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THE
NATIONAL ASSEMBLY OF VIETNAM
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THE
SOCIALIST REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No.:
22/2023/QH15
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Hanoi,
June 23, 2023
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LAW ON BIDDING
Pursuant to the Constitution of the
Socialist Republic of Vietnam;
The National Assembly of Vietnam
herein passes the Law on Bidding.
Chapter I
GENERAL PROVISIONS
Article 1.
Scope
This Law provides for state
management of bidding activities; powers and responsibilities of authorities, organizations
and individuals in bidding activities; selection of contractors executing
contract packages and selection of investors executing investment projects.
Article 2.
Regulated entities
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1. The selection of contractors
which is funded by state budget as prescribed by the Law on state budget or
lawful revenues of regulatory authorities and public sector entities for:
a) Executing investment projects or
procurement cost estimates of regulatory authorities, political organizations,
socio-political organizations, socio-political-professional organizations,
socio-professional organizations, social organizations, affiliated units of people’s
armed forces, public sector entities and other organizations and individuals;
b) Supplying public goods/services;
supplying drugs, chemicals, test equipment and medical devices; supplying
national reserve goods or providing storage services for national reserve
goods, except direct purchase of goods/services from all sellers/suppliers as
prescribed by the Law on national reserve;
c) Performing other tasks which
require bidding as prescribed by relevant laws;
2. The selection of contractors for
executing:
a) The packages of investment
projects of state-owned enterprises as prescribed in the Law on enterprises and
wholly state-owned enterprises;
b) The packages for supply of
material - technical facilities, machines and equipment for science and technology
development funded by science and technology development funds of state-owned
enterprises;
3. The selection of investors for
the following investment projects, including:
a) Investment projects involving
land use which require bidding as prescribed by the Law on land;
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4. Organizations and individuals
involved in bidding activities other than those specified in Clauses 1, 2 and 3
of this Article may apply all provisions or some specific Articles, Clauses
and/or Points of this Law of their own free will.
Article 3.
Application of the Law on Bidding, relevant laws and international conventions,
agreements on official development assistance (ODA) and concessional loans of
foreign donors
1. Bidding activities within the
scope of this Law must comply with the provisions of this Law and other
relevant laws. If any provisions of this Law are different from those of any
law promulgated before the effective date of this Law, the former shall
prevail, except the cases prescribed in Clauses 2 through 7 of this Article.
2. The selection of contractors for
petroleum contracts shall comply with the Law on petroleum.
3. The selection of investors for
executing investment projects in the form of public-private partnerships (PPP
projects) and the selection of contractors for executing packages of PPP
projects shall comply with the Law on PPP investment.
4. The selection of foreign
contractors for executing overseas packages of Vietnamese missions abroad shall
comply with the Law on representative missions of the Socialist Republic of
Vietnam in foreign countries.
5. The selection of contractors for
projects which are funded by the official development assistance (ODA) or
concessional loans of foreign donors under international conventions to which
the Socialist Republic of Vietnam is a signatory (hereinafter referred to as
“international conventions") or foreign loan agreements shall comply with
such international conventions or foreign loan agreements. If the international
convention or foreign loan agreement does not provide for the contractor
selection or states that the contractor selection is subject to the law of
Vietnam, this Law shall apply.
The Government is required to
obtain an approval from the Standing Committee of National Assembly before
negotiating or deciding to enter into any loan agreement which is not an
international agreement and whose provisions on bidding are different from
those of this Law or are not included in this Law.
6. In case a package covers both
the procurement governed by this Law and that governed by an international
convention, the competent person may decide to apply that international
convention to the selection of contractor for executing the procurement governed
by this Law.
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a) Selection of contractors for the
packages funded by domestic sponsors on the condition that this Law shall not
be applied to contractor selection; the packages of public sector entities
funded by borrowed capital, except funding from State investment credit,
on-lent from ODA or concessional loans of foreign donors;
b) Selection of contractors in
foreign countries by regulatory authorities, public sector entities,
state-owned enterprises, or wholly state-owned enterprises, except the cases in
Clause 4 of this Article;
c) Leasing, purchase or lease
purchase of housing, working offices or property attached to land;
d) Selection of suppliers of goods,
consulting and non-consulting services for ensuring business continuity and
procurement for maintaining regular activities funded by business budget of
state-owned enterprises or wholly state-owned enterprises; selection of
contractors for executing the packages of investment projects specified in
Clause 3 Article 2 of this Law; selection of suppliers of consulting services,
raw materials, supplies, fuels and/or non-consulting services which are
directly used for executing the packages in which a public sector entity is the
successful bidder;
dd) Determination of mediators,
members of dispute settlement panels, arbitration councils by contracting
parties to consider disputes that arise during the execution of their signed
contracts;
e) Procurement of goods/services
whose prices are set by the State in accordance with regulations of the Law on
pricing;
g) Selection of suppliers of
petroleum services and goods used for performing petroleum activities under
petroleum contracts approved by competent authorities in accordance with the
Law on petroleum.
Article 4.
Definitions
For the purposes of this Law, the
following terms shall be construed as follows:
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a) The employer or the organization
established according to the employer's decision or selected by the employer;
b) Competent authorities that
approve investment guidelines or decide to conduct bidding for investor
selection; units assigned by such competent authorities to organize the
investor selection.
2. “employer” means an
authority or organization that has their own funds or borrowed funds or to whom
funds are allocated to execute the project; a state budget-funded unit; a
budget estimate unit that directly uses funding included in off-budget
procurement cost estimate; or a centralized procurement unit.
3. “shortlist” means a list
of pre-qualified bidders in case of competitive bidding with prequalification;
a list of bidders/investors that are invited to bid in case of limited bidding;
or a list of bidders whose expressions of interest (EOIs) meet the requirements
laid down in the EOI request.
4. “consulting service” means
any one or some of the following: preparation and assessment of architecture
and development master plans or planning reports; survey and preparation of
pre-feasibility study reports, proposals of investment guidelines, applications
for approval of investment guidelines, feasibility study reports, technical -
economic reports, environmental impact assessment reports; survey and
preparation of designs and cost estimates; bidding consulting services; verification
and appraisal consulting services; supervision consulting service; project
management consulting service; financial arrangement consulting service;
auditing and other consulting services.
5. “non-consulting service”
means any one or some of the following: logistics, insurance, advertising,
acceptance testing and commissioning, satellite imagery; printing; sanitation
and cleaning; communications; repair, maintenance and other services which are
not defined as consulting services in Clause 4 of this Article.
6. “investment project” (hereinafter
referred to as “project”) means a new construction project or program; asset
procurement project; renovation, upgrading and expansion project; planning
project, task or scheme; technical assistance project; or another program or
project as prescribed by laws.
7. “procurement cost estimate” means
an estimate of procurement costs to be covered by funding allocated according
to the state budget estimate approved by a competent authority to a regulatory
authority, political organization, socio-political organization,
socio-political-professional organization, socio-professional organization,
social organization, affiliated unit of people’s armed forces, public sector
entity or another organization or individual; or an estimate of procurement
costs to be covered by lawful funds of a regulatory authority or public sector
entity.
8. “bidding” means the
process by which a qualified bidder will be selected to sign and execute a
consulting service contract, non-consulting service contract, contract for
supply of goods or construction contract or by which a qualified investor will
be selected to sign and execute a project contract in a manner that ensures
competitiveness, fairness, transparency, economic efficiency and accountability.
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10. “international bidding” means
the bidding process with the participation of both domestic and foreign bidders
or investors.
11. “domestic bidding” means
the bidding process with the participation of only domestic bidders or
investors.
12. “bid price” means the
price stated in the bidder's letter of bid, including all costs associated with
the execution of the package and fulfillment of all requirements laid down in
the bidding documents or the request for proposals (RFP).
13. “proposed successful bid
price” means the bid price of the proposed successful bidder after
completing error correction and/or deviation adjustment, as prescribed in the
bidding documents or RFP, and deducting discounts (if any).
14. “contract price” means
the price specified in the contract signed by and between the employer and the
contractor.
15. “package” means a part
of or the entire project or procurement cost estimate. The package may cover
the same procurement of different projects or one-off purchase quantity or
purchase quantity for a given period of the procurement cost estimate, or
centralized procurement.
16. “mixed package” means
one of the following packages: engineering and procurement (EP); engineering
and construction (EC); procurement and construction (PC); engineering,
procurement and construction (EPC); project preparation, engineering,
procurement and construction (turnkey project).
17. “Goods” include
machinery, equipment, raw materials, fuels, supplies and spare parts; products;
facilities; consumable goods drugs, chemicals, test equipment and medical
devices; commercial software.
18. “Vietnam E-Procurement
System (VNEPS)” means an information technology system which is developed
and managed by regulatory authorities in charge of bidding activities
(hereinafter referred to as “bidding authorities”) for consistently managing
bidding information and carrying out online bidding activities.
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20. “expression of interest
(EOI) or prequalification application” means a set of documents prepared
and submitted by a bidder to the procuring entity in accordance with
requirements laid down in the EOI request or prequalification document. In case
of investor selection, the application for project execution includes all
documents prepared and submitted by an investor in accordance with requirements
laid down in the EOI request.
21. “bidding documents” means
all documents used in competitive bidding, limited bidding or shopping,
indicating requirements for a project, package or investment project, as the
basis for bidders/investors to prepare their bids and for the procuring entity
to organize the bid evaluation.
22. “request for proposals
(RFP)” means a set of documents used in direct contracting, direct
procurement or price negotiation, indicating requirements for a package, as the
basis for bidders to prepare their proposals and for the procuring entity to
organize the evaluation of received proposals.
23. “bid or proposal” means
a set of documents prepared and submitted by a bidder or investor to the
procuring entity in accordance with requirements laid down in the bidding
documents or RFP.
24. “competent person” means
the person who issues the investment decision or the procurement decision as
prescribed by laws. In case of investor selection, the competent person is the
head of the competent authority that approves the investment guidelines in
accordance with regulations of the Law on investment or that makes a decision
to conduct bidding for investor selection.
25. “investor” means an
organization or individual that acts as a bidder, has their name specified in
the letter of bid, and will directly sign and execute the contract, if winning
the bid. An investor may participate in the bidding as an independent investor
or a consortium member. During the bidding process, investors are referred to
as “bidders”.
26. “contractor” means an
organization or individual or a group of organizations or individuals coming
together under a consortium agreement that acts as a bidder, has their name
specified in the letter of bid, and will directly sign and execute the
contract, if winning the bid. In case of a consortium, the consortium agreement
must clearly state responsibilities of the lead member, joint responsibilities
and specific responsibilities of each member of the consortium for the entire
scope of the package. During the bidding process, contractors are referred to
as “bidders"
27. “subcontractor” means an
organization or individual that is subcontracted by the contractor to perform
construction tasks; provide consulting or non-consulting service; provide any
part of the related services of the supply of goods package; or perform tasks
of a mixed package.
28. “specialist subcontractor” means
a subcontractor that will perform important tasks of the package as proposed by
the bidder in their bid or proposal in accordance with capacity and experience
requirements laid down in the bidding documents or RFP.
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30. “domestic contractor or domestic
investor” means an organization duly established under the law of Vietnam
or an individual holding Vietnamese nationality when submitting their bid.
31. “deadline for submission of
bids” means the last date and time for receipt of EOIs, prequalification
applications, bids or proposals.
32. “validity period” of a bid
or proposal means the number of days specified in the bidding documents or
RFP, commencing on the deadline for submission of bids till the last day of
validity specified in the bidding documents or RFP. The length of time starting
from the deadline for submission of bids to the end of 24 hours of the day in
which this deadline is set shall be counted as 01 day.
33. “construction” means a
range of tasks carried out in connection with the construction and installation
of a construction work or work item.
Article 5.
Eligibility of bidders or investors
1. A bidder or investor that is an
organization shall be deemed to be eligible if meeting the following
requirements:
a) A domestic bidder or investor
must be an enterprise, cooperative, cooperative union, artel, public sector
entity or foreign-invested business organization that is duly established and
operating under the law of Vietnam. A foreign bidder or investor must be duly
established and operating under the law of a foreign country;
b) It must keep independent
accounting records;
c) It is not undergoing dissolution
process or subject to revocation of enterprise registration certificate,
cooperative/cooperative union/ artel registration certificate; is not facing
insolvency as prescribed by the law on bankruptcy;
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dd) It must ensure competitiveness
in bidding as prescribed in Article 6 of this Law;
e) It is not being prohibited from
participating in bidding according to a decision issued by a competent person,
Minister, head of ministerial agency, Governmental agency or another
central-government agency, or Chairperson of the provincial-level People’s
Committee as prescribed in Clause 3 Article 87 of this Law;
g) It is not liable to criminal
prosecution;
h) Its name is included in the
shortlist in case the shortlist has been made available;
i) A foreign bidder is requested to
enter into a consortium with a domestic bidder or will subcontract domestic
bidders, unless domestic bidders are incapable of performing any tasks of the
package.
2. A bidder that is a household
business shall be deemed to be eligible if meeting the following requirements:
a) It has a valid certificate of
household business registration issued in accordance with regulations of law;
b) It is not undergoing the process
of operation termination or subject to revocation of certificate of household
business registration; the owner of the household business is not liable to
criminal prosecution;
c) It meets the requirements laid
down in Points d, dd, e and h Clause 1 of this Article.
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a) He/she has full capacity for
civil acts in accordance with regulations of the law of the country whose
citizenship he/she is holding;
b) He/she possesses appropriate
professional certificate(s) if required by laws;
c) He/she meets the requirements
laid down in Points e and g Clause 1 of this Article.
4. A bidder or investor that meets
the eligibility requirements laid down in Clause 1, 2 or 3 of this Article may
participate in the bidding as an independent bidder or consortium bidder.
Article 6.
Ensuring competitiveness in bidding
1. When submitting their EOI or
prequalification application, a bidder is required to display their legal and financial independence from the following:
a) Consultants on preparation of
EOI request or prequalification document, project management consultants,
supervision consultants; consultants on preparation, verification and appraisal
of design and cost estimation documents; consultants on preparation and
appraisal of survey and design tasks;
b) Consultants on evaluation of
EOIs or prequalification applications;
c) Consultants on appraisal of EOI
selection results or prequalification results;
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2. When submitting their bid, a
bidder is required to display their legal and
financial independence from the entities specified in Point d Clause 1
of this Article and from the following:
a) Project management consultants,
supervision consultants; consultants on preparation, verification and appraisal
of design and cost estimation documents; consultants on preparation and
appraisal of survey and design tasks; consultants on preparation and appraisal
of bidding documents, RFP; consultants on evaluation of bids, proposals;
consultants on appraisal of contractor selection result for the same package;
b) Other bidders of the same
package in case of limited bidding.
3. The consultant on supervision of
contract execution, the bidder for the contract and the consultant on
inspection of the same package must be legally and financially from each other.
4. The bidders in Clauses 1, 2 and
3 of this Article are considered to have legal and financial independence when
meeting the following requirements:
a) The bidder is not affiliated to
the same governing authority or organization with the public sector entity;
b) Neither the bidder nor the
employer/procuring entity holds more than 30% of shares or stakes of each
other;
c) In case of limited bidding, none
of the bidders for the same package holds more than 20% of shares or stakes of
each other;
d) None of the bidder and
consultants for the same package holds shares or stakes of each other; the
bidder and any of these consultants do not jointly hold more than 20% of shares
or stakes of another entity.
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a) The competent authority, the
procuring entity;
b) Consultants on preparation and
appraisal of bidding documents; consultants on evaluation of bids; and
consultants on appraisal of investor selection result until the day on which
the investment project contract is signed.
6. The Government shall elaborate
this Article.
Article 7.
Bidding information
1. Information on contractor
selection includes:
a) Information on the contractor
selection plan or project;
b) Invitation for EOIs or
invitation for prequalification applications;
c) Invitation for bid;
d) Shortlist;
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e) Bid opening results in case of
online bidding;
g) Contractor selection result;
h) Main contents of the contract;
i) Actions against violations of
the bidding law;
k) Information on the contractor’s
performance;
l) Other relevant information.
