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THE GOVERNMENT
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THE SOCIALIST REPUBLIC OF VIETNAM
Independence – Freedom – Happiness
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No. 63/2014/ND-CP
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Hanoi, June 26, 2014
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DECREE
DETAILING THE IMPLEMENTATION OF SEVERAL PROVISIONS OF THE
LAW ON BIDDING REGARDING THE SELECTION OF CONTRACTORS
Pursuant to the Law on
Government organization dated December 25, 2001;
Pursuant to the Law on
Bidding No.43/2013/QH13 dated November 26, 2013;
At the request of the
Minister of Planning and Investment,
The Government
promulgates the Decree on detailing the implementation of several provisions of
the law on bidding regarding the selection of contractors
Chapter
I
GENERAL
PROVISIONS
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Article
1: Governing scope
1. This Decree hereby
details the implementation of several provisions of the Bidding Law regarding
the selection of contractors who are eligible to be awarded contracts which are
governed by the regulations stated in Clause 1 and Clause 2 Article 1 of the
Bidding Law.
2. The selection of
contractors for petroleum contracts as stipulated in Clause 4 Article 1 of the
Bidding Law shall be applicable to the investment and development projects as
regulated in Point a, b and c Clause 1 Article 1 of the Bidding Law, except for
the selection of contractors directly involved in petroleum exploration,
extraction and mine development.
4. In case international
treaties and agreements do not provide for procedures for selection of
contractors, regulations specified in the Bidding Law and this Decree must be
observed.
Section
2: ENSURING COMPETITIVENESS IN BIDDING
Article
2: Ensuring competitiveness in the bidding
1. The contractors submit
their EOI (expression of interest) responses or applications for the
prequalification held by the procuring entity must adhere to Clause 1 and
Clause 2 Article 6 of the Bidding Law.
2. Contractors who bid
for mixed contracts must be legally and financially independent from those who
conduct feasibility study reports, technical design proposals and construction
drawings for the purpose of the contract award, except for these accepted as a
part of mixed contracts.
3. Consulting service
suppliers participating in the bidding can provide one or a lot of consulting
service(s) for the same project or contract, including the formation of
pre-feasibility study reports, feasibility study reports, technical design
documents, construction drawing records as well as the provision of consultancy
and supervision services.
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a) They must come from
different agencies or are not directly managed by the same organization if they
are public service providers;
b) Contractors, investors
and procuring entities do not hold more than 30% of shares or contributed
capital of each other;
c) Contractors do not
hold more than 20% shares or contributed capital of each other when all of
bidders participate in selective bidding for a contract;
d) Bidders and
contractors who provide consulting services for that contract are not allowed
to hold mutual shares and contributed capital; shares and contributed capital
of either bidder or consulting contractor held by other organizations and
individuals account for above 20%.
5. In respect of
state-owned economic corporations, if products and services specified in the
contract are defined as their main production and trading sectors which are
considered the outflow of this company and the inflow of the other company
affiliated with these corporations, their subsidiaries have the right to
participate in the selection of contractors held by each of these subsidiaries.
In case products and services are the outflow of this company and concurrently
the inflow of the other company as well as are seen as the exclusive ones on the
market, the bidding must comply with the Prime Minister’s regulations.
Section
3: BID PREFERENCES IN THE SELECTION OF CONTRACTORS
Article
3. Rules of bid preferences
1. In case bid package
and proposal documentation are ranked at the same position after bid
preferences that has been counted, bidders who quote more domestic expenses or
employ more local employees (based on their wage and salary).
2. In
case bidders are granted more than one bid preference, they are only allowed to
get access to the optimal bid preference as prescribed in the bidding documents
and request for proposals.
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Article
4. Bid preferences for the international bidding
1. In terms of contracts
for the consulting service supply:
a) In case of the
application of lowest bid method, bidders who are not granted bid preferences
must provide an additional monetary amount accounting for 7,5% of these
bidders’ quoted bid after correction of errors, adjustment of deviations and
deduction of discounts (if any) in order to carry out bidder’s comparison and
rating;
b) In case of the
application of fixed price method or technical method, bidders who receive the
bid preferences are given additional 7.5% of technical score to these bidders'
total technical score to serve the purpose of comparison and rating;
c) In case of the
application of combined technical and price-based method, bidders who receive
the bid preferences are given additional 7.5% of combined scores to total
combined scores of these bidders for comparison and rating.
2. In terms of contracts
for non-consulting service supply, construction works and mixed contracts:
a) In case of the
application of lowest bid method, bidders who are not granted bid preferences
must provide an additional monetary amount accounting for 7.5% of these
bidders’ quoted bid after correction of errors, adjustment of deviations and
deduction of discounts (if any) for comparison and rating;
b) In case of the
application of lowest bid method, bidders who are not granted bid preferences
must add a monetary amount accounting for 7.5% of these bidders’ quoted bid
after correction of errors, adjustment of deviations and deduction of discounts
(if any) to the evaluated price of these bidders for comparison and rating;
c) In case of the
application of combined technical and price-based method, bidders who receive
the bid preferences are given additional 7.5% of combined scores to total
combined scores of these bidders for comparison and rating.
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Article
5. Bid preference for domestic goods
1. Goods are eligible for
bid preferences provided that bidders prove that domestic production costs account
for above 25% of total price. Percentage (%) of domestic production cost of
goods is calculated according to the following formula:
D (%) = G*/G (%)
Where:
- G*: Domestic production
cost calculated by quoted price of goods defined in the bid envelope and
proposal which subtracts tax values and external costs, inclusive of fees and
charges;
- G: Quoted price of
goods defined in the bid envelope and proposal subtracting tax values;
- D: Percentage (%) of
domestic production cost of goods. D3 gains the rate of 25%, which
can enable goods to receive the bid preferences as regulated in Clause 2 of
this Article.
2. Bid preference
calculation:
a) In case of the
application of lowest bid method, goods that do not receive bid preferences
must add a monetary amount accounting for 7.5% of quoted bid after correction
of errors, adjustment of deviations and deduction of discounts (if any) of
these goods to the quoted bid price after correction of errors, adjustment of
deviations and deduction of discounts (if any) of bidders for comparison and
rating;
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c) In case of the
application of combined technical and price-based method, goods that receive
the bid preferences are given additional preferential scores to total combined
scores as follows:
Preferential score = 0.075 x (preferential goods price /
bid price) x combined scores
Where: Preferential goods
price is quoted bid after correction of errors, adjustment of deviations and
deduction of discounts (if any) of goods that receive bid preferences.
Article
6. Bid preferences for the domestic bidding
1. In terms of the
contract for goods procurement, the preference applied to domestic goods shall
be implemented according to the regulations specified in Article 5 of this
Decree.
2. Bid envelopes and
proposals from bidders who employ total female workers and wounded soldiers or
invalid employees accounting for above 25% and signing minimum 03 month’s labor
contracts and who are small enterprises granted bid preferences as regulated in
Clause 3 Article 14 of the Bidding Law shall achieve higher ranks than those of
bidders who are not granted bid preferences in case their bid envelopes and
proposals are ranked at the same position.
3. In case of construction
contracts worth less than VND 05 billion, only small and ultra small
enterprises are allowed to participate into the bidding as stipulated by laws.
4. In case bid envelopes
and proposals from bidders achieve the same rank after bid preferences that
have been granted, those of local bidders shall be given priority over others
during the contract award.
Section
4: INFORMATION SUPPLY, ADVERTISEMENT AND DISSEMINATION; INCURRED EXPENSES; SAFE
CUSTODY FOR BIDDING DOCUMENTS DURING THE SELECTION OF CONTRACTORS
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1. Responsibility for the
information supply:
a) Ministries,
ministerial-level agencies, Governmental agencies, Central bodies, provincial
People’s Committees and competent persons are responsible to disseminate the
bidding information mentioned at Point g Clause 1 Article 8 of the Bidding Law
on the national bidding network or the Vietnam Public Procurement Review Journal;
b) Ministries,
ministerial-level agencies, Governmental agencies and other centrally-governed
bodies, provincial People’s Committees are responsible to advertise the bidding
information mentioned at Point h Clause 1 Article 8 of the Bidding Law on the
national bidding network;
c) Procuring entities are
responsible to supply the bidding information regulated at Point a Clause 1
Article 8 of the Bidding Law on the national bidding network;
d) Procuring entities are
responsible to provide the bidding information regulated at Point b, c, d and
dd Clause 1 Article 8 of the Bidding Law as well as other information regarding
the change in the bidding schedule (if any) on the national bidding network or
the Vietnam Public Procurement Review Journal;
dd) Bidders are
responsible to provide and update the information about their competence and
experience into the database of bidders on the bidding network system according
to regulations stated at Point d Clause 1 Article 5 and Point k Clause 1
Article 8 of the Bidding Law;
e) Bidding training
institutions, lecturers and experts who hold certificates of the bidding
practices are responsible to provide the information regarding their bidding
training, lecturing and practice for the Ministry of Planning and Investment to
post on the national bidding network system as stipulated in Point k Clause 1
Article 8 of the Bidding Law.
2. Responsibility for the
information dissemination:
The Ministry of Planning
and Investment is responsible for the advertisement of the bidding information;
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3. The information about
the online selection of contractors shall be disseminated by procuring entities
on the national bidding network system but must ensure the compliance with
regulations specified at Point b Clause 2 of this Article.
4. In case of projects or
contracts identified in the list of national secrets, the dissemination of
information to the public must be carried out according to the laws on national
secret protection.
5. The supply and
dissemination of bidding information posted on the national bidding network, the
Vietnam Public Procurement Review Journal and through other means of mass media
are encouraged for the contracts that are not regulated by the Bidding Law.
Article
8. Time limit and procedures for the supply and dissemination of the bidding
information
1. In case of the
self-advertisement of information posted on the national bidding network:
a) Concerned entities who
are responsible to supply information as regulated at Clause 1 Article 7 of
this Decree carry out the registration of participants into the national
bidding network system according to regulations specified in Article 87 of this
Decree and perform the self-advertisement of their information on the national
bidding network system according to the guidance from the Ministry of Planning
and Investment;
b) In respect of the
information regulated in Point b, c Clause 1 Article 8 of the Bidding Law,
procuring entities shall release the Request for Expression of Interest
(hereinafter abbreviated as EOI), Prequalification, Invitation for Bids and
Request for Proposals, which complies with the bidding schedule announced in
the notification of EOI Request, Prequalification, Invitation for Bids and
Request for Offers but takes place within a minimum of 03 working days from the
first date on which the information is posted on the national bidding network
system;
c) In respect of the
information regulated in Point a, d, dd, g and h Clause 1 Article 8 of the
Bidding Law, organizations responsible for the advertisement of bidding
information must ensure that their self-advertisement of bidding information is
not later than 07 working days from the date on which the bidding documents are
released.
2. 2. In terms of the
supply of bidding information to the Vietnam Public Procurement Review Journal:
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b) In respect of the
information regulated in Point d, dd and g Clause 1 Article 8 of the Bidding
Law, the time limit for the Vietnam Public Procurement Review Journal’s receipt
of the information is not later than 07 working days from the date on which the
bidding documents are released. These pieces of information must be posted on
01 publication of the Vietnam Public Procurement Review Journal.
3. Within a period of 02
working days from the date of the self-advertisement of information as regulated
in Point b, c, d, dd and g Clause 1 Article 8 of the Bidding Law to be posted
on the national bidding network system, the Vietnam Public Procurement Review
Journal is responsible to disseminate their received information on 01
publication of the Vietnam Public Procurement Review Journal.
4. Within a period of 02
working days from the date on which the Vietnam Public Procurement Review
Journal receives the information as regulated in Point b, c, d, dd and g Clause
1 Article 8 of the Bidding Law, the Vietnam Public Procurement Review Journal
is responsible to post these pieces of information on the national bidding
network system and their publication as well. In respect of the information
regulated in Point b, c Clause 1 Article 8 of the Bidding Law, procuring
entities shall release the Request for EOI, Prequalification, Invitation for
Bids and Request for Proposals, which complies with the bidding schedule
identified in the notification of EOI Request, Prequalification, Invitation for
Bids and Request for Goods Quotations but ensures that it is received within a
minimum of 03 working days from the first date on which the information is
posted on the national bidding network system or the Vietnam Public Procurement
Review Journal;
5. The supply and
dissemination of information in the aim of the online bidding shall observe the
regulations specified in Clause 2 Article 88 of this Decree.
Article
9. Expenses incurred during the selection of contractors
1. Based on the size and
nature of the contracts, investors decide the selling price of one set of
bidding documents and request for proposals (taxes included) for the domestic
bidding, including the maximum price of VND 2,000,000 for the bid envelope and
VND 1,000,000 for the Request for Proposals; as for the international bidding,
such selling prices shall adhere to the international bidding practices.
2. Expenses incurred by
the composition and evaluation of the Request for EOI and Prequalification:
a) Expenses incurred by
the composition of the Request for EOI and Prequalification account for 0.05%
of the bid price but are identified at the minimum price of VND 1,000,000 and
the maximum price of VND 30,000,000;
b) Expenses incurred by
the evaluation of the Request for EOI and Prequalification account for 0.03% of
the bid price but are identified at the minimum price of VND 1,000,000 and the
maximum price of VND 30,000,000;
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a) Expenses incurred by
the composition of the Invitation for Bids and Request for Proposals account
for 0.1% of the bid price but are identified at the minimum price of VND
1,000,000 and the maximum price of VND 50,000,000;
b) Expenses incurred by
the evaluation of the Invitation for Bids and Request for Proposals account for
0.05% of the bid price but are identified at the minimum price of VND 1,000,000
and the maximum price of VND 50,000,000;
4. Expenses incurred by
the evaluation of the EOI Response, Prequalification, Bid Envelope and
Proposals:
a) Expenses incurred by
the evaluation of the EOI Response and Prequalification account for 0.05% of
the bid price but are identified at the minimum price of VND 1,000,000 and the
maximum price of VND 30,000,000;
b) Expenses incurred by
the evaluation of Bid Envelopes and Proposals account for 0.1% of the bid price
but are identified at the minimum price of VND 1,000,000 and the maximum price
of VND 50,000,000.
5. Expenses incurred by
the evaluation of the result of the selection of contractors, even when there
are none of selected contractors, account for 0.05% of the bid price but are
identified at the minimum price of VND 1,000,000 and the maximum price of VND
50,000,000.
6. In respect of the
contracts that elaborate the same contents in the same project and purchase
estimate as well as the contracts that require redoing the selection of
contractors, expenses incurred by the composition and evaluation of the Request
for EOI and Prequalification; Invitation for Bids and Request for Proposals
account for maximum 50% of the expense regulated in Clause 2 and Clause 3 of
this Article. In case of the contracts that require another selection of
contractors, expenses on the selection of contracts for the project and purchase
estimates must be accounted for and supplemented to meet the actual
requirements mentioned in the contracts.
7. Expenses prescribed in
Clause 2, 3, 4, 5 and 6 of this Article shall be applicable to investors and
procuring entities who are directly involved in the bidding. In case bidder’s
consultants are hired to carry out the contents specified in Clause 2, 3, 4, 5
and 6 of this Article, expenses are defined on the basis of the content, scope
of work, execution period, competence and experience of consultants and other
elements.
8. Expenses paid to a
council in charge of considering the contractor's recommendations on the
selection of contractors (hereinafter referred to as Advisory Council) account
for 0.02% of the quoted bid of the bidders who have made recommendations but
are identified at the minimum price of VND 1,000,000 and the maximum price of
VND 50,000,000.
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Article
10. Safe custody for bid packages during the selection of contractors
1. All of documents
regarding the selection of contractors shall be kept to a minimum of 03 years
after the contract finalization, except for those prescribed in Clause 2, 3 and
4 of this Article.
2. If the Proposals for
financial contents by the bidders that do not pass the technical evaluation
shall be fully returned to the bidders as scheduled below:
a) In terms of consulting
service supply contract: Within the period of 10 days from the date on which
the contract with selected contractors are signed;
b) In terms of the
contracts for non-consulting service, goods purchase, construction works and
mixed contracts applying the single-stage two-envelope bidding process:
scheduled at the same time when the tender guarantee of eliminated bidders is
refunded or cleared.
Within the time limit
regulated at Point a, b of this Clause, if bidders that do not reclaim their
financial proposals, procuring entities shall consider and decide the
cancellation of financial proposals but ensure the confidentiality of
information enclosed in these financial proposals.
3. In case of the bid
cancellation, all of relevant documents shall be kept within the period of 12
months from the date on which the decision on the bid cancellation is made.
4. Financial statements,
as-built dossiers and other documents regarding the selected bidders shall be
kept in a safe manner according to legal regulations on the document custody.
Chapter
II
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Section
1: SINGLE-STAGE ONE-ENVELOPE BIDDING PROCESS
Article
11. Specific process
1. Pre-selection of
contactors must include:
a) Composing bidding
document;
b) Verifying and
approving the bidding document.
2. Selection of
contactors must include:
a) Soliciting bidders;
b) Issuing, amending and
clarifying the bidding documents;
c) Preparing, submitting,
receiving, managing, amending and withdrawing the bid envelope;
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3. Evaluation of the bid
envelope must include:
a) Examining and
evaluating the validation of the bid envelope;
b) Specifically
evaluating the bid envelope;
c) Rating the bidder.
4. Discussing the
agreement.
5. Reporting, verifying,
approving, and announcing the result of contractor selection.
6. Completing and signing
the contract.
Article
12. Composition of the bidding documents
1. Bases of the
composition of bidding documents:
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b)
Approved plan for the selection of contractors;
c) Technical dossiers
along with approved estimates for the construction or engineering contracts;
required standards of technical features and specifications for commodities (if
applicable);
d) Bidding regulations
and other relevant laws; international treaties and agreements (if applicable)
for the projects funded by the official development assistance capital or
concessional loans;
dd) State policies on
taxes, fees and the bid preferences in the selection of contractors and other
relevant regulations.
2. Bidding documents must
provide for the evaluation criteria of the bid envelopes including bidder's
competence and experience; technical capability; the definition of lowest bid
(in case of the application of the lowest bid method); the identification of
evaluated price (in case of the application of evaluated price method). The
bidding documents are not allowed to mention any terms and conditions that aim
to restrict the participation of bidders or give priority to one or several
bidder(s), which can cause unfair competition among bidders.
3. Criteria of the bid
evaluation for the goods purchasing contracts include:
a) Competence and
experience
“Pass” or “fail” system
shall be used to form the evaluation criteria of bidder’s competence and
experience in which the minimum criteria are set to give "pass" score
for each content of bidder’s competence and experience. The criteria are specified
as follows:
- Experience in
implementing the same contracts; experience in performing their main production
and business regarding the contract execution;
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- Financial competence:
Total asset and liability, short-term asset and liability, revenue, profit,
work-in-progress value and other essential criteria.
The definition of
specific requirements that must be obtained for each criterion or standard as
prescribed in this Point should rely on the requirements of a single contract.
If bidders shall be given the “pass” criteria of all contents mentioned in this
Point, it means that they have met all requirements for their competence and
experience.
b) Technical capability
When using the pass, fail
criteria system or 100 or 1,000-point grading scale to set standards of the
technical evaluation, the minimum and maximum point of each general and
specific standard in the grading scale must be defined. The criteria setting
for the technical evaluation shall be based on relevant factors like the
satisfaction with requirements for amount, quality and expiry date of delivery,
shipping, installation, warranty and reliability of bidders through their previous
performance of similar projects and other requirements mentioned in the bidding
solicitation. Based on each contract, the bidding documents must provide
criteria to serve as the basis of technical evaluation, including:
- Technical features and
specifications of goods as well as production, fabrication and technological
standards;
- Practicality and
economic efficiency of technical solutions, goods supply and assembling
methods;
- The satisfaction with
requirements for warranty and maintenance;
- Geographical and
environmental adaptation;
- Environmental impact
and solutions;
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- Other requirements for
trading, execution duration, training and technology transfer;
- Punctuality of goods
supply;
- Bidder’s trust defined
by evaluating their execution of previous contracts;
- Other essential
factors.
c) Determination of
lowest bid (in case of the application of lowest bid method):
- Determination of quoted
bid;
- Error correction;
- Deviation adjustment;
- Discount deduction (if
any);
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- Determination of
preferential value (if any);
- Comparison of bidding
documents to determine the lowest bid.
d) Criteria for determining
evaluated price (in respect of the application of evaluated price):
Formula of the
determination of evaluated price:
GĐG = G ± ∆G + ∆ƯĐ
Where:
- G = (quoted bid ± value
of errors ± value of deviations) – value of discounts (if any);
∆G denotes value
of elements embedded on the same level for the life circle of goods, including:
+ Operation and
maintenance cost;
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+ Progress;
+ Quality (efficiency and
capacity);
+ Origin;
+ Other factors (if any).
∆ƯĐ denotes
the added value for those who are not granted bid preferences according to the
regulations mentioned at Point b Clause 2 Article 5 of this Decree.
4. Criteria of the bid
evaluation for the construction contracts include:
a) Competence and
experience
“Pass” or “fail” criteria
system shall be used to form the evaluation criteria for bidder’s competence
and experience in which the minimum requirements are set to give
"pass" score for each of these contents. The criteria are specified
as follows:
- Experience in implementing
contracts with the same size, technical features, geographical, geological and
site conditions (if any); experience in performing their main production and
business regarding the contract execution;
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- Financial competence:
Total asset and liability, short-term asset and liability, revenue, profit,
work-in-progress value and other essential criteria.
