criteria are formulated on the
basis of factors on the ability to meet the requirements of quantity, quality,
delivery time, transportation, installation, warranty, and after-sales services
(if any), the bidder's contract performance results according to Articles 19
and 20 hereof and other requirements stated in the bidding documents. Based on each specific
package, when preparing bidding documents, it is necessary to specify the
criteria as a basis for technical evaluation, including: characteristics,
specifications of goods, production standards, manufacturing and technology
standards; the reasonableness and economic efficiency of technical solutions
and measures for supplying and installing goods; level of satisfaction of
warranty and maintenance requirements; the degree to which requirements for
providing supplies, replacement equipment and other related services (if any)
are met during the entire use process of the goods; geographical and
environmental adaptability; impacts on the environment and solutions; factors
of commercial conditions, delivery time, technology transfer training, and
after-sales services; goods supply progress; environmentally friendly factors;
the bidder's contract performance results according to Articles 19 and 20 of
this Decree; the quality of similar goods published according to Article 20 of
this Decree (if any); other necessary factors.
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d) Criteria for determining evaluated price (in case of
applying the evaluated price selection):
Formula for determining evaluated price:
GĐG = G ± ΔG + ΔƯĐ
Where:
G = (bid price ± error correction value ± deviation
adjustment value) - discounts (if any).
∆G is the value of factors converted into
one level for the entire life cycle of the goods including: delivery time; payment
schedule; costs of supplies and spare parts during the initial period;
availability of materials, spare parts and after-sales services for the goods
offered in the bid at the project location; life cycle costs; device
performance and capacity; elements of sustainable bidding (if any); the
bidder's contract performance results according to Articles 19 and 20 of this
Decree; the quality of goods used published according to Article 20 of this
Decree, including consideration of origin; other factors (if any).
∆ƯĐ is the value that must be added to
non-incentive subjects according to Points b and d Clause 1, Points b and d
Clause 2 and Point b Clause 3 Article 6 of this Decree.
5. Criteria for evaluating
bids for construction packages include:
a) Evaluation criteria for capacity and experience:
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The specific requirements for each criterion will be
determined based on the individual package requirements. Bidders that are assessed
to meet all the criteria specified in this point meet the requirements for
capacity and experience.
b) Technical evaluation criteria:
Technical evaluation criteria are set based on pass, fail
criteria or scoring methods.
In case of using pass/fail method, for general evaluation
criteria, only pass/fail criteria are used. For basic detailed criteria in the general criteria, only
pass and fail criteria are used; for non-basic detailed criteria in the general
criteria, in addition to the pass and fail criteria, additional acceptable
criteria may be applied but must not exceed 30% of the total number of detailed
criteria in the general criteria. General criteria are assessed as passed when
all basic detailed criteria are assessed as passed and non-basic detailed criteria
are assessed as passed or acceptable.
In case a scoring method is used, the minimum score and
maximum score must be specified for each general criterion. The minimum scores
for basic detailed criteria can be specified in the general criteria; there is
no minimum score for non-basic detailed criteria.
Technical evaluation criteria will assess a bidder's
ability to meet the requirements outlined in the design documents, scope of
work, and contract performance results, as detailed in Articles 19 and 20 of
this Decree and other requirements stated in the bidding documents. Based on each specific
package, when preparing bidding documents, it is necessary to specify the
criteria as a basis for technical evaluation, including: reasonableness and
feasibility of technical solutions, execution plans in accordance with proposed
construction progress; construction progress; project management methods,
including: project
management organization, field management organization; quality assurance
measures; assurance of environmental sanitation and other conditions such as
fire safety and labor safety; level of satisfaction of warranty and maintenance
requirements; environmentally friendly factors (if any), including: the use of
supplies, materials, execution plans, lines, construction technology and other
factors (if any); bidder's contract performance results according to Articles
19 and 20 of this Decree; other necessary factors. Requirements for mobilizing
key personnel and construction equipment are not required.
The bidding documents must allow bidders to propose
alternative construction methods, except in special cases where a specific
method is specified in the bidding documents due to the package's nature.
For construction work under the construction package, EC
package, the technical evaluation criteria require brand specifications
according to the brand group for materials, supplies, and other input factors
(inputs for construction as prescribed in construction laws for work items
specified in bidding documents which are not work items of the package). Bidders may offer brands
of materials, supplies, and other input factors as specified in the bidding
documents or other brands with equivalent or superior quality.
c) Determination of the lowest price (in case of applying
the least-cost selection) is carried out according to point c Clause 4 of
this Article;
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Formula for determining evaluated price:
GĐG = G ± ΔG
+ ΔƯĐ
Where:
G = (bid price ± error correction value ± deviation
adjustment value) - discounts (if any).
∆G is the value of factors converted into
one level for the entire life cycle of the construction work
including: construction completion progress; life cycle costs during
the entire use of the construction work; loan interest expenses (if any);
elements of sustainable bidding (if any); the bidder's contract performance
results according to Articles 19 and 20 of this Decree; other factors (if any).
∆ƯĐ is the value that must be added to
non-incentive subjects according to Point b Clause 2 Article 7 of this Decree.
6. For non-consulting and
mixed packages:
Based on the scale and nature of the package and the
provisions in Clauses 2, 4 and 5 of this Article, determine evaluation criteria
for capacity and experience; technical evaluation criteria; determine the
lowest price (in case the least-cost selection is applied) or the criteria for
determining the evaluated price (in case the evaluated price selection is
applied) accordingly.
7. Do not use the quality-
and cost-based selection for packages that apply the single-stage and
one-envelope method. For a package that needs to be considered on the basis of
focusing on technical and price factors, the employer can stipulate that the
minimum technical score is not lower than 80% of the total maximum technical
score.
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9. Regulations on
trademarks and origin of goods:
a) Except for the cases specified in point e Clause 3 Article
10, Clause 2 Article 44, Clause 1 Article 56 of the Law on Bidding and point b
Clause 5 hereof, bidding documents must not state requirements on the specific
trademarks or origin of the goods;
b) If bidding documents specify an origin requirement by
groups of countries or territories but exclude Vietnamese origin specified
in Clause 2 Article 44 of the Law on Bidding, Vietnamese goods can still be
evaluated;
c) The bidding documents may state the trademark or catalog
of a specific product for reference and illustration, followed by the phrase
"or equivalent". Additionally, the documents must clearly define what
constitutes an equivalent good in terms of technical specifications, usability,
and any other relevant aspects (if any).
10. Regulations on labor
use:
For international bidding, bidding documents must
prioritize the use of domestic workers for unskilled positions, where their
qualifications are suitable and the supply is available. Foreign workers can
only be employed when domestic workers are underqualified. Bids that fail to meet
the labor use requirements outlined in the bidding documents will be rejected.
11. Regulations on
additional purchase options (if any):
In case the specific contractor selection plan has
regulations on additional purchase options, the bidding documents must
stipulate the maximum volume and quantity of goods or services subject to the
additional purchase option in accordance with the approved specific contractor
selection plan.
12. Bidding documents must
not require a sales permit, a sales authorization letter from the manufacturer
or distributor, or a partnership certificate, manufacturer’s, or distributor's
technical support or warranty, or other documents of equivalent value
(hereinafter referred to as sales permit). For complex goods requiring the
manufacturer’s after-sales support (warranty, maintenance, repairs, parts,
technical support, etc.), the bidding documents may request a sales permit from
the bidder.
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Article 27. Appraisal of and approval for bidding documents
1. The appraisal of
bidding documents is not required; in cases where an appraisal is requested, it
shall comply with Article 135 of this Decree before approval.
2. Approval for bidding
documents must be based on the approval report and appraisal report of bidding
documents (if any).
Article 28. Organization of contractor selection
1. Invitation for bids:
a) Invitations to bid are applied according
to Point b, Clause 1, Article 8 of the Bidding Law if the shortlisting procedure
is not applied;
b) In case the package applies the shortlisting procedure,
invitations to bid will be sent to the bidders named on the shortlist.
2. Issue, modify and
clarify bidding documents:
a) The bidding documents are published on VNEPS; The preparation time for
bidding documents is at least 18 days for domestic bidding, 35 days for
international bidding; for construction packages, mixed packages with total
package price not exceeding 20 billion VND, package of goods procurement,
non-consulting services with total package price not exceeding 10 billion VND,
the preparation time for bidding documents is at least 09 days for domestic
bidding, 18 days for international bidding; in the cases where the package
meets the conditions for applying investor appointment method as prescribed in
Clause 1 Article 78 of this Decree, but the employer decides to apply
competitive bidding to select the contractor, the preparation time for bidding
documents is at least 09 days from the date on which the bidding documents are
issued until the bid submission deadline.
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c) In case the bidding documents need to be clarified, the
organization or individual shall send a written request for clarification on
VNEPS within at least 3 working days (for domestic bidding), 5 days (for
international bidding) before the bid submission deadline. The employer
shall post the clarifications to bidding documents on the VNEPS at least 2
working days before the bid submission deadline.
The clarifications to bidding
documents must not mention the name of the bidder that requested clarification. If necessary, the
procuring entity may organize a pre-bid meeting to discuss the content of
bidding documents. The notice of organization of the pre-bid meeting is posted
on VNEPS; all interested bidders are allowed to attend the pre-bid meeting
without prior notification to the employer. The employer must record the minutes of the pre-bid meeting
and post them on VNEPS. The minutes of the pre-bid meeting are considered
clarifications to the bidding documents.
Clarifications to bidding documents must not contradict the
approved bidding documents. In case the clarifications to the bidding documents leads
to the need to modify the bidding documents, the modifications of the bidding
documents shall comply with point b of this clause;
d) The decision on modifications or written
clarifications to bidding documents is an integral part of the
bidding documents.
3. Prepare, submit,
receive, manage, modify, withdraw bids:
a) Bidders prepare and submit bids according to the
requirements of the bidding documents.
The employer confidentially receives and manages bids until
the contractor selection results are announced.
Bids or documents submitted after the deadline
to modify or supplement the bid will be rejected, except for: clarifications
requested by the procuring entity; clarifications regarding eligibility,
financial statements, tax declaration and payment obligations, personnel and
equipment documents, similar contracts, production capacity to demonstrate the
bidder meets the requirements;
b) The employer, the expert team cannot disclose
information from one bid to another bidder, except for information disclosed at
the bid opening;
c) When there is a request to modify or withdraw the
submitted bid, the bidder must send a written request to the employer. The employer only accepts
the modifications or withdrawal of the bid when receiving a written request
before the bid submission deadline.
4. Bid opening:
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b) Minutes of bid opening:
The information specified in point a of this
clause must be recorded in the minutes of bid opening. The minutes of bid
opening must be signed by the representative of the employer and the bidders
attending the bid opening ceremony. The minutes will be sent to participating bidders and
posted on VNEPS within 24 hours upon bid opening;
c) The representative of the employer signs the original
letter of bid, letter of discount (if any), and the authorization letter of the
bidder’s legal representative (if any); joint venture agreement (if any); bid
security; financial proposals and important contents of each bid.
Article 29. Principles for evaluating bids
1. The evaluation of bids
must be based on the bid evaluation criteria and other requirements in the bidding
documents, based on the submitted bids and clarifications to bids to ensure the
selection of a bidder with sufficient capacity and experience and a feasible
solution to perform the package; any content within the bidding documents that
restricts competition, as defined in Clause 2, Article 26 of this Decree, will
be disregarded during bid evaluation.
2. The employer will allow
the bidder to make additions of and substitutions for key personnel (excluding
engineering (E) personnel in EPC, EP, EC, or turnkey
contracts) or major equipment if: the proposed personnel or
equipment does not meet requirements, the bidder cannot demonstrate the ability
to mobilize personnel (including cases where personnel have been mobilized for
another contract whose working time overlaps with the performance duration of
this package). The
bidder may only add or replace each key personnel position
and major equipment once within an appropriate period of time.
For domestic packages, the expert team shall evaluate the
content of key personnel, major construction equipment of construction
packages, PC packages, and construction parts in EC packages based on the
contractor's commitment in the bid without evaluating the contents stated in
the bid or attached documents in the bidding documents. After the financial
evaluation, the first-ranked bidder shall be evaluated on key personnel, major
construction equipment according to the declaration, and attached documents in
the bidding documents In cases where the declared content and attached documents
fail to meet the requirements, the employer shall request the bidder to clarify
the bid for supplementation or change of key personnel, major construction
equipment. The
supplementation, changes of key personnel, major construction equipment shall
be carried out a maximum of 02 times to ensure the compliance with requirements
of bidding documents as committed by the bidder.
If the bidder fails to make additions of and
substitutions to have its key personnel, major equipment met the requirements
of bidding documents as committed in the bid, such bidder shall be
disqualified, have its reputation assessed as prescribed in Article
20 of this Decree, and have its account blocked for a period of 03 months from
the date on which the employer publishes its name on VNEPS.
Any bidder found to declare key personnel and major
equipment untruthfully will be ineligible to propose substitutes. Their bid
will be disqualified, and they will be subject to fraud allegations as
per point b Clause 4 Article 16 of the Law on Bidding and be addressed
under Clause 1 Article 133 of this Decree.
3. If the proposed similar
contract in the bid does not meet requirements, the employer may request the
bidder to supplement or replace another similar contract for evaluation within
a reasonable timeframe.
4. For a divided package,
bid evaluation and award will prioritize the bid with lowest total proposed
winning price (for least-cost selection); or prioritize the bid with the
lowest total evaluated price (for evaluated price selection) and the
winning bid price for the entire package not exceeding the approved package
price, regardless of partial package estimates; for a package for procurement
of drugs, chemicals, testing supplies, medical equipment, and medical procedures,
the instructions of the Ministry of Health (if any) will apply.
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6. Deviation, reservation,
omission in bids:
a) “deviations” means departures from the requirements
specified in the bidding documents; “reservation” is the setting of limiting
conditions or withholding from complete acceptance of the requirements
specified in the bidding documents; “omission” is the failure to submit part or
all of the information or documentation required in the bidding documents;
b) Provided that a bid is substantially responsive to the
requirements of the bidding documents, the procuring entity may accept nonconformities
that are not deviations, reservations, or omissions;
c) Provided that a bid is substantially responsive to the
requirements of the bidding documents, the employer may require the bidder to
provide necessary information or documents within a reasonable duration for
correction of nonconformities or non-material deviations in the bid related to
the material requirements. Requests to provide information and documents to rectify
these nonconformities or deviations must not affect any factor of the bid
price. Failure
to comply with this request of the procuring entity may result in disqualifying
the bidder;
d) Provided that a bid is substantially responsive to the
requirements of the bidding documents, the employer or expert team may adjust
nonmaterial and quantifiable nonconformities related to the bid price; the bid
price will be adjusted to account for the cost of missing or non-compliant
items; this adjustment is solely for bid comparison purposes.
7. In the case the bid has
any deviations, reservations, or omissions which disqualifies the bid, other
criteria will not be further evaluated. In case the bidder does not meet one of
the evaluation criteria of eligibility, capacity, experience, technique,
finance, the remaining criteria will not be further evaluated.
8. The employer may not
allow the bidder to use a subcontractor that provides consulting services for
the package for which the bidder has won the bid. These consulting services
include: preparation,
verification of the engineering design, design of construction drawing design,
estimate, FEED; valuation; supervision and appraisal of the contract
performance; preparation and appraisal of the prequalification document or
bidding documents; evaluation of prequalification applications or bids;
appraisal of the prequalification result or contractor selection result;
management of the project or contract; other consulting services directly to
the package;
Article 30. Clarification to bids
1. After bid opening, the
bidder is responsible for clarifying the bids according to the request of the
procuring entity. If a bid lacks required documents on eligibility, similar
contracts, production capacity, financial statements, tax declaration and
payment obligations, personnel, and equipment, the employer shall request
clarification and additional documents to demonstrate the bidder’s
qualifications and experience; in cases of EC packages, construction packages,
and PC packages, only the first ranked bidder is required to provide
clarification and additional documents.
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3. Clarifications
regarding eligibility must not alter the nature of the participating bidder. Clarifications regarding
validity of the bid (excluding eligibility), technical proposals, and financial
proposals must ensure no changes to the basic content of the submitted bid or
the bid price.
4. Clarification of a bid
is only done between the employer and the bidder whose bid needs to be
clarified. The clarifications to bid must be made in writing
and kept by the employer as an integral part of the bid.
5. The employer may verify
the authenticity of any doubtful documents of the bidder with relevant
organizations or individuals.
Article 31. Error correction and deviation adjustment
1. Error correction is the
correction of errors in bids, including arithmetic errors and other errors,
carried out according to the following principles:
a) Arithmetic errors include errors caused by performing
addition, subtraction, multiplication, and division calculations incorrectly
when calculating the bid price. For fixed unit price contracts, adjustable unit price
contracts, time-based contracts, cost-plus-a-fee contracts, output-based
contracts, percentage-based contracts, if there is a discrepancy between the
unit price and the amount, the unit price will be used as the basis for error
correction; if it is discovered that the unit price has an unusual difference
due to a decimal error (10 times, 100 times, 1,000 times), the amount of money
is the basis for error correction;
b) In case the total value of the items is incorrect due to
an error when adding or subtracting the value of the items, the value of the
items is the basis for correcting the error;
c) Discrepancies between the numerical and written bid
price will be resolved as follows: if the written price has a clear meaning, it
takes precedence; if the written price has no meaning or contains arithmetic
errors, the numerical price is used after correction based on points a and b of
this Clause (if applicable);
d) If the amount column has the full value filled in but
there is no corresponding unit price, the unit price is determined by dividing
the amount by the quantity; when there is a unit price but the amount column is
blank, the value of the amount column will be determined by multiplying the
quantity by the unit price; if a certain item has a unit price and value in the
amount column but leaves the quantity blank, the quantity is determined by
dividing the value in the amount column by the unit price of that item. In case
the quantity determined according to this principle is different from the
quantity stated in the bidding documents, that difference is a deviation in the
scope of supply and is corrected according to Clause 2 of this Article, except
for construction package that applies lump sum contract;
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2. Adjustment of
deviations in scope of supply:
a) Deviations in the scope of supply for construction
packages:
For a construction package that does not apply the lump sum
contract, the bidder must state the bid unit price and total amount
for all work items stated in the bid price schedule. If the bidder lists the
work items as required in the bidding documents but omits the unit price and
total amount for one or more work items, those items will not be considered
underbid. The missing unit price will be assumed to be distributed
proportionally among the other listed items in the bid price schedule and will
not be separately payable by the employer.
Work items stated in the bidding documents that are not
listed in the bidder's bid price schedule are considered missing offers, and
deviations are adjusted according to Point c of this Clause for bid comparison
and ranking. If
a work item in the bidding documents appears in the bidder's price schedule
with a unit price, but the quantity differs from the bidding document
requirements (either less or more), this will be considered an underbid or
excess offer. These deviations will be adjusted according to Point c of this
Clause.
Work items listed in the bidder's bid price schedule that
are not within the scope of work stated in the bidding documents are considered
excess offers, and these deviations are adjusted according to Point c of this
Clause.
For construction packages applying the lump sum contract,
the bidder's bid price is considered to include all necessary costs to carry
out the package in accordance with the design and technical requirements stated
in the bidding documents and do not make adjustments in case the scope of work
proposed by the bidder in the bidding documents is different from the
requirements stated in the bidding documents, unless the other proposed work is
outside the scope of the requirements in the bidding documents (in addition to
the volume to be completed according to the design). In this case, the portion
of work outside the scope of requirements in the bidding documents will be
considered an excess offer and adjusted according to Point c of this Clause;
b) Deviations in the scope of supply for goods procurement
and non-consulting packages:
In case the bidder lists the work items as required in the
bidding documents but omits the bid unit price and total amount for one or
several work items, it is considered an insufficient deviation and the
deviation is adjusted according to Point c of this Clause for bid comparison
and ranking.
Work items stated in the bidding documents that are not
listed in the bidder's bid price schedule are considered missing offers, and
the deviations are adjusted according to Point c of this Clause for bid
comparison and ranking. If a work item in the bidding documents appears in the
bidder's price schedule, but the quantity differs from the bidding document
requirements (either less or more), this will be considered an underbid or
excess offer. This deviation will be adjusted according to Point c of this
Clause.
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c) Adjust excess or insufficient deviations in the scope of
supply:
If a bid lacks any required items (as specified
in Points a and b of this Clause) and omits unit prices, the highest unit price
of the item from technically-responsive bids will be used as the basis for
deviation adjustment for those missing items; if the
technically-responsive bids omit unit prices, the unit prices of the
package estimate will be used as the basis for deviation adjustment; if the
package estimate is unavailable, the unit prices forming the package price will
be used as the basis for deviation adjustment, and for bidder comparison and
ranking. The adjustment of insufficient deviations is only for bid comparison and
ranking purpose.
If a bid proposes a lower volume of work than required in
the bidding documents, the cost of the missing work will be added using the
unit price from the bid.
If a bid proposes a higher volume of work than required in
the bidding documents, the cost of the excess work will be deducted using the
unit price from the bid.
3. If the bidder has a
letter of discount, error correction and deviation adjustment are carried out
on the basis of the bid price without deducting the discount. The percentage
(%) of the insufficient deviation is determined on the basis of the bid price
stated in the letter of bid.
4. Apply the unit price
for the insufficient deviation to the first ranked bidder:
If a bid has insufficient deviations after adjustment
according to Point c, Clause 2 of this Article, but remains ranked first, and
lacks a unit price for the insufficient deviation, the proposed winning unit
price will be determined based on the following priorities: the lowest
unit price among the technically-responsive bids, the unit price in
package estimate, unit price forming the package price (if package estimate is
unavailable).
5. Following error
correction, deviation adjustment, and application of unit prices for
insufficient deviations as outlined in Clauses 1, 2, 3, and 4 hereof, the
employer shall notify the bidder of these adjustments in writing. Within 3 working days of
receiving such a notice from the employer, the bidder must notify the employer
in writing if they accept those adjustments. If bidder refuses those adjustments, their bid will be
disqualified, unless the error correction, deviation adjustment, and
application of unit prices are inappropriate or inaccurate.
Article 32. Checking and evaluation of bids
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a) Check the required documents of the bid, including: letter of bid; joint
venture agreement (if any); power of attorney from the bidder's legal
representative (if any); bid security; number of originals and photocopies of
bidding documents;
b) Cross-check the original bid with its photocopies to
ensure consistency before conducting the detailed bid evaluation.
2. Evaluate the validity
of the bid:
a) The bid is considered valid when it fully meets the
requirements of Clause 3, Article 26 of this Decree;
b) Bidders with valid bids will be evaluated for their
capacity and experience.
3. Capacity and
experience evaluation:
a) The capacity and experience evaluation is
carried out according to the evaluation criteria specified in the bidding documents;
b) Bidders with qualified capacity and experience may
undergo technical evaluation.
For goods procurement packages, bidders who are individuals
or groups offering innovative products that meet the requirements Clause 4
Article 6 hereof may be exempt from certain criteria outlined in Clause 3
Article 10 hereof.
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a) The technical evaluation is carried out according to the
evaluation criteria and methods specified in the bidding documents;
b) Technically-responsive bidders may undergo financial
evaluation using least-cost selection or evaluated price selection. The
bidder who has the lowest bid price (after error
correction, deviation adjustment, and any discounts) (for the
least-cost selection) or has the lowest evaluated price (for the evaluated
price selection) is ranked first. Discount letters that are not published in the bid opening
minutes will not be evaluated.
If only one bidder is technically responsive, there is no
need to determine the bidder ranking list. The employer does not have to approve the bidder ranking
list.
5. The expert team
prepares a report on the bid evaluation result and sends it to the employer for
consideration. The report on bid evaluation result must clearly state the
following contents:
a) Evaluation result for each bid;
b) List of considered and ranked bidders and order of
ranking of bidders;
c) List of non-responsive and disqualified bidders; reasons
for bidder disqualification;;
d) Comments on competitiveness, fairness, transparency and
economic efficiency in the contractor selection process. If competitiveness,
fairness, transparency, or economic efficiency cannot be assured, reasons and
propose solutions must be provided;
e) The contents of the bidding documents are not in
accordance with law on bidding or the contents may lead to unclear or different
interpretations during the implementation process or may distort the contractor
selection result (if any); propose remedial measures;
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g) Key considerations (if any).
6. For goods procurement
packages, construction packages, non-consulting service packages applying
international bidding, mixed packages, and packages applying limited bidding as
prescribed in Clause 1 Article 22 of the Law on Bidding, if the contract
negotiation applies, the employer shall invite the first-ranked bidder to
participate in the contract negotiation in accordance with Article 45 hereof.
Article 33. Submission, appraisal of, approval for, and
publication of contractor selection results
1. Based on the bid
evaluation report of the expert team, contract negotiation results (if any),
the appraisal team shall appraise the contractor selection results in
accordance with Clauses 1 and 4, Article 136 hereof before sending the results
to the employer for approval.
2. Based on the bid
evaluation report and contractor selection appraisal results, the employer
shall approve the contractor selection results.
3. In case the successful bidder
is selected, the approval for contractor selection result includes
the following:
a) Name of successful bidder;
b) Successful bid unit price.
c) Contract type;
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dd) Key considerations (if any).
4. In case of bid
cancellation in accordance with Clause 1, Article 17 of the Bidding Law, the
approval for contractor selection results or decision on bid
cancellation must clearly state the reason for the bid cancellation and the
responsibilities of related parties when canceling the bid. The bid cancellation
decision shall be published on VNEPS within 05 working days from the day on
which it is signed;
5. After the written
approval for contractor selection result is issued, the employer posts
information about the contractor selection result according to Point a, Clause
1 and Clause 4, Article 8 of the Bidding Law and send a
written notice of contractor selection result to participating
bidders within 5 working days from approval date. Contents of the notice of contractor
selection result:
a) Contents specified in Clause 3 of this Article;
b) List of unsuccessful bidders and the reasons for disqualification
of each bidder;
c) Plan for finalizing and signing contracts with the
successful bidder:
Unsuccessful bidders can request a written or in-person
explanation from the employer to understand why their bids were not chosen. The employer is responsible
for responding to the bidder's request within 2 working days from the date of
receiving the bidder's request.
Article 34. Completion and signing of contracts
1. The employer invites
the successful bidder to complete the contract.
During the process of contract completion, the
parties complete the draft contract; specific conditions of the contract,
contract appendices, including: detailed list of scope of work, price schedule,
performance schedule (if any). Contract completion is carried out on the basis
of:
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b) Approved contractor selection result;
c) Requirements stated in the bidding documents;
d) Contents stated in the bid and clarifications to bid of
the successful bidder (if any);
dd) Contents that need to be finalized in the contract.
2. The contract
finalization result is the basis for the employer and bidder to sign the
contract. If
the bidder voluntarily reduces the price, the contract price is the value after
the discount.
3. If the successful
bidder does not come to finalize or refuses to finalize the contract or sign
the contract, the bid security will be forfeited.
4. The bidder has the
right to refuse to complete the contract without having their reputation assessed
according to Clause 1 Article 20 hereof and is entitled to a bid security
refund (if any) if the investor makes demands during contract completion that
do not align with the contents of the bidding documents, the bid, contract
negotiation results (if any), and the decision approving the contractor
selection results.
Article 35. Contract performance management
1. Contract performance
management includes the following contents: performance progress, quality, costs and other aspects of
the contract. The
employer is responsible for managing contract performance.
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3. The employer is
responsible for publicizing the bidder's contract performance result on VNEPS
according to Clauses 3 and 4, Article 20 of this Decree. For a package with
good supply involvement, the employer must also publicly disclose on VNEPS the
quality of goods provided by the bidder according to Clauses 5, 6 and 7,
Article 20 of this Decree.
Section 2. SINGLE-STAGE AND TWO-ENVELOPE METHOD
Article 36. Detailed procedures
1. Contractor selection
preparation, including:
a) Shortlisting (if necessary);
b) Prepare bidding documents;
c) Appraise (if any) and approve bidding documents.
2. Contractor selection
organization, including:
a) Invite bids;
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c) Prepare, submit, receive, manage, modify, withdraw bids;
d) Open technical proposals.
3. Evaluate technical proposals,
including:
a) Check and evaluate validity of technical proposals;
b) Evaluate technical proposals in details;
c) Submit, appraise, and approve the list of
technically-responsive bidders.
4. Open and evaluate
financial proposals and submit contractor selection results, including:
a) Open financial proposals of technically-responsive
bidders; for quality-based selection, open financial proposals of the
first-ranked bidder;
b) Check and evaluate validity of financial proposals;
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d) Submit bid evaluation result;
5. Negotiate contracts (if
any) in accordance with Article 45 hereof for packages specified in points b
and c Clause 1, Clause 1a Article 31 and Clause 3a Article 58 of the Law on
Bidding.
6. Appraise, approve, and
publicize the contractor selection result and explain reasons for unsuccessful
bidders upon their requests (if any).
7. Finalize, sign, and
manage contract performance.
8. Bidding in advance stipulated
in Article 42 of the Law on Bidding shall comply with Clauses 1, 2, 3, 4, 5,
and 6 hereof. The finalization, signing, and management of the contract
performance stipulated in Clause 7 hereof shall only be carried out after the
project has been approved for investment.
For goods procurement packages, in addition to
organizations, individuals and group of individuals may also participate as
bidders to offer their own innovative products in accordance with Clause 4
Article 6 of this Decree.
Article 37. Preparation of bidding documents
1. If the package applies
shortlisting procedure, it shall comply with Article 25 of this Decree.