2. Information on investor
selection includes:
a) Information on the investment
project as prescribed in Clause 2 Article 47 of this Law;
b) Invitation for EOIs, EOI
request; EOI selection results;
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d) Investor selection results;
dd) Main contents of the contract;
e) Actions against violations of
the bidding law;
g) Other relevant information.
3. The information in Clauses 1 and
2 of this Article must be published on the VNEPS, except the information on
projects, investment projects or packages classified as state secrets.
Article 8.
Provision and publishing of bidding information
1. Responsibility to publish
information on contractor selection:
a) The employer shall publish the
information specified in Points a, g, h, i and k Clause 1 Article 7 of this
Law;
b) The procuring entity shall
publish the information specified in Points b, c, d and dd Clause 1 Article 7
of this Law; In case of international bidding, the procuring entity shall
publish the information specified in Points b, c and d Clause 1 Article 7 of
this Law in both Vietnamese and English; the information specified in Point dd
Clause 1 Article 7 of this Law may be published in either English or both
Vietnamese and English;
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2. Responsibility to publish
information on investor selection:
a) The competent authority shall
publish the information specified in Points a, b and e Clause 2 Article 7 of
this Law;
b) The procuring entity shall
publish the information specified in Points c, d and dd Clause 2 Article 7 of
this Law. In case of international bidding, the procuring entity shall publish
such information in both Vietnamese and English.
3. The organizations and
individuals that provide and publish the information specified in Clauses 1 and
2 of this Article shall assume legal responsibility for the accuracy and truthfulness
of the information registered and published on VNEPS as well as the consistency
of documents published with those approved.
4. The information specified in
Points a, d, g, h, I Clause 1 and Points a, d, dd, e Clause 2 Article 7 of this
Law must be published on VNEPS within 05 working days from the day on which the
relevant document is issued or the contract becomes effective.
Article 9.
Processing and retention of documents during contractor/investor selection
1. The financial proposal of a bidder
that failed the evaluation of technical proposals shall be returned unopened to
that bidder within the following time limits:
a) Regarding a package for
consulting services: within 10 days from the day on which the contract is
signed with the successful bidder;
b) Regarding a package for
non-consulting services, procurement of goods, or construction, or a mixed
package for which the contractor is selected adopting the single-stage
two-envelope bidding procedure: when the bid security is returned or released
to the unsuccessful bidders or when the contractor selection result is
published.
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3. Upon the expiry of the time
limit specified in Clause 1 and Clause 2 of this Article, if the bidder or
investor fails to receive their technical proposals, the procuring entity shall
consider deciding to destroy such proposals in a manner that ensures the
confidentiality of information therein.
4. In case of bid cancellation, all
relevant documents shall be retained for at least 05 years from the issue date
of the bid cancellation decision.
5. Settlement documents, as-built
dossiers and other documents concerning the successful bidder of the package
shall be retained in accordance with regulations of the Law on archives.
6. All documents concerning the
contractor/investor selection shall be retained for at least 05 years from the
date of contract settlement or the date of termination of the investment
project contract, except the documents specified in Clauses 1, 2, 4 and 5 of
this Article.
Article 10.
Incentives in contractor and investor selection
1. Subjects eligible for incentives
in contractor selection:
a) Originating goods of Vietnam;
b) Eco-friendly products and
services as prescribed by the Law on environmental protection;
c) Domestic bidders that produce
originating goods of Vietnam meeting the requirements laid down in bidding
documents;
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dd) A domestic bidder that submits
a bid as an independent bidder or forms a consortium with other domestic
bidders to participate in an international bidding;
e) Bidders that are
microenterprises or small enterprises as prescribed in the Law on assistance for
small and medium-sized enterprises;
g) Bidders that are startups as
prescribed by laws;
h) A bidder that employs the number
of female workers, wounded soldiers and people with disabilities, or ethnics,
each accounting for at least 25% of their total employees.
2. Incentives in contractor
selection:
a) In case where bidders are
equally evaluated, the bidder eligible for incentives (eligible bidder) shall
be ranked higher than those ineligible for incentives (ineligible bidder);
b) Extra points shall be given to
the eligible bidder in case bidders are evaluated and ranked adopting the
fixed-price method, technical-based evaluation method, or combined technical
and price method;
c) An amount of money shall be
added to the bid price or evaluated price of the ineligible bidder in case
bidders are evaluated and ranked adopting the lowest-price method or
lowest-evaluated price method;
d) Evaluation of capacity,
experience and other criteria of eligible bidders shall be given priority
during the evaluation of bids;
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3. Application of incentives in
contractor selection:
a) The entities specified in Points
a, b, c and g Clause 1 of this Article shall be given incentives as prescribed
in Point b or Point c Clause 2 of this Article when they participate in
packages for procurement of goods or mixed packages;
b) The entities specified in Points
d and dd Clause 1 of this Article shall be given incentives as prescribed in
Point b or Point c Clause 2 of this Article when they participate in
international bidding for packages for consulting services, non-consulting
services, construction or mixed packages;
c) The entities specified in Point
h Clause 1 of this Article shall be given incentives as prescribed in Point a
Clause 2 of this Article when they participate in domestic bidding for packages
for consulting services, non-consulting services, construction or mixed
packages;
d) The entities specified in Point
e Clause 1 of this Article shall be given incentives as prescribed in Points a
and dd Clause 2 of this Article when they participate in domestic bidding for
construction packages;
dd) In addition to the incentives in
Points b and c Clause 2 of this Article, the bidders specified in Points c and
g Clause 1 of this Article shall also be entitled to the incentives prescribed
in Point b Clause 2 of this Article when they participate in domestic bidding
for packages for consulting services, non-consulting services, procurement of
goods, construction or mixed packages;
e) In case of domestic bidding for
a procurement package, the employer may decide whether to require inclusion of
a domestic good in bids if such good can be manufactured by at least 03
domestic manufacturers satisfying technical, quality and price requirements.
4. Investors eligible for
incentives in investor selection:
a) Investors that apply
technological solutions for reducing environmental pollution to their projects
which pose high risk of adverse environmental impacts as prescribed by the Law
on environmental protection;
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5. Incentives in investor
selection:
a) In case where investors are
equally evaluated, the investor eligible for incentives shall be ranked higher
than those ineligible for incentives;
b) Extra points shall be given to
eligible investors during evaluation and ranking of their bids.
6. The Government shall elaborate
this Article.
Article 11.
International bidding
1. International bidding may be
organized if one of the following conditions is satisfied:
a) The international bidding is
requested by the donor that finances the project or package under an
international convention or loan agreement;
b) In case of a package for consulting
services, non-consulting services, construction or mixed package, none of the
domestic bidders meets the requirements of the package, or the domestic
prequalification or EOI procedure or competitive bidding for the package has
been held but none of prequalification applications, EOIs or bids is received;
c) In case of a consulting service
package in which the competent person believes that the participation of
foreign bidders is necessary for improving the quality of the package or
project, the competent person decides to organize international bidding and
assumes responsibility for his/her decision;
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2. International bidding shall be
organized for selecting qualified investors for the investment projects
specified in Clause 3 Article 2 of this Law, except the following cases:
a) Projects involving business
lines from which foreign investors are prohibited as prescribed by the Law on
investment;
b) Projects for which the domestic
bidding is compulsory for the purposes of national defense and security, social
order and security;
c) Projects located in land areas
or sea areas the use of which is restricted to foreign investors and
foreign-invested business organizations as prescribed by the Law on land and
relevant laws;
d) Projects with a total investment
of less than VND 800 billion;
dd) Projects other than those
specified in Points a, b, c and d of this Clause for which the invitation for
EOI under international bidding has been sent but no EOIs are received from
foreign bidders.
Article 12.
Language used in bidding
1. Language used in bidding shall
be Vietnamese.
2. The language used in
international bidding shall be English or both Vietnamese and English. In case
the EOI request, prequalification document, bidding documents or RFP is made in
Vietnamese and English, bidders or investors may submit their bids either in
Vietnamese or English.
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1. In case of domestic bidding,
bidders or investors shall be allowed to quote their bids in VND only.
2. In case of international
bidding:
a) The bidding documents or RFP
shall indicate the specific currencies to be used in the bids or proposals but
no more than 03 currencies shall be allowed;
b) If bidders or investors are
allowed to quote their bids in 02 or 03 various currencies as prescribed in
bidding documents, conversion into a single currency shall be required when
conducting the bid evaluation. If such currencies include VND, conversion into
VND is required. The currency of conversion, time and basis for determining the
exchange rate must be included in the bidding documents;
c) Costs incurred in Vietnam in
association with the execution of a package, project or investment project shall
be quoted in VND;
d) Costs incurred in a foreign
country in association with the execution of a package, project or investment
project shall be quoted in the local currency of that country, VND.
Article 14.
Bid security
1. Bidders or investors shall furnish
bid securities in one of the following forms in order to ensure their
fulfillment of responsibilities for a period specified in the bidding
documents:
a) Pay a deposit;
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c) Submit a certificate of surety
bond insurance issued by a domestic non-life insurer or branch of a foreign
non-life insurer duly established under the law of Vietnam.
2. The submission of bid security
is required in the following cases:
a) Competitive bidding, limited
bidding or shopping for a consulting service, procurement, construction or
mixed package;
b) Competitive bidding or limited
bidding for investor selection.
3. Bid securities must be furnished
prior to the deadline for submission of bids specified in the bidding
documents. In case of two-stage bidding procedure, bidders or investors shall
furnish bid securities in the second stage.
4. Depending on the scale and
nature of each project, investment project or package, the amount of bid
security specified in the bidding documents shall be:
a) 1% - 1,5% of the price of a
construction or mixed package whose price does not exceed VND 20 billion or of
a procurement or non-consulting service package whose price does not exceed VND
10 billion;
b) 1,5% - 3% of the price of a
package other than that specified in Point a of this Clause; or
c) 0,5% - 1,5% of total investment
of the investment project for which the bidding is conducted for investor
selection.
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6. In case the validity period of a
bid is extended after the deadline for submission of bids, the procuring entity
shall request the bidder or investor whose bid is extended to extend the
validity period of their bid security for a corresponding additional period. In
this case, the bidder or investor shall follow procedures for extending the
validity period of their bid security for a corresponding additional period and
shall not be permitted to modify their bid. If the bidder or investor refuses
to extend the validity period of their bid security, their bid shall be
considered invalid and rejected. The procuring entity shall return or release
the bid security to the bidder or investor within 14 days from the day on which
the procuring entity receives the bidder or investor’s written refusal.
7. In case of a consortium, each
consortium member may furnish a separate bid security or reach an agreement to
appoint a member to provide bid securities for that member and all other
members of the consortium. Total value of bid securities shall not be lower
than the amount of bid security specified in the bidding documents. If any
member of the consortium commits violations as prescribed in Clause 9 of this
Article, the bid securities of all consortium members shall not be returned.
8. The procuring entity shall
return or release bid securities to unsuccessful bidders or investors within
the time limit specified in the bidding documents which shall not exceed 14
days from the date of approval of the contractor or investor selection result.
The bid security shall be returned or released to the successful bidder or
investor after the contract becomes effective.
9. The bid security may be
forfeited in the following cases:
a) After the deadline for
submission of bids and during the validity period of the bid, the bidder or
investor withdraws their bid or gives a written refusal to perform one or some
tasks proposed in their bid in accordance with the requirements laid down in
the bidding documents;
b) The bidder or investor performs
any of the prohibited acts specified in Article 16 of this Law or commits
violations of the bidding law resulting in bid cancellation as prescribed in
Points d, dd Clause 1, Points d, dd Clause 2 Article 17 of this Law;
c) The successful bidder or
investor fails to furnish the required performance security as prescribed in
Article 68 and Article 75 of this Law;
d) The successful bidder fails or
refuses to negotiate the contract (if any) within 05 working days in case of
domestic bidding, or within 10 working days in case of international bidding,
from the receipt of the invitation for contract negotiation, or, after the
contract negotiation has been carried out, refuses to complete the contract and
sign the contract negotiation record, except force majeure events;
dd) The successful bidder fails or
refuses to carry out the completion of contract or framework agreement within
10 days, in case of domestic bidding, or within 20 days in case of
international bidding, from the receipt of the notice of acceptance from the
procuring entity, except force majeure events;
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g) The successful investor fails or
refuses to carry out the completion of contract within 15 days, in case of
domestic bidding, or within 30 days in case of international bidding, from the
receipt of the notice of acceptance from the procuring entity, except force
majeure events;
h) The successful investor fails or
refuses to sign the contract within 15 days, in case of domestic bidding, or
within 30 days in case of international bidding, from the date of completion of
that contract, except force majeure events.
10. In case bidders or investors
commit violations of the bidding law resulting in forfeiture of their bid
securities and/or performance securities as prescribed in Clause 9 of this
Article, Clause 6 Article 68 and Clause 4 Article 75 of this Law, amounts of
bid securities and/or performance securities forfeited shall be used according
to the following provisions:
a) Regarding projects or packages
funded by state budget, these amounts shall be paid to state budget in
accordance with regulations of the Law on state budget;
b) Regarding projects or packages
not funded by state budget, or investment projects, these amounts shall be used
according to financial regulations adopted by employers or competent
authorities;
c) If the procuring entity is a
bidding consultant selected by the employer, these amounts shall be paid to the
employer. The employer shall manage and use these amounts in accordance with
Points a and b of this Clause.
Article 15.
Costs associated with contractor/investor selection
1. Costs associated with the contractor
selection:
a) RFP, bidding documents used in
domestic bidding, EOI request and prequalification document are issued free of
charge on VNEPS;
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c) Employers/procuring entities
shall incur costs of publishing bidding information and other costs associated
with the contractor selection;
d) Bidders shall incur costs of
preparing their EOIs, prequalification applications, bids, proposals, and
participating in bidding, and settling bidding-related petitions (if any).
2. Costs associated with the
investor selection:
a) EOI request and bidding
documents used in domestic bidding are issued free of charge on VNEPS;
b) Bidding documents used in
international bidding shall be issued on VNEPS; investors shall make payment
for purchase of electronic forms of the bidding documents when submitting their
bids;
c) Procuring entities shall incur
costs of publishing information on investor selection and other costs
associated with the investor selection;
d) Investors shall incur costs of
preparing their applications for project execution and bids, and participating
in bidding, and settling bidding-related petitions (if any).
3. The Government shall elaborate
this Article.
Article 16.
Prohibited acts in bidding
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2. Abusing positions or entrusted
power to influence or illegally intervene in bidding process in any form.
3. Collusive practice, including:
a) Reaching, with or without undue
influence, an arrangement or agreement which is designed to let one or more
parties to prepare bids for all bidders or to withdraw submitted bids so that one
of them will win the bid;
b) Reaching an arrangement or
agreement on refusal to supply goods or services, or subcontract, or reaching
other agreements to limit competition so that one party will win the bid;
c) A bidder or investor with
appropriate qualifications and experience has submitted a bid and meets the
requirements laid down in the bidding documents but deliberately refuses to
provide additional documents proving their capacity and experience at the
procuring entity’s request for clarification of the bid or verification of
their submitted documents with the aim of facilitating one party’s winning of
the bid.
4. Fraudulent practice, including:
a) Forging or falsifying
information and/or documents used in bidding;
b) Deliberately providing information
and documents which are not accurate or objective in EOIs, prequalification
applications, applications for project execution, bids or proposals with the
aim of falsifying the contractor/investor selection result.
5. Obstructive practice, including:
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b) Obstructing the competent
person, employer, procuring entity, bidders (or investors) in the course of
contractor (or investor) selection;
c) Impeding competent authorities’
rights of supervision, inspection or audit of bidding activities;
d) Deliberately making false
complaints, denunciations or petitions with the aim of impeding bidding
process;
dd) Acts of violation against laws
and regulations on cybersecurity and safety intended to intervene or impede the
online bidding process.