The determination of
specific requirements for each criteria prescribed in this Point should rely on
requirements of each contract. Those who are evaluated to pass all criteria
mentioned in this point shall satisfy the requirements for their competence and
experience.
b) Technical capability
When
using the pass or fail criteria or 100 or 1,000-point grading scale to set
standards of technical evaluation, the minimum and maximum point of each
overall and specific standard in the grading scale must be defined. The criteria setting for the technical evaluation shall be
based on relevant factors like the satisfaction with requirements for design
documentation, bill of quantities, bidder's quality of performance on the
previous contracts and other requirements mentioned in the bidding documents.
Based on each contract, the bidding documents must provide detailed criteria as
the basis of technical evaluation, including:
- Suitability and
feasibility of technical solutions, construction arrangement and method in
conformity with proposals for the construction progress;
Except the case in which
bidders are requested to adhere to the construction method specified in the bidding
documents due to a particular contract, the bidding documents should provide
regulations on enabling bidders to propose a construction method different from
the one specified in the bidding documents.
- Construction progress;
- Quality assurance methods;
- Assurance about
environmental hygiene and other requirements like fire fighting, prevention and
occupational safety;
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- Bidder’s quality of
previous performance on similar contracts;
- Other essential
factors.
c) Determination of
lowest bid price (in case of the application of lowest bid price) shall adhere
to the regulations mentioned in Point c Clause 3 of this Article;
d) Criteria for
determining evaluated price (in respect of the application of evaluated price
method)
Formula of the
determination of evaluated price:
GĐG = G ± ∆G + ∆ƯĐ
Where:
- G = (quoted bid ± value
of errors ± value of deviations) – value of discounts (if any);
- ∆G denotes value of
elements embedded on the same level for the life circle of construction works,
including:
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+ Loan interest (if any);
+ Progress;
+ Quality;
+ Other factors (if any).
- ∆ƯĐ denotes the added
value for those who are not granted bid preferences according to the
regulations mentioned at Point b Clause 2 Article 4 of this Decree.
5. In terms of
non-consulting service supply and mixed contracts
Based on the size and
nature of contracts as well as regulations specified in Clause 2, 3 and 4 of
this Article, the evaluation criteria of competence and experience; technical
capability and lowest bid price (in case of the application of lowest bid price
method) or standards in the determination of evaluated price (in case of the
application of evaluated price method) shall be properly defined.
6. The application of
combined technical and price evaluation method for the contractor selected
through single-stage one-envelope bidding process shall not be applied.
7. Bidding documents are
not permitted to inquire about the brand and origin of goods. In case of
failure to describe the specifications according to technical features,
technological designs and standards, brand and catalogue of a specific product
can serve as a reference and illustration for technical features of goods but
must write the phrase “or equivalences” after brand and catalogue as well as
clearly specify equivalent contents of such illustrating and reference goods in
terms of technical features, functions, technological standards and other
contents (if any) to facilitate the preparation of the bid packages. Bidders
are requested to submit the License or Authorization of goods sale from
manufacturers or the Certificate of Partnership only if particular and
complicated goods require the obligations of manufacturers to supply the
after-sale services such as warranty, maintenance, repair and replacement
components or materials.
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a) In terms of the international
bidding, the bidding documents must set out the regulations on the recruitment
of domestic employees if these employees are qualified and the domestic market
is able to supply employments, especially manual labors. The employment of
foreign workers in the contracts is only permitted when domestic workers are
not qualified. Bidders who do not observe the regulations on the employee
utilization upon the contract execution, depending on the severity of their
violations, shall be prohibited from participating in the bidding in Vietnam
under the regulations specified in Clause 4 Article 122 of this Decree;
b) In terms of the
contract that needs a lot of manual labors, the bidding documents must require
bidders to propose their solutions to the use of their local workers at which
their projects or contracts are executed;
c) Investors take legal
responsibility for their compliance with regulations specified in Point a of
this Clause during the composition of the bidding documents, evaluation of bid
packages, approval of the contractor selection result, signing and execution of
the contracts;
d) Bid envelopes that
fail to satisfy the requirement for the employee utilization specified in the
bidding documents as prescribed in Point a of this Clause shall be eliminated.
Article
13. Verification and approval of the bidding documents
1. Bidding documents must
be verified as prescribed in Article 105 of this Decree prior to approval.
2. The approval for the
bidding documents must be in writing with reference to the submission statement
on the approval and report on verification of the bidding documents.
Article
14. Arrangement for the selection of contactors
1. Soliciting bidders:
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2. 2. Issuing, amending
and clarifying the bid solicitation:
a) The bidding documents
are released for contractors to participate in the open bidding or for those
who are short-listed bidders. In case of bidders as joint ventures or
consortiums, only one of the partners is required to purchase or receive the
bid solicitation, even if the joint venture or consortium has not been founded
yet when purchasing or receiving the bid solicitation;
b) In case of correcting
the bid solicitation after release, procuring entities must make the decision
on this correction as well as specify the corrected contents in the bid
solicitation, which shall notify the bidders who have purchased or received the
bid solicitation;
c) In case the bid
solicitation need to be clarified, bidders must send the written requests to
procuring entities within a minimum period of 03 working days (applicable to
domestic bidding) and 05 working days (applicable to international bidding)
before the deadline for the submission of bid packages for any possible
consideration and solution. The clarification of the bid solicitation shall be
undertaken by procuring entities by means of one or more form(s) as follows:
- Dispatch their
clarification in writing to bidders;
- When necessary, a
pre-bid conference must be held to discuss and clarify these confusing
contents. Discussion contents for the clarification of the bid solicitation
must be recorded in the form of the minutes and documented to send to bidders;
- Clarified contents must
not contrast with approved contents in the bid solicitation. If the bid
solicitation needs amending or modifying after this clarification, this
amendment or modification to the bid solicitation must be carried out as
prescribed in Point b of this Clause;
d) The written decision
on the amendment or modification as well as the record of the bid solicitation
constitutes the bid solicitation.
3. c) Preparing,
submitting, receiving, managing, amending and withdrawing the bid packages:
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b) Procuring entities
shall receive and monitor the bid packages, which adheres to the regulations on
the management of confidential files until the result of contractor selection
is made known to the public; under no circumstances is the information of the
bid packages revealed to any other bidders, except for the information that
need disclosing during the bid opening. Those sent to procuring entities after
the deadline for the bid submission shall not be opened and considered invalid
and subject to being eliminated. Any further document that arrives after the
deadline for bid submission with the aim of amending the existing bid packages
shall be invalid, except for any document sent to clarify the bid packages as
requested by the procuring entities or any of such documents that serve to
certify the validation, competence and experience of the bidders;
c) Upon wishing to amend
or withdraw the bid packages, bidders must lodge a written request to procuring
entities. Procuring entities shall only give consent to this amendment or withdrawal
from bidders if written requests are submitted prior to the deadline for the
submission of bid packages;
d) Procuring entities are
obliged to receive all of the bid packages from all bidders that arrive before
the deadline for bid submission, even those who have not purchased or received
the bid solicitation directly released by the procuring entities. In case
bidders have not yet purchased the bidding documents, they must pay a sum equal
to the selling price of the bidding documents to procuring entities to enable
the bid packages to be accepted.
4. d) Open the bid
packages:
a) The opening of the bid
packages must be performed in the witness of all bidders and start in 01 hour
after the deadline for bid submission expires. Only bid packages that have been
submitted by the required deadline shall be opened in the witness of legal
representatives of bidders who attend the bid-opening session, which is not
dependent on the presence or absence of bidders;
b) Bid packages shall be
opened in the alphabetical order of bidder’s names and the following processes
must be observed:
- Request each legal
representative of bidders to confirm whether letter of discount is attached to
the bid packages or not;
- Check whether the seal
is broken;
- Open the bid packages
and clearly read the information regarding bidder’s names, amount of originals
and copies of the bid packages; the quoted bid specified in their bid packages;
discount value (if any); validity period of the bid packages; defined time of
contract execution; value and validity of tender guarantee and other relevant
information;
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d) Representatives of
procuring entities must also append their signature in the original bid, letter
of discount (if any), authorization letter conferred on bidder's legal
representatives (if any); joint venture or consortium agreement (if any);
tender guarantee; financial proposals as well as other significant contents of
the bid packages.
Article
15. Rules for the bid evaluation
1. The evaluation of the
bid packages must follow the standards of the bid evaluation, different
requirements specified in the bidding documents, the bid envelopes,
demonstration or explanation of the bid envelopes to select the right
contractors who prove their proper competence, experience and feasible
solutions to executing contracts.
2. Since the evaluation
is based on the bid copies, bidders must be responsible to ensure that they are
identical to the originals. In case of any difference between the originals and
copies without leading to any change in the rating of bidders, the originals
are important to make critical evaluations.
3. In case of any
difference between the originals and copies which leads to the difference
between the evaluation result of original bid packages and that of duplicate
bid packages as well as change to the rating of bidders, such bid packages
shall be eliminated.
Article
16. Clarification of the bid packages
1. Upon completion of the
bid opening, bidders are responsible to clarify their bid packages as requested
by the procuring entities. In case bidder's evidence for their validation,
competence and experience have been lacked, procuring entities request bidders
to clarify and provide further documents to prove their validation, competence
and experience. In respect of technical and financial proposals of bidders, the
clarification must ensure no change in the basic contents of bid packages and
quoted bids.
2. In case bidder's
evidence for their validation, competence and experience have been lacked after
the bid closing, bidders are allowed to send further documents for
clarification. Procuring entities are responsible to accept the documents on
clarification for consideration and evaluation; further documents on clarifying
bidder's validation, competence and experience shall be considered a part of
the whole bid packages.
3. This clarification is
only involved by procuring entities and participating bidders, which must
ensure rules for no change to the actual nature of concerned bidders. The
clarification contents must be shown in writing and kept by procuring entities
as a part of the bid packages.
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1. Error correction
involves correcting errors contained in the bid packages including numerical
errors and others, which shall be performed under the following rules:
a) Numerical errors
include those incurred in the inaccurate operations of addition, abstraction,
multiplication and division during the estimation of quoted bid. In case the bidding documents require the detailed
analysis on unit price, the figures in the detailed breakdown of quoted bid
must be used as the basis of the correction of numerical errors. In case
there is some inconsistency between unit price and total price, unit price
shall serve as the basis of the error correction; if any dramatic errors in
unit price has been found due to decimal errors (i.e., the decimal powers like
10, 100 or 1,000), total price shall serve as the basis of the error
correction;
b) Other errors:
- At the column of total
price that has been fully calculated without equivalent unit price, the unit
price shall be additionally defined by dividing the total price by the
quantity; when unit price has been defined but total price remains blank, the
value in the total price column shall be identified by multiplying the quantity
by unit price; if the unit price and the value of any item has been defined in
the total price column but the quantity remains blank, this blank value shall
be filled with the number generated by dividing the value in the total price
column by the unit price of that item. In case the aforesaid quantity that has
been additionally defined is different from the quantity mentioned in the bid
packages, that value difference is the deviation in the scope of supply, which
shall be adjusted under regulations specified in Clause 2 of this Article;
- Error or mistake of
calculating unit must be corrected to satisfy the requirements specified in the
bidding documents;
- In case there is any
difference in the contents of technical and financial proposals, technical
proposals shall serve as the basis of the error correction.
2. Adjustment of
deviation:
a) In case there exists
the deviation in the scope of supply, the deficient quoted value shall be added
and the excess quoted value shall be subtracted to correspond to the equivalent
unit price specified in the bid packages containing such deviations;
In the event of no unit
price defined in the bid packages, the highest quoted price out of that of
other bid packages that pass the technical evaluation shall be accepted as the
basis of deviation adjustment on the same item; in case the bid packages of bidders
that have passed the technical evaluation are provided with no unit price, the
unit price specified in the bid estimates shall serve as the basis of the
deviation adjustment; in case there is no bid estimate, the unit price forming
the bid price shall serve as the basis of the deviation adjustment;
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b) If the offer price is
quoted with a deficiency in taxes, fees and charges payable as requested in the
bidding documents, procuring entities must add these expenses to the quoted
bid. These expenses shall not be amounted to the negative deviation according
to the regulations specified in Point d Clause 1 Article 43 of the Bidding Law;
c) If bidders present
their letters of discount, error correction and deviation adjustment shall be
performed on the basis of the quoted bid before discount. Percentage (%) of the
negative deviation is determined on the basis of the quoted bid specified in
the bid packages;
d) If the bid packages
with adjusted deviations are ranked at the first position to be eligible for
the contract negotiation, the lowest quoted offer out of other bid packages
that pass the technical evaluation shall be accepted to negotiate the negative
deviation.
3. After error correction
and deviation adjustment as prescribed in Clause 1 and Clause 2 of this
Article, procuring entities must send a written notification to concerned
bidders about these corrections and adjustments. Within a period of 03 working
days from the date on which bidders receive written notification from procuring
entities, bidders must send their written notice to procuring entities about
their consents to these error corrections and deviation adjustments. If bidders
refuse to accept the result of error corrections and deviation adjustments on
receipt of written notification from procuring entities, the bid package of
these bidders shall be eliminated.
Article
18. Evaluation of the bid packages
1. Examining the
validation of the bid packages must include:
a) Check the number of
original and duplicate bid packages;
b) Examine ingredients of
the bid packages, including the bid letter, agreement on founding joint venture
or consortium (if any), authorization for the validation of the bid letter (if
any); tender guarantee; proof of bidder’s validation; proof of bidder's
competence and experience; technical proposal; financial proposal; other
relevant ingredients.
c) Examine the
consistency of contents described in the original and duplicate, which supports
the detailed evaluation of bid packages.
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A bid package is
considered valid when it fully meets the following requirements:
a) Keep an original of
the bid package available;
b) Hold the bid letter
signed and sealed by a bidder’s legal representative (if any) as required in
the bidding documents; identify definite time for the contract execution
specified in the bid letter to correspond to the technical proposal; detail and
fix the offer price in numbers and words, which must logically match total
offer price quoted in the general pricelist; do not propose different quoted
bids or invent any disadvantageous terms and conditions to investors or
procuring entities. As for a bidder as a joint venture or consortium, the bid
letter must be signed and sealed by a legal representative of each partner (if
any) or the head on behalf of joint venture or consortium must sign the bid
letter with reference to the duties assigned in the agreement on founding joint
venture or consortium;
c) Validate the bid
package to conform to the regulations specified in the bidding documents;
d) Hold the tender
guarantee with its validity and expiry date conforming to requirements given in
the bidding documents. In the event of the tender guarantee in the form of a
guarantee letter, it must be issued by the legal representative of credit
institutions or foreign bank's branches in compliance with Vietnam laws, which
specify the value, expiry date and beneficiary as required by the bidding
documents;
dd) Do not take part in
two or more bid packages in which they are considered the main contractor
(independent contractor or a partner of joint venture or consortium);
e) Show the agreement on founding
the joint venture or consortium, signed and sealed by every partners (if any);
g) Prove that bidders are
not prohibited from participating in the bidding according to bidding laws;
h) Ensure their valid
status under regulations specified in Clause 1 Article 5 of the Bidding Law.
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3. Evaluation of
competence and experience:
a) Competence and
experience evaluation shall comply with the evaluation criteria prescribed in
the bidding documents;
b) Bidders with
satisfactory competence and experience shall be considered and evaluated to
examine their technical capability.
4. b) Technical and
price-based evaluation:
a) Evaluation of bidder’s
offer price and technical capability must adhere to the evaluation standards
and methods prescribed in the bidding documents;
b) Bidders who satisfy
technical requirements shall be considered to define the lowest price (in
respect of the application of the lowest bid price method) and evaluated price
(in respect of the application of evaluated price method).
5. After finalizing the
rating of bidders, the expert group shall compile reports to procuring entities
for their consideration. Reports must clarify the following contents:
a) List of bidders who
have been qualified for further consideration and rating together with bidder’s
positions in this rating;
b) List of bidders who
are not qualified and eliminated; reasons for elimination;
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d) Any content of the
bidding documents that has not conformed to bidding laws, which can result to
any possible confusion or ambiguity in further implementation or lead to any
possible deviations on the result of contractor selection; recommendations and
solutions.
Article
19. Contract negotiation
1. The bidder who has
seized the first position in the bidder's rating shall be eligible for the
contract negotiation. If any bidder who is invited to negotiate the contract
has not turned up or refused to proceed to the contract negotiation, they are
not allowed to reclaim their tender guarantee.
2. Contract negotiation
shall be based on the followings:
a) Report on evaluation
of the bidding documents;
b) Bid package and
bidder’s records of clarification of bid package;
c) Bidding solicitation.
3. Rules of the contract
negotiation:
a) Contents of the bid
package that satisfy the requirements of the bidding documents do not need to
be negotiated;
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c) Negotiation over the
negative deviation value shall comply with regulations specified in Point d
Clause 2 Article 17 of this Decree.
4. Contents of contract
negotiation:
a) Unspecified,
inappropriate and inconsistent contents between bidding documents and bid
packages or in the same bid package shall be negotiated to prevent any possible
dispute or unexpected impact on the contractual obligations of contracting
parties;
b) Deviations that have
been found by the contractor and contractor’s recommendations (if any),
including possible alternatives which contractors are allowed to provide according
to relevant bidding regulations;
c) Personnel issues in
respect of construction and mixed contracts:
In the course of
negotiation, selected bidder is not allowed to change their key personnel as
proposed in the bid package for those who are in charge of design and survey
(in respect of construction and mixed contracts that require contractors to
implement one or two design steps prior to construction), construction site,
except the case in which the evaluation time is extended longer than the regulated
time or because of unexpected events that dissuade these key personnel from
participating in the contract execution. In such case, contractors have the
right to change other personnel but must ensure the substitute employees prove
qualification, experience and capability equivalent to or higher than proposed
personnel and bidders are not allowed to change their quoted bids;
d) Any issue that arises
during the selection of contractors (if any) in the aim of completing detailed
contents of the contract;
dd) Other necessary
issues.
5. In the course of
contract negotiation, negotiating parties must proceed to draft and complete
the official agreement, specific terms and conditions and annexes that
determine detailed list of workloads, price list and contract execution
progress (if any).
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Article
20. Report, verification, approval and announcement of the result of contractor
selection.
1. On the basis of the
report on the result of the evaluation of bid packages, procuring entities must
submit the contractor selection result in which opinions on the evaluation
contents performed by expert group must be clarified.
2.
Result of contractor selection must be verified as prescribed in Clause 1 and
Clause 4 Article 106 of this Decree prior to approval.
3.
Result of contractor selection must be approved in writing and adhere to the
documents on applying for the approval as well as the reports on verification
of contractor selection.
4. If the winning
contractor has been selected, the documents on approving the result of
contractor section must include the followings:
a) Winning contractor’s
name;
b) Winning bid;
c) Type of contract;
d) Contract execution
period;
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5. In case of the bid
cancellation as prescribed in Clause 1 Article 17 of the Bidding Law, documents
on approving the result of contractor selection or deciding the bid
cancellation must clarify reasons for this cancellation and responsibility for
concerned parties.
6. On receipt of the
decision on approving the result of contractor selection, procuring entities
must disseminate the information about the result of contractor selection
according to Point d Clause 1 Article 7 and Point c Clause 1 or Point b Clause
2 Article 8 of this Decree; send a written notification about the result of
contractor selection to the bidding contractors within the required period as
regulated in Point n Clause 1 Article 12 of the Bidding Law. The notification
must specify the following contents:
a) Information specified
in Point a, b, c and d Clause 4 of this Article;
b) List of unselected
bidders and a summary of reasons for elimination;
c) Plan
for completing and signing the contract with selected bidders.
Section
2: SINGLE-STAGE ONE-ENVELOPE BIDDING PROCESS
Article
21. Specific process
1. Pre-selection of
contactors must include:
a) Short-listing (when
necessary);
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c) Verify and approve
bidding documents.
2. Selection of
contactors must include:
a) Inviting bidding
contractors;
b) Issuing, revising and
clarifying bidding solicitation;
c) Preparing, submitting,
receiving, managing, adjusting and withdrawing bid packages;
d) Opening technical
proposals.
3. Evaluation of
technical proposals must include:
a) Examining and
evaluating the validation of technical proposals;
b) Specifically
evaluating technical proposals;
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4. Opening and evaluation
of financial proposals must include:
a) Opening financial
proposals formulated by bidding contractors in the approved list;
d) Examining and
evaluating the validation of financial proposals;
c) Specifically
evaluating financial proposals;
d) Ranking bidding
contractors.
5. Negotiating the
contract.
6. Reporting, verifying,
approving, and announcing the result of contractor selection.
7. Completing and signing
the contract.
Article
22. Short-listing
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1. In terms of open
bidding:
a) Composing application
for the prequalification:
- Application for
prequalification must include the following contents: Summary of project or
contract information; instructions on preparing and applying for the
prequalification; standards in the competence and experience of the bidding
contractors;
- Pass/fail system shall
be used to set standards in the evaluation of application for prequalification.