2. Bidding documents are
prepared based on Clause 1 Article 26 of this Decree.
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4. Bidding documents must
specify evaluation criteria for the validity of technical proposals and
financial proposals, including:
a) Evaluation criteria for the validity of a technical
proposal:
There is the original technical proposal;
There is a letter of bid in the technical proposal signed
and stamped by the bidder's legal representative (if any) according to the
requirements of the bidding documents; the signing date of the letter of bid
must be after the issuance date of the bidding documents; do not propose
different bid prices or include conditions that are disadvantageous to the
employer. For
a joint venture bidder, the letter of bid must be signed and sealed by the
legal representative of each joint venture party (if any) or the party assigned
to by the joint venture to sign the letter of bid according to the assigned
responsibilities in the joint venture agreement;
The validity of the technical proposal meets the
requirements as prescribed in the bidding documents;
There is a bid security with value and validity period and
the beneficiary meets the requirements of the bidding documents. Bid security, in the form
of a bank guarantee or certificate of guarantee insurance, may not violate any
of the following requirements: their value or validity period must meet the
minimums specified in the bidding documents, the beneficiary name must be
correct, a valid signature must be present, the signature cannot be dated
before the bidding documents were issued, the document cannot contain any
conditions that disadvantage the employer. The bank guarantee or certificate of guarantee insurance
must be signed and stamped by a legal representative of a domestic credit
institution or foreign bank branch established under Vietnamese law, a domestic
non-life insurer, branch of foreign non-life insurer established under
Vietnamese law (if any). For insurance packages, participating bidders may not
present their own certificate of guarantee insurance.
For pre-bid package according to Article 42 of the Law on
Bidding, bidders are not required to provide bid security but they must commit
in the bid to participate in bidding;
The bidder is not named in two or more technical proposals
as an independent bidder or a joint venture party;
There is a joint venture agreement (in case of joint
venture) signed and sealed by the legal representative of each joint venture
party (if any); the joint venture agreement must clearly state the specific
work each party will perform and the estimated value of each party's work. Work assignments within
the joint venture will be determined by: items listed in the bid price schedule
or tasks required to produce those items. Tasks unrelated to these items or the
production of these items must not be assigned.
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In the 3 years before the bid submission deadline, the
bidder did not have employed personnel (signed a labor contract with the bidder
at the time they committed the violation) who were convicted by a court of a
bidding violation leading to serious criminal consequences, with the intent for
that bidder to win the contract;
b) Evaluate validity of financial proposals;
There is the original financial proposal;
There is a letter of bid in the financial proposal signed
and stamped by the bidder's legal representative (if any) according to the
requirements of the bidding documents; the signing date of the letter of bid
must be after the issuance date of the bidding documents; do not propose
different bid prices or include conditions that are disadvantageous to the
employer. For
a joint venture bidder, the letter of bid must be signed and sealed by the
legal representative of each joint venture party (if any) or the party assigned
to by the joint venture to sign the letter of bid according to the assigned
responsibilities in the joint venture agreement;
The validity of the financial proposal meets the
requirements as prescribed in the bidding documents.
5. Evaluation criteria of
bids, including:
a) Evaluation criteria for capacity and experience;
b) Technical evaluation criteria;
c) Determine the lowest price (in case the least-cost
selection is applied);
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dd) Combined evaluation criteria (in case of applying the
quality- and cost-based selection).
For packages that have been pre-qualified, the bidding
documents can omit evaluation criteria for bidder capacity and experience.
However, they must require an update on the bidder's current capacity
information.
6. Evaluation criteria for
capacity and experience; technical evaluation criteria will be based on Points
a and b, Clause 4 and Points a, b, Clause 5, Article 26 of this Decree.
7. Determination of the
lowest price (in case of applying the least-cost selection) is carried out
according to point c Clause 4 and point c Clause 5 Article 26 of this
Decree.
8. Determination of the
evaluated price (in case of applying the evaluated price selection) is carried
out according to Point d Clause 4 and Point d Clause 5 Article 26 of this
Decree.
9. Determination of
combined evaluation criteria (in case of applying the quality- and cost-based
selection) is carried out according to Article 38 of this Decree.
10. The technical-based
selection is carried out according to clause 3a Article 58 of the Law on
Bidding. When
applying the technical-based selection, if necessary, the employer shall
negotiate a contract with the bidder in accordance with Article 45 of this
Decree as a basis for considering bid award in accordance with Article 61
of the Law on Bidding.
11. Regulations on stating
the trademark and origin of goods are specified in Clause 9, Article 26 of this
Decree.
12. Regulations on labor
use are specified in Clause 10, Article 26 of this Decree.
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14. For non-consulting and
mixed packages, based on the scale and nature of the package and the provisions
in this Article, determine evaluation criteria for capacity and experience;
technical evaluation criteria; determine the lowest price (in case the
least-cost selection is applied) or the criteria for determining the evaluated
price (in case the evaluated price selection is applied), or combined
evaluation criteria (in case the quality- and cost-based selection is applied)
accordingly.
15. Regulations on sales
permits are specified in Clause 12, Article 26 of this Decree.
Article 38. Combined evaluation criteria
1. Combined evaluation
criteria apply to the quality- and cost-based selection on the basis of
determining an aggregate score.
The aggregate score is determined as follows:
Where:
Technical score under consideration: is the score
determined at the technical evaluation step of the bid under consideration;
Highest technical score: is the highest technical score among technically-responsive
bids;
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Gunder consideration: is the bid price (after
error correction, deviation adjustment, and any discounts) of the bid under
consideration;
K: Technical score weight given in the aggregate score scale;
T: Financial score weight given in the aggregate score scale;
K + T = 100%. Technical score weight and financial score weight must be
specifically determined in the bidding documents.
2. Combined evaluation
criteria are built on the basis of a combination of technical and financial
aspects. Depending on the scale and nature of each package, it is
necessary to determine the technical score weight
and financial score weight accordingly, ensuring that their total equals
100% according to the following principle:
a) For construction, procurement, non-consulting, and mixed
packages: Technical
score weight (K) is from 10% to 30% and financial score weight (T) is from 70%
to 90%;
b) For drug procurement packages: Technical score weight
(K) is from 30% to 40% and financial score weight (T) is from 60% to 70%;
c) For packages specified in Clause 1a, Article 31 of the
Law on Bidding: Technical score weight (K) is from 40% to 60% and financial score weight
(T) is from 40% to 60%;
3. If technical aspects need
to be prioritized over financial aspects, the employer considers deciding
the specific technical score weight (K) and financial score weight (T)
accordingly, provided that the technical score weight does not exceed 50% for
packages specified in point a and b Clause 2 of this Article.
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1. The appraisal of
bidding documents is not required; in cases where an appraisal is requested, it
shall comply with Article 135 of this Decree before approval.
2. The approval of bidding
documents is done in writing based on the approval report and appraisal report
(if any) of the bidding documents;
Article 40. Organization of contractor selection
1. Invitation for bids:
a) Invitations to bid are applied according
to Point b, Clause 1, Article 8 of the Bidding Law if the shortlisting
procedure is not applied;
b) Send invitations to bid to bidders on the short list.
2. Issue, modify and
clarify bidding documents:
The issuance, modification, and clarification of the
bidding documents shall comply with Clause 2, Article 28 of this Decree.
3. Prepare, submit,
receive, manage, modify, withdraw bids:
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4. Open technical
proposals:
a) The opening of a technical proposal must be conducted
publicly and begin within 2 hours from the bid submission deadline. The employer only opens
technical proposals received before the bid submission deadline according to
the requirements of the bidding documents in the presence of representatives of
bidders attending the bid opening ceremony, regardless of the presence or
absence of bidders.
b) Technical proposals are opened in alphabetical order by
bidder name and in the following order: check the seal; open the envelope and
clearly read the bidder's name, check the number of originals and copies
of the technical proposal and the letter of bid in the technical proposal,
validity period of the technical proposal, proposed performance duration,
value and validity of bid security and other related information;
c) The information specified in point b of this clause must
be recorded in the minutes of technical proposal opening. The minutes will be
signed by representatives of the procuring entity and bidders attending the
opening ceremony of technical proposals and sent to participating bidders
and posted on VNEPS within 24 hours upon bid opening;
d) The representative of the employer signs the original
letter of bid, and the authorization letter of the investor's legal
representative (if any); joint venture agreement (if any); bid security;
important contents of each technical proposal;
dd) The financial proposals of all bidders must be
sealed in a separate envelope by the employer and must be signed and sealed by
representatives of the employer and bidders attending the technical proposal
opening ceremony.
Article 41. Principles for evaluation of and clarifications
to bids, error correction and deviation adjustment
1. The evaluation of bids
is carried out according to the principles specified in Clauses 1, 2, 3, 5, 6,
7 and 8, Article 29 of this Decree.
For a divided package, bid evaluation and award will
prioritize the bid with lowest total proposed winning price (for least-cost
selection); or prioritize the bid with the lowest total evaluated price (for
evaluated price selection); or prioritize the bid with the highest aggregate
score (for quality- and cost-based selection) and the winning bid price for the
entire package not exceeding the approved package price, regardless of partial
package estimates; for a package for procurement of drugs, chemicals, testing
supplies, medical equipment, and medical procedures, the instructions of
the Ministry of Health (if any) will apply.
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3. Error correction and
deviation adjustment are carried out in accordance with Article 31 of this
Decree.
Article 42. Checking and evaluation of the validity of
technical proposals
1. Contents for checking
the validity of a technical proposal:
a) Required documents in the technical proposal, including: letter of bid in the
technical proposal; joint venture agreement (if any); power of attorney from
the bidder's legal representative (if any); bid security; number of originals
and photocopies of the technical proposal;
b) The consistency of original copy and its photocopies to
serve the detailed technical proposal evaluation.
2. Evaluate the validity
of the technical proposal:
The technical proposal is considered valid when it fully
meets the requirements of Point a, Clause 4, Article 37 of this Decree.
Bidders with valid technical proposals will be evaluated
for their capacity and experience. For packages that have been pre-qualified, no
evaluation of the bidder's capacity and experience is conducted.
3. Capacity and
experience evaluation:
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b) Bidders with qualified capacity and experience may
undergo technical evaluation;
c) For packages with prequalification, the bidder who has
passed the prequalification step, has a valid technical proposal, and has
updated capacity to meet the requirements of the package will undergo the
technical evaluation.
For goods procurement packages, bidders who are individuals
or groups offering innovative products that meet the requirements Clause 4
Article 6 hereof may be exempt from certain criteria outlined in Clause 3
Article 10 hereof.
4. Technical evaluation:
a) The technical evaluation is carried out according to the
evaluation criteria specified in the bidding documents;
b) Open and evaluate financial proposals of
technically-responsive bidders (if the technical-based selection is applicable)
5. The expert team
prepares an evaluation report of technical proposals and sends it to the
employer for consideration. The list of technically-responsive bidders shall be
appraised in accordance with Clauses 1 and 3 Article 136 hereof. The list of
technically-responsive bidders shall be approved by the employer based on the
evaluation report of technical proposals, appraisal report of list of
technically-responsive bidders. The employer announces the list of technically-responsive
bidders and technically-nonresponsive bidders in writing, states the reasons
for technically-nonresponsive bidders, and invites all participating bidders to
open their financial proposals. The evaluation report of
technical proposals, the appraisal report of list of
technically-responsive bidders, and the decision approving the list of
technically-responsive bidders must include the ranking order of
technically-responsive bidders. The employer must post a list of technically-responsive
bidders on VNEPS within 5 working days from the date of approval for this list.
Article 43. Opening of financial proposals
1. The employer checks the
seal of the envelope containing the financial proposals.
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a) Only open financial proposals of bidders whose names are
on the list of technically-responsive bidders in the presence of
representatives of bidders attending the financial proposal opening ceremony,
regardless of the presence or absence of bidders;
For packages applying the technical-based selection method,
only the financial proposal of the fist-ranked bidder shall be opened to serve
as the basis for contract negotiations (if any) in accordance with Article 45
of this Decree. If the negotiations are unsuccessful, the investor shall
invite the next-ranked bidder to open the financial proposals as the basis for
contract negotiations.
b) The opening of financial proposals is carried out
for each financial proposal according to the alphabetical order of the bidder's
name in the list of technically-responsive bidders and according to the
following order: check the seal; read the technical scores of
technically-responsive bids (If the scoring method is used); open the envelope
and clearly read the information: name of the bidder, number of
originals, copies of the financial proposal, letter of bid included in the
financial proposal, validity period of the financial proposal, bid price stated
in the letter of bid, discount (if any), and other related information.
3. Minutes of opening
financial proposals:
a) The information specified in Clauses 1 and 2 of this
Article must be recorded in the minutes of opening financial proposals. The
minutes of opening financial proposals must be signed by representatives of the
employer and bidder participating in the opening of financial proposals. The
minutes will be sent to technically-responsive bidders and posted on VNEPS
within 24 hours upon bid opening;
b) The representative of the procuring entity must sign all
original pages of the financial proposal.
Article 44. Checking and evaluation of financial proposals
1. Contents for checking
the validity of a financial proposal:
a) Check the number of originals and photocopies of the
financial proposal;
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c) Cross-check the original with its photocopies to ensure
consistency before conducting the detailed financial proposal evaluation.
2. Evaluate the validity
of the financial proposal:
The financial proposal is considered valid when it
fully meets the requirements of Point b, Clause 4, Article 37 of this Decree.
Bidders with valid financial proposals will undergo a
detailed financial evaluation.
3. Evaluate financial
proposals in details and rank bidder:
a) Detailed evaluation of financial proposals and bidder
ranking are carried out according to the evaluation criteria specified in the
bidding documents. Any letter of discount that is not published in the bid
opening minutes will not be evaluated;
b) The expert team prepares a report on the bid evaluation
result and sends it to the employer for consideration in accordance with Clause
5 Article 32 of this Decree. The employer does not have to approve the bidder
ranking list. In
the case of contract negotiation, the employer invites the first-ranked bidder
to negotiate the contract in accordance with Article 45 of this Decree.
Article 45. Contract negotiation
1. If the package applies
contract negotiation, the first-ranked bidder is invited by the employer to
negotiate the contract.
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a) Bid evaluation report;
b) The bid and clarifications to bid (if any) of the bidder;
c) Bidding documents, which contain general conditions,
specific conditions of the contract and modifications of and clarifications to
the bidding documents (if any).
3. Principles of contract
negotiation:
a) Do not negotiate the content of a bid that complies with
the bidding documents;
b) Do not change the unit price determined at the financial
evaluation step, except for packages applying technical-based selection method.
4. Matters to be
negotiated:
a) Contents that are insufficiently detailed, unclear, or
inconsistent between the bidding documents and the bid, or within different
sections of the bid, which can lead to issues and disputes or affect the
responsibilities of the parties during contract performance;
b) Deviations identified and proposed by the bidder in
their bid (if applicable). This includes proposals for changes or alternative
technical solutions, if the bidding documents allowed bidders to submit such
alternatives;
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Bidders cannot replace key personnel who have
been proposed or have been replaced once according to Clause 2, Article 29 of
this Decree, except in cases where the bid evaluation takes longer than
originally anticipated in the specific contractor selection plan or force
majeure prevents the proposed key personnel from performing the contract. In this case, the bidder
can replace other personnel but the replacements must possess qualifications,
experience and capacity equivalent to or higher than the originally proposed
personnel and the bidder is not allowed to change their bid price;
d) Issues that arise during the contractor selection
process (if any) to finalize the detailed contents of the package;
dd) The price negotiation applies in cases where the
proposed winning price exceeds the approved package price of packages applying
technical-based selection method, as the basis for bid approval in accordance
with Article 61 of the Bidding Law;
e) Other necessary contents.
5. During the process of
contract negotiation, the parties complete the draft contract; specific
conditions of the contract, contract appendices, including: detailed list of
scope of work, price schedule, performance schedule (if any).
6. If the bidder
participates in negotiations but fails to conduct negotiations in
accordance with the principles and contents specified in Clauses 3 and 4 of
this Article or has conducted negotiations but fails to sign the
contract negotiation minutes, signifying their withdrawal from the bidding
process; or causes disadvantages to the employer, the bidder will be
disqualified and the bid security will be forfeited.
7. The bidder has the
right to refuse to negotiate and has the bid security refunded if the employer
fails to conduct negotiations according to the principles and contents
specified in Clauses 3 and 4 of this Article.
8. If the negotiation is
not successful, the employer will report to the employer for consideration and
decide whether to invite the next ranked bidder to negotiate.
Article 46. Appraisal of, approval for, and publication of
contractor selection result; completion, signing, and management of contract
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2. The completion,
signing, and management of contracts shall comply with Article 34 and Article
35 of this Decree.
Chapter III
OFFLINE COMPETITIVE
BIDDING, LIMITED BIDDING FOR NON-CONSULTING, GOODS PROCUREMENT, CONSTRUCTION,
MIXED PACKAGES UNDER TWO-STAGE METHOD
Section 1. TWO-STAGE AND TWO-ENVELOPE METHOD
Article 47. Preparation for bidding in first stage
1. Shortlisting procedure
for competitive bidding and limited bidding shall comply with Article 25 of
this Decree.
2. Prepare bidding
documents in first stage:
a) Bidding documents are prepared based on Clauses 1 and 2
Article 26 of this Decree;
b) Bidding documents in first stage include the following
contents: Summary about the project and package; instructions for preparing and
submitting bids in first stage; technical requirements of the package based on
the approved basic design or technical specifications; technical evaluation
criteria of the package.
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3. Appraise
and approve bidding documents:
a) Bidding documents must be appraised according to Article
135 of this Decree before approval;
b) Approval for bidding documents must be based on the approval
report and appraisal report of bidding documents.
Article 48. Organization of bidding in first stage
1. The invitation to bid
in first stage shall comply with Clause 1, Article 28 of this Decree.
2. Issue, modify and
clarify bidding documents:
The issuance, modification, and clarification of the
bidding documents shall comply with Clause 2, Article 28 of this Decree.
3. Prepare, submit,
receive, manage, modify, withdraw bids:
Preparation, submission, receipt, management, modification,
and withdrawal of bids shall comply with Clause 3, Article 28 of this Decree.
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The bid opening shall comply with Clause 4 Article 28 of
this Decree.
The bid opening minutes in first stage do not include
information about bid security, bid prices and discounts (if any) of bidders.
Article 49. Evaluation of technical proposals, submission
of, approval for, and publicization of the list of bidders that meet the
requirements of bidding documents in first stage
1. The bid evaluation
principles shall comply with Article 29 of this Decree.
2. The bid clarification
shall comply with Article 30 of this Decree.
3. The approval for and
publicization of the list of bidders that meet the requirements of bidding
documents in first stage shall comply with Article 33 of this Decree. The list
of bidders that meet the requirements of bidding documents in first stage must
be posted on VNEPS no later than 5 working days from the date of approval.
Article 50. Preparation and organization of bidding in
first stage
1. Discussion about the
bids in first stage:
The employer invites each bidder on the list
of technically-responsive bidders in first stage to clarify the
contents of the technical proposal. The clarifications to the technical proposal includes
requirements for technical adjustments compared to the bidder's proposal in
first stage and comments on the content of the bidding documents and the
alternative technical plan. The detailed clarifications are recorded by the employer
and each bidder in writing. The employer and the expert team must ensure that bids’
information in the first stage is not disclosed.
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2. Prepare bidding
documents in second stage:
a) Grounds for preparing bidding documents:
In addition to the grounds specified in Clauses 1 and 2,
Article 26 of this Decree, the bidding documents in second stage must be based
on adjustment and supplementations related to instructions to bidders,
evaluation criteria, and technical requirements, contract conditions and other
contents of the bidding documents in first stage.
b) Contents of bidding documents:
Bidding documents include the following contents: instructions
to bidders, additional purchase options (if any); bid data sheet; evaluation
criteria for the validity of bids; bidder's capacity and experience; technique;
finance, trade; information about the bidder's contract performance result and
the quality of similar goods used; bidding and bid forms; scope of supply,
technical requirements; contract conditions and forms; documents, drawings and
other contents (if any).
3. Appraise
and approve bidding documents:
a) Bidding documents must be appraised according to Article
135 of this Decree before approval;
b) Approval for bidding documents must be based on the
approval report and appraisal report of bidding documents.
4. Organization of
bidding:
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The modification and clarification of the bidding documents
in second stage shall comply with Clause 2, Article 28 of this Decree.
b) Prepare, submit, receive, manage, modify, withdraw bids:
Preparation, submission, receipt, management, modification,
and withdrawal of bids shall comply with Clause 3, Article 28 of this Decree.
5. Bid opening:
The bid opening shall comply with Clause 4 Article 28 of
this Decree.
Article 51. Evaluation of bids in second stage
1. The bid evaluation
principles shall comply with Article 29 of this Decree.
2. The bid clarification
shall comply with Article 30 of this Decree.
3. Error correction and
deviation adjustment are carried out in accordance with Article 31 of this
Decree.
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Article 52. Contract negotiation; appraisal of, approval
for, and publication of contractor selection result; completion, signing, and
management of contract
1. The first-ranked bidder
is invited by the employer to negotiate the contract.
2. The contract
negotiation shall comply with Article 45 of this Decree.
3. The appraisal of,
approval for, and publicization of contractor selection result shall comply
with Article 33 of this Decree.
4. The completion,
signing, and management of contracts shall comply with Article 34 and Article
35 of this Decree.
Section 2. TWO-STAGE AND TWO-ENVELOPE METHOD
Article 53. Preparation for bidding in first stage
1. Shortlisting procedure
for competitive bidding and limited bidding shall comply with Article 25 of
this Decree.
2. Prepare bidding
documents in first stage:
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b) Bidding documents in first stage include the following
contents: Summary about the project and package; instructions for preparing and
submitting bids in first stage; technical requirements of the package based on
the approved basic design or technical specifications; technical evaluation
criteria of the package. Bidding documents must allow bidders to propose
alternatives to the technical options offered in the bidding documents, without
requiring them to propose corresponding bid prices and bid security for these
alternatives.
3. Appraise
and approve bidding documents:
a) Bidding documents must be appraised according to Article
135 of this Decree before approval;
b) Approval for bidding documents must be based on the
approval report and appraisal report of bidding documents.
Article 54. Organization of bidding in first stage
1. The invitation to bid
in first stage shall comply with Clause 1, Article 28 of this Decree.
2. The issuance,
modification, and clarification of the bidding documents shall comply with
Clause 2, Article 28 of this Decree.
3. Preparation,
submission, receipt, management, modification, and withdrawal of bids shall
comply with Clause 3, Article 28 of this Decree.
4. Bid opening:
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b) The bid opening minutes in first stage do not include
information about bid security, bid prices and discounts of bidders.
Article 55. Evaluation of technical proposals; approval
for, and publicization of the list of bidders that meet the requirements of
bidding documents in first stage
1. The bid evaluation
principles shall comply with Article 29 of this Decree.
2. The bid clarification
shall comply with Article 30 of this Decree.
3. The appraisal of, approval
for, and publicization of the list of bidders that meet the requirements of
bidding documents in first stage shall comply with Article 33 of this Decree. The
list of bidders that meet the requirements of bidding documents in first stage
must be posted on VNEPS no later than 5 working days from the date of approval.
Article 56. Preparation and organization of bidding in
first stage
1. Discussion about the
bids in first stage:
The employer invites each bidder whose approved technical
proposal meets the requirements of bidding documents in first stage to clarify
the contents of technical proposal. The clarifications to the technical proposal includes
requirements for technical adjustments compared to the bidder's proposal in
first stage and comments on the content of the bidding documents and the
alternative technical plan. The detailed clarifications are recorded by the employer
and each bidder in writing. The employer and the expert team must ensure that bids’
information in the first stage is not disclosed.
Based on the clarifications to technical proposals for each
bidder, the expert team synthesizes and reports to the employer the
contents that need to be adjusted and supplemented in terms of instructions to
bidders, evaluation criteria, and technical requirements, contract conditions
and other contents of the bidding documents in first stage. The employer is
responsible for reviewing and deciding on adjustment and supplementations based
on the proposal of the expert team.
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a) Grounds for preparing bidding documents:
In addition to the grounds specified in Clauses 1 and 2,
Article 26 of this Decree, the bidding documents in second stage must be based
on adjustment and supplementations related to instructions to bidders,
evaluation criteria, and technical requirements, contract conditions and other
contents of the bidding documents in first stage;
b) Contents of bidding documents:
Bidding documents include the following contents: instructions to bidders,
additional purchase options (if any); bid data sheet; evaluation criteria for
the validity of bids; bidder's capacity and experience; technique; finance,
trade; information about the bidder's contract performance result and the
quality of similar goods used; bidding and bid forms; scope of supply,
technical requirements; contract conditions and forms; documents, drawings and
other contents (if any).
3. Appraise
and approve bidding documents:
a) Bidding documents must be appraised according to Article
135 of this Decree before approval;
b) Approval for bidding documents must be based on the
approval report and appraisal report of bidding documents.
4. Organization of
bidding:
a) Bidding documents in second stage are issued to bidders
in the list of bidders that meet the requirements of bidding documents in first
stage.
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b) Prepare, submit, receive, manage, modify, withdraw bids:
Preparation, submission, receipt, management, modification,
and withdrawal of bids shall comply with Clause 3, Article 28 of this Decree. Bidders
submit bids including separate technical proposals and financial proposals
according to the requirements of the bidding documents in second stage,
including the bid price and bid security. Financial proposals are offered according to the main
technical proposal of the bidder; if the bidder offers an alternative technical
plan, it must be enclosed with the financial proposal for this alternative.
5. Open technical
proposals:
The technical proposal opening shall comply with Clause 4
Article 40 of this Decree.
Article 57. Evaluation of technical proposals in second
stage
1. The bid evaluation
principles shall comply with Article 29 of this Decree.
2. The bid clarification
shall comply with Article 30 of this Decree.
Article 58. Appraisal of, and approval for the list of
technically-responsive bidders in second stage
1. The appraisal of,
approval for, and publicization of the list of technically-responsive bidders
in second stage shall comply with Clauses 1 and 3 Article 136 of this Decree.
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Article 59. Evaluation of financial proposals in second
stage
1. The bid evaluation
principles shall comply with Article 29 of this Decree.
2. The bid clarification
shall comply with Article 30 of this Decree.
3. Error correction and
deviation adjustment are carried out in accordance with Article 31 of this
Decree.
4. The financial proposal
evaluation shall comply with Article 44 of this Decree.
Article 60. Appraisal of, approval for, and publication of
contractor selection result; completion, signing, and management of contract
1. The first-ranked bidder
is invited by the employer to negotiate the contract.
2. The contract
negotiation shall comply with Article 45 of this Decree.
3. The appraisal of,
approval for, and publicization of contractor selection result shall comply
with Article 33 of this Decree.
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Chapter IV
OFFLINE COMPETITIVE
BIDDING, LIMITED BIDDING FOR CONSULTING PACKAGES
Section 1. CORPORATE BIDDERS
Article 61. Detailed procedures
1. Contractor selection
preparation, including:
a) Shortlisting (if necessary);
b) Prepare bidding documents;
c) Appraise (if any) and approve bidding documents.
2. Contractor selection
organization, including:
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b) Issue, modify and clarify bidding documents;
c) Prepare, submit, receive, manage, modify, withdraw bids;
d) Open technical proposals.
3. Evaluate technical
proposals, including:
a) Check and evaluate validity of technical proposals;
b) Evaluate technical proposals in details;
c) Submit, appraise, and approve the list of
technically-responsive bidders.
4. Open and evaluate
financial proposals and submit contractor selection results, including:
a) Open financial proposals of technically-responsive
bidders; for quality-based selection, open financial proposals of the
first-ranked bidder;
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c) Evaluate financial proposals in details and rank bidders
(if there is more than 1 bidder);
d) Submit bid evaluation result;
5. Contract negotiation:
6. Appraise, approve, and
publicize the contractor selection result and explain reasons for unsuccessful
bidders upon their requests (if any).
7. Finalize, sign, and
manage contract performance.
8. Bidding in advance
stipulated in Article 42 of the Law on Bidding shall comply with Clauses 1, 2,
3, 4, 5, and 6 hereof. The finalization, signing, and management of the contract
performance stipulated in Clause 7 hereof shall only be carried out after the
project has been approved for investment.
Article 62. Shortlisting
1. Based on the scale and
nature of the package, the competent person decides to apply the
shortlisting procedure. The application of shortlisting procedure must be recorded
in the specific contractor selection plan.
2. For competitive
bidding:
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The EOI request include the following contents: summary about the
project, procurement estimate, package; instructions on preparing and
submitting EOI responses; evaluation criteria for the validity of EOI
responses; criteria for bidder capacity and experience; personnel standards (if
any). Criteria for evaluating EOI responses are built on the basis of using the
scoring method, which stipulates the minimum required score not lower than 60%
of the aggregate score;
b) EOI request appraisal:
The appraisal of EOI requests is not required; in cases
where an appraisal is requested, it shall comply with Article 135 of this
Decree before approval.
c) The approval for EOI request is done in writing based on
the approval report and appraisal report (if any) of the EOI request;
d) The EOI request complies with Point b, Clause 1, Article
8 of the Bidding Law;
dd) The EOI request is published on VNEPS free of charge; The preparation time for
EOI requests must be at least 9 days for domestic bidding and 18 days for
international bidding. Any modification must be made at least 3 working days
before the bid submission deadline;
e) The employer shall confidentially receive and
manage EOI responses until the EOI result is announced;
g) Open and evaluate EOI responses:
EOI responses are submitted by the deadline and at the
location specified in the EOI request and are opened immediately after the bid
submission deadline. The record of the EOI response opening must be made in
writing, sent to participating bidders, and posted on VNEPS within 24 hours
upon bid opening. EOI responses submitted after the bid submission deadline
are invalid, cannot be opened and will be disqualified.
