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MINISTRY
OF TRANSPORT
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SOCIALIST
REPUBLIC OF VIETNAM
Independence – Freedom – Happiness
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No.
22/2021/TT-BGTVT
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Hanoi,
September 30, 2021
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CIRCULAR
METHODS AND QUALITY OF ASSESSING BID FOR SELECTING INVESTORS
FOR DREDGING PROJECTS IN COMBINATION WITH DREDGED MATERIAL COLLECTION IN
SEAPORT WATERS AND INLAND WATERS
Pursuant to Vietnam Maritime
Code dated November 25, 2015;
Pursuant to Law on Inland
Waterway Transport dated June 15, 2004; Law on amendments to Law on Inland
Waterway Transport dated June 15, 2014;
Pursuant to Decree No.
12/2017/ND-CP dated February 10, 2017 of Government on functions, tasks,
powers, and organizational structure of Ministry of Transport;
Pursuant to Decree No.
58/2017/ND-CP dated May 10, 2017 of Government on elaborating to a number of
Articles of Vietnam Maritime Code providing for maritime activity management;
Pursuant to Decree No.
08/2021/ND-CP dated January 28, 2021 of the Government managing inland waterway
activities;
Pursuant to Decree No. 159/2018/ND-CP
dated November 28, 2018 of Government on dredging in seaport waters and inland
waterways;
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Pursuant to Decree No.
31/2021/ND-CP dated March 26, 2021 of the Government on elaborating to Law on
Investment;
At request of Director of
Traffic Infrastructure Department, Director of Vietnam Maritime Administration,
and Director of Vietnam Inland Waterways Administration;
Minister of Transport
promulgates Circular on methods and quality of assessing bid for selecting
investors for dredging projects in combination with dredged material collection
in seaport waters and inland waters.
Chapter I
GENERAL PROVISIONS
Article 1.
Scope
This Circular prescribes
procedures, methods, and standards for assessing bid and written
recommendations of investors for dredging projects in seaports and inland
waters under joint management of Ministry of Transport and People’s Committees
of provinces in combination with dredged material collection.
Article 2.
Regulated entities
This Circular applies to agencies,
organizations, and individuals participating in or related to selection of
investors for dredging projects in seaport waters, inland waters in combination
of dredged material collection.
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1. Within 7
working days from the date on which feasibility reports of projects are
approved, agencies that approve feasibility reports of projects shall upload
lists of projects and publicize project information on the National bidding
network to serve as the basis for identifying number of investors concerning,
registering for project execution.
2. Project
information publicized includes
a) Name of project; investment
goal, investment scale; basic requirements of the project; execution deadline
and progress; execution location;
b) Decision approving feasibility
report of the project, decision approving revision of feasibility report of the
project (if any);
c) Basic requirements for capacity
and experience of investors according to Annex attached hereto;
d) Deadline for submission of
registration for project execution;
dd) Location for submission of
registration for project execution: Submit in person at agency approving
feasibility report of the project (name of agency, address, and phone number
for contact when necessary); in case the National bidding network allows online
registration, submit registration on the National bidding network;
e) Other information (if
necessary).
3. Investors
are responsible for preparing and submitting registration for project execution
according to Clause 2 of this Article.
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a) Written registration for project
execution;
b) Documents on legitimacy,
capacity, and experience of investors;
c) Other relevant documents (if
any).
5. Once
deadline for submission of registration expires, agencies approving feasibility
reports of project shall assess registration for project execution by judging
details under Clause 2 of this Article and basic capacity, experience of
investors. Investors satisfying these regulations are eligible for
participating in selection process under Article 4 hereof.
6. Based on
assessment results under Clause 2 of this Article, agencies approving
feasibility reports shall decide to organize investor selection according to
Clause 1 Article 33 of Decree No. 159/2018/ND-CP dated November 28, 2018 and
Article 16 of Decree No. 25/2020/ND-CP dated February 28, 2020 of the
Government (with amendment thereto under Clause 7 Article 108 of Decree No.
