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NATIONAL
ASSEMBLY
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SOCIALIST REPUBLIC
OF VIET NAM
Independence - Freedom - Happiness
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Law No. 43/2013/QH13
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Hanoi, November
26,2013
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LAW
ON PROCUREMENT
Pursuant to the
Constitution of the Socialist Republic of Vietnam;
National
Assembly promulgates the Law on Procurement.
Chapter 1.
GENERAL PROVISIONS
Article 1. Scope of regulation
This Law provides
for state management of procurement; responsibilities of
concerned parties and activities of procurement,
including:
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a) Projects on
development investment financed by state of regulatory agencies, political
organizations, socio-political organizations, professional-socio-political
organizations, socio-professional organizations, social organizations, units of
People’s armed forces, and public non-business units;
b) Projects on
development investment of state-owned enterprises;
c) Projects on
development investment other than cases defined at point a and point b of this
Clause which are financed by state, state-owned enterprises with level equal to
30% or more or less than 30% but more than 500 billion VND in total investment
of project.
d) Procurement
financed by state aiming to maintain regular activities of regulatory agencies, political organizations, socio-political
organizations, socio-political-occupational organizations, social
organizations, socio-occupational organizations and units of the People’s armed
forces, and public non-business units;
dd) Procurement
financed by state aiming to supply products and services in serve of public
purpose;
e) Purchase of
national reserve goods financed by state;
g) Purchase of
drugs, medical supplies financed state; medical insurance fund, revenues from
services of medical examination and treatment and other lawful revenues of
public health facilities;
2. Selection of
providers of consulting services, non-consulting services, goods on Vietnam’s
territory for implementation of overseas direct-investment projects of
Vietnamese enterprises which are financed by state with level equal to 30% or
more or less than 30% but more than 500 billion VND in total investment of
project.
3. Selection of
investors to perform the investment projects in form of public-private
partnership (PPP), investment projects with land use;
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Article 2. Subjects of application
1. Organizations
and individuals that participate in or related to activities of procurement defined in Article 1 of this Law.
2. Organizations
and individuals that have activities of procurement not
within the governing scope of this Law may choose to apply this Law. In case of
choosing to apply, organizations and individuals must observe the concerned
provisions of this law and ensure fairness, transparency and economic
efficiency.
Article 3. Application of Law on procurement, International treaties
and international agreements
1. Procurement activities must comply with the provisions of this Law and other
related laws.
2. In case of
selecting by bidding for provision of raw materials, fuel, materials, supplies,
consulting services, non-consulting services in order to ensure the continuity
for production and business and procurement with the aim to maintain regular
activities of state-owned enterprises; performance of packages of investment
projects in the form of public-private partnership, investment projects with
land use of the selected investors, enterprises must promulgate regulations on
choosing bidders for unified application in enterprises on the basis of
ensuring objective of fairness, transparency, and economic efficiency.
3. For selection
of bidders/investors for projects financed by official development assistance
(ODA) capital, concessional loans arising from International treaties,
international agreements between Vietnam and donors, international treaties,
international agreements shall be applied.
4. If
International treaties to which the Socialist Republic of Vietnam is a
contracting party have provisions on selection of bidders and investors
different from this Law, such International treaties shall prevail.
Article 4. Interpretation of terms
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1. Bid Security
means the bidder or investor provides security by one of the security
methods of paying a deposit, escrow or providing a letter of guarantee of
credit institutions or foreign banks’ branches which are established under
Vietnamese law in order to secure the liability in the bid participation of
bidder or investor for a definite term as stipulated in the Bid Documents,
Request for Proposals.
2. Performance
Security means the bidder or investor provides security by one of the
security methods of paying a deposit, escrow or providing a letter of guarantee
of credit institutions or foreign banks’ branches which are established under
Vietnamese law in order to secure the liability of the Contract performance by
bidder or investor.
3. Procuring
Entity means a professional agency or organization with sufficient
capability to perform bidding activities, including:
a) Investor or
organization which is decided for establishment or selected by the investor;
b) Budget estimate
unit directly using capital source for recurrent procurement;
c) The centralized procurement unit;
d) Competent
regulatory agencies or the affiliated organizations which are selected by the
competent regulatory agencies.
4. Investor
means the entity owning the financing capital or the entity assigned
responsibility to represent such owner, or the borrower directly managing and
implementing project.
5. Digital
certificate means electronic certificate granted by providers of digital
signature certificate service in order to perform online bidding on National
E-procurement System.
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7. Short list
means list of bidders/investors winning prequalification for competitive
bidding with prequalification; list of bidders invited for bid participation
for limited bidding; list of bidders with EOI responses meeting requirements of
EOI requests.
8. Consulting
service means one or a number of activities including: preparation, assessment of the planning report, collective development
diagram, architecture; survey and making of pre-feasibility study report,
feasibility study report, environmental impact assessment report; survey and
making of engineering, estimate; preparation of EOI requests, Prequalification
Document, Bids, Requests for Proposals; assessment of EOI responses,
Prequalification Application, Bidding Documents,
Proposals; verification, appraisal; supervision; management of project;
arranging finance; audit, training, transfer of technologies; other consulting
services.
9. Non-consulting
service means one or a number of activities including: logistics, insurance, advertisement, installation not belong to Clause
45 of this Article, pre-acceptance test and operation run, holding of training,
maintenance, drawing maps and other activities not being consulting services
defined at clause 8 of this Article.
10. Project
management enterprise means enterprise which is established by investor for
performance of investment project in form of private-public partnership or
investment project with land use.
11. Development investment projects (hereinafter
collectively referred to as projects) include:
programs or projects on investment in new construction; projects on renovation,
upgrading, expansion of projects invested in construction; projects on
procurement of assets, including equipment, machinery without installation;
projects on repair, upgrading of assets, equipment; projects, schemes on
planning; projects, subjects on scientific research, technology development,
application of technologies, technical support, basic survey; other programs,
projects, or schemes on development investment.
12. Procurement
means the process of selecting a bidder to sign and implement
contract of provision of consulting services, non-consulting services,
procurement of goods, works; selecting an investor to sign and implement
contract of investment project in form of public-private partnership,
investment project with land use on the basis of ensuring competitiveness,
fairness, transparency and economic efficiency.
13. Online
procurement means bidding which is performed via use
of National E-procurement System.
14. International
bidding means bidding in which both foreign and domestic bidders and
investors may participate.
15. Domestic
bidding means bidding in which only domestic bidders and investors may
participate.
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17. Bid price
means the price stated by a bidder in application for bid participation,
quotation, including all costs for performance of package as required by Bids,
Request for Proposals.
18. Evaluated bid
price means a bid price
after the error correction and adjustment of deviation as required in Bids, less the value of discount
(if any), plus elements to convert on a same ground for whole use life cycle of
goods and works. Evaluated bid price is used to rank
Bidding Documents for packages of procurement of goods, works and the mixed
packages applying form of competitive bidding or limited
bidding.
19. Proposed
successful bid means bid price of the bidder who are proposed to win bid
after the errors have been rectified and discrepancies have been adjusted as
required by the Bids, Requests for Proposals, minus the value of discount (if
any).
20. Successful
bid means the price approved in the results of selection of
bidder.
21. Contract
Price means the price stated in written contract as the basis for advance
payment, payment, liquidation and finalization of contract.
22. Package
means a part of, or entire project, estimate of procurement;
a package may comprise items for the procurement of
similar goods for a number of projects or a one-off procurement, procurement
for a period in recurrent procurement, centralized procurement of goods.
23. Mixed
package means a package comprising of engineering and
goods provision (EP); engineering, works (EC); goods provision and works (PC);
engineering, goods provision, works (EPC); making project, engineering, goods
provision, works (turnkey).
24. Package with small scale means a package with price in limitation prescribed by the Government.
25. Goods include
machinery, equipment, raw materials, fuel, materials, supplies,
accessories; consumables; drugs, medical supplies used for medical
establishment.
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27. EOI
requests, Prequalification Documents mean all documents including
requirements on qualifications of bidders/investors as the basis for the
Procuring Entity to select list of bidders/investors winning prequalification,
list of bidders with EOI responses meeting requirements of EOI requests.
28. EOI
responses, Applications mean all documents which are made by
bidders/investors and submitted to the Procuring Entity at the requirements of
EOI requests, Prequalification Documents.
29. Bid
Documents mean all of the documents used for open or limited bidding
stipulating the requirements for a project, package and
providing the legal basis for bidders/investors to prepare their Bids and for
the Procuring Entity to assess Bids aimed at selection of a winning
bidder/investor.