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h) Submit, appraise, and approve the EOI result:
The expert team prepares a report on the EOI result
evaluation result and sends it to the employer for consideration. The appraisal
of EOI results is not required; in cases where an appraisal is requested, it
shall comply with Clauses 1 and 2 Article 136 of this Decree. Bases on the
report on EOI response evaluation results, appraisal report of EOI results (if
any), the employer issue a written approval for EOI results. If a shortlist is
created, the written approval for EOI results shall specify successful bidders
and relevant notes (if any). If a shortlist is not created, the written
approval for EOI results must clearly state the reason;
i) The shortlist will be posted as required in Point b
Clause 1 and Clause 4 Article 8 of the Law on Bidding and shared with bidders
who submitted EOIs.
3. For limited bidding:
a) Identify and approve a shortlist of at least 3 bidders
who have the capacity and experience to meet the requirements of the package
and wish to participate in the bidding. If less than 3 bidders meet the requirements, follow the
procedures outlined in Clause 3, Article 140 of this Decree;
b) After approval, the shortlist is posted according to
Point b, Clause 1 and Clause 4, Article 8 of the Law on Bidding.
4. Shortlisted bidders
cannot form a joint venture for this bidding process; If they participate as a
joint venture with a non-shortlisted bidder, it must be granted the
approval by the employer before the bid deadline.
Article 63. Preparation of bidding documents
1. Grounds for preparing
bidding documents:
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b) Approved specific contractor selection plan;
The draft bidding documents shall be made after the
contractor selection plan is approved or may be made during the formulation of
contractor selection plan but must ensure approval after the contractor
selection plan is approved;
c) Scope and requirements of work; experience and personnel
requirements of the consultant and other necessary requirements (if any);
d) Legal regulations on bidding and related laws;
international treaties and loan agreements (if any) for ODA-funded projects and
concessional loans;
e) Legal regulations on taxes, fees, incentives in
contractor selection;
e) Other related grounds.
2. Bidding documents must
provide all necessary information for bidders to prepare competitive bids and
cannot contain any restrictions that limit bidder participation or give any
bidder an unfair advantage, which may cause unfair competition as prescribed in
Clause 3 Article 44 of the Law on Bidding.
3. Bidding documents must
specify evaluation criteria for the validity of technical proposals and
financial proposals, including:
a) The technical proposal is considered valid when it fully
meets the following requirements:
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There is a letter of bid in the technical proposal signed
and stamped by the bidder's legal representative (if any) according to the
requirements of the bidding documents; the signing date of the letter of bid
must be after the issuance date of the bidding documents; do not propose
different bid prices or include conditions that are disadvantageous to the
employer. For
a joint venture bidder, the letter of bid must be signed and sealed by the
legal representative of each joint venture party (if any) or the party assigned
to by the joint venture to sign the letter of bid according to the assigned
responsibilities in the joint venture agreement.
The tax declaration and tax payment obligations have been
fulfilled;
The validity of the technical proposal meets the
requirements as prescribed in the bidding documents.
The bidder is not named in two or more technical proposals
as an independent bidder or a joint venture party.
There is a joint venture agreement (in case of joint
venture) signed and sealed by the legal representative of each joint venture
party (if any); the joint venture agreement must clearly state the specific
work each party will perform and the estimated value of each party's work. Work assignments within
the joint venture will be determined by: items listed in the terms of reference
or technical proposal. Tasks unrelated to these items must not be assigned;
The bidder must meet the eligibility requirements in
accordance with Article 5 of the Law on Bidding;
For international bidding, in cases where the
conditions for determining domestic bidders that are ineligible to
participate in any part of the package, the employer may conduct a survey on
VNEPS as follows: post a notice requesting domestic bidders to participate
accompanied by the bidding documents for domestic bidders to register for one
or several specific tasks of the package that they can undertake within at
least 05 working days; upon the registration deadline, if no domestic bidders
register, foreign bidders are not required to enter into a consortium with a
domestic bidder or subcontract domestic bidders. In this case, the bidding
documents shall not stipulate that foreign bidders are required to enter into a
consortium with a domestic bidder or subcontract domestic bidders.
In the 3 years before the bid submission deadline, the
bidder did not have employed personnel (signed a labor contract with the bidder
at the time they committed the violation) who were convicted by a court of a
bidding violation leading to serious criminal consequences, with the intent for
that bidder to win the contract;
b) The financial proposal is considered valid when it fully
meets the following requirements:
There is the original financial proposal.
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The validity of the financial proposal meets the
requirements as prescribed in the bidding documents.
4. Evaluation criteria of
bids, including: technical evaluation criteria; determine the lowest price
(if the least-cost selection is applied); combined evaluation criteria (if the
quality-and cost-based selection is applied).
5. Technical evaluation
criteria: using
scoring methods, including:
a) Bidder experience and capacity: from 0% to 15% of total
score;
b) Bidder's reputation through bidding participation,
bidder's contract performance result as prescribed in Articles 19 and 20 of
this Decree: 5% of total score;
c) Solutions and methodology to perform the package: from 30% to 40% of total
score;
d) Personnel performing the package: from 50% to 60% of total
score;
dd) Depending on the nature of the package, the bidding
documents may require technology transfer with a weight of from 0% to 10% of
the total score;
e) The total weight of score for the items specified in
Points a, b, c, d and dd of this Clause is 100%.
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6. Based on the scale and
nature of the package, the bidding documents stipulate the financial evaluation
method according to one of the following methods:
a) Least-cost selection;
b) Quality- and cost-based selection;
c) Quality-based selection.
7. Determination of the
lowest price (in case of applying the least-cost selection) is carried out
according to point c Clause 4 of Article 26 hereof.
8. Combined evaluation
criteria (in case of applying the quality- and cost-based selection);
a) Determine cost-based score:
Use a scale consistent with the quality-based scale to
determine the cost-based price. The cost-based score is determined as follows:
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Cost-based score under consideration: Cost-based
score of the financial proposal under consideration;
Lowest G: The lowest bid price (after error correction, deviation
adjustment, and any discounts) among bidders with detailed financial
evaluation;
Gunder consideration: The bid price (after
error correction, deviation adjustment, and any discounts) of the financial
proposal under consideration;
b) Combined evaluation criteria:
The aggregate score is determined according to the
following formula:
Aggregate score under consideration = K x
Quality-based score under consideration + G x Cost-based score under
consideration
Where:
Technical score under consideration: is the
score determined at the financial evaluation step;
Cost-based score under consideration: is the
score determined at the financial evaluation step;
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G: cost-based score weight given in the aggregate score
scale; accounting for 20% to 30%;
K + G = 100%.
Article 64. Appraisal of and approval for bidding documents
1. The appraisal of bidding
documents is not required; in cases where an appraisal is requested, it shall
comply with Article 135 of this Decree before approval.
2. Approval for bidding
documents must be made in writing based on the approval report and appraisal
report of bidding documents.
Article 65. Organization of contractor selection
1. Invitation for bids:
a) Invitations to bid are applied according
to Point b, Clause 1, Article 8 of the Bidding Law if the shortlisting
procedure is not applied;
b) In case the package applies the shortlisting procedure,
invitations to bid will be sent to the bidders named on the shortlist.
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3. Preparation,
submission, receipt, management, modification, and withdrawal of bids shall
comply with Clause 3, Article 28 of this Decree.
4. The technical proposal
opening shall comply with Clause 4 Article 40 of this Decree but exclude the
bid security. The
bid opening minutes will be sent to participating bidders and posted on VNEPS
within 24 hours upon bid opening.
Article 66. Principles for evaluating bids
1. The evaluation of bids
must be based on the bid evaluation criteria and other requirements in the
bidding documents, based on the submitted bids and clarifications to bids to
ensure the selection of a bidder with sufficient capacity and experience and a
feasible solution to perform the package; any content within the bidding
documents that restricts competition, as defined in Clause 2, Article 63 of
this Decree, will be disregarded during bid evaluation.
2. If the proposed similar
contract in the bid does not meet requirements of the bidding documents, the
employer may request the bidder to supplement or replace another similar
contract for evaluation within a reasonable timeframe.
3. The evaluation of a bid
is done on photocopies, the bidder is responsible for the consistency between
the original and the photocopies. In case there is a discrepancy between the original and the
photocopy but does not change the bidder ranking order, the evaluation will be
based on the original. In case there are discrepancies between the original and
the photocopy, leading to a different evaluation result on the original than
the evaluation result on the photocopy and causing a change in the bidder's
ranking order, the bid will be rejected and the bidder will be subject to fraud
allegations and will be addressed according to Point a, Clause 1, Article 133
of this Decree.
Article 67. Clarification to bids
1. After bid opening, the
bidder is responsible for clarifying the bids according to the request of the
procuring entity. If a bid lacks required documents on eligibility, similar
contracts, tax declaration and payment obligations, personnel, the employer
shall request clarification and additional documents,
2. After bid submission
deadline, if a bidder finds that their bid lacks required documents on
eligibility, similar contracts, tax declaration and payment obligations,
personnel, they will send clarification and additional documents to the
employer. The
employer shall receive the bidder's clarifications for review and evaluation;
additional and clarifying documents are an integral part of the bid.
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4. Clarification of a bid
is only done between the employer and the bidder whose bid needs to be
clarified. The clarifications to bid must be made in writing
and kept by the employer as an integral part of the bid.
5. The employer may verify
the authenticity of any doubtful documents of the bidder with relevant
organizations or individuals.
Article 68. Error correction and deviation adjustment
1. For types of
contracts in Article 64 of the Bidding Law, if the bidder omits the unit price
for one or more work items in the financial proposal although these work items
have been stated in the technical proposal as required in the bidding
documents, the missing unit price will be assumed to be distributed
proportionally among the other listed item in the bid.
2. For time-based
contracts:
a) In case the total value of the items is incorrect due to
an error when adding or subtracting the value of the items, the value of the
items is the basis for correcting the error;
b) In case of an error in the total bid price due to
addition or subtraction mistakes within the "Amount" column, the
individual values in the "Amount" column will be used to correct the
error.
c) If there is a discrepancy between the unit price and the
amount, the unit price will be used as the basis for error correction. Discrepancies between the
numerical and written bid price will be resolved as follows: if the written
price contains arithmetic errors, the numerical price is used after correction
based on points a and b of this Clause (if applicable); otherwise, the written
price will prevail;
d) In case of discrepancies between the technical proposal
and the financial proposal regarding: the number of personnel involved, the
number of working days, the quantity of each non-salary cost item, the number
of other input factors offered in the technical proposal and financial
proposal, the quantities specified in the technical proposal will be used as
the basis for error correction and deviation adjustment. Deviation adjustment in
this case is done according to the quantity and volume stated in the technical
proposal with the unit price stated in the financial proposal.
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In case of applying a lump-sum contract, the bid price
after discount (if any) proposed by the bidder in the letter of bid included in
the financial proposal is considered to include all necessary costs to perform
the package according to the scope of work stated in the bidding documents,
without error correction and deviation adjustment. Discrepancies between the
numerical and written bid price will be resolved as follows: if the written
price has a clear meaning, it takes precedence; if the written price has no
meaning, the numerical price is used.
4. For fixed unit price
contracts and adjustable unit price contracts:
Error correction and deviation adjustment are carried out
in accordance with Article 31 of this Decree.
5. Following error
correction and deviation adjustment (as outlined in Clauses 1, 2, 3, and 4
hereof), the employer shall notify the bidder of these adjustments in writing. Within 3 working days of
receiving such a notice from the employer, the bidder must notify the employer
in writing if they accept those adjustments. If the bidder refuses those adjustments, their bid will be
disqualified, unless the error correction, deviation adjustment are
inappropriate or inaccurate.
Article 69. Checking and evaluation of the validity of
technical proposals
1. Evaluate criteria for
the validity of a technical proposal:
The evaluation of validity of the technical proposal shall
comply with Clause 1 Article 42 of this Decree but exclude the bid security.
2. Evaluate the validity
of the technical proposal:
The technical proposal is considered valid when it fully
meets the requirements of Point a, Clause 3, Article 63 of this Decree. Bidders
with valid technical proposals will be evaluated for their technical aspect.
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a) The technical evaluation is carried out according to the
evaluation criteria specified in the bidding documents;
b) If a bid proposes a quantity of personnel for a key
position that deviates from the amount required in the bidding documents
(either exceeding or falling short), it will be considered non-compliant with
the technical requirements.
c) The bidder that meets the technical requirements or
achieves the highest technical score (for the quality-based selection) may have
their financial proposal opened and evaluated.
4. The expert team prepares
an evaluation report of technical proposals and sends it to the employer
for consideration. The list of technically-responsive bidders shall be
appraised in accordance with Clauses 1 and 3 Article 136 hereof. The list of
technically-responsive bidders shall be approved by the employer based on the
evaluation report of technical proposals, appraisal report of list of
technically-responsive bidders; if the technical-based method is applied, the
technically-responsive bidders in the evaluation report of technical proposals,
appraisal report of list of technically-responsive bidders shall be ranked. The employer shall notify
the list of technically-responsive bidders and non-responsive bidders, provide
the explanation for non-responsiveness, and invite all participating bidders to
open the financial proposals. The employer must post a list of
technically-responsive bidders on VNEPS within 5 working days from the date of
approval for this list.
Article 70. Opening, checking and evaluation of financial
proposals
1. The opening of
financial proposals shall comply with Article 43 of this Decree; for packages
applying the technical-based selection method, only the financial proposal of
the fist-ranked bidder shall be opened.
2. The evaluation of the
validity of financial proposals shall comply with point b Clause 3 Article 63
of this Decree.
Bidders with valid financial proposals will undergo a
detailed financial evaluation.
3. The detailed evaluation
of financial proposals, ranking of bidders, and submission of the bid
evaluation results shall comply with Clause 3 Article 44 of this Decree. The
employer does not have to approve the bidder ranking list.
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1. The first-ranked bidder
is invited by the employer to negotiate the contract. The contract negotiation
and principles of contract negotiation shall comply with Clause 2 and point a
Clause 3 Article 45 of this Decree.
2. Matters to be
negotiated:
a) Contents which are insufficiently detailed, unclear, or
inconsistent between the bidding documents and the bid, or within different
sections of the bid, which can lead to issues and disputes or affect the
responsibilities of the parties during contract performance;
b) Deviations identified and proposed by the bidder in
their bid (if applicable). This includes proposals for changes or alternative
solutions, if the bidding documents allowed bidders to submit such
alternatives;
c) Personnel:
Bidders cannot replace key personnel who have
been proposed in their bids, except in cases where the bid evaluation takes
longer than originally anticipated in the specific contractor selection plan or
force majeure prevents the proposed key personnel from performing the contract. In these cases, the
replacements must possess qualifications, experience and capacity equivalent to
or higher than the originally proposed personnel and the bidder is not allowed
to change their bid price;
d) Issues that arise during the contractor selection
process (if any) to finalize the detailed contents of the package;
dd) Costs related to consulting services based on the
requirements of the package and actual conditions.
e) Other essential contents.
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4. If the negotiation is
not successful, the employer will report to the employer for consideration and
decide whether to invite the next ranked bidder to negotiate.
Article 72. Appraisal of, approval for, and publication of
contractor selection result; completion, signing, and management of contract
The appraisal of, approval for, and publicization of
contractor selection result; completion, signing, and management of contracts
shall comply with Article 33, 34, and 35 of this Decree.
Section 2. INDIVIDUAL BIDDERS
Article 71. Selection of individual consultants
1. Individual consultant
may include one or a group of experts. If the consultant is a group of
experts, the experts will appoint a representative to deal with the employer. If the group of experts
wins the bid, all of the members must sign a contract with the employer in
person. Individual
consultants are selected based on their capacity and experience, and a fixed
price is agreed upon.
2. For individual
consulting service packages with a package price not exceeding 200 million
VND, contractor selection is carried out according to the shortened
process specified in Article 76 and Article 77 of this Decree. For
individual consulting service packages with a package price of over 300 million
VND, contractor selection is carried out according to the ordinary process
specified in Article 74 and Article 75 of this Decree.
Article 72. Preparation and approval for terms of
reference under ordinary procedures
1. The terms of reference
include:
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b) Requirements on scope, volume, quality and performance
duration of the package;
c) Requirements on capacity and qualifications of
consultants;
d) Conditions and location of contract performance;
dd) Package price according to the fixed price method;
e) Other necessary matters (if any).
2. Based on the documents
submitted by the expert team, the employer considers approving the
terms of reference.
Article 75. Posting of invitations to bid and evaluation of
individual consultants' scientific resumes; approval for the contractor
selection result; signing of contract; posting of individual consultant
selection result under ordinary procedures
1. After the terms of
reference are approved, the employer posts an invitation to bid along with the
terms of reference on VNEPS, clearly stating the deadline for receiving
scientific resumes. Individual consultants need at least 5 working days to
prepare a scientific resume.
Any clarification requests on the terms of reference must
be submitted through VNEPS at least 3 working days before the bid submission
deadline for consideration. The employer shall respond to the clarification
request on the VNEPS at least 2 working days before the bid submission
deadline.
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2. Submission of scientific
resumes:
Individual consultants prepare scientific resumes according
to the requirements stated in the terms of reference, technical proposals (if
any) and submit them on VNEPS.
3. Evaluation of
scientific resumes and result submission:
The scientific resume of each individual consultant is
evaluated based on the terms of reference. An individual consultant will be ranked first if they meet
all the following criteria: fulfill the eligibility requirement outlined in
Clause 3, Article 5 of the Bidding Law; have the best scientific resume and
technical proposal (if any), and meet the requirements of the terms of
reference. The
expert team prepares a report on the scientific resume evaluation and sends it
to the employer for consideration.
4. Contract negotiation:
The employer invites the first-ranked individual consultant
to negotiate the contract according to the approved terms of reference,
including the scope of work, performance schedule, reporting requirements,
consulting costs, contract prices and other necessary matters. The result of
contract negotiation is recorded in writing and must be signed by the employer
and the individual consultant.
5. Approval for individual
consultant selection result is based on the result of evaluating the individual
consultants' scientific resumes and contract negotiation result. The contract signed
between the parties must align with the decision approving the individual
consultant selection result, contract negotiation result, referencing clauses,
and other related documents.
6. The individual
consultant selection result is posted on VNEPS according to Point a, Clause 1
and Clause 4, Article 8 of the Bidding Law.
Article 76. Preparation and approval of terms of reference
and list of individual consultants under shortened procedures
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2. The employer identifies
a list of at least 3 individual consultants to submit to the employer for
approval.
Article 77. Sending of invitation letters and evaluation of
individual consultants' scientific resumes; approval for the contractor
selection result; signing of contract; posting of individual consultant
selection result under shortened procedures
1. After the terms of
reference and list of individual consultants are approved, the employer sends
invitation letters and terms of reference to the individual consultants named
on the list, clearly stating the deadline and location for receiving scientific
resumes. Individual
consultants need at least 03 working days to prepare a scientific resume.
2. Submission of
scientific resumes:
Individual consultants prepare scientific resumes according
to the requirements stated in the terms of reference and technical proposals
(if any) and submit them to the procuring entity within the time limit and
address stated in the invitation letter.
3. Evaluation of the
individual consultant's scientific resumes; contract negotiation; approval for
the contractor selection result; signing of contracts; posting of individual
consultant selection result shall comply with Clauses 3, 4, 5 and 6, Article 75
of this Decree.
Chapter V
DIRECT
CONTRACTING, SHOPPING METHOD, DIRECT PROCUREMENT, SELF-PERFORMANCE, CONTRACTOR
SELECTION IN SPECIAL CASES AND CONTRACTOR SELECTION TO PERFORM
COMMUNITY-INVOLVED PACKAGE
Section 1. DIRECT CONTRACTING
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1. Urgent bidding
packages, including:
a) Packages with urgent or emergency requirements to serve
the performance of national defense and security, external affairs or national
sovereignty protection tasks;
b) Packages which require acceleration in execution
progress to address immediate issues or mitigate the consequences of unforeseen
events such as natural disasters, fires, accidents, incidents, disasters, or
other force majeure events;
c) Packages which require acceleration in execution
progress to protect property, health and lives of people or avoid severe
impacts on adjacent structures;
d) Urgent packages which require acceleration in execution
progress to maintain the operations of medical establishments including: packages for consulting
and non-consulting services, drugs, chemicals, medical equipment, components,
accessories, vehicles, and construction; failure to implement these immediately
shall disrupt the operations of medical facilities and pose risks to patients’
health and lives;
dd) Packages which need to be executed to serve emergency
aid to patients as prescribed in the Law on Medical Examination and Treatment
(if any), including: packages for consulting and non-consulting services, drugs,
chemicals, medical equipment, components, accessories, vehicles, and
construction in cases of sudden demand, lack of alternative items, and
mandatory usage requirements to protect health and lives of patients;
e) Package for consulting and non-consulting services,
plant protection chemicals, veterinary drugs, crop seeds, disinfectants,
vaccines, supplies, and chemicals needed for disease prevention and control;
g) Packages for consulting and non-consulting services,
drugs (including vaccines and biological products), chemicals, testing
supplies, medical equipment (including vaccination supplies), components and
accessories, facilities, and construction should be initiated immediately upon:
written directives of competent authorities (health authorities or governments
at all levels), decisions on declaration of an epidemic for an infectious
disease, or a locality’s request to declare an epidemic for an infectious
disease of group A (as per the law);
h) Package for consulting and non-consulting services,
drugs, chemicals, testing supplies, medical equipment, components and
accessories, facilities, and construction for to establish, renovate, and build
treatment areas, field hospitals serving epidemic prevention and control
when existing supplies at the health facility are insufficient;
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k) Packages belonging to an emergency public investment
project according to laws on public investment.
2. Packages which need to
be finished faster than originally planned, ensure quality, and efficiency,
including:
a) Package of the project or procurement estimate which
require immediate execution to ensure the timely completion as per directives
in the Resolutions of the National Assembly of Vietnam, Resolutions of the
Government of Vietnam, Decisions, Directives, and written notifications given
by competent authorities;
b) Investment projects which require immediate execution to
ensure connectivity and technical infrastructure synchronization of project's
facilities as directed in Resolutions of the National Assembly of Vietnam;
Government's Resolutions; Decisions, Directives, or notifications of the
Government's leaders to meet the requirements to ensure effective management,
operation, and continuous operation;
c) Packages belonging to a special public investment
project according to laws on public investment;
d) Packages for provision of conference, seminar, congress,
and training session organizing services (including catering, accommodation,
transportation for delegates; renting equipment, conference rooms, meeting
rooms, and related services) with the requirement to arrange centralized dining
and accommodation locations for delegates and to be carried out urgently;
consultancy packages for design, construction, and installation of booths at
fairs, exhibitions to be carried out urgently to organize national events,
holidays; procurement packages for national reserve goods, service provision in
emergency situations and urgent situations, and national reserve goods storage
for items with special requirements, conditions for specialized storage,
expertise, technical regulations according to the laws on national reserves;
packages for transportation, loading and unloading, packaging, insurance, and
other services related to the export of national reserve goods for relief,
support, aid, serving the foreign affairs tasks of the Communist Party of
Vietnam, the State of Vietnam;
dd) Packages for repairing and renovating working
headquarters, official residence for provincial- and/or commune-level officials
to meet requirements of digital transformation, information technology which
require immediate execution to serve the reorganization of administrative
divisions, state apparatus;
e) Construction packages with a scale and nature similar to
the previous package which has been organized in the form of competitive
bidding or limited bidding and the contractor has met the schedule, ensured
quality, and efficiency over a period of 5 years from the time on which the
contract is signed until the approval of the contractor selection plan;
g) Other cases applying direct contracting to select a
bidder to implement the package that meets the schedule, quality, and
efficiency of the package, project, procurement estimate.
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a) Packages for special scientific research projects,
technology innovation projects, in accordance with laws on science, technology,
and innovation;
b) Packages requiring the application of technology or
products listed in the strategic technology list specified in laws on high
technology; packages requiring the use of goods, services in strategic fields stipulated
in laws on specific sectors and fields;
c) Packages involving the lease or procurement of digital
technology products and services using the state budget funds to implement key
tasks of the national digital transformation or as required by resolutions of
the National Assembly of Vietnam, Standing Committee of the National Assembly
of Vietnam, the Government of Vietnam, or decisions of the Prime Minister
of Vietnam;
d) Packages for development, expansion, and
upgrade: National
integrated database, national database, national reporting information system;
integrated data sharing platform, software, shared databases of ministries,
departments, and local governments; document management system, operation
system, specialized databases of ministries, provinces; administrative
procedure settlement information system of ministries, provinces; smart
monitoring and operation centers; online public service provision systems at
national, ministerial, and local levels; national or regional-scale digital
platforms or information systems.
4. Procurement packages under a procurement estimate
without forming a project which has a package price not exceeding 500 million
VND; consulting service packages under a project has a package price not
exceeding 800 million VND; and packages for non-consulting services, goods,
construction, and mixed services under a project has a package price not
exceeding 2 billion VND.
5. Packages specific professional,
operational, technical, supply market requirements or conditions, including:
a) Procurement package for goods and services provided by a
manufacturer or supplier; procurement package for drugs, medical equipment
provided the only manufacturer on the market.
b) Procurement packages for printing, providing stamps,
receipts, and seals stipulated in laws on taxes and customs; packages for
printing election materials;
c) Packages for consulting, relocating technical
infrastructure works to serve land clearance and resettlement tasks; packages
for consulting, explosives clearance for site preparation
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dd) Packages for research, testing, purchasing intellectual
property rights, purchasing broadcasting program copyrights; consulting
packages, procurement packages for equipment serving the information technology
application in management, monitoring, and preservation of goods in the
national reserve warehouse system; packages for upgrading and maintaining
telecommunications infrastructure to provide universal telecommunications
services in areas where there is only one enterprise providing universal
telecommunications services according to the program providing public utility
telecommunications services and telecommunications laws;
e) Packages for selecting consulting
organizations to develop and adjust tasks, develop and adjust plans as
stipulated in planning laws and laws regarding to technical and specialized
planning;
g) Packages for leasing of warehouse facilities for
impounded goods; packages for hiring of transport and handling services for
impounded goods at seaports and concentrated inspection places in case there is
only one entity providing such services in the port; packages for import of
sporting weapons to serve training activities and annual sports competitions of
sports training centers, schools and clubs;
h) Consulting service packages for preparation of
feasibility study reports or construction engineering which are designated to
the authors of work architecture designs that win the bidding or are selected
when they satisfy relevant capacity requirements laid down in the Law on
construction; packages for construction or reconstruction of monuments, relief,
grant murals and artistic works subject to copyright from the stage of creation
to the stage of construction; consulting service packages for preparation of
urban and rural plannings which are designated to the authors of urban and
rural planning initiatives that have been successful in the urban and rural
planning competition; consulting service packages for archaeological
exploration and excavation; packages for consultancy on or execution of
renovation or restoration of national-level monuments, special national-level monuments
and world cultural heritage sites;
6. Packages with
requirements for protecting state secrets as per laws on state secrets
protection.
7. Packages of nationally
important projects eligible for direct contracting according to the National
Assembly’s resolutions issued when deciding investment guidelines; packages
eligible for direct contracting according to laws on specific sectors and
fields.
For packages eligible for direct contracting according to
this Clause, based on the completion progress of the package, the employer
shall carry out the direct contracting under the ordinary procedure or
simplified procedure in accordance with Article 79, Clause 2 and Clause 3
Article 80 of this Decree. If any provisions of this Decree are different from
those of any National Assembly’s resolution or laws on specific sectors and
fields, provisions of National Assembly’s resolutions or laws on specific
sectors and fields shall prevail.
Article 79. Ordinary procedures for direct contracting
1. Ordinary procedures for direct contracting shall apply to packages specified in points c, d, dd, e, g
and h Clause 5, Clause 6 of Article 78 hereof.
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a) The contractor selection plan has been approved;
b) Funding is available for the package, except for the
cases specified in Article 42 of the Law on Bidding;
c) The cost estimate has been approved as
required by laws on specific sectors and fields (if any).
3. The ordinary procedures
for direct contracting are as follows:
a) Preparation, evaluation, approval of RFPs:
Approval for RFPs must be based on the approval report and
appraisal report of RFPs (if any). The appraisal of RFPs is not required; in cases
where an appraisal is requested, it shall comply with Article 135 of this
Decree.
Contents of the RFP: brief description of the project, procurement estimate,
package; instructions for preparing and submitting proposals; instructions for
preparing and submitting proposals (if any); technical evaluation criteria;
determine the package price for direct contracting; contract conditions. The specific requirements
for each criterion will be determined based on the individual package
requirements.