31/2021/ND-CP dated March 26, 2021).
Article 4.
Selecting investors for project execution
1. In case 2
or more investors satisfying basic requirements for capacity and experience,
bidding for selecting investors shall be conducted in form of open bidding,
including:
a) Prepare to select investors;
b) Organize investor selection;
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d) Open and assess written
recommendations in terms of financial - commercial matters;
dd) Request, appraise, approve, and
publicize investor selection results;
e) Negotiate, finalize, and sign
contracts.
2. In case an
investor registering and satisfying basic requirements for capacity and
experience or multiple investors register where only one investor satisfies
basic requirements for capacity and experience, adopt procedures for accepting
investors according to regulations and law on investment and the followings:
a) Agencies approving feasibility
reports of projects shall prepare written recommendation. Written
recommendation shall be developed on the basis of revising form under Annex IV
attached to 06/2020/TT-BKHDT dated September 18, 2020 of Minister of Planning
and Investment guiding implementation of Decree No. 25/2020/ND-CP dated
February 28, 2020 of the Government elaborating to Law on Bidding regarding
investor selection (hereinafter referred to as “Circular No. 06/2020/TT-BKHDT”)
and must include methods and standards for assessing capacity, experience, and
financial – commercial matters under this Circular.
b) Investors shall prepare and
submit written recommendation as required by the written recommendation;
c) Assess written recommendation of
investors. During assessment, agencies approving feasibility reports of
projects may invite investors to clarify or revise necessary information of the
written recommendation;
d) Investors shall be accepted as
soon as they satisfy all following requirements: having legitimate written
recommendation; satisfying capacity and experience requirements; satisfying
technical requirements; satisfying financial – commercial requirements.
3. Activities
under Points a, b, dd, and e Clause 1 of this Article shall conform to
regulations and law on bidding. Activities under Points c and d Clause 1 of
this Article shall conform to this Circular.
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b) Bidding documents revised on the
basis of bidding document form must conform to Law on Bidding, Decree No.
25/2020/ND-CP dated February 28, 2020 of the Government, relevant law
provisions, and this Circular.
Article 5.
Assessing written recommendation in terms of technical matters
1. Examine and
assess legitimacy of written recommendation regarding technical matters:
Conform to Article 52 of Decree No. 25/2020/ND-CP dated February 28, 2020 of
the Government on elaborating to Law on Bidding regarding investor selection
(and amendment thereto under Clause 12 Article 89 of Decree No. 35/2021/ND-CP
dated March 29, 2021 of the Government).
2. Assess in
terms of capacity and experience
a) Rely on basic requirements for
capacity and experience approved according to Point c Clause 2 Article 3
hereof, standards and methods of assessing capacity, experience revised (if
necessary);
b) Assessment based on capacity and
experience shall conform to standards for assessing capacity and experience in
bidding documents.
3. Assess in
terms of technical matters
Investors having legitimate written
recommendation and satisfying capacity and experience requirements shall be
assessed in terms of technical matters. Detail assessment of written
recommendations in terms of implementation techniques shall conform to methods
and standards for assessing technical matters specified in bidding documents as
follows:
a) Assessment methods: Assessment
of technical matters shall utilize scoring scale of ___ [100 or 1,000]
in which the minimum score is ___% of the total score [no lower than
70%] and score of each criteria (technical matters; project management;
progress, implementation period; collection of dredged materials, environment,
and safety) of ___% of maximum score of the criteria [no lower than 60%];
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- Technical
requirements: requirements regarding technical matters and technology for
project execution; requirements for project equipment owned by investors or
joint investors to equal at least 20% of total equipment; requirements for
personnel for project execution; requirements for construction organization
methods.
