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THE GOVERNMENT
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THE SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No.
24/2024/ND-CP
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Hanoi,
February 27, 2024
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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 of June 19, 2015; Law on
amendments to the Law on Government Organization and the Law on Organization of
Local Governments dated November 22, 2019;
Pursuant to the Law on Bidding dated June 23, 2023;
At the request of the Minister of Planning and Investment;
The Government promulgates a Decree on elaboration of and
measures for implementation of the Bidding Law regarding contractor selection.
Chapter I
GENERAL
PROVISIONS
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1. This Decree elaborates certain articles of the Bidding
Law regarding contractor selection, including:
a) Clause 6, Article 6 on ensuring competitiveness in
bidding;
b) Clause 6, Article 10 on incentives in contractor
selection;
c) Clause 3, Article 15 on costs associated with contractor
selection;
d) Clause 4, Article 19 on capacity and experience of
members of expert teams and appraisal teams;
dd) Clause 2, Article 20 on other contractor selection
methods;
e) Clause 7, Article 23 on direct contracting;
g) Clause 4, Article 29 on contractor selection in special
cases;
h) Clause 4, Article 36 on the overall contractor selection
plan for the project;
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k) Clause 8, Article 43 on contractor selection procedures;
l) Clause 1 and Clause 5 of Article 50 on online contractor
selection;
m) Clause 7, Article 53 on centralized procurement;
n) Clause 3 and Clause 4, Article 55 on selection of
suppliers of drugs, chemicals, testing supplies, and medical equipment;
o) Clause 4, Article 67 on signing of contract with
successful bidder (contractor);
p) Clause 6, Article 70 on contract modification;
q) Clause 2, Article 84 on state management responsibilities
for bidding;
r) Clause 4, Article 86 on inspection and supervision of
bidding activities;
s) Clause 5, Article 87 on handling of violations;
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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) Authority to decide on procurement for procurement
estimates;
d) Disclose information in bidding activities;
dd) Bidder management.
3. The selection of contractors to provide public products
and services in the form of orders and
assignments shall comply with the Government's procurement regulations.
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” means 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. Ensuring competitiveness in bidding
1. A bidder for construction, goods procurement,
non-consulting service, or procurement and construction (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 of the contract
performance, appraisal; preparation, 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 or procuring entity, except for the cases
specified in Clauses 8 and 9 of this Article.
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 EOI (expression of interests) request or bidding documents; evaluation
of the EOI responses or bids; appraisal of the EOI result or contract selection
result; management of the project or contract; other consulting services
directly to the package;
b) The employer or procuring entity, except for the cases
specified in Clauses 8 and 9 of this Article;
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3. A bidder for Engineering-Procurement-Construction (EPC),
Engineering-Procurement (EP), Engineering-Construction (EC) package must be
legally and financially independent from the following parties:
a) The contractor that prepares, verifies FEED;
b) The contractor that prepares, verifies a feasibility
study report in case the FEED is not prepared;
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 or procuring entity, except for the cases
specified in Clauses 8 and 9 of this Article;
The design in EPC, EP, EC packages under construction
projects specified in this Clause can be either FEED or basic design; however,
if engineering design or a two-stage design process is mandated by construction
law, these packages cannot be formed.
4. A bidder for turnkey package must be legally and
financially independent from the following parties:
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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 prepares, appraises 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;
d) The employer or procuring entity, except for the cases
specified in Clauses 8 and 9 of this Article.
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;
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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.
For each item in points a, b, c, d, e, and g of this clause,
the bidder can only prepare, verify, or appraise.
6. The ratio of shares and capital contribution among
parties is determined at the bid submission deadline 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;
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8. Parent companies, subsidiary companies, associate
companies in an economic group or state-owned corporation can participate in
each other's packages, provided the products and services offered belong to the
core business lines of that economic group or state-owned corporation. Bidders must
still be legally independent and financially independent from the contractors
specified in Points a, b, c, Clause 1 and Clause 2, Article 6 of the Bidding
Law.
9. Public service providers and enterprises under the same
direct management and capital contribution agency are exempt from legal and
financial independence requirements between bidders and employer/procuring
entity when participating in each other's packages.
Article 4. 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.
2. If all bidders receive the same incentives or none
qualify, incentive calculations for comparison and ranking are not necessary.
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, and installation) 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 5. 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:
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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) offered for the
goods to the bidder’s evaluated
price;
c) For quality- and cost-based selection (QCBS), incentive
goods receive an incentive point added to their aggregate score based on the
following formula:
Incentive point= 7.5% 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 incentive good;
d) In cases under 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 qualify
for a 10% incentive coefficient instead of 7.5%.
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 will
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 (LCS), 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:
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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 under points a, b, and c of this clause, bidders
offering Vietnamese-origin goods with a domestic production cost ratio at least
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 12% incentive coefficient instead of 10%.
3. Innovative Vietnamese-origin products are entitled to the
following incentives:
a) For least-cost selection (LCS), non-incentive goods will
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
that bid price;
b) For evaluated price selection, non-incentive goods will
be adjusted for comparison and ranking by adding 15% 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 7.5% 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 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), innovative
Vietnamese-origin products 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;
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4. Innovative Vietnamese-origin products receive incentives
according to Clause 3 of this Article when they meet one of the following
conditions:
a) These products fall 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) These products are formed from
scientific and technological research results of science and technology
enterprises as per the law on science and technology enterprises;
c) These products are created based on the bidder’s patents,
layout-design of semiconductor integrated circuit, or plant varieties with
granted protection certificates within the past 5 years, or based on the
bidder’s computer programs with granted copyright registration certificates
within the past 5 year;
d) They are semiconductor chip products;
dd) These products win Ho Chi Minh awards, state awards for
science and technology as per the law on science and technology awards;
e) They are new products created from research and development
results at one of the facilities of the National Innovation Center;
g) They are new products created from the results of
scientific research and technology development as per 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 they are produced and
are eligible to place on the market.
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a) IT software
products:
Criteria for determining domestically-produced IT software
products eligible for incentives comply with the law on information technology,
regardless of the domestic production cost content requirement in Point b of
this clause;
b) For goods other than those specified in Point a of this
Clause:
Determining goods manufactured in Vietnam can apply the
following direct formula or indirect formula:
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;
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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 6, 7, 8, 9, 10 of this Decree.
Article 6. Incentives for international bidding
1. For consulting service packages:
a) For least-cost selection (LCS), non-incentive bidders
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;
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) For least-cost selection (LCS), non-incentive bidders
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;
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;
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3. For goods procurement packages, the application of
incentives for Vietnamese-origin goods shall comply with Article 5 of this
Decree.
4. Incentives for domestic innovation-driven
enteprises (IDEs) are implemented according to Article 8 of this
Decree.
5. Incentives for domestic bidders that produce
Vietnamese-origin goods are implemented according to Article 9 of this Decree.
6. Incentives for information technology services comply
with the law on information technology.
Article 7. Incentives for domestic bidding
1. For goods procurement packages, the application of incentives
for Vietnamese-origin goods shall comply with Article 5 of this Decree.
Packages with a fixed
budget under 500 million VND seeking bidders with at least 50% of their
workforce being disabled, war invalids, or ethnic minorities under valid
3-month contracts or longer at the bid submission deadline, can only be
authorized by the competent persons. If no bidders
or no qualified bidders participate in the authorized procurement, it will be
re-organized to allow participation from a wider pool of bidders.
2. For construction packages with a fixed budget of up to 5
billion VND, incentives for micro and small enterprises shall comply with Point
dd, Clause 2, Article 10 of the Bidding Law.
3. Incentives for domestic IDEs are
implemented according to Article 8 of this Decree.
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5. Incentives for information technology services comply
with the law on information technology.
Article 8. Incentives for domestic IDEs
1. Domestic IDEs are exempt from the revenue and same-industry
operational history requirements (within 6 years of qualifed
product launch) when offering their own innovative products for bidding
under Clause 4, Article 5 of this Decree.
2. When goods of domestic IDEs which qualify as innovative
products specified in Clause 4, Article 5 of this Decree participate in
bidding, they are entitled to incentives according to Clause 3, Article 5 of
the Decree.
3. When services of domestic IDEs which qualify as
innovative products specified in Clause 4, Article 5 of this Decree participate
in domestic or international bidding, they are entitled to incentives according
to Clauses 1 and 2, Article 6 of the Decree.
Article 9. Incentives for domestic bidders that produce
Vietnamese-origin goods
1. For domestic bidders who are 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 by a competent authority.
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2. For domestic bidders who 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
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 that produce
innovative products specified in Clause 4, Article 5 of this Decree are exempt
from the financial situation and same-industry operational history requirements
(within 6 years of qualified product launch) when offering their own innovative
products for bidding.
4. Domestic bidders can demonstrate their eligibility to
transfer technologies or encouraged technologies for production of
Vietnamese-origin goods using either a technology transfer registration
certificate or an encouraged technology transfer certificate, as defined by the
technology and investment laws.
Article 10. 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, considering the package nature and usage
needs, can prioritize products and services with ecology and energy labels (or
equivalent certifications) in RFPs and bidding documents. This aligns with
Point k, Clause 6, Article 16 and Clause 3, Article 44 of the Bidding Law, and
can be achieved by specifying technical requirements and a price evaluation
formula that favors such certifications.
Article 11. Sustainable bidding
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1. Specify technical requirements in bidding documents and
RFPs according to weighted scoring method or pass or fail method. Bidders
offering solutions, goods and services that meet sustainable bidding
requirements will be considered and evaluated further;
2. The formula for determining the evaluated price should
incorporate quantifiable sustainable bidding factors to compare and rank
bidders.
Article 12. Fees associated
with contractor selection
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;
b) In case the competent person assigns a subordinate agency
to prepare and evaluate the overall contractor selection plan, the cost incurred
in these tasks are included in the contractor selection cost estimate
under Clause 3 of this Article;
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;
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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 fixed budget, 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 fixed budget, 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 fixed
budget, 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 fixed budget, capped at a
minimum of 2,000,000 VND and a maximum of 60,000,000 VND.
5. Fees for evaluation of documentation:
a) The fee for evaluating an
EOI request or prequalification
application is 0.1% of the fixed budget, capped at a
minimum of 2,000,000 VND and a maximum of 30,000,000 VND;
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6. The fee for appraising the
contractor selection result, including cases where no bidder is
selected, is 0.1% of the fixed budget, 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
Advisory Council to resolve a petition
regarding selection results is calculated as a percentage of the bid price
of the petitioner (petitioning bidder), as follows:
a) For bid price under 50,000,000,000 VND, the rate is
0.03%, but not less than 5,000,000
VND;
b) For bid price from 50,000,000,000 VND
to under 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 under
200,000,000,000 VND, the rate is 0.02%, but not less than
25,000,000 VND;
d) For bid price at least 200,000,000,000 VND, the rate is
0.015%, but not less than 40,000,000 VND
and no greater than 60,000,000 VND.
For packages applying the single-stage and two-envelope
method, two-stage and two-envelope method, in case the bidder requests not to
open the financial proposal, the petition fee for the Advisory
Council is determined based on bid price.
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a) If the bidder's petition is successful, the relevant
organizations or individuals will reimburse the petitioner the
petition fee that they have paid;
b) If the bidder's petition is unsuccessful, the petitioner
will not be reimbursed their paid petition fee.
10. The Advisory Council has financial autonomy to cover
expenses related to resolving bidder petitions, including payments to its
members, standing support team, and other operational costs.
During the petition process, if the bidder withdraws the
petition, they will only be reimbursed 50% of the
paid petition fee in case the Advisory Council has not been established or the
Advisory Council has been established but a council meeting has not yet been
held. In case the Advisory Council has held a council meeting, the bidder will
not be reimbursed their paid petition fee. For the
remaining petition fee after reimbursement and spending according to Article 13
of this Decree, the standing support team of the Advisory Council shall
transfer it to the state budget within 10 working days from the date on which
the bidder withdraws the petition.
11. 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).
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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.
Article 13. Detailed expenditures paid to the Advisory
Council to resolve bidders' petitions on contractor selection results
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; expenditure amounts
comply with regulations for regulatory agencies; receipt and expenditure
documents are made according to regulations.
The total amount of expenditures must not exceed the fee
that the petitioner has paid as prescribed in Clause 8, Article 12 of this
Decree.
2. After resolving the petition, the President of the
Advisory Council is responsible for confirming the amount of actual
expenditures. The difference between the fee and expenditures (if
any) will be reimbursed to the petitioner.
3. If the bidder's petition is upheld, the resolution plan
must clearly outline any necessary corrective actions, timelines to address the
consequences (if any), and the standing support team will request the competent
person to request relevant organizations and individuals to jointly reimburse
the bidder the actual fee paid to the Advisory Council.
4. Payment of remuneration to members of the Advisory
Council who are officials and public employees shall comply with the relevant
laws.
Article 14. Preparation, submission, appraisal of, and
approval for the overall contractor selection plan for the project
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2. If the competent person approves the development of an overall
contractor selection plan, the employer (or the agency assigned to prepare the
project if the employer is not yet determined) (hereinafter
referred to as employer) will use the following documents to
create the plan:
a) Decision on investment policy for programs and projects;
b) Project approval (if any);
c) International treaties and loan agreements for ODA-funded
projects or 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 15 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. Agencies, organizations, and units specified in Article
126 of this Decree shall appraise the overall contractor selection plan.
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6. The employer is responsible for posting the overall contractor
selection plan on VNEPS no later than 5 working days from the date the document
is issued.
Article 15. Contents of the overall contractor selection
plan for the project
1. Analysis of
the project execution context:
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 method, online quotation under normal
procedures, the percentage of packages with only one participating
bidder under competitive bidding, limited bidding, shopping methods, 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,
did not respond to 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;
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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;
b) Market consultation is carried out in one or more of the
following ways: refer to the most recent market consultation results
for similar goods and services; post market consultation questions on
appropriate media; research catalogs and brochures of manufacturers, suppliers,
distributors, and agents; refer to the experience of other employers who have
conducted market consultations and consult on the results of contractor
selection for similar goods and service procurement packages; organize market
consultation conferences with potential bidders on an open and transparent
basis; organize information surveys from production and business units; consult
with experts in relevant fields, print newspapers, magazines, specialized
market analysis publications, information on the Internet and other appropriate
forms;
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.
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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:
Develop an overall schedule to carry out main tasks and the
package in accordance with the project execution schedule.
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 16. Fixed budget and contractor
selection duration
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2. Grounds for determining fixed budget:
The fixed budget is established based on one of the
following information:
a) Approved package estimate (if any) in case the law has
regulations on making estimates or has instructions on norms and unit prices. If conditions
for an estimate are unmet, the fixed budget will be determined
based on the following: average prices
of projects and packages completed within a specified timeframe; total
investment or estimated total investment according to the investment cost per
unit, estimated procurement value; expert salaries and number of working days;
other related information;
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;
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. This data can be adjusted to reflect changes in procurement
volume or market prices for the goods or services needed so as to determine the
fixed budget. The market price at procurement time can be
determined through market consultation specified in Point b, Clause 3, Article
15 of this Decree. If no similar goods or services were
procured within the past 12 months, the fixed budget can 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
will publish a request for quotations on one of the following platforms within
at least 10 days of successful information posting: VNEPS, the employer's
portal or website, Ministry of Health’s portal, online public service portal on
medical device management. If there are
two or more quotations, the employer may choose the highest quotation that
aligns with their budget and professional requirements. 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 the price appraisal council or of an organization with the
function of providing price appraisal services for assets, goods, or services
that must be appraised as per the law on prices. For types of
assets, goods, and services that must be appraised according to the law on
prices, the appraisal results are a mandatory basis for determining the fixed
budget;
e) List prices of manufacturers, importers, agents,
distributors, suppliers, businesses;
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3. The employer can consider sustainable bidding factors as
prescribed in Article 11 of this Decree and environmentally friendly products
and services when determining the fixed budget. In this case,
the fixed budget includes the costs necessary to meet sustainable bidding
requirements.
4. 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 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. Competent
persons and 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.
5. To ensure an uninterrupted supply of goods, services, and
construction, employers can pre-select bidders for next year's procurement
during this year's procurement estimate process. The specific contractor
selection plan must include procurement estimates for the following years to
set the fixed budget.
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Article 17. 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 18 of this Decree;
dd) Information about the bidder's contract performance results,
including information specified in Clause 3, Article 18 of this Decree and
information about the contract performance process;
e) Other information about bidders.
2. National database on quality of goods used includes the
following information:
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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 18 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 Planning and Investment regulates this
Article in detail.
Article 18. Information on the bidder's contract performance
results and the quality of the goods used
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:
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b) The bidder has participated in document verification and
contract negotiation (if any) but refuses or does not sign the contract
negotiation record, except for the case specified in Clause 8, Article 43 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;
d) The bidder has signed the framework agreement but does
not proceed or refuses to finalize the contract or fails to sign the contract.
2. Within 7 working days from the dates on which bidders commit
any acts specified in Clause 1 of this Article, the employer posts the list of
violating bidders and related documents on VNEPS, specifically stating the
dates on which the acts were committed. Bidders whose
names are on this list, when participating in bidding, must furnish a bid
security with a value 3 times greater than the value required for other bidders
within 2 years from the last time committing the violating acts specified in
Clause 1 of this Article. For consulting
service packages, information about reputation in bidding participation is used
for technical evaluation (if any).
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).
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Within 20 days from the date 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:
a) Actual quality of goods compared to provisions in the
contract;
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 repairing
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).
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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 of this Article 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 setting of technical evaluation criteria must not
violate the provisions of Point k, Clause 6, Article 16 and Clause 3, Article
44 of the Bidding Law.
Article 19. Capacity and experience requirements for expert
teams and appraisal teams
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 and 3 of this Article;
b) Obtain at least a bachelor’s degree;
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. Individuals who evaluate the overall contractor selection
plan and specific contractor selection plan according to assigned tasks (not
including bidding consultants) are not required to have a professional
certificate in bidding.