Pass and fail criteria shall apply for capacity and
experience evaluation and technical evaluation for construction packages, goods
procurement packages, non-consulting packages, and mixed packages; scoring
method shall apply for technical evaluation for consulting packages. RFPs may specify the
specific marking, label, and origin of goods; specific technical requirements
of the goods and services (if applicable).
b) Issuance, clarification, and modification of RFPs:
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The bidder expected to receive the direct contracting must
meet eligibility requirements as prescribed in Points a, b, c, d, e, g, and i,
Clause 1, Article 5 of the Bidding Law; or the bidder being a household
business that meets eligibility requirements specified in points d and e,
Clause 1 and points a and b, Clause 2, Article 5 of the Bidding Law. For goods procurement
packages, an individual and group of individuals may also participate as
bidders to offer their own innovative products in accordance with Clause 3 Article
5 of the Bidding Law. Bidders must be independent from other organizations and
individuals in bidding participation and contract performance in accordance
with regulations (if any).
The RFP shall be issued on VNEPS for the bidder expected to
receive direct contracting. The clarification and modification of RFPs shall be
conducted on VNEPS before the bid submission deadline.
c) Submission of proposals, evaluation of proposals, and
negotiation of the bidder's proposals:
The bidder prepares and submits the proposal on VNEPS based
on the RFP. Proposals
shall be opened after the bid submission deadline.
The evaluation of proposals shall be conducted based on the
evaluation criteria specified in the RFP. During evaluation, the employer shall invite the bidder to
negotiate, clarify, amend, or supplement the content of the proposal to prove
compliance with the requirements for capabilities, experience, progress,
volume, quality, technical solutions, and implementation methods of the
package; negotiate on the price to ensure the economy and cost-effectiveness..
In cases where a goods procurement package or EP, PC, or
EPC mixed package lacks sufficient data for price referencing as prescribed in
Points a, c, dd, e, and g, Clause 2, Article 18 of this Decree, or where
necessary, the employer may require the bidder to provide a breakdown of the
goods' price structure to serve as the basis for negotiating the successful bid
price.
The bidder expected to receive the direct contracting must
meets all the following conditions: It has a valid proposal; possesses the capabilities,
experience and proposed technical solutions that meet the requirements of the
RFP; and has a proposed winning price that does not exceed the approved bid
price.
d) Appraisal, approval, and publication of contractor
selection results:
The appraisal of contractor selection results is not
required; in cases where an appraisal is requested, it shall comply with Clause
4 Article 136 of this Decree. The appraisal of, approval for, and
publicization of contractor selection result shall comply with Article 33 of
this Decree. RFPs, bid opening minutes, and evaluation reports shall be
published on VNEPS at the time the employer publishes the contractor selection
result.
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The contract signed between the parties must be consistent
with the decision on approval for direct contracting result, proposals, RFPs,
and other related documents. The completion, signing, and management of
contracts shall comply with Article 34 and Article 35 of this Decree.
For packages with requirements for protecting state secrets
prescribed in Clause 6, Article 78 of this Decree and packages applying
international direct contracting, the contents specified in points a, b, c, and
d of this Clause shall be performed directly between the employer and the
contractor and not be required to perform on VNEPS.
Article 80. Shortened procedures for direct
contracting
1. For packages specified in Clause 1 Article 78 hereof,
based on the scale and nature of the package, and the preliminary information
about the ability to execute the package of bidders, the employer or the agency
directly managing the package shall identify and assign it to a bidder capable
of immediately performing the package. Within 15 days from the start date of performing the
package, the parties must complete the direct contracting procedure stipulated
in Clause 3 hereof. The conditions specified in Clause 2 Article 79 hereof do
not apply to the direct contracting.
2. For packages specified in Clauses 2, 3, 4 and points a,
b Clause 5 Article 79 hereof, the employer shall apply the
shortened procedures for direct contracting specified in Clause 3 hereof.
The conditions specified in Clause 2 Article 79 hereof shall apply to the
direct contracting procedures.
3. The direct contracting
procedure including the following steps:
a) Prepare and send a draft contract to the
bidder:
The employer shall, based on the objectives and scope of
work, prepare and send a draft contract to the bidder intended to have
capability to execute the package; for the packages specified in point e Clause
2 Article 78 hereof, the employer shall send a draft contract to the bidder who
won the bid through competitive bidding or limited bidding and has already
signed a contract to execute the previous contract. The draft contract must
contain the scope and content of the work to be performed, performance
duration, quality of work to be achieved, corresponding value, and other
relevant contents.
The bidder proposed for direct contracting must meet
eligibility requirements as prescribed in Points a, b, c, d, e, g and i, Clause
1, Article 5 of the Bidding Law; or the bidder being a household business that
meets eligibility requirements specified in Points a and b, Clause 2 and Points
d, e, Clause 1, Article 5 of the Bidding Law. For goods procurement packages, in addition to
organizations, individuals and group of individuals may also participate as
bidders to offer their own innovative products in accordance with Clause 3
Article 5 of this Decree shall be proposed to receive direct contracting and
RFP. Bidders
must be independent from other organizations and individuals in bidding
participation and contract performance in accordance with regulations (if any).
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Based on the draft contract, the employer and the bidder
proposed for direct contracting shall complete the contract to serve as a basis
for approving contractor selection result and signing contract. During the contract
completion process, the employer and the bidder shall negotiate the price to
ensure that the proposed wining price is cost-effective and economical; for
construction packages applying direct contracting as prescribed in point e
Clause 2 Article 78 hereof, the employer and the bidder shall negotiate the
price to ensure a minimum saving of 5% of the bid price.
The publicization of contractor selection result shall
comply with Clause 5 Article 33 of this Decree.
c) Sign and manage contract performance:
The contract signed between the parties must be consistent
with the decision on approval for contractor selection result and other related
documents. The management of contract performance shall comply with Article 35
of this Decree.
4. For packages or items with a value not exceeding 50
million VND, the head of the procuring entity shall be responsible for his/her
procurement decision ensuring cost-effectiveness and efficiency. The conditions
stipulated in Clause 2 of Article 79 of this Decree and procedures stipulated
in Clause 3 of this Article are not required, provided that all regulations
regarding invoices and documents are fully observed in accordance with the
provisions of law or the shortened procedure for direct contracting
stipulated in Clause 3 hereof is applied.
5. In the case where the
employer follows the ordinary procedures, they shall carry out the procedures
stipulated in Article 79 hereof.
Section 2. SHOPPING METHOD, DIRECT PROCUREMENT,
SELF-PERFORMANCE
Article 81. Shopping method process
Shopping method applies to packages specified in Clause 1
Article 24 of the Law on Bidding with a package price not exceeding 10 billion
VND. The
shopping method is conducted according to the following process:
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a) Bidding documents are prepared in accordance with Clause
1 and Clause 2, Article 26 of this Decree. The bidding documents must contain: brief description of the
project, procurement estimate, package; instructions to bidders; bid data
sheet; evaluation criteria for the validity of bids; evaluation criteria for
capacity, experience and technical evaluation using pass and fail criteria;
financial evaluation criteria according to the least-cost selection or
evaluated price selection method. For goods procurement and construction
packages, depending on the scale and nature of the package, bidding documents
may or may not include evaluation criteria for capacity and experience, but
bidders must commit to having sufficient capacity and experience to perform the
package. For
non-consulting service packages, bidding documents do not require evaluation
criteria of capacity and experience.
For goods procurement packages, bidders who are individuals
or groups offering innovative products that meet the requirements Clause 4
Article 6 hereof may be exempt from certain criteria outlined in Clause 3
Article 10 hereof. Bidders being household businesses are exempt from
submitting financial statements and meeting net asset value requirements;
b) Approval for bidding documents
Approval for bidding documents must be based on the
approval report, not on of bidding documents.
2. Organization of
contractor selection:
a) The employer posts the invitation to bid and bidding
documents on VNEPS according to Point b, Clause 1, Article 8 of the Bidding
Law;
b) The issuance, amendments or clarifications to the
bidding documents shall comply with Clause 2, Article 28 of this Decree; the
time limit for preparing competitive bids must be at least 07 working days;
c) Bidders submit bids according to the requirements of the
bidding documents on VNEPS;
d) The employer shall organize the bid opening and publish
the bid opening record on VNEPS within 02 hours from the bid submission
deadline. The
minutes of bid opening includes the following contents: name of bidder; bid
price; discount (if any); validity period of bid; value and validity
period of bid security; package performance duration. The bid opening minute
shall be published on VNEPS within 24 hours from the bid opening time.
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a) The bid evaluation principles shall comply with Article
29 of this Decree;
b) The bid clarification shall comply with Article 30 of
this Decree;
c) Error correction and deviation adjustment are carried
out in accordance with Article 31 of this Decree;
d) The bid evaluation shall comply with Article 32 of this
Decree;
dd) Bidder ranking shall be carried out according to
regulations in the bidding documents (If there is more than 01 bidder). The bidder who has the
lowest bid price (after error correction, any deviation adjustment,
and any discounts) (for the least-cost selection) or has the lowest
evaluated price (for the evaluated price selection) is ranked first.
4. Approval for, and
publication of contractor selection results:
The approval for, and publication of contractor selection
results shall comply with Article 33 hereof; the contractor selection results
are not required to be appraised.
5. Complete, sign, and
manage contract performance:
The contract signed between the parties must be consistent
with the decision on approval for contractor selection result, the bid, the
bidding documents, and other related documents. The completion, signing,
and management of contracts shall comply with Article 34 and Article 35 of this
Decree.
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1. The employer may only
apply direct procurement once for goods in the package expected to apply direct
procurement within the project execution duration or within a budget year or
fiscal year of the procurement estimate; regarding procurement estimates,
if the package expected to apply direct procurement has an execution period
longer than one year, direct procurement may only be applied once for the goods
in that package in all years of the procurement estimate.
2. Contractor selection
preparation, including:
a) Preparation of RFPs:
The RFPs includes brief description of the project,
procurement estimate, and package; requirements on updated information on
bidder’s eligibility, capacity and experience; requirements on supply schedule
and commitment to provide goods to ensure technical specifications and quality
as required by previous bidding documents; requirements on unit prices of goods
and other necessary matters.
In case of direct procurement with other bidders according
to Clause 3, Article 25 of the Bidding Law, the RFPs includes evaluation
criteria for eligibility, capacity, experience, and technique prescribed in
Article 26 of this Decree;
b) Approval of RFPs:
Approval for RFPs must be based on the approval report, not
on appraisal of RFPs.
3. The RFPs is issued to
the pre-selected bidder. If this bidder is unable to continue performing
or refuses to perform the direct procurement package, the employer shall select
replacement bidder in this order of priority: a bidder ranked on the previous
package’s list, or another bidder who meets the requirements in Clause 3,
Article 25 of the Bidding Law.
4. The bidder prepares and
submits the proposal based on the RFP.
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a) Evaluation of the proposal, including: checking the technical
aspect and unit price; update information about bidders' capabilities; if
choosing a bidder for direct procurement different from the previous successful
bidder, the expert team must evaluate the eligibility, capacity and experience
of that bidder according to Article 32 of this Decree; evaluate performance
progress, measures to provide goods, technical solutions and measures to
perform the package; other matters (if any);
b) During the evaluation process, the employer invites the
bidder to negotiate or clarify the proposal details to demonstrate that they
meet the requirements of capacity, experience and progress, quality,
technical solutions and measures to perform the package.
If the VAT law changes after a direct procurement contract
is signed, the unit price (including VAT) for the goods cannot exceed the sum
of the pre-tax value in the contract and the new VAT amount at the time of
applying the direct procurement contract;
c) A bidder is proposed to win the bid if they meet the
requirements of Article 61 of the Law on Bidding and the offered goods are
identical to the previously awarded goods in terms of manufacturer,
origin, marking, and trademark. If the offered goods have a new production
version and production year compared to the goods stated in the contract, the
situation shall be handled according to Clause 27, Article 140 of this Decree.
6. Approval for and
publication of direct procurement result:
The approval for, and publication of direct procurement
result shall comply with Article 33 hereof; the direct procurement result is
not required to be appraised.
7. Complete, sign, and
manage contract performance:
The contract signed between the parties must be consistent
with the decision on approval for direct procurement result, proposal, RFPs,
and other related documents. The completion and management of contracts
shall comply with Article 34 and Article 35 of this Decree.
Article 83. Self-performance process
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The self-performance plan includes requirements on scope
and content of work; value and performance duration; quality of work to be
performed; acceptance and payment conditions; work assignment agreement or work
assignment document for a dependent accounting unit or affiliated unit
(hereinafter referred to as the unit assigned to perform the package).
Payment of salaries, allowances, management costs and other
costs shall be agreed upon by the employer and the unit assigned to perform the
package.
2. Finalize the
self-performance plan:
The employer and the assigned unit will work together to
complete any unclear, incomplete, or unsuitable details in the self-performance
plan, draft assignment agreement, assignment documents, and any other relevant
matters.
3. Approve and publicize
contractor selection result.
4. Sign the work
assignment agreement and manage the package performance:
a) The organization that directly manages and uses the
package shall sign a work assignment agreement with the unit assigned to
perform the package or issue a work assignment document;
b) If the law requires on-site supervision for the package,
the organization that directly manages and uses the package will select a
consultant which is legally and financially independent from that organization
(following the Bidding Law) to supervise the package performance process;
c) If the law does not require independent supervision, no
independent supervision consultant is interested or available as the package is
performed in a disadvantaged area, or the package price of the package is under
1 billion VND, the organization that directly manages and uses the package must
supervise the package performance on their own.
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Article 84. Packages applying contractor selection in
special case
1. Contract packages for
performance of political objectives and national interests as directed in
Resolutions, Conclusions, and guiding documents of the Central Committee of the
Communist Party of Vietnam, the Politburo, the Secretariat, and key leaders of
the Communist Party of Vietnam and the State of Vietnam for which project
execution and contract package performance or requirements thereof cannot be
fulfilled if any of the contractor selection methods specified in Articles 21,
22, 23, 24, 25, 26, 27, 28 and 29a of the Bidding Law is applied.
2. Packages with strict
national defense and security, external affairs, border and territorial
security requirements during their implementation for which project execution
and contract package performance or requirements thereof cannot be fulfilled if
any of the contractor selection methods specified in Articles 21, 22, 23, 24,
25, 26, 27, 28, and 29a of the Bidding Law is applied.
3. Packages with specific
characteristics related to scientific and technological development,
innovation, and digital transformation for which project execution and contract
package performance or requirements thereof cannot be fulfilled if any of the
contractor selection methods specified in Articles 21, 22, 23, 24, 25, 26, 27,
28, and 29a of the Bidding Law is applied.
4. Packages with one or
several specific conditions in terms of processes, procedures, criteria for
contractor selection, conditions for signing and performing the contract,
including:
a) Packages for procurement of drugs and vaccines under trials purchased
under their manufacturers’ specific purchase, payment, guarantee, security
requirements and other conditions imposed during the contract execution;
packages for procurement of drugs, vaccines and medical devices through
international organizations;
b) Packages for procurement of domestic vaccines used in
the expanded program on immunization in case where there is only one domestic
manufacturer
c) Selection of lawyers or solicitors providing
legal services for protection of legitimate rights and interests of the State
of Vietnam and foreign regulatory authorities at investigative bodies for
application of trade remedies and national, foreign, or international
jurisdictional bodies or dispute resolution bodies;
d) Packages for purchase of plane tickets for
domestic and international delegations;
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e) Contract packages for verification of the
pre-feasibility study reports or feasibility study reports under the project
which is decided or has the investment guidelines approved by the National
Assembly of Vietnam;
g) Packages for valuation, valuation consulting to
determine the value of assets related to urgent criminal issues and cases
requested by the competent authorities;
h) Packages for provision of conference, seminar,
international legal forum organizing services in Vietnam;
i) Packages for direct provision of intensive
training for regulatory authorities and public service providers by foreign
training institutions in foreign countries; packages for provision of
professional training courses in specific areas for officials which need the
participation of authorities that are competent or in charge of performing
professional training tasks assigned by competent authorities;
k) Packages for performance of political objectives
assigned by the Central Committee of the Communist Party of Vietnam, the
Politburo, the Secretariat, and key leaders of the Communist Party of Vietnam
and the State of Vietnam, Ministers, Heads of ministerial authorities,
Governmental authorities, and other central authorities (hereinafter referred
to as “heads of central authorities”), Chairpersons of provincial People's
Committees, including: dissemination of information on printed newspapers, online
newspapers, radio and television stations, and other means of mass media in
case such information dissemination activities are performed under contracts
signed directly by the authorities that are granted information dissemination
funding with these organizations; cooperation in film production; packages for
purchase of information from foreign news agencies, foreign press organizations
and for printing of media publications for disseminating principles and
policies of the Communist Party or the State of Vietnam;
l) Packages for production of broadcasting programs;
artistic performances to serve political objectives;
m) Packages for purchasing services from internationally
credit rating agencies; packages for purchasing international payment services
(including associated equipment) exclusively provided by the Society for
Worldwide Interbank Financial Telecommunications (SWIFT); packages for
purchasing services from international financial and currency information
providers and transaction platforms; packages for purchasing international
legal database and resolution of international investment disputes;
n) Packages for proving school meals or purchasing ingredients to
supply school meals for boarding and semi-boarding students at public
educational institutions; packages for proving meals for athletes and coaches
at sports training institutions or meals for domestic and international sports
events in Vietnam; purchasing raw materials to supply meals for athletes and
coaches at sports training institutions or drug addicts in rehabilitation
centers or detainees or people in custody at detention facilities within the
armed forces;
o) Packages for purchasing insurance for members of
Vietnam’s sports delegations participating in international sports events;
package for doping testing to serve domestic and international sports events
held in Vietnam;
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q) Packages involving the lease or procurement of digital
technology products and services using the state budget funds to implement key
tasks of the national digital transformation or as required by resolutions of
the National Assembly of Vietnam, Standing Committee of the National Assembly
of Vietnam, the Government of Vietnam, or decisions of the Prime Minister of
Vietnam;
r) Packages for goods or services procurement sold at
uniform price as stipulated by the State of Vietnam, including: electricity,
water, fuel, environmental sanitation fees, fixed telephone charges,
maintenance of fixed telephone switchboard systems, and other similar goods and
services;
s) Packages for leasing driving test centers; packages for
serving foreign affairs activities of reception of international delegations
visiting and working in Vietnam in accordance with regulations on diplomatic
ceremonials; packages for purchases of diplomatic gifts for leaders of the
Communist Party of Vietnam, the State of Vietnam, Ministers, Heads of central
authorities traveling abroad on work trips or given to international
delegations visiting and working in Vietnam; packages for purchase of police
dogs, police dog training, purchase of drugs, explosives, drug or explosive
scent pads used in police dog training;
t) Packages for purchasing underwriting services, legal
advice services, and other services, other agents to implement the Government
bond issuance project on the international capital market;
u) Packages under other projects or procurement estimates
having one or some specific requirements regarding contractor selection
criteria and procedures, and contract signing and execution that not fall under
any of the cases specified in points a, b, c, d, dd, e, g, h, i, k, l, m, n, o,
p, q, r, s and t of this Clause
Article 85. Procedures for contractor selection in special
cases
1. For packages specified in
Clause 1, Clause 2, Clause 3 and points i, k, l, m, n, o, p, q, r, s and u
Clause 4 Article 84 of this Decree, the employer shall:
a) Prepare and approve the contractor selection plan:
Packages for serving foreign affairs activities of
reception of international delegations visiting and working in Vietnam in
accordance with regulations on diplomatic ceremonials; packages for purchases
of diplomatic gifts for leaders of the Communist Party of Vietnam, the State of
Vietnam, Ministers, Heads of ministerial authorities traveling abroad on work
trips or given to international delegations visiting and working in Vietnam
specified in point s Clause 4 Article 84 hereof are not subject to this point.
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c) Approve and publicize contractor selection result;
d) Sign and manage contract performance:
The contract must contain the scope and content of the work
to be performed, performance duration, quality of work to be achieved, and
corresponding value. The signing and management of contracts shall comply with
Article 34 and Article 35 of this Decree.
dd) The contractor selection plan, contractor selection
results, and other bidding information shall be published in accordance with
Article 7 and Article 8 of Bidding Law.
In cases specified in point n, clause 4, Article 84 of this
Decree, if the public educational institution, rehabilitation center, or
detention facility affiliated to the armed forces is located in an extremely disadvantaged
area as prescribed in investment laws or border area or island, the head of
such facility may decide providing school meals or purchasing ingredients
ensuring cost-effectiveness, efficiency, and reporting regime based on invoices
and records without having to follow the procedures stipulated in this Clause.
In cases specified in point r Clause 4 Article 84 of this
Decree, the employer shall sign a contract with the supplier stipulated in
point d of this Clause without having to follow the procedures stipulated in
points a, b, c, and dd of this Clause.
In cases specified in clause 1, clause 2, clause 3, and
points m, u, clause 4 Article 84 of this Decree, where the application of
procedures specified in this Clause cannot meet the requirements of
implementation, package, or project, the employer shall approve another
contractor selection procedure to select a bidder with sufficient capacity and
experience to ensure the progress, quality, and efficiency of the package.
2. For packages specified
in point a Clause 4 Article 84 of this Decree:
a) The employer shall provide an explanation in proposal
about basis for applying contractor selection in special cases, selected bidder
(if any), and draft contractor selection plan for special cases, including: contractor selection
procedures and other relevant contents to meet specific conditions of the
package under the project or procurement estimate to ensure the selection of a
bidder with sufficient capacity and experience to implement the package,
ensuring progress, quality, and efficiency.
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In the cases where an international organization or a
manufacturer of drugs, vaccines, or medical equipment has specific regulations
regarding purchasing conditions, contract signing conditions (if any),
advances, and payments as binding conditions for the supply of drugs, vaccines,
and medical equipment, regulations of such international organization or
manufacturer is applicable.
3. For packages specified
in point b Clause 4 Article 84 of this Decree:
a) The Minister of Health shall assign an affiliated agency
or unit to fulfill the responsibilities of the employer in vaccine procurement;
b) The quantity and types of vaccines to be purchased,
vaccine supply time (which may place a vaccine order for more than 1 year),
estimated unit price, package price, and other contents shall be estimated
based on the expanded immunization plan. The employer shall approve the
decision to place an order and sign a contract with domestic vaccine
manufacturers to produce and supply vaccines for the Expanded Immunization
Program. In
cases of multi-year procurement, the procurement value for each year must be
estimated;
c) Before December 31, vaccine manufacturers shall prepare
a pricing planning documentation corresponding to the supply quantity for the
Expanded Immunization Program and submit it to the Ministry of Health. The
Ministry of Health shall forward it to the Ministry of Finance for appraisal, approval, and
notification of the maximum vaccine price;
d) Based on the maximum vaccine price notified by the
Ministry of Finance, the Ministry of Health shall decide approving the specific
price that does not exceed the maximum
price.
The annual contract settlement value shall be determined based on the quantity
of vaccines and the specific price approved by the Ministry of Health.
4. For packages specified
in point c Clause 4 Article 84 of this Decree:
a) The agency handling the lawsuit shall establish
criteria, terms of reference, and control mechanism for law-practicing
organizations, lawyers to determine a list of (no less than 03) law-practicing
organizations, lawyers expected to be hired; only law-practicing organizations
and reputable, experienced lawyers are named in this list;
b) The agency handling the lawsuit will negotiate legal
service contracts with the most advantageous law-practicing organizations and
lawyers based on the criteria, terms of reference and control mechanism of
law-practicing organizations and lawyers in the lawsuit;
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d) The agency handling the lawsuit finalizes and signs a
legal service contract with the chosen law-practicing organization, lawyer.
5. For packages specified in point c Clause 4 Article 84 of
this Decree:
a) For international business trips, based on the approved
work plan and flight itinerary, the agency receiving budget and responsible for
buying air tickets must obtain at least two quotes from two different air
ticket agents (or quotes from one air ticket agent representing at least two
airlines, with at least one being Vietnam national airline). These quotes
should be for the same flight itinerary and will be compared to select the most
suitable provider on the basis of meeting the requirements: direct flight, suitable
for work schedule; offers the lowest total price, including airfare (taxes and
surcharges), travel expenses, and airport wait time fees. The head of agency
responsible for airfare purchases must prioritize cost-effectiveness when
contracting with the airline and remains accountable for their decisions. In
case of changing flight routes abroad due to business needs, the agency head
shall decide the airfare purchases based on the request of the head of the
mission;
b) For groups going on domestic business trips:
The agency head responsible for airfare purchases must
prioritize cost-effectiveness when contracting with the airline and remains
accountable for their decisions;
c) Airfare purchases for domestic and international
business trips according to points a and b of this Clause do not require the
preparation, appraisal, and approval for a specific contractor selection plan.
6. For packages specified
in point dd Clause 4 Article 84 of this Decree, the employer shall:
a) Negotiate contract with bidders having sufficient
capacity, meeting the selection criteria and conditions determined by the
competent authority according to laws on social insurance, unemployment
insurance, health insurance;
b) Approve and publicize contractor selection result;
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7. For packages specified
in point e Clause 4 Article 84 of this Decree:
a) The interdisciplinary Appraisal Expert Group shall
determine the capacity and experience of consulting contractors to immediately
provide consulting services in accordance with regulations, and report to the
Chairperson of the State Appraisal Council for approval;
b) Within 15 days from the approval of the Chairperson of
the State Appraisal Council, The interdisciplinary Appraisal Expert Group must
complete the following procedures: Prepare and send a draft contract to the consulting
contractor, specifying the scope, content of the work to be performed,
performance duration, quality of work to be achieved, and contract value for
contract negotiation and finalization; conduct the contract negotiation and
finalization; submit the selection results to the Chairperson of the State
Appraisal Council for approval; prepare to sign the contract with the selected
consulting contractor. The contract shall be signed between three parties,
including the representative of the State Appraisal Council, the employer
(investor or agency assigned to prepare the project) and the selected
consulting contractor.
8. For contract packages
specified in points g and h Clause 4 Article 84 of this Decree, the employer or
Asset Valuation Council (in cases where the Asset Valuation Council
receives budget from the competent authority) shall:
a) Send a draft contract to the bidder with sufficient
capacity and experience, specifying the requirements for the scope and content
of the work to be performed, performance duration, quality of work to be
achieved, and corresponding value for contract negotiation;
b) Approve the contractor selection result and sign a
contract with the successful bidder.
9. For packages specified
in point t Clause 4 Article 84 of this Decree, the employer shall:
a) Organize the selection, evaluate the proposals, and
negotiate on the proposals of providers of underwriting services and/or legal
advice services, and other relevant agents based on evaluation criteria and the
shortlist of bidders approved by the Government in the Government's
international bond issuance project;
b) Approve the selection of providers of underwriting
services and/or legal advice services, and other relevant agents;
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Section 4. CONTRACTOR SELECTION TO PERFORM
COMMUNITY-INVOLVED PACKAGE
Article 86. Eligibility of residential communities, unions,
and worker group in local areas
1. Residential
communities, unions, and worker groups in local areas are eligible to
participate in the performance of a package specified in Article 27 of the
Bidding Law if citizens in the residential communities, local workers, or union
members live and reside in the local area where the package is
performed and benefit from the package.
2. The designated
representative of a residential community, union, or worker group must meet the
following criteria to sign a contract on their behalf: have active legal
capacity according to the law, not be subject to criminal prosecution, and be
recognized by the residential community, union, worker group.
Article 87. Process for selecting bidders being residential
communities, unions, and worker groups
1. After obtaining an
approved specific contractor selection plan, the employer drafts a contract
including requirements on the scope and content of work to be performed,
quality and progress of work to be achieved, contract price, rights and obligations
of the parties.
2. The employer posts a
public notice of invitation to perform the package at the headquarters of the
Commune People's Committee and announces it on commune-level media so that
residential communities, unions, and worker groups in the area know. The notice must clearly
state the meeting time to discuss the plan for package performance.
3. Interested communities,
organizations, and worker groups receive a draft contract to research and
prepare an eligibility documentation including the following contents: full name, age, capacity
and experience suitable for the nature of the package of the members
participating in package performance.
4. The employer organizes
a review and selects the best residential community, union, or worker group and
invites their representative to negotiate and sign the contract.
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5. The maximum duration
from the public announcement of the invitation to participate in the package
performance to the signing of the contract is 30 days.
6. The employer publicly
announces the selected residential community, union, or worker group on VNEPS,
at the headquarters of the Commune People's Committee and announces it via
other means of commune-level media.
Article 88. Advance, payment, supervision
and taking-over inspection of packages
1. The residential
community, union, or worker group will receive advances and direct payments in
cash or bank transfer from the employer through their representative.
2. The employer shall
directly supervise the package performance. The Commune People's Committee and other unions shall
jointly supervise the package performance by the residential community, union,
or worker group.
3. The employer organizes
the taking-over inspection of the completed package. Parties that
join the taking-over inspection:
a) Representative of the employer;
b) Representative(s) of the residential community, union,
or worker group that performed the package;
c) Representative(s) of the local community that benefits
from the products and works of the package;
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Chapter VI
CONCENTRATED
PROCUREMENT, PROCUREMENT UNDER PROCUREMENT ESTIMATES, PROCUREMENT OF DRUGS,
CHEMICALS, TESTING MATERIALS, MEDICAL EQUIPMENT
Section 1. CENTRALIZED PROCUREMENT
Article 89. Principle of centralized procurement
1. Centralized procurement
is carried out through centralized procurement units under ministries,
ministerial-level agencies, Governmental agencies, other central agencies,
provincial-level People's Committees, except cases specified in Clause 5,
Article 53 of the Bidding Law. If the centralized procurement unit lacks sufficient
capacity, a bidding consultant can be engaged to assist in selecting the
bidder.