- Project
management requirements: project management methods; project supervision
methods; cooperation methods during project execution;
- Progress
requirements and project execution period requirements:
- Requirements
for collecting dredged materials: solutions for utilizing dredged materials;
solutions for disposing non-collectible dredged materials; solutions for
gathering dredged materials (if any);
- Environment
and safety requirements: conform to regulations and law on environmental
protection and solutions for guaranteeing traffic safety during project
execution;
- In addition
to standards above, during development of assessment criteria for technical
matters, bid solicitors may adjust and revise other technical standards on a
case-by-case basis.
4. Investors
satisfying technical matters shall have their written recommendations assessed
in terms of financial – commercial matters. appraisal and approval of lists of
investors satisfying technical requirements shall conform to Article 53 of
Decree No. 25/2020/ND-CP dated February 28, 2020 of the Government on
elaborating to Law on Bidding regarding investor selection (and amendment
thereto under Clause 13 Article 89 of Decree No. 35/2021/ND-CP dated March 29,
2021 of the Government).
Article 6.
Assessing in terms of financial – commercial matters
1. Inspect and
assess legitimacy of written recommendations in terms of financial – commercial
matter according to Article 55 of Decree No. 25/2020/ND-CP dated February 28,
2020 of the Government on elaborating to Law on Bidding regarding investor
selection (and amendment thereto under Clause 15 Article 89 of Decree No.
35/2021/ND-CP dated March 29, 2021 of the Government).
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a) Employ comparison and ranking
solutions based on benefits for society and benefits for the Government;
b) Correct errors and rectify
discrepancies: prescribed by bid solicitors in bidding document;
c) According to bidding documents,
in case dredging costs of projects are less or equal to value of dredged
materials, investors shall be recommended for contracts if the investors
propose the highest difference between the dredging costs and value of dredged
materials (in addition to obligations of investors for state budget according
to relevant law provisions) to be submitted to state budget in cash according
to bid and proposed value of dredged materials is no lower than value of
dredged materials according to bidding documents;
d) According to bidding documents,
in case dredging costs of projects are greater than value of dredged materials,
investors shall be recommended for contracts if the investors propose the
lowest difference between the dredging costs and value of dredged materials (in
addition to obligations of investors for state budget according to relevant law
provisions) according to bid and proposed value of dredged materials is no
lower than value of dredged materials according to bidding documents;
dd In case after assessing written
recommendations for commercial – financial matters, all investors are equally
qualified, the investors with the highest technical score shall be proposed
with contracts.
Chapter III
ORGANIZATION FOR IMPLEMENTATION
Article 7.
Entry into force
1. This
Circular comes into force from December 1, 2021.
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3. In case
documents referred to this Circular are amended, the amended version shall
prevail.
Article 8.
Implementation
Chief of Ministry Office, Chief of
Ministry Inspectorate, Directors of Departments affiliated to Ministry of
Transport, Director of Vietnam Maritime Administration, Director of Vietnam
Inland Waterway Administration, Directors of Departments of Transport of
provinces and cities, and relevant agencies, organizations, individuals are
responsible for implementation hereof./.
PP.
MINISTER
DEPUTY MINISTER
Nguyen Xuan Sang
ANNEX
BASIC REQUIREMENTS FOR CAPACITY AND EXPERIENCE OF
INVESTORS
(Attached to Circular No. 22/2021/TT-BGTVT dated September 30, 2021 of
Minister of Transport)
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Entry
Requirements
i
Financial capacity (1)
1
Owner’s equity (2)
Minimum owner’s equity to be
prepared by investors: ___ [specify value in number and in words. Minimum
owner’s equity must not be lower than 15% of total project investment where
total project investment is determined by total project expenditure including
costs for preparing investment, costs for dredging, tax, charges, fees for
licensing right for extracting minerals, and other costs related to the
project]
In case of joint venture, owner’s
equity of joint investors equal total owner’s equity of all members. At the
same time, each joint venture member must satisfy requirements corresponding
to their owner’s equity contribution according to joint venture agreement;
any member that fails to satisfy shall result in the joint investors failing
to satisfy requirements for owner’s equity.