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4. For the medical field, in case the employer does not have
personnel who meet the requirements specified in Clause 1 of this Article, then
select a consulting bidder to act as an expert team or appraisal team. In case a
consulting bidder cannot be selected, the employer has the right to mobilize
and assign personnel such as doctors, pharmacists, managers or invite officials
from the Department of Health and the Ministry of Health, and experts in the
medical field to participate in the expert team or appraisal team, regardless
of the qualifications in Points a and b, Clause 1 of this Article. The
organization of contractor selection must meet the objectives of bidding which
are competition, fairness, transparency, economic efficiency, and accountability.
Article 20. Publicizing information on contractor selection
1. Information about contractor selection is publicly posted
on VNEPS.
2. The Ministry of Planning and Investment provides detailed
regulations on posting, management, and use of information as prescribed in
Clause 1 of this Article.
Article 21. 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;
b) The organization submits a registration
application on VNEPS, including the following documents: the registration
form specified in Point a of this Clause, which is signed and stamped (if any)
by the organization's legal representative; 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;
c) The individual submits a registration
application on VNEPS, including the following documents: the registration
form specified in Point a of this Clause, which is signed by the registrant;
copy of passport or equivalent document for the individual with foreign
nationality.
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a) Updated information includes: additions and
modifications to registered information; supplementing and modifying roles in
bidding activities; terminate, suspend, restore participation status;
b) The request to update information sent
on VNEPS must be signed and stamped (if any) by the legal representative of the
organization or individual.
3. The documentation specified in
Clauses 1 and 2 of this Article will be processed within 2 working days from
receipt of the request on VNEPS. The results of processing documentation are
announced on VNEPS and e-mails.
4. Organizations and individuals who knowingly
post false information under Articles 7 and 8 of the Bidding Law will have
their accounts locked for 12 months upon discovery.
5. In case of hiring a bidding
consultant to be the procuring entity, the employer is still responsible for
posting the specific contractor selection plan and contractor selection results
on VNEPS according to Article 7 and Article 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 discovery.
Chapter II
COMPETITIVE
BIDDING, OFFLINE LIMITED BIDDING FOR NON-CONSULTING, GOODS PROCUREMENT,
CONSTRUCTION, MIXED PACKAGES UNDER SINGLE-STAGE METHOD
Section 1. SINGLE-STAGE AND ONE-ENVELOPE
METHOD
Article 22. Detailed procedures
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a) Draw up a shortlist (if
necessary);
b) Prepare bidding documents;
c) Appraise and approve bidding documents.
2. Contractor selection organization,
including:
a) Invitation to bid:
b) Issue, modify and clarify bidding
documents;
c) Prepare, submit, receive, manage,
modify, withdraw bids;
d) Open bids.
3. Evaluation of bids, including:
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c) Evaluate bids in details;
c) Rank bidders (if there is more than 1
bidder).
4. Submit, appraise, approve, and
publicize the contractor selection result and explain reasons for unsuccessful
bidders upon their requests (if any).
5. Finalize, sign, and manage contract
performance.
In addition to organizations, individuals
and groups can bid on goods procurement packages with innovative products that
meet the criteria of Clause 4, Article 5 of this Decree.
Article 23. Shortlisting
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.
1. For competitive bidding:
a) Prepare prequalification documents:
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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) Prequalification documents are evaluated
according to Article 129 of this Decree before approval. Approval for the
prequalification documents is done in writing based on the approval report and
appraisal report 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;
dd) Receive and manage prequalification
applications:
The procuring entity confidentially
receives and manages 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.
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g) Submit, appraise, and approve
prequalification results:
The procuring entity submits the
prequalification results for approval, including their opinions on of the expert
team's evaluation findings. The prequalification results are appraised against Clauses 1
and 2 of Article 130 of this Decree. Following this appraisal, a written
approval is granted based on the prequalification approval proposal and
appraisal report. If a shortlist is created, the prequalification approval will
identify the successful bidders and include any relevant notes. If a shortlist is
not created, the prequalification approval must clearly state the reason a
shortlist was not created.
h) Publicly announce the shortlist: the shortlist will
be posted as required in Point b, Clause 1 and Clause 4, Article 8 of the
Bidding Law 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 131 of this Decree;
b) After approval, the shortlist is posted
according to Point b, Clause 1 and Clause 4, Article 8 of the Bidding Law.
3. Shortlisted bidders cannot form a
joint venture for this bidding process. However, they may participate as a
joint venture with a non-shortlisted bidder, but only with the employer's
approval before the bid deadline.
Article 24. Preparation of bidding
documents
1. Grounds for preparing bidding
documents:
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b) Approved specific contractor selection
plan;
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;
e) Legal regulations on taxes, fees,
incentives in contractor selection;
g) Other related grounds.
2. Bidding documents must provide all
necessary information for bidders to prepare competitive bids. They cannot
contain any restrictions that limit bidder participation or give any bidder an
unfair advantage, which may cause unfair competition as prescribed in Point k,
Clause 6, Article 16 and Clause 3, Article 44 of the Bidding Law. The Ministry of
Planning and Investment clarifies that violations of Clause 3, Article 44 of
the Bidding Law can invalidate bidding documents. This means such documents
cannot be used to evaluate bids.
3. The bidding documents must specify
the criteria for evaluating the validity of bids, including:
a) There is the original bid;
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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 or procuring entity. 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;
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.
g) The bidder must meet the eligibility
requirements in accordance with Article 5 of the Law on Bidding;
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.
4. Criteria for evaluating bids for
goods procurement packages include:
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, production capacity, 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).
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For goods procurement packages, bidders who
are individuals or groups offering innovative products that meet the
requirements in Clause 4, Article 5 of this Decree may be exempt from certain
criteria outlined in Clause 3, Article 9.
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 built 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 17 and 18 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: 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 17 and 18 of
this Decree; the quality of similar goods published according to Article 18 of
this Decree (if any); other necessary factors.
c) Determine the lowest price (in case the
least-cost selection is applied): determine the bid price; correct errors and
adjust deviations; deduct discounts (if any); convert the bid price to a common
currency (if any); determine incentive value (if any); compare bids to
determine the lowest price;
d) Criteria for determining evaluated price
(in case of applying the evaluated price selection):
Formula for determining evaluated price:
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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 17 and 18 of this
Decree; the quality of goods used published according to Article 18 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 5 of this Decree.
5. Criteria for evaluating bids for
construction packages include:
a) Evaluation criteria for capacity and
experience:
Bids are evaluated using pass/fail criteria
for capacity and experience, which define the minimum acceptable level for each
element of the bidder's capacity and experience, including: experience in
performing similar packages; technical capacity: quantity and professional qualifications of
key staff, quantity of main construction equipment that can be mobilized to
carry out the package (if required); financial capacity: net asset value,
revenue; fulfillment of tax declaration and payment obligations and other
necessary indicators to evaluate the financial capacity of the bidder.
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:
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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 17 and
18 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
(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
17 and 18 of this Decree; other necessary factors.
The bidding documents must allow bidders to
propose alternative construction methods, except in special cases where a
specific method is required due to the package's nature. This will be clearly
stated in the bidding documents;
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;
d) Criteria for determining evaluated price
(in case of applying the evaluated price selection):
Formula for determining evaluated price:
GĐG = G
± ∆G + ∆ƯĐ
Where:
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∆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 17 and 18
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 6 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.
8. For a divided package, the bidding
documents must clearly state the bidding conditions, the bid security measures
and values for each part or multiple parts, and the evaluation method for each
part or multiple parts so that the Bidders calculate bidding options according
to their abilities.
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 and Clause 1, Article 56 of the
Bidding Law, 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 (as allowed under Clause 2, Article 44 of the Bidding Law),
Vietnamese goods can still be evaluated.
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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. However, such a request must be pre-approved by the relevant
authority.
If the manufacturer, its representative
office, or agent commits one or more of the following acts without a legitimate
reason: fails to provide a sales permit; revokes a previously provided sales
permit; limits competition by issuing sales permits to only a few bidders;
engages in other anti-competitive practices, the bidders or procuring entity
will report these actions by: posting information on VNEPS and sending
information to the Ministry of Planning and Investment and the Ministry of
Industry and Trade. The document must specifically state the actions taken by the
manufacturer, representative office, or agent along with supporting documents. The manufacturer,
representative office, or agent facing a complaint from a bidder or procuring
entity must respond via VNEPS. Additionally, they should submit a copy of their
response to the Ministry of Planning and Investment for their records.
Article 25. Appraisal of and approval for
bidding documents
1. Bidding documents must be appraised
according to Article 129 of this Decree before approval.
2. Approval for bidding documents must
be based on the approval report and appraisal report of bidding documents.
Article 26. Organization of contractor
selection
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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;
b) In case of modifications of the bidding
documents after issuance, the procuring entity must post on the VNEPS the
modification decision enclosed with the detailed modifications of the bidding
documents and the modified bidding documents. Modifications of bidding documents must be
made at least certain days before the bid submission deadline as prescribed in
Point dd, Clause 1, Article 45 of the Bidding Law. In case there is
not enough time, the bid submission deadline must be extended;
c) In case the bidding documents need to be
clarified, the organization or individual shall send a written request for
clarification to the procuring entity on VNEPS within at least 3 working days
(for domestic bidding), 5 days (for international bidding) before the bid submission
deadline. The procuring
entity 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 procuring entity. The procuring
entity 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:
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The procuring entity 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 procuring entity, or
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
procuring entity. The procuring entity only accepts the modifications or
withdrawal of the bid when receiving a written request before the bid
submission deadline.
4. Bid opening:
a) The bid opening must be conducted
publicly and begin within 2 hours from the bid submission deadline. The procuring
entity only opens bids 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. Bids 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; identify if the bid is submitted independently or as a joint
venture; check the number of originals and copies of all documents; review the
bid price stated in the letter of bid and any offered discount; check validity
period of the bid; verify proposed performance duration; check value and
validity of bid security and other related information;
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 procuring
entity 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 procuring
entity 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 27. 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 24 of this Decree, will be
disregarded during bid evaluation.
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3. If the proposed similar contract in
the bid does not meet requirements, the procuring entity 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 fixed budget, 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.
5. 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 125
of this Decree.
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 procuring entity
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 procuring entity
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 case the bidder does not meet one
of the evaluation criteria of eligibility, capacity, experience, technique,
finance or the bid has any deviations, reservations, or omissions which
disqualifies the bid, other criteria will not be further evaluated.
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Article 28. 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 procuring entity shall request clarification and additional
documents to demonstrate the bidder's qualifications and experience.
2. After bid submission deadline, if a
bidder finds that their bid lacks required documents on eligibility, similar
contracts, production capacity, financial statements, tax declaration and
payment obligations, personnel, and equipment, they will send clarification and
additional documents to the procuring entity to demonstrate their
qualifications and experience. The procuring entity shall receive the bidder's
clarifications for review and evaluation; additional and clarifying documents
are an
integral
part of the bid.
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 procuring entity and the bidder whose bid needs to be clarified. The clarifications to bid must be made
in writing and kept by the procuring entity as an integral part of the bid.
5. The procuring entity may verify the
authenticity of any doubtful documents of the bidder with relevant
organizations or individuals.
Article 29. 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;
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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;
dd) Calculation unit errors: correct it to meet
the requirements of the bidding documents.
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:
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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.
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 corrected according to
Point c of this Clause;
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 fixed budget 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 fixed budget (if package estimate is unavailable).
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Article 30. Checking and evaluation of bids
1. Check the validity of the bid,
including:
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 24 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;
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For goods procurement packages, bidders who
are individuals or groups offering innovative products that meet the
requirements in Clause 4, Article 5 of this Decree may be exempt from certain
criteria outlined in Clause 3, Article 9.
4. Technical and financial evaluation:
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. e expert team prepares a report on
the bid evaluation result and sends it to the procuring entity for review and
submission to the employer for approval according to Article 31 of this Decree. 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;
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dd) Comments on competitiveness, fairness,
transparency and economic efficiency in the contractor selection process. If competitiveness,
fairness, transparency, or economic efficiency cannot be assured, the
procurement entity must clearly document the reasons and propose solutions;
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;
g) Key considerations (if any).
6. Based on the report on the bid evaluation
result, the procuring entity shall send a request to the employer
for approval according to Article 31 of this Decree. The request for
approval for contractor selection result includes the contents specified in
Clause 5 of this Article.
Article 31. Submission,
appraisal of, approval for, and publication of contractor selection results
1. The procuring entity will submit the
contractor selection result based on the bid evaluation report. This result, as
specified in Clause 5, Article 30 of this Decree, will clearly outline the
procuring entity's opinions on the expert team's evaluation findings.
2. The contractor selection result is
evaluated according to Clauses 1 and 4, Article 130 of this Decree before
approval.
3. The contractor selection result is
approved in writing based on the approval request and appraisal report of the contractor
selection result.
4. In case the successful bidder is
selected, the approval for contractor selection result includes
the following:
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b) Successful bid;
c) Contract type;
d) Package performance duration as
prescribed in Clause 7, Article 39 of the Bidding Law and contract performance
duration according to civil law regulations;
dd) Key considerations (if any).
5. 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 decision on bid
cancellation must be posted on VNEPS within 5 working days from signing date.
6. After the 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; 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 Points a, b, c and
d, Clause 4 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:
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If a bidder files a petition to the
employer or competent person about issues before the announcement of the contractor
selection result or about the contractor selection result, the employer is
responsible for posting the petition resolution from employer and competent
persons on VNEPS within 5 working days from the date of issuance of the
petition resolution.
Article 32. Finalization and signing of
contracts
1. The employer or procuring entity
invites the successful bidder to finalize the contract. During the process
of finalizing the contract, the parties complete the draft contract; specific
conditions of the contract, contract appendices (any detailed list of scope of
work, price schedule, performance schedule). Contract finalization is carried out on
the basis of:
a) The contract form filled out with
specific information of the package;
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.
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Article 33. 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.
2. The employer must update the actual
progress of contract performance when completing the milestones specified in
the contract on VNEPS.
3. The employer is responsible for
publicizing the bidder's contract performance result on VNEPS according to
Clauses 3 and 4, Article 18 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 18. of this Decree.
Section 2. SINGLE-STAGE AND TWO-ENVELOPE
METHOD
Article 34. Detailed procedures
1. Contractor selection preparation,
including:
a) Shortlisting (if necessary);
b) Prepare bidding documents;
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2. Contractor selection organization,
including:
a) Invitation to bid:
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.
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a) Open financial proposals of
technically-responsive bidders;
b) Check and evaluate validity of financial
proposals;
c) Evaluate financial proposals in details
and rank bidders (if there is more than 1 bidder).
5. Negotiate contracts (if any).
6. Submit, appraise, approve, and
publicize the contractor selection result and explain for unsuccessful bidders’
disqualification upon their requests (if any).
7. Finalize, sign, and manage contract
performance.
In addition to organizations, individuals
and groups can bid on goods procurement packages with innovative products that
meet the criteria of Clause 4, Article 5 of this Decree.
Article 35. Preparation of bidding
documents
1. If the package applies shortlisting
procedure, it shall comply with Article 23 of this Decree.
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3. Bidding documents must provide all
necessary information for bidders to prepare competitive bids. They cannot
contain any restrictions that limit bidder participation or give any bidder an
unfair advantage, which may cause unfair competition as prescribed in Point k,
Clause 6, Article 16 and Clause 3, Article 44 of the Bidding Law. The Ministry of
Planning and Investment clarifies that violations of Clause 3, Article 44 of
the Bidding Law can invalidate bidding documents. This means such documents
cannot be used to evaluate bids.
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
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 or
procuring entity. 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;
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 the validity of a financial
proposal:
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 24 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 24 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 24 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 36 of this Decree.
10. Regulations on stating the trademark
and origin of goods are specified in Clause 9, Article 24 of this Decree.
11. Regulations on labor use are
specified in Clause 10, Article 24 of this Decree.
12. Regulations on additional purchase
options are specified in Clause 11, Article 24 of this Decree.
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14. Regulations on sales permits are
specified in Clause 12, Article 24 of this Decree.
Article 36. 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;
Lowest G: is the bid price (after error correction,
deviation adjustment, and any discounts) of technically-responsive bids;
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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 is from 10% to 30%
and financial score weight is from 70% to 90%;
b) For drug procurement packages: Technical score
weight is from 30% to 40% and financial score weight is from 60% to 70%.
3. If technical aspects need to be
prioritized over financial aspects, the employer submits to the competent
person to consider specific technical score weight and financial score weight
accordingly, provided that the technical score weight does not exceed 50%.
Article 37. Appraisal of and approval for
bidding documents
1. Bidding documents must be appraised
according to Article 129 of this Decree before approval.
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Article 38. Organization of contractor
selection
1. Invitation for bids:
a) Invitation to bid is 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
clarifications to bidding documents shall comply with Clause 2, Article 26 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 26 of this Decree.
4. Open technical proposals:
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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; check validity period of the technical proposal; verify
proposed performance duration; check 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 an sent to participating bidders and
posted on VNEPS within 24 hours upon bid opening;
d) The representative of the procuring
entity 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 procuring entity and must be
signed and sealed by representatives of the procuring entity and bidders
attending the technical proposal opening ceremony.
Article 39. 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 27 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 fixed budget,
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.
2. The bid clarification shall comply
with Article 28 of this Decree.
3. Error correction and deviation
adjustment are carried out in accordance with Article 29 of this Decree.
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1. Evaluate criteria for the validity
of a technical proposal:
a) Check the 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) Cross-check the original bid with its
photocopies to ensure consistency before conducting 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 35 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. Evaluation of capacity and
experience:
a) The evaluation of capacity and
experience is carried out according to the evaluation criteria specified in the
bidding documents;
b) Bidders with qualified capacity and
experience may undergo technical evaluation;
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For goods procurement packages, bidders who
are individuals or groups offering innovative products that meet the
requirements in Clause 4, Article 5 of this Decree may be exempt from certain
criteria outlined in Clause 3, Article 9.
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.