2. For goods and services
that are required to be centrally procured through a framework agreement, the
unit with procurement needs must sign a contract with the pre-selected
vendor chosen during that process. If a framework agreement remains in effect and
the procurement unit enters into a contract with a bidder other than
the bidder selected through centralized procurement, the contract will not be
paid unless an exception is specified in Clause 22 or Clause 23 of Article 140
of this Decree.
3. The centralized
procurement shall apply competitive bidding method. In cases where goods in
the centralized procurement list meet the conditions for applying direct
contracting, shopping, price negotiation, or contractor selection in special
cases specified in Clause 1 Article 23, Clause 1 Article 24, Clause 1 Article
28, Article 29 of the Law on Bidding and Clause 1 Article 78, Article 81,
Article 84 of this Decree, corresponding methods shall be applied.
Article 90. Responsibilities in centralized procurement
1. The centralized
procurement unit shall carry out the responsibilities of the employer as
stipulated in Article 78 of the Bidding Law.
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a) Standardized information technology equipment: desktop
computers, printers, and other devices;
b) Office equipment: desk phones, printing paper, desks,
chairs, cabinets, and other equipment;
c) Lighting equipment, air conditioner;
d) Security and cleaning services;
dd) Other goods and services.
Article 91. Centralized procurement process under
competitive bidding
1. Centralized procurement
process:
Centralized procurement under competitive bidding is
carried out according to Article 24 and Article 36 of this Decree, including
the following steps:
a) Determine procurement volume:
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The centralized procurement and price negotiation unit
shall collect information on the procurement needs of private health
facilities, public health facilities exercising financial autonomy in
investment and recurrent expenditures, and public health facilities exercising
financial autonomy in recurrent expenditures (if any) and organize the
purchase of drugs, chemicals, testing supplies, and medical equipment for these
units as stipulated for other public health facilities in the province.
b) The preparation and approval of contractor selection
plans shall comply with Articles 37, 38, 39, and 41 of the Law on Bidding;
c) The contractor selection organization shall comply with
Article 28 and Article 40 of this Decree.
If it is necessary to select more than 1 successful bidder
in one package’s part or an undivided package, the bidding
documents must specify: bidding conditions, evaluation and ranking methods of
bidders;
d) The evaluation of bids shall comply with the principles
specified in Articles 29, 30, 31, 32 or Articles 41, 42, 43, 44, and 45 of this
Decree;
dd) The appraisal of, approval for, and publication of the
contractor selection result and explanation for unsuccessful bidders’
disqualification upon their requests comply with Article 33 and Article 46 of
this Decree;
e) Complete and sign the framework agreement:
The centralized procurement unit and the successful bidder
complete the content of the framework agreement as prescribed in Article 92 of
this Decree, as a basis for signing the framework agreement. If a bidder is
awarded multiple parts of a package or many different packages, the bidder
must submit a commitment to ensure that the bidder has sufficient capacity and
experience to complete the work according to the quality and performance
schedule; this commitment is an integral part of the contract;
g) Complete, sign, and perform the contract with the
successful bidder:
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The unit with procurement needs shall notify the
centralized procurement unit if the bidder does not sign the contract. The bidder who has signed
a framework agreement but fail to sign a contract as requested by the unit with
procurement needs or fail to furnish the performance security, except in cases
of force majeure, shall have the account locked on VNEPS for a period of 6
months from the date on which the centralized procurement unit publishes the
bidder’s name on VNEPS, except in cases of force majeure.
h) Contract finalization.
2. Based on the scale and
nature, a package may be divided into many parts to organize the bidding to
select one or more successful bidders.
3. For packages that need
to select more than one successful bidder for each part or an undivided
package, the bidding documents may stipulate the selection of contractors in
one of the following ways:
a) Contractor selection based on supply ability:
The bidder may offer the full quantity or volume in the
bidding documents based on its ability to supply goods or services. Based on the ability to
supply goods or services of each bidder, the employer organizes the evaluation
and selects a combination of bidders in ranking order from high to low on the
basis of the evaluation criteria stated in the bidding documents. The selection of the list
of successful bidders must ensure that the total quantity of goods offered by
successful bidders is equal to the quantity of goods stated in the bidding
documents; the total proposed winning price of the package is lowest (for
packages applying the least-cost selection) or the total evaluated price of the
package is the lowest (for packages applying the evaluated price selection) or
the aggregate score of the package is the highest (for packages that apply a
quality-and cost-based selection); and the successful bid of the entire package
does not exceed the approved package price.
The unit with procurement needs or the centralized
procurement unit signs a contract with the bidder in order of priority in the
bidder ranking list. If the higher ranked bidder refuses to sign the contract,
the unit with procurement needs or the centralized procurement unit may sign a
contract with the adjacent ranked bidder.
If a higher ranked bidder refuses to supply goods or
services without a legitimate reason or force majeure or breaching the
framework agreement or contract, the breaches will be addressed according to
the framework agreement or contract. Any bidder breaching the contract shall be subject to fines
on breaches of the contract, not be refunded the performance security
deposit, and have their contract performance published on the VNEPS;
b) Contractor selection based on bidding volume:
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Article 92. Content of framework agreement
1. Based on the scale and
nature of the package, the centralized procurement unit shall specify the
detailed content of the framework agreement in the bidding documents
accordingly but must include the main contents as prescribed in Clause 2 of
this Article.
2. Main contents of the
framework agreement:
a) Scope of supply of goods or services;
b) Estimated time and location of goods delivery and
service provision;
c) Conditions for supplying goods or services; advance
payment, payment, contract finalization;
d) Price corresponding to each type of goods or services;
dd) Warranty and maintenance conditions; training and
instructions on use of goods or services;
e) Responsibilities of bidders supplying goods or services,
including responsibility for signing and performing the contract and furnishing
performance security for the unit with procurement needs;
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h) Responsibilities of the centralized procurement unit;
i) Validity period of the framework agreement;
k) Penalties and compensation for damages due to breaches
of contract;
l) Other related contents.
Section 2. PROCUREMENT UNDER PROCUREMENT ESTIMATES
Article 93. Procurement process
1. Contractor selection
under the procurement estimate follows the process outlined in Chapters I, II,
III, IV, V, VI, VII and VIII of this Decree. The procurement decision
submission or approval is not required.
2. For goods on the list
of standards and norms or the decision on devolution of authority to determine
standards and norms which is issued by the Government of Vietnam or the Prime
Minister, the condition for contract award is that the approved package price
of each item must not exceed the price limit according to the standards or
norms issued by the competent authority.
Section 3. PROCUREMENT OF DRUGS, CHEMICALS, TESTING
SUPPLIES, MEDICAL EQUIPMENT
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1. The contractor
selection for a complete package of equipment, chemicals, testing supplies, and
accompanying services (excluding operating personnel) shall comply with
Point b, Clause 1, Article 55 of the Bidding Law. Bidding
documents include the following contents:
a) Technical requirements for equipment; requirements for
software to operate equipment and calibrate equipment;
b) Requirements on shelf life of chemicals and testing
supplies;
c) Requirements for the bidder to list all chemicals,
testing supplies and accompanying supplies needed to perform each medical
procedure; packaging specifications for these goods;
d) The bid price summary schedule is built based on the
expected number of medical procedures and the unit price quoted by the bidder
for each medical procedure. This unit price is the total cost to perform the package
for each medical procedure, including costs of equipment, chemicals, and
testing supplies; warranty, maintenance, and component replacement services;
installation, training, instructions for use; chemicals, testing supplies, and
necessary accompanying supplies for testing the quality of the medical
procedure and calibrating equipment; backup equipment (if any); chemicals,
sample testing supplies and other related costs to perform the package. The employer shall not
bear any costs other than the package cost calculated based on the number of
medical procedures and unit price in the contract;
dd) Requirements for the bidder on warehousing and storage
of chemicals and testing supplies to ensure that medical procedures are
performed continuously and without interruption;
e) Requirements for installation and testing of quality and
parameters of medical procedures;
g) Warranty and maintenance requirements, including
periodic equipment maintenance;
h) Requirements for backup equipment, arrangement of backup
equipment at medical facilities (if necessary);
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2. The bidder must
allocate all costs of package performance specified in Point d, Clause 1
of this Article into the unit price for each medical procedure and must not pay
for any costs other than the costs calculated according to the quantity of
medical procedures and unit price in the contract.
3. The package can be
divided into parts corresponding to one or some types of medical procedures. A health facility can
consolidate the needs of other health facilities to form a package.
4. The contract
performance period must not exceed 60 months. If the two parties agree to apply
the additional purchase option, the employer reports to the competent person to
consider amending the contract to correspondingly extend the contract
performance period for the additional work but no more than 18 months.
5. If the contract
performance period expires and the number of medical procedures specified in
the contract has not been performed, the employer shall consider granting an
extension of contract performance period but not exceeding 12 months.
6. In all cases, the total
extension of the contract performance period specified in Clauses 4 and 5 of
this Article may not exceed 18 months.
Article 95. Procurement of drugs, chemicals, testing
supplies, medical equipment
1. If centrally procured
drugs, medical equipment, or testing supplies are on the approved contractor
selection plan but the contractor selection result has not been announced, or
no successful bidder is selected, or the framework agreement of the centralized
procurement package expires, then the health facility can procure items
according to the notice of the centralized procurement unit, for up to 12
months: competitive
bidding, limited bidding, direct contracting, direct procurement, online
quotation, online procurement, shopping method according to the Bidding Law and
this Decree. Payment will come from the health insurance fund based on the
contract price. In case of winning bid for centralized procurement, the
employer may continue the procurement according to the contract
signed with the bidder.
2. The Ministry of Health
shall organize centralized drug procurement at the national level, and take
charge and coordinate with the Ministry of Finance to negotiate prices. If
price negotiation is applied, the bidder invited to negotiate must meet
the eligibility requirements specified in Points a, b, c, d, e, g and i, Clause
1, Article 5 of the Bidding Law.
3. Regarding selection of
drug suppliers, Vietnam Social Security shall publicize the price of each
winning drug paid from the health insurance fund of each hospital, province,
and the Ministry of Health on the website of Vietnam Social Security.
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1. Private health
facilities, health facilities which are public service providers that are
self-financed for recurrent expenditures and investment, or self-financed for
recurrent expenditures can submit their consolidated procurement
needs for drugs, chemicals, testing supplies, and medical equipment to the
local centralized procurement unit for centralized procurement (national level,
local level) and price negotiation. When consolidating the needs for drugs,
chemicals, testing supplies, and medical equipment, private health facilities,
health facilities which are public service providers that are self-financed for
recurrent expenditures and investment, or self-financed for recurrent
expenditures shall organize their own plans to use drugs, chemicals, testing
supplies, medical equipment in accordance with regulations on procurement of
drugs, chemicals, testing supplies, medical equipment, similar to those
required for local public health facilities.
If a private health facility or a health facility which is
public service provider that is self-financed for recurrent expenditures and
investment, or self-financed for recurrent expenditures needs to purchase
drugs, chemicals, testing supplies, or medical equipment through a centralized
procurement unit, they must sign a contract with the centralized procurement
unit.
2. Private health
facilities and health facilities which are public service providers that are
self-financed for recurrent expenditures and investment, or self-financed for
recurrent expenditures that do not consolidate needs for centralized
procurement and price negotiation according to Clause 1 of this Article shall
organize their own procurement to supply drugs, chemicals, testing supplies,
medical equipment.
3. Payment for drugs,
chemicals, testing supplies, and medical equipment listed in the inventory
covered by the health insurance fund for private healthcare facilities, public
healthcare facilities that guarantee their recurrent expenditures and investment
expenditures, and public healthcare facilities that guarantee their recurrent
expenditures shall comply with regulations on health insurance cost payments
for healthcare services.
CHAPTER VII
ONLINE CONTRACTOR SELECTION
Section 1. ONLINE BIDDING
Article 97. Connecting VNEPS with other systems
1. Connect to the National
Information System for business registration, cooperative registration, and
household business registration (hereinafter referred to as National
Business Registration System):
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b) VNEPS uses information on legal status, financial
statements, and other information of enterprises, cooperatives, and household
businesses stored in the National Business Registration System to
evaluate prequalification applications, EOI responses, bids and
consider contract award. Data shared between the National Business Registration
System with VNEPS is updated regularly and continuously;
c) The Ministry of Finance shall develop, manage, and guide
the implementation of connections between the Systems specified in Points a and
b of this Clause.
2. Connect to the Tax
Management System (TMS):
a) VNEPS uses information on payment of tax liabilities,
financial statements of enterprises, cooperatives, and household businesses
stored in the National Business Registration System to evaluate
prequalification applications, EOI responses, bids and consider winning bids;
b) Information on tax liabilities and financial statements
of organizations, enterprises, and household businesses are updated regularly
and continuously;
c) The Ministry of Finance and the Ministry of Planning and
Investment organize the connection of the TMS with VNEPS through the National
Business Registration System; manage received information in accordance with
the law on management, connection, and sharing of digital data of regulatory
agencies.
3. Connect to the Treasury
and Budget Management Information System (TABMIS):
a) VNEPS shares information about contracts, performance
progress, completed work value tables, payment progress of contracts to manage
contract performance, payments, and bidder capacity, experience, and
performance history.
b) The Ministry of Finance organizes the connection of the
TABMIS with VNEPS; manage received information in accordance with the law on
management, connection, and sharing of digital data of regulatory agencies.
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Article 98. Process for online contractor selection
1. The preparation, appraisal of, and approval for
prequalification documents, EOI requests, and bidding documents shall comply
with Articles 25, 26, 27, 37, 38, 39, 62, 63 and 64 of this Decree.
a) For the requirements in the data sheet, evaluation
criteria for eligibility, capacity, and experience in the prequalification
documents, bidding documents of goods procurement, construction and
non-consulting service packages, employers may not attach request files
other than the contents that have been digitized in webform form on the VNEPS;
b) For the requirements in the data sheet, evaluation
criteria for eligibility, capacity and experience, technical evaluation
criteria in the EOI requests and bidding documents of packages for consulting
services, employers may not attach request files other than the contents that
have been digitized in webform form on the VNEPS.
2. Criteria for evaluating prequalification applications,
EOIs, and bids are laid down in Articles 25, 26, 37, 38, 62 and 63 of this
Decree. Prequalification applications, EOIs, and bids are considered valid when
the bidder is not in a stage of suspension or termination from participating in
the VNEPS. Bids
or any other documents submitted by the bidder to the employer after the bid
submission deadline for modifying or supplementing the submitted bids are
considered invalid and will not be considered, except for documents clarifying
the bids as requested by the employer.
3. The evaluation of bids
is carried out according to the principles specified in Clauses 1, 2, 3, 4, 6,
7 and 8, Article 29; Clause 1, Article 41; and Clauses 1 and 2, Article 66 of
this Decree.
For packages for procurement of goods and non-consulting
services using the single-stage, one-envelope method or least-cost selection
and bids without any incentives, VNEPS shall automatically rank bidders
according to their bid prices; the evaluation of bids may be conducted
against the first-ranked bidder. If the first-ranked bidder is found nonresponsive, the
next-ranked bidder will be evaluated.
4. Clarifications to bids
are carried out through VNEPS according to Clauses 1, 3, 4, 5, Article 30 and
Clauses 1, 3, 4, 5, Article 67 of this Decree.
5. Error correction and
deviation adjustment shall comply with Article 31 and Article 68 of this
Decree.
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7. Contract negotiations
(if applicable) shall comply with Clause 4 Article 24, Clause 6 Article 32,
Clause 5 Article 36, Article 45, Clause 5 Article 61, and Article 71 of this
Decree.
8. EOI requests,
prequalification documents, bidding documents, shortlist selection result, and
contractor selection result shall be approved on VNEPS.
9. Bidders shall monitor
and update information on VNEPS for packages in which they are interested or
participating. Where
any errors which occur as a result of the bidder’s failure to monitor and
receive the information updated on VNEPS cause it suffering disadvantaged
conditions during its participation in bidding, including: changes in and
modifications to EOI requests, prequalification documents, bidding documents,
bid submission deadline, contract negotiation and other matters, bidders must
take responsibility and bear the disadvantages during the bidding process.
10. Online contractor
selection from the effective date of this Decree shall be carried out as
follows:
Organize online contractor selection for all (100%)
packages of investment projects or procurement estimates applying competitive
bidding, limited bidding, or domestic shopping method for procurement
of goods, construction, non-consulting services, or consulting services, mixed
packages, except for packages applying the two-stage and one-envelope method,
two-stage and two-envelope method, or international bidding;
11. Cases of non-bidding
on VNEPS specified in Clause 5, Article 50 of the Bidding Law include:
a) Packages applying the two-stage and one-envelope
method, two-stage and two-envelope method, or international bidding;
b) Packages applying direct contracting, ordering,
task assignment, direct procurement, self-performance, price negotiation,
contractor selection in special cases, community-involved packages, selection
of individual consultants under shortened procedures;
c) Projects, procurement estimates, packages containing
confidential contents and the disclosure of information on VNEPS will affect
community interests, or endanger social order and security, or endanger
national defense, security, foreign affairs, and territorial borders.
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If some information in the project, procurement estimate,
package, EOI requests, prequalification documents, bidding documents need to be
kept confidential and the remaining information may still be made public, the
employer shall decide the information provision method. Confidential
information must not be disclosed on VNEPS; other information may be posted and
online contractor selection may be organized;
d) Packages exceed the technical infrastructure capacity of
VNEPS;
dd) Other packages as prescribed by law.
Section 2. ONLINE QUOTATION
Article 99. Conditions for applying online quotations
1. Online quotation
includes online quotation under ordinary procedures and online quotation under
shortened procedures.
2. Online quotation under
ordinary procedures applies in the following cases:
a) Common and simple non-consulting service packages;
b) Packages for procurement of readily available,
standardized goods with similar quality from multiple competing suppliers;
price is the main deciding factor, with no or minimal impact from life cycle
costs;
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3. Online quotation under
shortened procedures applies in the following cases:
a) Packages for procurement of goods, provision of
non-consulting services, or construction with a value of no more than 02 billion
VND for procurement estimates, except for the case specified in point d of this
Clause;
b) Packages of procurement of goods, provision of
non-consulting services, or construction with a value of no more than 05
billion VND for projects;
c) Packages of procurement of goods or provision of
non-consulting services that must be purchased from specific manufacturers to
ensure compatibility of technology and copyright with equipment, machinery,
software and services that are readily available or due to the manufacturer's
warranty conditions that cannot be purchased from another manufacturer and
there are multiple bidders capable of supplying the goods or services;
d) Divided contract packages for procurement of goods
(excluding drugs) for retailing at retail facilities within the premises of
public healthcare facilities, where each part is an item with a value of no
more than 1 billion VND for procurement estimates.
For drugs with only one distributor or medical equipment
distributed exclusively in Vietnam where only one contractor is capable of
supplying, the shortened online quotation process is not applicable.
Article 100. Principles of online quotation
1. Bidders can
continuously change prices and factors other than prices (if any) during
the online quotation period. The price levels and factors other than prices (if
any) offered by bidders are publicized on VNEPS during the bidding process,
except the bidder's name. VNEPS automatically ranks and publicizes the price levels
and factors other than prices (if any) during the online quotation period;
remaining time of the online quotation process.
2. The online quotation
only applies to package evaluated according to the least-cost selection.
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4. The end time for online
quotation must be during business hours.
5. If the shortened online
quotation is applicable, the offered price must not be higher than the package
price. If the
ordinary online quotation is applicable, the offered price must not be
higher than the lowest price specified in the bid opening minutes of
participating bidders. If the bid prices after discount (if any) of all
technically-responsive bidders exceed the package price and no bidder
participates in online quotation under ordinary procedures, the employer will
address the situation according to Point b or Point c or Point d, Clause 8,
Article 140 of this Decree.
Article 101. Ordinary online quotation process
1. On the basis of the
approved specific contractor selection plan, the organization of online
quotation under ordinary procedures shall be carried out at the financial
evaluation step, as a basis for comparing bids and ranking bidders.
2. Contractor selection
preparation, including:
The preparation, appraisal, and approval of bidding
documents shall comply with Article 26 and Article 27 of this Decree. For
packages with a package price of less than 5 billion VND, the minimum time to
prepare bids is 5 working days from the first date the bidding documents are
issued to the bid submission deadline.
3. In addition to the
contents specified in Article 26 of this Decree, bidding documents must also
include at least the following information related to the online quotation process:
a) Notice on the application of online quotation during the
contractor selection process;
b) Factors other than prices that bidders are allowed to
change (if any) and conversion formula to compare and rank bidders.
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The contractor selection organization shall comply with
Article 28 of this Decree.
5. Evaluation of bids and
organization of online quotation:
a) The bid evaluation shall comply with Article 98 of this
Decree;
c) The list of technically-responsive bidders shall be
appraised and approved. Based on the list of technically-responsive bidders, the employer
sends an invitation for online quotation on VNEPS to the bidders on the list at
least 3 working days before the online quotation start date. The invitation for online
quotation includes the following contents: Online quotation start time, bidder ranking principles,
including the formula used in the online quotation process (if any) to
automatically rank bidders on the basis of their offer prices along with other
factors in the online quotation session; bid increments (the minimum difference
of the next offered price offer compared to the current offered price); online
quotation end time; other relevant information (if any);
c) The bidder decides to participate in online quotation
according to the invitation of the employer. Even if a bidder is invited to participate in the online
quotation but does not submit a quote, their original bid submitted before the
bid submission deadline will still be financially evaluated.
6. Recording of online
quotation result:
a) Bidders participate in online quotation on VNEPS. The minimum online
quotation time is 3 hours from the time the online quotation starts;
b) VNEPS records the final offered price of each bidder at
the end of the online quotation process and the bidder ranking list;
c) The consideration for contract award is carried out
according to Article 61 of the Bidding Law based on the bid price and non-price
factors (if any) of the first ranked bidder at the end of the online quotation
process.
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The appraisal of, approval for, and publicization of
contractor selection result shall comply with Article 33 of this Decree.
8. Complete, sign, and
manage contract performance:
The contract signed between the parties must be consistent
with the decision on approval for contractor selection result, the bid, the
bidding documents, and other related documents. The completion, signing,
and management of contracts shall comply with Article 34 and Article 35 of this
Decree.
Article 102. Shortened online quotation process
1. Prepare an invitation
to bid based on the approved specific contractor selection plan:
The invitation to bid includes the following information:
a) Specific requirements on origin, marking, trademark,
manufacturer, technical specifications of goods, delivery time, warranty and
other necessary matters (if any) for goods procurement package; scope of
work, technical requirements, performance duration, service completion time and
other necessary matters (if any) for non-consulting service packages; scope of
work, technical requirements, performance duration, construction drawing
designs, specific requirements on origin, marking, trademark, manufacturer of
materials, supplies, equipment (if any), requirements on key personnel, major
construction equipment (if any), performance duration, and other necessary
matters (if any) for construction packages. Delivery time and service completion time must be
appropriate and not restrict the participation of bidders in accordance with
Clause 3 Article 44 of the Law on Bidding;
b) Online quotation start time, bidder ranking principles,
bid increments, online quotation end time and other relevant information (if
any);
c) No bid security is required.
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3. Bidders participate in
direct online quotation on VNEPS to bid for the items listed in the invitation
to bid and can offer their prices within the time limit specified in the
invitation. From
the second bidding round onwards, the bidder's price shall not be lower than
90% of the lowest price displayed on VNEPS.
4. To participate in
online quotation, bidders must commit in their letter of bid to meet the
requirements in the invitation to bid. If the bidder is awarded the contract but fail to comply
with the commitment, the situation will be addressed in accordance with the
terms specified in that document (publicize the bidder's name on VNEPS and lock
the account within 6 months from the date on which the employer publish the
bidder’s name on VNEPS), except for force majeure events.
5. Recording of online
quotation result:
a) VNEPS records the final offered price of each bidder at
the end of the online quotation process and the bidder ranking list;
b) The consideration for contract award is carried out
according to Article 61 of the Bidding Law based on the bid price of the first
ranked bidder at the end of the online quotation process.
c) Based on the results of direct online quotation on
VNEPS, the employer shall invite the first-ranked bidder to accept the contract
award approval on VNEPS. The bidder that is invited is responsible for accepting the
contract award approval. In the cases where the bidder refuses or fails to accept
the contract award approval within 03 working days from the date the employer
invites the bidder to accept the contract award approval on VNEPS, the bidder
shall have its name published on VNEPS, have their account locked for a period
of 06 months from the date on which the employer publicizes the bidder's name
on VNEPS, and have their reputation evaluated in bidding participation. The employer shall invite
the next-ranked bidder to accept the contract award approval.
6. Approval for, and
publication of contractor selection results:
On the basis of contract award approval, the approval for,
and publication of contractor selection result shall comply with Article 33 hereof.
7. Complete, sign, and
manage contract performance:
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Section 3. ONLINE PROCUREMENT
Article 103. Form of online procurement
1. Online procurement must
be approved in the specific contractor selection plan and apply to goods or
services of packages included in the procurement estimate with a package price
not exceeding 500 million VND; packages for procurement of goods or services
under projects with a package price not exceeding 1 billion VND.
2. The time to apply
online procurement for items in the list of goods or services for centralized
procurement is the contract performance duration if a framework agreement is
not signed but must not exceed 24 months from the effective date of the
contract or effective period of the framework agreement; in the case where the
framework agreement is not published in accordance with Article 22 hereof, the
time to apply online procurement is 24 months from the date on which the
contractor selection result is posted on VNEPS.
Article 104. Online procurement process
1. VNEPS automatically
extracts information about the contractor selection result for centralized
procurement on the list of goods or services applicable to online procurement.
2. Based on the list of
goods or services specified Clause 1 hereof, employers who wish to procure
online can order goods or services directly on VNEPS. Order for each good and
service includes: quantity, volume; delivery method and shipping unit price
(if any); unit price of the good or service; payment methods; place of delivery
or place of performance; other necessary information.
3. For each order of
goods or services, VNEPS shall automatically send a notification to the
successful bidder of the previous centralized procurement. Such bidder shall
either confirm or reject the order on the VNEPS within 3 days of receiving the
order.
4. VNEPS shall display a
notice of confirmation or rejection of that order and send a notice to the
procurement unit.
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6. The completion,
signing, and management of contracts shall comply with Article 34 and Article
35 of this Decree. The bidder shall manage confirmed orders and provide goods
or services as requested, ensuring quality and schedule.
Article 105. Information on goods or services procured
online
In case of reducing the prices of goods or services
compared to the provisions in the framework agreement or previously signed
contract, the bidder shall notify the centralized procurement unit and VNEPS at
least 5 days before the reduction.
Chapter VIII
ORDERS AND
ASSIGNMENTS FOR GOODS AND SERVICES PROVISION
Article 106. Goods and services
order placement
1. The placing of orders
for the production and supply of goods/services serving as products and public
services shall comply with Government's regulations on assigning tasks, placing
of orders for the production and supply of goods/public services using the
state budget from recurrent expenses.
2. Goods/services other
than those specified in Clause 1 hereof shall be ordered using the state budget
and lawful revenues of regulatory authorities and public service providers,
including:
a) Goods/services in strategic fields; key or nationally
significant scientific research projects or tasks, projects or tasks on
foundation industries, key industries, energy infrastructure, digital
infrastructure, green transport, national defense and security, human resource
training associated with technology transfer; key digital technologies;
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c) Key digital technology tasks, products, and services;
digital technology products and services under national important projects,
projects with special nature and requirements from the Government, the Prime
Minister, ministries, departments, and local governments;
d) Urgent goods and services ordered as directed in
Resolutions, Conclusions, and guiding documents of the Central Committee of the
Communist Party of Vietnam, the Politburo, the Secretariat, and key leaders of
the Communist Party of Vietnam and the State of Vietnam;
dd) Goods/services which are ordered in accordance with
laws on specific sectors and fields (if any).
3. Ministries, agencies
managing sectors and fields shall request the Prime Minister of Vietnam to
issue the list of goods/services ordered in accordance with points a, b, and c
Clause 2 hereof, except for cases where there are provisions different from
laws on specific sectors and fields.
Article 107. Related parties in order placement process
1. Competent person is the
person who decides investing the project or the head of the superior agency of
the organization placing the order.
2. The ordering
organization is the agency or unit which is assigned to manage and use state
budget and other lawful revenues (if any) for order placement.
3. The supplier is an
organization, enterprise, or individual that receives the order to provide
goods or services.
Article 108. Conditions for suppliers winning orders
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The supplier, which is an organization or enterprise, must
meet the following conditions:
a) For organizations: have functions and tasks suitable for providing goods or
services ordered; for enterprises: have registered business lines, operating licenses suitable
for providing goods or services ordered;
b) It is not undergoing dissolution process or subject to
revocation of enterprise registration certificate, business registration certificate;
or is not facing insolvency as prescribed by the law on bankruptcy;
2. For individuals: have
the appropriate qualifications and expertise to ensure the quality, progress,
and effectiveness of the order; have full capacity for civil acts in accordance
with regulations; not liable to criminal prosecution; and meet other conditions
as prescribed in laws on specific sectors and fields (if any)
Article 109. Order placement process
1. Prepare and approve an
order placement plan:
a) Prepare an order placement plan:
The ordering organization shall prepare an order placement
plan, including: Name of goods/services to be ordered; estimated quantity,
volume of goods/services; quality of goods/ services; implementation duration
and time of completion of provision of goods/services; order estimate; specific
requirements for suppliers regarding finances, facilities, equipment,
machinery, technical expertise, production technology, implementation
solutions, key personnel; monitoring, evaluation, quality assurance mechanisms;
and regulations on inspection and acceptance of goods/services to be ordered.