30. Request for
Proposals mean all of the documents used for Direct Contracting, Direct
Procurement, Shopping Method including the requirements for a project, package and providing the basis for bidders/investors to prepare their
Proposals and for the Procuring Entity to assess Proposals aimed at selection
of a winning bidder/investor.
31. Bids,
Proposals mean all documents which are made by bidders/investors and
submitted to the Procuring Entity at the requirements of the Bidding Documents,
Requests for Proposals.
32. Contract means
a document signed between the investor and the selected
bidder in performance of package under project; between Procuring Entity and
the selected bidder in recurrent procurement; between the
centralized-procurement units or unit with procurement
need with the selected bidder in the centralized procurement; between competent
regulatory body with the selected investor or between the competent regulatory
body and the selected investor and project enterprise in the investor
selection.
33. Protest
means a request from any bidder/investor participating in bidding for
reconsideration of the results of selection of bidder, results of selection of
investor and regarding any other relevant matter during the process or
selecting contractor, investor when such bidder or investor considers his
rights and interests have been adversely affected.
34. Competent
person means person who decides on the approval of project or person who
decides on procurement as prescribed by law. In case of selection of investor,
the competent person means the head of competent regulatory body as prescribed
by law.
35. Contractor means
a bidder liable for its participation in bidding which gives its name to a
tender, and which directly signs in and implements a contract if selected.
Contractor may be an individual contractor or JV’s Party.
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37. Foreign
Contractor means an organization established under foreign law or an
individual of foreign nationality making a bid in Vietnam.
38. Domestic
Contractor means an organization established under Vietnamese law or
individual of Vietnamese nationality making a bid.
39. Public
products and services mean the essential products and services for
economic-social life of country, population communities or assurance of
national defense and security which the State must organize implementation in
the fields: health, education - training, culture,
information, communications, science – technology, natural resources -
environment, transport and other fields as prescribed by Government. Public
products and services include the public-interest products and services, and
services for public career.
40. Appraisal
in the course of selecting contractor or investor means check and
assessment plan on selecting bidders/investors, EOI requests, Prequalification
Documents, Bidding Documents, Request for Proposals and results of invitation
for expression of interest, results of prequalification, results of selection
of bidder/ investor as the basis for the authorized person to consider and make
a decision on approval in accordance with this Law.
41. Deadline
for submission of bids means the expiry time of receiving EOI responses,
Applications, Bids, Proposals.
42. Validity period of Bids, Proposals means number of days stipulated in Bid, Request for Proposals and
calculated from the deadline for submission of bids to the end effect day as
prescribed in Bidding Documents, Requests for Proposals. From the deadline for
submission of bids until ending of 24 hours of day of deadline for submisison of
bids is calculated as 01 day.
43. Expert group includes individuals with
qualifications set up by the Procuring Entity or the bid consultancy unit in
order to assess EOI responses, Applications, Bids, Proposals and perform other
tasks during selection of bidders/investors.
44. State
capital includes state budget funds; national bonds, Governmental bonds,
bonds of local authorities; official development assistance capital,
concessional loans from donors; fund for development of non-business
activities; credit facilities for investment and development of the State;
credit facilities guaranteed by the Government, loans guaranteed by assets of
state; investment and development funds of State-owned enterprises, and value
of land-use right.
45. Works include construction and installation of works and work items.
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1. A bidder or
investor being an organization shall be deemed to be eligible when it satisfies
the following conditions:
a) Having
registration for establishment and operation issued by the competent authority
of country where it is operating;
b) Keeping
independent accounting records;
c) Not
undergoing dissolution process, are not thrown into bankruptcy, and do not
incur bad debts as prescribed by law.
d) Having
registered on National E-procurement System;
dd) Ensuring
the competitiveness in bidding as prescribed in Article 6 hereof;
e) Not
being banned from bidding;
g) Its name is
stated in short list for case where the short list has been selected;
h) Being in
a joint venture with domestic contractors or employment of domestic
subcontractors in case of a foreign contractor making an international bidding
in Vietnam, unless the domestic contractor cannot acquire the competencies
necessary to perform any portion of the package.
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a) Having full legal
capacity as per the law of the country of
which such individual is a citizen;
b) Having an
appropriate professional certificate as prescribed by law;
c) Having lawful
registration for operation as prescribed by law;
d) Not
facing a criminal prosecution;
d) Not
being banned from bidding.
3. Bidders and
investors with eligibility as prescribed in Clause 1 and Clause 2 of this
Article may make a bid as an
independent bidder/investor or in a joint venture; in case of joint venture, it must have written
agreement among members, in which clearly stating responsibilities of
the leading JV's Party and general responsibilities, particular responsibilities of each JV’s Party.
Article 6. Ensuring competitiveness in bidding
1. Bidders
submitting EOI responses, Applications must be legally and financially independent with consulting bidders
for making EOI requests, Prequalification Documents; assessment of EOI
responses, Applications; appraisal for results of invitation for interest,
results of prequalification.
2. Bidders making
a bid must be legally and financially independent with the following parties:
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b) The consulting
bidders for the making, verification, and appraisal of dossiers of design and
estimate; the making, verification of Bidding Documents, Request for Proposals;
assessment of Bids, Proposals; appraisal of results of selecting bidder of such
package;
c) Other bidders
that participate in same package for limited bidding.
3. A consulting
bidder who supervises execution of a contract must be
legally and financially independent from the bidder who
performs the contract, the consulting bidder who verifies such package.
4. Investors
making a bid must be legally and financially independent
with the following parties:
a) The consulting
bidders for bidding for investment projects in form of public-private
partnership (PPP), investment projects with land use, until day of signing the
project contract;
b) The consulting
bidder that verifies the investment project in form of public-private
partnership (PPP), investment project with land use, until day of signing the
project contract;
c) Competent
regulatory agencies, and the Procuring Entity.
5. The Government
shall elaborate this Article.
Article 7. Conditions for issuing the Bidding Documents, Request for
Proposals
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a) The approved
plan on selection of bidders;
b) The approved
Bidding Documents, Request for Proposals include contents of requirements on
procedures for bidding, Bid Data Sheet; criteria for evaluation, forms of
bidding, volume table of bid invitation; requirements on progress, techniques,
quality; general conditions, particular conditions of contracts, model contracts
and other necessary contents;
c) Invitation to
Bid, Notice of Proposed Procurement or short list must be
published as prescribed by this Law;
d) Capital sources
for package are allocated under the time for performance
of package;
dd) Content, list of
goods, services and estimates already been approved by competent person in case
of recurrent procurement and centralized procurement;
e) Ensuring the
handing over of construction ground under time for performance of package.
2. Bidding
Documents, Request for Proposals of a project may be only issued to select
investors when having full the following conditions:
a) Project under
list of projects announced by Ministries, Ministerial agencies, Governmental
agencies, the People’s Committees of provinces or central-affiliated
cities as prescribed by law or projects proposed by investors;
b) The approved
plan on selection of bidders;
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d) Invitation to
Bid, or short list must be published as prescribed by this Law.
Article 8. Information of bidding
1. All information
must be published on National E-procurement System, bidding newspapers
including:
a) The plan on
selection of bidders/investors;
b) Notice of
invitation for expression of interest, notice of invitation for
prequalification;
c) Notice
of Proposed Procurement, Invitation to Bid;
d) Short list;
dd) Results of
selection of bidders/investors;
e) Results of bid
opening for online bidding;
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h) Legal documents
on bidding;
i) List of
investment projects in the form of public-private partnership, projects with
land use;
k) The database of
bidders/investors, bidding experts, lecturers of bidding, and establishments of
training on bidding;
l) Other relevant
information.
2. The information
defined at Clause 1 this Article is encouraged to publish on websites of
Ministries, sectors and localities or on other means of mass media.
3. The Government
shall elaborate this Article.
Article 9. Language of bid
Language to be
used in bidding shall be Vietnamese in the case of domestic bidding, and
English or Vietnamese and English in the case of international bidding.
Article 10. Currencies of bid
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2. For
international bidding:
a) Bidding
Documents, Request for Proposals must state the currency for bidding in Bids,
Proposals but not exceeding three currencies; for a specific work item, only
give bid quotation in a currency kind;
b) In case where
Bidding Documents, Request for Proposals stipulate that bidders may have bid
quotation in two or three currencies when assessing Bids, Proposals, quotation
must be converted into a currency kind; if having Vietnam dong used in such
currencies, quotation must be converted into Vietnam dong. Bidding Documents,
Request for Proposals must stipulate the convertible currency, time and bases
to determine the exchange rate for converting;
c) For domestic
costs involving performance of package, bidders must have a bid quotation in Vietnam dong;
d) For overseas
costs involving performance of package, bidders may have a bid quotation in foreign currency.