5. he list of technically-responsive
bidders must be approved in writing by the employer based on the approval
report and appraisal report of technical evaluation result. The procuring
entity announces the list of technically-responsive bidders and
technically-nonresponsive bidders, states the reasons for technically-nonresponsive
bidders, and invites all participating bidders to open their financial
proposals.
The
procuring entity must post a list of technically-responsive bidders on VNEPS
within 5 working days from the date of approval for this list.
Article 41. Opening of financial proposals
1. The procuring entity checks the seal
of the envelope containing the financial proposals.
2. The opening of financial proposals
is carried out as follows:
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;
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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
procuring entity 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 42. Checking and evaluation of
financial proposals
1. Check the validity of the financial
proposal, including:
a) Check the number of originals and
photocopies of the financial proposal;
b) Check the required documents in the
financial proposal, including: the letter of bid in the financial proposal; bid price
schedule; other documents in the financial proposal;
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:
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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) After forming the bidder ranking list,
the expert team prepares a report and sends it to the procuring entity for
consideration. The report includes the following contents: list of responsive
bidders and their ranks; list of nonresponsive and disqualified bidders, with
explanations for disqualification; comments on competitiveness, fairness,
transparency and economic efficiency in the contractor selection process. If competitiveness, fairness,
transparency and economic efficiency are not guaranteed, the reasons must be
clearly stated and solutions proposed; the contents of the bidding documents
are not in accordance with the law on bidding or the contents may lead to
unclear or different interpretations during implementation or may distort the contractor
selection result (if any); propose remedial measures.
The employer does not have to approve the
bidder ranking list.
Article 43. Contract negotiation
1. If the package applies contract
negotiation, the first-ranked bidder is invited by the procuring entity to
negotiate the contract.
2. Bases for contract negotiation:
a) Bid evaluation report;
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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.
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;
c) Key
personnel:
Bidders
cannot replace key personnel who have been
proposed or have been replaced once according to Clause 2, Article 27 of this
Decree. Exceptions are allowed only in two situations: 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;
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dd)
Other necessary contents.
5. During
the contract negotiation process, the parties complete the draft contract;
specific conditions of the contract, contract appendices (any detailed list of
scope of work, price schedule, performance schedule).
6. Following
the contract negotiation completion, the procuring entity shall send a request
for approval for contractor selection result the employer according to Article
31 of this Decree. The request for approval for contractor selection result
includes the following contents:
a)
Evaluation result for each bid;
b) List
of considered and ranked bidders and order of ranking of bidders;
c)
Contract negotiation result;
d) List
of non-responsive and disqualified bidders; reasons for bidder
disqualification;
dd)
Name of the bidder proposed to win the bid, proposed winning price, type of
contract, package performance duration and contract performance duration;
e)
Comments on competitiveness, fairness, transparency and economic efficiency in
the contractor selection process. If competitiveness, fairness, transparency,
or economic efficiency cannot be assured, the procurement entity must clearly
document the reasons and propose solutions;
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h) Key
considerations (if any).
7. . 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.
8. The
bidder has the right to refuse to negotiate and has the bid security refunded
if the procuring entity or employer fails to conduct negotiations according to
the principles and contents specified in Clauses 3 and 4 of this Article.
9. If
the negotiation is not successful, the procuring entity will report to the
employer for consideration and decide whether to invite the next ranked bidder
to negotiate.
Article
44. Submission, appraisal of, approval for, and publication of contractor
selection result, finalization, signing, and management of contract
1. The
submission, appraisal of, approval for, and publicization of contractor
selection result shall comply with Article 31 of this Decree.
2. The
finalization, signing, and management of contracts shall comply with Article 32
and Article 33 of this Decree.
Chapter III
COMPETITIVE BIDDING, OFFLINE
LIMITED BIDDING FOR GOODS PROCUREMENT, CONSTRUCTION, MIXED PACKAGES UNDER
TWO-STAGE METHOD
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Article
45. Preparation for bidding in first stage
1. Shortlisting
procedure for competitive bidding and limited bidding shall comply with Article
23 of this Decree.
2. Prepare bidding documents in first stage:
a) The
bidding documents are prepared in accordance with Clauses 1 and 2, Article 24
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.
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 129 of this Decree
before approval;
b) Approval for bidding documents
must be based on the approval report and appraisal report of bidding documents.
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1. The
invitation to bid in first stage shall comply with Clause 1, Article 26 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 26 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 26 of this Decree.
4. Bid
opening:
The bid
opening shall comply with Clause 4 Article 26 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
47. 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
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2. The
bid clarification shall comply with Article 28 of this Decree.
3. The
submission of, approval for and publicization of the list of bidders that meet
the requirements of bidding documents in first stage shall comply with Article
31 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
48. Preparation for and organization of bidding in second stage
1. Discussion
about the bids in first stage:
The
procuring entity 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 procuring entity and each bidder in writing. The procuring
entity must ensure that bids’ information in the first stage is not disclosed.
Based
on the clarifications to technical proposals for each bidder, the procuring
entity 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
procuring entity.
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 24 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.
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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 129 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.
The
clarifications to the bidding documents shall comply with Clause 2, Article 26
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 26 of this Decree.
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The bid
opening shall comply with Clause 4 Article 26 of this Decree.
Article
49. Evaluation of bids in second stage
1. The
bid evaluation principles shall comply with Article 27 of this Decree.
2. The
bid clarification shall comply with Article 28 of this Decree.
3. Error
correction and deviation adjustment are carried out in accordance with Article
29 of this Decree.
4. The
bid evaluation shall comply with Article 30 of this Decree.
Article
50. Negotiation, submission, appraisal of, approval for, and publication of contractor
selection result, finalization, signing, and management of contract
1. The
first-ranked bidder is invited by the procuring entity to negotiate the
contract.
2. The
contract negotiation shall comply with Article 43 of this Decree.
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4. The
finalization, signing, and management of contracts shall comply with Article 32
and Article 33 of this Decree.
Section
2. TWO-STAGE AND TWO-ENVELOPE METHOD
Article
51. Preparation for bidding in first stage
1. Shortlisting
procedure for competitive bidding and limited bidding shall comply with Article
23 of this Decree.
2. Prepare
bidding documents in first stage:
a) The
bidding documents are prepared in accordance with Clauses 1 and 2, Article 24
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. 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 129 of this Decree
before approval;
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Article
52. Organization of bidding in first stage
1. The
invitation to bid in first stage shall comply with Clause 1, Article 26 of this
Decree.
2. The
issuance, modification, and clarification of the bidding documents shall comply
with Clause 2, Article 26 of this Decree.
3. Preparation,
submission, receipt, management, modification, and withdrawal of bids shall
comply with Clause 3, Article 26 of this Decree.
4. Bid
opening:
a) The
bid opening shall comply with Clause 4 Article 26 of this Decree;
b) The
bid opening minutes in first stage do not include information about bid
security, bid prices and discounts (if any) of bidders.
Article
53. 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 27 of this Decree.
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3. The
submission, 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 31 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
54. Preparation for and organization of bidding in second stage
1. Discussion
about the bids in first stage:
The
procuring entity 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 procuring entity and each bidder in
writing. The procuring entity must ensure that bids’ information in the first
stage is not disclosed.
Based
on the clarifications to technical proposals for each bidder, the procuring
entity 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
procuring entity.
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 24 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:
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3. Appraise
and approve bidding documents:
a)
Bidding documents must be appraised according to Article 129 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.
The
clarifications to the bidding documents shall comply with Clause 2, Article 26
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 26 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 38 of this
Decree.
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1. The
bid evaluation principles shall comply with Article 27 of this Decree.
2. The
bid clarification shall comply with Article 28 of this Decree.
Article
56. Submission, appraisal of, and approval for the list of
technically-responsive bidders in second stage
1. The
submission, appraisal of, approval for and publicization of the list of
technically-responsive bidders in first stage shall comply with Clause 1 and
Clause 3 Article 130 of this Decree.
2. The
procuring entity shall notify and post a list of technically-responsive bidders
on VNEPS no later than 5 working days from the date this list is approved and
open financial proposals of these technically-responsive bidders.
Article
57. Evaluation of financial proposals in second stage
1. The
bid evaluation principles shall comply with Article 27 of this Decree.
2. The
bid clarification shall comply with Article 28 of this Decree.
3. Error
correction and deviation adjustment are carried out in accordance with Article
29 of this Decree.
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Article
58. Submission, appraisal of, approval for, and publication of contractor
selection result, finalization, signing, and management of contract
1. The
first-ranked bidder is invited by the procuring entity to negotiate the
contract.
2. The
contract negotiation shall comply with Article 43 of this Decree.
3. The
submission, appraisal of, approval for, and publicization of contractor
selection result shall comply with Article 31 of this Decree.
4. The
finalization, signing, and management of contracts shall comply with Article 32
and Article 33 of this Decree.
Chapter
IV
COMPETITIVE
BIDDING, OFFLINE LIMITED BIDDING FOR CONSULTING PACKAGES
Section
1. CORPORATE BIDDERS
Article
59. Detailed procedures
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a)
Shortlisting (if necessary);
b)
Prepare bidding documents;
c)
Appraise and approve bidding documents.
2. Contractor
selection organization, including:
a)
Invitation to bid:
b)
Issue, modify and clarify bidding documents;
c) Prepare,
submit, receive, manage, modify, withdraw bids;
d) Open
technical proposals.
3. Evaluate
the technical proposal, including:
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b)
Evaluate the technical proposal in details;
c)
Submit, appraise, and approve the list of technically-responsive bidders.
4. Open
and evaluate financial proposals, including:
a) Open
financial proposals of technically-responsive bidders;
b)
Check and evaluate validity of financial proposals;
c)
Evaluate financial proposals in details;
d) Rank
bidders (if there is more than 1 bidder).
5. Negotiate
contract.
6. Submit,
appraise, approve, and publicize the contractor selection result and explain
for unsuccessful bidders’ disqualification upon their requests (if any).
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Article
60. Shortlisting
1. Based
on the scale and nature of the package, the competent person decides to apply
the shortlist selection procedure. The
application of shortlisting procedure must be recorded in the specific contractor
selection plan.
2. For
competitive bidding:
a)
Prepare EOI request:
The EOI
request includes 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 must be appraised according to Article 129 of this Decree before
approval;
c)
Approval for EOI request must be based on the approval report and appraisal
report of EOI request;
d)
Invitation for EOI responses shall comply with Point b, Clause 1, Article 8 of
the Bidding Law;
dd) The
EOI request is published on VNEPS free of charge;
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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 opening will be 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.
The
evaluation of EOI responses is carried out according to the evaluation criteria
specified in the EOI request. Bidders' EOI responses with a score not lower
than the minimum required score will be included in the shortlist; the bidder's
EOI response with the highest score is ranked first; if there are more than 6
qualified bidders, 6 highest-ranked bidders will be selected for the shortlist;
h)
Submit, appraise, and approve the EOI result:
The
procuring entity submits the EOI evaluation result for approval, including
their opinions on of the expert team's evaluation findings.
The EOI
result is appraised against Clauses 1 and 2 of Article 130 of this Decree.
Following this appraisal, a written approval is granted based on the EOI
approval proposal and appraisal report. If a shortlist is created, the EOI result approval will identify the
successful bidders and include any relevant notes. If a shortlist is not
created, the EOI result approval must clearly state the reason a shortlist was
not created;
i) The
shortlist will be posted as required in Point b, Clause 1, Article 8 of the
Bidding Law and shared with bidders who submitted EOI responses.
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 131 of this Decree;
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4. Shortlisted
bidders cannot form a joint venture for this bidding process. However, they may
participate as a joint venture with a non-shortlisted bidder, but only with the
employer's approval before the bid deadline.
Article
61. Preparation of bidding documents
1. Grounds
for preparing bidding documents:
a)
Approved overall contractor selection plan (if any);
b)
Approved specific contractor selection plan;
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;
dd)
Legal regulations on taxes, fees, incentives in contractor selection;
e)
Other related grounds.
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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:
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 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;
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b) The
financial proposal is considered valid when it fully meets the following
requirements:
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.
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 17 and 18 of this Decree: 5% of
total score;
c)
Solutions and methodology to perform the package: from 30% to 40% of total
score;
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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 and d of this
Clause is 100%.
Technical
proposals are evaluated to meet technical requirements when the technical score
is not lower than 70% of the aggregate score (or 80% for consulting service
packages with high and special technical requirements) and the score of each
required item on solutions and methodology, personnel, and technology transfer
(if any) is not lower than 60% of the maximum score of that item (not lower
than 70% for that item for consulting service packages with high and specific
technical requirements). The procuring entity should determine whether a
minimum score is necessary for the "bidder experience and capacity"
criterion, based on the nature of the procurement package.
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 this Article.
8. Combined
evaluation criteria (in case of applying the quality- and cost-based selection):
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Use a
scale consistent with the quality-based scale to determine the cost-based
price. The cost-based score is determined as follows:
Cost-based score under
consideration =
Lowest price x (technical scale)
Price under consideration
Where:
Cost-based
score under consideration: Cost-based score of the financial proposal under
consideration;
Lowest
price: The lowest bid price (after error correction, deviation adjustment, and
any discounts) among bidders with detailed financial evaluation;
Price
under consideration: The bid price (after error correction, deviation
adjustment, and any discounts) of the bid under consideration.
b)
Combined evaluation criteria:
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Aggregate
score under consideration = K x Quality-based score under consideration + G x
Cost-based score under consideration
Where:
Quality-based
score under consideration: is the score determined at the technical evaluation
step;
Cost-based
score under consideration: is the score determined at the financial evaluation
step;
K: Quality-based score weight given in the aggregate
score scale; accounting for 70% to 80%;
K:
Cost-based score weight given in the aggregate score scale; accounting for 20%
to 30%;
K + G =
100%.
Article
62. Appraisal of and approval for bidding documents
1. Bidding
documents must be appraised according to Article 129 of this Decree before
approval.
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Article
63. Organization of contractor selection
1. Invitation
for bids:
a)
Invitation to bid is 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. The
issuance, modification, and clarification of the bidding documents shall comply
with Clause 2, Article 26 of this Decree.
3. Preparation,
submission, receipt, management, modification, and withdrawal of bids shall
comply with Clause 3, Article 26 of this Decree.
4. The
technical proposal opening shall comply with Clause 4 Article 38 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
64. 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 61 of this Decree, will be disregarded during bid evaluation.
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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 125 of this Decree.
Article
65. 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 procuring entity 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 procuring entity. The procuring entity shall receive the bidder's
clarifications for review and evaluation; additional and clarifying documents
are integral part of the bid.
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 procuring entity and the bidder whose bid
needs to be clarified. The clarification of the bid must be made in writing
and kept by the procuring entity as an integral part of the bid.
5. The
procuring entity may verify the authenticity of any doubtful documents of the
bidder with relevant organizations or individuals.
Article
66. 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.
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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.
3. For
lump-sum contracts:
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
29 of this Decree.
5. Following
error correction and deviation adjustment (as outlined in Clauses 1, 2, 3, and
4), the procuring entity will notify the bidder of these adjustments in
writing. Within 3 working days of receiving such a notice from the procuring
entity, the bidder must notify the procuring entity in writing if they accept
those adjustments from the procuring entity. If the bidder refuses those
adjustments, their bid will be disqualified, unless the error correction and
deviation adjustment are inappropriate or inaccurate.
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1. Evaluate
criteria for the validity of a technical proposal:
The
evaluation of validity of the technical proposal shall comply with Clause 1
Article 40 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 61 of this Decree. Bidders with valid technical
proposals will be evaluated for their technical aspect.
3. Technical
evaluation:
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
list of technically-responsive bidders must be approved in writing by the
employer based on the approval report and appraisal report of technical
evaluation result. The procuring entity announces the list of
technically-responsive bidders and technically-nonresponsive bidders, states
the reasons for technicall-nonresponsive bidders, and invites all participating
bidders to open their financial proposals. The procuring entity must post a
list of technically-responsive bidders on VNEPS within 5 working days from the
date of approval for this list.
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1. The
opening of financial proposals shall comply with Article 41 of this Decree; for
packages applying the quality-based selection, only open the financial proposal
of the bidder with the highest technical score.
2. The
evaluation of validity of financial proposals shall comply with point b clause
3 Article 61 of this Decree.
Bidders
with valid financial proposals will undergo a detailed financial evaluation.
3. The
detailed evaluation of financial proposals and bidder ranking shall comply with
Clause 3 Article 42 of this Decree.
Article
69. Contract negotiation
1. The
first-ranked bidder is invited by the procuring entity to negotiate the
contract. The contract negotiation shall comply with Clause 2 Article 43 of
this Decree.
2. 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 change key personnel who have been proposed. Exceptions are allowed only
in two situations: 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)
Costs related to consulting services in accordance with the requirements of the
package and actual conditions;
e)
Other necessary matters.
3. During
the contract negotiation process, the parties complete the draft contract;
specific conditions of the contract.
4. Following
the contract negotiation completion, the procuring entity shall send a request
for approval for contractor selection result the employer according to Article
70 of this Decree. The request for approval for contractor selection result
includes the following contents:
a)
Evaluation result for each bid;
b) List
of considered and ranked bidders and order of ranking of bidders;
c)
Contract negotiation result;
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dd)
Name of the bidder proposed to win the bid, proposed winning price, type of
contract, package performance duration and contract performance duration;
e)
Comments on competitiveness, fairness, transparency and economic efficiency in
the contractor selection process. If competitiveness, fairness, transparency,
or economic efficiency cannot be assured, the procurement entity must clearly
document the reasons and propose solutions;
g) 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;
h) Key
considerations (if any).
5. If
the negotiation is not successful, the procuring entity will report to the
employer for consideration and decide whether to invite the next ranked bidder
to negotiate.
Article
70. Submission, appraisal of, approval for, and publication of contractor selection
result, finalization, signing, and management of contract
The
submission, appraisal of, approval for, and publicization of contractor
selection result, finalization, signing, and management of contracts shall
comply with Articles 31, 32, 33 of this Decree.