The specific content of the order placement plan is
determined by the ordering organization to ensure the quality, progress, and
effectiveness of the order.
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2. Identify the supplier
winning order:
a) Identify the supplier winning order:
Based on the approved order placement plan and preliminary
information about the supplier capable of providing goods/services, the
ordering organization determines the supplier to which the order placement plan
is sent.
b) The supplier shall send a order form enclosed with the
eligibility documentation and proposed order price:
The proposed order price provided by the supplier must
include all costs to supply goods/services, fees, charges, and taxes as per
laws. The
supplier specifies taxes, fees, and charges in the order price. In cases where
goods/services are first provided in Vietnam, the supplier shall outline
factors of reasonable and legitimate manufacture and business costs and profits
to determine the order price in accordance with Article 110 hereof.
c) The eligibility documentation shall be evaluated as
required by the order plan:
During the evaluation process, the ordering organization
may invite the supplier to clarify or modify the eligibility documentation’s
content to demonstrate compliance with the specific requirements of the order
placement plan.
The supplier shall be invited to negotiate the contract
when all the requirements of the order placement plan are met.
3. Contract negotiation:
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order price and other necessary details that are not clear
in the order placement plan and other necessary details;
b) During the process of contract negotiation, the parties
complete the draft contract; specific conditions of the contract, contract
appendices, including: detailed list of goods/services, performance schedule
(if any).
4. Approve the order
placement decision:
Based on the contract negotiation minutes and draft
contract, the ordering organization shall approve the order placement decision,
including:
a) Supplier's name;
b) Name of goods/services;
c) Quantity, volume of goods/services;
d) Order price;
dd) Contract type;
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5. Sign and manage
contract performance:
The contract signed between the parties must be align with
the order placement decision, contract negotiation minutes, and other related
documents.
6. Publish results of
contract execution (excluding information classified as state secrets):
The ordering organization shall publish information about
the contract execution results on VNEPS, including: Execution process,
quality of goods/services; contract violations and reasons for violations;
other information (if necessary). The results can be published during or after the package
performance period but no later than 6 months from the completion date of the
order.
Article 110. Order price
The order price which is negotiated by the ordering
organization with the supplier must ensure the transparency, cost-effectiveness
and combat misconducts, waste and does not exceed the order estimate based on
the following information:
1. Total capital of the
program/task, total investment of the project (if any).
2. Comparison with the
price of similar goods/services
3. Rational and legitimate
manufacture and business costs, profits (if any), or accumulated according to
regulations (if any), and other financial obligations of the supplier as per
laws.
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Article 111. Order placement contract, advance payment,
payment, acceptance, contract finalization
1. Based on the nature of
the goods/services, the ordering organization and the supplier consider
applying one of the types of contracts stipulated in Article 64 of the Bidding
Law and laws on specific sectors and fields (if any).
2. The order placement
contract includes:
a) Name of the goods/services ordered;
b) Quantity, volume of goods/services;
c) Quality of goods/services as prescribed in laws on
specific sectors and fields (if any);
d) Order price;
dd) Contract type;
e) Execution time, completion time.
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h) Methods of payment and finalization;
i) Acceptance and contract finalization methods;
k) Contract modification conditions;
l) Rights and obligations of the parties;
m) Responsibilities of the parties for breach of contract
and resolution procedures;
n) Supplier's responsibility to ensure progress, quality of
goods/services; supplier's obligation to pay damages due to contract violation,
impose penalties against contract violations to ensure the legal rights and
interests of the ordering organization;
o) Other contents agreed upon by the parties but not
contrary to laws.
3. Advance payment,
payment, acceptance, and contract finalization shall be agreed upon and
specified in the contract by the ordering organization and the supplier.
4. Contract modifications
shall comply with the signed contract modification conditions ensuring
compliance with laws.
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1. Public goods/services
provision shall be assigned in accordance with regulations on state budget,
Government’s regulations on task assignments, order placement for public
products/services provision funded by the state budget from recurrent
expenditure, and regulations on financial autonomy mechanisms of public service
providers.
2. Other goods/services
provision funded by the state budget and lawful revenues of regulatory
agencies, public service provider shall be assigned in accordance with law on
public investment, state budget, and specific sectors and fields regarding the
conditions, procedures, and processes for goods/services provision assignment.
Chapter IX
CONTRACTS
Article 113. Contract with the contractor
1. The contract signed
between the employer (or authorized entity) and the contractor is a civil
contract and is made in writing. The legal representative or person authorized by the legal
representative (hereinafter referred to as “legal representative”) of the
contractor shall sign the contract; for joint venture contractor, the legal
representative of the joint venture parties shall sign the contract according
to Clause 3 Article 67 of the Law on Bidding. A contract that has been signed by the parties, is valid,
and in accordance with law is the highest legal basis binding the
responsibilities and obligations of the parties during the contract performance
process and to resolve any arising disputes (if any).
The content of the contract must be prepared according to
the form specified in the bidding documents or RFPs, and be consistent with the
contract negotiation results (if any), contract completion results, and
contractor selection results based on the requirements of the package and
instructions of laws on specific sectors and fields (if any).
2. When signing a
contract, the contract document must ensure compliance with the following:
a) General conditions of the contract, specific conditions
of the contract in the bidding documents, RFPs and corrections and
clarifications during the contractor selection process;
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c) Approval for contractor selection results;
d) Law regulations.
3. Quality management of
goods or services; currency and form of contract payment; advance payment;
contract payments; payment and contract finalization principles comply with
Articles 116, 117, 118, 119, 120 and 121 of this Decree.
Article 114. Modifications of contract
1. Contract modifications
occur when the employer and contractor mutually agree to modify or
supplement any terms and conditions outlined in the original signed
contract. Contract modifications can only be made during the validity period;
modifications to the schedule, volume, and price are carried out in accordance
with Clause 2, Article 70 of the Bidding Law. Contract modifications apply to all types of contracts
specified in Article 64 of the Bidding Law and must be done in writing.
2. Parties can agree in
the contract on contract modification procedures according to Point a, Clause
1, Article 70 of the Bidding Law in the following cases:
a) When there is a change in policy or law that directly
affects the performance of the contract;
b) Force majeure events;
c) Changes in method of transportation, delivery location,
and related services for goods procurement packages;
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If the VAT law changes after the additional purchase option
applies, the unit price (including VAT) of the good or service cannot exceed
the sum of the pre-tax value in the contract and the new VAT amount at the time
of applying the additional purchase option;
dd) Changes in approved design;
e) One or more parties propose initiatives and improvements
in contract performance that bring higher benefits to the employer;
g) Changes in the contract schedule according to Clause 3,
Article 70 of the Bidding Law;
h) Other cases as prescribed by law and agreement between
the parties, including volume, price and other matters.
3. When the price index
and other factors fluctuate according to the instructions of the Ministry of
Construction, employers and contractors can consider modifying contracts for
packages governed by the Construction Law. This ensures compliance with civil
law regulations regarding contract modifications due to substantial changes to
contract performance circumstances.
4. For packages for
procurement of goods and provision of non-consulting services under the
procurement estimate that apply fixed unit price contracts, adjustable unit
price contracts, if the originally agreed-upon contract completion date arrives
and the specified work remains incomplete, the employer can request an
extension from the competent person but not exceeding 6 months, except cases
specified in Clause 5, Article 94 of this Decree.
5. Cases where the
contract price, volume, or other specified terms can be changed without
requiring contract modifications or signing a contract modification document as
outlined in Clause 5 of Article 70 in the Bidding Law:
a) Adjust contract prices due to inflation and deflation
for adjustable unit price contracts, time-based contracts, output-based contracts
(if any) as prescribed in Clauses 2 and 3 of Article 115 of this Decree;
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c) Increase or decrease time for time-based contracts;
increase or decrease direct costs of cost-plus-a-fee contracts; increase or
decrease the base value to calculate the percentage of costs for
percentage-based contracts; increase or decrease the level of payment deduction
and increase in payment value for output-based contracts;
d) Other cases as prescribed by law and agreement between
the parties.
If the changes to the items specified in this Clause lead
to failure to meet one or more of the requirements specified in Clause 5,
Article 70 of the Bidding Law, the competent person must be reported to
authorize the contract modifications.
Article 115. Adjustment of contract price due to inflation
and deflation
1. Contract price
adjustment due to inflation and deflation (hereinafter referred to as
indexation) for adjustable unit price contracts is carried out in accordance
with Clauses 2 and 3 of this Article. For time-based contracts, output-based
contracts, indexation shall apply to long-term contracts or in market
situations with large price fluctuations.
2. The indexation must be
specified in the bidding documents or RFPs and be finalized during the contract
negotiation process (if any) and contract completion. The contract must
stipulate the principles and time for calculating adjustments; input database
to calculate adjustments; time to calculate the price index or original price
as a basis for determining the difference due to indexation for each
contract installment. The content of the contract price must include a
provisional indexation value calculated on the basis of expected indexation and
legal regulations on cost management as a basis for payment. The indexation
value shall be managed and paid as specified in the contract, without having a
contract modification document signed; if the price fluctuations cause
subsequent installments and total contract price to exceed the originally
package price, the employer shall consider approving. The parties sign a
contract modification document before making payment.
3. The indexation is
determined according to the following methods:
a) Direct compensation method;
b) Adjustment method using adjustment formula based on
application of price index. The price index used as a basis for calculating
price slippage is determined according to the bidding documents, RFPs, detailed
contract negotiation (if any) and contract completion. The index source can be
specified according to the price index announced by the Ministry of Finance of
Vietnam or the construction price index announced by the Ministry of
Construction and Provincial People's Committees.
For foreign-sourced cost items subject to
price slippage adjustments, the price index published by the independent
statistical agency in the foreign country where the cost incurs may be applied. Determining the method
and formula for calculating price adjustments must be based on a scientific
basis, consistent with the nature of the package, and specific regulations on
price slippage risk management in the contract. Employers can apply
adjustment formulas that are widely applied in the international market,
including regulatory templates of the Fédération Internationale des Ingénieurs
Conseils (FIDIC), and guidance from the World Bank ( WB), Asian Development
Bank (ADB) and other templates;
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Article 116. Quality management of goods or services
1. Quality requirements of
goods or services must be specifically regulated through criteria, parameters,
and product specifications, quality control procedures stated in the technical
requirements, specific conditions of the contract and other matters in the
bidding documents or RFPs. Based on the bidder's proposal in the bid, clarifications
during the evaluation of the bid, proposal and detailed negotiations (if any),
contract completion, quality requirements of goods or services to be
supplemented and completed to sign a contract.
2. The contract must
stipulate procedures to control quality indicators of goods or services;
control the origin of goods.
Article 117. Currency and form of contract payment
1. The currency used to
pay for the contract must be specifically specified in the contract and in
accordance with the requirements of the bidding documents or RFPs and must not
contradict regulations of law.
2. Costs incurred within
Vietnam must be paid in Vietnamese Dong, while costs incurred outside Vietnam
can be paid in either foreign currency or Vietnamese Dong, as stipulated in the
contract.
3. Payments can be made in
cash, via bank transfer, or through other methods mutually agreed upon by the
parties in accordance with applicable laws and to be clearly specified in the
contract.
Article 118. Contract advance
1. A contract advance is a
sum of money paid upfront to the contractor to carry out the work under the
contract.
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3. The contractor shall
ensure that the advance capital is used for proper purposes, allocated to the
correct recipients, and used effectively. It is strictly forbidden to advance money without using it
or using it for improper purposes.
Article 119. Contract payment
1. The contract price and
specific payment terms stated in the contract are the basis for payment to the contractor.
2. Payment will not be
determined by estimates and applicable State’s regulations and instructions on
norms and unit prices, or unit prices listed in the contractor’s financial
invoice for materials, machinery, equipment, and other inputs.
3. If there are many
different types of contracts in a contract, the payment principles
corresponding to each type of contract shall apply as prescribed in Article 120
of this Decree.
Article 120. Payment principles for various types of
contracts
1. For lump-sum contracts:
Payment is made according to a percentage of the contract
price or the price of the project, work item, and work volume corresponding to
the payment period agreed upon by the parties in the contract; when making
payment, confirmation of detailed completed volume is not required.
2. For fixed unit price
contracts
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3. For adjustable unit
price contracts:
The payment value is determined on the basis of the unit
price of adjusted unit price according to the contract multiplied by the volume
and amount of actual work that the contractor has performed and has been
accepted corresponding to the completion milestones and terms in the
contract. If the contract does not adjust the unit price but adjusts price
slippage, the payment value is determined according to the contract price
adjusted for price slippage according to the contract.
4. For time-based
contracts:
a) Expert remuneration: is calculated by
multiplying the expert's salary and salary-related costs (social insurance,
health insurance, unemployment insurance, holidays, contractor's management
costs (if applicable) and other costs outlined in the contract or adjusted
according to regulations) by the actual working time (month, week, day, or
hour) corresponding to the completion milestones
and regulations specified in the contract;
b) For work outside the scope of Point a in this Clause,
payment will be made on the basis of the unit price per unit of time; total
payment will be calculated by multiplying the unit price by the actual working
time aligned with the completion milestones and regulations outlined in the
contract;
c) Related costs (in addition to expert salary, other work
costs applying the unit price per time unit specified in Points a and b of this
Clause) include: travel, survey, office rental, communication and other
costs are paid according to the method specified in the contract. For each of these costs,
the contract needs to clearly stipulate the payment method such as actual
payment based on valid invoices and documents presented by the contractor or
payment based on the unit price agreed upon in the contract.
5. For percentage-based
contracts:
The payment value is determined by multiplying the
percentage stated in the contract by the value of the project that has passed
the taking-over inspection and consistent with the project insurance period
stated in the contract.
6. For output-based
contracts:
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7. For cost-plus-a-fee
contracts:
Payment is based on the actual costs the contractor has
spent to perform the contract, plus an appropriate profit amount for the
contractor based on the provisions of the contract.
8. Processing of payment
documents is carried out within 14 days from the date the contractor submits
all payment documents to the employer.
Article 121. Contract finalization
1. A contract shall be
finalized in the following cases:
a) The parties fulfill their obligations under the signed
contract;;
b) The contract is terminated (cancelled) as per the law.
2. The parties may agree
that the contract will automatically expire upon fulfilling the obligations
under the signed contract or signing a contract finalization record. The contract finalization
record can be prepared separately or as a part of the taking-over certificate
or contract termination record in consistence with the responsibilities of the
parties specified in the contract. The finalization of the contract must be carried out within
45 days from the date on which the parties fulfill their obligations under the
signed contract or within 45 days from the date the contract is terminated
(cancelled) according to regulations of law and no more than 90 days for
large-scale and complex contracts.
Chapter X
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Section 1. INSPECTION OF BIDDING ACTIVITIES
Article 122. Responsibilities for inspecting bidding
activities
1. Ministry of Finance:
a) Lead the inspection of bidding activities at ministries,
ministerial-level agencies, Governmental authorities, other central and local
authorities, public service providers, and state-owned enterprises according to
periodic plans approved by the Minister of Finance;
b) Agencies tasked with managing bidding activities under
the Ministry of Finance in inspecting bidding activities according to Point
a of this clause.
2. Ministries,
ministerial-level agencies, Governmental agencies, and other central agencies
shall take charge of inspection of bidding activities for projects and
procurement estimates of units under their management.
3. Provincial-level
People's Committees shall:
a) Take charge of inspections of bidding activities for
units under their management;
b) The Department of Finance shall assist the
provincial-level People's Committee in inspections of bidding activities
stipulated in point a hereof.
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Article 123. Responsibilities of inspectorate and
inspectors
1. Responsibilities of
inspectorates:
a) Inspect bidding activities in accordance with inspection
decisions;
b) Request the inspected entity, relevant organizations and
individuals to provide information and documents to facilitate the inspection
as requested by the inspectorate;
c) Draft the inspection report and notify the inspection
report to organizations and individuals within the inspected entity;
d) Draft the inspection conclusion.
2. Responsibilities of
heads of inspectorates:
a) Lead the formulation of and approval for detailed
inspection plans;
b) Assign tasks to inspectorate members when performing
inspection.
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a) Carry out inspection in accordance with regulations and
as assigned by the head of inspectorate;
b) Prepare reports on individual inspection results as
assigned;
c) Report to the head of inspectorate on the results of the
inspection they conducted;
d) Advocate their opinions and bear legal responsibility
for their opinions;
Article 124. Responsibilities of organizations and
individuals of the inspected entity and relevant organizations and individuals
1. Responsibilities of
organizations and individuals in the inspected entity:
a) Coordinate with and facilitate the inspectorate during
the inspection process;
b) Report, promptly provide full, accurate or truthful
information or documents and take legal responsibility for the information
provided;
c) Explain the contents in the draft inspection report (if
any).
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dd) Send report on the implementation of inspection
conclusions to the inspection agency stipulated in Clause 4 Article 129 hereof.
2. Responsibilities of
relevant organizations and individuals:
b) Report, promptly provide full, accurate or truthful
information or documents and take legal responsibility for the information
provided;
b) Explain the contents in the draft inspection report (if
any).
Article 125. Principles for organizing inspection
1. Comply with the law,
ensure accuracy, objectivity, openness, transparency and timeliness.
2. Be fair, objective, and
do not cause difficulties for the inspected entity; comply with regulations on
anti-corruption.
3. Conduct independently
but with coordination and clear division of authority among competent
inspection agencies.
4. Prevent overlap or
duplication in scope, inspected entities, inspected matters, and timing among
competent inspection agencies.
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Article 126. Forms of inspection
1. Periodic inspection:
a) Periodic inspection is carried out according to the
annual plan approved by the head of the inspection agency;
b) Based on the implementation of bidding activities in
each year, the lead inspection agency shall make a periodic inspection plan for
the following year and submit it to the head of the inspection agency for
approval. The periodic inspection plan includes the following contents: list
of inspected entities; inspection time; inspection scope and inspected matters;
inspection coordination agencies (if any);
c) If it is necessary to modify the approved periodic
inspection plan, the leading inspection agency shall make a modified plan and
submit it to the head of the inspection agency for approval;
d) The approved periodic inspection plan and modified plan
(if any) are the basis for the head of the inspection agency to approve the inspection
decision and organize inspection;
dd) The periodic inspection plan and modified plans (if
any) shall be sent to the inspected entity within 10 days from the date of
approval provided that the inspected entity receives them at least 15 days
before the inspection date.
2. Ad-hoc inspections:
a) Ad-hoc inspections decided by the head of the inspection
agency;
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Article 127. Methods of inspection
1. An inspection may be
conducted according to one or a combination of the inspection methods specified
in Clauses 2 and 3 of this Article.
2. On-site inspection is
the primary method applied and carried out directly at the premises of the
inspected unit.
3. Written report is the
method by which the inspectorate requests the inspected entity to report in
writing on the inspected matters.
Article 128. Inspection duration and budget
1. Inspection duration:
a) The maximum duration for on-site inspection is 15 days
from the date of the inspection decision announcement, except as specified in
point b of this Clause. Within a maximum period of 45 days from the end of the
on-site inspection, the inspectorate must prepare an inspection report. The head of the
inspection agency shall approve the inspection conclusion within a maximum
period of 20 days from the date on which the draft inspection conclusion is
submitted.
b) If the inspection has complex aspects and involves many
inspected entities, the maximum duration for on-site inspection is 20 days from
the date of announcement of the inspection decision. Within a maximum period
of 45 days from the end of the on-site inspection, the inspectorate must
prepare an inspection report. The head of the inspection agency shall approve the
inspection conclusion within a maximum period of 20 days from the date on which
the draft inspection conclusion is submitted;
2. Budget for inspection:
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b) State-owned enterprises, competent persons shall arrange
their own funds to carry out inspection.
Article 129. On-site inspection process
1. Preparation for
inspection:
Based on the periodic inspection plan or ad hoc inspection
request, the leading inspection agency shall carry out the following tasks:
a) Collect information and documents related to the
inspection; in case of ad hoc inspection, information and documents may be
collected before or after the inspection decision issuance;
b) Determine the composition of the inspectorate and
members of coordinating agencies (if any);
c) Request the head of the inspection agency to approve the
inspection decision;
d) The head of inspectorate shall approve the detailed
inspection plan after the inspection decision is approved; if the inspection
has complex aspects, involves many inspected entities or requires an ad hoc
inspection, the head of inspectorate shall consider submitting a detailed inspection
plan to the head of the inspection agency for approval;
dd) Develop a report outline to serve as a basis for the
inspected entity to prepare a report on the bidding activities that need to be
inspected;
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2. Organization of
inspection:
a) The leader of the inspectorate announces the inspection
decision when beginning the on-site inspection at the premises of the inspected
unit and prepares an inspection decision announcement record;
b) The inspectorate collects, studies, analyzes, and assesses
information and documents related to the bidding activities, including the
information specified in Clause 2 Article 132 hereof, of the inspected entity;
prepares assessment tables and comments on each related content; checks and
verifies information and documents (if necessary); checks the implementation
results to serve as the basis for conclusion. During the inspection, the inspectorate may discuss with
the inspected entity and conduct a physical inspection if necessary. Depending on the scale
and nature of the inspection, the leader of inspectorate decides preparing a
record confirming the inspected contents;
c) The inspectorate notifies the inspected entity in
writing about the end of on-site inspection and hands over documents and
equipment used (if any) during the inspection process;
d) After completing the on-site inspection at the premises,
the inspectorate drafts a inspection report and submits it to the leader of
inspectorate for review and decision, then submits it to the inspected entity
for feedback. The
draft inspection report is sent to the inspected entity in writing, or
simultaneously in writing, fax, and email;
dd) Based on the draft inspection report and
explanations provided by the inspected entity, the inspectorate completes
the inspection report.
3. Inspection conclusion:
a) On the basis of the inspection report, the inspectorate
drafts the inspection finding and submits it to the head of the inspection
agency for review and approval. Inspection findings must include plans to address
violations against bidding laws;
b) Inspection findings are sent to the inspected entity and
the superior agency of the inspected entity (if any) and relevant units (if
necessary).
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a) The head of the inspected entity shall organize and
report the implementation of inspection findings to the competent authority
within the time limit specified in the inspection findings. The report must include: measures to address the
weaknesses, errors specified in the inspection finding; measures to rectify
bidding activities; handling of responsibilities of organizations, individuals
according to the recommendations of the inspectorate (if any);
b) Monitoring of implementation suggestions of inspection
findings is carried out through reports as prescribed in Point a of this
Clause. If organizations and individuals of the inspected entity and related
organizations and individuals who are responsible for implementing the
suggestions in the inspection findings fail to do or fail to fully and promptly
do that, their violations will be, depending on their nature and extent,
addressed as per the law.
Article 130. Written inspection process
1. Preparation for
inspection:
The inspection agency or the inspectorate established by
the inspection agency requires the inspected entity to report on the
implementation of its management responsibilities for bidding or the
implementation of bidding activities, including the following:
a) Reporting purposes and requirements;
b) Scope and content of the report;
c) Outline of reporting requirements;
d) Deadline for submitting report of the inspected entity;
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e) Other related contents.
2. Organization of
inspection:
a) Based on the report of the inspected entity, the
inspection agency shall collect, research, analyze and evaluate information,
including the information specified in Clause 2, Article 132 of this Decree
about the inspected entity; documents related to the report contents; verify
information and documents when necessary; during the inspection, the lead
inspection agency can discuss with the inspected entity (if necessary);
b) The inspection agency shall draft an inspection report
that proposes solutions to problems discovered during the inspection process.
3. Inspection findings and
monitoring of implementation of suggestions in inspection findings are carried
out according to Clauses 3 and 4, Article 129 of this Decree.
Section 2. MONITORING OF BIDDING ACTIVITIES
Article 131. Monitoring of bidding activities by competent
persons
1. Authority to monitor
bidding activities
a) Ensure the compliance with regulations on bidding,
related laws, and guidance of superior authorities (if any) of the contractor
selection.
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c) Detect any shortcomings in the contractor selection
process to provide warnings and measures to rectify;
d) Ensure the openness and transparency in bidding
activities;
dd) Emphasize responsibilities of the employer in
compliance with regulations on bidding.
2. Contents of monitoring
bidding activities
Bidding activities shall be monitored for one or more of
the contents specified in point dd Clause 3 Article 86 of the Law on Bidding,
including:
a) Compliance with bidding regulations in the preparation,
evaluation (if any), and approval of contents in the contractor selection
process;
b) Compliance with the timeline for contractor selection
according to the approved selection plan; disclosure of information in bidding;
c) Capacity of expert teams, appraisal teams;
d) Compliance with bidding regulations and related laws on
evaluation criteria in prequalification documents, EOI requests, bidding
documents, and RFPs;
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e) Clarification of prequalification documents, EOI
requests, bidding documents, RFPs, prequalification applications, EOIs, bids,
and proposals;
g) Resolve petitions of employers;
h) Compliance with the schedule and quality of the
contractor according to the signed contract;
i) Other necessary contents to ensure contractor selection
and contract execution meet the requirements for quality, schedule, and efficiency.
3. Cases of monitoring
bidding activities
a) Packages falling under the direct contracting specified
in points a, b, c, e, g Clause 2 and Clause 7 Article 78 of this Decree;
b) Packages falling under the contractor selection in
special cases specified in Clause 1, Clause 2, Clause 3, and point u Clause 4
Article 84 of this Decree;
c) Packages requiring monitoring as per the request of
superior competent authorities;
d) Packages with petitions or feedback regarding the
failure to meet the quality and schedule requirements;
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4. Procedures for
monitoring of bidding activities
a) Preparation: After the project or contractor selection
plan is approved or upon request from the superior competent authority, the
competent person shall assign an agency or unit to monitor bidding activities
and send a notice to the employer about the package to be monitored, monitoring
contents, and information of the monitoring agency or unit;
b) Monitoring implementation: The monitoring agency or unit
shall assign individuals to directly participate in monitoring the package
according to the monitoring content; request the employer to report in writing
on the monitoring content and provide relevant records and documents for the
monitoring agency or unit according to the package schedule;
c) Reporting monitoring results: monitoring agencies, units
shall send periodic reports on monitoring results to competent persons.
Upon detecting any acts or contents that violate bidding regulations and
relevant, monitoring agencies and/or units shall recommend appropriate
corrective actions to safeguard the effectiveness of the contractor selection
process.
5. Responsibilities of the
individual or unit supervising bidding activities include:
a) Be honest and objective; not cause inconvenience to the
employer, expert team, or appraisal team during the monitoring process;
b) Request the employer, expert team, and appraisal team to
provide relevant documents and records to facilitate the monitoring process;
c) Receive feedback from bidders and relevant organizations
or individuals regarding the contactor selection of the project;
d) Maintain confidentiality of information as per law.
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e) Fulfill other responsibilities as stipulated by bidding
laws and other relevant laws.
Article 132. Regular supervision of bidding
activities by bidding authorities under ministries, agencies and
provinces
1. Ministry of Finance:
a) Monitor packages under projects as required by the Prime
Minister;
b) Supervise the contractor selection of state-owned
enterprises that do not use state budget in accordance with pp d Clause 7
Article 3 of the Bidding Law under its management;
c) Monitor the contractor selection through information and
data synthesized on VNEPS to provide recommendations for ministries,
departments, provinces, and enterprises to improve the efficiency of bidding
activities.
2. Regulatory bodies on
bidding under ministries, departments, and local governments
a) Regularly monitor the bidding activities of investors
subject to Article 2 of the Bidding Law under their management;
b) Supervise the contractor selection in accordance with
point d Clause 7 Article 3 of Bidding Law of state-owned enterprises that do
not use state budget, public service providers that are self-covering recurrent
expenses and investment, public service providers that are self-covering
recurrent expenses under their management.
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a) Significant packages applying direct contracting or
contractor selection in special cases; goods/services of important projects
applying order placement;
b) Employers that fail to provide explanation for bidding
documents or fail to respond to bidding documents, contractor selection
results; employers that have a low average number of bidders of competitive
bidding, limited bidding, shopping method, and online quotation under ordinary
procedures; employers that have many packages with only one participating
bidder; and employers that have recommendations on bidding documents and
contractor selection results; packages that do not meet quality and schedule
requirements; packages showing signs of subcontracting; other relevant
information.
4. Procedures for regular
monitoring of bidding activities for cases stipulated in point a Clause 2
hereof
a) Information specified in Clause 3 hereof shall be sent
to bidding authorities affiliated to ministries, departments, or local
governments on VNEPS or based on petitions of organizations, individuals;
b) Bidding authorities affiliated to ministries,
departments, or local governments shall monitor and consolidate the information
according to point a hereof to request the employer to report or propose
competent authorities to take timely measures to ensure progress, quality, and
effectiveness in executing the bidding packages or projects;
c) In cases of detecting organizations or individuals
committing violations, the bidding authorities affiliated to ministries,
departments, or local governments shall request the employer or the competent
person to consider handling the violating organizations or individuals and
issue corrective documents regarding the bidding activities of agencies and
organizations within the area or under their management.