Article 11. Bid Security
1. Bid Security
shall apply in the following cases:
a) Competitive
bidding, limited bidding, and Shopping Method for procurement of non-consulting
service provision, goods procurement, works, and mixed package;
b) Competitive
bidding and Direct Contracting for selection of investor.
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3. Value of Bid
Security is stipulated as follows:
a) For selection
of bidder, value of Bid Security is stipulated in Bidding Documents, Request
for Proposals under a defined amount of between 1% and 3% of package price
basing on the scale and nature of each particular package;
b) For selection
of investor, value of Bid Security is stipulated in Bidding Documents, Request
for Proposals under a defined amount of between 0.5% and 1.5% of total
investment basing on the scale and nature of each particular project.
4. The validity period of Bid Security is stipulated in Bid, Request for Proposals equal to
the validity period of the Bids, Proposals plus thirty (30) days.
5. In case of extending the period of validity of Bids, Proposals after
deadline for submission of bids, and the Procuring Entity must require
bidders/investors to extend the period of validity of their Bid Security for an
equivalent term. In such a case, bidders/investors must extend the period of
validity of their Bid Security and not be permitted to change the contents of
their submitted Bids, Proposals. If any bidder or investor refuses to extend
the period of validity, his Bid, Proposal will be no valid longer and be
rejected, the party calling for tenders shall return or release the biding
guarantee to the bidder/investor within 20 days, since the Procuring Entity
receives a written refusal for extension.
6. If a joint
venture makes a bid, every JV's Party may
perform separate Bid Security or make agreement in which one member will be
responsible for implementation of its Bid Security or for Bid Security of JV's
Parties. Total value of Bid Security is not lower than the value
required in Bidding Documents, Request for Proposals. If any JV's Party violates Clause 8 of this Article, Bid Security
of all JV's Parties will not be returned.
7. The Procuring
Entity shall return or release Bid Security to bidders or investors who are not
selected under the duration specified in Bid, Request for Proposals but not
exceeding 20 days, after the day of approving result of selection of bidder/
investor. For the selected bidder/investor, his Bid Security will be returned
or released after he provides a Performance Security as prescribed in Article
66 and Article 72 of this Law.
8. A Bid Security
shall not be returned in the following cases:
a) The bidder or investor withdraws Bid, Proposal after deadline for submission
of bids when the Bid, Proposal still remains valid;
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c) The bidder or investor fails to provide a Performance Security as prescribed
at Article 66 and Article 72 of this Law;
d) The bidder
fails or refuses to negotiate and finalize the contract, within a period of
twenty (20) days from the date of receipt of notification of winning bid from
the Procuring Entity or has negotiated and finalized the contract but refuses
to sign the contract except for force majeure cases;
dd) The investor
fails or refuses to negotiate and finalize the contract, within a period of
thirty (30) days from the date of receipt of notification of winning bid from
the Procuring Entity or has negotiated and finalized the contract but refuses
to sign the contract except for force majeure cases.
Article 12. Time limits applicable during selection of
bidders/investors
1. Time limits
applicable during selection of bidders:
a) The maximum
time for approval of plan on bidder selection shall be 05 working days after
receiving report on appraisal;
b) EOI requests,
Prequalification Documents, Bidding Documents, Request for Proposals shall be
issued after 03 working days from the first day of publishing notice of
invitation for submission of EOI responses, notice of prequalification
invitation, Invitation to Bid, Notice of Proposed Procurement, sending of Invitation to Bid before deadline for submission of bids;
c) Duration for
preparing EOI responses shall be at least 10 days for domestic bidding and 20
days for international bidding, from the first day when EOI requests are issued
until deadline for submission of bids; Bidders must submit EOI responses before
deadline for submission of bids;
d) Duration for
preparing Applications shall be at least 10 days for domestic bidding and 20
days for international bidding, from the first day when Prequalification
Documents are issued until deadline for submission of bids. Bidders must submit
Applications before deadline for submission of bids;
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e) Duration for
preparing the Bids shall be at least 20 days for domestic bidding and 40 days
for international bidding, from the first day when Bidding Documents are issued
until deadline for submission of bids. Bidders must submit the Bids before
deadline for submission of bids;
g) The maximum
time allowed for assessment of EOI responses, Applications shall be 20 days,
for Proposals shall be 30 days, for Bids shall be 45 days in the case of
domestic bidding, as from the deadline for submission of bids until the date
the Procuring Entity submits to investor for approving the results of
contractor selection. The maximum time allowed for assessment of EOI responses,
Applications shall be 30 days, for Proposals shall be 40 days, for Bids shall
be 60 days in the case of international bidding, as from the deadline for
submission of bids until the date the Procuring Entity submits to investor for
approving the results of contractor selection. In necessary case, time for
assessment of dossiers of Bid, Proposal may be prolonged but not exceed 20 days
and must ensure time for performance of project;
h) The maximum
time for appraisal shall be 20 days for each content of appraisal: plan on
selection of bidder, EOI requests, Prequalification Documents, Bidding
Documents, Request for Proposals, result of selection of bidder after receiving
full the submitted documents;
i) The maximum
time for approving EOI requests, Prequalification Documents, Request for
Proposals, Bidding Documents shall be 10 days, as from the date of receiving
the written request for approving EOI requests, Prequalification Documents,
Request for Proposals, Bidding Documents of the Procuring Entity or the
appraisal report in case of having appraisal requirement;
k) The maximum
time for approving or giving the handling opinion on result of bidder selection
shall be 10 days, as from the date of receiving the written request for
approving the result of bidder selection of the Procuring Entity or the appraisal
report in case of having appraisal requirement;
l) The maximum
period of validity of a Bid, Proposal shall be 180 days as from the deadline
for submisison of bids; in case of package with bid scale,
complex nature, package under two-stage bidding method,
the maximum period of validity of a Bid shall be 210 days, as from the deadline
for submisison of bids. In necessary cases a bidder may request extension of
the period of validity of his Bid, Proposals, and must ensure progress of
project;
m) Time for
sending a document to modify a Bid to bidders already received Bid shall be 10
days minimally for domestic bidding and 15 days minimally for international
bidding before day of deadline for submisison of bids; for modification of
dossier of invitation for expression of interest, Prequalification Document,
Request for Proposals, it shall be 03 working days minimally before day of
deadline for submisison of bids. If time for sending a document to modify
dossiers fail to meet provision at this point, the Procuring Entity shall
perform extension of deadline for submisison of bids time respectively in order
to ensure provision on time for sending a document to modify a dossier of
invitation for expression of interest, dossier of prequalification invitation, Bid
or Request for Proposals;
n) Time-limit for
sending notice of contractor selection result to bidders bidding via post,
facsimile shall be 05 working days, as from the date of approving the result of
bidder selection.
2. The Government
shall elaborate Time limits applicable during selection of bidder for packages
with small scale, packages with participation of community; Time limits
applicable during selection of investor; Time limits applicable during
selection of bidder or investor via network.
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1. Expenses associated with the process of selection of bidder include:
a) Expenses associated with preparation of EOI responses, Applications,
Bids, Proposals and participation in bidding shall be borne by bidders;
b) Expenses associated with process of bidder selection shall be included
in total investment or estimated budget of procurement;
c) EOI requests,
Prequalification Documents shall be issued to bidders free of charge;
d) Bidding
Documents, Requests for Proposals shall be sold or issued free of charge
to bidders.
2. Expenses associated with the process of selection of investor include:
a) Expenses associated with preparation of Applications, Bids, Proposals
and participation in bidding shall be borne by investors;
b) Expenses associated with process of investor selection shall be financed
by state, other lawful capital sources and included in total investment;
c) The investor
who is selected to perform project must pay expenses associated with process of
investor selection;
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3. Expenses associated with the process of online bidding include:
a) Expenses associated with participation in National E-procurement System,
expenses associated with publishing information of bidding and other expenses;
b) Expenses associated with submission of a bid, organization of bid as
prescribed at Clause 1 and Clause 2 of this Article.
4. The Government
shall elaborate this Article.