Section
2. INDIVIDUAL BIDDERS
Article
71. Selection of individual consultants
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2. For
individual consulting service packages with a fixed budget not exceeding 200
million VND, contractor selection is carried out according to the shortened
process specified in Article 74 and Article 75 of this Decree. For individual
consulting service packages with a fixed budget of over 200 million VND, contractor
selection is carried out according to the ordinary process specified in Article
72 and Article 73 of this Decree.
Article
72. Preparation, submission of and approval for terms of reference under ordinary procedures
1. The
procuring entity prepares terms of reference for the individual consultant that
needs to be selected and submit them to the employer for approval. The terms of
reference include:
a)
Brief description of the project, procurement estimate;
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)
Fixed budget according to the fixed price method;
e)
Other necessary matters (if any).
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Article
73. 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 procuring entity 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 five
working days to prepare a scientific resume.
Organizations
and individuals can request clarification on the terms of reference through
VNEPS. Any clarification requests must be submitted at least 3 working days
before the bid submission deadline for consideration. The procuring entity
shall respond to the clarification request on the VNEPS at least 2 working days
before the bid submission deadline.
If the
terms of reference need to be amended after they are issued, the procuring
entity must post the decision to amend them, along with the amended version and
detailed amendments, on VNEPS at least 3 working days before the bid submission
deadline.
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:
Based
on the terms of reference, the procuring entity evaluates the scientific resume
of each individual consultant. 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.
4. Contract
negotiation:
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5. Approval
for individual consultant selection result is based on the approval request,
report on the result of evaluating the individual consultants' scientific
resumes, and contract negotiation result. The contract signed between the
parties must be consistent with the decision on approval for individual
consultant selection result, the contract negotiation result, the content of
the terms of reference 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
74. Preparation, submission of and approval for terms of reference and list of
individual consultants under shortened procedures
1. The
preparation, submission of and approval for terms of reference are carried out
in accordance with Article 72 of this Decree.
2. The
procuring entity identifies a list of at least 3 individual consultants to
submit to the employer for approval.
3. Based
on the documents submitted by the procuring entity, the employer considers
approving the terms of reference and the list of individual consultants.
Article
75. 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
procuring entity 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
three working days to prepare a scientific resume.
2. Submission
of scientific resumes:
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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 73 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
Article
76. Ordinary procedures for direct contracting if only one bidder is identified
to receive request for proposal (RFP)
1. Direct
contracting must be approved in the specific contractor selection plan. The
ordinary procedures for direct contracting are applied to packages specified in
Points d, dd, e, g, h, i, k and l, Clause 1, Article 23 of the Bidding Law; the
employer decides to send the RFP to a bidder.
2. Contractor
selection preparation, including:
a)
Preparation of RFP:
Contents
of the RFP: brief description of the project, procurement estimate, package;
instructions for preparing and submitting proposals; evaluation criteria for
bidder's capacity and experience; technical evaluation criteria; determine the
fixed budget for direct contracting; contract conditions.
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b)
Submission, appraisal of and approval for the RFP: The RFP must be appraised according to Article 129 of this
Decree before approval. Approval for RFP must be based on the approval report
and appraisal report of RFP.
c) Identification
of the bidder expected to receive the RFPs:
Based
on the scale and nature of the package and preliminary information about the
bidder capable of performing the package, the employer determines a bidder
expected to receive the RFP. No detailed evaluation of a bidder's capacity or
experience is needed at this stage.
The
expected bidder for direct contracting and RFP if they
meet eligibility requirements as prescribed in Points a, b, c, d, e, g and i,
Clause 1, Article 5 of the Bidding Law (for non-household businesses); or if
they meet eligibility requirements specified in Points a and b, Clause 2 and
Points d, e, Clause 1, Article 5 of the Bidding Law (for household businesses).
Individuals and groups that bid on goods procurement packages with innovative
products will qualify for direct contracting and RFP if they meet the eligibility
requirements of Clause 3, Article 5 of this Decree.
3. Organization
of contractor selection:
a) RFP
is issued to the
expected bidder for direct contracting;
b) The
bidder prepares and submits the proposal based on the RFP.
4. Evaluation
of the proposal and negotiation of the bidder's proposal details:
a) The
evaluation of the proposal is carried out according to the evaluation criteria
specified in the RFP. During the evaluation process, the procuring entity
invites the bidder to negotiate (if any), clarify or amend the proposal details
to demonstrate that they meet the requirements of capacity, experience and
progress, volume, quality, technical solutions and measures to perform the
package;
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5. Submission,
appraisal of, approval for, and publication of direct contracting result
The
submission, appraisal of, approval for, and publicization of direct contracting
result shall comply with Article 31 of this Decree.
6. Finalization,
signing, and management of contract performance:
The
contract signed between the parties must be consistent with the decision on
approval for the direct contracting result, proposal, RFP and other related
documents. The finalization, signing, and management of contracts shall comply
with Article 32 and Article 33 of this Decree.
Article
77. Ordinary procedures for direct contracting if the employer sends RFPs to
more than one bidder
1. Direct
contracting must be approved in the specific contractor selection plan. For
packages specified in Points dd, e, h, k and l, Clause 1, Article 23 of the
Bidding Law, the employer decides whether to choose a single expected bidder
for direct contracting and send the RFP to that bidder following the process
specified in Article 76 of this Decree, or determine and approve a list of
multiple expected bidders for RFPs according to the process specified in this
Article.
2. Preparation,
appraisal of and approval for the RFPs:
Contents
of the RFPs: brief description of the project,
procurement estimate, package; instructions for preparing and submitting
proposals; evaluation criteria for bidder's capacity and experience; technical
evaluation criteria; determination of the least cost; contract conditions.
Use
pass and fail criteria for capacity and experience evaluation and technical
evaluation. The RFP must clearly state the marking, trademark, specific origin of the
goods, and relevant technical and service requirements (if any);
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RFPs
must be appraised according to Article 129 of this Decree before approval. Approval
for RFPs must be based on the approval report and appraisal report of RFPs.
c)
Identification of the list of bidders expected to receive the RFPs:
Based
on the scale and nature of the package and preliminary information about the
bidders capable of performing the package, the employer determines at least 3
bidders expected to receive the RFPs. No detailed evaluation of these bidder's
capacity or experience is needed at this stage.
Bidders
expected to receive RFPs if they meet eligibility requirements as prescribed in
Points a, b, c, d, e, g and i, Clause 1, Article 5 of the Bidding Law (for
non-household businesses); or if they meet eligibility requirements specified
in Points a and b, Clause 2 and Points d, e, Clause 1, Article 5 of the Bidding
Law (for household businesses). Individuals and groups that bid on goods
procurement packages with innovative products will qualify for receiving RFPs
if they meet the eligibility requirements of Clause 3, Article 5 of the Bidding
Law.
3. Organization
of contractor selection:
a) The
RFPs are issued to bidders on the list of bidders expected to receive the RFPs;
b) The
bidder prepares and submits the proposal based on the RFPs.
4. Evaluation
of and clarifications to proposals, error correction and deviation adjustment,
bidder ranking:
a)
Principles for evaluating a proposal comply with Article 27 or Article 64 of
this Decree;
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c)
Error correction and deviation adjustment are carried out in accordance with
Article 29 or Article 66 of this Decree;
d) The
proposal evaluation shall comply with Article 30 or Article 67, Article 68 of
this Decree;
dd)
Bidder ranking is carried out according to regulations in the RFPs.
5. Contract
negotiations (if any):
If the
package applies contract negotiation, the first-ranked bidder is invited by the
procuring entity to negotiate the contract. During the negotiation process, the
procuring entity may request the bidder to clarify or amend the proposal
details to demonstrate that they meet the requirements of capacity, experience
and progress, volume, quality, technical solutions and measures to perform the
package. If the negotiation is not successful, the procuring entity will report
to the employer for consideration and decide whether to invite the next ranked
bidder to negotiate.
6. Submission,
appraisal of, approval for, and publication of direct contracting result:
The
submission, appraisal of, approval for, and publicization of direct contracting
result shall comply with Article 31 of this Decree.
7. Finalization,
signing, and management of contract performance:
The
contract signed between the parties must be consistent with the decision on
approval for the direct contracting result, proposal, RFPs and other related
documents. The finalization, signing, and management of contracts shall comply
with Article 32 and Article 33 of this Decree.
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1. The shortened direct contracting of
bidders in the cases specified in Points a, b and c, Clause 1, Article 23 of
the Bidding Law does not require approval in the specific contractor selection
plan.
2. Based on the scale and nature of the
package and preliminary information about the bidder capable of performing the
package, the employer or the agency directly managing the package will 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 including the following steps:
a) Prepare and send a draft contract to the
bidder that defines the requirements for the scope and content of the work to
be performed, performance duration, quality of work to be achieved and
corresponding value;
b) Finalize the contract;
c) Submit and approve the direct
contracting result;
d) Sign a contract with the appointed bidder;
dd) Manage contract performance;
e) Publicize the direct contracting result
on VNEPS.
3. Direct contracting for packages
within the direct contracting limit as prescribed in Point m, Clause 1, Article
23 of the Bidding Law must be approved in the specific contractor selection
plan. The shortened
direct contracting is carried out as follows:
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The procuring entity, based on the
objectives and scope of work, prepares and sends the draft contract to a bidder capable of
performing the package. The content of the draft contract includes requirements on
the scope and content of work to be performed, performance duration, quality of
work to be achieved, corresponding value and other necessary matters;
b) Finalize the contract, submit, approve
and publicize the contractor selection result:
Based on the draft contract, the procuring
entity and the bidder proposed for direct contracting finalize the contract as
a basis for submitting and approving the contractor selection result and
signing the contract. The publicization of direct contracting result shall comply
with Clause 6 Article 31 of this Decree;
c) Signing and management of 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 33 of this Decree.
If the employer does not apply the
shortened procedures specified in Clause 2 of this Article but applies the
ordinary procedures, they shall comply with Article 76 or Article 77 of this
Decree.
Section 2. SHOPPING METHOD, DIRECT
PROCUREMENT, SELF-PERFORMANCE
Article 79. Shopping method process
1. Contractor selection preparation,
including:
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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
in Clause 4, Article 5 of this Decree may be exempt from certain criteria
outlined in Clause 3, Article 9 of this Decree. Bidders being household businesses are
exempt from submitting financial statements and meeting net asset value
requirements;
b) Appraisal of and approval for bidding
documents:
Bidding documents must be appraised
according to Article 129 of this Decree before approval. Approval for
bidding documents must be based on the approval report and appraisal report of
bidding documents.
2. Organization of contractor selection:
a) The procuring entity posts the
invitation to bid and bidding documents on VNEPS according to Point b, Clause
1, Article 8 of the Bidding Law;
b) The amendments or clarifications to the
bidding documents shall comply with Clause 2, Article 26 of this Decree;
c) Bidders submit bids according to the
requirements of the bidding documents on VNEPS;
d) The procuring entity shall open bids on
VNEPS within 2 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. Bid opening minutes are posted on VNEPS within 24 hours from
the time of bid opening.
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a) The bid evaluation principles shall
comply with Article 27 of this Decree;
b) The bid clarification shall comply with
Article 28 of this Decree;
c) Error correction and deviation
adjustment are carried out in accordance with Article 29 of this Decree;
d) The bid evaluation shall comply with
Article 30 of this Decree;
dd) Bidder ranking is carried out according
to regulations in the bidding documents. 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.
4. Submission, appraisal of, approval
for, and publication of contractor selection result:
The submission, appraisal of, approval for,
and publicization of contractor selection result shall comply with Article 31
of this Decree.
5. Finalization, signing, and
management of 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 finalization,
signing, and management of contracts shall comply with Article 32 and Article
33 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 24 of this Decree;
b) Appraisal of and approval for the RFPs:
The RFPs must be appraised according to
Article 129 of this Decree before approval. Approval for RFPs must be based on the
approval report and appraisal report 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 RFPs.
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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 procuring entity must evaluate the eligibility,
capacity and experience of that bidder according to Article 30 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
procuring entity invites the bidder to negotiate (if any), clarify or amend 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;
A bidder is proposed to win the bid if they
meet the requirements of Article 61 of the Bidding Law 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 131 of this Decree.
6. Submission, appraisal of, approval
for and publication of direct procurement result:
a) The contractor selection result is
appraised according to Clauses 1 and 4, Article 130 of this Decree before
approval.
b) The contractor selection result is
approved based on the approval report and report on appraisal of contractor
selection result;
c) The contractor selection result must be
made public according to Article 31 of this Decree.
7. Finalization, signing, and management
of contract performance:
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Article 81. Self-performance process
1. Prepare self-performance plan and
draft assignment agreement and assignment document:
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 finalize 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;
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c) The organization that directly manages
and uses the package must supervise the package performance on their own in the
following cases: 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 fixed budget of the package is under
1 billion VND.
Section 3. CONTRACTOR SELECTION IN SPECIAL
CASES
Article 82. Documents, procedures for contractor
selection in special case specified in Points a, b, c and i, Clause 1, Article
29 of the Bidding Law
1. For a case specified in
Points a and b, Clause 1, Article 29 of the Bidding Law:
a) An agency shall be assigned by the
Minister of Health to make a plan for contractor
selection in special case for consideration;
b) The Minister of Health shall assign an affiliated agency to appraise the request before decision;
c) Required documents in the plan for contractor
selection in special case for appraisal and approval includes a request for
approval
and related documents. The request for approval for contractor selection plan in special case
includes the following contents: basic information about the project,
procurement estimate, package (name of the project, procurement estimate,
package); capital sources, total investment of the project, estimated value of
procurement, fixed budget of package; expected performance duration; other
necessary matters); explanation of the project’s or package’s necessity and
specific conditions in terms of processes, procedures, criteria for
selecting bidders, conditions for signing and performing the contract, and
other conditions (if any) leading to the inability to meet the conditions for contractor
selection specified in Articles 21, 22, 23, 24, 25, 26, 27 and 28 of the
Bidding Law; the draft specific contractor selection plan includes the
following main contents: procedures for contractor selection; conditions for signing
and performing the contract and other related contents to meet the specific
conditions of the package or project, ensuring the selection of contractors
with sufficient capacity, experience and feasible and effective solutions.
2. For the cases specified in Point c,
Clause 1, Article 29 of the Bidding Law:
a) Ministers, Heads of ministerial-level
agencies, Governmental agencies, other central agencies (hereinafter referred
to as heads of central agencies), President of the Provincial People's
Committee prepare documents to submit to the Prime Minister and to the Ministry
of Planning and Investment for appraisal;
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c) Within 5 working days of receiving valid
documents as prescribed in Point b of this Clause, the Ministry of Planning and
Investment shall forward them to seek opinions from relevant ministries and
agencies on the matters within their scope of management (if necessary). Within 7 working
days of receiving the request from the Ministry of Planning and Investment, the
consulted agency must send their opinions to the Ministry of Planning and
Investment;
d) Within 10 days of receiving valid
documents as prescribed in Point b of this Clause, the Ministry of Planning and
Investment shall prepare an appraisal report and Prime Minister's draft
decision on the contractor selection in special case (if qualified), and then
submit them to the Prime Minister for decision. The appraisal report evaluates the
following: the project’s or package’s necessity; if they meet special
conditions in terms of national defense, security, foreign affairs, territorial
borders; reasons for being unable to meet the conditions for contractor
selection specified in Articles 21, 22, 23, 24, 25, 26, 27 and 28 of the
Bidding Law;
dd) The Prime Minister shall consider
applying the contractor selection in special case based on the documents
submitted by the head of central agency, President of the Provincial People's
Committee, and the appraisal report of the Ministry of Planning and Investment;
The Prime Minister's decision on
application of contractor selection in special case includes: the package of the
project or procurement estimate that applies the contractor selection in
special case; responsibilities of the competent person, employer, procuring
entity, and relevant agencies in the process of organizing contractor selection;
other requirements during the performance of package or project (if any).
e) Based on the decision of the Prime
Minister, the head of central agency, President of the Provincial People's
Committee shall develop and approve a contractor selection plan in special case
including the main contents following: procedures for contractor selection;
conditions for signing and performing the contract and other related contents
to meet the specific conditions of the packages or project, ensuring the selection
of contractors with sufficient capacity, experience and feasible and effective
solutions.
3. For the cases specified in Point i,
Clause 1, Article 29 of the Bidding Law:
a) The head of central agency, President of the
Provincial People's Committee prepare documents to submit to the Prime Minister
and to the Ministry of Planning and Investment for appraisal;
b) The contractor selection plan in special
case submitted for appraisal includes the contents in point c clause 1 of this
Article;
c) Based on the request of the head of
central agency, President of the Provincial People's Committee, and the
appraisal report of the Ministry of Planning and Investment, the Government may
propose the Standing Committee of the National Assembly to supplement the method
of contractor selection in special case. The procedures for developing a resolution
to submit to the Standing Committee of National Assembly comply with the Law on
Promulgation of Legal Documents.
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1. The head of central agency or
Provincial People's Committee shall consider applying the contractor selection
in special case for any cases specified in Points d, dd, e, g and h, Clause 1,
Article 29 of the Bidding Law and the corresponding selection process as
prescribed in Clauses 3, 4 and 5 of this Article for general application to
packages under their scope of management.
2. Based on the decision of the head of
the central agency and the Provincial People's Committee as prescribed in
Clause 1 of this Article, the competent person or the employer shall organize
the contractor selection as outlined in Clauses 3, 4 and 5 of this Article.
3. For a package specified
in Point d, Clause 1, Article 29 of the Bidding Law:
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;
c) The head of the agency handling the
lawsuit approves and announces the result of selecting law-practicing
organization, lawyer;
d) The agency handling the lawsuit
finalizes and signs a legal service contract with the chosen law-practicing
organization, lawyer.
4. For the cases specified in Points
dd, e, g and h, Clause 1, Article 29 of the Bidding Law, except for the package
specified in Clause 5 of this Article, the contractor selection process
includes the following steps:
a) Prepare, evaluate, and approve the
specific contractor selection plan;
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c) Approve and publicize contractor
selection result;
d) Finalize and sign the contract with the
bidder;
The content of the draft contract includes
requirements on the scope and content of work to be performed, performance
duration, quality of work to be achieved, and contract value;
dd) Specific contractor selection plans, contractor
selection result and other bidding information are posted in accordance with
Article 7 and Article 8 of the Bidding Law.