6. Inequality and non-transparency,
including:
a) A bidder or investor of a
package or investment project is also the procuring entity or employer or takes
charge of performing tasks of the procuring entity or employer of that package
or investment project;
b) A person or entity concurrently
engages in the preparation and appraisal of EOI request, prequalification
document, bidding documents, or RFP of the same package or investment project;
c) A person or entity concurrently
engages in the evaluation of bids or proposals and the appraisal of the
contractor or investor selection result of the same package or investment
project;
d) A person who is working for the
procuring entity/employer directly engages in the contractor/investor selection,
or acts as a member of the expert team or appraising team in charge of
appraising the contractor/investor selection result, or is a competent person
or head of the procuring entity/employer, for a package or investment project
for which his/her family relative, as defined in the Law on enterprises,
directly submits a bid or acts as the legal representative of a bidder or
investor;
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e) A person acts as a bidder for a
package of a project or investment project of the procuring entity or employer
for which he/she worked and held the executive or managerial position within 12
months from the date of his/her resignation therefrom;
g) A supervision consultant also
acts as the inspection consultant of the same package;
h) Failure to meet relevant requirements
laid down in this Law when adopting a method other than the competitive bidding
to the contractor/investor selection;
i) Inclusion of specific brand
and/or origin requirements in the bidding documents for a procurement or
construction or mixed package under the competitive bidding, limited bidding or
shopping method, except the provisions of Point e Clause 3 Article 10, Clause 2
Article 44 and Clause 1 Article 56 of this Law;
k) Bidding documents impose
conditions that limit the participation of bidder(s) or investor(s) or give
advantage for one or some bidders or investors resulting in unfair competition
or violation of the Clause 3 Article 44 and Clause 2 Article 48 of this Law;
l) Slitting a project or
procurement cost estimate into a series of packages for the purpose of direct
contracting or with the aim of limiting the participation of bidders.
7. Unauthorized disclosure of the
following information and documents on the contractor/investor selection,
except the cases specified in Point b Clause 8 and Point g Clause 9 Article 77,
Clause 11 Article 78, Point h Clause 1 Article 79, Clause 4 Article 80, Clause
4 Article 81, Clause 2 Article 82, Point b Clause 4 Article 93 of this Law,
including:
a) Contents of EOI request,
prequalification document, bidding documents or RFP before they are issued as
prescribed;
b) Contents of EOIs,
prequalification applications, applications for project execution, bids or
proposals; the procuring entity’s clarification requests and responses from
bidders or investors during the evaluation of EOIs, prequalification
applications, applications for project execution, bids or proposals; reports of
the procuring entity or expert team, appraisal reports, reports of consultants
and other relevant specialized agencies during the contractor/investor
selection; records or minutes of bid evaluation meetings, opinions or comments
on each EOI, prequalification application, application for project execution,
bid or proposal before they are disclosed as prescribed;
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d) Other documents issued or
obtained during the contractor/investor selection and certified to contain
state secrets as prescribed by law.
8. Illegal transfer of awarded
contract, including the following cases:
a) The contractor transfers a
volume of tasks of the package worth more than the maximum value of tasks to be
subcontracted and those tasks to be undertaken by specialist subcontractor(s)
under the signed contract;
b) The contractor transfers a
volume of tasks of the package whose value does not exceed the maximum value of
tasks to be subcontracted under the signed contract but beyond the scope of
tasks to be subcontracted specified in the bid or proposal without obtaining a
prior consent from the employer or supervision consultant;
c) The employer/supervision
consultant gives consent to the contractor’s transfer of tasks as prescribed in
Point a of this Clause;
d) The employer/supervision
consultant gives consent to the contractor’s transfer a volume of tasks as
prescribed in Point b of this Clause which is worth more than the maximum value
of tasks to be subcontracted under the signed contract.
9. The contractor selection is
conducted before determining funding sources as prescribed in Clause 3 Article
39 of this Law.
Article 17.
Bid cancellation
1. In case of contractor selection,
bid cancellation shall occur when:
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b) there are changes in the
objectives and scope of investment specified in the investment decision
resulting in changes in volume of tasks and evaluation criteria specified in
the EOI request, prequalification document, bidding documents or RFP;
c) the EOI request,
prequalification document, bidding documents or RFP does not comply with
regulations laid down in this Law or other relevant laws to the extent that the
selected bidder fails to meet the requirements of the package;
d) the successful bidder commits
any of the prohibited acts in Article 16 of this Law; or
dd) another organization or
individual that is not the successful bidder commits any of the prohibited acts
in Article 16 of this Law resulting in inaccurate contractor selection result.
2. In case of investor selection,
bid cancellation shall occur when:
a) all bids are considered
substantially nonresponsive to the bidding documents;
b) there are changes in the
objectives, scale, location, investment capital or duration of investment
project execution due to force majeure events resulting in changes in
evaluation criteria specified in the issued bidding documents;
c) one or some contents of the
bidding documents does not comply with regulations laid down in this Law or
other relevant laws resulting in inaccurate investor selection result or to the
extent that the selected investor fails to meet the requirements of the
investment project;
d) the successful investor commits
any of the prohibited acts in Article 16 of this Law; or
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3. Bid cancellation may occur
within the period from the issuance of the EOI request, prequalification
document, bidding documents or RFP to the signing date of the contract or
framework agreement in case of centralized procurement.
4. Organizations and individuals
that commit violations to the extent of bid cancellation as prescribed in
Points c, d, dd Clause 1 and Points c, d, dd Clause 2 of this Article shall pay
compensation to related parties.
Article 18.
Bid suspension, refutation of contractor/investor selection result
1. If there is evidence that an
organization or individual participating in the bidding commits any of the
prohibited acts in Article 16 of this Law or violations against relevant laws
which adversely affect the achievement of competitiveness, fairness,
transparency, and economic efficiency or falsify the contractor/investor
selection result, the competent person shall adopt one or some of the following
measures:
a) Suspend the bidding process in
order to suspend all contractor/investor selection activities and take remedial
actions against violations immediately. Bid suspension shall be made during the
contractor/investor selection and before the contractor/investor selection
result is approved;
b) Refuse to recognize the
contractor/investor selection result during the contractor/investor selection
and the contract execution;
c) Impose penalties for violations
as prescribed in Article 87 of this Law.
2. The decision on bid suspension
or refutation of contractor/investor selection result must clearly indicate the
causes thereof, remedial measures and time limit for completing remedial
measures against violations.
Article 19.
Expert team, appraising team
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2. An appraising team consists of
capable and experienced individuals who are selected or assigned by the
competent person, employer or bidding consultant to inspect and consider the
compliance with laws and regulations by one or all of the following contents:
contractor selection master plan, contractor selection plan; EOI request,
prequalification document, bidding documents or RFP and EOI selection result,
prequalification result, and contractor/investor selection result.
3. In order to become a member of
the expert team or appraising team, an individual shall have at least 03 years’
experience in any field relevant to legal, technical or financial contents of
the package or investment project.
4. The Government shall elaborate
capacity and experience requirements to be satisfied by members of the expert
team and appraising team.
Chapter II
METHODS AND PROCEDURES FOR CONTRACTOR AND INVESTOR
SELECTION
Section 1.
CONTRACTOR SELECTION METHODS
Article 20.
Contractor selection methods
1. Contractor selection methods
include:
a) Competitive bidding;
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c) Direct contracting;
d) Shopping;
d) Direct procurement;
e) Self-execution;
g) Community participation;
h) Price negotiation;
i) Contractor selection in special
circumstances.
2. The Government shall adopt
specific regulations on contractor selection methods other than those specified
in Clause 1 of this Article which are preeminent and use advanced and modern
electronic equipment and facilities, procedures and subjects of such methods in
conformity with new features of VNEPS and in a manner that ensures
competitiveness, fairness, transparency and economic efficiency in bidding.
Article 21.
Competitive bidding
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2. The competitive bidding method
may apply to all packages, except the cases specified in Articles 22 through 29
of this Law. In case a contractor selection method other than competitive
bidding is adopted, the written application for approval of the contractor
selection plan must indicate the reasons for failure to adopt the competitive
bidding; the competent person shall decide the adoption of a contractor
selection method other than competitive bidding and assume responsibility for
his/her decision.
Article 22.
Limited bidding
Limited bidding is a contractor
selection method whereby only bidders meeting the requirements of the package
are invited to submit bids, and is adopted in the following cases:
1. Packages have high technical
requirements or involve special techniques that can only be satisfied by some
bidders;
2. The limited bidding method is
adopted at the request of the donor that finances the project or package under
an international convention or loan agreement.
Article 23.
Direct contracting
1. Direct contracting applies to:
a) Emergency packages which need to
be executed to defend national sovereignty and national security; packages
which need to be executed to immediately remedy or promptly handle consequences
of natural disasters, conflagration, accidents, incidents, calamities or other
force majeure events;
b) Packages for consulting
services, non-consulting services, supply of goods or construction which need
to be executed immediately to prevent direct harm to the life and property of
local communities or serious impacts on adjacent works;
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d) Packages which need to be
executed to protect state secrets;
dd) Packages for consulting
services which must be purchased from contractors that have previously executed
packages in order to ensure technological compatibility and copyright which
cannot be purchased from other contractors; packages for procurement of goods
or non-consulting services which must be purchased from contractors that have
previously executed packages or from manufacturers or their agents in order to
ensure their technological compatibility and copyright with existing equipment,
machinery, software and services or to meet warranty requirements laid down by
contractors or manufacturers which cannot be purchased or acquired from other
contractors or manufacturers;
e) Packages for research or testing
purposes or purchase of intellectual property rights or copyrighted broadcast
programs; packages for transport of national reserves for relief and aid
purposes, which must be delivered immediately;
g) Consulting service packages for
preparation of feasibility study reports or construction engineering which are
designated to the authors of work architecture designs that win the bid or are
selected when they satisfy the prescribed capacity requirements laid down in
the Law on construction; packages for construction or restoration of monuments,
relief, grant murals and artistic works subject to copyright from the stage of
creation to the stage of construction; consulting service packages for
preparation of construction plannings which are designated to the authors of
construction planning schemes or initiatives that has been successful in the
construction planning competition;
h) Packages for consulting
services, relocation of technical infrastructure facilities to serve the land
clearance; packages for consulting services, sweeping and removal of bombs and
other explosive objects, demining to prepare for construction sites;
i) Packages for which there is only
one bidder capable of performing the contract in the market due to specific
technological solution requirements;
k) Packages of nationally important
projects eligible for direct contracting according to the National Assembly’s
resolutions issued when deciding investment guidelines;
l) Packages for leasing of
warehouse facilities for impounded goods; packages for hiring of transport and
handling services for impounded goods at seaports and concentrated inspection
places in case there is only one entity providing such services in the port;
packages for import of sporting weapons to serve training activities and annual
sports competitions of sports training centers, schools and clubs;
m) Packages of procurement cost estimates
whose price ranges from VND 50 million to VND 100 million; packages of
investment projects of state-owned enterprises or wholly state-owned
enterprises and investment projects defined in the Law on public investment,
including: consulting service packages whose price does not exceed VND 500
million, and packages for non-consulting services, procurement of goods,
construction, or mixed packages whose price does not exceed VND 01 billion.
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2. Regarding the packages specified
in Points a, b and c Clause 1 of this Article, employers shall decide to award
contracts under simplified procedures directly to capable and experienced
bidders that shall then execute these contracts immediately, and shall assume
responsibility for their decision. Within 15 days from the date of the start of
the package execution, relevant parties must complete the following direct
contracting procedures, including: preparation and delivery of the draft
contract to the selected contractor; contract completion; submission for
approval and disclosure of contractor selection result; contract signing and
management of contract execution.
3. Direct contracting shall apply
to one of the packages specified in Points d, dd, e, g, h, i, k, l and m Clause
1 of this Article if all of the following requirements are satisfied:
a) The project has been granted an
investment decision, except consulting service packages for project
preparation;
b) The contractor selection plan
has been approved;
c) Funding is available for the
package;
d) The cost estimate has been
approved as prescribed, except EP, EC, EPC, turnkey packages.
4. Regarding packages or
procurements whose price does not exceed VND 50 million, heads of relevant
authorities/units shall decide the procurement in an economic and efficient
manner, and assume responsibility for their decision; preparation, appraisal
and approval for the contractor selection plan, the package cost estimate, and
the signing of contracts with suppliers shall not be required but invoices,
vouchers and receipts must be sufficiently provided in accordance with
regulations of law.
5. Direct contracting process
starting from the date of approval for the RFP to the signing date of the
contract shall not exceed 45 days. This period may be extended up to 90 days in
case of a large-scale and complicated package.
6. In case a package specified in
Clause 1 of this Article meets the direct contracting requirements laid down in
Clause 3 of this Article and is also eligible for the contractor selection
method specified in Article 21, 22, 24 or 25 of this Law, the latter should be
adopted.
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Article 24.
Shopping
The shopping method applies to the
following packages whose price does not exceed VND 05 billion:
1. Common and uncomplicated
non-consulting service packages;
2. Packages for procurement of
normal goods which are available on the market, have standardized technical
properties and equivalent quality;
3. Simple construction packages for
which approved building drawing designs are available;
4. PC packages of which
construction tasks meet the requirements laid down in Clause 3 of this Article.
Article 25.
Direct procurement
1. Direct procurement applies to
packages for purchase of similar goods of projects or procurement cost
estimates of the same employer or another employer provided that the
requirements laid down in Clause 2 of this Article must be satisfied.
2. The direct procurement shall
apply if all of the following requirements are satisfied:
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b) The employer may only make one
direct procurement of goods for the current package of which the quantity of
each procurement item must be smaller than 130% of that of the corresponding
procurement item of the previous package, excluding quantities of additional
purchase (if any);
c) Unit prices of component tasks
of the package applying the direct procurement do not exceed those of
corresponding tasks of the previous package and must be also conformable with
the market price at the time of contract completion;
d) The previous contract has been
signed no more than 12 months before the date of approval of the direct
procurement result.
3. If the previous contractor is no
longer capable of executing the direct procurement contract, another contractor
who satisfies all capacity, experience, technology and price requirements laid
down in the bidding documents and according to the previous contractor
selection result may be awarded the contract.
Article 26.
Self-execution
1. An employer that directly
manages and uses goods/services of a package of a project or procurement cost
estimate may themself execute that package if meeting all of the following
requirements:
a) Functions, tasks, operating
fields or business lines of the employer are conformable with requirements of
the package;
b) The employer meets technical and
financial capacity and experience requirements of the package;
c) The employer has adopted a
feasible plan to mobilize personnel, machinery and equipment to meet the
package execution schedule.
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3. The entity mentioned in Clause 2
of this Article is not allowed to transfer a volume of tasks worth either at
least 10% or more than VND 50 billion of the value of tasks specified in the written
assignment of tasks.
Article 27.
Community participation
Residential communities, teams or
groups of adequate skilled workers in the local area where a package of a
national target program or public investment program that is executed by both
the State and the people is to be executed shall be assigned to take charge of
the entire or part of that package provided its price does not exceed VND 05
billion.
Article 28.
Price negotiation
1. Price negotiation applies to the
following packages:
a) Purchase of original brand-name
drugs or reference biologicals;
b) Purchase of drugs, medical
devices or test equipment of a type which can only be manufactured by 01 or 02
manufacturers.
2. The price negotiation method
shall be adopted according to a decision issued by the Minister of Health of
Vietnam who shall also issue the list of drugs, medical devices and test
equipment to be procured through price negotiation and specific contractor
selection procedures and process for packages executed adopting price negotiation
method.
Article 29.
Contractor selection in special circumstances
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a) Packages for procurement of
drugs or vaccines under trials that can only be purchased under their
manufacturers’ specific purchase, payment, guarantee, security requirements and
other conditions imposed during the contract execution;
b) Packages for procurement of
drugs, vaccines and medical devices through international organizations;
c) Packages with strict national
defense and security, external affairs, border and territorial security
requirements;
d) Selection of lawyers or
solicitors providing legal services for protection of legitimate rights and
interests of the State of Vietnam and regulatory authorities at foreign or
international jurisdictional bodies;
dd) Packages for direct provision
of intensive training for regulatory authorities and public sector entities by
foreign training institutions in foreign countries; purchase of plane tickets
for domestic and international delegations; packages for provision of
professional training courses in specific areas for officials which need the
participation of authorities or units that are competent or in charge of
performing professional training tasks assigned by competent authorities;
e) Packages for performance of
political tasks assigned by the Communist Party or the State of Vietnam,
including: dissemination of information on printed newspapers, online
newspapers, radio and television stations, and other means of mass media in
case such information dissemination activities are performed under contracts
signed directly by the authorities or units that are granted information
dissemination funding with these organizations; organization of special art
programs; cooperation in film production;
g) Packages for design,
construction and installation of stages used in production of broadcasting
programs; leasing of spaces for production or recording of highly artistic
programs;
h) Packages for provision of
printing services, stamps, receipts and seals in accordance with regulations of
laws on tax administration and customs; packages for purchase of police dogs,
police dog training, purchase of drugs, explosives, drug or explosive scent
pads used in police dog training;
i) In case of a project or package
requiring specific requirements regarding contractor selection criteria and
procedures, and contract signing and execution other than those specified in
Points a, b, c, d, dd, e, g and h of this Clause, the Government shall request
the Standing Committee of National Assembly to decide the selection of
contractor for this project or package as a special circumstance.