Article 14. Preferential treatment in selection of bidders
1. Bidders shall
be enjoyed preferential treatment when participating in domestic or
international bidding to supply goods of which costs for domestic production
occupy 25% or more.
2. Entities
entitled to preferential treatment in international bidding to supply the
consulting services, non-consulting services, construction include:
a) Domestic
bidders with individual status or in a joint
venture;
b) Foreign bidders
in joint venture with domestic bidders in which the
domestic bidders take over from 25% or more of work value of package.
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a) Bidders
employing female laborers of 25 % or more of laborer quantity;
b) Bidders
employing laborers being invalids, disable people of 25 % or more of laborer
quantity;
c) Bidders being
small-size enterprises.
4. Preferential
treatment is calculated to apply during assessing the Bids, Proposals in order
to compare, rank the Bids, Proposals according to one of the following methods:
a) Plus more
points into the assessment point of bidders belonging to entities entitled to
preferential treatment;
b) Plus more
amount into bid price or assessment price of bidders not belonging to entities
entitled to preferential treatment.
5. Entities and
content or preferential treatment in selection of bidder specified in this
Article shall not apply in case where International treaties in which the
Socialist Republic of Vietnam is a contracting party or international
agreements between Vietnam and donors otherwise provides for preferential
treatment in selection of bidder.
6. The Government
shall elaborate this Article.
Article 15. International bidding
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a) The donor of package requests for holding international bidding;
b) Packages for
procurement of goods where the goods are not yet able to be manufactured
domestically or able to be manufactured but fail to meet technical, quality or
price requirements. In case of common goods, already been imported and offered
for sale in Vietnam, do not organize international bidding;
c) Packages of
providing consulting service, non-consulting service, works, mixture provision
which domestic bidders are not able to satisfy requirements of package performance.
2. Investment
projects in form of public-private partnership (PPP), investment projects with
land use, except for cases limited investment as prescribed by law on
investment.
3. The Government
shall elaborate this Article.
Article 16. Conditions for individuals to participate in bidding
activities
1. Individuals
participating in bidding activities must possess certificate of training on
bidding and have professional expertise, capability, experiences, language
appropriate to the requirements of the package, project,
except for individuals belonging to bidders/investors.
2. Individuals who
directly participate in making EOI requests, Prequalification Documents,
Bidding Documents, Requests for Proposals; assessment of EOI responses,
Applications, Bids, Proposals of professional bidding organizations,
enterprises, units operating in consulting for bidding, professional management
board of projects must have certificate of practicing on bidding operation.
Article 17. In case of bidding cancellation
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2. Alteration of
the objectives or scope of the investment stated in the Bid Documents, Request
for Proposals.
3. The Bid
Documents, Request for Proposals failed to comply with legislation on bidding
or other relevant legislation that lead to the failure of the selected bidder
or investor to meet requirements to perform package,
project.
4. There is
evidence showing the handing, taking, brokerage of bribes, conclusion with each
other in bidding, fraud, taking advantage of positions, powers aiming to
interfere illegally in bidding activities that lead to the falsified result of
selecting the bidder/investor.
Article 18. Responsibilities upon bidding cancellation
Organizations and
individuals infringing law on procurement that lead to bidding cancellation as
prescribed in Clause 3 and Clause 4 Article 17 of this Law must compensate
expenses associated with related parties and be handled as prescribed by law.
Article 19. Training and capacity building on bidding
1. Facilities are
entitled to hold activities of training and capacity building on bidding for
individuals specified in Article 16 of this Law upon satisfying the following
conditions:
a) Be established
and operate as prescribed by law;
b) Have material
facilities, documents for teaching which meet standards as prescribed by
regulatory bodies on bidding activities;
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d) Have name in
list of facilities of bidding training on National E-procurement System.
2. Facilities of
bidding training have the following responsibilities:
a) Ensure quality
of training and capacity building; supply information on their training
facilities to the regulatory bodies on bidding operation;
b) Perform
activities of training and capacity building on the basis of framework programs
on training in bidding and grant the certificates of bidding for learners in
accordance with regulations;
c) Store all
dossiers of courses of training and capacity building in bidding which are held
by them in accordance with regulations;
d) Conduct annual
reports and reports at the request of regulatory bodies of bidding operation
about situation of training and capacity building in bidding.
3. The Government
shall elaborate this Article.
Chapter 2.
FORMS AND METHODS OF SELECTION OF
BIDDERS/INVESTORS AND PROFESSIONAL BIDDING ORGANIZATIONS
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Article 20. Competitive bidding
1. Competitive
bidding is form of selection of bidders/investors in which the number of
participating tenders, investors shall be unrestricted.
2. Competitive
bidding is applied to packages, projects under Scope of regulation of this Law,
except for cases specified in Articles 21, 22, 23, 24, 25, 26 and 27 of this
Law.
Article 21. Limited bidding
Limited bidding
shall apply in case where a package has highly technical
requirements or technical peculiarities for which only a limited number of
bidders are capable of satisfying the requirements of the package.
Article 22. Direct Contracting
1. Direct
Contracting for contractor shall apply in the following cases:
a) Packages need
to be performed to immediately overcome or timely handle consequences caused by
force majeure event; packages need to be performed to ensure national secret;
packages need to be carried out immediately to not cause damages directly to
life, health and assets of population communities on geographical areas or to
not severely affect to adjacent projects; procurement of purchasing drugs,
chemicals, supplies, and health equipment in order to carry out the work of
prevention and fighting of epidemics in urgent cases;
b) Urgent packages
need to be carried out aiming to protect national sovereignty, national
borders, and islands;
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d) Packages
provide consulting service for making feasible study reports, construction
designs which have been appointed for authors of designs of works architectures
who won in selection or are selected when authors have full conditions and
capability in accordance with regulations; packages of construction of statues,
reliefs, monumental paintings, art works in association with author right from
the creation stage to stage of construction of the works;
dd) Packages of
relocation of technical infrastructure works managed directly by a specialized
unit in order to serve the work of ground clearance; packages of detection and
disposal of bombs, mines, explosives in order to prepare construction of works;
e) Packages of
providing public products and services, packages with package price in the
limitation allowed to apply Direct Contracting as prescribed by Government in
line with economic-social conditions in each period.
2. Implementation
of Direct Contracting for packages defined at points b, c, d, dd and e Clause 1
this Article must satisfy all the following conditions:
a) Having an
approved decision on investment, except for consulting packages for project
preparation;
b) Having an
approved plan on selection of bidders;
c) Having been
allocated capital at the request of the time for performance of procurement;
d) Having an
approved estimate in accordance with regulation, except for case of EP, EC, EPC
packages, turnkey packages;
dd) Having time
for implementation of Direct Contracting as from the day of approving Request
for Proposals to day of signing contract not exceeding 45 days, case of
packages with big scale, complex content not exceeding 90 days;
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3. For packages
under cases of Direct Contracting specified at Clause 1 this Article and
satisfy conditions for Direct Contracting specified at Clause 2 this Article
but still able to apply other forms of selection of bidder defined at Articles
20, 21, 23 and 24 of this Law, encouraging to apply other forms of selection of
bidder.
4. Direct
Contracting for investor shall apply in the following cases:
a) There is only
one investor registering bidding;
b) There is only
one investor able to perform due to concerning intellectual property,
commercial secret, technologies or capital arrangement;
c) Investor
proposing project satisfy requirements of implementation project with
feasibility and highest efficiency in accordance with regulations of
Government.
Article 23. Shopping Method
1. Shopping Method
shall apply to packages with value in limitation as prescribed by Government
and belonging to one of the following cases:
a) Package of procurement of non-consulting services which
are commonly used and simple;
b) Package of procurement of goods which are commonly used goods, readily
available on the market, have standardized technical features and are similar
to each other in quality;
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2. Shopping Method
is performed when satisfying all following conditions:
a) Having an
approved plan on selection of bidders;
b) Having an
approved estimate in accordance with regulation;
c) Having been
allocated capital at the request of the time for performance of package.
Article 24. Direct Procurement
1. Direct
Procurement shall apply to packages of procurement of similar goods of a same
project, estimated budget of procurement or of other project, estimate of
procurement.
2. Direct
Procurement shall be performed when satisfying all following conditions:
a) The contractor
has won bidding through open or limited bidding and has signed performance
contract of previous package;
b) The
package has similar content, nature, and scale less than 130% of package signed contract previously;
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d) Time-limit from
signing contract of previous package to day of approving
result of Direct Procurement does not exceed 12 months.