In the criteria for evaluating applications for prequalification, the minimum
requirement must stipulate that all specific contents of bidder’s competence
and experience must receive "pass" score;
b) Approving the
applications for prequalification must be performed in writing and based on the
statements on approving and reporting verification of the request for
prequalification;
c) Request for
prequalification must observe regulations stated in Point d Clause 1 Article 7
and Point b Clause 1 or Point a Clause 2 Article 8 of this Decree;
d) Releasing the requests
for prequalification:
Requests for
prequalification shall be released free of charge to bidders prior to the
deadline for bid submission;
dd) Receiving and
managing the applications for prequalification:
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e) Opening and evaluating
applications for prequalification:
- Applications for
prequalification that have been submitted at the venue and time as regulated in
the request for prequalification shall be opened right after the deadline for
bid submission. The opening of application for prequalification shall be
documented and records on the bid opening shall be sent to participating
contractors. Any application for prequalification after the deadline for bid
submission is not eligible to be opened and is considered invalid or eliminated;
- Evaluation of
applications for prequalification shall be implemented as prescribed in the
request for prequalification; Contractors whose applications for
prequalification are given "pass" score in terms of all contents
regarding contractors' competence and experience shall be short-listed.
g) Reporting, verifying
and approving the prequalification result:
- On the basis of the
report on the result of the evaluation of prequalification applications,
procuring entities must seek the approval of prequalification result in which
expert group’s opinions on the evaluation result must be clarified;
- Prequalification result
must be verified as prescribed in Clause 1 and Clause 2 Article 106 of this
Decree prior to approval;
- The approval of
prequalification result must be conducted in writing with reference to the
statements on approving and reporting the verification of prequalification
result.
- In case short-listed
bidders have been selected, the document on approving the prequalification
result must include selected bidder's name and other notes (if any). In case
short-listed bidders have not been selected, the document on approving the
prequalification result must determine the reasons why they are not
short-listed.
h) Announcement of the
short-list: The short-list must be publicized as prescribed in Point d Clause 1
Article 7 and Point c Clause 1 or Point b Clause 2 Article 8 of this Decree and
contractors who apply for the prequalification shall be notified as well.
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a) Defining and approving
the short-list: the short-list must include minimum 03 bidders who prove their
proper competence and experience to satisfy the requirements of the contract
and wish to be awarded the bids;
b) Announcement of the
short-list: After approval, the short-list must be publicized as prescribed in
Point d Clause 1 Article 7 and Point c Clause 1 or Point b Clause 2 Article 8
of this Decree.
3. Short-listed bidders
are not allowed to enter into a joint venture when participating in the same
bidding.
Article
23. Composition of the bidding solicitation
1. Bases of the
composition of bid solicitation shall adhere to regulations mentioned in Clause
1 Article 12 of this Decree.
2. The evaluation
criteria of the bid packages must include contractor's competence and
experience; technical capability; identification of lowest price (in case of
the application of the lowest bid price method); identification of evaluated
price (in case of the application of evaluated price method); identification of
pricing score and general evaluation standards (in case of the application of
combined technical and price-based method). As for the contract that has
undergone the prequalification, it is not necessary to regulate the evaluation
standards of contractor’s competence and experience but bidder's information
about their competence must be updated. The bidding documents are not allowed
to mention any terms and conditions that aim to restrict the participation of
bidders or give priority to one or several bidder(s), which can cause unfair
competition among bidders.
3. Criteria for
evaluating bidder’s competence, experience and technical credentials shall
adhere to regulations stated in Point a, Point b Clause 3 and Point a, Point b
Clause 4 Article 12 of this Decree.
4. Determination of
lowest bid price (in case of the application of lowest bid price method) shall
adhere to the regulations mentioned in Point c Clause 3 Article 12 of this
Decree.
5. Criteria for
identifying evaluated price (in case of the application of evaluated price
method) shall comply with regulations mentioned in Point d Clause 3 and Point d
Clause 4 Article 12 of this Decree.
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7. Brand and origin of
goods must comply with regulations set out in Clause 7 Article 12 of this
Decree.
8. The recruitment and
hire of employee must comply with regulations stated in Clause 8 Article 12 of
this Decree.
9. In terms of
non-consulting service supply and mixed contracts:
Based on the size and
nature of the contract as well as regulations stated in Clause 2, 3, 4, 5, 6, 7
and 8 of this Article, the evaluation criteria of contractor's competence and
experience; technical capability; identification of lowest price (in case of
the application of the lowest bid price method); identification of evaluated
price (in case of the application of evaluated price method); identification of
pricing score and general evaluation standards (in case of the application of
combined technical and price-based method) shall be properly set.
Article
24. General evaluation criteria
The general evaluation
criteria set out for the application of combined technical and price-based
method shall be specified as follows:
1. Identifying the
pricing score:
100 or 1,000 – point
system is made identical to technical point scales to identify the pricing
score. Pricing score is calculated by the formula:
Pricing scoreunder consideration
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Gunder consideration
Where:
- Pricing scoreunder
consideration: the pricing score of technical proposal in consideration;
- Gmin: the
lowest quoted bid after error correction, deviation adjustment and discount
deduction (if any) out of the quoted bids whose financial proposals are
evaluated;
- Gin consideration:
the bid after error correction, deviation adjustment and discount deduction (if
any) specified in the financial proposal that has been taken into account.
2. General evaluation
criteria:
General evaluation
criteria are set on the basis of the combined technical and price-based method.
Depending on the size and nature of each contract, the proportion of technical
and price-based scores must be identified to ensure that both are added
together to equal 100%, which is specified as follows:
a) In respect of the
construction contract: Proportion of technical score (K) ranging from 10% to
15% and proportion of price-base score ranging from 85% to 90%;
b) In respect of the
goods procurement contract: Proportion of technical score (K) ranging from 10%
to 30% and proportion of price-base score ranging from 70% to 90%;
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d) Identifying the
overall score:
Overall score under
consideration = K x Technical score under consideration + G x Price-based
score under consideration
Where:
- Technical score under
consideration is identified at the technical evaluation step;
- Price-based score under
consideration is identified at the price-based evaluation step;
- K: Proportion of
technical scores regulated in the overall scoring scale;
- G: Proportion of
price-based score regulated in the overall scoring scale;
- K + G = 100%.
Proportion of technical score (K) and price-based score (G) must be
specifically identified in the bid solicitation.
Article
25. Verifying and approving the bidding documents
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2. The approval of
bidding documents must be granted in writing with reference to the statements
on approving and reporting the verification of bidding documents.
Article
26. Contractor selection
1. 1. Soliciting
contractors;
a) Notification of
Invitation for Bids shall be applied in the event that the short-listing is not
carried out and this shall be performed according to the regulations specified
in Point d Clause 1 Article 7 and Point b Clause 1 or Point a Clause 2 Article
8 of this Decree;
b) Send out the
Invitation for Bids to short-listed contractors.
2. Releasing, correcting
and clarifying the bidding documents:
The release, adjustment
and clarification of bidding documents shall comply with regulations specified
in Clause 2 Article 14 of this Decree.
3. Preparing, submitting,
receiving, managing, adjusting and withdrawing bid packages:
This process shall comply
with regulations specified in Clause 3 Article 14 of this Decree.
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a) Opening technical
proposals must be public and starts within 01 hour from the bid closing.
Technical proposals that are submitted prior to the deadline shall be opened as
required in the bidding solicitation and witnessed by bidder’s participating
representatives without reference to the presence or absence of bidders;
b) The bid opening shall
be carried out in the alphabetical order of bidder's name and follow the
processes hereunder:
- Check the seal of bid
packages;
- Open the bid packages
and clearly read the information about bidder’s name; quantity of originals and
copies of technical proposals; bid letter contained in technical proposals;
validity period of technical proposals; time of contract execution; validity
and expiry date of tender guarantee and other relevant information;
c) A record on the bid
opening: All information specified in Point b of this Clause must be recorded
in the record on the bid opening. The record on the bid opening shall be
countersigned by representatives of procuring entities and participating bidders.
This record must be sent to participating bidders;
d) Procuring entity’s
representatives must be countersigned in the bid letter, authorization of
bidder’s legal representatives (if any); agreement on founding the joint
venture or consortium (if any); tender guarantee and other significant contents
enclosed in each technical proposal;
dd) Financial proposals
from all of bidders must be sealed in a separate envelope by the procuring
entity and countersigned by representatives of procuring entities and participating
bidders.
Article
27. Rules of evaluation and clarification of bid packages as well as error
correction and deviation adjustment
1. Rules of evaluation of
bid packages shall comply with regulations specified in Article 15 of this
Decree.
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3. Error correction and
deviation adjustment shall adhere to regulations specified in Article 17 of
this Decree.
Article
28. Evaluation of bidder’s technical proposals
1. a) Examining the
validation of bidder’s technical proposals must include:
a) Examine the amount of
original and duplicate technical proposals of bidders;
b) Check all parts of a
technical proposal, including bid letter and agreement on founding the joint
venture or consortium (if any), authorization of the signing on the bid letter
(if any); tender guarantee; proofs of bidder’s valid status; proofs of bidder’s
proper competence and experience; technical proposals and others contained in
the technical proposals;
c) Check the consistent
contents of originals and copies to serve as the detailed evaluation of
technical proposals.
2. Evaluating the
validation of technical proposals:
Bidder’s technical
proposals shall be considered valid when they can satisfy the following
requirements:
a) The original technical
proposal is kept available;
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c) The validity of
technical proposals is enabled to meet the requirements specified in the
bidding documents;
d) The tender guarantee
is shown in which the value and validity period must meet requirements
specified in the bidding documents. In case the tender guarantee is required in
the form of the guarantee letter, this letter must be signed by legal
representatives of credit institutions or foreign bank’s branches that have
been founded under Vietnam laws, which must determine the value, validity
period and beneficiary of the tender guarantee according to requirements
specified in the bidding documents;
dd) They are not involved
in two or more technical proposals in which they serve as the main contractor
(independent contractor or partner of joint venture or consortium);
e) Agreement on founding
the joint venture or consortium is signed and sealed by each partner’s legal
representatives (if any);
g) Contractors are not
affected by any ban on participating in the bidding according to legal
regulations on bidding;
h) Contractors must ensure
their valid status according to regulations specified in Clause 1 Article 5 of
the Bidding Law.
Contractors who have sent
their valid technical proposals shall be considered and evaluated to confirm
their competence and experience. As for a contract that has passed the
prequalification stage, their competence and experience do not need to be
evaluated.
3. Evaluating bidder’s
competence and experience:
a) Evaluation of bidder’s
competence and experience shall adhere to regulations specified in the bidding documents;
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c) Bidders that have
passed the prequalification stage, shown their valid technical proposals and
had their current competence meet the requirements of contracts shall be
considered and evaluated to confirm their technical capability.
4. Evaluation of
technical capability:
a) Evaluation of bidder’s
technical capability shall adhere to the evaluation standards set out in the
bidding documents;
b) Contractors who have
proved their proper technical capability shall be considered and evaluated to
confirm their financial credentials.
5. List of bidders who
can meet technical requirements must be approved in writing and referred to the
statement on approving and reporting the verification of technical evaluation
result. Procuring entity must announce the list of bidders who meet technical
requirements to all of participating bidders, in which those who meet the technical
requirements shall be invited to open their financial proposals.
Article
29. Opening the financial proposal
1. Examining the sealed
envelope containing financial proposals.
2. Opening the financial
proposal:
a) Only financial
proposal that meets the technical requirements shall be opened in the witness
of participating bidders who attend the opening of financial proposal without
reference to the presence or absence of bidders;
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c) The opening of
financial proposals shall be done in the alphabetical order of bidders who meet
the technical proposal and follow the processes hereunder:
- Examining the unbroken
seal of proposal envelope;
- Opening and reading
aloud the information about bidder’s names; quantity of originals and copies of
financial proposals; bid letter contained in the financial proposal; effective
date of financial proposal; quoted bids specified in the bid letter; discount
value (if any); technical scores of the bid packages that meet the technical
requirements and other relevant information.
3. The record on the
opening of financial proposal:
a) All information
specified Clause 1 and Clause 2 must be recorded in the record on the opening
of financial proposals. The record on the opening of financial proposals must
be countersigned by representatives of procuring entity and participating
bidders. This record must be sent to bidders who meet the technical
requirements;
b) Representatives of
procuring entity must append their signature on all pages of the original
financial proposals.
Article
30. Evaluating the financial proposal
1. Examining the
validation of bidder’s financial proposals must include:
a) Examine the amount of
original and duplicate financial proposals;
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c) Examine the
consistency of originals and duplicates to serve for the purpose of performing
the specific evaluation of financial proposals.
2. Evaluating the
validation of financial proposals:
Financial proposals of
bidders shall be considered valid when satisfying the following requirements:
a) The original of
financial proposal is kept available;
b) Their bid letter
contained in the financial proposal must be signed and sealed by bidder’s legal
representatives (if any) as required in the bidding documents; in the bid
letter, the quoted bid must be specified and fixed in numbers or words and must
correspond to total bid specified in the overall price list as well as is not
allowed to make different quotations or provide terms and conditions that cause
disadvantages to investors or procuring entities. As for joint venture or
consortium bidders, financial proposal must be signed and sealed by legal
representatives of joint venture or consortium partners (if any) or the heads
of joint venture or consortium according to the duties assigned in the
agreement on founding joint venture or consortium;
c) Validity of financial
proposals must meet the requirements specified in the bidding documents;
Those who keep valid
financial proposals shall be qualified for the detailed evaluation.
3. Detailed evaluation of
financial proposals and rating of bidders:
a) Detailed evaluation of
financial proposals and rating of bidders shall comply with the evaluation
standards regulated in the bidding documents;
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- List of bidders who are
put under consideration, ranked as well as bidder's ranks;
- List of bidders who
fail to meet the requirements and are eliminated; reasons for this elimination;
- Remarks on the
competitiveness, equality, transparency and economic efficiency of the
selection of contractors. In case of a lack of competitiveness, equality,
transparency and economic efficiency, reasons and handling measures should be
clarified and suggested;
- Any content that fails
to conform to legal regulations on the bidding, possibly results to ambiguity
or controversies during the implementation or create certain deviations of the
contractor selection result (if any); any recommendation and handling measures.
Article
31. Negotiating the contract; submitting, verifying, approving and publicly
announcing the result of contractor selection.
1. The bidder who is
ranked at the first position shall be invited to negotiate the contract with
procuring entities.
2. The contract
negotiation shall comply with the regulations specified in Article 19 of this
Decree.
3. Submitting, verifying,
approving and publicly announcing the result of contractor selection shall
adhere to regulations specified in Article 20 of this Decree.
Chapter
III
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Section
1: BIDDERS AS ORGANIZATIONS
Article
32. Specific process
1. Pre-selection stage
must include :
a) Short-listing bidders
(when necessary);
b) Composing the bidding
solicitation;
c) Verifying and
approving the bidding documents.
2. Contractor selection
stage must include :
a) Soliciting
contractors ;
b) Releasing, amending
and clarifying the bidding documents;
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d) Opening technical
proposals.
3. Evaluation of
technical proposals must include:
a) Examining and
evaluating the validation of technical proposals;
b) Evaluating details of
technical proposals;
c) Approving list of
bidders who prove their proper technical capability.
4. Opening and evaluating
the financial proposal must include:
a) Opening financial
proposals of bidders who are present in the approved list;
b) Examining and
evaluating the validation of financial proposals;
c) Evaluating details of
financial proposals;
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5. Negotiating the
contract.
6. Submitting, verifying,
approving and publicly announcing the result of contractor selection.
7. Completing and
entering into the contract.
Article 33. Short-listing
Based on the size and
nature of the contract, the short-listing can be applied to select the bidder
who prove their proper competence and experience as required in the contract
for participation in the bidding. The application of the short-listing process shall
be decided by competent persons as well as clarified in the plan for the
selection of contractors.
1. In respect of the open
bidding :
a) Generating the request
for Expression of Interest :
- The request for EOI
must include the following contents: a summary of project and contract
information ; instructions on the preparation and submission of EOIs;
required standards in contractor’s competence and experience which consists of
requirements for the amount, capability and experience of bidding experts;
- 100-point scoring
system shall be applied to set the evaluation criteria of responses to EOIs,
which must stipulate that the minimum score is not lower than 60% of the total
score as well as provide the specific evaluating scores for competence, experience
and personnel, which must not be lower than 50% of maximum score of such
contents.
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c) The notification of
EOI requests must comply with regulations specified in Point a Clause 1 Article
7 and Point b Clause 1 or Point a Clause 2 Article 8 of this Decree;
d) Releasing the EOI
requests:
The EOI request shall be
released free of charge to contractors prior to the deadline for bid
submission;
dd) Receiving and
managing EOIs:
Procuring entities must
receive and manage EOIs according to the regulations on the secret file
management till the result of EOIs is given;
e) Opening and evaluating
EOIs:
- EOIs that have been
submitted at the time and venue regulated in the request for EOIs shall be
opened right after the deadline for bid submission. The opening of EOIs must be
recorded and the record on the bid opening shall be sent to contractors who respond
to these EOIs. EOIs that have arrived after the deadline for bid submission are
considered ineligible to be opened, invalid and will be eliminated ;
- Evaluation of EOIs
shall adhere to the evaluation standards set out in the request for EOIs. EOIs
of contractors that gain evaluating scores not lower than the minimum required
score shall be accepted in the short list ; any EOI that gains the highest
score shall be ranked at the first position ; if there are more than 06
contractors who meet the requirements, only 06 top bidders shall be accepted to
present in the short list;
g) Submitting, verifying
and approving the EOI result :
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- The result of EOIs must
be verified as prescribed in Clause 1 and Clause 2 Article 106 of this Decree
prior to the approval;
- Result of EOIs must be
approved in writing and referred to the statements on approving and reporting
the verification result of EOIs;
- As for the
short-listing, the written approval of the EOI result must comprise
short-listed bidder’s name and notes (if any). In case the short-listing is
failed, documents on approving the EOI result must clarify reasons for the
failure to short-listing the contractors;
h) Publicly announcing
the short list : The short list must be widely disseminated as prescribed
in Point a Clause 1 Article 7 and Point c Clause 1 or Point b Clause 2 Article
8 of this Decree and sending notifications to contractors who have submitted
their responses to EOIs.
2. In respect of the
limited bidding:
a) Determining and
approving the short list : The determination and approval of the short
list must be carried out to minimum 03 bidders who prove their proper
competence and experience to match the requirements of the contract and wish to
participating in the bidding;
b) Publicly announcing
the short list: after approval, the short list must be publicly announced
according to regulations specified in Point d Clause 1 Article 7 and Point c
Clause 1 or Point b Clause 2 Article 8 of this Decree.
3. Bidders present in the
short list are not allowed to form the joint venture or consortium together to
participate in the same bidding.
Article
34. Composing the bidding solicitation
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2. Standards in the
evaluation of bid packages comprise technical standards; identification of
lowest quoted price (in case of the application of the lowest price method);
identification of fixed price (in case of the application of fixed price
method); identification of pricing score and overall evaluation standards (in
case of the application of combined technical and price-based method). The
bidding solicitation is not allowed to provide any terms and conditions to
restrict bidder’s participation in the bidding or aim to give priority to one
or several bidders, which causes unfair competitiveness.
3. Technical evaluation
criteria: 100 or 1,000-point system shall be used for evaluation as follows:
a) Experience and
competence of bidders must obtain the score accounting for 10% to 20% of
total score;
b) Solution and
methodology of the contract execution must obtain the score accounting for 30%
to 40% of total score;
c) Personnel for the
contract execution must obtain the score accounting for 50% to 60% of
total score;
d) Total score proportion
of the content specified in regulations stated in Point a, b, c of this Clause
must equal 100%;
dd) Technical proposals
are evaluated to meet the technical requirements when their technical scores
are not lower than 70% (equivalent to 80% of total score in terms of the
consulting contracts that set out high and particular technical criteria).
Additionally, the score of each content in terms of the competence, experience,
solution, methodology and personnel of bidders is not lower than 60% (equivalent
to 70% applied to the consulting contracts that set out high and particular
technical criteria) of the maximum score that that content can obtain.
4. The identification of
lowest price (in case of the application of the lowest bid price method) shall
be carried out as prescribed in Point c Clause 3 of this Decree.
5. The identification of
fixed price (in case of the application of the fixed bid price method) shall be
based on :
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b) Correcting
errors ;
c) Adjusting deviations ;
d) Deducting discounts
(if any);
dd) Conversing the quoted
bid price into a common currency (if any);
e) Identifying the
winning quoted price, not exceeding the bid price that has been specified and
fixed in the bidding documents.
6. Standards in the
overall evaluation (in case of the application of the combined technical and
price-based method) shall be set out as follows :
a) Determining the
pricing score:
100 or 1,000-point scale
shall be used to correspond to the technical scoring system. The pricing score
shall be identified as follows:
Pricing score under consideration =
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G under consideration
Where:
- Pricing score under
consideration : The pricing score of financial proposal that has put
under consideration;
- Gmin : The
lowest quoted bid price out of the quoted bid price of bidders of which their
financial capability is specifically evaluated after error correction,
deviation adjustment and discount deduction (if any);
- G under
consideration : The quoted bid price after error correction, deviation
adjustment and discount deduction (if any), specified in the financial proposal
under consideration.
b) Overall evaluation
criteria:
Overall score shall be
identified as follows:
Overall score under
consideration = K x Technical score under consideration + G x
Pricing score under consideration
Where:
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- Pricing score under
consideration : The score identified in the price-based evaluation stage;
- K: The proportion of
technical score regulated in the overall scoring scale that accounts for 70% to
80%;
- G: The proportion of
price-based score regulated in the overall scoring scale that accounts for 20%
to 30%;
- K + G= 100%.