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a) The Prime Minister of Vietnam
shall decide the selection of contractors for the packages in Point c Clause 1
of this Article;
b) The Minister of Health of
Vietnam shall issue and assume responsibility for his/her decisions on
selection of contractors for the packages in Points a and b Clause 1 of this
Article;
c) Ministers, heads of ministerial
agencies, Governmental agencies, and other central-government agencies,
Chairperson of provincial People’s Committees shall issue and assume
responsibility for their decisions on selection of contractors for the packages
in Points d, dd, e, g and h Clause 1 of this Article.
3. Applications for approval of
plans for contractor selection in special circumstances must provide reasons
for failure to adopt the contractor selection methods specified in Articles 21
through 28 of this Law.
4. The Government shall elaborate
documentation requirement and procedures for contractor selection in special
circumstances.
Section 2.
CONTRACTOR SELECTION PROCEDURES
Article 30.
Single-stage one-envelope procedure
1. Single-stage one-envelope
procedure shall be adopted in the following cases:
a) Competitive bidding or limited
bidding for non-consulting service, procurement, construction or mixed
packages, except the cases specified in Point b Clause 1 Article 31 of this
Law;
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c) Direct contracting for
consulting service, non-consulting service, procurement, construction, or mixed
packages;
d) Direct procurement for
procurement packages.
2. Bidders submit bids or proposals
in one envelope containing both the technical proposal and the financial
proposal in accordance with the requirements laid down in the bidding documents
or RFP.
3. All bids or proposals shall be
opened at the same bid opening.
Article 31.
Single-stage two-envelope procedure
1. Single-stage two-envelope
procedure shall be adopted in the following cases:
a) Competitive bidding or limited
bidding for consulting service packages;
b) Competitive bidding or limited
bidding for non-consulting service, procurement, construction, or mixed
packages with high technical requirements as prescribed by the law on science
and technology.
2. A bidder shall simultaneously
submit the technical proposal and the financial proposal in two separate
envelopes in accordance with the requirements laid down in the bidding documents.
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Article 32.
Two-stage one-envelope procedure
1. Two-stage one-envelope procedure
shall be adopted in the competitive bidding or limited bidding for procurement,
construction, or mixed packages of which specific and adequate technical
requirements are not yet imposed when the bidding is conducted.
2. At the first stage, bidders
shall submit their technical proposals, without bid prices, which are prepared
in accordance with the requirements laid down in the bidding documents and on the
basis of fundamental designs or specifications of the package. Bidders are
allowed to offer alternatives to the requirements as described in the bidding
documents provided that they must be separately offered in addition to the
primary technical plan required in the bidding documents. Technical proposals
shall be opened immediately after the deadline for submission of bids. Bidders
whose technical proposals are considered to have met the requirements of the
bidding documents at the first stage shall be invited to the second stage.
3. At the second stage, the
contractor selection process shall be conducted as follows:
a) Bidders on the list of
responsive bidders made at the first stage shall be invited to clarify their
technical proposals. A request for clarification may include the employer or
procuring entity’s request for bidder’s modification of their technical
solutions proposed at the first stage. The bidder may also comment on the
contents of the bidding documents;
b) On the basis of the request for
clarification of technical proposal and response from each bidder, the bidding
documents at the first stage shall be modified in terms of instructions to
bidders, evaluation criteria, technical requirements, conditions of contract,
and other contents deemed necessary to constitute the bidding documents for the
second stage, including bidders’ technical deviations and proposed alternatives
which have been accepted;
c) Bidders shall submit bids,
including both the technical proposal and the financial proposal, which are
prepared in accordance with the requirements laid down in the bidding documents
at the second stage and in which the bid price and bid security are determined
on the basis of technical solutions proposed at the first stage which have been
modified as prescribed in Point a of this Clause. All bids shall be opened at
the same bid opening.
Article 33.
Two-stage two-envelope procedure
1. Two-stage two-envelope procedure
shall be adopted in the competitive bidding or limited bidding for procurement,
construction, or mixed packages which employ new, complicated and/or special
techniques or technologies but of which specific and adequate technical
requirements are not yet imposed when the bidding is conducted.
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3. At the second stage, the
contractor selection process shall be conducted as follows:
a) Bidders on the list of
responsive bidders made at the first stage shall be invited to clarify their
technical proposals. A request for clarification may include the employer or
procuring entity’s request for bidder’s modification of their technical
solutions proposed at the first stage. The bidder may also comment on the
contents of the bidding documents;
b) On the basis of the request for
clarification of technical proposal and response from each bidder, the bidding
documents at the first stage shall be modified in terms of instructions to
bidders, evaluation criteria, technical requirements, conditions of contract,
and other contents deemed necessary to constitute the bidding documents for the
second stage, including bidders’ technical deviations and proposed alternatives
which have been accepted;
c) A bidder shall submit their bid,
including the technical proposal and the financial proposal contained in two
separate envelopes, in accordance with the requirements laid down in the
bidding documents for the second stage, which also include the bid price and
bid security. Prices quoted in the financial proposal must correspond to items
included in the primary technical plan proposed by the bidder. If an
alternative technical plan is proposed, the financial proposal must also
include prices quoted according to this plan. There are two bid opening
sessions to be conducted. Technical proposals shall be opened immediately after
the deadline for submission of bids. Only financial proposals of bidders whose
technical proposals were considered responsive shall be opened for further
evaluation.
Section 3.
INVESTOR SELECTION METHODS AND PROCEDURES
Article 34.
Investor selection methods
1. Competitive bidding:
Competitive bidding applies to
investment projects that have no limit on the number of participating
investors.
2. Limited bidding:
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Article 35.
Investor selection procedures
1. Single-stage one-envelope
procedure:
a) Single-stage one-envelope
procedure shall be adopted in the case of competitive bidding or limited
bidding;
b) An investor shall submit their
bid, including both the technical proposal and the financial proposal contained
in one envelope, in accordance with the requirements laid down in the bidding
documents;
c) All bids shall be opened at the
same bid opening.
2. Single-stage two-envelope
procedure:
a) Single-stage two-envelope
procedure shall be adopted in the case of competitive bidding for investment
projects involving valuable architectural structures as prescribed by the Law
on architecture;
b) An investor shall simultaneously
submit the technical proposal and the financial proposal in two separate
envelopes in accordance with the requirements laid down in the bidding
documents;
c) There are two bid opening
sessions to be conducted. Technical proposals shall be opened immediately after
the deadline for submission of bids. Only financial proposals of investors
whose technical proposals were considered responsive shall be opened for
further evaluation.
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Two-stage one-envelope procedure
shall be adopted in the case of competitive bidding for investment projects
which have specific sectoral, regional or local socio-economic development
requirements but of which specific technical, social, economic and
environmental standards are not yet determined.
4. The Government shall elaborate
this Article.
Chapter III
CONTRACTOR SELECTION PLAN
Article 36.
Contractor selection master plan for projects
1. Depending on the scale and
nature of bidding activities of the project, the employer or the body that
prepares the project shall request the competent person to consider and decide
the preparation and approval of the contractor selection master plan.
2. The contractor selection master
plan may be prepared as the same time as or independently of the feasibility
study report but shall only be approved after the feasibility study report has
been approved.
3. A contractor selection master
plan shall, inter alia, include the following information:
a) Consideration of the context of
the project with bidding activities;
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c) Market analysis and
determination of risks in bidding;
d) Specific objectives of the
bidding;
dd) Proposals included in the
contractor selection master plan, including: division of the project into
multiple packages; contractor selection method and procedure; type of contract;
risk management rules; schedule for executing the main tasks and the package;
other contents to be put into consideration during the drafting of the bidding
documents, management of contract execution.
4. The Government shall elaborate
this Article.
Article 37.
Rules for preparing contractor selection plan
1. A contractor selection plan shall
cover the entire project or procurement cost estimate. In case of a procurement
cost estimate, the contractor selection plan may be prepared on the basis of
the procurement cost estimate of the current budget year and expected
procurement cost estimates of the following budget years. If there are not
sufficient grounds for preparing a contractor selection plan for the entire
project or procurement cost estimate, the contractor selection plan shall be
prepared for one or some packages.
2. If a package is to be executed
within duration of exceeding 01 year, the contractor selection plan must
clearly indicate the package execution duration and the package’s price
determined for the entire execution duration.
3. The number of packages and
contents of each package must be specified in the contractor selection plan.
4. Approval of the contractor
selection plan shall be given on the basis of technical properties and
execution process, and in a manner that ensures the uniformity of the project
or procurement cost estimate, and must be conformable with the approved
contractor selection master plan (if any).
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Article 38.
Preparing contractor selection plan
1. Basis for preparation of the
contractor selection plan for a project:
a) The project approval decision
and relevant documents, except packages which need to be executed before the
project is approved. In case a package needs to be executed before the project
is approved, the decision issued by the head of the entity acting as the
project employer or the head of the unit tasked with preparing the project, if
the project employer is not yet identified, shall be used;
b) The contractor selection master
plan (if any);
c) The project included in the
assigned medium-term public investment plan, except urgent public investment
projects defined in the Law on public investment;
d) The fund disbursement plan or
sources of funding for the project other than the one specified in Point c of
this Clause;
dd) The international convention or
loan agreement, if the project is funded by ODA or concessional loans, except
the cases of bidding in advance prescribed in Article 42 of this Law;
e) Other relevant legislative
documents.
2. Basis for preparation of the
contractor selection plan for a procurement cost estimate:
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b) The procurement cost estimate;
c) Other relevant legislative
documents.
Article 39.
Contents of contractor selection plan
1. Name of the package:
Name of the package must reflect
the nature, contents and scope of tasks of the package. If a package is divided
into smaller parts, each of them must have a suitable name.
2. Package price:
a) The package price is the value
of the package defined in the contractor selection plan to be approved. The
package price includes all costs for execution of the package, including
contingencies, fees, charges and taxes. The package price may be updated at
least 28 days before the bid opening date if deemed necessary;
b) If a package is divided into
smaller parts, the package price and the estimated price of each part shall be
specified;
c) Regarding a package with
additional purchase option as prescribed in Clause 8 of this Article, the
package price excludes the additional purchase value.
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3. Funding sources:
Determined or approved sources of
funding for each package must be specified. If a package is funded by ODA or
concessional loan of a foreign donor, name of the donor and capital structure,
including funding allocated by the donor and reciprocal capital from Vietnamese
party, shall be specified. In case a package is to be executed within duration
of exceeding 01 year under a procurement cost estimate, the funding sources may
be determined on the basis of the procurement cost estimate of the current
budget year and expected procurement cost estimates of the following budget
years.
4. Contractor selection method and
procedure:
a) Specific contractor selection
method and procedure must be determined for each package: domestic or international
contractor selection; whether or not online contractor selection is employed;
b) If a project is to be executed
under a contractor selection master plan, contractor selection method and
procedure must be specified in conformity with the contractor selection master
plan.
5. Contractor selection duration:
The contractor selection plan must
clearly indicate the duration and the time of initiating contractor selection.
The contractor selection process shall begin from the month or quarter in which
bidding documents or RFP is issued. In case of competitive bidding that employs
the shortlisting procedure, contractor selection process shall begin when the
EOI request or prequalification document is issued.
6. Type of contract:
a) The specific type of contract
must be determined as prescribed in Article 64 of this Law and used as the
basis for preparation of the EOI request, prequalification document, bidding
documents and RFP, and signing of the contract;
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7. Package execution duration:
The package execution duration
starts on the effective date of the contract till the date of acceptance of
completed works, goods (including related services, if any), consulting or
non-consulting service. The package execution duration is expressed as a number
of days, weeks, months or years, excluding the warranty period and designer's
supervision period in respect of a consulting service package (if any).
8. Additional purchase option (if
any):
a) Additional purchase option
allows the employer to purchase an amount of goods, consulting or
non-consulting services of the package in addition to the original amount
specified in the contract;
b) The contractor selection plan
for a package with additional purchase option must clearly indicate the volume,
quantity and estimated value of additional purchase;
c) The additional purchase option
may be applied if: the bidding has won the bid through competitive bidding or
price negotiation; the volume of additional purchase does not exceed 30% of
that of the corresponding item specified in the contract; there is an approved
cost estimate for the additional purchase; the unit price of goods or services
additionally purchased shall not be higher than that of corresponding goods or
services specified in the contract; the additional purchase option is exercised
during the validity period of the contract.
9. Supervision of bidding
activities (if any).
Article 40.
Approving contractor selection plan for a project
1. An application for approval of
the contractor selection plan includes the following contents:
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b) Tasks to which neither of the
prescribed contractor selection methods can apply;
c) Tasks included in the contractor
selection plan, including tasks and corresponding values constituting the
packages to which one of the contractor selection methods specified in Articles
21 through 29 of this Law is applied;
d) Tasks which cannot be included
in the contractor selection plan (if any), specific tasks and their values must
be specified;
dd) Total value of the tasks stated
in Points a, b, c and d of this Clause. This total value must not exceed the
total investment of the project;
e) Other related contents.
2. Power to approve the contractor
selection plan:
a) The employer shall organize
preparation and approval of the contractor selection plan in case the
contractor selection master plan has been approved;
b) The competent person shall
consider approving the contractor selection plan for a project which is not
covered by the contractor selection master plan or authorize the employer or
his/her subordinate to do so, except the case specified in Point c of this
Clause;
c) The employer or the head of the
unit tasked with preparing the project, if the project employer is not yet
identified, shall consider approving the contractor selection plan for the
package for which the bidding is conducted in advance as prescribed in Article
42 of this Law or which needs to be executed before the project is approved.
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Article 41.
Approving contractor selection plan for a procurement cost estimate
1. An application for approval of
the contractor selection plan includes the following contents:
a) Completed tasks, including tasks
of packages to be executed in advance with corresponding value and legal
grounds thereof;
b) Tasks to which neither of the
prescribed contractor selection methods can apply;
c) Tasks included in the contractor
selection plan, including tasks and corresponding values constituting the
packages to which one of the contractor selection methods specified in Articles
21 through 29 of this Law is applied;
d) Tasks which cannot be included
in the contractor selection plan (if any), specific tasks and their values must
be specified;
dd) Total value of the tasks stated
in Points a, b, c and d of this Clause. This total value shall not exceed total
funding in the procurement cost estimate;
e) Other related contents.
2. The competent person shall
consider approving the contractor selection plan or authorize the employer or
his/her subordinate to do so.
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Article 42.
Bidding in advance
1. Bidding in advance for selecting
contractors for projects funded by ODA or concessional loans of foreign donors
shall comply with the provisions of a concluded international convention or
agreement on ODA or concessional loans.
Before concluding an international
convention or agreement on ODA or concessional loan, the following tasks may be
performed, including: preparation, submission for approval, appraisal and
approval of contractor selection plan, EOI request, prequalification document,
bidding documents, RFP, and drawing up of the shortlist.
2. The tasks mentioned in Clause 1
of this Article shall be performed in accordance with the provisions of Point a
Clause 1 Article 43 of this Law.
Chapter IV
CONTRACTOR AND INVESTOR SELECTION PROCESS
Section 1.
CONTRACTOR SELECTION PROCESS
Article 43.
Contractor selection process
1. The contractor selection process
in case of competitive bidding or limited bidding includes the following steps:
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b) Organization of contractor
selection;
c) Bid evaluation;
d) Contract negotiation for a
consulting service package.