Investors hosting the joint
venture must have a minimum owner’s equity of 30% while each member must have
a minimum owner’s equity of 15%.
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Total value of owner’s equity and
loan capital that investors can arrange (3)
Total minimum value of owner’s
equity and loan capital that investors can arrange: ____ [specify value in
number and in words].
In case of joint venture, these
criteria shall be assessed based on total value of owner's equity and loan
capital that joint members are capable of arranging.
3
Net worth (4)
Net worth: ____ year [specify
number of years required] in which net worth must stay positive.
In case of joint venture, assess
net worth of each member.
4
Average annual revenue (5)
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In case of joint venture, assess
total average annual revenues of members.
II
Experience
Minimum number of projects in
which investors or joint venture members have participated in as investors
contributing owner’s equity or primary contractors: ___ projects [specify
number of projects required]. Methods of identifying project (6):
- Type 1:
Dredging project in which investors have participated as investors
contributing owner's equity and satisfied the following requirements:
+ Project having minimum total
investment of (7) ____ [specify equivalent value, usually
within 50% - 70% of total investment of project in question]
+ Project in which investors have
minimum owner’s equity of (8) ___ [specify equivalent value,
usually within 50% - 70% of total investment of project in question].
+ Project whose construction
process has been completed in ___ recent years [specify number of years
required].
- Type 2:
Dredging projects in which investors have participated as primary contractors
for dredging contract packages and satisfied the following:
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+ Contract packages/contracts
concluded in ___ recent years [specify number of years required].
Experience of investors equals
total number of projects that investors/joint venture members have executed.
Projects/contract packages that
investors have executed must satisfy technical and quality requirements as
per signed contracts before being eligible for consideration and assessment (10)
III
Other criteria (11)
Note:
(1) Based on scale, nature, and
field of the project, bid solicitors may revise or add other financial criteria
such as: interest, etc.
In case investors are organizations
established within the year, financial capacity of investors shall be assessed
on the basis of financial reports audited by independent auditing bodies from
the date of establishment to 28 days prior to bid closing date.
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Investors must declare information
and provide documents on financial capacity using form prescribed under bidding
documents.
Remaining owner’s equity of
investors = Total owner’s equity - Costs related to proceeding – owner’s equity
guaranteed for active projects and other long-term investment (if any) –
owner’s equity to be retained as per the law (owner’s equity for allocation or
required by the law for investors; owner’s equity to be retained according to
special backup demands for possible cases; other owner’s equity guaranteed to
be reimbursed and not used for dividend declaration, etc.).
(3) Investors must provide
commitment for mobilizing loan capital using form under bidding documents.
Investors shall attach written commitment for providing financial figures of
financial institutions or credit institutions for the remaining financial
obligations (in addition to owner’s equity) within responsibility for arranging
of investors.
(4), (5) Net worth and average
annual revenues are determined on the basis of financial reports of investors.
Investors must declare information using form prescribed under bidding
documents and provide certified true copies of documents regarding financial
reports, inspection records of tax finalization, declaration for tax finalization
bearing confirmation of tax authority for date of submission of the
declaration, audit report (if any).
(6) Investors shall provide their
experience using form in bidding documents. Investors shall only excerpt
experience in implementing a similar project once.
Methods of converting projects: ______
[Bid solicitors shall prescribe a class 2 project that equals up to 0.5 – 0.7
class 1 project and methods of rounding number when necessary].
(7), (8), (9) For projects where
total investment is unidentified in approving documents or project contracts,
investors must provide verifying documents to identify the total investment.
(10) Investors must provide records
for inspection and acceptance, contract liquidation or confirmation of
government authority to prove satisfaction of technical and quality
requirements for executed projects/contract packages.
(11) Based on scale, nature,
sector, and specific requirements of projects, bid solicitors s hall provide
other appropriate criteria while guaranteeing competitiveness, fairness, and
transparency.
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