Article
35. Verifying and approving the bidding documents
1. Bidding documents must
be verified as prescribed in Article 105 of this Decree prior to the approval;
2. b) Approving bidding
documents must be performed in writing and referred to the statements on
approving and reporting the verification of bidding documents;
Article
36. Contractor selection
1. Soliciting
contractors;
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b) Send out Invitation
for Bids to contractors who are present in the short list.
2. Release, amend and
clarify the bidding documents;
Releasing, amending and
clarifying bidding documents must adhere to regulations specified in Clause 2
Article 14 of this Decree.
3. Prepare, submit,
receive, manage, adjust and withdraw bid packages:
Preparing, submitting,
receiving, managing, adjusting and withdrawing bid packages shall be
implemented as prescribed in Clause 3 Article 14 of this Decree.
4. Open technical
proposals:
The opening of technical
proposals must adhere to regulations specified in Clause 4 Article 26 of this
Decree and shall not include the content regarding the tender guarantee.
Article
37. Rules of evaluation and clarification of bid packages as well as error
correction and deviation adjustment
1. The evaluation of bid
packages shall comply with rules regulated in Article 15 of this Decree.
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3. Error correction and
deviation adjustment shall adhere to regulations specified in Article 17 of
this Decree.
Article
38. Evaluation of technical proposals
1. a) Examining and
evaluating the validation of technical proposals:
a) The examination and
evaluation of the validity of technical proposal shall be implemented as
prescribed in Clause 1 and Clause 2 Article 28 of this Decree, except for the
content regarding the evaluation of the validity of tender guarantees;
b) Those who keep valid
technical proposals shall be qualified for the next specific evaluation.
2. Evaluating details of
technical proposals:
a) Evaluation of bidder’s
technical capability shall adhere to the evaluation standards set out in the
bidding documents;
b) Bidders who have met
the technical requirements or gained the highest technical score (in case of
the application of the technical method) shall be considered and their
financial proposals shall be evaluated;
c) List of bidders who
have met technical requirements or gained the highest technical score (in case
of the application of technical method) must be approved in writing and
referred to the statements on approving and reporting the verification of list
of bidders who meet technical requirements. Procuring entity must announce the
list of bidders who meet technical requirements or gain the highest technical
score (in case of the application of the technical method) to all of
participating bidders in which those who meet the technical requirements or
gain the highest technical score (in case of the application of technical
method) shall be invited to open their financial proposals.
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1. The opening of
financial proposals shall be implemented as prescribed in Clause 2 Article 29
of this Decree.
2. The evaluation of
financial proposals shall be implemented as prescribed in Article 30 of this
Decree.
Article
40. Negotiating the contract
1. The contract
negotiation shall comply with the regulations specified in Clause 1 and Clause
2 of this Decree.
2. Rules of contract
negotiation:
The bidders' proposals
that satisfy the requirements of the bidding documents shall not be negotiated.
3. The content of
contract negotiation:
a) Unclear and improper
contents or those that cause inconsistency between bidding documents and bid
packages as well as different contents of the same bid package during the
contract execution;
b) Deviations that have
been detected and recommendations on possible adjustment in the bid package (if
any), including the proposals for changes or alternatives of bidders if bidding
documents set out regulations on allowing bidders to provide the alternatives;
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In the course of
negotiation, contractors are not allowed to change their proposed personnel,
except for the case in which the evaluation of bid packages is prolonged more
than the regulated time or, due to the unexpected reasons that prevent their
key proposed personnel from participating in the contract, bidders are allowed
to use different personnel provided that these substitutes can prove expertise,
experience and capability equivalent to or better than the proposed personnel.
Despite this change, bidders are not allowed to adjust their quoted bid price;
d) Any issue that arises
during the selection of contractors (if any) in the aim of providing full of
detailed contents given in the bid package;
dd) Any expense incurred
by the provision of consulting services on the basis of satisfying the
requirements set out in the bid package as well as actual conditions;
e) Other essential
contents.
4. In the course of
contract negotiation, negotiating parties must draft the official contract;
terms and conditions of contract, annexes consisting of detailed list of
workloads, price list and the implementation progress (if any).
5. In the event that the
negotiation fails, procuring entities shall send reports to investors so that
they can decide whether another bidder who is ranked at the second position
will be invited to negotiate the contract; if the consecutive negotiation with
the second bidder is not successful, procuring entities must compile report to
investors for consideration or decision on the bid cancellation as prescribed
in Clause 1 Article 17 of the Bidding Law.
Article
41. Submitting, verifying, approving and publicly announcing the result of
contractor selection
Submitting, verifying,
approving and publicly announcing the result of contractor selection shall be
carried out as prescribed in Article 20 of this Decree.
Section
2: BIDDERS AS INDIVIDUALS
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1. Procuring entities
must provide the reference terms and draft contract for the position of
consultants of individual bidders that need to be selected as well as determine
the list from 03 to 05 of consultants of individual bidders that will be then
submitted for approval. In case there is only one consultant of individual
bidders that meet the expected requirements for the contract execution,
procuring entities send a report to investors for their consideration and
decision. The content of reference terms must include:
a) A concise description
of projects;
b) Requirements for
coverage, workload, quality and time of the contract execution;
c) Requirements for
capability and expertise of the consultants;
d) Conditions and venues
for the contract execution;
dd) Other essential
contents (if any).
2. Consultants of bidders
as individuals may include one individual consultant or a group of consultants.
If the consulting party is a group of consulting experts, they must appoint
their representatives to carry out transactions with procuring entities and
investors.
3. Based on all documents
that procuring entities submit, investors must consider and approve reference
terms and list of consultants of individual bidders.
Article
43. Sending out the invitation letters and evaluating the scientific background
record of consultants of individual bidders ; approving and signing the
contract
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2. Submitting the
scientific background record:
Consultants of individual
bidders must prepare their scientific background records as required in the
reference terms as well as technical proposals (if any) submitted to procuring
entities according to the time and venue specified in the invitation letters.
3. Evaluating the
scientific background record:
Based on the content
mentioned in the reference terms, procuring entities must evaluate the
scientific background record of each consultant of individual bidder.
Individual bidder’s consultants, who have their legal status as stipulated in
Clause 2 Article 5 of the Bidding Law as well as keep their best scientific
background record and technical proposal (if any) in compliance with the
reference terms, shall be invited to negotiate and complete the contract with
procuring entities.
4. Negotiating and
completing the contract.
5. Approving the result
of the selection of individual bidder’s consultants must be carried out in
writing and referred to the statements on approving and reporting the result of
evaluating the scientific background records of individual bidder's consultants
as well as the result of contract negotiation. The official contract must
accord with the decision on approving the result of the selection of individual
bidder's consultants, the result of contract negotiation and contents enclosed
in the reference terms.
Chapter
IV
TWO-STAGE
PROCEDURES FOR OPEN BIDDING AND SELECTIVE BIDDING FOR SALE CONTRACTS,
CONSTRUCTION CONTRACTS, AND MIXED CONTRACTS
Section
1: TWO-STAGE ONE-EVELOPE PROCEDURES
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1. Depending on the scale
and nature of the contract, the short-listing method may be employed to invite
capable and experienced contractors that satisfy the requirements of the
contract to bid for the contract. The employment of short-listing method shall
be decided by a competent person, and must be specified in the bidding plan;
bidders shall be short-listed in accordance with Article 22 of this Decree.
2. Making the invitation
for bids in the first stage:
a) The basis for making
the invitation for bids is specified in Clause 1 Article 12 of this Decree;
b) The invitation for
bids in the first stage contains: summary of the project/contract; instructions
on preparation and submission of bids in the first stage; technical
requirements of the contract; financial requirements in order for bidders to
propose their technical plans and financial plans, which are the basis for the
procuring party to complete the invitation for bids at the second stage;
bidders are not requested to submit their bids or take measures to ensure their
participation in the bidding.
The invitation for bids
must not contain any clause that restricts participation of bidders or gives
advantage to certain bidders, which causes unfair competition.
3. Evaluating and
approving the invitation for bids:
a) The invitation for
bids must be evaluated in accordance with Article 105 of this Decree before it
is approved;
b) The approval for
invitation for bids must be granted in writing in accordance with the report on
evaluation of the invitation for bids.
Article
45. Holding the first stage of bidding
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2. Issuing, adjusting,
clarifying the invitation for bids:
The invitation for bids
shall be issued, adjusted, and clarified in accordance with Clause 2 Article 14
of this Decree.
3. Preparing, submitting,
receiving, managing, adjusting, and withdrawing bid-envelopes:
Bid-envelopes shall be
prepared, submitted, received, managed, adjusted, and withdrawn in accordance
with Clause 3 Article 14 of this Decree.
4. Bid opening:
a) Bid-envelopes shall be
opened publicly within 01 hours from the deadline for submitting bids. Only
open the bid-envelopes received by the procuring entity before the bid closing
time as required by the invitation for bids in the presence of representatives
of bidders during the bid opening ceremony, regardless of the presence of the
bidders;
b) Bid envelops shall be
opened one by one in alphabetical order as follows:
- Check the seal;
- Open the envelop, read
out loud the name of the bidder, the number of original copies and photocopies,
primary information in the bid form; effective date of the bid-envelope, and
relevant information.
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d) The representative of
the procuring entity must sign the original copy of the bid form, the letter of
attorney of the bidder (if any), and the partnership agreement (if any).
5. Discussion about
bid-envelopes in the first stage:
While evaluating
bid-envelopes in the first stage, according to requirements in the invitation
for bids and proposals of bidders in the bid-envelopes, the procuring entity
shall discuss with each bidder in order to clarify the technical and financial
requirements of the contract, which is necessary for completion of the
invitation for bids at the second stage. The procuring entity must ensure that
information in bid-envelopes in the first stage of bidders is not revealed.
Article
46. Preparing, organizing the second stage of bidding
1. Making the invitation
for bids in the second stage:
a) Basis for making
invitation for bids:
Apart from the basis
specified in Clause 1 Article 12 of this Decree, when making the invitation for
bids in the second stage, it is required to refer to proposals of bidders that
participate in the first stage.
b) Contents of the
invitation for bids:
The invitation for bids
must specify criteria for evaluating bid-envelopes, including criteria for
evaluating bidders’ competence and experience (If bidders have undergone
prequalification, the criteria for evaluating bidders’ experience may be
omitted in the invitation for bids; however, bidders must be requested to
update information about their competence), criteria for technical evaluation;
criteria for determination of evaluated prices (if applied), prices, and
overall evaluation criteria (in case of combination of technical and pricing
evaluation) and relevant contents mentioned in Clauses 2, 3, 4, 5, 7, 8 of
Article 12, and Article 24 of this Decree. The invitation for bids must not
contain any clause that restricts the participation of bidders or favor certain
bidders, which creates unfair competition.
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a) The invitation for
bids must be evaluated in accordance with Article 105 of this Decree before it
is approved;
b) The approval for
invitation for bids must be granted in writing in accordance with the report on
evaluation of the invitation for bids.
3. Holding the bidding:
a) Every bidder who has
submitted the bid-envelope in the first stage shall receive the invitation for
bids in the second stage. The invitation for bids in the second stage shall be
issued, adjusted, and clarified in accordance with Clause 2 Article 14 of this
Decree;
b) Preparing, submitting,
receiving, managing, adjusting, and withdrawing bid-envelopes:
Bid-envelopes shall be
prepared, submitted, received, managed, adjusted, and withdrawn in accordance
with Clause 3 Article 14 of this Decree.
4. Bid opening:
Bid-envelopes shall be
opened in accordance with Clause 4 Article 14 of this Decree.
Article
47. Evaluation of bid-envelopes and contract negotiation in the second stage
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2. Bid-envelopes shall be
clarified in accordance with Article 16 of this Decree.
3. Error correction and
adjustment of deviations shall be carried out in accordance with Article 17 of
this Decree.
4. Evaluation of
bid-envelopes and contract negotiation shall be carried out in accordance with
Article 18 and Article 19 of this Decree.
Article
48. Submitting, verifying, approving, and announcing contractor selection
result; drafting and concluding contract
1. The result of
contractor selection shall be submitted, verified, approved, and announced in
accordance with Article 20 of this Decree.
2. Drafting and
concluding the contract:
The contract between both
parties must conform to the decision to approve the contractor selection
result, the contract negotiation record, the bid-envelope, the invitation for
bids, and relevant documents.
Section
2: TWO-STAGE TWO-EVELOPE PROCEDURES
Article
49. Preparation for first stage of bidding
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2. Making the invitation
for bids of the first stage:
a) The basis for making
the invitation for bids is specified in Clause 1 Article 12 of this Decree;
b) Contents of the
invitation for bids:
The invitation for bids
must specify criteria for evaluating bid-envelopes, including criteria for
evaluating bidders’ competence and experience (If the bidders have undergone
prequalification, the criteria for evaluating bidders’ experience may be
omitted in the invitation for bids; however, bidders must be requested to
update info about their competence), criteria for technical evaluation; request
for bidders’ financial proposals, and relevant contents mentioned in Clauses 2,
3, 4, 5, 7, 8 of Article 12, and Article 24 of this Decree. The invitation for
bids must not contain any clause that restricts the participation of bidders or
favor certain bidders, which creates unfair competition.
3. Evaluating and
approving the invitation for bids:
a) The invitation for
bids must be evaluated in accordance with Article 105 of this Decree before it
is approved;
b) The approval for
invitation for bids must be granted in writing in accordance with the report on
evaluation of the invitation for bids.
Article
50. Holding the first stage of bidding
1. a) The first stage of
bid invitation shall be carried out in accordance with Clause 1 Article 26 of
this Decree.
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The invitation for bids
shall be issued, adjusted, and clarified in accordance with Clause 2 Article 14
of this Decree.
3. Preparing, submitting,
receiving, managing, adjusting, and withdrawing bid-envelopes:
Bid-envelopes shall be
prepared, submitted, received, managed, adjusted, and withdrawn in accordance
with Clause 3 Article 14 of this Decree.
4. Opening technical
proposals:
Technical proposals shall
be opened in accordance with Clause 4 Article 26 of this Decree. Financial
proposals shall be opened in the second stage.
5. Evaluation of
technical proposals:
a) Technical proposals
shall be evaluated in accordance with Article 28 of this Decree.
b) While evaluating
technical proposals, according to requirements in the invitation for bids and
technical proposals of bidders, the procuring entity shall discuss with each
bidder in order to make technical adjustment to the invitation for bids.
6. The list of bidders
that meet technical requirements in the first stage must be approved in writing
based on the report on verification of technical evaluation result . The
procuring party must send the list of bidders that meet technical requirements
to all bidders that participate in the first stage, then invite the bidders
that meet technical requirements in the first stage to participate in the
second stage.
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1. Making the invitation
for bids in the second stage:
a) Basis for making
invitation for bids:
Apart from the basis
specified in Clause 1 Article 12 of this Decree, when making the invitation for
bids in the second stage, it is required to refer to the discussions with
bidders that participate in the first stage;
b) Contents of the
invitation for bids:
The invitation for bids
in the second stage is made based on the invitation for bids in the first stage
and must conform to technical adjustments agreed with bidders.
2. Evaluating and
approving the invitation for bids:
a) The invitation for
bids must be evaluated in accordance with Article 105 of this Decree before it
is approved; only the contents related to technical adjustments compared to the
invitation for bids in the first stage shall be evaluated;
b) The approval for
invitation for bids must be granted in writing in accordance with the report on
evaluation of the invitation for bids.
3. Issuing, adjusting,
clarifying the invitation for bids:
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4. Preparing, submitting,
receiving, managing, adjusting, and withdrawing bid-envelopes:
Bid-envelopes shall be
prepared, submitted, received, managed, adjusted, and withdrawn in accordance
with Clause 3 Article 14 of this Decree. A bid-envelope consists of a technical
proposal and a financial proposal as requested in the invitation for bids in
the second stage, which are conformable with technical adjustments.
5. Bid opening:
a) Bids shall be opened
publicly within 01 hours from dead line for bid submission. Only open the
bid-envelopes received by the procuring entity before the bid closing time as
required by the invitation for bids in the presence of representatives of
bidders during the bid opening ceremony, regardless of the presence of the
bidders;
b) Bids shall be opened
one by one in alphabetical order as follows:
- Request the
representative of each bidder who participates in the bid opening to confirm
the inclusion of letter of price reduction in their financial proposal in the
first stage and the bid-envelope in the second stage;
- Check the seals of the
envelopes that contain financial proposals in the first stage, financial
proposals in the first stage of the bidders that participate in the second
stage, and bid-envelopes of the bidders that participate in the second stage of
bidding;
- Open the financial
proposals in the first stage of the bidder that participate in the second
stage, and open the bid-envelopes in he second stage, each of which consists of
a technical proposal and a financial proposal in the second stage, which are
conformable with technical adjustments;
c) Bid opening record:
information mentioned in Point b of this Clause must be written in the bid
opening record. The bid opening record must be signed by representatives of the
procuring entity and bidders that attend the bid opening, and be sent to every
bidder that participate in the second stage of bidding;
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Article
52. Evaluation of bid-envelopes and contract negotiation in the second stage
1. Evaluation of
bid-envelopes and contract negotiation in the second stage shall be carried out
in accordance with Article 18 and Article 19 of this Decree. The technical
contents that have been concurred with in the first stage shall not be
evaluated again.
2. Every bidder who
satisfies technical requirements in the second stage shall have their financial
proposal evaluated. Financial evaluation shall be carried out in consideration
of the bidder’s financial proposal in the first stage and technical proposal in
the second stage, technical proposal in the first stage, and technical
adjustments proposed by the bidder in the second stage.
Article
53. Submitting, verifying, approving, and announcing contractor selection
result; drafting and concluding contract
1. The result of
contractor selection shall be reported, verified, approved, and announced in
accordance with Article 20 of this Decree.
2. Drafting and
concluding the contract:
The contract between both
parties must conform to the decision to approve the contractor selection
result, the contract negotiation record, the bid-envelope, the invitation for
bids, and relevant documents.
Chapter
V
NO-BID
CONTRACT AWARDING, COMPETITIVE OFFERING, DIRECT PROCUREMENT, AND SELF-SUPPLY
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Article
54: Limits on no-bid contract awarding
Limits on no-bid contract
awarding prescribed in Point e Clause 1 Article 22 of the Law on Bidding:
1. Contracts for
consulting services, non-consulting services, and public services: VND 500
million; contracts for goods procurement, construction, installation,
procurement of medicines, medical equipment, public procurement, mixed
contracts: VND 01 billion;
2. Contracts for regular
procurements: VND 100 million.
Article
55. Standard process of no-bid contract awarding
1. Preparation for
contractor selection:
a) Making the request for
proposals:
The request for proposals
must be made in accordance with Clause 1 Article 12 of this Decree. The request
for proposals shall contain summary of the project/contract; instructions on
preparation and submission of the proposal; requirements with regard to the
contractor’s competence and experience; criteria for technical evaluation and
price determination. The contractor’s competence and experience shall be
assessed as satisfactory or unsatisfactory;
b) Evaluating and
approving the request for proposals, selection of the no-bid contractor:
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- b) The approval for
invitation for bids must be granted in writing in accordance with the report on
evaluation of the request for proposals.
- The eligible contractor
defined in Points a, b, c, d, e and h Clause 1 Article 5 of the Law on Bidding,
who is experienced and capable enough to execute the contract, shall receive
the request for proposals.
2. Contractor selection:
a) The request for
proposals shall be issued to the selected contractor;
b) The contractor shall
prepare and submit the proposal as requested in the request for proposals.
3. Proposal evaluation
and negotiation:
a) The proposal shall be
evaluated in accordance with the criteria specified in the request for proposals.
During the evaluation, the procuring entity shall request the contractor to
enter into a negotiation, clarify, or adjust information in the proposal in
order to prove that the contractor meets all requirements with regard to
experience, competence, punctuality, quality, technical solutions, and
administration serving the contract execution;
b) The contractor shall
be selected when all of the following requirements are satisfied: the
contractor has a valid proposal; the bidder’s experience, competence, and
technical proposal satisfy requirements in the request for proposals; the
quoted prices do not exceed the approved estimates.
4. The result of no-bid
contract awarding shall be reported, verified, approved, and announced in
accordance with Article 20 of this Decree.
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The contract between both
parties must conform to the decision to approve the no-bid contract, the
contract negotiation record, the proposal, the request for proposals, and
relevant documents.
Article
56. Shortened process of no-bid contract awarding
1. The shortened process
is applied to contracts defined in Point a Clause 1 Article 22 of the Law on
Bidding, except for those that must be executed to ensure state secrets:
The investor or the regulatory
body in charge of the contract shall appoint an experienced and capable
contractor to execute the contract. Within 15 days from the appointment, both
parties must complete the no-bid contract awarding procedures, including:
preparing and sending the draft contract to the contractor, which specifies the
tasks, schedule, quality, and corresponding value, then concluding the
contract. According to the result of contract negotiation, the investor or the
regulatory body shall approve the no-bid contract and sign the contract with
the selected contractor. The contractor selection shall be announced in
accordance with Point d Clause 1 Article 7 and Point c Clause 1 or Point b
Clause 2 Article 8 of this Decree.