3. If contractor
performed the previous contract is not able to continue
performance of package of Direct Procurement, form of Direct Procurement shall
be applied to other contractor if such contractor satisfies requirements on
capability, experiences, techniques and price according to the previous Bid and
result of selection of bidder.
Article 25. Force Account
Force Account
shall apply to packages of projects and estimates of procurement in case
organizations directly managing and using such packages have technical and
financial capability, and experiences satisfying requirements of packages.
Article 26. Selection of bidders/investors in special cases
In the case of a package, project with particular requirements for which the forms of selection
of bidder/ investor stipulated in articles 20, 21, 22, 23, 24 and 25 of this
Law cannot be applied, the competent person shall prepare a plan for selection
of bidder/ investor and submit it to the Prime Minister for consideration and
decision.
Article 27. Community’s participation in performance
Population
communities, organizations, teams, groups of workers in localities where have
packages may be assigned to perform entire or part of such procurement in the
following cases:
1. Packages under
the national objective programs, support programs of hunger elimination,
poverty reduction for districts, communes in mountainous, deep-lying and remote
areas, islands, areas with special difficulty-stricken economic-social conditions;
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Section 2. METHODS OF SELECTION OF
BIDDERS/INVESTORS
Article 28. The single-stage one-envelope bidding procedure
1. The single-stage
one-envelope bidding procedure shall apply in the following cases:
a) Competitive
bidding, limited bidding for procurement of non-consulting service provision;
procurement of procurement of goods, works, mixed packages with small scale;
b) Shopping Method
for procurement of non-consulting service provision, goods procurement, works;
c) Direct
Contracting for procurement of the consulting service provision, non-consulting
service provision, goods procurement, construction, mixed packages;
d) Direct
Procurement for procurement of goods procurement;
dd) Direct
Contracting for selection of investor.
2.
Bidders/investors may submit Bids, Proposals including Technical Proposal and
Financial Proposal at the request of Bidding Documents, Requests for Proposals.
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Article 29. The single-stage two-envelope bidding procedure
1. The
single-stage two-envelope bidding procedure shall apply in
the following cases:
a) Competitive
bidding, limited bidding for procurement of consulting services, non-consulting
services, goods procurement, works, mixed packages;
b) Competitive
bidding for selection of investor.
2. Bidder or
investor may submit concurrently both envelopes of
Technical Proposal and Financial Proposal in a separate form at the request of
Bid.
3. Bid opening
shall be conducted twice. Technical Proposal shall be
opened as soon as deadline for submisison of bids. Bidders or investors
satisfying the technical requirements shall have the envelope of Financial Proposal opened for
assessment.
Article 30. The two-stage
one-envelope bidding procedure
1. The two-stage one-envelope bidding procedure shall apply in cases of competitive
bidding, limited bidding for package of procurement of
goods, works, mixed packages with big scale and complex nature.
2. In the first
stage, bidders may submit Technical Proposal
and Financial Proposal at the request
of Bidding Documents but not yet had Bid Price. On the basis of exchange with each
contractor participating in this stage, the envelope shall
be determined for bid invitation in second stage.
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Article 31. The two-stage
two-envelope bidding procedure
1. The two-stage
two-envelope bidding procedure shall apply in cases of competitive bidding,
limited bidding for procurement of goods, works, mixed packages with new,
complex and particular techniques and technologies;
2. In first stage,
bidders shall submit concurrently both envelopes of
Technical Proposal and Financial Proposal in a separate form at the request of
Bid. Technical Proposal shall be opened as soon as
deadline for submisison of bids. On the basis of assessment on Technical Proposal of bidders in this stage, to
determine contents corrected in techniques in comparison with Bid and list of bidders satisfying requirements and being invited for bidding in second stage.
Financial Proposal shall be opened in second stage.
3. In second
stage, bidders satisfying requirements in first stage shall be invited for
submission of Bids. Bids include Technical Proposal and Financial Proposal at
the request of Bid for second stage corresponding to content corrected in
techniques. In this stage, the envelope of Financial Proposal submitted in first stage shall
be opened concurrently with Bids in second stage for assessment.
Section 3. PROFESSIONAL BIDDING ORGANIZATION
Article 32. Professional bidding organization
1. Professional
bidding organization includes bidding agents, non-business units which are
established with function of performing professional bidding.
2. The
establishment and operation of bidding agents shall comply with legislations on
enterprises.
3. The Government
shall elaborate this Article.
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THE PLAN AND PROCESS OF BIDDER SELECTION
Article 33. Principles of making the plan on bidder selection
1. The plan on
bidder selection shall be formulated for the entire project, estimate of
procurement. In case where there are inadequate conditions to formulate a plan
on bidder selection for the entire project, estimate of procurement, it shall
be permitted to formulate a plan on bidder selection for one or a number of
packages to be performed in advance.
2. A plan on
bidder selection must set out clearly the number of packages and the contents
of each procurement.
3. Division of the
project, estimate of procurement into different packages shall be based on the
technical nature and the sequence for its implementation, ensuring unity within
the project, estimate of procurement and an appropriate size of procurement.
Article 34. Formulation of plan on bidder selection
1. Bases to
formulate plan on bidder selection for project:
a) Decision on
approving project or certificate of investment and relevant documents. For
packages which must be performed prior to a decision on approving project,
based on decision of head of investor or head of unit assigned to perform task
of preparation of project, in case the investor has not yet been identified;
b) Capital sources
for project;
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d) Relevant legal
documents.
2. Bases to
formulate plan on bidder selection for recurrent procurement:
a) Standards,
norms of equipment, means of working of agencies, organizations, units and
cadres, civil servants, public employees; equipment, means of working existing
which need to be replaced, purchased for supplementation, procured new ones to
serve for work;
b) The approved
decision on procurement;
c) The approved
capital sources and estimate for recurrent procurement;
d) Scheme on
procurement, equipping for entire branch which has been approved by the Prime
Minister (if any);
dd) Result of
price evaluation of agencies and organizations with function providing service
of price or quotation evaluation (if any).
3. Plan on bidder
selection may be formulated after decision on approving project, estimate of
procurement or concurrently with process of formulating project, estimate of
procurement or before decision on approving project for procurement which need
to be performed before decision on approving project.
Article 35. Content of plan on bidder selection for each package
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Name of
procurement presents nature, content and work scope of package, in line with contents stated in project, estimate of procurement. If package includes many separate parts, plan on bidder selection should state
the name describing basic content of each part.
2. Price of package:
a) Price of package is determined on the basis of total investment or estimated budget (if
any) for project; estimate of procurement for recurrent procurement. Price of package is included exactly and fully entire expenses associated with
performance of package, including reserve expenses, charges, fees and taxes.
Price of package may be updated in time limit of 28 days
before day of bid opening if necessary;
b) For packages of consulting service provision for formulation of pre-feasible study
report, feasible study report, price of package shall be
defined on the basis of information on average price according to statistics of
projects which have been made in a defined duration; the estimated total
investment based on investment ratio norms of projects; preliminary total
investment;
c) If package includes many separate parts, to clearly indicate
the estimated price for each part in price of package.
3. Capital
sources:
For each package, it must clearly state capital sources or methods of capital
arrangement, time of capital allocation to pay for bidder; case of using
official development assistance capital, concessional loans, it must clearly
state name of donors and structure of capital sources, including the financed
capital, domestic reciprocal capital.
4. Forms and
methods of selection of bidders:
For each package, it must clearly state forms and methods of selection of bidders;
selection of domestic or international contractor.
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Beginning time of
contractor selection is calculated as from issuing Bid, Request for Proposals,
and clearly indicated under month or quarter in year. In case of competitive
bidding with application of short-list selection procedures, beginning time of
contractor selection is calculated as from issuing EOI requests, Prequalification
Documents.
6. Contract type:
Plan on selection
of bidder must clarify contract type as prescribed in Article 62 of this Law as
the basis for formulation of EOI requests, Prequalification Documents, Bidding
Documents, Request for Proposals; and signing contract.
7. Time for
contract performance:
Time for contract
performance is number of days calculated from the effective date of contract
until parties fulfill obligations as prescribed in contract, exclusive of
duration of warranty obligation performance (if any).
Article 36. Submission for approval of plan on bidder selection
1.