5. Procedures for regular
monitoring of bidding activities for cases stipulated in point b Clause 1 and
point b Clause 2 hereof.
a) Quarterly, state-owned enterprises that do not use state
budget, public service providers self-covering both recurrent and investment
expenses or public service providers self-covering recurrent expenses shall
send reports to the Ministry of Finance and bidding authorities affiliated to
ministries, departments, or local governments as prescribed in Clause 3 hereof;
b) The Ministry of Finance and bidding authorities
affiliated to ministries, departments, or local governments shall monitor and
consolidate the information according to point a hereof to request state-owned
enterprises, public service providers self-covering both recurrent and
investment expenses and public service providers self-covering recurrent
expenses to take timely measures to ensure progress, quality, and effectiveness
in execution of packages and projects;
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Section 3. ADDRESSING OF VIOLATIONS
Article 133. Prohibition from participation in bidding
activities
1. The bidding ban
periods for organizations and individuals committing violations, including
individuals within the employer, expert team, or appraisal team:
a) 3 to 5 years for any of the violations of Clauses 1, 2,
4 and Point a, Clause 3, Article 16 of the Bidding Law;
a) 1 year to 3 years for any of the violations of points b
and c, Clause 3; Clause 5; points g, i, and l Clause 6; Clause 8; and Clause 9
Article 16 of the Bidding Law;
c) 6 months to 1 year for any of the violations of Points
a, b, c, d, dd, e, Clause 6 and Clause 7, Article 16 of the Bidding Law;
For joint venture bidders, the bidding ban specified in
Clause 1 hereof shall apply to all joint venture parties if any of joint
venture parties commit any violations specified in Article 16 of the Law on
Bidding, except for: the joint venture party committing any violations
of point c Clause 3, Clause 4, points b, c, d, and dd Clause 5, points a,
b, c, d, dd, e, and g Clause 6, Clause 7, points a and b Clause 8 Article 16 of
the Law on Bidding, only that member is banned from bidding.
2. In cases where an
organization or individual commits 2 or more violations within the management
scope of the competent person and has not been banned from bidding, the
competent person shall issue a decision on bidding ban with a ban period
determined by the total duration of the violations but not exceeding 5 years.
3. The statute of
limitations for applying the bidding ban specified in Clause 1 of this Article
is 10 years from the date of the violation.
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a) Written request from the employer accompanied by
documents proving the violation;
b) Petitions on the inspection findings of inspection
agencies, inspection findings of inspectorates, report on audit results from
the state audit authorities;
c) Results of resolving petitions of the Council in charge
of petition resolution;
d) Other documents of competent regulatory agencies that
identify violations.
5. If an organization or
individual has 03 effective decisions on bidding ban issued by competent
persons on VNEPS, the head of central agency or the chairperson of the People's
Committee of province shall consider issuing a decision on bidding ban within
the management of the ministry, department, or province for a period of 5 years
for the violator.
6. If an organization or
individual has 05 effective decisions on bidding ban issued by heads of central
agencies and People's Committees of provinces on VNEPS, the Minister of Finance
shall issue a decision on bidding ban nationwide for a period of 5 years for
the violator. Decisions
on bidding ban nationwide shall be published on VNEPS by the Minister of
Finance.
7. A decision on bidding
ban shall contain:
a) Name of the violating organization or individual;
b) Content of the violation, legal basis for addressing the
violation, and disqualification period for the violation; total
disqualification period (if committing 2 or more violations); disqualification
scope;
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8. In the cases where an
organization or individual is banned from participating in bidding activities
disagrees with the decision on bidding ban, they may file a lawsuit in court
following civil procedure law.
9. Expert team or
appraisal team members who commit violations against Article 16 of the Law on
Bidding shall be subject to Clause 1 of this Article and have their bidding
professional certificates revoked.
Chapter XI
CONTENTS AND
RESPONSIBILITIES OF APPRAISAL IN CONTRACTOR SELECTION
Article 134. Responsibilities of the appraisal team
1. The employer shall
appraise the following contents: EOI requests (if any), prequalification
documents (if any), bidding documents (if any), RFPs (if any), results of
evaluation of EOIs, results of evaluation of prequalification applications,
list of technically-responsive bidders (for packages applying the single-stage
two-envelope method, two-stage two-envelope method), contractor selection
results.
2. In the cases where the
organization or individual assigned to appraise does not have sufficient
capacity, a consulting organization with sufficient capacity and experience
shall be selected to conduct the appraisal.
Article 135. Appraisal of EOIs requests, prequalification
documents, bidding documents, and RFPs
1. Documents submitted for
appraisal and approval include:
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b) Draft EOI requests, prequalification documents, bidding
documents, and RFPs;
c) Decision on project approval (if any), decision on
approval for contractor selection plan;
d) Other relevant documents.
2. Contents to be approved
include:
a) Documents serving as basis for the formulation of EOI
requests, prequalification documents, bidding documents, or RFPs;
b) Compliance of the contents of EOI requests,
prequalification documents, bidding documents, or RFPs with the scale,
objectives, scope of work, execution timeline of the project, procurement
estimate, package; with the minutes between the employer and participating
bidders in first stage (for packages applying the two-stage method); with
bidding laws and relevant laws;
c) Opinions (if any) between organizations and
individuals participating in formulating EOI requests, prequalification
documents, bidding documents, or RFPs;
d) Other related contents.
3. The appraisal report
includes:
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b) Comments and opinions of the appraisal team on
legal grounds, compliance with bidding laws and relevant laws; agreement or
disagreement on the content of the draft EOI requests, prequalification
documents, bidding documents, and RFPs;
c) Proposals and recommendations of the appraisal team on
approving the EOI requests, prequalification documents, bidding documents, and
RFPs; action plans to address non-compliance in EOI requests, prequalification
documents, bidding documents, and RFPs with bidding laws and relevant laws;
action plans to address insufficient grounds for approval for EOI requests,
prequalification documents, bidding documents, and RFPs;
d) Other opinions (if any).
4. Before signing the
appraisal report, the appraisal team may convene a meeting between the parties
to resolve remaining issues if necessary.
Article 136. Appraisal of results of evaluation of EOIs,
results of evaluation of prequalification applications, list of
technically-responsive bidders, contractor selection results
1. General principles:
a) Evaluation results of EOIs, prequalification
applications (appraised as requested by the employer), and appraised contractor
selection results;
b) For packages applying the single-stage and one-envelope
method, the contractor selection result shall be appraised without requiring
appraisal of the list of technically-responsive bidders;
c) For packages of consulting services goods, construction,
non-consulting services, and mixed services, which apply the single-stage and
two-envelope method and packages that apply the form of online quotation under
ordinary procedures, the list of technically-responsive bidders must be
appraised before approval;
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dd) For packages applying the two-stage and two-envelope
method, the list of technically-responsive bidders shall be appraised in the
first stage. The appraisal in second stage shall be conducted similarly to
those required for packages applying the single-stage and two-envelope method,
in which the list of technically-responsive bidders in the second stage shall
be appraised in accordance with the technical contents in the bidding documents
for second stage, which have been adjusted compared to first stage;
e) Before signing the appraisal report, the appraisal team
may convene a meeting between the parties to resolve remaining issues if
necessary;
g) The bidder ranking list shall not be appraised.
2. Appraisal of results of
evaluation of EOIs and prequalification applications:
a) Documents submitted for appraisal and approval include:
Report on the results of evaluation of EOIs and
prequalification applications of the expert team;
Documents, including: EOI requests, prequalification documents, bid opening
minutes, EOIs, prequalification applications of bidders and other relevant
documents.
b) Contents to be appraised include:
Documents that serve as the foundation for inviting
interest and organizing prequalification;
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Evaluation of EOIs, prequalification applications;
compliance with regulations of bidding laws and other relevant laws during the
evaluation of EOIs, prequalification applications;
Different opinions (if any) between individuals in the
expert team;
Other related contents.
c) The appraisal report includes:
Overview of the main content of the project, procurement
estimate, package, legal grounds for invitation of interest, organization of
prequalification;
Brief statement describing process of invitation of
interest, organization of prequalification and request of the expert team on
the results of evaluation of EOIs and prequalification applications;
Comments and opinions of the appraisal units on the legal
grounds, compliance with bidding laws and other relevant laws; assurance of
competitiveness fairness, and transparency in the process of inviting interest
and organizing prequalification; agreement or disagreement on the results of
evaluating EOIs and prequalification applications;
Proposals and recommendations of the appraisal unit on the
results of evaluating EOIs and prequalification applications; action plans to
address non-compliance with bidding laws and relevant laws during the process
of inviting interests and organizing prequalification; action plans to address
inconclusive results in evaluation of EOIs and prequalification applications;
Other opinions (if any).
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a) Documents submitted for appraisal and approval include:
Report on the results of the evaluation of technical
proposals by the expert team;
Documents, including: Bidding documents, RFPs, bid opening minutes, technical
proposals of bidders and other relevant documents.
b) Contents to be appraised include:
Evaluation of technical proposals; compliance with
regulations of bidding laws and other relevant laws during the evaluation of
technical proposals;
Different opinions (if any) between individuals in the
expert team;
Other related contents.
c) The appraisal report includes:
Brief statement of the process of organizing contractor
selection (from the disclosure the invitation to bid to the request of the expert
team to appraise the list of technically-responsive bidders) and the request
for a list of technically-responsive bidders of the expert team;
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Other opinions (if any).
4. Appraisal of contractor
selection results:
a) Documents submitted for appraisal and approval include:
Report on the results of the evaluation of bids and
proposals by the expert team;
Minutes of contract negotiations (if any);
Minutes of document verification (if any);
Photographs of the following documents: bidding documents, RFPs,
minutes of bid openings, bids, proposals of bidders and other relevant
documents; if the list of technically-responsive bidders has been appraised,
only the record of opening the financial proposals and photographs of the
financial proposals of the technically-responsive bidders shall be sent.
b) Contents to be appraised include:
Documents serving as basis for contractor selection;
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Evaluation of bids and proposals for packages applying the
single-stage and one-envelope method, two-stage and one-envelope method, and
two-stage and two-envelope method; compliance with bidding laws and other
relevant laws during the evaluation of bids and proposals;
Evaluation of financial proposals for packages applying the
single-stage and two-envelope method; compliance with bidding laws and
other relevant laws during the evaluation of financial proposals;
compliance with bidding laws and other relevant laws during
the contract negotiation process (if any); compliance of contract negotiation
results with contractor selection results (if any), bidder ranking list,
bidding documents, RFPs and bids, and proposals;
Different opinions (if any) between individuals in the
expert team;
Other related contents.
c) The appraisal report includes:
Overview of the main content of the project, procurement
estimate, package, legal grounds for invitation of interest, organization of
prequalification;
Brief statement of the entire contractor selection process
from selecting the shortlist (if any) to submitting the contractor selection
result for appraisal, accompanied by documents as prescribed in Clauses 2 and 3
of this Article;
Summary of proposals and recommendations of the expert team
on the contractor selection result;
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Comments and opinions of the appraisal team on the legal
grounds, compliance with bidding laws and relevant laws; assurance of
competitiveness, fairness, and transparency in the process of contractor
selection; agreement or disagreement on the contractor selection results;
action plans to address non-compliance with regulations of bidding laws and
other relevant laws during the contractor selection; action plans to address
inconclusive results of contractor selection;
Other opinions (if any).
Chapter XII
SETTLEMENT
OF BIDDING PETITIONS
Article 137. Conditions for consideration and settlement of
petitions
1. Regarding petitions
against issues before the disclosure of contractor selection results, a
petition must meet the following conditions to be considered and settled:
a) For petitions regarding the content of bidding
documents, the petition must be from relevant agencies or organizations
interested in the package; for other issues related to the contractor
selection, the petition must be from participating bidders;
b) The petition must bear the signature and seal (if any)
of the legal representative of the investor, agency, or organization or be
digitally signed via an account, and sent to VNEPS;
c) Bidders, agencies, or organizations must submit the
petition to the employer and competent authority by the deadlines specified in
Clause 1, Article 138 of this Decree.
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a) The petition is prepared by the bidder participating in
the bidding;
b) The petition must bear the signature and seal (if any)
of the legal representative of the investor, agency, or organization or be
digitally signed via an account, and sent to VNEPS;
c) The content of the petition has not been subject to
litigation, complaint, or denunciation by the bidder;
d) The content of the petition is related to the evaluation
results of bids;
dd) The bidder shall pay petition fees to the standing
support team of the President of the Advisory Council (hereinafter referred to
as “standing support team”). Within 03 working days from the date of receiving the
bidder’s petition, the standing support team shall send a notice of petition
fee payment to the bidder. Within 02 working days from the date of receiving the
notice, the bidder must pay petition fees. In case the bidder fails to make the payment, the bidder’s
petition will be considered as unsatisfactory for consideration and settlement;
e) The bidder must submit the petition to the competent
authority and standing support team by the deadlines specified in Clause 2,
Article 138 of this Decree.
3. In the case where the
bidder, agency, or organization fails to meet the conditions specified in
Clause 1 and Clause 2 of this Article, the competent person shall resolve the
petition and send a written notice to the bidder, agency, or organization.
Article 138. Petition resolution procedures
1. The resolution of
petitions against issues before the disclosure of contractor selection results
is carried out according to the following procedures:
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In cases where the bidder, agency, or organization does not
agree with the response or the employer fails to provide a response by the
deadline specified in point b of this Clause, the bidder, agency, or
organization has the right to send a petition to the competent person within 05
working days from the deadline for response or the date of receiving the
response from the employer; The competent person shall provide a written response to
the bidder, agency, or organization within 07 working days from the date of
receiving the petition and forward it to the employer to publish it on VNEPS.
b) Bidders, agencies, or organizations shall send a
petition against the bidding documents to the employer before the bid
submission deadline. Participating bidders shall send a petition against other
contents of the contractor selection process to the employer before the
disclosure of contractor selection results. The competent person shall provide a written petition
resolution to the bidder, agency, or organization within 07 working days from
the date of receiving the petition and send it to the employer to publish it on
VNEPS.
In the cases where the bidder sends a petition to both the
competent person and the employer, the employer shall resolve the petition.
2. The resolution of
petitions against the contractor selection results is carried out according to
the following procedures:
a) The bidder shall send a petition to the employer within
10 working days from the date on which the investor selection result is
published on VNEPS; Petition’s contents shall be disclosed on VNEPS. The information of the
bidder submitting petition and the time of submitting the petition shall be
disclosed on VNEPS. The employer shall provide a written response to the bidder
within 07 working days from the date of receiving the petition and publish it
on VNEPS.
In cases where the bidder does not agree with the response
or the employer fails to provide a response within the deadline, the bidder has
the right to send a petition to the standing department within 05 working days
from the deadline for response or the date of receiving the response from the
employer; The
Council in charge of petition resolution shall provide a written response to
the bidder within 30 working days from the date on which the Council in charge
of petition resolution is established and send the response to the employer for
disclosure on VNEPS.
b) The bidder shall send a petition to the standing
department within 10 working days from the date on which the contractor
selection result is published on VNEPS; The Council in charge of petition resolution shall provide
a written response to the bidder within 30 working days from the date on which
the Council in charge of petition resolution is established and send the
response to the employer for disclosure on VNEPS.
In the case where the bidder sends a petition to both the
standing department and the employer, the Council in charge of petition
resolution shall resolve the petition.
3. If necessary, the
Council in charge of petition resolution shall request the competent person to
consider deciding the suspension of signing and execution of contracts. In cases where the
Council in charge of petition resolution’s petition is approved, within 05
working days from the date of receiving the petition, the competent person
shall send a notice on suspension of signing and execution of contracts to the
employer, specifying the duration of the suspension.
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5. In cases where the
investor does not agree with the response of the employer, competent person, or
Council in charge of petition resolution, the bidder may file a lawsuit in
court.
6. For the petition resolution by the competent person or
the Council in charge of petition resolution, the employer must publish the
written response on VNEPS within 5 working days from the date of receiving the
response.
7. For the contractor
selection stipulated in point d Clause 7 Article 3 of the Bidding Law or the
contractor selection that does not fall into any case under the scope and
regulated entities of the Bidding Law but the organization, unit, or state-owned
enterprise choose to apply the Bidding Law in accordance with Clause 4 Article
2 of the Bidding Law, the head of the organization, unit, or state-owned
enterprise shall resolve such petition. The head of the organization, unit, or state-owned enterprise
shall issue conditions and procedures for petition resolution within their
organization.
Article 139. Composition, responsibilities and activities
of the Council in charge of petition resolution
1. Authority and
responsibilities of the Council in charge of petition resolution
a) The Council in charge of petition resolution established
by the bidding authority affiliated to a Ministry, ministerial-level agency, Governmental
agency, or another central agency shall resolve petitions regarding packages
under the scope and regulated entities specified in Article 1 and Article 2 of
the Bidding Law, for which a Ministry, ministerial-level agency, Governmental
agency, unit/organization affiliated to the Ministry/ministerial-level
agency/Governmental agency, or another central agency is the employer;
b) The Council in charge of petition resolution established
by the Director of the Department of Finance shall resolve petitions regarding
packages specified in Article 1 and Article 2 of the Bidding Law for which the
People's Committee of the province or an organization or unit affiliated to the
province-level authority is the employer, except for packages specified in
point a of this Clause.
2. The Council in charge
of petition resolution and its standing departments consist of:
a) The Council in charge of petition resolution consists of
a Chairperson, Vice Chairperson (if necessary), representatives of relevant
agencies and representatives of professional associations, experts, and
scientists (if any);
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b) The Chairman of the Council specified in point a Clause
1 of this Article is a representative of the bidding authorities affiliated to
these agencies. The Chairperson of the Council specified in Point b Clause 1 of
this Article is a representative of the Department of Finance;
c) The Council in charge of petition resolution has the
right to request the bidders, employers, and relevant individuals and
organizations to provide information concerning the package and other
information necessary for performing its tasks.
3. The activities of the
Resolution Council are as follows:
a) The Council in charge of petition resolution is
established within 05 working days from the date on which the standing
department receives the petition submitted by the bidder in accordance with point
dd Clause 2 Article 137 of this Decree;
b) The Council in charge of petition resolution operates on
a case-by-case basis, under the principles of collective decision-making by
majority. Members
are entitled to advocate their opinions and are legally responsible for their
opinions;
c) The Council in charge of petition resolution has the
right to request the bidders, employers, and relevant individuals and
organizations to provide information concerning the package and other
information necessary for performing its tasks;
Chapter XIII
OTHER
MATTERS
Article 140. Handling situations
in online and offline bidding
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2. If, after approving the
specific contractor selection plan, a package receives an approved estimate
that differs from the package price outlined in the plan (either higher or
lower), the estimate will replace the package price in the plan, following
these principles:
a) If the approved estimate is higher than the package
price outlined in the plan but the higher estimate does not exceed the
total investment of the project or procurement estimate, the specific
contractor selection plan shall not be adjusted.
If the higher estimate exceeds the total
investment of the project or procurement estimate, the specific contractor
selection plan has to be adjusted; if the form of contractor selection in the
approved specific contractor selection plan is no longer appropriate, the form
of contractor selection must be adjusted;
b) If the approved estimate is lower than the package price
outlined in the plan without changing the form of contractor selection in the
approved plan, the specific contractor selection plan does not have to be
adjusted. If it is necessary to adjust the form of contractor selection to suit
the new value of the package according to the approved estimate, the specific
contractor selection plan must be adjusted.
If the cost estimate of a package is approved after the
contractor selection plan is approved as prescribed in this Clause, the
approved cost estimate must be published on VNEPS at least 05 days before the
bid submission deadline or at least 03 days for procurement packages of goods
that have continuous price fluctuations on the market.
3. When determining the
shortlist, if fewer than 3 bidders that meet the requirements, the employer
will choose one of two approaches based on the specific conditions of the
package:
a) Select additional bidders to the shortlist;
b) Allow the immediate issuance of bidding documents to
short-listed bidders.
4. If no bidder participates in bidding by the bid submission
deadline, the employer shall take one
of the following actions:
a) Cancel the EOI request, prequalification document, and
invitation to bid to re-invite bids. It is necessary to review and amend the EOI request,
prequalification documents, or bidding documents (if needed) to ensure that
there are no conditions in the documents that limit the participation of
bidders or give an advantage for any bidders, causing unfair
competition;
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c) Handling of situations in the case prescribed in this
clause that arise from selection of consultant for determination of land prices
shall comply with the Government’s regulations on land prices.
5. At the bid submission
deadline, for a package applying the form of competitive bidding, limited
bidding, shopping method, online quotation under ordinary procedures, if only 1
bidder submit EOI responses, prequalification applications, or bids, the
employer shall take one of the following actions:
a) Allow bid opening immediately to conduct evaluation;
b) Extend the bid submission deadline for at least 5 days
for domestic packages applying the form of EOI request, prequalification,
competitive bidding, uncomplicated consulting service packages, or urgent
consulting service packages which needs to be executed immediately to meet
execution schedule requirements; at least 10 days for packages applying the
form of competitive bidding, limited bidding, or online quotations under
ordinary procedures.
6. In the cases specified
in Clause 4 hereof and the case of bid cancellation in accordance with Clause 1
Article 17 of the Law on Bidding, the time of initiating contractor selection
shall not be adjusted.
7. If the first ranked
bidder’s bid price (after error correction, deviation adjustment, and any
discounts) exceeds the package price and at least 1 bidder in the ranked list’s
bid price (after error correction, deviation adjustment, and any
discounts) does not exceed the package price, the first-ranked bidder can
be invited to negotiate the price provided that the final negotiated price
cannot exceed the approved package price. If negotiation is unsuccessful, the next ranked bidder is
invited to negotiate.
8. If the bid prices
(after error correction, deviation adjustment, and any discounts) of all
technically-responsive bidders on the ranking list exceed the package price,
the employer can choose one or more of the following options:
a) Allow these bidders to re-offer their bid prices if the
package price includes all elements constituting the cost of package
performance;
b) Allow bidders to re-offer their bid prices and also
review the package price and content of approved bidding documents, if
necessary.
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If it is necessary to adjust the package price in the
approved specific contractor selection plan, the competent person is
responsible for approving the adjustment within 10 days from the date of
receiving the request for adjustment provided that the adjustment is done
before the deadline for submitting re-bid proposal;
c) Invite these bidders to participate in online quotation
under shortened procedures. If it is necessary to adjust the package price in the
approved specific contractor selection plan, the competent person is responsible
for approving the adjustment before the start of online quotation;
d) The first-ranked bidder may be invited to negotiate the
price, provided that the final negotiated price does not exceed the lowest bid
price (after error correction, deviation adjustment, and any discounts). If it is necessary to
adjust the package price in the approved specific contractor selection plan,
the competent person is responsible for approving the adjustment within 10 days
from the date of receiving the request for adjustment. If negotiation is
unsuccessful, the next ranked bidder is invited to negotiate. This method only
applies to cases where the package uses competitive bidding and the employer
must be responsible for the competitiveness, fairness, transparency and economic
efficiency of the project, procurement estimate, and package.
If only one bidder passes the technical evaluation step,
the employer can choose to follow option prescribed in point a or b as
outlined in this Clause, or invite the bidder to negotiate a lower price,
provided that the final price cannot be higher than the package price.
9. For goods procurement
packages as prescribed in Clause 2, Article 93 of this Decree, if the
first-ranked bidder’s bid unit price for any items exceeds the
standards issued by competent authorities but the proposed winning bid
price does not exceed the approved package price, the employer can consider
these options:
a) Invite the first-ranked bidders to enter into
negotiations for items whose bidding unit prices exceed procurement standards
issued by competent authorities;
b) Allow all bidders who pass the technical evaluation step
to re-offer their bid prices.
10. For divided
packages:
a) If there is a part or parts of a package that does not
have a bidder participating in the bidding or does not have a bidder that meets
the requirements, the employer must report to the competent person to allow
dividing that part into a separate package to organize contractor selection
according to regulations;
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c) If the bid price (after error correction, deviation
adjustment, and any discounts) of every technically-responsive bidders for a
part of package exceeds the estimated value of that part in the package price,
causing the total proposed winning price to be over the package price; or
if the bid price (after error correction, deviation adjustment, and any
discounts) of the first-ranked bidder in any parts of package is
higher than the estimated value of these parts in the package price, causing
the total proposed winning price to be over the package price, the employer can
follow the options outlined in Clauses 7 and 8 of this Article to handle the
situations;
d) If necessary, the employer may approve contractor
selection results for each part, provided that the proposed bid price does not
exceed the price of that part in the package.
11. If a bid price (after
error correction, deviation adjustment, and any discounts) of a bid seems
unusually low and could negatively impact the package quality, or the bid price
(after error correction, deviation adjustment, and any discounts) of a
construction/EC package falls below 80% of the package price, the employer will
take the following steps:
a) Request the bidder provide explanation and clarify the
feasibility of their unusually low bid price and the costs that constitute the
package price. The
bidder must demonstrate the compatibility between the bid price and the scope
of work, solutions proposed by the bidder, performance schedule, and other
requirements of the bidding documents. If the bidder fails to provide a clear and persuasive
explanation, such bid price shall be rejected.
For packages other than construction packages, EC packages,
and items offered with unusually low prices that contribute to the overall low
bid price can be considered as insufficient deviations. The employer may
adjust deviations for these items following Clause 2, Article 31 of this
Decree. The adjustment of insufficient deviations is only for bid comparison
and ranking purpose. If the bidder remains the first rank after the
deviation adjustment, the proposed winning price does not include the deviation
adjustment amount specified in this point.
For construction packages and EC packages, if the bidder
fails to provide a clear and persuasive explanation, its bid shall be disqualified;
b) In order to prevent risks, the employer may require a
performance security deposit which is greater than 10% but not more than 30% of
the contract price.
12. For construction and
mixed packages applying international bidding (in cases where laws on specific
sectors and fields require the preparation of a package estimate), if the
first-ranked bidder’s bid is unbalanced: the unit prices offered for items with simple technical
requirements, items with additional quantities are significantly higher than
the those specified in the package estimate; and the unit prices offered for
items with complex tasks are significantly lower than those specified in the
package estimate, the employer may request the bidder to provide a written
explanation. The
bidder must demonstrate the compatibility between the bid price and the scope
of work, construction methods proposed by the bidder, performance schedule, and
other requirements of the bidding documents. If the bidder fails to provide a clear and persuasive explanation,
its bid shall be disqualified. In order to prevent risks, the employer may require a
performance security deposit which is greater than 10% but not more than 30% of
the contract price.
13. If the bidding
documents allow the bidder to propose construction methods different from those
stated in the bidding documents, any difference in workload between the
proposed method and the one in the documents will not be considered a deviation
and then adjusted in accordance with Clause 2, Article 31 of this Decree. This
difference is not considered as insufficient deviation.
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15. In the case where the
branch, factory, or representative office is separated from the legal entity
according to civil laws, the new entity formed from the separation may inherit
the bidding capacity of the original entity.
16. For packages applying
contract negotiation in accordance with Clause 4, Article 24, Clause 6, Article
32, Clause 5, Article 36, Clause 5, Article 61, Clause 4, Article 75 of this
Decree, if the first-ranked bidder fails to participate in the negotiation,
refuses to sign the negotiation minutes, or the negotiation is unsuccessful,
the employer may consider inviting the next ranked bidder (if any) to
negotiate. The
content of negotiation is based on the bid and the bid price (after error
correction, deviation adjustment, and any discounts) of the bidder invited
to negotiate. If
the negotiation is unsuccessful, the employer shall consider inviting the next
bidders (if any) to negotiate the contract; the negotiation content is
based on the bid and the bid price (after error correction, deviation
adjustment, and any discounts) of the bidder invited to negotiate the contract. Where bidders are invited
to negotiate a contract but refuse to negotiate, refuse to sign the negotiation
minutes, or negotiate unsuccessfully, the employer shall consider cancelling
the bid according to Clause 1, Article 17 of the Bidding Law.
If the next ranked bidder is invited to negotiate a
contract in accordance with this point within the validity period of the bid
but does not participate in the negotiation or refuses to sign the negotiation
minutes, their bid security will be forfeited.
If the bid of the next ranked bidder expires,
the investor must request the bidder to extend the validity period of the bid
and bid security before negotiating the contract.
17. If the proposed
winning price is lower than 50% of the approved package price, the employer
requests the bidder to clarify the elements constituting the bid cost and
consider relevant evidence as follows:
a) Economic factors related to construction methods,
production processes, or service provision;
b) Economic solutions applied or special advantages of the
bidder leading to price advantages;
c) Origin of goods, services, and personnel provided for
the package, which must ensure compliance with legal regulations.
If the conditions specified in Points a, b and c of this
Clause are met, the bidder's bid or proposal will still be accepted as the
winning bid. In
order to prevent risks, the employer may require a performance security deposit
which is greater than 10% but not more than 30% of the contract price. If a bidder receives
subsidies from any organization or individual leading to unfair competition,
their bid or proposal will be disqualified.
18. After evaluation, if
multiple bidders are ranked best, the following criteria will be used in order
to award the contract:
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b) The contract shall be awarded to the bidder with a
higher technical score or fewer technically acceptable criteria (if the package
applies the least-cost selection); bidder with lower bid price (after error
correction, deviation adjustment, and any discounts) (if the package applies
the evaluated price selection or the quality- and cost-based selection);
c) The contract shall be awarded to the bidder whose head
office is located in the province where the package is performed;
d) The contract shall be awarded to the bidder that employs
war invalids or people with disabilities with a labor contract for at least 3
months, still valid at the bid submission deadline;
dd) The contract shall be awarded to the bidder that
employs ethnic minority workers with a labor contract for at least 3 months,
still valid at the bid submission deadline;
e) The contract shall be awarded to the bidder that employs
female employees with a labor contract for at least 3 months, still valid at
the bid submission deadline;
g) These bidders may re-offer bid prices for the employer
to select the bidder offering the lowest bid price. A price higher than their
previously offered price (after any corrections, adjustments, or discounts) is
not allowed to offer. The re-offering of bid prices shall comply with Point a,
Clause 8 of this Article;
h) Invite these bidders to participate in online quotation
under shortened procedures. A price higher than their previously offered price (after
any corrections, adjustments, or discounts) is not allowed to offer.