5. For a package to buy air tickets for
domestic and international business trips as prescribed in Point dd, Clause 1,
Article 29 of the Bidding Law:
a) For international business trips, the
agency receiving budget and responsible for buying air tickets (based on the
approved work plan and flight itinerary) 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 agency head 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.
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Article 84. 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 85. 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.
If there is only one interested residential
community, union, or worker group, the employer may consider assigning the
package to that residential community, union, or worker group. Where it is not
possible to assign the package to the residential community or union, or there
is no interested residential community or union, the package will be assigned
to a worker group.
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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 86. 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;
d) Other relevant parties decided by the
employer.
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CONCENTRATED
PROCUREMENT, PROCUREMENT UNDER PROCUREMENT ESTIMATES, PROCUREMENT OF DRUGS,
CHEMICALS, TESTING MATERIALS, MEDICAL EQUIPMENT
Section 1. CENTRALIZED PROCUREMENT
Article 87. 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, and enterprises, 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 131 of this Decree.
Article 88. Responsibilities in centralized
procurement
1. The centralized procurement unit shall
fulfill the responsibilities of the employer specified in Article 78 of the
Bidding Law.
2. The superior of the centralized
procurement unit shall fulfill the responsibilities of the competent person
specified in Article 77 of the Bidding Law.
Article 89. Centralized procurement process
under competitive bidding
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Centralized procurement under competitive
bidding is carried out according to Article 22 and Article 34 of this Decree,
including the following steps:
a) Determine procurement volume:
There are two methods for determining the
volume of goods and services to be procured centrally: Units with procurement
needs can submit a list of required goods and services to the centralized
procurement unit, or the centralized procurement unit can independently
determine the required volume based on the actual usage data (volume and
quantity) from the previous procurement period. For asset procurement under the Law on
Management and Use of Public Assets, except for drugs, chemicals, testing
supplies, and medical equipment, the determination of centralized procurement
volume is based on the list of goods and services sent by the unit with
procurement needs to the centralized procurement unit as per the law on management
and use of public assets.
The centralized procurement and price
negotiation unit shall gather information on the procurement needs of private
health facilities (if any) and then procure drugs, chemicals, testing supplies,
and medical equipment for private health facilities as prescribed for public
health facilities in the area;
b) The preparation, appraisal of and
approval for specific contractor selection plans are carried out in accordance
with Articles 37, 38, 39 and 41 of the Bidding Law;
c) The contractor selection organization
shall comply with Article 26 and Article 38 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 is carried out
according to Articles 27, 28, 29, 30 or Articles 39, 40, 41, 42 and 43 of this
Decree;
dd) The submission, appraisal of, approval
for, and publication of the contractor selection result and explanation for
unsuccessful bidders’ disqualification upon their requests comply with Article
31 and Article 44 of this Decree;
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The centralized procurement unit and the
successful bidder finalize the content of the framework agreement as prescribed
in Article 90 of this Decree, as a basis for signing the framework agreement. If a bidder wins
multiple parts of a package or wins 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) Finalize, sign, and perform the contract
with the successful bidder:
If the centralized procurement unit
directly signs a contract with the successful bidder, it is not required to
sign a framework agreement as prescribed in Point e of this Clause. The bidder who has
signed the framework agreement must furnish a performance security before or at
the same time the contract takes effect for the unit with the procurement need. The bidder
furnishes performance security for each unit with procurement unit or for the
total number of package parts that the bidder sign a contract according to the
form specified in the bidding documents or another form approved by the
employer.
The unit with procurement needs shall
notify the centralized procurement unit if the bidder does not sign the
contract. The bidder has signed a framework agreement and has been asked by the
procurement unit to sign a contract, but does not sign the contract or does not
furnish a performance security, except for force majeure, his VNEPS account
will be locked within 06 months from the date the Ministry of Planning and
Investment receives the written request from the centralized procurement unit;
h) Conduct final settlement and contract
liquidation.
2. Based on the scale and nature, the
package can 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 in one package’s part or an undivided package,
the bidding documents may stipulate the selection of contractors in one of the
following ways:
a) Select bidders based on supply ability:
offer the full quantity or volume in the
bidding documents. 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, and
also ensure that total proposed winning price of the package is lowest (for
packages applying the least-cost selection); the total evaluated price of the
package is the lowest (for packages applying the evaluated price selection);
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 fixed budget.
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If a higher ranked bidder refuses to supply
goods or services without a legitimate reason, without subject to force
majeure, or breaching the framework agreement or contract, the breaches will be
addressed according to the framework agreement or contract. Any bidder who
breaches the contract will face the following consequences: a fine as
stipulated in the contract, no refund of the performance security deposit,
their negative contract performance will be published on the VNEPS;
b) Select bidders based on bidding volume:
The selection of contractors is based on
the evaluation criteria stated in the bidding documents as prescribed in
Articles 24 and 35 of this Decree. Bidders bid according to the required
volume and quantity in the bidding documents. The approved list of successful bidders
includes the main list (first ranked bidder) and reserve list (second ranked
bidder onwards). During the contract performance process, if the bidder on the
main list breaches the contract and cannot continue to supply goods or services
according to the quantity and volume specified in the framework agreement or
according to the signed contract, the centralized procurement unit or the unit
with procurement needs will terminate the contract with that bidder and invite
the second-ranked bidder (reserve list) to finalize and sign a framework
agreement or sign a contract, and also request the bidder to renew their bid and bid
security to have a ground for signing a framework agreement and contract. If the second
ranked bidder refuses to finalize and sign the contract, the situation shall be
addressed according to Clause 16, Article 131 of this Decree. The previously
successful bidder who breaches the contract will face the following
consequences: a fine as stipulated in the contract, no refund of the
performance security deposit, their negative contract performance will be
published on the VNEPS.
Article 90. 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 liquidation;
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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;
g) Responsibilities of the unit with
procurement needs in signing contracts and using goods or services;
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 91. Authority to decide on
procurement
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a) The authority to decide on the
procurement of public assets at agencies and units shall comply with the law on
management and use of public assets;
b) Heads of central agencies may decide on or delegate the
authority to decide on procurement of assets for state-funded science and
technology tasks;
c) The Provincial People's Council may decide on or delegate the
authority to decide on procurement of assets for state-funded
science and technology tasks regarding funding sources within the scope of
local management.
2. Authority to decide on the
procurement of goods or services other than the cases in Clause 1 of this
Article:
a) The head of a central agency may decide
on or delegate the authority to decide on the procurement using the science and
technology fund managed by their agency (this includes procurement by agencies
under their management, and other entities or individuals performing science
and technology tasks, even if not directly managed by them);
b) The Provincial People’s Council may
decide on or delegate the authority to decide on the procurement using the
science and technology fund managed by the province (this includes procurement
by agencies under their management, and other entities or individuals
performing science and technology tasks, even if not directly managed by them);
c) Heads of budget estimate units at all
levels can decide on procurement for: packages and procurement items with
values within the scope of decision-making authority or as delegated by the
competent authority, and packages and procurement items with values not
exceeding 200 million dong;
d) Heads of central agencies and provincial
People's Councils may decide on or delegate authority to decide on procurement
to serve the operations of public service providers under their management.
Article 92. Procurement process
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2. For goods on the list subject to
Government- or Prime Minister-determined standards and limits (or those
delegated to decide such standards and limits), the condition for successful
bid is that the proposed winning price for each good must not exceed the price
established based on the standards and limits of the relevant authorities.
Section 3. PROCUREMENT OF DRUGS, CHEMICALS,
TESTING SUPPLIES, MEDICAL EQUIPMENT
Article 93. Contractor selection based on
quantity of medical procedures
1. The selection of a bidder to supply
a complete package of equipment, chemicals, testing supplies, and accompanying
services (excluding operating personnel) is carried out in accordance 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;
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g) Warranty and maintenance requirements,
including periodic equipment maintenance;
h) Requirements for backup equipment,
arrangement of backup equipment at medical facilities (if necessary);
i) Other necessary matters.
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 can report to a competent person to 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 94. Procurement of drugs,
chemicals, testing supplies, medical equipment
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a) For immediate initiation in urgent
epidemic prevention and control situations:
To expedite epidemic prevention and control
efforts, the 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);
Procurement should be initiated for
the following items to support epidemic prevention and control when existing
supplies at the health facility are insufficient: consulting and non-consulting
services, drugs, chemicals, testing supplies, medical equipment, components,
accessories, vehicles, and construction materials to establish,
renovate, and build treatment areas, field hospitals;
Procurement for the following items can be
initiated immediately to support diplomatic corps and other countries in their
epidemic prevention and control efforts, upon practical needs and requests from
competent authorities: consulting and non-consulting services, drugs,
chemicals, testing supplies, medical equipment, components, accessories,
vehicles, construction and installation materials;
b) In emergencies, to maintain health
facility operations and avoid disruption that could endanger patients’ health
and lives, immediate procurement can be initiated for: consulting and
non-consulting services, drugs, chemicals, testing supplies, and medical
equipment, components, accessories, vehicles, construction and installation
materials;
c) For emergency treatment of patients in
critical conditions (as defined by the Law on Medical Examination and
Treatment, if applicable), immediate procurement can be initiated for:
consulting, non-consulting services, drugs, chemicals, and testing supplies,
medical equipment, components, accessories, vehicles, construction and
installation materials. These items are considered in unexpected needs,
irreplaceable, essential for saving patients' lives;
d) Other cases according to the instructions
of the Ministry of Health (if any).
2. 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 using the following
methods (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.
3. The Ministry of Health shall
organize centralized drug procurement at the national level, and take charge
and coordinate with the Ministry of Finance and Vietnam Social Insurance 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.
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a) Participate in the appraisal process of
specific contractor selection plans for centralized procurement and price
negotiation;
b) Publicize the price of each winning drug
paid from the health insurance fund of each hospital, locality, and the
Ministry of Health on the website of Vietnam Social Security.
Article 95. Payment of costs of purchasing
drugs, chemicals, testing supplies, and medical equipment for private health
facilities
1. Private health facilities can submit
their consolidated procurement needs for drugs, chemicals, testing
supplies, and medical equipment to the centralized procurement unit in their
locality for centralized procurement (national level, local level) and price
negotiation.
When
consolidating centralized procurement needs, private health facilities are
responsible for developing plans to use drugs, chemicals, testing supplies, and
medical equipment in compliance with regulations on bidding of centrally
procured medicines, chemicals, testing supplies, and medical equipment, similar
to those required for public health facilities in the locality.
If a private health facility 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 that do
not consolidate needs for centralized procurement and price negotiation
according to Clause 1 of this Article shall organize their own selection of
contractors to supply drugs, chemicals, testing supplies, medical equipment. Payment for drugs,
chemicals, testing supplies, and medical equipment paid by the health insurance
fund is made according to Clauses 3, 4, 5 and 6 of this Article.
3. Private health facilities that use
drugs on the list of drugs paid for by the health insurance fund for medical
treatment will be reimbursed at the purchased price, but not exceeding the
following limits: winning unit prices of public health facilities at
provincial, central levels, or winning unit prices of health facilities of the
same healthcare practice level in the same locality. This applies to drugs with
identical trade name, manufacturer, origin, concentration, content,
administration route, technical criteria group, dosage form, and unit of
measurement.
If there is no winning unit price in the
same locality mentioned above, the determination of the unit price for
reimbursement is based on the winning unit price of the drug with identical
trade name, manufacturer, origin, concentration, content, route of
administration, technical criteria group, dosage form, and unit of measurement
in the following order of priority:
a) Results of national centralized
procurement, results of price negotiations;
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c) Bidding results of public health
facilities at provincial and central levels, or health facilities of the same
healthcare practice level in neighboring areas;
d) Bidding results of public health
facilities at provincial and central levels, or health facilities of the same
healthcare practice level in Hanoi and Ho Chi Minh City.
4. Private health facilities will be
reimbursed for chemicals, testing supplies, and medical equipment based on the
actual purchase price. This applies to items with identical manufacturer,
origin, and technical criteria. However, the reimbursement amount cannot exceed
the winning unit price of public health facilities at the provincial, central
level, or health facilities in the same healthcare practice level in the same
locality.
If there is no winning unit price in the
same locality mentioned above, the determination of unit price for
reimbursement is based on the winning unit price of chemicals, testing
supplies, and medical equipment from the same manufacturer, origin, technical
criteria in the following order of priority:
a) Results of national centralized
procurement, results of price negotiations;
b) Results of centralized procurement in
the locality;
c) Bidding results of public health
facilities at provincial and central levels, or health facilities of the same
healthcare practice level in neighboring areas;
d) Bidding results of public health
facilities at provincial and central levels, or health facilities of the same
healthcare practice level in Hanoi and Ho Chi Minh City.
5. If a private health facility chooses
to apply the Bidding Law to organize the selection of contractors to supply
drugs, the reimbursement is based on the contractor selection result but does
not exceed the winning unit prices in the same locality, centralized
procurement results, price negotiation results, bidding results in neighboring
areas, Hanoi City and Ho Chi Minh City according to the principles specified in
Clause 3 of this Article.
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Chapter VII
ONLINE CONTRACTOR SELECTION
Section 1. ONLINE BIDDING
Article 96. 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):
a) VNEPS uses information from business
registration, cooperative registration, and household business registration to
register bidders and track their activities on the platform;
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 Planning and Investment
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):
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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. This data helps manage contract performance, payments, and bidder
capacity, experience, and performance history.
b) The Ministry of Finance and the Ministry
of Planning and Investment organize 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.
4. VNEPS is connected to Vietnam Social
Security, other information portals and systems to simplify the bidding
process, contract management, and contract payment.
Article 97. Process for online contractor
selection
1. e preparation, appraisal of, and
approval for prequalification documents, EOI requests, and bidding documents
shall comply with Articles 23, 24, 25, 35, 36, 37, 60, 61 and 62 of this
Decree.
a) For the requirements in the data sheet,
evaluation criteria for eligibility, capacity, and experience in the
prequalification documents and bidding documents of goods procurement and
construction packages, non-consulting services, employers or procuring entities may not attach
request files other than the contents that have been digitized in webform form
on the VNEPS;
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2. Criteria for evaluating prequalification
applications, EOI responses, and bidding documents are laid down in Articles
23, 24, 35, 36, 60 and 61 of this Decree.
3. The evaluation of bids is carried
out according to the principles specified in Clauses 1, 2, 3, 4, 6, 7 and 8,
Article 27, Clause 1 Article 39, and Clause 1, Clause 2 Article 64 of this
Decree.
For packages for procurement of goods and
non-consulting services using a single-stage, one-envelope method, using the
least-cost selection and bids without any incentives, the VNEPS automatically
rank bidders according to their bid prices; evaluation of bids may be carried
out against the first ranked bidder. If the first ranked bidder does not
respond, the next ranked bidder will be evaluated.
4. Clarifications to bids are carried
out through VNEPS according to Clauses 1, 3, 4, 5, Article 28 and Clauses 1, 3,
4, 5, Article 65 of this Decree.
5. Error correction and deviation
adjustment are carried out in accordance with Article 29 or Article 66 of this
Decree.
6. EOI requests, prequalification
documents, bidding documents, shortlisting selection results, and contractor
selection results are approved on VNEPS according to the roadmap specified in
Point d Clause 8 of this Article.
7. Bidders must actively monitor and
update their information on VNEPS for any packages they are interested in or
participating in. If errors occur due to failure to monitor and update
information on VNEPS, leading to disadvantages for bidders during the bidding
process, 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.
8. Online contractor selection from the
effective date of this Decree until December 31, 2024 will be carried out
according to the following roadmap:
a) Organize online contractor selection for
all (100%) packages of investment projects applying competitive bidding,
limited bidding, and domestic shopping method for procurement of goods ,
construction, non-consulting services, consulting services with a fixed budget
not exceeding VND 500 billion, except for mixed packages, packages applying the
two-stage and one-envelope method, two-stage and two-envelope method,
international bidding;
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c) Organize online contractor selection for
all (100%) packages of procurement estimates applying competitive bidding,
limited bidding, and domestic shopping method, except for mixed packages,
packages applying the two-stage and one-envelope method, two-stage and
two-envelope method, international bidding;
d) For packages applying online contractor
selection, approval for EOI requests, prequalification documents, bidding
documents, shortlisting selection results, contractor selection results on
VNEPS will be implemented from December 1, 2024.
9. Cases of non-bidding on VNEPS
specified in Clause 5, Article 50 of the Bidding Law include:
a) Packages that apply the two-stage and
one-envelope method, two-stage and two-envelope method, international bidding;
b) Packages that apply the form of direct
contracting, direct procurement, self-performance, price negotiation, contractor
selection in special case, community-involved packages, selection of individual
consultants under shortened procedures. For these contractor selection methods,
electronic contract signing is carried out on a basis consistent with the
features and development of VNEPS;
c) Projects, procurement estimates,
packages have 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.
In case of publicizing information about
the project, procurement estimate, package, specific contractor selection plan,
EOI request, prequalification documents, bidding documents, contractor
selection result according to Article 8 of the Bidding Law that may lead to the
consequences specified in this point, the employer shall report to the
competent person to consider approval in the specific contractor selection plan
for not organizing online bidding.
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 report to the competent person on
how to provide such information. Confidential information must not be
disclosed on VNEPS; other information may be posted and online contractor
selection may be organized;
d) The package exceeds the technical
infrastructure capacity of VNEPS;
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Section 2. ONLINE QUOTATION
Article 98. 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;
c) Groups of goods or services that can
apply for online quotation include: materials, fuel, basic construction
materials (iron ore, road aggregate, construction materials, copper pipes and
other materials; standardized information technology equipment, including
computers, ink cartridges, modems and other equipment; printing paper,
photocopy paper, simple supplies, light bulbs; purchase of the right to use
commercial software; energy, coal or gas; chemistry; shipping services;
cleaning service; maintenance service; other goods or services that meet the
requirements of Points a and b of this Clause.