Responsibilities for submission for approval of plan on bidder selection:
a) Investor for
project, the Procuring Entity for recurrent procurement shall be responsible
for submission of plan on bidder selection to the competent person for
consideration and approval;
b) For packages
which need to be performed prior to a decision on approving project, in case
where the investor is identified, unit of investor shall submit the plan on
bidder selection to the head of investor for consideration and approval. In
case the investor has not yet been identified, unit assigned to perform task of
preparation of project shall submit plan on bidder selection to the head of its
unit for consideration and approval.
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a) The performed
part of work, including content of work related to preparation of project,
packages performed previously with the respective value and legal bases for
implementation;
b) The part of
work which is not able to apply one of form of contractor selection, including:
operation of project management board, organization of compensation and ground
clearance, commencement, inauguration, payment of loan interest and other
affairs not able to apply form of contractor selection;
c) The part of
work in plan on bidder selection, including content of work and respective
value forming packages which are performed in one of forms of contractor
selection defined in Articles 20, 21, 22, 23, 24, 25, 26 and 27 of this Law.
This part must clarify bases of division of project, estimate of procurement
into packages. For each procurement, it must ensure to have full contents
specified in Article 35 of this Law. For procurement not apply form of
competitive bidding, document to submit for plan on bidder selection must
clarify reason of applying other selection form;
d) The part of
work which have not yet adequate conditions for formulating plan on bidder
selection (if any), in which clarifying content and value of this part of work;
dd) Part of
summing up values of part of works specified in points a, b, c and d this
Clause. Total value of this part does not exceed the approved total investment
of project or estimated budget of procurement.
3. Documents
enclosed with report to submit for approval of plan on bidder selection:
When submitting
for approval of plan on bidder selection, it must enclose copies of documents
as the basis for formulation of plan on bidder selection as prescribed in
Article 34 of this Law.
Article 37. Evaluation and approval of plan on bidder selection
1. Evaluation of
plan on bidder selection:
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b) Organization
assigned evaluation of the plan on bidder selection shall formulate report on
evaluation and submit to the competent person for the approval;
c) Organization
assigned evaluation of the plan on bidder selection shall make an evaluation
report and submit it to the head of investor or the head of unit assigned to
perform task of preparation of project for approving plan on bidder selection
in case where package needs to be performed prior to
decision on approval for project.
2. The approval
for plan on bidder selection:
a) Based on the
evaluation report, the competent person shall approve the plan on bidder
selection in writing in order to do as basis for selection of bidder after
project or estimate of procurement has been approved or concurrently with
decision on approving of project, estimate of procurement in eligible case;
b) Based on the
evaluation report, the head of investor or the head of unit assigned to perform
task of preparation of project shall approve plan on bidder selection in case
where package needs to be performed prior to decision on
approval for project.
Article 38. The process of bidder selection
1. The process of
bidder selection for competitive bidding, limited bidding shall be performed as
follows:
a) Prepare for
selection of bidder;
b) Organize
selection of bidder;
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d) Submit,
evaluate, approve and publish result of bidder selection;
dd) Finalize and
sign contract.
2. The process of
bidder selection for Direct Contracting shall be performed as follows:
a) For Direct
Contracting according to the ordinary process including steps: Prepare for
contractor selection; organize the contractor selection; assess Proposals and
negotiate on proposals of bidders; submit, evaluate, approve and publish the
result of bidder selection; finalize and sign contract;
b) For Direct
Contracting according to the reduced process including steps: Prepare and send
draft contract to bidder; negotiate, finalize contract; submit, approve and
publish the result of bidder selection; sign contract.
3. The process of
bidder selection for Shopping Method shall be performed as follows:
a) For Shopping
Method according to the ordinary process including steps: Prepare for
contractor selection; organize the contractor selection; assess Proposals and
negotiate contract; submit, evaluate, approve and publish the result of bidder
selection; finalize and sign contract;
b) For Shopping
Method according to the reduced process including steps: Prepare and send
requirement for quotation to bidder; bidders submit quotation; assess
quotations and negotiate contract; submit, approve and publish the result of
bidder selection; finalize and sign contract.
4. The process of
bidder selection for Direct Procurement shall be performed as follows:
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b) Organize
selection of bidder;
c) Assess the
Proposals and negotiate on proposals of bidders;
d) Submit,
evaluate, approve and publish result of bidder selection;
dd) Finalize and
sign contract.
5. The process of
bidder selection for Force Account shall be performed as follows:
a) Prepare for
plan on Force Account and draft contract;
b) Finalize the
plan on Force Account and negotiate, finalize contract;
c) Sign contract.
6. The process of
selection for individual consulting bidder shall be
performed as follows:
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b) The individual
consulting bidders submit dossier of scientific curriculum vitae;
c) Assess dossier
of scientific curriculum vitae of individual consulting bidders;
d) Negotiate,
finalize contract;
dd) Submit,
approve and publish result of bidder selection;
e) Sign contract.
7. The process of
bidder selection for packages with participation of community in performance
shall be performed as follows:
a) Prepare plan on
selecting population communities, organizations, teams, groups of workers in
localities to carry out the package.
b) Organize
selection;
c) Approve and
publish the selection result;
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8. The Government
shall elaborate this Article.
Chapter 4.
METHODS TO ASSESS BIDS, PROPOSALS;
CONSIDERATION FOR RECOMMENDATION AS THE WINNING BIDDER
Article 39. Methods to assess Bids for packages of the non-consulting
service provision, goods procurement, construction, mixed packages
1. Least-Cost
Selection:
a) This method
applies to simple packages with small scale in which technical, financial and
commercial proposals are considered as a same ground when satisfy requirements
stated in Bid;
b) Criteria for
evaluation of Bid include: Evaluation criteria of capability, experiences and criteria
of package;
c) For the Bids
which have been assessed to satisfy criteria for evaluation as prescribed at
point b this Clause, Bid Prices after the errors have been rectified and
discrepancies have been adjusted are basis for comparison and ranking.
Contractors shall be ranked corresponding to bid price after the errors have
been rectified and discrepancies have been adjusted, minus value of discount
(if any). The bidder with lowest price shall be ranked the first.
2. Lowest
Evaluated Bid Selection:
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b) Criteria for
evaluation of Bid include: assessment criteria of capability, experiences in
case of not applying prequalification; technical evaluation criteria; standards
for determination of evaluated bid price.
Elements which are
converted on the same ground to determine evaluated bid price
include: Necessary expenses associated with operation, maintenance and other
expenses related to origin of goods, loan interest, progress, quality of goods
or construction works of the package, prestige of
contractor through the progress and quality during implementation of previous
similar contracts and other elements;
c) For Bids which
have passed step of technical assessment, comparison and ranking are based on
evaluated bid prices. The bidder with lowest
evaluated price shall be ranked the first.
3. Quality- and
Cost-Based Selection:
a) This method
apply to packages of information technology, telecommunication or packages of
goods procurement, works, mixed packages when both Least-Cost Selection and Lowest Evaluated Bid Selection specified at Clause 1 and Clause 2
of this Article fail to be able to apply;
b) Criteria for
evaluation of Bid include: assessment criteria of capability, experiences in
case of not applying prequalification; technical evaluation criteria; and the
collective criteria for evaluation. The collective criteria for evaluation are
formulated on the basis of combination between technical aspect and price;
c) For Bids which
have passed step of technical assessment, comparison and ranking are based on
the collective points score respectively. The bidder with the highest collective
points score shall be ranked the first.
4. For assessment
criteria of capability, experiences, use pass-fail
system; for technical evaluation criteria, use Weighted
Scoring Method or pass-fail system; for Quality- and Cost-Based
Selection specified at Clause 3 of this Article, use Weighted Scoring
Method. When using Weighted Scoring Method,
the score of minimum technical requirement must be stipulated and not be less
than 70% of the total points for technical aspects.
5. The Government
shall elaborate this Article.
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1. For consulting
bidder being organization, apply one of the following methods:
a) Least-Cost
Selection shall be applied to the simple consulting packages. Criteria
for evaluation of Bid are technical evaluation criteria. For Bids which have
passed step of technical assessment, base on bid price after the errors have
been rectified and discrepancies have been adjusted, minus value of discount
(if any). The bidder with lowest price shall be ranked the first;
b) Fixed-Budget
Selection shall be applied to the simple consulting packages,
expenses associated with performance of package are determined specifically and
fixed in Bid. Criteria for evaluation of Bid are technical evaluation criteria.
For Bids which have passed step of technical assessment, bid price after the
errors have been rectified and discrepancies have been adjusted, minus value of
discount (if any) not exceeding expenses associated with performance of
package, based on technical score for comparison and ranking. The bidder with
the highest technical point shall be ranked the first;
c) Quality- and
Cost-Based Selection shall be applied to the consulting packages that pay
attention to quality and expenses associated with performance of package.