With regard to procurement,
construction or non-consulting service package to be executed adopting the
international bidding method, a mixed package or a package with high technical
requirements, the procuring entity may conduct contract negotiation with the
first-ranked bidder if it is deemed necessary;
dd) Submission, appraisal, approval
and disclosure of contractor selection result and provision of explanations for
bidders as to why they were not successful (if any);
e) Completion, signing and
management of execution of contract.
2. The contractor selection process
in case of direct contracting includes the following steps:
a) Preparation for contractor
selection;
b) Organization of contractor
selection;
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d) Submission, appraisal, approval
and disclosure of contract selection result;
dd) Completion, signing and
management of execution of contract;
In the case specified in Point m
Clause 1 Article 23 of this Law, the competent person may decide to adopt the
simplified process, consisting of the following steps: preparing and sending
the draft contract to the successful bidder; completing the contract;
submitting for approval, approving and disclosing the contractor selection
result; signing the contract and managing the contract execution.
3. The contractor selection process
in case of shopping includes the following steps:
a) Preparation for contractor
selection;
b) Organization of contractor
selection;
c) Bid evaluation;
d) Submission, appraisal, approval
and disclosure of contractor selection result and provision of explanations for
bidders as to why they were not successful (if any);
dd) Completion, signing and
management of execution of contract.
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a) Preparation for contractor
selection;
b) Organization of contractor
selection;
c) Evaluation of proposals and
negotiation on the proposal of the selected bidder;
d) Submission, appraisal, approval
and disclosure of contract selection result;
dd) Completion, signing and
management of execution of contract.
5. The contractor selection process
in case of self-execution includes the following steps:
a) Preparation of the
self-execution plan, including drafting of the written assignment of tasks;
b) Completion of the self-execution
plan;
c) Approval and disclosure of
contractor selection result;
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6. Individual consultants may be
employed in case the tasks of a package can be performed by one or some capable
and experienced experts without the participation of any organizations and without
imposing execution conditions as those imposed on institutional contractors.
Process of individual consultant selection includes the following steps:
a) Preparation for contractor
selection;
b) Organization of contractor
selection;
c) Evaluation of scientific CVs of
bidders that are individual consultants;
d) Contract negotiation;
dd) Submission, approval and
disclosure of contract selection result;
e) Signing and management of
execution of contract.
7. The contractor selection process
in case of community participation includes the following steps:
a) Preparation of the plan for
selection of residential community, group or team of local skilled workers to
execute the package;
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c) Approval and disclosure of selection
result;
d) Completion, signing and
management of execution of contract.
8. The Government shall elaborate
this Article.
Article 44.
Bidding documents used for contractor selection
1. Bidding documents include:
a) Instructions to bidders,
additional purchase option (if any);
b) Bidding Data Sheet (BDS);
c) Criteria for evaluation of
validity of bids; capacity and experience of bidders; technical proposals;
financial - commercial proposals; bidders’ reputation acquired from
participation in bidding and execution of previous similar contracts, and
quality of used similar goods.
If specialist contractors are
employed, bidding documents must also indicate the scope of tasks and capacity
and experience requirements to be satisfied by specialist contractors;
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dd) Scope of supply, technical
requirements, terms of reference;
e) Conditions of contract and
contract forms;
g) Documents, drawings and other
contents (if any).
2. Bidding documents may impose
requirements regarding countries or territories of origin. In the case of a
package prescribed in Point dd Clause 1 Article 23 where all direct contracting
requirements laid down in Clause 3 Article 23 of this Law are satisfied but the
competent person decides to apply the competitive bidding, limited bidding or
shopping method to the contractor selection, bidding documents may impose
requirements regarding origin and brands of goods.
3. Bidding documents shall not
impose any conditions that limit the participation of a bidder or give
advantage for one or some bidders resulting in unfair competition.
4. In case the bidding documents
contain any contents in breach of the provisions of Clause 3 of this Article,
these contents shall be considered invalid and shall not be used as the basis
for bid evaluation.
Article 45.
Contractor selection duration
1. The contractor selection
duration shall be subject to the following provisions:
a) The minimum period between the
first date on which the EOI request or prequalification document is issued and
the deadline for submission of bids which is given for bidders to prepare their
EOIs or prequalification applications shall be 09 days for domestic bidding or
18 days for international bidding;
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c) In case of shopping, the minimum
period between the first date on which the bidding documents are issued and the
deadline for submission of bids which is given for bidders to prepare their
bids shall be 05 days;
d) Where a competent person decides
to apply the competitive bidding method to the selection of contractor for a
package which satisfies the direct contracting requirements laid down in Points
a, b and c Clause 1 Article 23 of this Law, the minimum period between the
first date on which the bidding documents are issued and the deadline for
submission of bids which is given for bidders to prepare their bids shall be 09
days;
dd) The amendment of bidding
documents must be made at least 10 days before the deadline for submission of
bids. In case of a construction or mixed package whose price does not exceed
VND 20 billion or a procurement or non-consulting service package whose price
does not exceed VND 10 billion, bidding documents may be amended at least 03
days before the deadline for submission of bids. The amendment of EOI request
or prequalification document must be made at least 03 days before the deadline
for submission of bids.
2. EOI request, prequalification
document and bidding documents shall be issued as the same time as the
invitation for EOIs, invitation for prequalification applications and
invitation for bid respectively.
3. The period for performing the
tasks other than those specified in Clause 1 and Clause 2 of this Article shall
be decided by the competent person or employer in a manner that ensures the
project or package execution schedule.
Section 2.
INVESTOR SELECTION PROCESS
Article 46.
Investor selection process
1. Investor selection process
includes the following steps:
a) Public disclosure of the investment
project;
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c) Organization of bidding
activities, including: invitation for bid; issuance, amendment and
clarification of bidding documents; preparation, submission, receipt,
management, modification, withdrawal and substitution of bids;
d) Bid evaluation, including: bid
opening; examination and evaluation of validity of bids; detailed evaluation of
bids;
dd) Submission, appraisal, approval
and disclosure of investor selection result; provision of explanations for
investors as to why they were not successful (if any);
e) Negotiation, completion and
signing of contract.
2. In case there are 02 or more
investors showing interest in a project and thus the investor selection must be
conducted through bidding as prescribed by the Law on land or a specialized
law, in addition to the steps specified in Clause 1 of this Article, the
competent authority shall prepare the EOI request, send invitation for EOIs, organize
evaluation of applications for project execution, and approve EOI selection
result before preparing for bidding as prescribed in Point b Clause 1 of this
Article.
3. The Government shall elaborate
this Article.
Article 47.
Public disclosure of investment projects
1. Competent authorities shall make
information on investment projects publicly available on VNEPS which shall be
used as the basis for organization of investor selection.
2. Project details to be publicly
disclosed include:
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b) Project’s name; investment
objectives and scale; total investment;
c) Location of the project; current
use of land, land area used for executing the project; land use purposes;
approved planning indicators;
d) Project execution duration and
schedule; preliminary plan for investment phasing or division of component
projects (if any); execution schedule of each stage of the project (if any);
dd) Name of the procuring entity;
investor selection method and procedure;
e) Other related contents.
Article 48.
Bidding documents used for investor selection
1. Bidding documents include:
a) Instructions to investors;
b) Bidding Data Sheet (BDS);
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d) Methods and criteria for evaluation
of capacity and experience of investors; investment plan; efficiency in land
use or investment efficiency, sectoral development;
dd) Invitation for bid and bidding
forms;
e) Investment project-related
information and execution requirements;
g) Draft contract and contract
form;
h) Other related contents.
2. Bidding documents shall not
impose any conditions that limit the participation of an investor or give
advantage for one or some investors resulting in unfair competition.
Article 49. Investor
selection duration
1. In case of domestic bidding, the
minimum period between the first date on which the bidding documents are issued
and the deadline for submission of bids which is given for investors to prepare
their bids shall be 45 days;
2. In case of international
bidding, the minimum period between the first date on which the bidding
documents are issued and the deadline for submission of bids which is given for
investors to prepare their bids shall be 60 days;
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Section 3.
ONLINE BIDDING
Article 50.
Online contractor and investor selection
1. Domestic competitive bidding,
limited bidding and shopping must be conducted on VNEPS according to the
following roadmap:
a) From the effective date of this
Law to December 31, 2024 inclusively, the Government shall decide whether to
adopt online bidding method or not;
b) From January 01, 2025, the
online bidding method shall apply to all packages, except cases where the
bidding is not conducted on VNEPS as prescribed in Clause 5 of this Article.
2. Contractor/investor selection
contents to be conducted on VNEPS:
a) Publishing of information on
contractor/investor selection;
b) Preparation, appraisal and
approval of prequalification document, EOI request, bidding documents or RFP;
c) Preparation and submission of
prequalification applications, EOIs, applications for project execution, bids
or proposals;
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dd) Evaluation of prequalification
applications, EOIs, bids or proposals, invitation for contract negotiation,
appraisal and approval of contractor selection result;
e) Consortium agreement, electronic
bid security, electronic contract performance;
g) Clarification of bidding-related
contents;
h) Submission and receipt of
petitions;
i) Electronic contract;
k) Electronic payment.
3. Electronic documents on VNEPS shall
be valid in accordance with regulations of the Law on electronic transactions
and used as the basis for comparing, verifying and authenticating information
serving performance of evaluation, appraisal, inspection, supervision, auditing
and disbursement tasks.
4. Costs incurred in online bidding
include: costs of registration for participation in VNEPS; costs of publishing
of bidding information as prescribed in Point c Clause 1 and Point c Clause 2
Article 15 of this Law, participation in bidding, signing of contract, and
other costs associated with the bidding process on VNEPS.
5. The Government shall stipulate
the connection and information sharing as prescribed in Clause 6 Article 51 of
this Law; online bidding techniques which should be suitable for features and
development of VNEPS; online bidding procedures and costs; online investor
selection roadmap; cases where the bidding is not conducted on VNEPS.
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1. Information published on VNEPS
must be made publicly available and accessed without limitation.
2. Time source of VNEPS shall
comply with regulations of law on national standard time source.
3. VNEPS must be operated in a
continuous, uniform, stable and safe manner and is capable of user
authentication, and data confidentiality and integrity.
4. Information on transactions
conducted on VNEPS must be sufficiently recorded and can be easily tracked.
5. VNEPS must be operated in a
manner ensuring that bidders/investors cannot send their EOIs, prequalification
applications, bids or proposals to procuring entities after deadlines for
submission of bids.
6. Information on
contractors/investors may be obtained from the national enterprise registration
information system, tax administration information system, budget and treasury
management information system and other systems. VNEPS shall be connected with
web portals and other information systems for the purposes of sharing data and
information used in online bidding and serving state management of bidding
activities.
Article 52.
Responsibilities of VNEPS operating unit
1. Ensure information security,
cybersecurity and data confidentiality of VNEPS.
2. Ensure the integrity of
documents on VNEPS, and prevent unauthorized access to and unlawful replacement
of documents.
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4. Build VNEPS which should be
compatible with other systems; have a user-friendly interface and meet relevant
standards in the field of information technology.
5. Manage information security and
cybersecurity risks to VNEPS.
6. Do not use information on
projects, investment projects, packages, employers, procuring entities,
contractors, investors and other information available on VNEPS for any
purposes other than performance of its functions and tasks.
7. Ensure that hardware systems are
capable of performing bidding activities.
8. Discharge other responsibilities
as prescribed by this Law and relevant laws.
Chapter V
CENTRALIZED PROCUREMENT; PROCUREMENT OF DRUGS,
CHEMICALS, MEDICAL DEVICES, TEST EQUIPMENT; SUPPLY OF PUBLIC GOODS AND SERVICES
Article 53.
Centralized procurement
1. Centralized procurement shall
apply if the following requirements are met:
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In case a rare drug needs to be
procured in a small quantity, the centralized procurement method may also be
employed to ensure the supply of sufficient drugs for medical examination and
treatment activities;
b) Goods or services to be procured
are included in the list of goods and services to be procured through
centralized procurement in Clause 2 of this Article.
2. Power to issue lists of goods
and services to be procured through centralized procurement:
a) The Minister of Health of
Vietnam shall issue the list of drugs to be procured through national
centralized procurement; the list of medical devices and test equipment to be
procured through national centralized procurement in case of need;
b) The Minister of Finance of
Vietnam shall issue the list of goods and services to be procured through
national centralized procurement, except those included in lists issued by the
Minister of Health of Vietnam as prescribed in Point a of this Clause;
c) Ministers, heads of ministerial
agencies, governmental agencies, and other central-government agencies,
Chairpersons of provincial People’s Committees, heads of state-owned
enterprises and wholly state-owned enterprises shall issue lists of goods and
services to be procured through centralized procurement (including lists of
drugs, medical device and test equipment) within their jurisdiction, except
those included in lists of drugs, goods and services to be procured through
national centralized procurement issued by the Minister of Health of Vietnam or
the Minister of Finance of Vietnam as prescribed in Points a and b of this
Clause.
3. Centralized procurement must be
conducted through competitive bidding. Direct contracting method may apply to
procurement of a good which is included in a list of goods and services to be
procured through centralized procurement but needs to be purchased immediately
to serve epidemic and disease prevention and combat as prescribed in Point c
Clause 1 Article 23 of this Law. The price negotiation method may apply to
procurement of a good which is included in a list of goods and services to be
procured through centralized procurement may be procured through if the price
negotiation requirements laid down in Clause 1 Article 28 of this Law are
satisfied.
4. Centralized procurement shall be
conducted by the national centralized procurement unit or centralized
procurement units of ministries, central-government agencies, local governments
or enterprises adopting one of the following methods:
a) The centralized procurement unit
shall conduct contractor selection and directly sign contract with the selected
supplier;
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5. If regulatory authorities,
organizations and/or units have need for the same good or service which is not
included in the list of goods and services to be procured through centralized
procurement, they shall aggregate their quantities of good or service in need
to form a procurement package and appoint one of them or a qualified
centralized procurement unit to execute this procurement package.
6. Centralized procurement units
shall conduct contractor selection within the ambit of their assigned tasks or
under contracts signed with entities in need of procurement of goods or
services.
7. The Government shall elaborate
this Article and stipulate the aggregation of procurement demands of private
health facilities.
Article 54.
Framework agreement
1. Framework agreement on
centralized procurement means an agreement made between a centralized procurement
unit and one or some selected suppliers for an undivided package or a part of a
divided package.
2. Contents and conditions of the
framework agreement shall be used as the basis for entering into each specific
procurement contract.
3. The validity period of a
framework agreement is specified in the contractor selection plan but shall not
exceed 36 months. The selected supplier's bid must still remain valid at the
time of signing the framework agreement.
4. In case of a consortium bidder,
the framework agreement must bear signatures and seals (if any) of all members
of the consortium.
Article 55.
Selection of suppliers of drugs, chemicals, test equipment and medical devices
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a) Selection of chemical or test
equipment supplier whereby the selected supplier shall also provide medical
devices serving the use of their supplied chemical or test equipment at the
request of the employer; the supplier shall only transfer the rights to use
medical devices to the health facility but retain ownership thereto;
b) Selection of supplier by
quantity of technical services:
The selected supplier shall only
supply chemicals, test equipment, medical devices, spare parts, accessories and
relevant services serving the operation or use of medical devices in the
quantity of technical services specified in the bidding documents or RFP issued
by the employer or procuring entity, without providing personnel in charge of
operating such medical devices.
The supplier shall only transfer
the rights to use medical devices to the employer but retain ownership thereto.
The package and bid price shall be determined on the basis of the quantity of
technical services to be supplied. Duration of a contract shall not exceed 05
years;
c) Selection of supplier of medical
devices, chemicals and test equipment: The selected supplier shall transfer the
ownership to medical devices and chemicals, test equipment to the employer
after the contract signed by and between the two parties becomes effective;
d) Selection of medical device
supplier in accordance with regulations of law on bidding;
dd) Selection of supplier of
chemicals and test equipment used for operating existing medical devices;
e) Selection of technical service
supplier in accordance with the Law on Medical Examination and Treatment.
2. Regarding the procurement of
drugs which are not covered by the health insurance fund or procurement of
vaccines used in providing on-demand vaccination services, health facilities
shall themselves decide the procurement of such drugs or vaccines in a manner
that ensures openness, transparency, economic efficiency and accountability.
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4. The Government shall elaborate
this Article.