2. If the contract does
not exceed the limits on no-bid contracts prescribed in Article 54 of this
Decree:
a) In consideration of
the targets, tasks, and approved estimates, the procuring entity shall prepare
and send the draft contract to the contractor, who is considered experienced
and capable enough to execute the contract by the investor. The draft contract
shall specify the tasks, schedule, quality, corresponding value, and relevant
contents;
b) Based on the draft
contract, the procuring entity and the selected contractor shall enter into a
negotiation and complete the contract, which is the basis for approving the
contractor selection and contract conclusion;
c) Contract conclusion:
The contract signed by
the parties must conform to the decision to the contractor selection result,
the contract negotiation record, and relevant documents.
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Article
57: Scope of competitive offering
1. Standard process of
competitive offering applies to any of the contracts defined in Clause 1
Article 23 of the Law on Bidding, the value of which does not exceed VND 05
billion.
2. Shortened process of
competitive offering applies to any of the contracts defined in Point a Clause
1 Article 23 of the Law on Bidding whose value does not exceed VND 500 million;
any of the contracts defined in Point b and Point c Clause 1 Article 23 of the
Law on Bidding whose value does not exceed VND 1 billion; and regular
procurement contracts whose value does not exceed VND 200 million.
Article
58. Standard process of competitive offering
1. Preparation for
contractor selection:
a) Making the request for
proposals:
The request for proposals
must be made in accordance with Clause 1 Article 12 of this Decree. The request
for proposals shall contain summary of the project/contract; instructions on
preparation and submission of the proposal; requirements with regard to the
contractor’s competence and experience; criteria for technical evaluation and
determination of lowest prices. The contractor’s competence and experience
shall be assessed as satisfactory or unsatisfactory;
b) Evaluating and
approving the request for proposals:
- The request for
proposals must be evaluated in accordance with Article 105 of this Decree
before it is approved;
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2. Contractor selection:
a) The procuring entity
shall post the request for offers in accordance with Point d Clause 1 Article 7
and Point b Clause 1 or Point a Clause 2 Article 8 of this Decree.
The request for proposals
shall be issued to any bidder that wishes to participate by the deadline
written in the request for offers (at least 03 working days from the day on
which the request is posted on the national procurement system or the Vietnam
Public Procurement Review Journal);
b) The request for
proposals shall be adjusted and clarified in accordance with Clause 2 Article
14 of this Decree;
c) Bidders shall send
their proposals to the procuring entity directly or by post. Each bidder may
submit only one proposal;
d) The procuring entity
is responsible for protect the confidentiality of information in the proposals
submitted by bidders. Right after the deadline for submitting proposals, the
procuring entity shall open the proposals and make a bid opening record, which
contains: names of bidders, offered prices, validity periods of proposals;
values and validity periods of tender guarantee; contract duration. This record
shall be sent to every bidder that has submitted their proposals.
3. Evaluation of Proposal
evaluation and negotiation:
a) The procuring entity
shall evaluate the proposals submitted. A bidder is “passed” if that bidder’s
proposal is valid, the bidder’s experience and competence are satisfactory, and
all technical requirements are satisfied.
b) The procuring entity
shall compare offered prices in the proposals that satisfy technical
requirements in order to determine the proposal that offers the lowest price.
The bidder that offers the lowest price which does not exceed the contract
value after error correction, adjustment of deviation, and deduction of
discount (if any) shall be invited to enter into the contract negotiation;
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4. Reporting, verifying,
approving, and announcing contractor selection result:
The result of contractor
selection shall be reported, verified, and announced in accordance with Article
20 of this Decree.
5. Drafting and
concluding the contract:
The
contract between both parties must conform to the decision to approve the
result of competitive offering, the contract negotiation record, the proposal,
the request for proposals, and relevant documents.
6. Schedule for standard
process of competitive offering:
a) The minimum time limit
for preparing the proposal is 05 working days from the day on which the request
for proposals is issued;
b) If
the request for proposals must be adjusted, the procuring entity must notify
the bidder at least 03 working days before the deadline for submitting
proposals;
c) Proposals shall be
evaluated within 20 days from the bid opening date. Then, the procuring entity
shall make a request for approval for the result of contractor selection, which
is enclosed with the report on proposal evaluation.
d) The result of
contractor selection shall be verified within 07 working days from the day on
which the request for verification is received;
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e) Other deadlines are
specified in Clause 1 Article 12 of the Law on Bidding.
Article
59. Shortened process of competitive offering
1. Preparing and sending
the request for proposals:
a) The request for
quotation shall specify the tasks, technical requirements, validity period of
the quotation, quotation submission date, requirements with regard to warranty,
maintenance, training, transfer, contract drafting, time for preparation and
submission of the quotation (at least 03 working days from the date of issue of
the request for quotation) and other relevant information. Guarantee for
participation in bidding shall be omitted;
b) After the request for
quotations is approved, the procuring entity shall post it on a provincial
newspaper, or the national procurement system, or send it directly to at least
03 capable bidders. If the request for
quotations is send directly, the procuring entity shall send the request to any
bidder that wishes to offers their quotations by the deadline for submitting
quotations. The request for quotations shall be issued free of charged
and sent directly, by post, email, or fax.
2. Submitting and
receiving quotations:
a) Each contractor shall
prepare and submit 01 quotation as requested. The quotation may be submitted
directly, by post, email, or fax;
b) The procuring entity
is responsible for protect the confidentiality of information in the quotations
submitted by bidders. Right after the deadline for submitting quotations, the
procuring entity make a note of receipt of quotations submitted by the
deadline, which specify information such as: contains: names of bidders, quoted
prices, validity periods of quotations. This note shall be sent to every bidder
who has submitted their quotation.
3. Evaluation of
quotations:
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b) During the evaluation,
procuring entity may invite the bidder that offers the lowest price after error
correction, adjustment of deviation, and deduction of discount (if any) to
enter into a contract negotiation.
4. Reporting, verifying,
approving, and announcing contractor selection result:
The result of contractor
selection shall be reported, verified, and announced in accordance with Article
20 of this Decree.
5. Drafting and
concluding the contract:
The contract between both
parties must conform to the decision to approve the result of competitive
offering, the contract negotiation record, and relevant documents.
6. Schedule of shortened
process of competitive offering:
a) Quotations shall be
evaluated within 10 days from the bid opening date. Then, the procuring entity
shall make a request for approval for the result of contractor selection, which
is enclosed with the report on quotation evaluation.
b) The result of
contractor selection shall be verified within 04 working days from the day on
which the request for verification is received;
c) The result of
contractor selection shall be approved within 03 working days from receipt of
the request for approval from the procuring entity and the verification report
from the verifying unit;
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Article 60: Direct procurement process
1. Preparation for
contractor selection:
a) Making the request for
proposals:
The request for proposals
must be made in accordance with Clause 1 Article 12 of this Decree. The request
for proposals shall contain the summary of the project/contract; request that
the contactor update information about their competence; requirements with
regard to punctuality and commitment to provide technically satisfactory goods
with high quality as described in the invitation for bids, and requirements for
the unit prices. If goods in the direct procurement contract is one of those in
a similar contract that was signed earlier, the value of such goods must be
lower than 130% of the value of the goods in the earlier contract;
b) The request for
proposals must be evaluated in accordance with Article 105 of this Decree
before it is approved;
c) The approval for the
request for proposals must be granted in writing in accordance with the report
on evaluation of the request for proposals.
2. The request for
proposals shall be issued to the selected contractor; If this contractor is not capable of performing the direct procurement
contract, the request for proposals shall be issued to another bidder who
satisfies the requirements in Clause 3 Article 24 of the Law on Bidding.
3. The contractor shall
prepare and submit the proposal as requested.
4. Proposal evaluation
and negotiation:
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- Check information about
techniques and prices;
- Update information
about the bidder’s competence;
- Assess the progress,
goods supply solution, technical solutions, and measures to perform the
contract;
- Other contents (if
any).
b) During the evaluation,
the procuring entity shall request the contractor to enter into a negotiation,
clarify information in the proposal in order to prove that the contractor meets
all requirements with regard to experience, competence, punctuality, quality,
technical solutions, and measures to perform the contract;
c) The procuring entity
must ensure that the prices for items of the direct procurement contracts do
not exceed the prices for similar items of an earlier contract, and that they
are conformable with market prices at the time of contract negotiation.
5. Reporting, verifying,
approving, and announcing contractor selection result:
a) The
result of contractor selection must be verified in accordance with Clause 1 and
Clause 4 Article 106 of this Decree before it is approved;
b) The result of
contractor selection must be approved in writing according to the written
request for approval and the verification report;
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6. Drafting and
concluding the contract:
The
contract between both parties must conform to the decision to approve the
result of direct procurement, the contract negotiation record, the proposal,
the request for proposals, and relevant documents.
Section
4: SELF-SUPPLY
Article
61. Preconditions
The employment of
self-supply method must be approved in the contractor selection plan in
accordance with Article 25 of the Law on Bidding, and satisfy preconditions
below:
1. The licensed business
lines are suitable for the contract requirements;
2. The ability to
mobilize manpower and equipment to ensure punctuality must be proven in the
self-supply plan;
3. The unit appointed to
perform the contract must not transfer any part thereof if its value is 10% of
the contract value or higher than VND 50 billion, whichever come first.
Article
62: Self-supply process
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The self-supply plan
shall specify the tasks, value, duration, quality thereof, the draft contract
or assignment note. If the contract is performed by a financially dependent
unit, the plan must include the draft contract. If
a financially dependent unit is not available, the plan must include a draft of
the assignment note, which assigns an internal unit to perform the contract.
2. Completing the
self-supply plan; negotiating, completing the contract or assignment note:
Discuss the information
that is not clear or conformable in the self-supply plan, the draft contract,
or the assignment note, and other necessary contents.
3. Signing the contract
or assignment note:
The procuring entity
shall sign the contract or assignment note with a unit to perform the contract.
4. If specialized law
prescribes that the contract performance must be supervised, the procuring
entity must select a supervisory contractor who is legally and financially
independent to supervise the contract performance; If specialized laws do not
require this or an independent supervisory contractor is not available because
the contract has to be performed in an remote area or the contract value is
below VND 01 billion, the procuring entity shall supervise the contract
performance itself.
Chapter
VI
SELECTION OF
CONTRACTORS FOR MINOR CONTRACTS OR CONTRACTS PARTICIPATED BY LOCAL COMMUNITIES
Section
1: SELECTION OF CONTRACTORS FOR MINOR CONTRACTS
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A minor contract is a
contract for provision of non-consulting services or goods purchase valued at
up to VND 10 billion; a construction contract or mixed contract valued at up to
VND 20 billion.
Article
64. Selection of contractors for minor contracts
1. The contractor
selection process applied to minor contracts is the same at that specified in
Section 1 Chapter II and Chapter V of this Decree.
2. Contractor selection
schedule:
a) The invitation for
bids shall be issued within the time limits in the bidding notice, which is not
shorter than 03 working days from the day on which it is posted on the national
procurement network or the Vietnam Public Procurement Review Journal;
b) The time limit for
preparing the bid-envelope shall not be shorter than 10 days from the date of
issue of the invitation for bids;
c) When the invitation
for bids must be adjusted, the procuring entity must notify the bidders at
least 03 working days before the deadline for submitting bids in order for them
to have enough time to prepare their bid-envelopes;
d) Bid-envelopes shall be
evaluated within 25 days from the bid opening date, then the procuring entity
shall submit a written request for approval for the contractor selection
result, which is enclosed with a report on contractor selection result;
dd) The contactor
selection result shall be verified within 10 days from the receipt of the
request for verification;
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g) Other deadlines are
specified in Clause 1 Article 12 of the Law on Bidding.
3. The value of tender
guarantee varies from 1% to 1.5% of the contract value; the value of
performance guarantee varies from 2% to 3% of the agreed price.
Section
2: SELECTION OF CONTRACTORS FOR CONTRACTS PARTICIPATED BY LOCAL COMMUNITIES
Article
65. Eligibility of local communities, associations, group of workers to
participate in performance of contracts
1. A local community,
association, or group of workers is considered eligible to participate in
performance of any of the contracts prescribed in Article 27 of the Law on
Bidding when its member performs the contract and benefits from it.
2. The representative of
the local community, association, or group of workers must be capable of civil
acts, not facing any criminal prosecution, and is designated by other members
to sign the contract on their behalf.
Article
66. Selection of a local community, association, or group of workers as a
contractor
1. The investor shall
draft contract shall specify the tasks, schedule, quality, contract value,
rights and obligations of both parties.
2. The investor shall
publicly post the invitation at the People’s Committee of the commune, through
the mass media of the commune, and other public places. The invitation must
specify the time for discussing the contract performance plan.
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4. The investor shall
invite the best community, association, or group of workers to enter into a
contract negotiation.
If there is only one
community, association, or group of workers shows their interest, the investor
shall consider giving the contract to such community, association, or group of
workers. If the contract cannot be given to a community or association, it
shall be given to a group of worker.
5. The contract shall be
concluded within 30 days from the day on which the invitation is announced.
Article
67. Advance, payment, project supervision and approval
1. The local community,
association, or group of worker shall receive advance and payment from the
investor in cash or by wire transfer via a representative thereof in accordance
with instructions of the Ministry of Finance.
2. Investor shall
supervise the construction, the People’s Committee of the commune and other
associations shall participate in the supervision.
3. The investor shall
carry out an inspection and consider approving the construction after it is
finished. Participants in the inspection:
a) A representative of
the investor;
b) Representatives of the
local community, association, or group of workers that execute the
construction;
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d) Other participants
decided by the investor.
Chapter
VII
BULK
PURCHASING, REGULAR PURCHASES, PURCHASES OF MEDICINES, MEDICAL EQUIPMENT, AND
PUBLIC PROCUREMENT
Section
1: BULK PURCHASING
Article
68. Rules for bulk purchasing
1. The purchases must be
made via a unit specialized in bulk purchasing (hereinafter referred to as
bulk-purchasing unit) of a Ministry, ministerial agency, Governmental agency, a
central agency, the People’s Committee of a province, or a company. If the
bulk-purchasing unit is not capable, it shall hire a professional bidding organizer
to select a contractor.
2. With regard to goods
and services on the list of goods/services that must be purchased in bulk, the
buyer shall recognize the result of contractor selection, the framework
agreement, and sign a contract with the selector contractor via competitive
offering pursuant to the framework agreement. If the contract is signed with a
contractor other than that selected via competitive offering, the contract
shall not be paid for.
3. Application of online
bidding to bulk purchasing shall be carried out under the roadmap approved by
the Prime Minister.
4. When selecting
contractors to perform similar contracts within the competence of different
persons, such persons shall reach an agreement on authorizing a competent
person as prescribed in Article 73 of the Law on Bidding; in this case, the
competent person shall appoint a unit capable of selecting a contractor and
fulfill other obligations prescribed in Article 69 of this Decree.
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1. The bulk-purchasing
unit shall fulfill the obligations in Article 74 and Article 75 of the Law on
Bidding. Regulations in Clause 2 Article 74 and Point c Clause 2 Article 75 of
the Law on Bidding shall be implemented as follows:
a) Directly sign a
contract with the selected contractor as prescribed in Point a Clause 3 Article
44 of the Law on Bidding;
b) Sign a written
agreement as prescribed in Point b Clause 3 Article 44 of the Law on Bidding.
2. The entity superior to
the bulk-purchasing unit shall discharge its duties prescribed in Article 73 of
the Law on Bidding.
Article
70. Overall bulk purchasing process
1. Overall bulk
purchasing process:
a) Survey the needs;
b) Make, evaluate, and
approve the contractor selection plan;
c) Prepare for contractor
selection;
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dd) Evaluate
bid-envelopes and negotiate the contract;
e) Verify, approve, and
announce the result of contractor selection;
g) Complete and sign the framework
agreement;
h) Complete, sign, and
perform the contract with the selected contractor. If the bulk-purchasing unit
directly signs a contract with the selected contractor, the framework agreement
mentioned in Point g of this Clause may be omitted;
i) Pay for and finalize
the contract.
2. Depending on the scale
and characteristics of the contract, the bulk-purchasing process may be divided
into multiple parts, each of which may be performed by a separate contractor.
Article
71: List of goods and services purchased in bulk
1. Goods and services
shall be put on the list of goods and services purchased in bulk when:
a) They are purchased in
large quantities or commonly used at many organizations;
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2. Responsibility to
issue the list of goods/services purchased in bulk:
a) The Ministry of
Finance shall issue to issue the national list of goods/services purchased in
bulk. The Ministry of Health shall issue the list of medicines purchased in
bulk;
b) Ministries, regulatory
bodies, local governments and companies shall issue their own lists of
goods/services purchased in bulk.
Article
72. Contents of the framework agreement
Depending on the scale
and characteristics of the contract, the bulk-purchasing unit shall specify the
contents of the framework agreement in the invitation for bids, which consist
of:
1. The goods/services
provided; quantities of goods/services;
2. Intended delivery time
and location;
3. Conditions for
transfer of goods/services; advances, payments, and contract finalization;
4. Ceiling prices of
goods/services;
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6. Responsibilities of
the goods/services provider;
7. Responsibilities of
the unit that directly signs the sale contract;
8. Responsibilities of
the bulk-purchasing unit;
9. Effective period of
the framework agreement;
10. Penalties for
contract breaches;
11. Relevant contents.
Section
2: REGULAR PURCHASING
Article
73. Regular purchases
Regular purchases (except
for purchases of supplies and equipment for the project; specialized equipment
and vehicles serving national defense and security) include:
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2. Purchases of supplies,
tools, and equipment serving regular operation;
3. Purchases of machinery
and equipment serving professional operation, assurance of occupational safety
and fire safety;
4. Purchases of
professional outfits (including payment for materials and tailoring services);
5. Purchases of IT
products: machines, equipment, accessories, software, and other IT products,
including installation, test run, warranty (if any) IT projects funded by
government budget according to government’s regulations on management of IT
applications funded by government budget.
6. Purchases of means of
transport: cars, bikes, ships, boats, and other vehicles (if any);
7. Publications,
documents, forms, stamps, books, videos, and propagation products serving
professional operation;
8. Maintenance, repair of
machines, equipment, vehicles; lease of the office building and other goods;
lease of the transmission lines; insurance, supply of electricity, water;
telephone line, and other services;
9. Consulting services
include: consultancy on technology selection; bid-envelope evaluation, and
other consulting services;
10. Industrial property
rights, intellectual property rights (if any);
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Article
74. Regular purchase process
The selection of a
contractor for regular purchase must comply with regulations on selection of
contractors for the projects mentioned in Chapter II and Chapter II of the Law
on Bidding.
Section
3: Purchase of medicines and medical equipment
Article
75: PURCHASE OF MEDICINES AND MEDICAL EQUIPMENT
1. Purchase of medicines
by selection of contractor as prescribed in the Law on Investment must comply
with the rules below:
a) The selected medicines
have reasonable prices and satisfy requirements with regard to quality,
delivery, preservation, and relevant clauses;
b) The selected
contractor must supply medicines in accordance with the concluded contract;
c) The selected
contractor must ensure that the supplied medicines satisfy quality requirements
with regard to all stages of the contract, including raw materials,
manufacture, packaging, delivery, preservation, and transfer;
d) Medicines that cannot
be manufactured in Vietnam shall be purchased in bulk, except for those with
negotiable prices;
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2. The selection of
contractor for supply of medical equipment is similar to the process applied to
goods purchase contracts.
Article
76. Entitlements to medicine purchase
1. Entitlements to
approve the contractor selection plan:
a) Ministers; Heads of
ministerial agencies, Heads of Governmental agencies and other central
agencies; Presidents of the People’s Committee of provinces shall consider
approving the plans for selection of medicines supplier of public medical facilities
under their management;
b) Legal representatives
of non-public medical facilities shall consider approving the plans for
selection of their medicine suppliers if contracts for medical services covered
by health insurance are signed with social insurance authorities.
2. Entitlements to
approve the contractor selection plan:
a) Heads of public
medical facilities shall consider approving invitations for bids, requests for
proposals, and result of selection of their medicine suppliers;
b) When buying medicines
in bulk as prescribed in Section 1 of this Chapter, the President of the
People’s Committee of the province shall delegate the Director of the Service
of Health to consider approving the invitation for bids and the selected
medicine suppliers of the units under their management as prescribed in Clause
1 Article 69 of this Decree;
c) Legal representatives
of non-public medical facilities shall consider approving the invitations for
bids, requests for proposals, and result of selection of their medicine
suppliers if contracts for medical services covered by health insurance are
signed with social insurance authorities.
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1. The Ministry of Health
shall:
a) Issue lists of
medicines purchased via bidding, medicines purchased in bulk, and medicines
with negotiable prices according to proposals of the National Medicine Bidding
Council;
b) Hold national bulk
purchases of medicines and preside price negotiations;
c) Formulate a roadmap
and provide guidance on purchase of medicines for local governments, ensure
bulk purchases of medicines are nationwide from 2016.
d) Compile a list of
medicines that can be manufactured in Vietnam, which meet the requirements with
regard to effectiveness, prices, and supply, according to registration numbers,
medicine prices declared by domestic manufacturers, minimum registered quantity
according to dosage form and compound, and other criteria;
dd) Annually make a short
list of medicine manufacturers and suppliers that are experienced, competent,
and reliable, which is the basis for holding selective bidding.