3. Online quotation under shortened
procedures applies in one or more of the following cases:
a) Packages for procurement of goods and
provision of non-consulting services with a value of no more than 300 million
VND for procurement estimates;
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c) Packages for goods and 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.
Article 99. 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 ranking order of bidders corresponding to prices and
factors other than prices (if any) during the online quotation period;
remaining time of the online quotation process.
2. If the bid price is the only factor
allowed to be re-offered and the package is evaluated according to the
least-cost selection and there are many bidders offering the lowest price, the
first bidder with the lowest price wins the bid.
3. If the least-cost selection is not
used, VNEPS automatically ranks bidders according to the evaluation criteria in
the bidding documents and if there are multiple bidders ranked first, the bid
will be awarded to the bidder who first achieved the first rank.
4. The end time for online quotation
must be during business hours.
5. The offered price must not be higher
than the fixed budget and must not be higher than the lowest offered price if
the price is the only factor being re-offered. If the bid prices after discount (if any)
of all technically-responsive bidders exceed the fixed budget 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 131 of this Decree.
Article 100. Ordinary online quotation
process
1. On the basis of the approved
specific contractor selection plan, the organization of online quotation under
ordinary procedures is carried out at the financial evaluation step, as a basis
for comparing bids and ranking bidders.
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The appraisal of and approval for bidding
documents shall comply with Clause 24, Article 25 of this Decree. For packages with a
fixed budget 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 24 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.
4. Organization of contractor selection:
The contractor selection organization shall
comply with Article 26 of this Decree.
5. Evaluation of bids and organization
of online quotation:
a) The bid evaluation shall comply with
Article 97 of this Decree;
b) The list of technically-responsive
bidders to be appraised and approved. Based on the list of technically-responsive
bidders, the procuring entity 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 mathematical 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);
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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.
7. Submission, appraisal of, approval
for, and publication of contractor selection result:
The submission, appraisal of, approval for,
and publicization of contractor selection result shall comply with Article 31
of this Decree.
8. Finalization, signing, and
management of 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 finalization,
signing, and management of contracts shall comply with Article 32 and Article
33 of this Decree.
Article 101. Shortened online quotation
process
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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;
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.
2. After the employer approves the
invitation to bid, the procuring entity posts the invitation to bid on VNEPS at
least 3 working days before online quotation start time. The minimum online
quotation time is 24 hours from the time the online quotation starts.
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.
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 wins the bid but does not comply with the
commitment as outlined in the letter of bid, the situation will be addressed in
accordance with the terms and conditions specified in that document (publicize
the bidder's name on VNEPS and lock the account within 6 months from the date
on which the Ministry of Planning and Investment receives the employer's
written request), 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;
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6. Submission, appraisal of, approval
for, and publication of contractor selection result:
The submission, appraisal of, approval for,
and publicization of contractor selection result shall comply with Article 31
of this Decree.
7. Finalization, signing, and
management of 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 finalization,
signing, and management of contracts shall comply with Article 32 and Article
33 of this Decree.
Section 3. ONLINE PROCUREMENT
Article 102. Form of online procurement
1. Online procurement must be approved
in the specific contractor selection plan and is applied to goods or services
of packages included in the procurement estimate with a fixed budget not
exceeding 100 million VND; packages for procurement of goods or services under
projects of state-owned enterprises, enterprises with 100% charter capital held
by state-owned enterprises and projects under the Law on Public Investment with
a fixed budget 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 12 months from the effective date of the contract or effective
period of the framework agreement.
Article 103. Online procurement process
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2. Based on the
list of goods or services specified in Clause 1 of this Article, employers and
procuring parties wishing to procure online can order goods or services
directly on VNEPS. Order for each good and service
includes: 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, the VNEPS automatically sends a notification to the
bidder who won the bid in the previous centralized procurement. The bidder
shall either confirm or reject the order on the VNEPS within 3 days of
receiving the order.
4. VNEPS displays
a notice of confirmation or rejection of that order and sends a notice to the
procurement unit.
5. Publicize the
online procurement result.
6. The
finalization, signing, and management of contracts shall comply with Article 32
and Article 33 of this Decree. The bidder
manages confirmed orders and is responsible for providing goods or services as
requested, ensuring quality and schedule.
Article 104. 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
CONTRACT
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1. The contract
signed between the employer (or authorized agency) and the successful bidder 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 bidder is responsible for signing
the contract; for a joint venture bidder, the legal representative of the joint
venture parties is responsible for signing the contract according to Clause 3,
Article 67 of the Bidding Law. 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 finalization results, and contractor
selection results based on the requirements of the package and instructions
from specialized regulatory agencies.
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;
b) The bidder's detailed proposals in the bids and proposals
approved by the employer and the matters agreed between the two parties during
the contract negotiation process (if any), contract finalization;
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 liquidation principles comply
with Articles 108, 109, 110, 111, 112 and 113 of this Decree.
Article 106. Modifications of
contract
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2. The parties
can agree in the contract on the procedures for modifying the contract
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;
d) Additional volume and quantity of work under the purchase
option in addition to the volume and quantity stated in the contract. In this case,
the contract modification document must clearly stipulate the volume, value,
delivery time or service completion time for additional work and other
necessary matters. Delivery time or service completion
time for additional work may extend beyond the original contract performance
period, but this extension must be approved by a competent person. The employer
may choose to purchase additional quantities, but the total number of items
purchased cannot exceed the maximum limit specified in the respective contractor
selection plan.
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;
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3. When the price
index and other factors fluctuate according to the instructions of the Ministry
of Construction, employers and bidders 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 93 of this Decree.
5. Situations
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 107 of this Decree;
b) Increase or decrease volume for fixed unit price
contracts, adjustable unit price contracts; for packages of goods procurement
and non-consulting services that apply fixed unit price contracts, adjustable
unit price contracts, the addition of volume under the additional purchase
option will apply contract modifications according to Point d, Clause 2 of this
Article;
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 107. Adjustment of contract price due to inflation
and deflation
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2. The
application of price slippage adjustment must be specified in the bidding
documents or RFPs and be finalized during the contract negotiation process (if
any) and contract finalization. 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 price slippage
for each contract instalment. The content of
the contract price must include a provisional price slippage value calculated
on the basis of expected price slippage and legal regulations on cost
management as a basis for payment. The management
and payment of price slippage according to the terms and conditions already in
the contract, does not require signing a contract modification document; if
price fluctuations cause subsequent instalments and total contract price to
exceed the originally fixed budget, the employer must seek approval from the
competent person. If approved by the competent person,
the parties sign a contract modification document before making payment.
3. Contract price
slippage 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 finalization. The index
source can be specified according to the price index announced by the General
Statistics Office of Vietnam or the construction price index announced by the
Ministry of Construction and the Provincial People's Committee. 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;
c) Other adjustment methods specified in Points a and b of
this Clause as per the law.
Article 108. 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 finalization, 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 109. Currency and form of contract payment
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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 110. Contract advance
1. A contract
advance is a sum of money paid upfront to the bidder to carry out the work
under the contract.
2. Depending on
the scale and nature of the package, determine the advance level in accordance
with law (if any). The contract must clearly specify
the following regarding the contract advance: advance amount, advance time, bank
guarantee for advance, advance recovery; responsibilities of the parties in the
management and use of advance funds; collecting the value of the advance
guarantee if the advance funds are used for improper purposes.
3. The bidder
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 111. Contract payment
1. The contract
price and specific payment terms stated in the contract are the basis for
payment to the bidder.
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 bidder's financial
invoice for materials, machinery, equipment, and other inputs.
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Article 112. 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:
The payment value is determined on the basis of the fixed
unit price in the contract multiplied by the volume and amount of actual work
that the bidder has performed and has been accepted corresponding to the
completion milestones and terms in the contract.
3. For adjustable
unit price contracts:
The payment value is determined on the basis of the unit
price or adjusted unit price according to the contract multiplied by the volume
and amount of actual work that the bidder 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, etc., bidder’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;
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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 bidder 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:
The payment value is determined on the basis of the actual
value of the work that has passed the taking-over inspection corresponding to
the payment period agreed upon by the parties in the contract, plus or minus
the payment increase/payment deduction value according to regulations in the
contract based on output results.
7. For
cost-plus-a-fee contracts:
Payment is based on the actual costs the bidder has spent to
perform the contract, plus an appropriate profit amount for the bidder based on
the provisions of the contract.
8. Processing of
payment documents is carried out within 14 days from the date the bidder
submits all payment documents to the employer.
Article 113. Contract liquidation
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a) The parties fulfill their obligations under the signed
contract;
b) The contract is terminated (cancelled) as per the law.
2. The parties
can agree that the contract will automatically expire upon fulfilling the
obligations under the signed contract or signing a contract liquidation record. The contract
liquidation 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 liquidation
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 IX
INSPECTION
AND MONITORING OF BIDDING ACTIVITIES AND ADDRESSING OF VIOLATIONS IN BIDDING
Section 1. INSPECTION OF BIDDING ACTIVITIES
Article 114. Responsibilities for inspecting bidding activities
1. Ministry of
Planning and Investment:
a) Lead the inspection of
bidding activities at ministries, ministerial-level agencies, Governmental
agencies, and other central and local agencies according to periodic plans
approved by the Minister of Planning and Investment;
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c) Agencies tasked with managing bidding activities under
the Ministry of Planning and Investment assist the Minister of Planning and
Investment in inspecting bidding activities according to Point a of
this clause.
2. Ministries,
ministerial-level agencies, Governmental agencies, and other central agencies
shall lead the inspection of bidding activities for projects for projects in
which investment is decided by the head of central agencies or projects
undertaken by entities under their management.
3. Provincial
People's Committee:
a) Lead the inspection of bidding activities of units under
its management and projects whose investment is decided by the President of the
Provincial People's Committee;
b) The Department of Planning and Investment helps the
Provincial People's Committee inspect bidding activities according to Point a
of this Clause.
4. Competent
persons of state-owned enterprises shall inspect bidding activities for
projects in which they decide to invest, and projects of enterprises in which
they hold 100% of the charter capital.
Article 115. Responsibilities of inspection team and
inspection team members
1. Responsibilities
of the inspection team:
a) Carry out inspection of bidding activities according to
the inspection decision;
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c) Develop a draft inspection report and share the draft
inspection report with organizations and individuals of the inspected entity;
d) Develop draft inspection findings.
2. Responsibilities
of the inspection team leader:
a) Lead the formulation of and approval for detailed
inspection plans;
b) Assign tasks to inspection team members when performing
inspection.
3. Responsibilities
of the inspection team members:
a) Carry out inspection in accordance with regulations and
as assigned by the inspection team leader;
b) Prepare reports on individual inspection results as
assigned;
c) Report to the inspection team leader on the results of
the inspection they conducted;
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Article 116. Responsibilities of organizations and
individuals of the inspected entity and related organizations and individuals
1. Responsibilities
of organizations and individuals in the inspected entity:
a) Coordinate with and facilitate the inspection team during
the inspection process;
b) Report honestly, provide complete information and
documents promptly and take legal responsibility for the information provided;
c) Explain the contents in the draft inspection report (if
any);
d) Implement the suggesions in the inspection
findings of the inspection agency;
dd) Send a feedback report on the implementation of suggestions
in the inspection findings to the inspection agency as prescribed in Clause 4,
Article 121 of this Decree.
2. Responsibilities
of relevant organizations and individuals:
a) Report honestly, provide complete information and
documents promptly when requested by the inspection team and take legal
responsibility for the information provided;
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Article 118. 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. Ensure no
overlap or duplication in scope, inspected entities, inspected matters, and
timing among competent inspection agencies.
5. If there is
overlap in the inspected entities, priority shall be given to inspection by
specialized authorities or superior agencies.
Article 118. 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;
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c) If it is necessary to revise the approved periodic
inspection plan, the lead inspection agency shall make a revision plan and
submit it to the head of the inspection agency for approval;
d) The approved periodic inspection plan and revision 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 revision plan (if any)
are 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. Surprise
inspection:
a) Surprise inspection decided by the head of the inspection
agency;
b) Surprise inspections are carried out for specific cases
at the request of the Prime Minister, heads of central agencies, President of
the Provincial People's Committee, and heads of inspection agencies.
Article 119. 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. Inspection visit
is the main method applied
and is carried out directly at the premises of the inspected entity.
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Article 120. Inspection visit duration and budget for
inspecting bidding activities
1. Inspection
visit duration:
a) The maximum duration of an inspection visit at the
premises is 7 working days from the date of announcement of the inspection
decision, except for the cases specified in Point b of this Clause. Within a
maximum period of 30 days from the date of completion of the inspection visit,
the inspection team must make an inspection report. The head of
the inspection agency approves the inspection findings within a maximum period
of 20 days from the date the inspection team submits the draft inspection
findings;
b) If the inspection has complex aspects and involves many
inspected entities, the maximum duration for inspection visit at the premises
is 15 days from the date of announcement of the inspection decision. Within a
maximum period of 40 days from the date of completion of the inspection visit,
the inspection team must make an inspection report. The head of
the inspection agency approves the inspection findings within a maximum period
of 30 days from the date the inspection team submits the draft inspection
findings.
2. Budget for
inspection:
a) Budget for inspection are allocated in the annual current
expenditure estimates of the lead inspection agency of bidding activities under
ministries, ministerial-level agencies, Governmental agencies, and other
central agencies, Department of Planning and Investment according to the State
Budget Law and guiding documents;
b) State-owned enterprises arrange their own funds to carry
out inspection.
Article 121. Inspection visit process
1. Preparation
for inspection visit:
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a) Collect information and documents related to the
inspection; In case of surprise inspection, the collection of information and
documents is done before or after the inspection decision;
b) Determine the composition of the inspection team and
participating members of the coordinating agencies (if any);
c) Seek approval for the inspection decision from the head
of the inspection agency;
d) The inspection team leader approves the detailed
inspection plan after the inspection decision is approved; if the inspection
has complex aspects, involves many inspected entities or requires a surprise
inspection, the inspection team leader 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;
e) Send a notice together with a detailed inspection plan
and report outline to the inspected entity, the superior agency of the
inspected entity (if any) and relevant entities (if any). The written
notice is sent to the inspected entity at least 10 days before the inspection
date.
2. Organization
of inspection visit:
a) The inspection team leader announces the inspection
decision when starting to undertake an inspection visit to the premises of the
inspected entity, and prepares a record to announce the inspection decision;
b) The inspection team collects, researches, analyzes, and
evaluates information and documents related to the inspected bidding
activities, including the information specified in Clause 1, Article 124 of the
Decree for the inspected entity; create an evaluation and comment schedule for
each inspection matter; for presenting the inspection findings. During the
inspection, the inspection team can discuss with the inspected entities and
conduct on-site inspections when necessary. Depending on
the scale and nature of the inspection, the inspection team leader decides to
make a record confirming the inspected matters;
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d) After completing the inspection visit at the premises,
the inspection team develops a draft inspection report and submits it to the
inspection team leader for review and decision before sending it to the
inspected entity for comments. The draft
inspection report is sent to the inspected entity in writing or simultaneously
by text, fax and email;
dd) Based on the draft inspection report and explanations of
the inspected entity, the inspection team is responsible for completing the
inspection report.
3. Inspection
findings:
a) Based on the inspection report, the inspection team
drafts inspection findings to submit to the head of the inspection agency for
review and approval. Inspection findings must include
action plans to address violations of the bidding law.
b) Inspection findings are sent to the inspected entity and
the superior agency of the inspected entity (if any) and relevant units (if
necessary).
4. Monitoring of
the implementation of suggestions in inspection findings:
a) The head of the inspected entity organizes and reports
the implementation of suggestions in the inspection findings to the competent
inspection agency within the time limit specified in the inspection findings. The report
includes the following: action plans
for inadequacies and nonconformities mentioned in the inspection findings;
actions to rectify bidding activities; actions plans for violations of
organizations and individuals according to the recommendations of the
inspection team (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 121. Written inspection process
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The inspection agency or the inspection team 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;
dd) Responsibilities of the inspected entity;
e) Other related matters.
2. Organization
of inspection:
a) Based on the report of the inspected entity, the lead
inspection agency collects, researches, analyzes and evaluates information,
including the information specified in Clause 1, Article 124 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);
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3. Inspection
findings and monitoring of implementation of suggestions in inspection findings
are carried out according to Clauses 3 and 4, Article 121 of this Decree.
Section 2. MONITORING OF BIDDING ACTIVITIES
Article 123. Supervision of bidding activities by competent
persons
1. Authority to
supervise bidding activities:
a) In projects where the Prime Minister is a competent
person, the Prime Minister may designate a lead supervisory agency, based on
the project's or package’s scale and nature.
b) The competent person will designate individuals or
affiliated agencies with expertise in independent bidding with the employer,
procuring entity, and expert team to supervise bidding activities for packages
of the project and procurement estimates within their scope of management when
necessary.
2. Procedures for
supervision of bidding activities by competent persons:
a) Preparation for supervision: identify
packages that need supervision in the specific contractor selection plan;
notify employers about individuals and units performing supervision
(hereinafter referred to as supervisors) and the
supervision matters in bidding activities. The supervisors
must be disclosed in the bidding documents or RFPs;
b) Organization of supervision: The supervisor
directly communicates, prepares working minutes or requests relevant
organizations and individuals to report in writing on the supervised matters. The employer,
procuring entity and relevant organizations and individuals are responsible for
providing records and documents at the request of the supervisor;
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3. Responsibilities
of supervisors of bidding activities:
a) Honesty and objectivity; do not cause trouble to the
employer or the procuring entity during the supervision process;
b) Request the employer and procuring entity to provide
relevant records and documents to facilitate the supervision process;
c) Receive feedback from bidders and organizations and
individuals related to the contractor selection process for the package being
supervised;
d) Ensure confidentiality of information as per the law;
dd) Take responsibility for the results of their
supervision;
e) Carry out other responsibilities according to the law on
bidding and other relevant laws.