Article 56.
Incentives in drug procurement
1. Incentives in drug procurement
shall comply with Article 10 of this Law and the following provisions:
a) The employer shall decide
whether to require inclusion of a domestic drug in bids if such drug can be
manufactured by at least 03 domestic manufacturers satisfying technical
requirements imposed by the Ministry of Health of Vietnam, and other quality
and price requirements.
b) If a drug can be manufactured by
at least 03 domestic manufacturers that fulfill EU-GMP requirements or
EU-GMP-equivalent requirements as announced by the Ministry of Health of
Vietnam, and also meet technical requirements imposed by the Ministry of Health
of Vietnam, and other quality, price and supply capacity requirements, the
inclusion of a domestic drug in bids shall be a requirement laid down in
bidding documents or RFP.
2. The Ministry of Health of
Vietnam shall announce the list of drugs mentioned in Point b Clause 1 of this
Article.
Article 57.
Selection of contractors for supply of public products and services
1. Public products and services are
products and services which are essential for socio-economic development of a
country or residential community or for assurance of national defense and
security, and thus have to be maintained by the State in the following fields:
education and training; vocational education and training; health; culture,
sports and tourism; information and communications; science and technology;
natural resources and environment; transport; agriculture and rural
development; industry and trade; construction; labour, war invalids and social
affairs; justice and other fields as prescribed by laws.
Public products and services
include public utilities and public services.
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3. In addition to the contractor
selection methods prescribed in Chapter II of this Law, the selection of
contractors for supply of public products and services may also be conducted in
the forms of order placement or task assignment according to the Government's
regulations.
Chapter VI
METHODS OF BID EVALUATION AND CONSIDERATION FOR
CONTRACT AWARD
Section 1.
METHODS OF BID EVALUATION AND CONSIDERATION FOR CONTRACT
AWARD IN CONTRACTOR SELECTION
Article 58.
Bid evaluation methods applied to non-consulting service, procurement,
construction or mixed packages
1. Least-cost method:
a) The least-cost method applies to
packages in which technical, financial and commercial proposals are regarded to
be on the same level if they meet the requirements of the bidding documents;
b) The bidder that has a bid
meeting technical requirements and the lowest bid price after error correction
and deviation adjustment (if any), and deducting the value of discounts (if
any), shall be ranked first.
2. Evaluated-price method:
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b) The evaluated-price method
applies to packages where costs can be converted to the same level in terms of
technical, financial and commercial factors for the entire life cycle of goods,
works or non-consulting services;
c) One or some factors converted
into the same level for determining the evaluated price include: operating and
maintenance costs, and other costs associated with loan interests, supply
schedule and quality of goods, services or works of the package; capacity or
output; statistical and assessment reports on performance of previous
contracts, including consideration of origin of goods; sustainable bidding and
other factors;
d) The bidder that has the lowest
evaluated price shall be ranked first.
3. Combined technique and
price-based method:
a) The combined technique and
price-based method applies to IT, telecommunications or insurance packages;
procurement and/or construction packages with specific or high technical
requirements to which the evaluated-price method cannot apply; or packages
where technical and price factors should be taken into consideration;
b) The combined score shall be
calculated on the basis of the technical score and the price score. The bidder
that has the highest combined score shall be ranked first.
4. Responsiveness to the capacity
and experience requirements shall be evaluated on pass/fail basis.
Responsiveness to the technical requirements shall be evaluated on either
scoring or pass/fail basis. Where the combined technique and price-based method
prescribed in Clause 3 of this Article applies, technical criteria shall be evaluated
on the basis of a scoring system. When the evaluation is based on a scoring
system, the minimum technical qualifying score shall be at least 70% of total
technical score.
Article 59.
Bid evaluation methods applied to consulting service packages
1. Least-cost method:
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b) The bidder that has a bid
meeting technical requirements and the lowest bid price after error correction
and deviation adjustment (if any), and deducting the value of discounts (if
any), shall be ranked first.
2. Fixed-price method:
a) The fixed-price method applies
to simple consulting service packages where the exact scope of tasks is defined
and the rational, specific and fixed costs for executing the package are
specified in the bidding documents;
b) The bidder that has a bid
meeting technical requirements, the bid price after error correction and deviation
adjustment (if any), and deducting the value of discounts (if any), not
exceeding the package price, and the highest technical score shall be ranked
first.
3. Combined technique and
price-based method:
a) The combined technique and
price-based method applies to consulting service packages where both quality
and costs for executing the package are critical;
b) The combined score shall be
calculated on the basis of the technical score and the price score. The scoring
system must follow the rule that the technical score accounts for 70% - 80% of
total score and the price score accounts for 20% - 30% of total score; the sum
of technical score and price score shall be 100%. The bidder that has the
highest combined score shall be ranked first.
4. Technique-based method:
a) The technique-based method
applies to consulting service packages with specific or high technical
requirements;
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Article 60.
Contract award for consulting service packages
1. A consultant that is an
organization shall be considered successful and awarded the contract if the
consultant:
a) has a substantially responsive
bid or proposal;
b) has a technical proposal meeting
the requirements of the bidding documents or RFP;
c) has the lowest bid price after
error correction and deviation adjustment, and deducting the value of discounts
(if any), if the least-cost method applies; or has the lowest bid price after
deducting discounts (if any), in case of a lump sum contract; or has the
highest technical score, if either the fixed-price method or technique-base
method applies; or has the highest combined score, if the combined technique
and price-based method applies; and
d) has a proposed successful bid
price not exceeding the approved package price.
2. A consultant that is an
individual shall be considered successful and awarded the contract if the
consultant:
a) has a scientific CV and
technical proposal (if any) which are considered the most advantageous one
conforming to the requirements laid down in terms of reference; and
b) has a proposed successful bid
price not exceeding the approved package price.
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Article 61.
Contract award for non-consulting service, procurement, construction or mixed
packages
1. A bidder shall be considered
successful and awarded the contract for non-consulting services, procurement of
goods, construction or mixed package if the bidder:
a) has a substantially responsive
bid or proposal;
b) meets capacity and experience
requirements laid down in the bidding documents or RFP;
c) has a technical proposal meeting
the requirements of the bidding documents or RFP;
d) has the negative value of
deviations not exceeding 10% of the bid price;
dd) has the lowest bid price after
error correction and deviation adjustment, and deducting the value of discounts
(if any), if the least-cost method applies; or has the lowest evaluated price,
if the evaluated-price method applies; or has the highest combined score, if
the combined technique and price-based method applies; and
e) has a proposed successful bid
price not exceeding the approved package price.
2. The notice of contractor
selection result sent to an unsuccessful bidder must provide the reason(s)
their bid was unsuccessful.
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Article 62.
Bid evaluation methods
1. The investor’s capacity and
experience, and efficiency of the investment plan proposed by the investor,
including efficiency in land use and investments in sectoral or local
development, shall be evaluated adopting the social and state benefits-based
evaluation method.
2. Bids submitted by investors
shall be evaluated according to the following criteria:
a) Criteria for evaluation of the
investor’s capacity, including financial and funding arrangement capacity, and
experience in executing similar investment projects;
b) Criteria for evaluation of the
investor’s investment plan, including technical, social and environmental
criteria;
c) Criteria for evaluation of
efficiency in land use and investments in sectoral or local development.
3. Regarding investment projects
with specific business investment, sectoral management and development
conditions as prescribed by the Law on investment or specialized laws, the
bidding documents must clearly specify bid evaluation criteria which include
one or some of the criteria specified in Clause 2 of this Article.
4. Bid evaluation criteria shall be
scored on a scale of 100 or 1.000 points. The combined score shall be determined
on the basis of capacity and experience score, investment plan score and score
of efficiency in land use and investments in sectoral/local development. The
investor that has achieved the minimum qualifying score for each of the
criteria specified in Clauses 2 and 3 of this Article and the highest combined
score shall be ranked first.
5. The Government shall elaborate
this Article.
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1. An investor shall be considered successful
and awarded the contract if the investor:
a) has a substantially responsive
bid;
b) meets capacity and experience
requirements;
c) meets requirements regarding the
investment plan;
d) meets the requirements regarding
the efficiency in land use and investments in sectoral or local development;
and
dd) has the highest combined score
of capacity and experience, investment plan, and efficiency in land use and
investments in sectoral/local development criteria.
2. The notice of investor selection
result sent to an unsuccessful investor must provide the reason(s) their bid
was unsuccessful.
Chapter VII
CONTRACTS
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Article 64.
Types of contract
1. Lump sum contract:
a) Lump sum contracts are used for
packages where the scope of tasks, technical requirements and the package
execution duration are well defined at the time of contractor selection and
changes in quantity or technical requirements or encountering unforeseen
conditions is unlikely; or for packages where the quantity and unit price
cannot be defined but the contracting parties’ ability to manage risks and
substantial variations or the physical and qualitative characteristics of
output products are well defined, including EPC contracts and turnkey contracts;
b) In case of a lump sum contract,
the package price which is used as the basis for bid evaluation and contract
award shall include contingencies determined for risks associated with
quantities and price escalation which may occur during the contract execution
in proportion to the risk management liability to be undertaken by the
contractor. The bid price should include all contingencies determined for risks
associated with quantities and price escalation which may occur during the
contract execution in proportion to the contractor’s liability for the package;
c) The contract price is unchanged
throughout the contract duration in respect of the scope of tasks, technical
requirements and terms and conditions specified in the contract, except force majeure
events or changes in the scope of tasks resulting in change in the contract
price;
d) The payment shall be made
according to the percentage of the contract price or the price of works, work
item or quantity of tasks in proportion to the agreed-upon payment schedule
specified in the contract. The payment is made without requiring certification
of completed quantities.
2. Fixed unit price contract:
a) Fixed unit price contracts are
used for packages where the physical characteristics are well defined at the
time of contractor selection but the exact quantity or volume of tasks to be
actually completed by the contractor cannot be determined. The contract price
shall initially be determined on the basis of quantity or volume of tasks and
fixed unit price specified in the contract and contingencies for additional
tasks determined in accordance with regulations of law;
b) Unit prices specified in the
fixed unit price contract shall remain unchanged throughout the performance of
entire tasks specified in the contract. Payment shall be made according to the
quantity or volume of tasks completed and accepted, and the fixed unit prices
specified in the contract.
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a) Adjustable unit price contracts
are used for packages with long execution duration where input price
fluctuations may occur during the contract execution and the application of
fixed unit prices may negatively affect the package execution. Unit prices and
the contract price of an adjustable unit price contract may be adjusted
according to specified agreements specified in the contract in respect of any
tasks of the contract. The contract price shall initially be determined on the
basis of quantity or volume of primary tasks and base unit price specified in
the contract and contingencies for additional tasks and price escalation.
Methods for calculation of price escalation and contingencies for price
escalation must be specified in the contract;
b) Payment shall be made according
to the quantity or volume of tasks completed and accepted, and the unit prices
specified in the contract or adjusted unit prices (if any).
4. Time-based contract:
Time-based contracts may be used
for emergency situations; repair or maintenance of works, machinery and
equipment; or supply of consulting services when it is difficult to define the
scope and length of services. The contract price is based on the unit price per
amount of time, agreed hourly, daily, weekly or monthly salary rates specified
in the contract and reasonable reimbursable expenses.
5. Cost plus fee contract:
Cost plus fee contracts are used
for tasks or services when the scope of tasks or input factors or costs
necessary for performing estimated tasks of the contract cannot be properly
defined at the time of contractor selection. At the time of signing contract,
the parties shall reach specific agreements on administrative and overhead
expenses, profits, direct costs-based calculation method; method for
determining direct costs, and other contents necessary for executing the
contract.
6. Performance-based contract:
Performance-based contracts are
used for tasks or services for which the payment is based on the contract
execution outcomes with accepted quality and quantity, and other factors. The contract
must clearly indicate the quantity and quality of outputs, methods for
inspecting, evaluating and measuring the achievement of output quality
standards, reduction of payments, price adjustment provisions (if any) and
other contents necessary for executing the contract.
7. Percentage-based contract:
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8. Mixed contract:
A mixed contract means a contract
whose scope comprises different types of contract specified in Clauses 1
through 7 of this Article. The mixed contract must clearly define the scope of
tasks to be performed under each type of contract and relevant modifications
made when different types of contract are applied to the same task or service.
Provisions on payment for each type of contract shall apply to payment for the
scope of tasks of the mixed contract.
Article 65.
Contract documents signed with contractor
1. The contract documents signed
with a contractor shall include:
a) Contract agreement;
b) Contract appendices, including
the activity schedule, price schedules, and execution schedule (if any);
c) Decision on approval of
contractor selection result.
2. Depending on the scale and
nature of each package, the contract documents may, in addition to the
documents specified in Clause 1 of this Article, include one or some of the
following documents:
a) Contract completion record;
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c) Written agreement made by the
parties on conditions of the contract, including general conditions of contract
and special conditions of contract;
d) Bid or proposal of the
successful bidder and clarifications thereof;
dd) Bidding documents or RFP and
addenda thereto;
e) Other relevant documents.
Article 66.
Conditions for signing of contract
1. The bid or proposal of the
successful bidder must still remain valid at the time of signing the contract.
In case of centralized procurement with use of the framework agreement, the
framework agreement must still remain valid at the time of signing the
contract.
2. At the time of signing the
contract, the successful bidder must meet all technical and financial
requirements for executing the package in accordance with the requirements laid
down in the bidding documents or RFP.
3. The employer is requested to
provide funding for making advances and payments, premises and other conditions
necessary for ensuring the package execution schedule.
Article 67.
Signing of contract with successful bidder
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1. Only a single contract will be
signed for executing a package. A contract may be prepared applying one or some
types of contract prescribed in Article 64 of this Law. A centralized
procurement package or a package which is divided into smaller parts may be
executed under several contracts. Each contract shall cover one or some parts
of the package. If different types of contract are employed, the type of
contract for each task must be specified;
2. Contents of the contract signed
by and between the parties must be conformable with contents of the bidding
documents, RFP, bids or proposals, contract negotiation results (if any),
decision on approval of contractor selection result. The contract should
clearly indicate the scope of tasks to be undertaken by specialist
subcontractors (if any) and maximum value of tasks to be subcontracted. The
maximum value of tasks to be subcontracted shall not include the value of tasks
to be undertaken by specialist subcontractors;
3. In case of a consortium bidder,
the contract agreement must bear signatures and seals (if any) of all members
of the consortium. In case of centralized procurement with use of framework
agreement, all members of the consortium shall directly append their signatures
and seals (if any) to the contract agreement with the entity in need of goods
or services or a member of the consortium shall be authorized to do so under
terms and conditions of the consortium agreement;
4. The Government shall elaborate
this Article.
Article 68.
Performance security
1. The successful bidder shall be
required to choose one of the following options for ensuring their execution of
the contract, including:
a) Pay a deposit;
b) Submit a letter of guarantee
issued by a domestic credit institution or foreign bank branch lawfully
established under the law of Vietnam; or
c) Submit a certificate of surety bond
insurance issued by a domestic non-life insurer or branch of a foreign non-life
insurer duly established under the law of Vietnam.
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a) Consulting service supplier;
b) The contractor that is selected
adopting the self-execution or community participation method;
c) The bidder to be contracted for
executing a package whose price does not exceed the price limit prescribed in
Point m Clause 1 Article 23 of this Law.
3. The successful bidder shall
furnish the required performance security before or when the contract becomes
effective.
4. Depending on the scale and
nature of each package, the value of the performance security equaling 2% - 10%
of the contract price shall be specified in the bidding documents or RFP.
5. The validity period of the
performance security begins on the effective date of the contract until all
contractual obligations are fulfilled by the parties or warranty obligations,
if specified in the contract, are taken on. If the duration of the contract
needs to be extended for a specified period, the contractor shall be requested
to extend the validity of their furnished performance security for a
corresponding additional period before the contract is granted extension.
6. The performance security shall
be forfeited if the successful bidder:
a) refuses to perform the contract
that is still effective;
b) violates terms and conditions of
the contract; or
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Article 69.
Contract execution rules
1. Parties to a contract are
responsible to comply with terms and conditions of their signed contract.
2. Honesty, cooperation and lawfulness.
3. No infringement upon the
interests of the State and community as well as legitimate interests of other
organizations and individuals.