2. The National Medicine
Bidding Council, the establishment of which is decided by the Minister of Health,
consists of representatives of the Ministry of Health, the Ministry of Finance,
Social Insurance Office, Vietnam Pharmacy Company Association, and relevant
organizations. The Council shall provide the Ministry of Health with
consultancy on:
a) Compilation of lists
of medicines purchased via bidding, medicines purchased in bulk, and medicines
with negotiable prices;
b) Selection of medicine
suppliers during national bulk purchasing process;
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3. Social Insurance
Office shall:
a) Participate in the
selection of medicines suppliers;
b) Announce prices of
selected medicines and average prices of selected medicines that are covered by
health insurance fund of each hospital, local budget, and the Ministry of
Health on the website of Social Insurance Office.
Article
78. Medicine price negotiation process
1. An invitation to
negotiate shall be sent to medicine suppliers (manufacturers, suppliers)
specifying the location, time, and types of medicines.
2. Based on the
invitation, each invited medicine supplier shall make a quotation for
medicines, which specifies their pharmacology, origins, quantity, offered
prices, delivery clause, and relevant contents.
3. The negotiation
council shall enter into a price negotiation with each medicine supplier to
determine the one that satisfy requirements with regard to quality, quantity,
preservation, delivery, and other relevant requirements pertaining to
specifications, quality, and price determination.
4. If
two or more medicine suppliers enter into the price negotiation, the
negotiation council shall request the suppliers to make another quotation after
the negotiation. The request for another quotation must specify the deadline
and location for receiving the quotation, the time for opening quotations, and
invite the suppliers to attend the quotation opening ceremony. Prices in the new quotation must not exceed the negotiated
prices. The supplier that offers the lowest price shall win the contract.
5. The medical facility
that directly uses medicines shall sign a contract with the medicine supplier
selected via price negotiation.
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Medicines shall be
purchased under no-bid contracts in the following cases:
1. The contract does not
exceed the limits on no-bid contracts prescribed in Article 54 of this Decree;
2. The medicines are
rare, urgently needed, but not included in the contractor selection plan.
3. The medicines that are
used for emergencies (epidemics, natural disasters, hostilities that seriously
threaten patients’ health) are not on the list of bidding for medicine supply
in the year, which is approved by a competent authority,
4. The medicines are on
the list of bidding for medicine supply in the year, which is approved by a
competent authority, but the result of contractor selection is not available or
no contractor is selected while such medicines are urgently needed for
emergencies;
5. The medicines are on
an approved list of bidding for medicine supply in the year, but the demand
exceeds the plan approved by a competent authority.
Article
80. Criteria for medicine evaluation
1. The criteria for
evaluating bid-envelopes include criteria for evaluating experience and
competence, criteria for technical evaluation, and criteria for overall
evaluation.
2. Experience and
competence shall be assessed as satisfactory or not satisfactory. The criteria
must specify the minimum requirements for being satisfactory In particular:
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b) Competence in
manufacturing and sale; technical infrastructure of the medicine factory and
the medicine storage;
c) Financial capacity:
total assets, total debts, short-term assets, short-term debts, revenue,
profit, value of unfinished contracts, and other criteria for evaluating the
contractor’s financial capacity.
The each criterion
mentioned in Points a, b, and c of this Clause depends on the requirements of
each contract or category of medicines. Any contractor that satisfies all
requirements in this Clause is considered satisfactory in terms of experience
and competence.
3. Technical assessment
criteria: on a scale from 1 to 100 or 1 to 1,000, particularly:
a) Medicine quality: 60%
to 80%
b) Packaging,
preservation, delivery: 20% to 40%;
c) The technical proposal
is considered technically satisfactory if the technical score is not smaller
than 80%, and the score of quality, packaging, preservation, delivery is not
smaller than 60%.
Article
81. Selection of medicine suppliers and bulk purchase of medicines
1. The selection of
medicine suppliers in the form of open bidding and selective bidding shall
comply with Chapter II of this Decree; the selection in the form of no no-bid
contract awarding, competitive offering, direct procurement, and self-supply
shall comply with Chapter V of this Decree.
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Section
4: SELECTION OF CONTRACTORS SERVING PUBLIC PROCUREMENT
Article
82. Contractor selection process
The selection of a
contractor serving public procurement is the same as the selection of a
contractor to enter into a contract for non-consulting services or goods
procurements of a project.
Article
83. No-bid contracts for public procurement
1. Public procurement
shall be carried out under a no-bid contract in the cases below:
a) The value of the
public procurement contract does not exceed the limits prescribed in Clause 1
Article 54 of this Decree;
b) There is only 01
contractor who satisfies the requirements of the contract for public
procurements.
2. Conditions for no-bid
contract awarding:
A contractor selected
without bidding to perform a public procurement contract must satisfy requirements
of the contract with regard to capital , technology, management capacity, and
personnel.
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a) A decision to approve
the plan for contractor selection.
b) A price list of the
value of the public procurement contract based on technical/economic norms and
budget limits issued by competent authorities. If goods/services in the public
procurement contract must be valuated, the prices shall be decided by a
specialized authority in accordance with regulations of law on pricing and
relevant laws;
c) Quantity and quality
of goods/services provided, which are approved by a competent person.
d) Time for commencement
and completion;
dd) The budget set by a
competent person.
4. Procedures for no-bid
contract awarding:
a) The shortened process
of no-bid contract awarding prescribed in Article 56 of this Decree shall apply
to contracts for public services that do not exceed VND 500 million and
contracts for public goods that do not exceed VND 01 billion;
b) The standard process
of no-bid contract awarding prescribed in Article 55 of this Decree shall apply
to public procurement contracts other than those mentioned in Point a of this
Clause.
Chapter
VIII
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Article
84. Scope and roadmap
1. Selection of
contractor online shall apply to consulting services, non-consulting services,
goods procurement, construction & installation, and mixed contracts that
are awarded through open bidding, selective bidding, competitive offering,
direct procurement, and no-bid contract awarding.
2. Online contractor
selection shall follow the roadmap issued by the Ministry of Planning and
Investment.
Article
85. Rules for selecting contractors online
1. When selecting
contractors online, the procuring entity and bidders shall make a registration
on the national bidding network.
2. Each procuring entity
shall issue free of charge the request for expression of interest, request for
prequalification, invitation for bids, or request for proposals on the national
bidding network.
3. Each bidder shall
submit only one bid-envelope or proposal on the national bidding network for
each contract.
4. The procuring entity
shall open the bids on the national bidding network right after the deadline
for submitting bids. If no bidders are interested, procuring entity shall
request the investor to consider rearranging the online contractor selection;
If fewer than 03 bidders submit their bids, the procuring entity shall open the
bids immediately without following the procedures in Clause 4 Article 117 of
this Decree.
5. Electronic transaction
documents and information posted on the national bidding network are considered
original and as valid as paper documents, which are the basis for evaluation,
verification, inspection, audit, and disbursement.
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The cost of online
contractor selection consists of: The fee for participation in the national
bidding network; fee for submission of bid-envelopes or proposals; fee for
contract award; fee for electronic contracts, and fee for using electronic
procurement system. Such cost must comply with instructions of the Ministry of
Planning and Investment and the Ministry of Finance.
Article
87. Registering participation on national bidding network
1. When participating in
the national bidding network, the registered holders of digital certificates
prescribed in Clause 5 Article 4 of the Law on Bidding shall register with the
network operator .
2. The Ministry of
Planning and Investment shall provide detailed instructions on participants,
registration procedures, required information, and use of digital certificates
on the national bidding network.
Article
88. Online contractor selection process
1. Procuring entity and
bidders shall register their participation in the national bidding network as
prescribed in Article 87 of this Decree.
2. The procuring entity
shall post the notifications of request for expression of interest, request for
prequalification, invitation for bids, or request for proposals on the national
bidding network. Procuring entity must specify their wanted goods if the
contract is a goods procurement contract.
3. The procuring entity
shall issue the notifications of request for expression of interest, request
for prequalification, invitation for bids, or request for proposals on the
national bidding network together with the aforesaid notifications. In case of
discrepancy between the electronic document and information on the form, the
electronic document shall prevail.
4. Bidders shall submit
their application for prequalification, EOI responses, bid-envelopes, and
proposals on the national bidding network. The network must confirm the receipt
of bidders’ documents, display the time and status on the network, which are
the basis for dispute settlement (if any). Bidders shall pay for tender
guarantee via any bank that connects to the national bidding network. When
withdrawing the application for prequalification, bid-envelope, EOI response,
or proposal, the bidder shall notify the procuring entity and the guaranteeing
bank (if any) before the deadline for submitting bids.
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6. After applications for
prequalification, EOI responses, bid-envelopes, and proposals are evaluated,
the procuring entity shall post the result of contractor selection on the
national bidding network. The result of contractor selection shall be publicly
posted on the national bidding network after it is approved in writing.
7. The Ministry of
Planning and Investment shall specify the time and procedures for selecting
contractors online.
Chapter
IX
CONTRACT
Article
89. General principles of contracts
1. The written contracts
are civil contracts which assign the parties the responsibilities to perform
the tasks prescribed in such contracts. The valid contracts which are concluded
by the parties and comply with the regulations of the law are the legal
documents that assign the parties the responsibilities during the execution of
such contracts.
2. The contracts must be
drawn up according to the prescribed forms in the invitation for bid,
proposals, and suitable to the conclusion of the contract negotiations, the
results of the selection of contractors according to the requests of the
contracts and guidance given by the regulatory authorities.
3. The parties can choose
referees to settle disputes during the execution of the contracts before
signing such contracts. The disputes needing settled by the referees must be
prescribed in the contracts.
Article
90. Contractual prices
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2. The contractual prices
must be specific and conformable with the contractual price brackets using the
prescribed forms in the invitation for bid, request for proposals and concluded
before the contracts are signed.
Article
91. Currency and methods of payment for contracts
1. The currency used for
paying any contract must be specifically prescribed in such contract and
conformable with the requests of the invitation for bid, request for proposals
and the regulations of the law.
2. The expenditures
arising within Vietnam’s territory shall be paid in VND, others shall be paid
in foreign currencies under the regulations in the contract.
3. The contract can be
paid in cash, via wire transfer or other methods agreed by the parties under
the regulations of the law and prescribed in the contract.
Article
92. Advance
1. An advance on the
contract is an amount that is advanced to the contractor to carry out the
contractual tasks.
2. The advance shall be
determined according to the scope and nature of the contract. A contract must
prescribe: the advance, time for advance, advance guarantee, withdrawal of
advance; responsibilities of the parties to administer and use the advance;
revocation of the guarantee if the advance is used for wrong purposes.
3. The contractor shall
administer the advance as long as such advance is effectively used for the
right purposes and objects. The advance must not be left idle or used for the
wrong purposes.
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Article
93. Adjustment to contractual prices workload
1. A contract must
specify the adjustment to the contractual price including the adjustments,
principles, time to calculate the adjustment and database to calculate the
adjustment.
2. Adjustment to the unit
prices:
Any contract using
variable unit prices must specify:
a) The time to calculate
the initial unit price (which is usually fixed 28 days before the deadline for
bid submission) to determine the difference between the successful unit price
and the variable unit prices;
b) The database to adjust
the unit prices of which the price indexes to adjust the unit prices is the price
indexes provided by the General Statistics Office or the construction price
indexes provided by the Ministry of Construction and the People’s Committees of
provinces;
c) Unit price adjustment
formula:
The science-based unit
price adjustment formulas must be conformable with the contract. The preferable
formula is the popular formula such as the formula of the International
Federation of Consulting Engineers (FIDIC), guidance of the World Bank (WB),
Asian Development Bank (ADB).
3. Adjustment to the
workload:
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b) The increased workload
due to the subjective faults of the contractor must not be adjusted;
c) If the differential
rate of the actual workload and the workload prescribed in the contractual
price list is more than 20%, the parties must reach an agreement on suitable
principles to adjust the unit price which is conformable with the conditions
for the change in the workload when such difference is paid.
d) In case of the
workloads that are not prescribed in the initial conditions for the change in
the contract or the cases requiring the cooperation of two parties in
preventing or minimizing the risks under the responsibility of one party, the
parties shall discuss to find the handling measures.
4. Any
expenditure arising or change in the progress must be reported to the competent
authorities for consideration and the contract must be added appendices which
serves as a basis for the implementation.
Article
94. Contract payment
1. A contractor shall be
paid depending on the contractual price and specific clauses on payment in the contract.
If an investor does not make the payment later than the stipulated time in the
contract, (s)he shall be liable to the late payment interest under the term of
the contract.
2. The payment does not
depend on the estimate as well as the currents regulations and instructions of
the State on the limits and unit prices; unit prices in the invoice for the
purchase items such as materials, machinery, equipment and other items.
3. In case there are
various types of contracts in a contract, each type of contract shall be
applied corresponding payment principles.
Article
95. Payment for lump sum contracts
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A lump sum contract can
be paid several times after each inspection in proportion to each completed
workload or can be paid in lump sum after the contractor completes all of the
work in the contract by subtracting the advance (if any) from the contractual
price. In case the specific payment amount in
proportion to each work item or inspection stage cannot be determined, such
amount can be determined based on the rate (%) of the contract value.
2. Payment documents on a
lump sum contract include:
a) A record on the
inspection of the workload which is confirmed by the contractor, investor and
supervisor (if any). This record shall confirm the completion of the work, work
item and work tasks conformable with the design. It is not required to confirm
the specific completed workload;
b) With regard to the
goods purchase: Depending on the nature of the goods, the payment documents may
include: invoices of the contractor, list of packaged goods, transportation
receipts, insurance form, Certificate of quality, record on the goods
inspection, Certificate of Origin and other relevant documents.
Article
96. Payment for fixed unit price contracts
1. Payment principles:
a) The payment is
calculated by multiplying the fixed unit price in the contract and the actual
workload that the contractor has completed;
b) With regard to
construction, if the actual workload that the contractor has completed following
the design is less than the workload prescribed in the contract, the contractor
shall be paid the payment for the actual workload. If the actual workload that
the contractor has completed following the design is more than the workload
prescribed in the contract, the contractor shall receive the payment for such
difference using the fixed unit price in the contract;
c) The contractor shall
receive the payment calculated on the basis of the record on the inspection of
the completed workload which is confirmed by the investor, supervisor and
contractor.
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a) A record on the
inspection of the workload which is confirmed by the contractor, investor and
supervisor (if any);
b) A confirmation of the
adjusted workload in comparison with the workload in the contract which is
confirmed by the representative of the contractor, investor and supervisor (if
any);
c) The spreadsheet of
proposed payment based on the confirmed workload that is completed and the unit
prices in the contract;
d) The proposal for
payment of the contractor specifying the completed workload and value there of,
differences compared to the contract, advances, and amounts payable;
dd) With regard to the
goods purchase: Depending on the nature of the goods, the payment documents may
include: invoices of the contractor, list of packaged goods, transportation
receipts, insurance form, Certificate of quality, record on the goods
inspection, Certificate of Origin and other relevant documents.
Article
97. Payment for variable unit price contracts
1. Payment principles:
a) The payment is
calculated by multiplying the variable unit price in the contract and the
actual workload that the contractor has completed;
b) With regard to construction,
if the actual workload that the contractor has completed following the design
is less than the workload prescribed in the contract, the contractor shall be
paid the payment for the actual workload. If the actual workload that the
contractor has completed following the design is more than the workload
prescribed in the contract, the contractor shall receive the payment for such
difference;
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2. Payment documents
include:
a) A record on the
inspection of the workload which is confirmed by the contractor, investor and
supervisor (if any);
b) A confirmation of the adjusted
workload compared with the workload in the contract which is confirmed by the
representative of the contractor, investor and supervisor (if any);
c) The spreadsheet of
proposed payment based on the confirmed workload that is completed and the unit
prices in the contract or the adjusted unit price prescribed in the contract;
d) The proposal for
payment of the contractor specifying the completed workload and value there of,
differences compared to the contract, advances, and amounts payable;
dd) With regard to the
goods purchase: Depending on the nature of the goods, the payment documents may
include: invoices of the contractor, list of packaged goods, transportation
receipts, insurance form, Certificate of quality, record on the goods
inspection, Certificate of Origin and other relevant documents.
Article
98. Payment for time based contracts
1. Payment principles:
a) An expert shall
receive the payment which is calculated by multiplying the expert’s salary, its
relevant expenditures such as social insurance, medical insurance, unemployment
insurance, days off, other expenditures prescribed in the contract or adjusted
under the regulations and the actual working time (expressed as month, week,
day or hour). If the actual working time of an expert is different from the
working time prescribed in the contract, the expert shall receive the payment
for the actual working time;
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2. Payment documents
include:
Depending on the nature
of the consultancy, the payment documents may include the record on the
inspection of the result of the consultancy, documents on the progress on the
execution of the contract and relevant documents.
Article
99. Contract finalization
1. A
contract shall be finalized when:
a) The parties fulfill
their obligations under the terms of the contract;
b) The contract is
cancelled under the regulations of the law.
2. The contract
finalization shall be recorded in writing and such record must be signed by
both parties. The record on the contract finalization can be filed separately
or part of the record on the final inspection or the record on the consensus on
the end of the contract whose contents conformable to the responsibilities of
the parties prescribed in the contract. The contract shall be considered to be
finalized after 45 days from the day on which the parties to the contract
fulfill their responsibilities prescribed in the abovementioned record on the
contract finalization. If the contract is big and complicated, it shall be
finalized within 90 days.
Chapter X
DIVISION OF RESPONSIBILITY FOR ASSESSMENT AND APPROVAL
FOR CONTRACTORS
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1. Regarding the projects
approved by the Prime Minister of which they are not the investors:
a) Give written opinions
about the plans to select the contractors as required;
d) Perform other tasks to
select the contractors with the authorization from the Prime Minister.
2. Regarding the projects
approved by themselves:
a) Approve the plans to
select the contractors;
b) Perform other tasks under
the responsibilities of the competent persons prescribed in Clause 73 of the
Law on Bidding.
3. Regarding the projects
of which they are the investors:
a) Approve the invitation
for bid, request for proposals;
a) Approve the selected
contractors;
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Article
101. Responsibilities of Presidents of the People’s Committees of districts and
communes and Heads of other local authorities
1. Regarding the projects
approved by themselves:
a) Approve the plans to
select the contractors;
b) Perform other tasks
under the responsibilities of the competent persons prescribed in Clause 73 of
the Law on Bidding.
2. Regarding the projects
of which they are the investors:
a) Approve the invitation
for bid or EOI request;
a) Approve the selected
contractors;
c) Perform other tasks
under the responsibilities of the investors prescribed in Clause 74 of the Law
on Bidding.
3. d) Perform other
duties to select the contractors with the authorization from the superiors.
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1. Regarding the projects
approved by themselves:
a) Approve the plans to
select the contractors;
b) Perform other tasks
under the responsibilities of the competent persons prescribed in Clause 73 of
the Law on Bidding.
2. Regarding the projects
of which they are the investors:
a) Approve the invitation
for bid or EOI request;
a) Approve the selected
contractors;
c) Perform other tasks
under the responsibilities of the investors prescribed in Clause 74 of the Law
on Bidding and with the authorization.
Article
103. Responsibilities of Board of Directors of and Chiefs of joint ventures ,
joint-stock companies and legal representatives of parties to business
agreements
1. Regarding the projects
approved by themselves:
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b) Perform other tasks
under the responsibilities of the competent persons prescribed in Clause 73 of
the Law on Bidding.
2. Regarding the projects
of which they are the investors:
a) Approve the invitation
for bid or EOI request;
a) Approve the selected
contractors;
c) Perform other tasks under
the responsibilities of the investors prescribed in Clause 74 of the Law on
Bidding.
Article
104. Responsibilities of assessing units
1. The Ministry of
Planning and Investment shall assess:
a) The
plans to select the contractors within the approval authority of the Prime
Minister;
b) The plans to select
the contractors in special cases that are considered and decides by the Prime
Minister under the regulations in Article 26 of the Law on Bidding and other
cases requested by the Prime Minister.
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a) The plans to select
the contractors regarding the projects approved by the Presidents of the
People’s Committees of provinces, except for the contracts prescribed in Clause
3 this Article;
b) The EOIs, invitations
for prequalification, invitation for bid, request for proposals, result of the
evaluation of EOIs, applications for prequalification, result of the selection
of contractors regarding the contracts of the projects of which the People’s
Committees of provinces are the investors when required, except for the
contracts prescribed in Clause 3 this Article.
3. The provincials
Departments of Health shall evaluate the plans to select the contractors regarding
the contracts for purchase of medicines and medical materials that are approved
by the Presidents of the People’s Committees of provinces.
4. The authorities and
organizations that is assigned by the Ministers, Heads of ministerial-level
authorities, Governmental authorities, other central authorities and Chiefs of
enterprises to assess:
a) The plans to select
the contractors regarding the projects within the authority of the Ministers,
Heads of ministerial-level authorities, Governmental authorities, other central
authorities and Chiefs of enterprises;
b) The EOI requests,
invitations for prequalification, invitation for bid, EOI request, result of
the evaluation of EOIs, applications for prequalification, result of the
selection of contractors regarding the contracts of the projects of which the
Ministries, ministerial-level authorities, Governmental authorities, other
central authorities and enterprises when required.
5. Divisions of districts
in charge of plans and finance shall evaluate the plans to select the contracts
regarding the projects within the authority of the Presidents of the People’s
Committees of districts.
6. Relevant assisting
bodies shall evaluate the plans to select the contractors regarding the
projects within the authority of the Presidents of the People’s Committees of
communes, heads of other local authorities, Boards of Directors of joint
ventures, joint-stock companies and legal representatives of the parties to the
business agreements.