Article 124. Regular supervision of bidding activities by bidding
authorities under ministries, agencies and localities
1. Regular
supervision of bidding actvities is imposed by bidding
authorities under ministries, agencies, and
localities whenever there are indications that competition, fairness,
transparency, or economic efficiency may be compromised according to
information compiled on VNEPS or according to recommendations and feedback from
relevant organizations and individuals, including:
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b) The employer violates regulations on time for posting
specific contractor selection plans, contractor selection results and other
information;
c) The employer has a low average number of bidders of
competitive bidding, limited bidding, shopping method, and online quotation
under ordinary procedures;
d) The employer has many packages and has recommendations on
bidding documents and contractor selection results;
dd) Bidding documents are alleged to contain provisions that
restrict competition;
e) Other related information.
2. Based on the
results of synthesizing the matters and information specified in Clause 1 of
this Article, bidding authorities under ministries, agencies, and localities
promptly implement the following measures:
a) Rectify issues in bidding activities in localities and
sectors under management;
b) Request the employer and competent person to consider
taking actions against organizations and individuals that commit violations (if
any).
Section 3. ADDRESSING OF VIOLATIONS
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1. The bidding
disqualification periods for
organizations and individuals committing violations, including individuals within
the employer or procuring entity:
a) The bidding disqualification period is 3 to 5 years for one
of the violations of Clauses 1, 2, 4 and Point a, Clause 3, Article 16 of the
Bidding Law;
b) The bidding disqualification period is 1 year to 3 years
for one of the violations of Points b and c, Clause 3; Clause 5; Points g, h,
i, k, l Clause 6; Clause 8; Clause 9, Article 16 of the Bidding Law;
c) The bidding disqualification period is 6 months to 1 year
for one 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 disqualification
applies to all joint venture parties if any joint venture
parties violate Article 16 of the Bidding Law, except for the following case: If a joint
venture party violates Point c, Clause 3, Clause 4, Points b, c, d, dd Clause
5, Points a, b, c, d, dd, e, g Clause 6, Clause 7, a, Point b, Clause 8,
Article 16 of the Bidding Law, only that party is disqualified from bidding,
not remaining parties of the joint venture.
2. If an
organization or individual commits 2 or more violations under the same
management scope of the competent person and has not previously faced
disqualification from bidding, the competent person shall issue a decision on
total bidding disqualification period, which equals the sum of individual
violation periods but not exceeding 5 years.
3. The statute of
limitations for applying the bidding disqualification period specified in
Clause 1 of this Article is 10 years from the date of the violation.
4. The competent
person shall consider issuing a decision on bidding disqualification within the
scope of their management within 15 days from the date of receipt of one of the
following documents:
a) Written request from the employer accompanied by
documents proving the violation;
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c) Results of resolving petitions of the Advisory Council;
d) Other documents of competent regulatory agencies that
identify violations.
5. Depending on
the nature and severity of the violation, the competent person as prescribed in
Clause 4 of this Article shall issue a decision on bidding disqualification or
request the head of the central agency or the President of the Provincial
People's Committee to consider issuing a decision on bidding disqualification
within the management scope of ministry, branch or locality. The head of
the central agency or the President of the Provincial People's Committee shall
consider issuing a decision on bidding disqualification within 15 days from the
date of receipt of the written request for bidding disqualification from the
competent person.
6. Pursuant to
the decision on bidding disqualification posted on VNEPS, the Minister of
Planning and Investment shall issue a decision on bidding disqualification
nationwide in 5-year period against the organizations and individuals
previously faced three separate disqualification decisions from heads of
central agency or Presidents of the Provincial People's Committees.
7. A decision on
bidding disqualification shall contain:
a) Name of competent person;
b) Name of the violating organization or individual;
c) The disqualification period, including: the
disqualification period for the violation (content of the violation, legal
basis for addressing the violation); disqualification period for subsequent
violations (if any); total disqualification period;
d) Disqualification scope;
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8. Organizations
and individuals disqualified from bidding can file a lawsuit in court if they
disagree with the disqualification decision, following civil procedure law.
9. Expert team or
appraisal team members who break Article 16 of the Bidding Law will face the
consequences outlined in Clause 1 of this Article, including the revocation of
their bidding professional certificates.
Chapter X
MATTERS
AND RESPONSIBILITIES OF APPRAISAL IN CONTRACTOR SELECTION
Article 126. Responsibilities of the appraisal
team
1. The Ministry
of Planning and Investment shall appraise the following:
a) Overall contractor selection plans and specific contractor
selection plans that are under the approval authority of the Prime Minister;
b) Specific contractor selection plans in special case that
are subject to decision of the Prime Minister according to Point c, Clause 1,
Article 29 of the Bidding Law and other cases at the request of the Prime
Minister.
2. For projects,
the responsibility for appraising overall contractor selection plans and
specific contractor selection plans if the overall contractor selection plan is
not applied is prescribed as follows:
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b) Agencies and organizations assigned by the head of a
central agency, a competent person of a state-owned enterprise, or an
enterprise with 100% charter capital held by a state-owned enterprise shall
appraise overall contractor selection plans and specific contractor selection
plans for projects under their authority;
c) Specialized agencies under the district People's Committee,
as per the law on local government organization, shall appraise overall contractor
selection plans and specific contractor selection plan for projects decided by
the President of the District People's Committee;
d) The assisting agencies shall appraise overall contractor
selection plans and specific contractor selection plan for projects decided by
the President of the Commune-level People's Committee and the head of other
local agencies;
dd) The employer or the head of an
agency assigned to prepare the project (if the employer has not
been identified) shall assign an organization or individual within
their agency to appraise the specific contractor selection plan of a
pre-bid package specified in Article 42 of the Bidding Law or a package that
needs to be performed before the decision to approve the project.
3. In projects
where an overall contractor selection plan is implemented, the employer
appoints an organization or individual within their agency to appraise the
specific contractor selection plan.
4. For
procurement estimates, responsibility for appraising the specific contractor
selection plan is regulated as follows:
a) For packages for procurement of assets and goods
(including purchasing drugs, chemicals, testing supplies, medical equipment), and
services in which the head of a central agency is the competent person, the
head of the central agency shall designate an agency, organization, and
department responsible for appraising the specific contractor selection plan;
b) For packages to purchase drugs, chemicals, testing
supplies, and medical equipment for which the President of the Provincial
People's Committee is the competent person, the Department of Health shall lead
the appraisal of the specific contractor selection plan;
c) For packages other than those for purchasing drugs,
chemicals, testing supplies, and medical equipment in which the President of
the Provincial People's Committee is the competent person, the President of the
Provincial People's Committee shall designate the Department of Finance or a
specialized agency under the Provincial People's Committee, as per the law on
local government organization, to lead the appraisal of the specific contractor
selection plan;
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5. If the head of
a central agency, President of People's Committee, competent person of
state-owned enterprise, enterprise with 100% charter capital held by
state-owned enterprise, other another competent person authorize the approval
of an overall contractor selection plan or specific contractor selection plan
to another person, the authorized person shall appraise that overall contractor
selection plan or specific contractor selection plan.
6. The employer
shall appraise the following: EOI requests,
prequalification documents, bidding documents, RFPs, results of evaluation of
EOI responses, 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.
7. In case the
organization or individual assigned to appraise does not have sufficient
capacity, then choose a consulting organization with sufficient capacity and
experience to do the appraisal.
Article 127. Appraisal of overall contractor selection plan
1. Documents
submitted for appraisal and approval include:
a) Request for approval for the overall contractor selection
plan;
b) Draft overall contractor selection plan;
c) Supporting documents for formulating
the overall contractor selection plan;
d) Other relevant documents.
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a) Check the conformity of the contents of the overall contractor
selection plan specified in Article 15 of this Decree;
b) Other related contents.
3. Contents of
the appraisal report include:
a) Overview of the main contents of the overall contractor
selection plan, the legal grounds for preparing
the overall contractor selection plan;
b) Comments and opinions of the appraisal team on the
contents of the overall contractor selection plan;
c) Proposals
and recommendations of the appraisal team on the contents of the overall contractor
selection plan. For contents inconsistent with the draft overall contractor
selection plan, the appraisal team must give specific reasons and propose
solutions to submit to the competent person for consideration and decision;
d) Other
opinions (if any).
4. Before signing
the appraisal report, the appraisal team may convene a meeting with the parties
involved to discuss the report’s content if necessary.
Article 128. Appraisal of specific contractor selection plan
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a) Request for approval for the specific contractor
selection plan;
b) Draft specific contractor selection plan;
c) Supporting documents for formulating the specific contractor
selection plan;
d) Other relevant documents.
2. Matters to be
appraised include:
Appraisal of the specific contractor selection plan entails
a comprehensive examination, evaluation, and provision of comments based on the
law on bidding and relevant laws on the following matters:
a) Legal grounds for making a
specific contractor selection plan:
Consider the appropriateness and completeness of the legal grounds for planning contractor
selection and necessary notes (if any).
For pre-bid packages, a specific contractor selection plan
is made before signing international treaties, agreements on ODA capital and
concessional loans from foreign sponsors according to Article 42 of the Bidding
Law;
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Consider the appropriateness of dividing a project or
procurement estimate into packages; the division into packages must be based on
technical aspects, implementation sequence, synchronization of the project or
procurement estimate, and reasonableness of package scale;
c) Document submitted for approval for the specific contractor
selection plan includes the following: review the
following aspects of the specific contractor selection plan: appropriateness of
the content, compliance with the Bidding Law and other relevant laws,
consistency with project or procurement estimate requirements, and any other
necessary considerations; review the total value of the following in relation
to the total project investment or procurement estimate: portions of the work
performed, portions of the work not suitable for any contractor selection
method, portions of the work included in the specific contractor selection
plan, and any portions of the work that do not meet the criteria for a specific
contractor selection plan. For
procurement estimates, if the package has a performance period longer than 1
year, consider the conformity of the total value of the work portions with the
procurement estimate of the budget year, fiscal year and procurement estimates
for the following budget years and fiscal years.
3. Contents of
the appraisal report include:
a) Overview of main contents of the project or procurement
estimate;
b) Comments and opinions of the appraisal team on the legal
grounds, compliance with regulations of law on bidding and other relevant laws;
agreement or disagreement on the content of the draft specific contractor
selection plan;
c) Proposals and recommendations of the appraisal team on
the approval for the specific contractor selection plan. For contents
inconsistent with the draft specific contractor selection plan, the appraisal
team must give specific reasons and propose solutions to submit to the
competent person for consideration and decision;
d) Other opinions (if any).
Article 129. Appraisal of EOI 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, or RFPs;
c) Decision on project approval (if any), decision on approval
for specific contractor selection plan;
d) Other relevant documents.
2. Matters to be
appraised include:
a) Check supporting
documents for formulating the EOI requests, prequalification documents, bidding
documents, or RFPs;
b) Verify if the contents of the EOI
requests, prequalification documents, bidding documents, and RFPs
conform with the scale, objectives, scope of work, and performance duration of
the project, procurement estimate, package; conform with the documents,
estimates of the package, requirements on characteristics and technical
specifications of the goods (if any); conform with meeting minutes between the
procuring entity and the bidders in first stage (for packages applying the
two-stage method); or conform with the law on bidding and other relevant laws;
c) Consider different opinions (if any) between
organizations and individuals participating in preparing the EOI requests,
prequalification documents, bidding documents, and RFPs;
d) Other related contents.
3. Contents of
the appraisal report include:
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b) Comments and opinions of the appraisal team on the legal
grounds, compliance with regulations of law on bidding and other 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; on action plans to address non-compliance in EOI requests,
prequalification documents, bidding documents, and RFPs with the law on bidding
and other relevant laws; on 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 can convene a meeting between the
parties to resolve remaining issues if necessary.
Article 130. 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) The results of evaluating EOI
responses, the results of evaluating prequalification applications,
and the contractor selection results must be appraised before approval;
b) For packages applying the single-stage and one-envelope
method, the contractor selection result will 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, packages that apply the form of online quotation under
ordinary procedures, the list of technically-responsive bidders must be
evaluated before approval;
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dd) For packages applying the two-stage and two-envelope
method, the first stage will only conduct appraisal of the list of
technically-responsive bidders, the appraisal will be carried out in the second
stage 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 is evaluated 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
can convene a meeting between the parties to resolve remaining issues if
necessary;
g) It is not required to appraise the list of ranking of
bidders.
2. Appraisal of
results of evaluation of EOI responses and prequalification applications:
a) Documents submitted for appraisal and approval include:
A request for approval for the results of evaluation of the
EOI responses and
prequalification applications of the
procuring entity, which must clearly state the procuring entity's opinions on
the proposals and recommendations of the expert team;
Report on the results of evaluation of EOI responses and
prequalification applications of the expert team;
EOI requests, prequalification documents, bid opening
minutes, EOI responses, prequalification applications of bidders and other
relevant documents.
b) Matters to be appraised include:
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Check compliance with time regulations during the invitation
of interest and prequalification process;
Check the evaluation of EOI responses, prequalification
applications; compliance with regulations of the law on bidding and other
relevant laws during the evaluation of EOI responses, prequalification
applications;
Consider different opinions (if any) between the procuring
entity and the expert team; between individuals in the expert team;
Other related contents.
c) Contents of the appraisal report include:
Overview of the main content of the project, procurement
estimate, package, legal grounds for invitation of interest, organization of
prequalification;
A brief statement describing process of invitation of
interest, organization of prequalification and request of the procuring entity
on the results of evaluation of EOI responses and prequalification
applications;
Comments and opinions of the appraisal team on the legal
grounds, compliance with legal regulations on bidding and other relevant laws;
assurance of competitiveness, fairness, and transparency in the process of
inviting interest and organizing prequalification; on agreement or disagreement
on the results of evaluating EOI responses and prequalification applications;
Proposals and recommendations of the appraisal team on the
results of evaluating EOI responses and prequalification applications; on
action plans to address non-compliance with the law on bidding and other
relevant laws during the process of inviting interests and organizing
prequalification; on action plans to address inconclusive results in evaluation
of EOI responses and prequalification applications;
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3. Appraisal of
the list of technically-responsive bidders for packages of consulting services,
non-consulting services, procurement of goods, and construction under
two-envelope method:
a) Documents submitted for appraisal and approval include:
Request for approval for the list of technically-responsive
bidders of the procuring entity, which must clearly state the procuring
entity's opinions on the proposals and recommendations of the expert team;
Report on the results of the evaluation of technical
proposals by the expert team;
Bidding documents, RFPs, bid opening minutes, technical
proposals of bidders and other relevant documents.
b) Matters to be appraised include:
Check the evaluation of technical proposals; compliance with
regulations of the law on bidding and other relevant laws during the evaluation
of technical proposals;
Consider different opinions (if any) between the procuring
entity and the expert team; between individuals in the expert team;
Other related contents.
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Brief statement of the process of organizing contractor
selection (from posting the invitation to bid to requesting the appraisal of
the list of technically-responsive bidders) and the procuring entity's request
for a list of technically-responsive bidders;
Comments and opinions of the appraisal team on the legal
grounds, compliance with legal regulations on bidding and other relevant laws;
on assurance of competitiveness, fairness, and transparency in the process of
selecting a list of technically-responsive bidders; agreement or disagreement
on the results of selecting a list of technically-responsive bidders; on action
plans to address non-compliance with regulations of the law on bidding and
other relevant laws during the evaluation of technical proposals; on action
plans to address inconclusive results in selecting a list of
technically-responsive bidders;
Other opinions (if any).
4. Appraisal of contractor
selection results:
a) Documents submitted for appraisal and approval include:
Request for approval for the contractor selection results of
the procuring entity, which must clearly state the procuring entity's opinions
on the proposals and recommendations of the expert team;
Report on the results of evaluation of bids and proposals
from the expert team;
Minutes of contract negotiations (if any);
Photocopies of the following: 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 photocopies of the
financial proposals of the technically-responsive bidders will be sent.
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Check supporting documents for organizing contractor
selection;
Check compliance with time regulations during the process of
organizing contractor selection;
Check the 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; check the compliance with
regulations of law on bidding and other relevant laws during the evaluation of
bids and proposals;
Check the evaluation of financial proposals for packages
applying the single-stage and two-envelope method; check the compliance with
regulations of law on bidding and other relevant laws during the evaluation of
financial proposals;
Check compliance with regulations of the law on bidding and
other relevant laws during the contract negotiation process (if any); check the
compatibility between contract negotiation results and contractor selection
results (if any), bidder ranking list, bidding documents, RFPs and bids,
proposals;
Consider different opinions (if any) between the procuring
entity and the expert team; between individuals in the expert team;
Other related contents.
c) Contents of the appraisal report include:
Overview of the main content of the project, procurement
estimate, package, legal grounds for organizing contractor selection;
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Summary of proposals and recommendations of the procuring
entity on the contractor selection result;
Comments and opinions of the appraisal team on the legal
grounds, compliance with legal regulations on bidding and other relevant laws;
on assurance of competitiveness, fairness, transparency, and economic
efficiency in the contractor selection process; agreement or disagreement on
the contractor selection results; on action plans to address non-compliance
with regulations of the law on bidding and other relevant laws during the contractor
selection process; on action plans to address inconclusive results in contractor
selection;
Other opinions (if any).
Chapter XI
OTHER
MATTERS
Article 131. Handling situations in online and offline
bidding
1. Any
modifications to the fixed budget or package content must necessitate a
corresponding adjustment to the specific contractor selection plan, adhering to
legal requirements before the bid submission deadline, except for the cases
specified in Clause 2 and Clause 8 of this Article.
2. If, after
approving the specific contractor selection plan, a package receives an
approved estimate that differs from the fixed budget outlined in the plan
(either higher or lower), the estimate will supersede the fixed budget in the
plan, following these principles:
a) If the approved estimate is higher than the fixed budget
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 does not have to 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;
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The approved estimate after the specific contractor
selection plan is approved according to this Clause must be posted on VNEPS at
least 5 days before the bid submission deadline.
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 immediate issuance of bidding documents to
short-listed bidders.