Criteria for evaluation of Bid are technical evaluation criteria and collective
criteria for evaluation. The collective criteria for evaluation are formulated
on the basis of combination between technical aspect and price. When formulating the collective criteria for evaluation, it must ensure
principle which the points for technical aspects shall account for between 70%
and 80% and the points for price shall account for between 20% and 30% of the
collective points score, percentage of points for technical aspects plus to
percentage of points for price shall be equal to 100%. The bidder with the
highest collective points score is ranked the first;
d) Quality-Based
Selection shall apply to consulting packages with high and
particular technical requirements. Criteria for evaluation of Bid are technical
evaluation criteria. When formulating technical evaluation criteria, the score
of minimum technical requirement must be stipulated and not be less than 80% of
the total points for technical aspects. Bidder has Bid satisfying the minimum
technical score as prescribed and obtain the highest technical score shall be
ranked the first and invited to come for opening Financial
Proposal as basis for negotiating contract.
2. For technical
evaluation criteria specified at points a, b, c and d Clause 1 of this Article,
use the method of marking a score. When formulating technical evaluation
criteria, the score of minimum technical requirement must be stipulated and not
be less than 70% of the total points for technical aspects, except for case
specified at point d Clause 1 of this Article.
3. For consulting
bidders being individuals, criteria for evaluation of Bids shall be criteria
for evaluation of dossiers of scientific curriculum vitae and Technical Proposal (if any). The bidder with the
best dossier of scientific curriculum vitae, Technical Proposal and satisfying requirements of reference provisions shall be
ranked the first.
Article 41. Methods to assess Proposals
Method to assess
Proposals in Shopping Method shall comply with Least-Cost Selection specified at clause 1 article 39 of this Law.
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1. The consulting
bidder being organization shall be considered for recommendation as the winning
bidder upon satisfying the following conditions:
a) Having valid
Bid and Proposal ;
b) Having
Technical Proposal satisfying requirements;
c) Having bid
price after the errors have been rectified and discrepancies have been
adjusted, minus value of discount (if any) being lowest price for Least-Cost
Selection; having the highest technical score for Fixed-Budget
Selection and Quality-Base Selection; having
the highest collective points for the Quality- and Cost-Based Selection;
d) Having the
proposed successful bid not exceeding the approved package price. If the
approved estimated budget of procurement is lower than or higher than the
approved package price, this estimate shall replace package price as basis for
consideration for recommendation as the winning bidder.
2. The consulting
bidder being individual shall be considered for recommendation as the winning
bidder upon satisfying the following conditions:
a) The bidder has
the best dossier of scientific curriculum vitae, Technical Proposal (if any)
and satisfying requirements of reference provisions;
b) The bidder has
the proposed successful bid not exceeding the approved package price. If the
approved estimated budget of procurement is lower than or higher than the
approved package price, this estimate shall replace package price as basis for
consideration for recommendation as the winning bidder.
3. For bidders
fail to be selected, in notice of bidder-selection result must clearly state
the reason thereof.
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1. The supplier of
non-consulting service, goods, works, mixed packages shall be considered for
recommendation as the winning bidder upon satisfying the following conditions:
a) Having valid
Bid and Proposal ;
b) Having
qualifications satisfying requirements;
c) Having
Technical Proposal satisfying requirements;
d) Having
deficient discrepancies not exceeding 10% of Bid Price;
dd) Having bid
price after the errors have been rectified and discrepancies have been
adjusted, minus value of discount (if any) being lowest price for Least-Cost
Selection; having the lowest assessment price for Lowest
Evaluated Bid Selection; having the highest collective points for the Quality-
and Cost-Based Selection;
e) The bidder has
the proposed successful bid not exceeding the approved package price. If the
approved estimated budget of procurement is lower than or higher than the
approved package price, this estimate shall replace package price as basis for
consideration for recommendation as the winning bidder.
2. For bidders
fail to be selected, in notice of bidder-selection result must clearly state
the reason thereof.
Chapter 5.
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Section 1. CENTRALIZED PROCUREMENT
Article 44. General provisions on centralized procurement
1. Centralized
procurement means a way to organize an competitive bidding in order to select
contractor through a centralized procurement unit with the aim to reduce
expenses, time, and focal units of bidding organization, strengthen the professionalism
in bidding, and contribute in increasing economic efficiency.
2. Centralized
procurement shall apply in case where goods and services need to be procured
with big quantity, similar categories at one or many agencies, organizations,
enterprises or investors.
3. Centralized
procurement may be performed in one of the following ways:
a) The centralized
procurement unit gathers needs of procurement, conduct the selection of bidder,
directly sign contract with the selected bidder for goods or service provision;
b) The centralized
procurement unit gathers needs of procurement, conduct the selection of bidder,
sign a written framework agreement with one or many selected bidders as basis
for units which have need of Direct Procurement to sign contract with the
selected bidders for goods or service provision.
4. The centralized
procurement unit shall conduct the selection of bidder on the basis of assigned
tasks, or sign contract with units which have need for procurement.
5. The Government
shall elaborate this Article.
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1. Framework
agreement in the centralized procurement means a long-term agreement between
the centralized procurement unit with one or many selected bidders, in which
include standards and conditions as basis for procurement according to each
specific contract.
2. Duration for
use of framework agreements shall be stipulated in plan on bidder selection but
not exceed 03 years.
Section 2. RECURRENT PROCUREMENT
Article 46. Conditions for application
Regulatory
agencies, political organizations, socio-political organizations,
socio-political-occupational organizations, social organizations,
socio-occupational organizations and units of the People’s armed forces, and
public non-business units may apply the recurrent procurement of goods and
services upon satisfying all the following conditions:
1. Use the capital
sources for recurrent procurement;
2. Goods and
services under list of goods and services allowed applying recurrent procurement
to maintain regular activities of agencies, organizations and units.
Article 47. Organizing selection of bidder
1. Selection of
bidder in recurrent procurement shall comply with Articles 38, 39, 40, 41, 42
and 43 of this Law.
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Section 3. PURCHASE OF DRUGS AND
MEDICAL SUPPLIES
Article 48. The selection of bidder for drugs and medical supplies
provision
1. Form, method,
plan and process of selection of bidder and method of assessment of Bid,
Proposal for selection of bidder for drugs and medical supplies provision shall
comply with provisions at chapter II, III and IV of this Law.
2. Selection of
bidder for drugs provision shall also be performed under form of price negotiation.
Form of negotiation shall be applied to packages for purchase of drugs which
there are only one to two producers; original proprietary medicines, rare
drugs, drugs still in time protected copyright and other particular cases.
3. A bidder shall
be considered for the consulting bidder being organization shall be considered
for recommendation as the winning bidder upon satisfying the following
conditions:
a) Conditions
specified at points a, b, d, dd and e Clause 1 Article 43 of this Law;
b) Bidder has Technical
Proposal which are assessed to satisfy requirements on quality, provision,
preservation and time limit for drugs use.
4. The Government
shall elaborate this Article.
Article 49. Centralized purchase of drugs
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2. The Government
shall provide for the centralized purchase of drugs and roadmap to perform the
centralized purchase of drugs.
Article 50. Preferential treatment in purchase of drugs
The preferential treatment
in purchase of drugs shall comply with Article 14 of this Law. For drugs
produced domestically, and the Ministry of Health has announced as satisfaction
of such drugs for the requirements on medical treatment, price of drugs and
ability of provision, in Bidding Documents, Request for Proposals shall
stipulate that bidders are not permitted to offer the import drugs.
Article 51. Responsibilities of regulatory bodies in bidding of drugs
and medical supplies
1. The Ministry of
Health shall promulgate list of drugs involving bidding; list of drugs
involving centralized bidding; and list of drugs allowed applying form of price
negotiation.
2. Government
shall provide for responsibilities of Ministries and sectors in bidding of
drugs and medical supplies, and the disclosure of prices of drugs and medical
supplies according to results of contractor selection.
Article 52. Payment of expenses associated with purchase of drugs and
medical supplies
If non-public
health facilities do not select to apply provisions of this Law for purchase of
drugs, medical supplies, such health facilities shall only be paid from medical
insurance fund according to the drugs items and unit prices of drugs and
medical supplies already won bidding of the public health facilities at
provincial level in the same localities.