7. b) The investors shall
assign the organizations and individuals under their management to evaluate the
EOI requests, invitations for prequalification, invitation for bid, EOI
request, result of the evaluation of EOIs, applications for prequalification,
result of the selection of contractors other than the cases prescribed in
Clause 2 this Article.
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Article
105. Evaluation of EOI requests, invitations of prequalification, invitation
for bid, request for proposals
1. An application for
evaluation and approval includes :
a) An application form
for the evaluation of the EOI request, invitation for prequalification, request
for proposals of the procuring entity;
b) Drafts of EOI request,
invitations for prequalification, invitation for bid, request for proposals;
c) Photocopies of :
Decision on approval for the project and budget estimate, Decision on approval
for the plan to select the contractor;
d) Relevant document.
2. Evaluation tasks
include:
a) Reviewing the
documents which serve as a basis to file the EOI request, invitation for
prequalification, invitation for bid, request for proposals;
b) Checking the conformity
between the EOI request, invitation for prequalification, invitation for bid,
request for proposals and the scope, targets of the activities, duration to
carry out the project and contract; the dossier on design and budget of the
contract, requirements for characters, technical parameter of the goods (if
any); the minutes of the meeting between the procuring entity and the bidders
in the first stage (regarding the two-stage bidding); regulations of the law on
bidding and other law provisions;
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d) Other relevant tasks.
3. A report on evaluation
includes:
a) A summary of the
project and contract, legal grounds for compiling the EOI request, invitations
for prequalification, invitation for bid, request for proposals;
b) Comments and opinions
of assessing units about the legal grounds, adherence to the regulations of the
law on bidding and other law provisions; consensus about the drafts of the EOI
request, application for prequalification, invitation for bid and request for
proposals;
c) Suggestions of the
assessing unit for the approval for the EOI request, invitation for
prequalification, invitation for bid, request for proposals; handling measures
in case the EOI request, invitation for prequalification, invitation for bid,
request for proposals do not comply with the regulations of the law on bidding
and other law provisions; solutions to the cases in which the EOI request,
invitation for prequalification, invitation for bid, request for proposals
cannot be approved due to lack of information;
d) Other opinion (if
any).
4. Any assessing unit can
hold a meeting between the parties to deal with the remaining issues before
signing the report on evaluation if necessary.
Article
106. Verification of evaluation result of EOI responses, applications for
prequalification, lists of bidders meeting technical requirements, result of
selection of contractors
1. General principles:
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b) Only the result of the
selection of contractor shall be verified regarding any single-stage
one-envelope contract;
c) The list of bidders
meeting technical requirements must be verified before it is approved regarding
any single-stage two-envelope contract;
d) With regard to any
two-stage one-envelope, only the result of the selection of contractor shall be
verified in the second stage (there is no verification in the first stage);
dd) With regard to any
two-stage two-envelope, only the list of bidders meeting technical requirements
shall be verified in the first stage and only the result of the selection of
contractor shall be verified in the second stage and equivalent to the adjusted
technical contents compared with that of the first stage;
e) The ranked list of
bidders shall not be verified before it is approved, such list shall be
approved when the procuring entity requests;
g) The verifying unit may
hold a meeting between the parties to remedy the remaining issues before
sending the Report on verification if necessary.
2. Verification of result
of the evaluation of EOI responses and applications for prequalification:
a) An application for
verification and approval includes:
- A written request for
the verification of the evaluation result of the EOI response and application
for prequalification, of which the opinions of procuring entity about
recommendations of the expert group shall be specified;
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- Photocopies of: EOI
request, invitation for prequalification, record on the deadline for submitting
bids and bid opening, EOI response, applications for prequalification of the
bidders and other relevant documents.
b) The verification
involves:
- Verifying the documents
which serve as a basis for the EOI request and prequalification;
- Checking the compliance
with the regulations on the deadlines during the EOI request and
prequalification;
- Verifying the
evaluation of the EOI responses, applications for prequalification; the
compliance with the regulations of the law on bidding and other relevant law
provisions during the evaluation of the EOI responses and applications for
prequalification;
- Considering different
opinions (if any) between the procuring entity and the expert group; among the
members of the expert group;
- Other relevant tasks.
b) A report on the
verification includes:
- An overview of the main
contents of the project and contract, the legal grounds for the EOI request and
prequalification;
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- Comments and opinions
of the verifying unit about the legal grounds, the compliance with the regulations
on bidding and other relevant law provisions; guarantee of competitiveness,
impartiality and transparency during the EOI request and prequalification;
consensus or different opinions about the evaluation of the EOI response and
application for prequalification;
- Recommendations of the
verifying unit about the evaluation result of the EOI response and application
for prequalification; handling measures for noncompliance with the regulations
of the law on bidding and other relevant law provisions during the EOI request
and prequalification; and handling measures for the cases in which the
evaluation result of the EOI response and application for prequalification can
not be concluded due to lack of information;
- Other opinions (if
any).
3. Verification of the
lists of bidders meeting technical requirements:
a) An application for
verification and approval includes:
- A written request for
the approval for the list of bidders meeting technical requirements of the
procuring entity, of which the opinions of the procuring entity about the
recommendations of the expert group must be specified;
- A report on the
evaluation result of the written technical proposal of the expert group;
- Photocopies of:
invitation for bid, request for proposals, records on bid closing and bid
opening, written technical proposal of the bidders and other relevant
documents.
b) The verification
involves:
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- Considering different
opinions (if any) between the procuring entity and the expert group; among the
members of the expert group;
- Other relevant tasks.
b) A report on the verification
includes:
- A brief summary of the
process of selecting the contractor (from the announcement of invitation to bid
to the submission of the verification of the list of bidders meeting the
technical requirements) and the request of the procuring entity for the list of
bidders meeting the technical requirements;
- Comments and opinions
of the verifying unit about the legal grounds, the compliance with the
regulations on bidding and other relevant law provisions; guarantee of
competitiveness, impartiality and transparency during the compilation of the
list of bidders meeting technical requirements; consensus or different opinions
about the list of bidders meeting technical requirements; handling measures for
the noncompliance with the regulations of the law on bidding an other relevant
law provisions during the evaluation of the written technical proposal,
handling measures for the cases in which the result of the compilation of the
list of bidders meeting technical requirements cannot be concluded due to lack
of information;
- Other opinions (if
any).
4. Verification of the
bidding result:
a) An application for
verification and approval includes:
- A written request for
the approval for the bidding result of the procuring entity, of which the
opinion of the procuring entity about the recommendations of the expert group
must be specify;
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- A record on the
negotiation of the contract;
- Photocopies of:
invitation for bid, request for proposals, records on bid closing and bid
opening, bid-envelop, written proposals of the bidders and other relevant
documents; cases in which the list of bidders meeting technical requirements
has been verified, only the record on the opening of the financial proposals
and the photocopies of the financial proposals of the bidders meeting technical
requirements.
b) The verification
involves:
- Verifying the documents
which serve as a basis for the selection of contractor;
- Checking the compliance
with the regulations on the deadlines during the selection of contractor;
- Verifying the
evaluation of the bid-envelopes regarding the single-stage one-envelope
contract, two-stage one-envelope contract and two-stage two-envelope contract;
the compliance with the regulations of the law on bidding and other relevant
law provisions during the evaluation of the bid-envelopes;
- Verifying the
evaluation of the financial proposals regarding the single-stage two-envelope
contract; the compliance with the regulations of the law on bidding and other
relevant law provisions during the evaluation of the financial proposals;
- Checking the compliance
with the regulations of the law on bidding and other relevant law provisions
during the negotiation of the contract; checking the conformity between the
result of the contract negotiation with the bidding result, the ranked list of
bidders, invitation for bid, request for proposals and the bid-envelopes and
proposals of the bidders entering into the contract negotiation;
- Considering different
opinions (if any) between the procuring entity and the expert group; among the
members of the expert group;
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b) A report on the
verification includes:
- A summary of the main contents
of the project and contract, the legal grounds for the selection of the
contractor;
- A brief summary of the
selection of the contractor from the short-listing (if any) to the request for
the verification and approval for the bidding result, attached with the
submitted documents prescribed in Clause 2 and Clause 3 this Article;
- A brief summary of the
opinion of procuring entity about the bidding result;
- Comments and opinions
of the verifying unit about the legal grounds and the compliance with the
regulations of the law on bidding and other relevant law provisions; the
guarantee of competitiveness, impartiality and transparency and economic
effectiveness during the selection of contractor; consensus or different
opinions about the bidding result; handling measures for the noncompliance with
the regulations of the law on bidding and other relevant law provisions during
the selection of contractor; measures for cases in which the bidding result
cannot be concluded due to lack of information;
- Other opinions (if
any).
Chapter XI
PROVISION
OF TRAINING IN BIDDING, PROFESSIONAL BIDDING ORGANIZERS AND REQUIREMENTS FOR
MEMBERS OF EXPERT GROUPS
Section
1: PROVISION OF TRAINING IN BIDDING, PROFESSIONAL BIDDING ORGANIZERS AND
REQUIREMENTS FOR MEMBERS OF EXPERT GROUPS
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1. Any training center
meeting the requirements prescribed in Points a, b and c Clause 1 Article 19 of
the Law on Bidding shall submit an application for recognition as a training
center for bidding to the Ministry of Planning and Investment.
2. The Ministry of
Planning and Investment shall form a Council to verify such application.
3. The training center
confirmed by the Council that is satisfies the requirements prescribed in
Points a, b and c Clause 1 Article 19 of the Law on Bidding shall be recognized
as training center for bidding and published on the national bidding system.
4. A training center for
bidding shall be deleted from the national bidding system when it:
a) changes the
transaction office without sending any written notification to the Ministry of
Planning and Investment within 60 days from such change.
b) employs lecturers that
are not listed in the national bidding system to deliver lectures to the
bidding training classes;
c) provides training
unconformable with the framework programme of bidding;
d) issues Certificates to
the persons who do not attending the bidding training classes or persons who do
not satisfies all of the requirements prescribed in Clause 1 Article 111 of
this Decree;
dd) does not store the
documents on the bidding training courses that it offers under the regulation;
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Article
108. Provision of training in bidding
1. Any training center
for bidding wishing to offer bidding training courses must:
a) be listed in the
national bidding system;
b) have classrooms and
teaching aids that meet the requirements;
c) have teaching material
conformable with the framework programme under the regulations of the Ministry
of Planning and Investment attaching the dossiers on tests of fundamental
bidding training programme;
d) sign labor contracts
or teaching contracts with lecturers in bidding.
2. A bidding training
course issuing Certificates must be a fulltime course. There are at most 150
learners in each class. After each course, the Head of the training center
shall issue Training certificates of bidding to the qualified learners.
3. After each training
course in bidding after which Certificates are issued, the training center
shall send the training result attached with a List of learners issued with
Certificates to the Ministry of Planning and Investment to be published on the
national bidding system.
4. Regarding the courses
for the learners living in remote areas or severely disadvantaged areas, the
training center can use the adjusted teaching material that is conformable with
the peculiar requirements for local bidding but the duration of such courses
must follow the framework programme.
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1. Have at least Bachelor's
Degrees in law, technology, and economics.
2. Have at least 05
continuous years’ experience in bidding or at least 06 years’ experience in
bidding (in case of discontinuity in the duration).
3. Have practice
certificates of bidding.
4. Complete the training
courses for lecturers in bidding offered by the Ministry of Planning and
Investment.
Article
110. Application, assessment, recognition and disqualification of lecturers in
bidding
1. Any lecturer meeting
all of the regulations in Article 109 of this Decree shall send an application
for recognition as lecturer in bidding to the Ministry of Planning and
Investment.
2. The Ministry of
Planning and Investment shall form a Council to verify such application.
3. The lecturer in
bidding confirmed by the Council that (s)he satisfies the requirements
prescribed in Article 109 of this Decree shall be recognized as lecturer in
bidding and published on the national bidding system .
4. A lecturer in bidding
shall:
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b) sharpen their
knowledge and learn the policies if there are new policies;
c) send annual reports or
irregular reports at the request of the Ministry of Planning and Investment on
their teaching of bidding.
5. A lecturer in bidding
shall be deleted from the national bidding system if (s)he:
a) give lectures
unconformable with the framework programme prescribed by the Ministry of
Planning and Investment;
b) does not learn new
knowledge and policies;
c) does not send annual
reports or irregular reports at the request of the Ministry of Planning and
Investment on their teaching of bidding.
Article
111. Requirements for issuance of Training certificates of bidding and practice
certificates of bidding
1. A learner shall be
issued with the Training certificate of bidding if (s)he:
a) attends at least 90%
of course lectures. If the learner has legitimate excuses for their absence,
such learner can continue to take another course offered by the same training
center within 03 months from the first day of the previous course;
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c) is capable of civil
act and not facing any criminal prosecution.
2. A person shall be
issued with the practice certificate of bidding if (s)he:
a) has a certificate of
training in bidding;
b) has at least a
Bachelor’s degree;
c) is capable of civil
acts and not facing any criminal prosecution.
d) has at least
continuous 04 years’ experience in works directly related to the bidding or at
least 05 years’ experience in bidding (in case of discontinuity in the
duration); or directly make or verify the EOI request, invitation for
prequalification, invitation for bid, request for proposals; evaluate the EOI
response, application for prequalification, bid-envelopes, proposals; verify
the evaluation result of EOI response, evaluation result of application for
prequalification and the bidding result of at least 05 large-scale contracts or
10 small-scale contracts;
dd) Pass the exam held by
the Ministry of Planning and Investment.
3. Each practice
certificate of bidding issued by the Ministry of Planning and Investment shall
be effective in 05 years from the issuance. If anyone issued with the practice
certificate of bidding commits any violation against the law in bidding, their
practice certificate shall be revoked depending on the nature and severity of
the violations.
Article
112. Responsibilities of the Ministry of Planning and Investment for management
of bidding training
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2. Establish and provide
the nationwide framework programme, learning and teaching materials.
3. Give detailed instructions
on application, inspection and recognition of bidding training centers and
lecturers.
4. Hold examinations to
issue the practice certificates of bidding.
5. Provide training and
issue Certificates to the lecturers in bidding.
6. Provide the forms for
Certificates of lecturers in bidding, training certificates and practice
certificates.
7. Issue the Decision on
recognition for training centers meeting the requirements prescribed in Points
a, b and c Clause 1 Article 19 of the Law on Bidding.
8. Issue Decision on
recognition for lecturers meeting requirements prescribed in Article 119 of
this Decree.
9. Issue Decision on
disqualification of bidding training centers and lecturers committing
violations against the regulations in Clause 4 and Clause 5 Article 110 of this
Decree.
10. Inspect the
compliance of the training centers and lecturers with the regulations of the
law on bidding.
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Section
2: PROFESSIONAL BIDDING ORGANIZERS
Article
113: Requirements for professional bidding organizations
1. Such organizer must
have permits for establishment and operation issued by the competent
authorities which allow them to act as bidding agents or bidding consultancy or
organizations in charge of bidding.
2. Employ the regulatory
bodies meeting the professional requirements to perform the functions and
duties as bidding agents, bidding consultancies, or organizations in charge of
bidding.
3. Their personnel have
professional ethics, honesty and impartiality during their work.
4. They use procedures
for management and control of the quality of their work.
Article
114: Consideration, recognition and announcement of professional bidding
organizers’ information
1. Any organization
meeting all of the requirements prescribed in Article 113 of this Decree shall
send an application for recognition as professional bidding organizer to the
Ministry of Planning and Investment.
2. The Ministry of
Planning and Investment shall form a Council in charge of verifying such
application.
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Article
115: Operation of professional bidding organizations
1. A professional bidding
organizer is allowed to operate after it is announced in the national bidding
system.
2. A professional bidding
organizer can sign contracts to act as bidding agent or provider of bidding
consultancy for investors and procuring entities.
Section
3: EXPERT GROUP
Article
116: Expert group
1. Each expert of such
group must have a practice certificate of bidding, except for the persons
prescribed in Clause 3 and Clause 4 this Article.
2. An
expert group may consist of experts in technology, finance, commerce,
administrative affairs, legality and relevant fields depending on the nature
and complexities of the contract.
3. Any person other than
the persons prescribed in Clause 2 Article 16 of the Law on Bidding wising to
participate in the expert group must:
a) have a Training
certificate of bidding;
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c) have deep knowledge
about the corresponding contents in the contract;
d) have at least 03
years’ experience in the field related to economic and technical contents of
the contract.
4. Cases in which the
opinions of other experts are needed, such experts are not required to have
training certificates of bidding.
Chapter
XII
HANDLING OF
BIDDING CASES AND CONSIDERATION OF BIDDING PETITIONS
Section
1: HANDLING OF BIDDING CASES
Article
117: Handling of bidding cases
1. If the value or
contents of a contract need adjusting, the plan to select the contractor must
be adjusted under the regulations of the law before the bid opening (other than
the cases prescribed in Clause 2 and Clause 8 this Article).
2. If the approved
contract estimate is different from the contract value in the approved plan to
select the contractor, such contract estimate shall replace such contract value
as follows:
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b) If the approved
estimate is lower than the contract value in the plan to select the contractor
but the method for selecting the contractor in such plan is not changed, the
plan shall not be adjusted; if the method for selecting the contractor needs
adjusting to be conformable with the new value of the contract according to the
approved estimate, the plan shall be adjusted.
3. If there are fewer
eligible short-listed bidders, depending on each contract, such case shall be
handled by:
a) Adding more bidders to
the short-list;
b) Allowing the
invitation for bid to be sent to the short-listed bidders.
4. After the deadline for
submitting bids regarding the opening bidding, limited bidding or competitive
bidding, there are fewer bidders submitting the bid-envelopes and proposals,
such case shall be handled within 04 hours from such deadline by either:
a) extending the deadline
in order to attract more bidders to submit the bid-envelopes and proposals. In
this case, the new deadline for submitting bids and corresponding deadline must
be specified so that the bidders can adjust the submitted bid-envelopes and
proposals according to the new requirements;
b) Immediately opening
bid-envelopes to carry out evaluation.
5. In
case of a contract containing several items:
a) The invitation for bid,
request for proposals must prescribed the conditions for submitting bids,
measures and value of tender guarantee for each item or various items and
method of evaluation of each item or some items so that the bidders can make
appropriate bids;
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c) In case there is an
item of some items of a contract which no bidders are interest in or no bidders
satisfy the requirements prescribed in the invitation for bid and request for
proposals, the investor shall send a report to the competent persons to adjust
the plan to select the contractor by making the item(s) into an independent
contract whose value is the total estimated cost of such item(s); the selection
of contractors meeting the technical requirements with regard to the items to
which bidders submitting bid-envelopes must ensure the evaluation principles
prescribed in Point b this Clause;
d) There will be one
contract if a contractor wins all of the contract items. There will be several
contracts if several contractors win different contract items.
6. If the unit prices in
the bid-envelope and proposals are remarkably low, which seriously affects the
contract, the procuring entity shall request the bidder to make a written
explanation for the feasibility of such unit prices. If the explanation of the
bidder is not clear and persuasive, such unit prices shall not be accepted.
Such case shall be considered deviation and such deviation shall be adjusted
under the regulations similar to the regulations on the deficient quoted value
and proposals compared with the requirements in the invitation for bid and
request for proposals in accordance with the regulations in Article 17 of this
Decree.
7. If the bid by the
bidder ranked first exceeds the contract value (after error correction,
adjustment of deviation, and deduction of discount) and the by one ranked
bidder is lower than the contract value (after error correction, adjustment of
deviation and deduction of discount), the bidder ranked first shall be invited
to the price negotiation provided that the negotiated price shall not exceed
the approved contract value. If such negotiation collapses, the bidder ranked
next shall be invited.
8. If the bids by the
bidders meeting the technical requirements and included in the ranked list
exceed the approved contract value (after error correction, adjustment of
deviation, and deduction of discount), such case shall be handled by either:
a) allowing such bidders to
submit new bids if the contract value includes the constituents of the
contractual cost;
b) allowing such bidders
to summit new bids and the procuring entity to request the investor to
reconsider the approved contract value and invitation for bid, if necessary.
If the bidders are
allowed to submit new bids, the deadline for the preparation and submission of
new bids must be specified. The bidders shall submit new bids within 10 days
from the day on which the procuring entity send the written request for the
submission of new bids. The opening of bid-envelopes submitting new bids shall
be specified according to the procedures for bid opening prescribed in Article
29 of this Decree. If the contract value in the approved plan to select the
contractor needs adjusting, the competent persons shall give a decision on such
adjustment within 10 days from the receipt of such adjustment and before the
deadline for the submission of new bids;
c) allowing the bidder
ranked first to enter into the price negotiation provided that the negotiated
price shall not exceed the bid (after error correction, adjustment of
deviation, and deduction of the lowest discount). If
the contract value in the approved plan to select the contractor needs
adjusting, the competent persons shall give a decision on such adjustment
within 10 days from the receipt of the request for such adjustment. If
such negotiation collapses, the bidder ranked next shall be invited. This
method shall apply on only the open bidding contracts and the investors shall
be responsible for the competitiveness, impartiality, transparency and economic
effectiveness of the contracts.