4. If no bidder
participates in bidding by the bid submission deadline, the employer will take
one of the following actions:
a) Cancel the EOI request, prequalification document, and
invitation to bid to re-invite bids. In this case,
before re-inviting 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;
b) Extend the bid submission deadline for at least 5 days
for packages that are currently seeking EOIs or prequalification applications,
construction packages, mixed packages with a fixed budget not exceeding 20
billion VND, packages for procurement of goods and non-consulting services with
a fixed budget not exceeding 10 billion VND; extend the bid submission deadline
for at least 10 days for other packages.
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 or 2 bidders submit EOI responses, prequalification applications, or
bids, the employer shall choose one of two approaches within 4 hours from the
bid submission deadline:
a) Allow extending the bid submission deadline to increase
the number of bidders submitting EOI responses, prequalification applications,
and bids. In this case, the new deadline for bid submission and
corresponding deadlines must be clearly specified so that the bidder has enough
time to amend their EOI responses, prequalification applications, or bids;
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6. For situations
as prescribed in Clause 4 of this Article and bid cancellation as prescribed in
Clause 1, Article 17 of the Bidding Law, the originally planned start date for contractor
selection in the specific contractor selection plan does not need to be
changed.
7. If the first
ranked bidder’s bid price (after error correction, deviation adjustment, and
any discounts) exceeds the fixed budget and at least 1 bidder in the ranked
list’s bid price (after error correction, deviation adjustment, and any
discounts) does not exceed the fixed budget, the first-ranked bidder can be
invited to negotiate the price provided that the final negotiated price cannot
exceed the approved fixed budget. 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 fixed budget, the
employer can choose one or more of the following options:
a) Allow these bidders to re-offer their bid prices if the
fixed budget includes all elements constituting the cost of package
performance;
b) Allow bidders to re-offer their bid prices and also
review the fixed budget and content of approved bidding documents , if
necessary.
If bidders are allowed to re-offer their bid prices, it is
necessary to clearly stipulate the time to prepare and re-bid proposal, but not
more than 10 days from the date on which the procuring entity sends a written
request for re-offering bid prices and clearly stipulate the opening of re-bid
proposal according to the bid opening process specified in Article 26 of this
Decree or re-offering bid prices on VNEPS for online bidding.
If it is necessary to adjust the fixed budget 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 fixed budget 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 can be invited to negotiate the
price, but 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 fixed budget 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, package.
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9. For goods
procurement packages (as prescribed in Clause 2, Article 92 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 fixed budget, 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 packages to organize contractor selection
according to regulations;
b) If a bidder wins all parts of the package, there will be
only one contract for the entire package. If multiple
bidders win different parts of the package, the package will have multiple
contracts corresponding to the specific part(s) which each bidder wins;
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 fixed budget,
causing the total proposed winning price to be over the fixed budget; 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 fixed budget,
causing the total proposed winning price to be over the fixed budget, the
employer can follow the options outlined in Clauses 7 and 8 of this Article to
handle the situations.
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 package falls below 70% of the fixed budget, the employer will
take the following steps:
a) Request the bidder to explain and clarify the feasibility
of their unusually low bid price and the costs that constitute the fixed
budget. 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's explanation is not clear enough or convincing, the employer will not
accept that bid price, and any unusually low prices offered for specific items
that contribute to the overall low bid price can be considered as insufficient
deviations. In such cases, the employer can adjust deviations for these items
following Clause 2, Article 29 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;
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12. For
construction and mixed packages applying international bidding, the employer
can ask the first-ranked bidder to clarify the breakdown of the costs
constituting their bid price in writing, if their bid price seems unbalanced,
like: much higher prices for simple and easy work items or work items likely to
be required beyond what is already listed in the bid price schedule compared to
the package’s estimate, or much lower prices for complex and difficult tasks
compared to the estimate. 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's explanation is not clear enough or convincing, the bid will be
rejected. 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 and must be approved in writing by a competent person.
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 (as defined in Clause 2, Article 29 of this Decree). This
difference is not considered as insufficient deviation.
14. If a company
participating in a bidding process merges with another company, the new
combined company can still take part in the bidding and benefit from the
experience and qualifications of the original company.
15. If an entity
(branch, enterprise, or representative office) undergoes a separation from a
juridical entity according to civil law, the new entity formed from the
separation (bidder) may inherit the bidding experience and qualifications of
the original entity.
16. For packages
that apply contract negotiation (as prescribed in Clause 1, Article 43 of the
Bidding Law), if the first-ranked bidder does not negotiate, refuses to sign
the negotiation minutes, or the negotiation is unsuccessful, the employer can
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 procuring entity reports to the employer to
consider inviting the next bidders (if any) to negotiate the contract; 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 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
according to this point within the validity period of the bid but does not come
to negotiate or negotiates but refuses to sign the negotiation minutes, their
bid security will be forfeited. If the bid of
the next ranked bidder expires, the procuring entity 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 fixed budget, 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;
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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 and must be approved in writing by a competent person. 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 and equal, the following criteria
will be used in order to choose the successful bidder:
a) Award contracts to small- and medium-sized enterprises
owned by women as per the law on supporting small- and medium-sized enterprises
(if any);
b) Award the contract to the bidder with a higher technical
score or fewer technically acceptable criteria (if the package applies the
least-cost selection); award the contract to the 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) Award the contract to a bidder whose head office is
located in the locality where the contract package is performed;
d) Award the contract to a bidder that meets both of these
criteria: employs at least 25% of war invalids or people with disabilities and
they have a labor contract for at least 3 months, still valid at the bid
submission deadline;
dd) Award the contract to a bidder that meets both of these
criteria: employs at least 25% of ethnic minority workers and they have a labor
contract for at least 3 months, still valid at the bid submission deadline;
e) Award the contract to a bidder that meets both of these
criteria: employs at least 25% of female workers and they have a labor contract
for at least 3 months, still valid at the bid submission deadline;
g) Allow these bidders to re-offer bid prices to select the
bidder with the lowest bid price. Bidders cannot
offer a price higher than their previously offered price (after any corrections,
adjustments, or discounts). The
re-offering of bid prices shall comply with Point a, Clause 8 of this Article;
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19. If the
successful bidder fails to finalize and 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) Invite the second-ranked bidder (if any) to finalize 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
finalization.
If the second ranked bidder fails to finalize the contract,
or extend or renew the validity of their bid
and bid security as required, the employer shall consider
following one of the two options specified in Point b or Point c of this
Clause.
The contract finalization shall comply with Article 32 of
this Decree.
The content of contract finalization must be based on the bid
and bid price (after error correction, deviation adjustment, and any discounts)
of the second ranked bidder.
After
finalizing the contract with the second ranked bidder, the employer cancels the
previous decision on approval for contractor selection result and issues the
winning decision to the second ranked bidder before signing the contract with
that bidder.
If the
second-ranked bidder fails to accept the contract finalization results and
fails to 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 finalize the draft contract. If the
third ranked bidder fails to finalize the contract, 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 finalize the contract or
cancel the bid according to Clause 1, Article 17 of the Bidding Law.
The
bidder invited to finalize the contract 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.
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If the
bidder invited to finalize the contract fails to accept the contract
finalization results and fails to sign a contract with the employer, the 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);
b) Pay the bidder for the work portions that the bidder has
performed and have been accepted according to the contract;
c) Terminate the contract with the bidder; for a joint
venture bidder where only one joint venture party violates and is banned from
participating in bidding activities as prescribed in Clause 1, Article 125 of
this Decree, the remaining joint venture parties will not be considered
incomplete contract due to the bidder's fault;
d) Post information about violating bidders on VNEPS within
5 working days from the date of issuance of the decision on contract
termination with the violating bidder, and also send the decision on contract
termination and other documents dealing with violations (if any) to the
Ministry of Planning and Investment for consolidation and monitoring;
dd) After terminating the contract with the previous
successful bidder, 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 the law. If necessary,
the fixed budget can be reviewed and re-approved for the unfinished work to
organize bidding. 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, the procuring
entity, the expert team, or the 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 will take the following actions:
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b) The unfinished work will be separated into a new package
to organize the selection of contractors according to regulations. If necessary,
the fixed budget can be reviewed and re-approved;
c) If more than 70% of the package work is already finished,
and the actions mentioned in points a and b do not make good financial sense,
the competent person will decide whether to continue maintaining the contract
with the successful bidder.
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;
b) Forfeit the contract performance security deposit of all
joint venture parties;
c) Terminate the contract with the violating joint venture
parties; in this case, only the violating parties will be considered to have
failed to complete the contract and their information will be posted on VNEPS;
the remaining parties can continue to perform the contract corresponding to
their work undertaken in the joint venture. Within 5
working days from the date of issuance of the decision on contract termination
with one or several joint venture parties, the employer must post information
about violating joint venture parties on VNEPS; the notice must clearly state
the violation leading to the termination of the contract and send the decision
to the Ministry of Planning and Investment for consolidation and monitoring;
d) The violating party’s work is assigned to the remaining
parties to perform if these parties are competent and experienced to take over. In this case,
the remaining parties must furnish a new performance security deposit
corresponding to the value of the unfinished work of the package;
dd) If the remaining parties refuse to perform or do not
have enough capacity or experience to perform, the employer shall report to the
competent person to allow the violating member's work to be separated 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 bidder
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 consider requesting the competent person to
terminate the contract with that bidder; bidders who breach the contract are
considered to have failed to complete the contract.
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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 fixed budget 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 bidder, it is not allowed to terminate the contract to replace
another bidder. If the contract with a violating bidder must be
terminated to replace a new bidder, post information about the violating bidder
and the substitute bidder on VNEPS within 5 working days from the date of
issuance of the decision on contract termination with the violating bidder, and
also send the decision on contract termination and other documents dealing with
violations (if any) to the Ministry of Planning and Investment for
consolidation and monitoring; The notice
must clearly state the reason for the bidder'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), the employer must report to the competent
person for the employer and bidder to agree on a new schedule and adjust the
workload among the joint venture members accordingly with the shortened
schedule. In this case, the competent person and 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 bidder's employees (who had a valid
employment contract with the bidder at the time of the offense) of a bidding-related
offense that significantly impacted the bidder's ability to win the
contract, the employer can terminate the contract and forfeit the bidder's
performance security deposit; the bidder is only paid for the work performed
and accepted according to the contract. The bidder 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 bidder’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.
27. During the
contract performance, if the bidder requests to switch to a newer version or
production year for certain goods than those specified in the contract because
of practical needs, the employer can agree to this request, but only if all of
these conditions are met:
a) The bidder 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;
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28. If the VNEPS
system experiences a prolonged downtime requiring extensive troubleshooting,
the Ministry of Planning and Investment will issue guidelines on the VNEPS.
These guidelines will outline how to select investors during VNEPS downtime,
including procedures for offline selection.
29. Beyond the
situations outlined in Clauses 1 through 28 of this Article, the employer will
consider taking actions that upholds the bidding objectives of competitiveness,
fairness, transparency, economic efficiency, and accountability.
Article 132. Bidder management
1. Responsibilities
of the bidder:
a) Register on VNEPS as prescribed in Point d, Clause 1,
Article 5 of the Bidding Law before the contractor selection results are
approved;
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 Planning and Investment, specialized
Ministry, and the Department of Planning and Investment in the province where
the project is executed for consolidation and monitoring;
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2. Subcontractor
management:
a) The bidder 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 bidder's obligations. The bidder
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 bidder's needs in implementing the contract; the
subcontractor must meet the capacity and experience requirements of the bidder;
c) The bidder 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 bidder is not required to meet capacity and
experience requirements for the work assigned to these special subcontractors;
d) The bidder shall pay the subcontractors in full and on
schedule according to the agreement between the bidder and the subcontractors.
Chapter XII
IMPLEMENTATION
Article 133. Transitional regulations
1. For any
package for which a specific contractor selection plan has been
approved, but by the effective date of this Decree, the EOI request,
prequalification documents, bidding documents, or RFPs have not been issued and
have contents inconsistent with the Bidding Law No. 22/2023/QH15 and this
Decree, adjustments to the specific contractor selection plan, EOI requests,
prequalification documents, bidding documents, and RFPs must be approved to
comply with the Bidding Law No. 22/2023/QH15 and this Decree.
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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 and the specific contractor selection plan has
content inconsistent with the Bidding Law No. 22/2023/QH15 and this Decree,
this specific contractor selection plan must be adjusted.
2. EOI requests,
prequalification documents, bidding documents, and RFPs issued before January
1, 2024 will continue to be effective according to the Bidding Law No.
43/2013/QH13; Decree No. 63/2014/ND-CP dated June 26, 2014 of the Government;
Decree No. 32/2019/ND-CP dated April 10, 2019 of the Government; Decision No.
17/2019/QD-TTg dated April 8, 2019 of the Prime Minister and Circulars on
guidelines for the Decree.
3. While the
Government has not amended, supplemented, or replaced Decree No. 32/2019/ND-CP,
the ordering and assigning tasks to
provide public products and services using state budget from current expenses
continue to be implemented according to Decree No. 32/2019/ND-CP but must not
violate the Bidding Law No. 22/2023/QH15.
4. While the
Government has not amended, supplemented, or replaced Decree No. 15/2021/ND-CP
dated March 3, 2021; Decree No. 29/2021/ND-CP dated March 26, 2021,
“construction project using state capital other than public investment" is
understood as a construction project that uses state budget capital, national
bonds, government bonds, local government bonds, official development assistance
(ODA), preferential loans from donors, credit capital guaranteed by the
Government, loan capital secured by state-owned assets, development investment
capital of state-owned enterprises, land use rights value but excluding public
investment capital as per the law on public investment.
5. If a project
is divided into component projects, independent operation or compensation,
support and resettlement work is divided into separate sub-projects according
to legal regulations, the bidders to perform these component projects and
sub-projects shall be selected following the same procedures as selecting
bidders for independent projects. Persons with
authority to decide on investment in component projects and President of
People's Committees for compensation, support and resettlement sub-projects
shall exercise the authority and responsibilities of competent persons in
organizing contractor selection according to the Bidding Law and this Decree.
6. During the
period from January 1, 2024 to the effective date of this Decree, the costs of contractor
selection on VNEPS are applied according to the Build - Operation - Transfer
(BOT) contract signed between the Ministry of Planning and Investment and the
employer of the Project "E-commerce application in Government procurement".
The Ministry of Planning and Investment provides guidance on
the management and use of costs in selecting bidders and investors on VNEPS.
7. During the
period from January 1, 2024 to the effective date of this Decree, contractor
selection shall be carried out in accordance with Bidding Law No. 22/2023/QH15
and the regulations of the Decree No. 63/2014/ND-CP, related guiding documents
that are still consistent with the Bidding Law No. 22/2023/QH15. The Ministry
of Planning and Investment shall guide or submit to competent authorities to
consider resolving issues that arise during the implementation of this Clause.
Article 134. Entry into force
1. This Decree
comes into force from the date of signing.
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a) Government’s Decree No. 63/2014/ND-CP dated June 26, 2014
of the Government;
b) Articles 69, 70, 71, 72, 73, 75, 76, 77 and 78 of Decree
No. 151/2017/ND-CP dated December 26, 2017 of the Government;
c) Points b, c, Clause 2 and Points b, c, Clause 3, Article
5 of Decree No. 70/2018/ND-CP dated May 15, 2018 of the Government;
d) Decision No. 17/2019/QD-TTg dated April 8, 2019 of the
Prime Minister.
2. Vietnamese-origin
goods (as specified in Clause 1, Article 10 of the Bidding Law) are determined
according to commercial law on how to identify goods manufactured in Vietnam
and the law on technology information for information technology software
products. Point b, Clause 5, Article 5 of this Decree is
effective until commercial law has regulations on how to identify goods
manufactured in Vietnam.
3. Organizations
or individuals tasked with procuring goods or services for scientific and
technological tasks funded by the state budget (including partial allocations
or lump-sum allocations up to the final product) are exempt from following the
Bidding Law and this Decree. However, they must still maintain sufficient
invoices and documents, as required by law.
4. Individuals
and organizations involved in scientific and technological tasks that are not
government agencies or public service providers can choose their own
procurement methods for these tasks, as long as they do not use state budget
funds. They still need to keep sufficient invoices and documents, but do not
have to follow the procedures outlined in the Bidding Law and this Decree.
5. Organizations
or individuals leading scientific and technological tasks in agriculture,
forestry, or fishery can directly purchase goods or services from households
and individuals for those tasks. They are exempt from following the procedures
outlined in the Bidding Law and this Decree.
6. Information
about the bidder's contract performance result and the quality of goods used
according to Articles 17 and 18 of this Decree is publicized for packages with contractor
selection according to Bidding Law No. 22/2023/QH15.
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Article 135. Implementation
1. The Ministry
of Planning and Investment shall:
a) Elaborate and guide articles and clauses as assigned in
the Bidding Law, this Decree and other necessary contents to meet state
management requirements on bidding;
b) Aggregate and manage database of bidders; quality of
goods used; list of bidders violating the law on bidding; list of successful
foreign bidders;
c) Instruct management and use of costs in selecting bidders
and employers on VNEPS; cut costs of online contractor selection based on the
development of online bidding in each period;
d) Issue bidding document forms including: overall contractor
selection plan; specific contractor selection plan; EOI request,
prequalification documents; bidding documents; RFP; online procurement, online
quotation; evaluation report; bidding inspection, bidding performance report
and other forms related to bidding;
dd) Edit webforms on VNEPS to enable parties participating
in online contractor selection, reduce administrative procedures, 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 and this Decree within the scope of
their management;
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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. Annually,
ministries, ministerial-level agencies, Governmental agencies, other central
agencies, Provincial People's Committees, state-owned enterprises and other
agencies and organizations subject to Article 2 of the Bidding Law shall send
reports on bidding performance to the Ministry of Planning and Investment for
consolidation and reporting to the Prime Minister.
4. Heads of
central agencies and Presidents of People's Committees of provinces and
centrally affiliated cities, within the scope of their functions and tasks,
shall provide guidance and implement this Decree./.
ON BEHALF OF THE GOVERNMENT
PP.
PRIME
MINISTER
DEPUTY PRIME MINISTER
Tran Hong Ha
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