Article 70.
Modification of contract
1. A contract may be modified:
a) in cases agreed upon by the
parties and specified in the signed contract in conformity with regulations of
law;
b) when circumstances for executing
the contract fundamentally change as prescribed by the Civil Code; or
c) at the request of a competent
authority that affects the execution of contract with no fault of the
employer’s fault.
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3. During the contract execution,
the parties are allowed to modify the intended completion dates of tasks
specified in the contract in the following circumstances:
a) A force majeure event or
unexpected situation arises and hinders the contractor from executing the
contract without fault or negligence of any party to the contract;
b) There are changes in the
project, scope of tasks, scope of supply, primary construction solutions,
designs or supply methods due to objective reasons resulting in changes in the
contract execution schedule;
c) One or both parties to the
contract propose initiatives for executing the contract which require changes
in the contract execution schedule with the aim of generating considerable
interests to the employer;
d) The contract execution schedule
is affected due to the employer's failure to provide the site as agreed upon in
the contract or suspension of the contract through no fault of the contractor;
dd) The performance of tasks is suspended
at the request of a competent authority due to the fault of neither of the
employer and the contractor.
4. Any modification to the contract
resulting in changes in the contract execution schedule or an increase in the
approved package price (including contingencies) shall require an approval from
the competent person. However, any increase in price shall not make the
contract price exceed the total investment or total funding in the procurement
cost estimate. In case a project or procurement cost estimate comprises
multiple packages, any increase in price shall not make the sum of contract
prices exceed the total investment or total funding in the procurement cost
estimate.
5. In case of changes in the
contract price, quantities and other contents as agreed upon in the contract,
the signing of contract appendices shall not be required if the following
conditions are met:
a) Any change shall not make the
contract price exceed the package price specified in the contractor selection
plan; if the package cost estimate is approved after the approval of the
contractor selection plan, total funding in the package cost estimate shall not
be exceeded;
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c) Methods, formula, items and
other contents necessary for making such changes are available in the contract.
6. The Government shall elaborate
this Article.
Section 2.
INVESTMENT PROJECT CONTRACTS IN CASE OF INVESTOR
SELECTION
Article 71. Signing
of contract and rules for executing investment project contracts
1. An investment project contract
shall be signed if the following conditions are met:
a) The bid of the selected investor
must still remain valid at the time of signing the contract;
b) At the time of signing contract,
the selected investor is required to meet technical and financial requirements
for executing the investment project as laid down in the bidding documents.
2. Contents of the signed contract
must be conformable with contents of the bidding documents, the investor’s bid,
decision on approval of investor selection result, and contract negotiation and
completion record.
3. The contract shall be signed by
and between a competent authority or the procuring entity (if authorized) and
the selected investor. In case of a consortium, the contract agreement must
bear signatures and seals (if any) of all members of the consortium.
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Article 72.
Investment project contract documents
The documents constituting an
investment project contract consist of:
1. Contract agreement;
2. Contract appendices (if any);
3. Contract negotiation and
completion record;
4. Decision on approval of investor
selection result;
5. The selected investor’s bid and
clarifications thereof;
6. Bidding documents and addenda
thereto;
7. Other relevant documents.
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1. An investment project contract
shall, inter alia, have the following primary contents:
a) Particulars of the contracting
parties, effective date and duration of the contract;
b) Details of the investment
project, including: objectives, location, and execution schedule; scale and
total investment; conditions for use of land and other resources (if any);
compensation and relocation measures and requirements, and construction of
auxiliary works (if any); safety and environmental protection requirements;
force majeure events and actions taken;
c) Responsibility to follow
compensation and relocation procedures and organize construction of auxiliary
works (if any); allocation or lease of land (if any);
d) The investor's obligations to fulfill
commitments proposed in their bid; establishment of enterprise in charge of
managing the investment project (if any);
dd) Performance security; rules and
conditions for modification and termination of contract; transfer of rights and
obligations by the parties;
e) Governing law and dispute
settlement mechanism.
2. The Government shall elaborate
this Article.
Article 74.
Duration of investment project contract
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2. Duration of an investment
project contract begins on the effective date of the contract until the
investor fulfills their commitments specified in their bid and other
obligations as agreed upon by the parties in the contract.
3. When the contract expires, the
investor shall execute the investment project in accordance with regulations of
the Law on investment and relevant laws.
Article 75.
Security for performance of investment project contract
1. The investor is required to
adopt one of the following performance security options for ensuring their
fulfillment of responsibility to execute the investment project before or when
the contract becomes effective:
a) Submit a letter of guarantee
issued by a domestic credit institution or foreign bank branch lawfully
established under the law of Vietnam; or
b) Submit a certificate of surety
bond insurance issued by a domestic non-life insurer or branch of a foreign
non-life insurer duly established under the law of Vietnam.
2. Depending on the scale and
nature of the investment project, the value of the performance security
equaling 1% - 3% of the total investment shall be specified in the bidding
documents.
3. The validity period of the
performance security begins on the official signing date of the contract until
the contract is terminated. If the duration of the contract needs to be
extended for a specified period, the investor shall be requested to extend the
validity of their furnished performance security for a corresponding additional
period.
4. The performance security shall
be forfeited if the investor:
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b) violates terms and conditions of
the contract; or
c) refuses to extend the validity
period of the performance security, in case failure to meet the contract
execution schedule is at the investor’s fault.
Article 76.
Modification of investment project contract
1. An investment project contract
may be modified in the following cases:
a) The investment project which is
subject to approval of investment guidelines is modified in accordance with
regulations of the Law on investment resulting in changes in contents of the
project contract.
Modifications to the contract shall
only be made after the modified investment guidelines have been approved by a
competent authority. The investor must meet technical and financial
requirements for executing the modified investment project;
b) The investment project is
transferred in accordance with regulations of the Law on investment and
relevant laws;
c) In other cases as agreed upon by
the parties in the contract in conformity with regulations of law.
2. The transfer of an investment
project specified in Point b Clause 1 of this Article must meet the following
conditions:
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b) The investor that receives the
transfer (transferee) meets technical and financial requirements for executing
the investment project;
c) The transferee commits to
inherit all rights and obligations of the transferor as defined in the signed
investment project contract.
Chapter VIII
RESPONSIBILITIES OF PARTIES IN BIDDING
Article 77.
Responsibilities of competent persons
1. Consider approving the contractor
selection master plan as prescribed in Article 36 of this Law.
2. Consider approving contractor
selection plans as prescribed in Articles 40 and 41 of this Law.
3. Organize appraisal of the
contents specified in Clauses 1 and 2 of this Article.
4. Suspend bidding process, refuse
to recognize contractor/investor selection results, and impose penalties for
violations in bidding sector in accordance with the provisions of this Law and
relevant laws.
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6. Settle petitions arising during
the contractor/investor selection as prescribed in this Law.
7. Organize inspection and
supervision of bidding activities and contract execution.
8. In case of contractor selection,
in addition to the responsibilities specified in Clauses 1 through 7 of this
Article, a competent person shall also discharge the following:
a) Adjust tasks and powers of the
employer in case of failure to satisfy the conditions laid down in this Law and
requirements of the project or package;
b) Request the employer or the
procuring entity to provide documents used in inspection, supervision,
settlement of petitions, handling of violations in bidding sector and fulfillment
of the tasks specified in Clauses 4, 5 of this Article;
c) Give opinions about complicated
situations at the request of the employer as prescribed in Point a Clause 3
Article 88 of this Law.
9. In case of investor selection,
in addition to the responsibilities specified in Clauses 4, 5, 6 and 7 of this
Article, a competent person shall also discharge the following:
a) Act on behalf of the competent
authority to decide the organization of investor selection;
b) Decide to appoint a unit whose
personnel are qualified to perform investor selection tasks as the procuring
entity; employ qualified consultant to perform certain tasks of the procuring
entity in case qualified personnel are not available;
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d) Consider approving EOI selection
result and investor selection result;
dd) Make decisions on handling of
situations in bidding;
e) Conclude contracts on the basis
of approval given by a competent authority; organize the management of the
contract signed with the successful investor;
g) Request the procuring entity to
provide documents used in inspection, supervision, settlement of petitions,
handling of violations in bidding sector and fulfillment of the tasks specified
in Clauses 4, 5 of this Article.
10. Explain the fulfillment of
responsibilities specified in this Article at the request of superior
authorities, inspecting authorities and bidding authorities.
11. Discharge other
responsibilities as prescribed by this Law and relevant laws.
Article 78.
Responsibilities of employers
1. Consider approving the following
contents:
a) The contractor selection plan in
case the package is executed before the project is approved or the bidding is
executed in advance; the contractor selection plan for a project covered by an
approved contractor selection master plan;
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c) Bidding documents, RFP;
d) Contractor selection result.
2. Organize the appraisal of the
contents specified in Clause 1 of this Article.
3. Sign, or give authorization to
sign, contract with the successful bidder, and manage the contract execution;
sign and manage framework agreement in case of centralized procurement with use
of framework agreement; make payment for contractors under terms and conditions
of the signed contract.
4. Decide to establish the
procuring entity with personnel that are qualified to perform contractor
selection tasks; employ qualified consultant to act as the procuring entity or
to perform certain tasks of the procuring entity in case qualified personnel
are not available. Decide to establish the expert team meeting the requirements
laid down in Article 19 of this Law in case no consultant is employed to act as
the procuring entity.
5. Make decisions on handling of
situations in bidding.
6. Settle petitions arising during
the contractor selection.
7. Protect confidentiality of
information and documents concerning the contractor selection.
8. Retain relevant information
obtained during the contractor selection in accordance with regulations of law
on archives and this Law.
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10. Cancel bidding process in the
cases specified Point a Clause 1 Article 17 of this Law.
11. Provide relevant information
and documents and explanations about the fulfillment of responsibilities
specified in this Article at the request of the competent person, inspecting
authorities and bidding authorities.
12. Assume responsibility before
the law and the competent person for the contractor selection.
13. Discharge the responsibilities
specified in Article 79 of this Law if the employer is also the procuring
entity.
14. Provide information technology
infrastructure facilities meeting online bidding requirements.
15. Assume legal responsibility for
the accuracy and truthfulness of information which is registered and published
on VNEPS using the employer’s digital certificate.
16. Discharge other
responsibilities as prescribed by this Law and relevant laws.
Article 79.
Responsibilities of procuring entities
1. In case of contractor selection,
the procuring entity shall:
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b) Decide to establish an expert
team in case the procuring entity is a consultant that is employed by the
employer;
c) Request bidders to provide
clarifications to their EOIs, prequalification applications, bids or proposals
during evaluation process;
d) Submit prequalification
document, EOI request, RFP, bidding documents, shortlist and contractor
selection result for approval;
dd) Conduct negotiation (if any)
and completion of contract with the successful bidder, and manage the execution
of the signed contract (if any);
e) Conduct negotiation (if any) and
completion of framework agreement with the successful bidder, and manage the
execution of the signed framework agreement (if any) in case of centralized
procurement with use of the framework agreement;
g) Protect confidentiality of
information and documents concerning the contractor selection;
h) Publish information on VNEPS;
provide relevant information and documents and explanations about the fulfillment
of responsibilities specified in this Clause at the request of the competent
person, employer, inspecting authorities and bidding authorities;
i) Assume responsibility before the
law and the employer for the performance of assigned tasks as prescribed in
this Clause.
2. In case of investor selection,
in addition to the responsibilities specified in Point h Clause 1 of this
Article, the procuring entity shall also:
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b) Decide to establish an expert
team;
c) Request investors to provide
clarifications to their bids during evaluation process;
d) Submit bidding documents and investor
selection result for approval; consider approving bidding documents if
authorized;
dd) Conduct contract negotiation
with the successful investor; sign and manage the contract signed with the
successful investor if authorized;
e) Cancel bidding process in the
cases specified Point a Clause 2 Article 17 of this Law;
g) Protect confidentiality of
information and documents concerning the investor selection;
h) Retain relevant information
obtained during the investor selection in accordance with regulations of law on
archives and this Law;
i) Settle petitions arising during
the investor selection;
k) Submit reports on performance of
annual bidding tasks;
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3. Provide information technology
infrastructure facilities meeting online bidding requirements.
4. Discharge other responsibilities
as prescribed by this Law and relevant laws.
Article 80.
Responsibilities of expert teams
1. Prepare EOI request,
prequalification document, bidding documents or RFP.
2. Organize evaluation of EOIs,
prequalification applications, applications for project execution, bids or
proposals; propose measures for handling situations arising during bidding
process (if any) to the procuring entity.
3. Protect confidentiality of
information and documents concerning the contractor/investor selection.
4. Provide relevant information and
documents and explanations about the fulfillment of responsibilities specified
in this Article at the request of the competent person, employer, procuring
entity, inspecting authorities and bidding authorities.
5. Discharge other responsibilities
as prescribed by this Law and relevant laws.
Article 81.
Responsibilities of appraising teams
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2. Request the employer/procuring
entity to provide adequate relevant documents.
3. Protect confidentiality of
information and documents obtained during appraisal process.
4. Provide relevant information and
documents and explanations about the fulfillment of responsibilities specified
in this Article at the request of the competent person, employer, inspecting
authorities and bidding authorities.
5. Assume responsibility before the
law, the competent person and employer for performance of appraisal tasks and
other assigned tasks as prescribed in this Article.
6. Discharge other responsibilities
as prescribed by this Law and relevant laws.
Article 82.
Responsibilities of contractors, investors
1. Request the procuring entity to
clarify their EOI request, prequalification document, bidding documents or RFP.
2. Provide relevant information and
documents and explanations about the fulfillment of responsibilities specified
in this Article at the request of the competent person, employer, procuring
entity, inspecting authorities and bidding authorities.
3. In addition to the
responsibilities specified in Clauses 1 and 2 of this Article, when
participating in bidding through VNEPS, bidder or investor shall also:
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b) Assume legal responsibility for
the accuracy and truthfulness of information which is registered and published
on VNEPS.
4. Comply with terms and conditions
of the signed contract.
5. Discharge other responsibilities
as prescribed by this Law and relevant laws.
Chapter IX
STATE MANAGEMENT OF BIDDING ACTIVITIES
Section 1.
STATE MANAGEMENT OF BIDDING
Article 83.
Contents of state management of bidding activities
1. Promulgate and organize the
implementation of legislative documents on bidding.
2. Review, assess and submit
reports on the implementation of bidding activities.
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4. Supervise, inspect and settle
bidding-related complaints, denunciations and petitions, and take actions
against violations in bidding sector within the jurisdiction and scope of
responsibility prescribed in this Law and relevant laws.
5. Provide professional training
and retraining courses in bidding activities.
6. Carry out international
cooperation in bidding.
Article 84.
Responsibility for state management of bidding
1. The Government shall carry out
uniform state management of bidding activities nationwide.
2. The Ministry of Planning and
Investment of Vietnam shall act as a focal point in charge of assisting the
Government in carrying out uniform state management of bidding activities, and
have the following powers and responsibilities:
a) Formulate and promulgate, within
its jurisdiction, or request competent authorities to promulgate, legislative
documents on bidding;
b) Build and manage VNEPS and press
products on bidding to serve online bidding, and public disclosure of
information on contractor/investor selection as prescribed in this Law;
c) Build and manage national
database on contractors and investors, containing information on contract
execution results and quality of supplied goods according to the Government’s
regulations;
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dd) Carry out inspection of bidding
activities;
e) Perform other powers and
responsibilities to carry out state management of bidding activities as
assigned by the Government or the Prime Minister in accordance with this Law
and relevant laws.
Article 85.
Responsibilities of ministries, ministerial agencies and people’s committees of
all levels
1. Perform state management of
bidding activities within their jurisdiction.
2. Organize professional training
and retraining courses in bidding for officials and public employees in charge
of bidding tasks.
3. Inspect and settle complaints,
denunciations and petitions and take actions against violations in bidding
sector.
4. Review, assess and submit
reports on the implementation of bidding activities.
5. Perform other powers and responsibilities
as prescribed by this Law and relevant laws.
Article 86.
Inspection and supervision of bidding activities
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a) Organizations and individuals
involved in bidding activities as prescribed in this Law shall be subject to
inspection under the Law on inspection;
b) Organization and operation of
inspection agencies in bidding sector shall comply with provisions of the Law
on inspection.