19. If the successful
bidder fails to sign the contract or the successful bidder no longer meets the
technical and financial requirements specified in Clause 2 of Article 66 of the
Bidding Law at the time of contract signing, the employer can take the
following steps
a) Cancel the approved contractor selection result, invite
the second-ranked bidder (if any) to complete the contract, and also request
this bidder to extend or renew the validity of their bid and bid
security (in case of expiration) for at least 30 days from the expected start
date of contract completion.
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The contract completion shall comply with Article 34 of
this Decree. The content of contract completion must be based on the bid and
bid price (after error correction, deviation adjustment, and any discounts) of
the second ranked bidder. After the contract completion with the second ranked
bidder, the employer shall issue a decision to award the contract to the second
ranked bidder before signing the contract with that bidder.
If the second-ranked bidder fails to accept the contract
completion results and sign a contract with the employer, their bid security
will be forfeited, except for force majeure events or other cases that the
employer fails to comply with the principle of finalizing the contract. In this case, the
employer shall consider following one of two options specified in Point b or
Point c of this Clause;
b) Invite the third ranked bidder (if any) to complete the
draft contract. If the third ranked bidder fails to participate in the contract
completion, or fails to extend or renew the validity of the bid and bid
security as required, the employer shall consider inviting the next ranked
bidders (if any) to complete the contract or cancel the bid according to Clause
1, Article 17 of the Bidding Law.
The invited bidder must extend or renew the validity of
their bid, bid security (in case of expiration) for at least 30 days from the
expected start date of contract finalization.
The contract completion shall comply with Article 34 of
this Decree. The content of contract completion must be based on the bid and
bid price (after error correction, deviation adjustment, and any discounts) of
the invited bidder. After the contract completion, the employer shall issue a
decision to award the contract to the invited bidder before signing the
contract with that bidder.
If the invited bidder fails to accept the contract
completion results and sign a contract with the employer, their bid security
will be forfeited and the employer will consider cancelling the bid according
to Clause 1, Article 17 of the Bidding Law;
c) Cancel the bid in
accordance with Clause 1, Article 17 of the Bidding Law.
20. During the contract
performance process, if the competent person rejects the contractor
selection result when there is evidence that the successful bidder has violated
Article 16 of the Bidding Law, or has violated relevant laws leading to failure
to ensure competition, fairness, transparency and economic efficiency, or has
falsified the contractor selection result, the employer will take the following
actions:
a) Forfeit the performance security deposit and advance
payments (if any);
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c) Terminate the contract with the contractor; for a joint
venture contractor where only one joint venture party violates and is banned
from participating in bidding activities as prescribed in Clause 1, Article 133
of this Decree, the remaining joint venture parties will not be considered
incomplete contract due to the contractor’s fault;
d) Publish information about violating contractor on VNEPS
within 5 working days from the date of issuance of the contract termination
decision, send the contract termination decision and other documents on
handling violations (if any) to the Ministry of Finance for consolidation and
monitoring;
dd) After terminating the contract with the previous contractor,
the unfinished work will be assigned to the second-ranked bidder in the ranking
list. If the second-ranked bidder fails to accept to sign the contract, the
employer appoints another bidder or separates the unfinished work into a new
package and organizes contractor selection as per laws. The package price can be
reviewed and re-approved for the unfinished work (if necessary). If a direct contracting
is applied, the value of the unfinished work is calculated as the value stated
in the contract minus the value of the previously performed work.
21. During the contract
performance process, if the competent person rejects the contractor
selection result when there is evidence that the employer, expert team, or
appraisal team has violated Article 16 of the Bidding Law, or has violated
relevant laws leading to failure to ensure competition, fairness, transparency
and economic efficiency, or has falsified the contractor selection result not
due to the successful bidder's fault, the competent person shall take the
following actions:
a) Request the employer to forfeit advance payments (if
any) and terminate the contract with the contractor. The contractor shall
be refunded the performance security deposit and reimbursed the costs related
to contract termination due to the employer's fault according to contract. The employer shall
pay damages to the contractor according to the contract;
b) The unfinished work shall be separated into a new
package to organize the selection of contractors according to regulations. The package price can be
reviewed and re-approved for the unfinished work (if necessary);
c) If more than 70% of the package work is already finished
and the actions mentioned in points a and b hereof do not make good financial
sense, the competent person shall decide whether to continue maintaining the
contract with the contractor.
22. If any joint
venture party breaches the contract, no longer has the capacity to
continue performing the contract, seriously affects the progress, quality, and
efficiency of the package, the employer will take the following actions:
a) Impose contract penalties on all joint venture parties
according to the contract;
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c) Terminate the contract with one or more joint venture
parties that breach the contract; In this case, only the violator(s) is
considered as not completing the contract and has their name be published in
VNEPS; the remaining joint venture parties shall continue to execute the
contract corresponding to the work they undertake. Within 05 working days from
the date on which the contract termination decision is issued, the employer
shall publish the information about the violators on VNEPS and provide the
reason for the breach of contract leading to the contract termination. The decision
shall be submit to the Ministry of Finance for consolidation and monitoring;
d) The violating party’s work shall be assigned to the
remaining parties to perform if these parties are competent and experienced to
take over.
dd) dd) If the remaining parties refuse to perform or do
not have enough capacity or experience to perform, the employer shall separate
the work into a separate package for direct contracting according to Point dd,
Clause 20 of this Article or organize contractor selection according to
regulations.
23. If the contractor
breaches the contract, no longer has the capacity to continue performing the
contract, or seriously affects the progress, quality and effectiveness of the
package, the employer shall terminate the contract with that contractor; contractors
who breach the contract are considered as have failed to complete the contract.
If a direct contracting is applied to the unfinished work,
the value of the unfinished work is calculated as the value stated in the
contract minus the value of the previously performed and accepted work.
The employer must ensure that the appointed bidder has the
capacity and experience to meet the requirements for performing the remaining
work of the package. If the direct contracting is not applied, a new package
will be formed to organize contractor selection. If necessary, review the
package price for the remaining work before organizing contractor selection as
per the law. If
the contract performance is behind schedule due to no fault of the contractor,
it is not allowed to terminate the contract to replace another bidder. If the
contract with a violator must be terminated to replace a new bidder, the
employer must publish the information about the violator on VNEPS within 5
working days from the date of issuance of the decision on contract termination.
The decision on contract termination and other documents dealing with
violations (if any) shall be submitted to the Ministry of Finance for
consolidation and monitoring; The notice must clearly state the reason for the contractor’s
breach of contract leading to the termination of the contract, the method of
selecting a substitute bidder, and the name of the designated bidder if the
form of direct contracting is applied.
24. If a joint venture
needs to finish a contract faster than originally planned (which requires
revision to the contract), or due to objective conditions not caused by the
contractor (natural disasters, floods, scarcity of construction materials,
delayed handover of construction sites, changes in geological conditions, and
other objective conditions not caused by the contractor), leading to the
inability to meet the schedule requirements, or due to unforeseeable
circumstances affecting the contract schedule, the employer and contractor may
agree on a new schedule and adjust the workload among the joint venture members
accordingly with the schedule or the shortened schedule. In this case, the
employer must ensure that the party undertaking the extra work has enough
capacity and experience to do that and transferring work among the parties is
not for bid transfer purpose.
25. If, during the contract performance, a court convicts
the contractor’s employees (who had a valid employment contract with the contractor
at the time of the offense) of a bidding-related offense that
significantly impacted the contractor’s ability to win the contract, the
employer can terminate the contract and forfeit the contractor’s performance
security deposit. The contractor is only paid for the work performed and
accepted according to the contract. The contractor is considered to have failed to complete the
contract and is posted on VNEPS; the notice must clearly state the violation
leading to termination of the contract; for the unfinished work, the employer
shall apply direct contracting according to Point dd, Clause 20 of this Article
or split into a new package and organize contractor selection as per the law.
26. If an investigation
body alleges the contractor’s employees (who had a valid employment contract
with the bidder at the time of offense) of a bidding-related offense that
significantly impacted the bidder’s ability to win the contract, but they have
not been convicted by the Court or the bidder has not been banned from bidding
by a competent person, that bidder can still continue to participate in the
bidding.
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a) The contractor sends a written notice to the employer;
b) The substitute goods and the
goods originally stated in the contract come from the same
manufacturer and have the same origin;
c) The substitute goods have technical features,
configuration, parameters and other technical requirements that are equivalent
or better than the goods originally stated in the contract;
d) Suitable for practical needs;
dd) The unit price of the substitute goods do not exceed
the unit price of the goods originally stated in the contract.
28. If the VNEPS system
experiences a prolonged downtime requiring extensive troubleshooting, the
Ministry of Finance shall provide guidelines on the VNEPS. These guidelines
will outline how to select investors during VNEPS downtime, including
procedures for offline selection.
29. For construction
packages, non-consulting packages, and consulting packages applying the bidding
in advance in accordance with Article 42 of the Bidding Law, in the cases where
the approved project includes any contents that lead to an increase in the
package price (or an increase in the estimate if such estimate is approved
after the approval of contractor selection plan) by 30% or more, or any
important technical evaluation criteria are changed, or the level of
construction is changed in the issued bidding documents, the employer shall
cancel the bid in accordance with point b Clause 1 Article 17 of the Bidding
Law; in the cases where the approved project does not lead to an increase in
the package price or the estimate by 30% or more or changes in the important
technical evaluation criteria or the level of construction stipulated in the
bidding documents which have been issued and awarded to a bidder, the investor
may modify or supplement the volume of work to complete and sign the contract
with the successful bidder.
For procurement packages applying the bidding in advance in
accordance with Article 42 of the Bidding Law, in the cases where the approved
project includes any contents that lead to an increase in the package price by
20% or more or changes of the type of goods stipulated in the issued bidding
documents, the employer shall cancel the bid in accordance with point b Clause
1 Article 17 of the Bidding Law; in the cases where the approved project does
not lead to an increase in the package price by 20% or more or changes in the
type of goods stipulated in the bidding documents which have been issued and
awarded to a bidder, the employer may modify or supplement the volume of work
to complete and sign the contract with the successful bidder.
30. For divided contract
packages, in the cases where the proposed winning price of each part exceeds
30% of the corresponding value in the package price (or the package estimate if
the package estimate is required in accordance with laws on specific sectors
and fields), the employer shall request the bidder to clarify the elements
constituting the bid cost, and consider relevant evidence as follows:
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b) Market price determined through market analysis, market
consultation according to Clause 3, Article 17 of this Decree;
c) Origin of goods/services according to legal regulations.
If the conditions specified in Points a, b and c of this
Clause and Claus 4 Article 29 of this Decree are met, the bidder's bid will
still be accepted as the winning bid.
31. In cases where the
package has special characteristics and applies direct contracting or
contractor selection in special circumstances, and the foreign contractor
requests a binding commitment to sign a contract without having to register on
VNEPS, the employer shall not request such foreign contractor to register when
announcing the contractor selection results.
32. For packages applying
online contractor selection, in cases where during the evaluation of bids,
there is no selection result yet and a bidder listed in the bid opening minutes
has its account locked in accordance with bidding laws, the bid of such bidder
shall not be further evaluated.
33. For goods procurement,
in the cases where bidders offer goods with the same code (if any),
manufacturer, year of manufacture, and Vietnamese origin, but some bidders
declare while others do not declare these goods as being eligible for
incentives, the employer shall decide requesting bidders to make a
clarification to serve as a basis for evaluating the incentives.
34. Beyond the situations
outlined in Clauses 1 through 33 of this Article, the employer will consider
taking actions that upholds the bidding objectives of competitiveness,
fairness, transparency, economic efficiency, and accountability.
Article 141. Bidder management
1. Responsibilities of the
bidder:
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b) Regularly update and take responsibility for the
accuracy and truthfulness of information about their capacity and experience on
VNEPS;
c) In addition to the responsibilities specified in Points
a and b of this Clause, foreign bidders must also perform the following
responsibilities:
Foreign bidders must comply with Vietnamese law on entry
and exit; import and export of goods; registration for temporary residence or
temporary absence; accounting, taxes and other relevant Vietnamese regulations,
unless international treaties to which the Socialist Republic of Vietnam is a
member or loan agreements provide otherwise.
Within 15 days from the effective date of the contract
signed with the foreign bidder, the employer shall post the list of successful
foreign bidders on VNEPS and sending a notice of information about the
successful bidders to the Ministry of Finance, specialized Ministry, and the
Department of Finance in the province where the project is executed for
consolidation and monitoring;
d) Foreign bidders selected according to the Bidding Law
are not required to apply for a bidding license.
2. Subcontractor management:
a) The contractor may sign contracts with subcontractors in
the list of subcontractors stated in the bids, proposals or sign with
subcontractors approved by the employer to participate in performing the
construction work; consulting services; non-consulting services; related
services of goods procurement packages or mixed packages. Employing a subcontractor
will not change the contractor’s obligations. The contractor must be
responsible for the volume, quality, progress and other responsibilities for
the work performed by the subcontractor.
b) Any substitutions or additions of subcontractors (as
detailed in point a) or modifications to their assigned tasks (as outlined in
the bid or proposal) require prior written approval from the employer or
supervisor and the total cost of subcontracted work cannot exceed the maximum
amount stipulated in the contract; the employment of subcontractors must be
consistent with the contractor’s needs in implementing the contract; the
subcontractor must meet the capacity and experience requirements of the contractor;
c) The contractor shall employ subcontractors with the
capacity and experience to meet the requirements to perform the assigned
work. If
a special subcontractor is employed to perform important work of the package
according to the requirements of the bidding documents, their capacity and
experience shall be evaluated according to the regulations stated in the
bidding documents. When employing special subcontractors, the contractor is
not required to meet capacity and experience requirements for the work assigned
to these special subcontractors;
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Article 142. Competent persons of component projects,
sub-projects
In the cases where the project is divided into component
projects for independent operation and exploitation or compensation, support,
resettlement tasks are divided into sub-projects as per laws, the contractor
selection method shall be applied as prescribed for independent projects. Competent persons who
decide investing in component projects, chairpersons of People's Committees at
all levels who manage sub-projects for compensation, support, and resettlement
shall exercise the authority and responsibility of the competent person in
organizing the contractor selection in accordance with the Bidding Law and this
Decree.
Chapter XIV
IMPLEMENTATION
Article 143. Amendments to certain Articles of the Government’s
Decree No. 32/2019/ND-CP dated April 10, 2019, as amended by the Government’s
Decree No. 111/2025/ND-CP dated May 22, 2025
1. Clause 1 and Clause 2
Article 12 are amended as follows:
“1. The state-funded public services may be ordered from
public service providers by the superior agencies, according to the list
specified in Appendix I hereto, when all of the following conditions are
satisfied:
a) The conditions specified in point a Clause 2 Article 9
hereof are satisfied;
b) It does not undergo dissolution procedures;
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2. The state-funded public
services may be ordered from another public service provider according to the
list specified in Appendix I hereto, if:
a) It is not undergoing dissolution process or subject to
revocation of enterprise/business registration certificate; is not facing
insolvency as prescribed by the law on bankruptcy;
b) The provider meets one or more requirements regarding: financial capacity,
facilities, equipment, machinery, technical expertise, production technology,
implementation solutions, management level, and personnel to ensure the
quality, progress, and efficiency of the order. In addition, with respect to
other public service providers that are ordered in a sector requiring state
licensing, they must be granted a license by the competent authority according
to laws on specific sectors and fields;
c) The list of public services with specific
characteristics related to intellectual property ownership or State monopoly
production and business stipulated by commercial laws and other relevant
regulations, or the public service provider has been allocated the land use
rights and assets attached to land to serve the public service provision, or
the public service provider guarantees the quality, progress, and efficiency of
the order;
d) Other order placement conditions prescribed in relevant
regulations of law (if any) are satisfied.
2. Article 13a is added
following Article 13 as follows:
Article 13a. Order placement process for providing public services
1. In the case of ordering
the provision of public service from the subordinate public service provider,
the ordering process is as follows:
a) Determine the unit price, ordering price:
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b) The ordering authority shall approve the order placement
decision for the affiliated public service provider.
2. In the case of ordering
the provision of public services from other public service providers, the order
placement process is as follows:
a) Prepare and approve an order placement plan:
The ordering authority shall issue a decision to approve
the order placement plan. The ordering authority shall prepare an order
placement plan, including: name of the public services to be ordered; estimated
quantity, volume of services; service quality; execution duration and
completion time; ordering estimate; specific requirements specified in Clause 2
Article 12 of this Decree for the provider; other ordering details to comply
with management requirements for each specific sector or specific content
ordered according to laws on specific sectors and fields (if any).
The specific content of the order placement plan is
determined by the ordering agency to ensure the quality, progress, and
effectiveness of the order.
b) Identify the service provider:
The ordering agency shall identify a provider to award the
ordering plan; specific requirements for the provider according to the ordering
plan are not required to be evaluated before the ordering plan is received by
the provider.
The provider shall submit an order form enclosed with the
eligibility documentation. In the following years, if the provider still applies to
accept the order, they shall commit to meeting the ordering conditions in
accordance with Clause 2 Article 12 of this Decree in the order form and do not
require to resubmit the eligibility documentation. The eligibility
documentation shall only be resubmitted if there are any changes.
The ordering agency shall identify the provider accepting
the order who meets the ordering plan;
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The unit price, ordering price is determined by the
competent authority according to laws on price serving as the basis for signing
the ordering contract;
d) The ordering authority and the provider sign the
contract.”.
3. Article 16 is amended
as follows:
“Article 16. Contractor selection for public service
provision
For public services that meet the conditions for order
placement stipulated in this Decree, if the ordering authority decides not to
apply this form, another contractor selection method stipulated in the bidding
laws may be applied.”.
4. Clause 1 Article 17 is
amended as follows:
“1. Public products/services according to the list
specified in Appendix II shall be ordered when meeting the following
conditions:
a) The manufacturer or service provider is not undergoing
dissolution process nor subject to revocation of enterprise registration
certificate; is not facing insolvency as prescribed by the law on bankruptcy;
b) The manufacturer or
service provider must meet one or more requirements regarding: financial capacity,
facilities, equipment, machinery, technical expertise, production technology,
implementation solutions, management level, and personnel to ensure the
quality, progress, and efficiency of the order. In addition, with respect to
other manufacturers or service providers that are ordered in a sector requiring
state licensing, they must be granted a license by the competent authority
according to laws on specific sectors and fields;
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5. Article 18a is added
following Article 18 as follows:
Article 18a. Order placement process for providing public utilities
1. Prepare and approve an
order placement plan:
The ordering authority shall issue a decision to approve
the order placement plan. The ordering authority shall prepare an order
placement plan, including: name of the public utilities to be ordered; estimated
quantity, volume of services; quality of public utilities; execution duration
and completion time; ordering estimate; specific requirements specified in
Clause 1 Article 17 of this Decree for the supplier or provider; other ordering
details to comply with management requirements for each specific sector or
specific content ordered according to laws on specific sectors and fields (if
any).
The specific content of the order placement plan is
determined by the ordering agency to ensure the quality, progress, and
effectiveness of the order;
2. Identify the
manufacturer or provider of public utilities winning the order:
a) The ordering authority shall identify a manufacturer or
provider to award the ordering plan; specific requirements for the manufacturer
or provider according to the ordering plan are not required to be evaluated
before the ordering plan is received by the manufacturer or provider;
b)The manufacturer or provider shall submit an order form enclosed
with the eligibility documentation. In the following years, if the manufacturer or provider of
public utilities still applies to accept the order, they shall commit to
meeting the ordering conditions in accordance with Clause 1 Article 17 of this
Decree in the order form and do not require to resubmit the eligibility
documentation. The eligibility documentation shall only be resubmitted if there
are any changes.
c) The ordering authority shall identify the manufacturer
or provider of public utilities who meets the ordering plan to award the order;
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The unit price, ordering price is determined by the
competent authority according to laws on price serving as the basis for signing
the ordering contract;
4. The ordering authority
and the manufacturer or provider of public utilities sign the contract.”.
6. Article 21 is amended
as follows:
“Article 21. Contractor selection for providing public
utilities
For public utilities that meet the conditions for order placement
stipulated in this Decree, if the ordering authority decides not to apply this
form, another contractor selection method stipulated in the bidding laws may be
applied.”.
7. Clauses 9 and 10
Article 3 of Decree No. 32/2019/ND-CP cease to be effective.
8. The phrases “Ministry
of Planning and Investment” are removed in Clause 4 Article 5 of Decree
No. 32/2019/ND-CP.
9. Clause 5 Article 12 and
Clause 6 Article 17 of Decree No. 32/2019/ND-CP cease to be effective.
Article 144. Transition clauses
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For any package that applies the form of direct contracting
under shortened procedures, direct procurement, self-performance, contractor
selection in special case, contractor selection to perform the
community-involved package, if the specific contractor selection plan has been
approved but by the effective date of this Decree, the contractor
selection result have not been approved, the employer may adjust the contractor
selection plan to comply with the Law No. 90/2025/QH15 and this Decree.
2. For any package for
which the EOI requests, prequalification requests, bidding documents, and RFPs
has issued before July 01, 2025, and the bid is opened before the
effective date of this Decree, then continue to organize the shortlisting
procedure, contractor selection, sign and manage contract execution according
to the provisions of the Law on Bidding No. 22/2023/QH15 as amended and
supplemented by Law No. 57/2024/QH15, and relevant documents elaborating and
providing guidelines.
3. For any package for
which the EOI request, prequalification request, bidding document, or RFP has
been issued before July 01, 2025 but its submission deadline is after the
effective date of this Decree, the employer shall consider deciding to select
one of the following ways:
a) Open the bid and comply with Clause 2 hereof;
b) Cancel the invitation for bids, invitation for EOIs, and
invitation for prequalification applications and adjust the contractor
selection plan (if necessary), bidding documents, EOI requests,
prequalification documents, and RFPs to reorganize the contractor selection
according to accordance with the Bidding Law No. 22/2023/QH15 (as amended and
supplemented by Law No. 57/2024/QH15, Law No. 90/2025/QH15) and this Decree.
4. From July 1, 2025 to
the effective date of this Decree, the contractor selection shall comply with
Law on Bidding No. 22/2023/QH15 (as amended and supplemented by Law No.
57/2024/QH15 and Law No. 90/2025/QH15), Decree No. 24/2024/ND-CP (as amended
and supplemented by Decree No. 17/2025/ND-CP), relevant guidelines which are
still conformable with the provisions of the Law on Bidding No. 22/2023/QH15
(as amended and supplemented by Law No. 57/2024/QH15 and Law No. 90/2025/QH15).
5. During the period from
July 1, 2025 to the effective date of this Decree, the contractor selection on
VNEPS shall be carried out as follows:
a) EOI requests, prequalification documents, and bidding
documents shall be prepared in accordance with Clause 4 and Clause 5 hereof and
are attached on VNEPS when issuing invitation for EOI, and invitation for
prequalification, and invitation for bids;
b) Prequalification applications, EOIs, bids, and bid
security are attached, digitally signed, and submitted on VNEPS as a basis for
evaluating prequalification applications, EOIs, bids, and bid security; the
error correction and deviation adjustment shall comply with Article 31 and
Article 68 of this Decree. Information, such as:
bid price, discount (if any); validity of the
bid; package execution duration; value and validity of bid security shall be
declared in the form when submitting the bid on VNEPS for information
extraction in the bid opening minutes;
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d) The preparation of consortium agreement, clarification
of bidding contents, submission and receipt of petitions shall be carried out
on VNEPS.
6. For public products and
services for which and ordering decision and ordering contract were signed
before the effective date of Decree No. 32/2019/ND-CP (as amended and
supplemented by this Decree), continue to comply with Decree No. 32/2019/ND-CP
until the completion of payment, financial settlement for the supply of public
products and services.
If the order placement of public products and services
using the state budget from recurrent expenditures has been included in the
state budget estimate for the year 2025 (including the budget estimate carried
over from the previous year to 2025 and the additional budget estimate for
2025) but the ordering decision has not been issued and the ordering contract
has not been signed, the ordering authority shall decide applying the
provisions of Decree No. 32/2019/ND-CP or Decree No. 32/2019/ND-CP (as amended
and supplemented by this Decree).
7. For local centralized
procurement, after the rearrangement of provincial administrative divisions,
the newly formed provincial administrative divisions can use framework
agreements and unit prices of the previous administrative divisions according
to the principle of applying the framework agreement with the highest quantity
or the longest remaining validity period and not limited in quantity until a
new centralized procurement result is available.
8. For decisions on
bidding ban which have been issued before July 01, 2025:
a) Any bidder who has been banned from bidding in the
provincial administrative unit before the rearrangement shall continue to be
banned from bidding in the provincial administrative unit after the
rearrangement until the end of the bidding ban duration specified in the
bidding ban decision;
b) Any bidder who has been banned from bidding in the
district-level administrative unit before July 07, 2025 shall continue to be
banned from bidding in the commune-level administrative unit formed after the
rearrangement, which encompass all or part of the area of the commune-level
administrative division that falls under the district-level administrative
division where the bidder is banned before the rearrangement, until the end of
the bidding ban duration specified in the bidding ban decision;
c) Any bidder who has been banned from bidding in the
commune-level administrative division before the rearrangement shall continue
to be banned from bidding in the commune-level administrative division formed
after the rearrangement, which encompass all or part of the area of the
commune-level administrative division where the bidder is banned before the
rearrangement, until the end of the bidding ban duration specified in the
bidding ban decision;
d) For decisions of bidding ban issued by competent persons
and authorities that do not fall under cases specified in points a, b, and c
hereof, any bidder that has been banned from bidding in the area or under the
management of the administrative division before the rearrangement shall
continue to be banned from bidding in the area or under the management of the
administrative division formed after the rearrangement until the end of the
bidding ban duration specified in the bidding ban decision.
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1. This Decree comes into
force from the date on which it is signed.
2. The following Decrees
cease to have effect from the effective date of this Decree, including:
a) Decree No. 24/2024/ND-CP dated February 27, 2024 (as
amended and supplemented by Decree No. 115/2024/ND-CP dated September 16, 2024
and Decree No. 17/2025/ND-CP dated February 02, 2025);
b) Clause 5 Article 13 and Clause 3 Article 14 of Decree
No. 165/2017/ND-CP dated December 31, 2017.
3. Vietnamese-origin goods
stipulated in point a Clause 1 Article 10 of the Bidding Law determined in
accordance with the regulations of commercial law regarding the identification
of Vietnamese-origin goods. Determination of domestically manufactured drugs shall
comply with the guidance of the Ministry of Health. The provisions in point b
Clause 5 Article 6 hereof shall apply until the commercial law provides the
guidance for determining Vietnamese-origin goods.
4. Information about the
execution results of contracts and quality of goods shall be published in
accordance with Article 19 and Article 20 of the Law on Bidding No.
22/2023/QH15 (as amended and supplemented by Laws No. 57/2024/QH15, No.
90/2025/QH15).
5. Determination of the
list, requirements for the features and technical requirements of procurement
packages for medical equipment and testing supplies to serve the contractor
selection plan and organization shall comply with laws. In the absence of
regulatory provisions regarding this, the employer shall decide establishing a
council or assign an affiliated unit to determine the list, requirements for
features, and technical requirements to meet professional requirements.
Article 146. Responsibility for implementation
1. Ministry of Finance
shall:
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b) Consolidate and manage database of bidders; quality of
goods used; list of bidders violating the law on bidding; untrustworthy
bidders, contractors having their contract terminated due to their faults,
contractors that are banned from participating in bidding activities and
other organizations, individuals who commit violations; list of successful
foreign bidders;
c) Issue bidding document forms for contractor
selection plan; guidelines on managing and using costs in contractor selection
on VNEPS;
d) Edit webforms on VNEPS to ensure compliance with the
online bidding process and increase competitiveness, fairness, transparency and
economic efficiency in bidding, ensuring effective state management of bidding.
2. The Ministry of Health
shall:
a) Provide guidance on contractor selection and measures to
implement Bidding Law No. 22/2023/QH15 (as amended and supplemented by Laws No.
57/2024/QH15, No. 90/2025/QH15) and this Decree within the scope of their
management;
b) Issue contractor selection documentation forms for
drugs;
c) Provide guidance on principles, criteria, and
consolidate needs to create a list of drugs for centralized procurement; time
limit for consolidating the list, for promulgating the list; expected time to
organize contractor selection, expected time to disclose information on
framework agreements and contracts in centralized procurement;
d) Research a guide grouping medical equipment according to
technical and quality standards.
3. Ministries shall issue
regulations, programs, and activities to promote labeling, develop and improve
procedures for energy labels; green lotus labels; eco-agriculture labels, green
agriculture, low-carbon agriculture; labels for construction materials, green
construction products, energy-saving construction materials to implement the
National Action Plan on Green Growth for the period 2021-2030 according to the
Prime Minister's Decision, as the basis for applying incentives in bidding as
stipulated in this Decree.
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5. Heads of central
agencies and Chairpersons of People’s Committees of provinces and
central-affiliated cities, within the scope of their functions and tasks, shall
assume responsibility for implementation of this Decree.
ON BEHALF OF THE GOVERNMENT
PP. PRIME
MINISTER
DEPUTY PRIME MINISTER
Tran Hong Ha