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a) the factors related to
the execution of work, manufacturing process or provision of cervices;
b) the applied economic
solutions or the considerable advantages of the contractor leading to the
advantages in prices;
c) the origin of the
goods, services and personnel provided for the contract provides that the
regulations of the law must be complied with;
If all requirements
prescribed in Points a, b and c this Clause are satisfied, the bid-envelope and
proposal of the bidder are accepted to win the contract. The investor can set
the value of tender guarantee higher than 10% but less than 30% of the
successful bid which must approved by the competent persons. Such approval must
be recorded in writing. In case of any bidder supported by any entity, which
leads to unhealthy competition, the bid-envelope and proposal of such bidder
shall be invalidated.
10. If the invitation for
bid allow the bidders to propose construction methods other than the
construction methods prescribed in the invitation for bid, the difference
between the workload according to the construction methods in the invitation
for bid and the workload according to the construction methods proposed by the
bidders shall not be adjusted in accordance with the regulations in Article 17
of this Decree. Such difference shall not be considered negative deviation.
11. If the contractor
violates the contract or is ineligible to continue executing the contract,
which seriously affects the progress, quality and effectiveness of the
contract, the investor shall request the competent persons consider approving
the cancellation of the contract with such contractor. The remaining work shall
be applied the no-bid contract of methods of selection of another contractor
provided that the quality and progress of the contract is ensured. The value of
the remaining work given to the new contractor is calculated by subtracting the
value of the completed work from the contract value. In case of no-bidding contract awarding, the competent persons
must ensure that the contractor must be qualified enough to carry out the
remaining work. If the contractor is not responsible for the delay in
conducting the contract, the contract signed with such contractor shall not be
cancelled. In case the contract signed with the delinquent contractor must be
ended, the investor must send a report to the Ministry of Planning and
Investment for consideration and announcement of such delinquent contractor on
the national bidding system and the Vietnam Public Procurement Review Journal
within 05 working days from the issuance of Decision on the contract
cancellation; such report must specify the reasons for the contract
cancellation, method of selection of new contractor and appointed contractor in
case of no-bidding contract awarding.
12. In case any bidder is
separated or merged during the bidding, such bidder shall be allowed to
continue participating in the bidding.
13. When signing the
contract, if the contractor does not satisfy the requirements for technical and
financial competence prescribed in Clause 2 Article 64 of the Law on Bidding,
the bidder ranked next shall be invited to the contract negotiation. In this
case, such bidder must revalidate their bid-envelope and tender guarantee if
the bid-envelope is invalid and the tender guarantee is refunded or cleared.
14. That
more than one bidder is considered equal after evaluation shall be handled by:
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b) Awarding the contract
to the bidder that has the lowest bid if the contract is awarded according to
the evaluation or application of combined technical and price-based method.
15. Any case other than
the cases prescribed in Clauses 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and
14 of this Article arising shall be considered by the investor provided that
the bidding must be competitive, impartial, transparent and economically
effective.
Section
2: CONSIDERATION OF BIDDING PETITIONS
Article
118. Requirements for consideration of petition
1. The petition is
submitted by the bidder.
2. The petition must bear
the sign of the person signing the bid-envelopes or legal representative of the
bidder and the stamp (if any).
3. The person in charge
of considering the competitiveness receives the competitiveness under the
regulations in Article 92 of the Law on Bidding.
4. Such proposal has not
taken to court by the bidder.
5. The expenditure on
handling of the any petition prescribed in Clause 8 Article 9 of this Decree
shall be paid by the bidder submitting such petition to the standing assisting
division of the Advisory Council in case of petition against the bidding result
handled by the competent persons.
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1. President of Advisory
Council
a) The President of the
Central Advisory Council is the competent representative of the Ministry of
Planning and Investment. The Central Advisory Council shall give advice on the
consideration of the petitions as required by the Prime Minister;
b) The President of the
Advisory Council of Ministries, ministerial-level authorities, Governmental
authorities and other central authorities (hereinafter referred to as
Ministerial Advisory Council) is the competent representative of the units in
charge of administering the bidding of such authorities). b) The Ministerial
Advisory Council shall give advice on the consideration of the petitions
regarding the contracts of the projects approved and administered by the
Ministers, Heads of ministerial-level authorities, Governmental authorities and
other central authorities other than the contracts prescribed in Point a this
Clause;
c) The President of the
provincial Advisory Council is the competent representative of the provincial
Departments of Planning and Investment. The provincial Advisory Council shall
give advice on the consideration of the competitiveness regarding the contracts
of the projects in the provinces including the contracts of the enterprises
established and operated in such provinces other than the contracts prescribed
in Point a this Clause.
2. Members of Advisory
Council:
Members of Advisory Council
are the representatives of the competent persons and relevant professional
association. Depending on the nature of each contract, in addition to the
abovementioned members, the President of the Advisory Council can invite other
individuals for the Advisory Council. The members of the Advisory Council must
not be the relatives (biological parents, parents in law, biological children,
adopted children, in-laws, biological sisters and brothers) of the persons
signing the petition, of the persons directly evaluating the bid-envelopes and
proposals, of the persons directly assessing the result of the selection of
contractors and of the person approving the result of the selection of the
contractors.
3. Activities of Advisory
Council:
a) The President of the
Advisory Council shall make a Decision to form the Advisory Council within 05
working days from the receipt of the petitions of the bidders. The Advisory
Council shall be formed depending on each case;
b) The Advisory Council shall
work on the principle of collectives, conduct polls based on the majority rule
and send Reports to the competent persons for consideration; each member can
stick to their opinion and take legal responsibility for it.
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a) The standing assisting
division shall be in charge of administering the bidding excluding the persons
directly assessing the contracts for which the bidders file the petitions;
b) The standing assisting
division shall be assigned the administrative tasks by the President of the
Advisory Council; receive and manage the cost paid by the bidders submitting
the petitions.
Article
120. Handling of petitions for selection of contractors
1. The duration of the
consideration of any petition prescribed in Clause 1 and Clause 2 Article 92 of
the Law on Bidding counted from the day on which the administrative division of
the person in charge of considering such petition receives the petition.
2. The person in charge
of considering the competitiveness shall send the bidder a written report that
the petition shall not be considered if such petition does not meet the
requirements prescribed in Article 118 of this Decree.
3. The bidder can send a
written request for the withdrawal of the petition during the consideration of
such petition.
4. The conclusion of the
petition must be written on the reply to the petition; in case such petition is
approved, there must be measures, methods and time to remedy the consequences
(if any) and the standing assisting division shall request the relevant
entities to reimburse the amount that the bidder submitting the petition pay to
the Advisory Council. In case of disapproval, the written reply must specify
the reasons.
Chapter XIII
IMPOSITION
OF PENALTIES FOR VIOLATIONS AND SUPERVISION OF BIDDING
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Article
121. Penalties for violations against regulations on bidding
1. Any entity committing
any violation against the law on bidding shall be given a warning or a fine
under the regulations of the law on imposition of penalties for administrative
violations in the field of planning and investment.
2. Any entity committing
any violation prescribed in Article 89 of the Law on Bidding and Clause 8 Article
12 of this Decree shall be prohibited from participating in the bidding.
3. Any individual
committing any violation against the law on bidding which constitutes crimes
under the regulations of the Criminal law shall be liable to criminal
prosecution.
4. Any official
committing any violation against the law on bidding shall be penalized under
the regulation of the law on officials.
Article
122. Prohibition of participation in selection of contractors
Depending on the degree
of the violation, an entity shall be:
1. Prohibited from
participating in the bidding for 03 year to 05 years when committing any
violation against the regulations in Clauses 1, 2, 3, 4 and 5 Article 89 of the
Law on Bidding;
2. Prohibited from
participating in the bidding for 01 year to 03 years when committing any
violation against the regulations in Clauses 8 and 9 Article 89 of the Law on
Bidding;
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4. Prohibited from
participating in the bidding for 01 year to 05 years when committing any
violation against the regulations on use of employees prescribed in Clause 8
Article 12 of this Decree.
Article
123. Bidding cancellation, bidding suspension and invalidation of bidding
result
1. The competent persons,
investors and procuring entities may cancel the bidding when the bidders commit
violations against the regulations of the law on bidding and other law
provisions by issuing the Decisions on bidding cancellation in accordance with
the regulations in Clause 4 Article 73, Clause 10 Article 74 and Point e Clause
2 Article 75 of the Law on Bidding.
2. The bidding
suspension, invalidation of bidding result and decisions of the investors and
procuring entities are prescribed as follows:
a) The bidding suspension
and invalidation of bidding result shall be applied when there are evidences
that the bidders commit violations against the regulations of the law on
bidding and other relevant law provisions, which makes the bidding
uncompetitive, partial and economically ineffective or falsifies the bidding
result;
b) The bidding shall be
suspended right after the violations are committed before the bidding result is
approved. The bidding result shall be invalidated from the approval for the
bidding result to the contract signing; or after the contract signing if
necessary;
c) The record on the
bidding suspension and invalidation of bidding result must specify the reasons,
measures and time to remedy the violations against the regulations of the law
on bidding;
d) The competent persons
shall invalidate the decisions of the investors and procuring entities if such
decisions are unconformable with the regulations of the law on bidding and
relevant law provisions.
Article
124. Compensation for damage due to violations against law on bidding
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Section
2: INSPECTION AND SUPERVISION OF BIDDING
Article
125. Inspection of bidding
1. The bidding shall be
inspected periodically or irregularly at the request of the Prime Minister,
Presidents of the People’s Committees of provinces, competent persons of the
inspecting authorities in charge of bidding in accordance with the regulations
in Clause 2 this Article. Methods of inspection can be direct inspection or
report.
2. The Ministers, Heads
of ministerial-level authorities, Governmental authorities, other central
authorities, Presidents of the People’s Committees of provinces; Directors of
the provincial Departments of Planning and Investment, Heads of Departments
under the management of the People’s Committees of provinces; Presidents of the
People’s Committees of districts; ; Chiefs of state-owned enterprises shall
direct the inspection of bidding of the units under their management and the
projects approved by themselves to administer the bidding in order to enhance
the progress and effectiveness of the bidding and detect, prevent and deal with
the violations against the law on bidding.
3. The Ministry of
Planning and Investment shall take charge and inspect the bidding across
Vietnam; the Ministers, Heads of ministerial-level authorities, Governmental
authorities, other central authorities; the People’s Committees of provinces;
the provincial Departments of Planning and Investment and departments under the
management of the People’s Committees of provinces and the People's Committees
of districts; the state-owned enterprises shall take charge and inspect the
bidding as required by the competent persons of the inspecting authorities in
charge of bidding. The provincial Departments of Planning and Investment shall
assist the People’s Committees of provinces in taking charge and conducting
local inspection of bidding.
4. Inspection of bidding
including periodic inspection and surprise inspection.
a) A periodic inspection
involves:
- Inspecting the issuance
of guiding documents on bidding, and division of responsibility for bidding;
- Inspecting the training
in bidding;
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- Inspecting the formulation
of and approval for the plan to select the contractors, EOI request, invitation
for prequalification, invitation for bid, request for proposals, result of the
selection of the contractors;
- Inspecting the contract
and the adherence to the legal grounds for the signing and execution of the
contract;
- Inspecting the
procedures for and progress of the execution of the contract according to the
approved plan to select the contractors;
- Inspecting the report
on the bidding;
- Inspecting the
inspection and supervision of the bidding.
b) According to each
request for surprise inspection, and Decision on inspection, the chief
inspector shall regulate the suitable inspection activities.
5. There must be inspection
report and conclusion after each inspection ends. The inspecting authorities
shall monitor the handling of the problems (if any) mentioned in the inspection
conclusion. In case of any violation, it is required to impose the handling
measures or send a report to the inspecting authorities for consideration.
6. An inspection
conclusion includes:
a) The bidding at the
inspected unit;
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c) Comments;
d) Conclusion;
dd) Recommendations.
Article
126: Supervision of bidding
1. The competent persons
shall appoint the regulatory individuals or bodies in charge of bidding to
supervise the execution of the investors, procuring entities during the
selection of the contractors to endure the adherence to the regulations of the
law on bidding.
2. The competent persons
shall decide and direct the supervision of the bidding regarding the contracts
of the projects and budget estimates approved by themselves if necessary;
supervise the sole source contracts, high value contracts of which the
investors and procuring entities posing questions.
3. The Ministry of
Planning and Investment shall take charge and supervise the bidding regarding
the projects within the competence of the Prime Minister or at the request of
the Prime Minister. The Ministries, ministerial-level authorities, Governmental
authorities, other central authorities, units assigned to administer the
bidding under the management of such authorities shall take charge and
supervise the bidding in case the Ministers, Heads of ministerial-level
authorities, Governmental authorities, and other central authorities are the
competent persons. The provincial Departments of Planning and Investment shall
take charge and supervise the bidding regarding the local projects.
4. A supervision of the
compliance of the bidding with the regulations of the law on bidding involves
supervising:
a) the compilation of
invitation for bid, request for proposals (when preparing for the selection the
contractor);
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c) the result of the
evaluation of the bid-envelope, proposals, negotiation of the contract (when
assessing the bid-envelope and proposals);
d) the assessment of and
approval for the selection of the contractor;
dd) The process of the
completion of the contract, contents of the contract and the adherence to the
legal grounds for the signing and execution of the contract (when completing
and signing the contract)
5. Methods of supervision
of bidding:
a) The competent persons
shall send written requests to the investors and procuring entities regarding
the contracts needing supervising;
b) The procuring entities
shall send the names and addresses of the supervising entities to the
contractors having the invitations for bid and the proposals;
c) The procuring entities
shall provide the information about the selection of the contractors for the
supervising entities on receiving written requests;
d) The supervising
entities in charge of bidding shall send written reports on the violations
against the law on bidding to the competent persons for consideration to ensure
the effectiveness of the selection of the contractors.
6. Responsibilities of
every supervising entity in charge of bidding:
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b) Request the investors
and procuring entities to provide relevant information and documents which
facilitate the supervision;
c) Receive the
reflections of the contractors and other entities related to the selection of
contractors on the supervised contracts;
d) Protect the
information under the regulations;
dd) Fulfill other
obligations under the regulations of the law on bidding and other law
provisions.
Chapter XIV
OTHER
ISSUES
Article
127. Forms for bid-envelopes
1. Forms for a
bid-envelope include: Form for plan to select the contractor; form for EOI
request; form for invitation for prequalification, form for invitation for bid;
form for request for proposals; form for report on evaluation result of the
bid-envelope, proposals; form for evaluation of result of selection of
contractor and other forms.
2. The Ministry of
Planning and Investment shall provide the forms for bid-envelopes.
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1. Responsibilities of
every contractor:
a) Register the national
bidding system under the regulations in Point d Clause 1 Article 5 of the Law
on Bidding;
b) Regularly update the
information about their competence and experience on the national bidding
system;
c) In addition to the
responsibilities prescribed in Point a and Point b this Clause, every foreign
contractor shall:
- Comply with the
regulations of the law of Vietnam on exit and entry; import and export of
goods; registration of residence; accounting and tax scheme and other relevant
of law of Vietnam unless there are different regulations in the international
agreements to which the Socialist Republic of Vietnam is a signatory or
international agreements that the competent authorities of the Socialist
Republic of Vietnam have signed after selected to carry out the contracts.
- The investors shall
send written reports on the successful bidders to the Ministry of Planning and
Investment, managing Ministries and the Departments of Planning and Investment
of provinces where the projects are carried out within 15 days from the
effective date of the contracts signed with the foreign contractors.
d) Any foreign contractor
selected under the regulations of the Law on Bidding does not have to request
for the issuance of bidding license.
2. Management of
subcontractors:
a) Any prime contractor
can sign a contract with the subcontractors in the List of the contractors
mentioned in the bid-envelope and proposals. The prime contractor must fulfill
their obligations even when hiring the subcontractors. The prime contractor
shall be responsible for the workload, quality, progress and other
responsibilities for the parts of the contract carried out by the
subcontractors;
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c) The prime contractor
shall select and employ the eligible subcontractors. In case of important contractors at the request of the invitation for bid,
the competence and experience of them shall be evaluated under the regulations
in the invitation for bid;
d) The prime contractor
shall pay the subcontractors under the agreement between the prime contractor
and the subcontractors.
3. The Ministry of
Planning and Investment shall maintain the database of the contractors, list of
contractors committing violations against the law on bidding; summarize and
provide the information about the contractors for the relevant organizations
and individuals, which facilitates the healthy competitive during the selection
of contractors.
Chapter XV
IMPLEMENTATION
Article
129. Guidance
1. With regard to the
contracts whose bidding plans have been approved but the EOI requests,
invitations for prequalification, invitations for bid, request for proposals
has not released before July 01, 2014, the adjustment to such bidding plans
must be approved if they do not comply with the regulations in the Law on
Bidding No. 43/2013/QH13.
If the EOI requests,
invitations for prequalification, invitations for bid, requests for proposals
released before July 01, 2014, the implementation shall comply with the
regulations of the Law on Bidding No. 61/2005/QH11, the Law on the amendment
and supplementation of the laws related to fundamental construction No.
38/2009/QH12 dated June 19th 2009, Decree No. 85/2009/ND-CP dated October 15,
2009, Decree No. 68/2012/ND-CP dated September 12, 2012 of the Government, the
Decision No. 50/QĐ-TTg of the Prime Minister dated November 09, 2012 and relevant
Circulars.
2. From July 01, 2014 to
the effective date of this Decree, the contractors shall be selected according
to the Law on Bidding No. 43/2013/QH13. Before the effective date of this
Decree, the contractors shall be selected in accordance with the regulations of
the Decree No. 85/2009/ND-CP, Decree No. 68/2012/ND-CP and other relevant
guiding documents, which must not violate the Law on Bidding No 43/2013/QH13.
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4. Any individual issued
with the Certificate of professional training in bidding before the effective
date of this Decree shall continue to participate in bidding under the
regulations in Article 16 of the Law on Bidding No. 43/2013/QH13. However,
(s)he is require to update the information prescribed in the current
legislative documents on bidding.
5. The Ministry of
Planning and Investment shall:
a) provide the roadmap
for application and instructions on:
- Registration of
contractors in the National bidding system in accordance with the regulations
in Point d Clause 1 Article 5 and Point e Clause 2 Article 22 of the Law on
Bidding No. 43/2013/QH13;
- Issuance of the
practice certificates of bidding to the individuals required to have the
practice certificates under the regulations of Clause 2 Article 16 and Point c
Clause 1 Article 19 of the Law on Bidding No. 43/2013/QH13;
- Activities of the
professional bidding organizers in accordance with the regulations in Article
32 of the Law on Bidding No. 43/2013/QH13;
b) provide instructions
on other necessary contents of this Decree to facilitate the management of the
bidding.
6. The Ministry of
Finance shall:
a) provide specific
instructions on the purchase funded by the state capital to maintain the
activities of the competent authorities, units affiliated to People’s armed
forces, public service providers, political organizations, socio-political
organizations, socio-political and professional organizations, social
organizations, socio-professional organizations;
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c) take chare and
cooperate with the Ministry of Planning and Investment in giving guidance on
the bulk purchasing;
d) give guidance on the
fees for the selection of contractors.
7. The Ministry of Health
shall be in charge of giving guidance on bidding for medicines to facilitating
disease prevention, examination and treatment which is funded by the State
budget, medical insurance fund and other resources in the medical facilities.
8. The Ministry of
Industry and Trade shall:
a) provide instructions
on the procedures for the import and export of goods for the successful
bidders;
b) publish the List of
the goods that can be produced in Vietnam, List of popular goods allowed to be
imported into and sold in Vietnam.
9. The Ministry of Labor,
War Invalids and Social Affairs shall take charge and cooperate with the
Ministry of Finance and relevant regulatory authorities in promulgating the
regulations on the wages of the Vietnamese consulting specialists, which serves
as a basis to determine the value of the time-based consulting contracts
prescribed in Clause 4 Article 62 of the Law on Bidding No. 43/2013/QH13.
10. The Ministry of
Construction shall giving instructions on labor costs of the consulting
services which serve as a basis to determine the time-based consulting
contracts prescribed in Clause 4 Article 62 of the Law on Bidding No.
43/2013/QH13.
11. The Ministries and
regulatory authorities must provide the List of satisfactory goods that can be
produced in Vietnam within their authority.
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13. The Ministers, Heads
of ministerial-level authorities, Governmental authorities, other central
authorities, the Presidents of the People’s Committees shall assign Chiefs
directly in charge of bidding and affiliated units to administer bidding within
their competence. Difficulties that arise during the implementation of this
Circular should be reported to the Prime Minister for consideration. The
Ministries, ministerial-level authorities, Governmental authorities, other
central authorities, the People’s Committees of provinces, enterprises approved
by the Prime Minister must send annual reports on the bidding to the Ministry
of Planning and Investment to summarize and notify the Prime Minister.
Article
130. Effect
This Decree takes effect
from August 15, 2014.
The Decree No.
85/2009/NÐ-CP of the Government giving instructions on the Law on Bidding and
selection of building contractors under the Law on Construction dated October
15, 2009, Decree No. 68/2012/NÐ-CP dated September 12, 2012 of the Government
on the amendment to some Articles of the Decree No. 85/2009/NÐ-CP of the
Government dated October 15, 2009 and the Decision No. 50/QÐ-TTg of the Prime
Minister on the application of limited bidding regarding the contracts
considered and decided the Prime Minister dated November 09, 2012 shall expire
from the effective date of this Decree.
ON BEHALF OF THE GOVERNMENT
THE PRIME MINISTER
Nguyen Tan Dung