2. General inspection of bidding
activities:
a) General inspection of bidding
activities shall be carried out on a periodical or ad hoc basis which is
decided by heads of authorities competent to carry out inspection;
b) The general inspection of
bidding activities covers one or some of the following contents: promulgation
of guidelines and instructions on performance of bidding tasks; submission,
appraisal and approval of contractor selection plans; preparation for
contractor/investor selection; organization of contractor/investor selection;
management and execution of contracts; other bidding activities;
c) General inspection of bidding
activities may be carried out adopting either direct inspection or written
reporting method;
d) Inspection process: preparing
for inspection; organizing the inspection; reaching inspection conclusions;
monitoring the implementation of inspection conclusions.
3. Supervision of bidding
activities:
a) Competent persons and bidding
authorities shall take charge of supervising bidding activities performed by
employers and procuring entities with the aim of ensuring the compliance of
contractor/investor selection with the provisions of this Law and relevant
laws;
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c) Bidding authorities affiliated
to Ministries, central-government regulatory authorities and local governments
shall carry out regular supervision of bidding activities in respect of
packages of projects, investment projects or procurement cost estimates in
their provinces or within their jurisdiction;
d) Competent persons shall carry
out supervision of bidding activities in respect of projects, investment
projects or procurement cost estimates within their jurisdiction;
dd) Supervision of bidding
activities covers one or some of the following contents: prequalification
document, bidding documents, RFP, evaluation of bids or proposals;
contractor/investor selection process;
e) Process of supervision of
bidding activities by competent persons: preparing for supervision; carrying
out supervision; reporting supervision results.
4. The Government shall elaborate
this Article.
Article 87.
Handling of violations
1. Organizations and individuals
that commit violations against regulations of law on bidding shall, depending
on the nature and severity of their violations, be disciplined, face
administrative penalties or criminal prosecution, and make compensation for any
damage in accordance with regulations of law.
2. In addition to penalties
prescribed in Clause 1 of this Article, depending on the nature and severity of
each violation, the organization or individual that commits any of the
prohibited acts prescribed in this Law shall be prohibited from participating
in bidding activities for a period from 06 months to 05 years.
3. Power to decide prohibition from
participating in bidding activities:
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b) Ministers, heads of ministerial
agencies, Governmental agencies, and other central-government agencies, and
Chairperson of provincial People’s Committees shall issue decisions on prohibition
from participating in bidding activities within their jurisdiction;
c) The Minister of Planning and
Investment of Vietnam shall issue decisions on prohibition from participating
in bidding activities within his/her jurisdiction and nationwide.
4. A decision on prohibition from
participating in bidding activities must be sent to the violating organization
or individual and relevant authorities and organizations; and also be sent to
the Ministry of Planning and Investment of Vietnam and published on VNEPS.
5. The Government shall elaborate
Clauses 2, 3 and 4 of this Article.
Section 2.
HANDLING SITUATIONS AND PETITIONS ARISING FROM BIDDING
ACTIVITIES
Article 88.
Handling certain situations in bidding
1. If a situation which is not specifically
and clearly prescribed in the contractor selection plan, EOI request,
prequalification document, bidding documents or RFP or other tasks of the
bidding process occurs, the competent person or employer shall make decision,
and assume legal responsibility for their decision, to handle the situation on
the basis of ensuring competitiveness, fairness, transparency, economic
efficiency and accountability.
2. Situations shall be handled on
the basis of the contractor selection plan; EOI request, prequalification
document, bidding documents or RFP; EOIs, prequalification applications,
applications for project execution, bids or proposals; contractor/investor
selection result; the contract signed with the selected bidder or investor;
actual execution of the package, project or investment project.
3. Power to handle situations
arising in bidding:
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b) In case of investor selection,
situations shall be handled according to decisions of competent persons.
4. The Government shall elaborate
this Article.
Article 89.
Settlement of petitions in bidding
1. If there are grounds for
presuming that their legitimate rights and interests are affected, bidders,
investors, authorities and organizations are entitled to submit petitions to
competent persons, employers or procuring entities for review or consideration
of issues concerning the contractor/investor selection process and/or result as
prescribed in Articles 90, 91 and 92 of this Law.
2. Bidders, investors, authorities
or organizations shall only have their petitions put into consideration if they
have not yet filed any other complaints, denunciations or lawsuits. If a
bidder, investor, authority or organization is found to have filed a lawsuit,
complaint or denunciation during the settlement of their petition, the
settlement process shall be terminated immediately.
3. A petition may be withdrawn
during its settlement process.
Article 90.
Conditions for settlement of petitions
1. In order to be put into
consideration, petitions for review of issues that arise before the publishing
of contractor/investor selection result must meet the following conditions:
a) Petitions for review of bidding
documents may be submitted by authorities or organizations having interest in
the package or investment project; petitions for review of other issues
concerning the contractor/investor selection process shall only be filed by
bidders or investors participating in the bidding;
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c) The petition must be submitted
to the entity in charge of settling the petition prescribed in Clause 1 Article
91 and Clause 1 Article 92 of this Law before the contractor/investor selection
result is published.
2. In order to be put into
consideration, petitions for review of the contractor/investor selection result
must meet the following conditions:
a) The petition must be filed by
the bidder or investor participating in the bidding (petitioner);
b) The petition must bear signature
and seal (if any) of the petitioner’s lawful representative or be digitally
signed and submitted through VNEPS;
c) The issue in the petition has
not been included in any other lawsuit, complaint or denunciation filed by the
petitioner;
d) The issue in the petition must
directly concern the petitioner's bid evaluation results;
dd) The petition settlement fee is
paid by the petitioner to the standing assistance section of the chairperson of
the petition settlement advisory board (hereinafter referred to as “standing
section”) before or at the same time when the petition is submitted;
e) The bidder and the investor must
submit their petitions to the employer/competent person and the procuring
entity/competent person respectively within the time limit specified in Clause
2 Article 91 of this Law.
3. The person in charge of settling
the petition shall inform the petitioner in writing in case their petition is
rejected because the conditions specified in Clauses 1 and 2 of this Article
are not fulfilled.
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1. Settlement of petitions for
review of issues that arise before the notice of contractor selection result is
published shall be subject to the following provisions:
a) The bidder, authority or organization
(petitioner) shall send their petition to the employer before the contractor
selection result is published on VNEPS;
b) The employer shall send a
written response to the petitioner within 07 working days from the receipt of
the petition;
c) In case the petitioner disagrees
with the petition settlement result or does not receive any response from the
employer upon the expiration of the time limit specified in Point b of this
Clause, the petitioner shall be entitled to send their petition to the competent
person within 05 working days from the prescribed deadline for petition
settlement or from the day on which the employer’s response is received;
d) The competent person shall send
a written response to the petitioner within 05 working days from the receipt of
the petition.
2. Petitions for review of the
issues that arise after the notice of contractor selection result is published
shall be settled according to one of the following processes:
a) The bidder (petitioner) shall
send their petition to the employer within 10 days from the day on which the
contractor selection result is published on VNEPS. The employer shall send a
written response to the petitioner within 07 working days from the receipt of
the petition.
In case the petitioner disagrees
with the petition settlement result or does not receive any response from the
employer upon the expiration of the time limit specified in this Clause, the
petitioner shall be entitled to send their petition to the competent person
through the standing section within 05 working days from the prescribed
deadline for petition settlement or from the day on which the employer’s
response is received. The competent person shall issue a decision on settlement
of the petition for review of the contractor selection result within 05 working
days from the receipt of the written opinion from the petition settlement
advisory board;
b) The bidder (petitioner) shall
send their petition to the competent person through the standing section within
10 days from the day on which the contractor selection result is published on
VNEPS. The competent person shall issue a decision on settlement of the
petition for review of the contractor selection result within 05 working days
from the receipt of the written opinion from the petition settlement advisory
board.
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4. Where necessary, the petition
settlement advisory board shall, based on the received petition, request the
competent person to consider suspending the signing or execution of the
contract. If the request of the petition settlement advisory board is accepted,
within 05 working days from its receipt, the competent person shall provide the
employer with a written notice of suspension of contract signing or execution
in which the suspension duration must be clearly stated.
5. A written response shall contain
conclusions on the issue in the petition. If the petition is found to be true,
remedial measures and implementation time limit (if any) must also be specified
in the written response. The petitioner shall have their paid petition
settlement fee reimbursed. If the petition is found to be false, the written
response shall contain detailed explanations. In this case, the paid petition
settlement fee shall not be reimbursed.
6. If the petitioner disagrees with
the decision on petition settlement issued by the competent person or employer,
they shall be entitled to initiate Court proceedings.
Article 92.
Procedures for settlement of petitions arising from investor selection
1. Settlement of petitions for
review of issues that arise before the investor selection result is published
shall be subject to the following provisions:
a) The investor, authority or
organization (petitioner) shall send their petition to the procuring entity
before the investor selection result is published;
b) The procuring entity shall send
a written response to the petitioner within 15 working days from the receipt of
the petition;
c) In case the petitioner disagrees
with the petition settlement result or does not receive any response from the
procuring entity upon the expiration of the time limit specified in Point b of
this Clause, the petitioner shall be entitled to send their petition to the
competent person within 05 working days from the prescribed deadline for
petition settlement or from the day on which the procuring entity’s response is
received;
d) The competent person shall send
a written response to the petitioner within 05 working days from the receipt of
the petition.
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a) The investor (petitioner) shall
send their petition to the procuring entity within 10 days from the day on
which the investor selection result is published. The procuring entity shall
send a written response to the petitioner within 15 working days from the
receipt of the petition.
In case the petitioner disagrees
with the petition settlement result or does not receive any response from the
procuring entity upon the expiration of the time limit specified in this Point,
the petitioner shall be entitled to send their petition to the competent person
through the standing section within 05 working days from the prescribed
deadline for petition settlement or from the day on which the procuring
entity’s response is received. The competent person shall issue a decision on
settlement of the petition for review of the investor selection result within
10 working days from the receipt of the written opinion from the petition
settlement advisory board;
b) The investor (petitioner) shall
send their petition to the competent person through the standing section within
10 days from the day on which the investor selection result is published. The
competent person shall issue a decision on settlement of the petition for
review of the investor selection result within 10 working days from the receipt
of the written opinion from the petition settlement advisory board.
3. The time limit for settling a
petition prescribed in Clause 1 and Clause 2 of this Article starts on the day
on which the administrative section of the person in charge of settling the
petition receives the petition or when the petition is sent through VNEPS.
4. Where necessary, the petition
settlement advisory board shall, based on the received petition, request the
competent person to consider suspending the signing or execution of the
contract. If the request of the petition settlement advisory board is accepted,
within 10 working days from its receipt, the competent person shall issue a
written notice of suspension of contract signing or execution in which the
suspension duration must be clearly stated.
5. A written response shall contain
conclusions on the issue in the petition. If the petition is found to be true,
remedial measures and implementation time limit (if any) must also be specified
in the written response. The petitioner shall have their paid petition
settlement fee reimbursed. If the petition is found to be false, the written
response shall contain detailed explanations. In this case, the paid petition
settlement fee shall not be reimbursed.
6. If the petitioner disagrees with
the decision on petition settlement issued by the competent person or the
procuring entity, they shall be entitled to initiate Court proceedings.
Article 93.
Composition, responsibilities and operation of petition settlement advisory
board
1. The petition settlement advisory
board (hereinafter referred to as “advisory board”) includes:
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b) Advisory boards established by
Ministers or heads of ministerial agencies, Governmental agencies or other
central-government agencies;
c) Advisory boards established by
Directors of Provincial Departments of Planning and Investment.
An advisory board shall be
established within 05 working days from the receipt of a petition from the
bidder or investor.
2. Composition and standing section
of the advisory board:
a) An advisory board is composed of
a chairperson, deputy chairperson(s) (if deemed necessary) and other members
who are representatives of the competent person and relevant authorities, and
may also be representatives of trade associations, experts and/or scientists.
The advisory board shall not have
any member who is a family relative, as defined in the Law on enterprises, of
the petitioner, any member of the expert team or appraising team or the person
approving the contractor/investor selection result;
b) The chairperson of the advisory
board specified in Point a Clause 1 of this Article is a representative of the
Ministry of Planning and Investment of Vietnam. The chairperson of the advisory
board established by an authority mentioned in Point b Clause 1 of this Article
is a representative of its affiliated unit tasked with managing bidding
activities. The chairperson of the advisory board specified in Point c Clause 1
of this Article is a representative of the Provincial Department of Planning
and Investment;
c) The standing section is the unit
tasked with managing bidding activities. Its members do not include any member
of the expert team or appraising team of the package or project. The standing
section shall perform administrative tasks assigned by the chairperson of the
advisory board; receive and manage fees paid by petitioners.
3. Responsibilities of an advisory
board:
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b) An advisory board specified in
Point b Clause 1 of this Article shall give advice on settlement of petitions
relevant to all packages of projects, procurement cost estimates or investment
projects which are subject to the jurisdiction of, or whose competent person
is, the Minister or head of ministerial agency, Governmental agency or another
central-government agency establishing that advisory board, except the packages
and projects specified in Point a of this Clause;
c) An advisory board specified in
Point c Clause 1 of this Article shall give advice on settlement of petitions
relevant to all packages of projects, procurement cost estimates or investment
projects located in the province or central-affiliated city, except the
packages and projects specified in Points a and b of this Clause.
4. Operation of an advisory board:
a) The advisory board shall work on
a case-by-case basis and on the principle of collectives, and make decision
under the majority rule. All members have the right to express and are legally
responsible for their opinions;
b) The advisory board shall have
the right to request the bidder, investor, employer, procuring entity and
relevant authorities to provide information concerning the package, project or
investment project and other information necessary for performing its tasks;
c) The competent person must be
provided with the petition settlement result within 25 days, for petitions
filed by bidders, or 35 days, for petitions filed by investors, from the
establishment date of the advisory board.
Article 94.
Right to file a lawsuit and request the Court to grant interim injunctions
1. Initiating Court proceedings
shall comply with regulations of the Code of Civil Procedures.
2. When filing a lawsuit or while
the Court proceedings are running, concerned parties shall have the right to
request the Court to suspend the bid closing; approval of the shortlist;
approval of the contractor/investor selection result; signing of the contract;
execution of the contract and issue other interim injunctions in accordance
with regulations of law.
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IMPLEMENTATION
Article 95.
Effect
1. This Law comes into force from
January 01, 2024.
2. The Law on Bidding No.
43/2013/QH13, as amended by the Law No. 03/2016/QH14, the Law No. 04/2017/QH14,
the Law No. 40/2019/QH14, the Law No. 64/2020/QH14 and the Law No.
03/2022/QH15, (hereinafter referred to as “Law on Bidding No.
43/2013/QH13") shall cease to have effect from the effective date of this
Law, except provisions of Article 96 of this Law.
3. Contracts signed according to
the provisions of Point a Clause 1 Article 55 of this Law shall be valid for a
validity period specified therein which shall not exceed 05 years from the
effective date of this Law.
Article 96.
Transition
1. In case the EOI requests,
prequalification documents, bidding documents or RFPs for packages have been
approved and issued before the effective date of this Law, the shortlisting,
contractor selection, signing of contract and management of contract
performance shall continue to be carried out in accordance with the Law on
Bidding No. 43/2013/QH13 and legislative documents elaborating and providing
guidelines on this Law.
2. In case bidding documents for an
investment project have been approved and issued before the effective date of
this Law, the investor selection, signing of contract and management of
contract performance shall continue to be carried out in accordance with the
Law on Bidding No. 43/2013/QH13 and legislative documents elaborating and
providing guidelines on this Law.
3. From January 01, 2024 to the
effective date of the amended Law on land, the selection of investors for
executing investment projects with land use shall continue to be carried out in
accordance with the Law on Bidding No. 43/2013/QH13 and legislative documents
elaborating and providing guidelines on this Law.
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This Law is ratified by the 15th
National Assembly of the Socialist Republic of Vietnam during its 5th
session held on June 23, 2023.
CHAIRMAN
OF THE NATIONAL ASSEMBLY
Vuong Dinh Hue