Section 4. PROVISION OF PUBLIC PRODUCTS
AND SERVICES
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The selection of
bidders for provision of public products and service shall perform under forms
of competitive bidding, limited bidding, and Direct Contracting, Shopping
Method, Direct Procurement and Force Account.
Article 54. The process of bidder selection
1. The process of
bidder selection for provision of public products and services shall be
performed as follows:
a) Prepare for
selection of bidder;
b) Organize
selection of bidder;
c) Assess the
Bids, Proposals and negotiate contract;
d) Submit,
evaluate, approve and publish result of bidder selection;
dd) Finalize and
sign contract.
2. The Government
shall elaborate this Article.
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SELECTION OF INVESTORS
Article 55. Plan on investor selection
1. Basis for plan
on investor selection:
a) Decision on
approving project;
b) International
treaties, international agreements for projects used official development
assistance capital, concessional loans;
c) Relevant
documents.
2. Content of plan
on investor selection:
a) Name of
project;
b) Total
investment and total capital of project;
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d) Forms and
methods of selection of investors;
dd) Beginning time
of organization for investor selection;
e) Contract type;
g) Time for
contract performance.
Article 56. The process of investor selection
1. The process of
investor selection shall be performed as follows:
a) Prepare for
selection of investor;
b) Organize the
selection of investor;
c) Assess the
Bids, Proposals;
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dd) Negotiate,
finalize and sign contract.
2. The Government
shall elaborate this Article.
Article 57. Submitting, appraising and approving the plan on selection
of investor, Prequalification Document, result of prequalification, Bid,
Request for Proposals and result of investor selection
1. The Procuring
Entity shall submit the plan on selection of investor, Prequalification
Document, result of prequalification, Bid, Request for Proposals and result of
investor selection to the competent persons, concurrently organize appraisal.
2. Organizing the
appraisal, making report on appraisal of the plan on selection of investor,
Prequalification Document, result of prequalification, Bid, Request for
Proposals and result of investor selection to submit to the competent persons.
3. Based on the
submitted dossier and report on appraisal, the competent persons shall approve
the plan on selection of investor, Prequalification Document, result of prequalification,
Bid, Request for Proposals and result of investor selection.
4. The Government
shall elaborate this Article.
Article 58. Methods to assess the Bids
1. Methods to
assess the Bids include: Service price-related evaluation, method of State-contributed
capital, method of social benefits, state benefits and combination method.
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3. The Government
shall elaborate this Article.
Article 59. Consideration for contract award in investor selection
1. The selected
investors must satisfy all following conditions:
a) Having valid
Bid and Proposal ;
b) Satisfying
requirements on qualifications;
c) Satisfying
technical requirements;
d) Satisfying
financial requirements;
dd) Project
obtains highest efficiency.
2. For investors
not be selected, in notice of result of investor selection must clearly state
the reason thereof.
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SELECTION OF BIDDERS AND INVESTORS ONLINE
Article 60. Selection of bidders and investors online
1. When selecting
bidders/investors online, the following contents and process shall be performed
on National E-procurement System:
a) Publishing
information on bidding as prescribed in Article 8 of this Law;
b) Publishing EOI
requests, Prequalification Documents, Requests for Proposals;
c) Submission of
Bid Security, Performance Security, joint venture
agreements;
d) Submitting,
withdrawing EOI requests, Prequalification Documents, Bids, Proposals;
dd) Opening Bids;
e) Assessing EOI
responses, Applications, Bids, Proposals;
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h) Other relevant
content.
2. The Government
shall elaborate selection of bidders and investors online and the roadmap for
application.
Article 61. Requirements for National E-procurement System
1. It must
publish, not limit the access of information.
2. Users may
realize the real time upon accessing National E-procurement System. Time on
National E-procurement System is the real time and standard time in bidding
through National E-procurement System.
3. It must operate
continuously, unified, be stable and safe on information, have ability to
identify users, keep confidential and entire data.
4. It must perform
the storage of information and may retrieve histories of transactions on
National E-procurement System.
5. It must ensure
that bidders and investors cannot send EOI responses, Applications, Bids,
Proposals to the Procuring Entity after deadline for submisison of bids.
Chapter 8.
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Section 1. CONTRACT WITH CONTRACTOR
Article 62. Contract type
1. Lump-sum
contract:
a) Lump-sum
contract means contract with fixed price during performance for all work
contents in contract. Payment for lump-sum contract shall be performed many
times during implementation or once upon finishing contract. Total amounts paid
to contractor until finishing obligations under contract shall be equal to the
price stated in contract;
b) When applying
the lump-sum contract, prices of packages as the basis for consideration for
recommendation as the winning bidder must include expenses associated with risk
elements which may happen during the course of implementation of contract,
reserve expenses associated with slippage in price. Bid Price must include all
expenses associated with risk elements and expenses associated with slippage in
price which may happen during the course of implementation of contract;
c) Lump-sum
contract is type of basic contract. When deciding on application of contract
types defined at Clause 2 and Clause 3 of this Article, the person approving
the plan on bidder selection must ensure that such contract types are more
appropriate than lump-sum contract. For packages of simple consulting service
provision, and non-consulting service provision; packages for goods
procurement, works, mixed packages with small scale must apply form of lump-sum
contract;
d) For packages of
works, during the course of negotiating and finalizing contract, the relevant
parties need review the table of work volume under the approved design; if the
bidder or the Procuring Entity detects that the tables of work quantity and
volume are not exact in comparison with design, the Procuring Entity shall
report to the investor for consideration to decide on adjustment of the work
volume in order to ensure the conformity with design;
dd) When applying
the lump-sum contract, the investor for project, the Procuring Entity for
recurrent procurement, the centralized procurement units or units with need of
procurement for the centralized procurement shall be responsible for the
accuracy of work quantity and volume. In case of using
consulting bidder to make dossier of design, Bid, Request for Proposals, in
contract between investor, Procuring Entity, centralized procurement unit or
unit which has need of procurement with the consulting bidder must have
provisions on responsibilities of parties in handling or compensation in case
of calculating wrongly the work quantity and volume.
2. Unit price
contract:
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3. Adjustable unit
rate contract:
Adjustable unit
rate contract means contract with changeable unit price based on agreements in
contract for all work contents in contract. The contractor will be paid
according to the practical work quantity and volume which are tested for
acceptance as prescribed on the basis of the unit price in contract or the
modified unit price.
4. Time-based
contract:
Time-based
contract means contract which is applied to packages providing consulting
service. The Contract Price is calculated on the basis of working time
according to month, week, day, hour and costs other than remuneration. The
contractor will be paid according to the practical working time on the basis of
remuneration corresponding to the title and work stated in contract.
Article 63. Contract Documents
1. Contract
Documents include:
a) Contract Agreement;
b) Contract
Addenda, including the detailed list of work scope, price table,
and time for performance (if any);
c) Decision on
approving the result of bidder selection.
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a) The contract
finalization record;
b) The written
agreement of parties about contractual conditions, including general conditions
and particular conditions;
c) Bid, Proposal
and documents to clarify these dossiers of the selected bidder;
d) Bid, Request
for Proposals and documents amending and supplementing these dossiers.
dd) Relevant
documents.
3. When having
changes of contents within contract, parties must sign Contract Addenda.
Article 64. Conditions for signing contract
1. At time of
signing, the Bid or Proposal of the
selected bidder is still valid.
2. At time of
signing, the selected bidder must ensure to meet requirements on technical and
financial capability for implementation of the package. In
necessary case, the investor for a project, the Procuring Entity for recurrent
procurement, the centralized procurement unit or unit with need of procurement
for the centralized procurement may conduct verification of information on capability
of bidder, if the bidder still satisfies requirements for performance of
package, parties will sign contract.
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Article 65. Contract with the selected bidder
1. After selecting
contractor, the investor for a project, the Procuring Entity for recurrent
procurement, the centralized procurement unit or unit with need of procurement
for the centralized procurement and the selected bidder must sign contract to
perform the package. For JV
contractor, all JV’s Parties must directly sign and affix
their seal (if any) on the written contract. The contract signed between
parties must comply with provisions of this Law and other provisions of
relevant legislation.
2. A package may be performed according to one or many contract; in a contract may
apply one or many contract kinds specified at Article 62 of this Law. In case
of applying many contract kinds, it must clarify the contract kind respectively
with each content of specific work.
3. Contract signed
between parties must conform to content in Bid, Request for Proposals, Bid,
Proposals, result of contractual negotiation, and decision on approving result
of bidder selection.
4. Contract Price
does not exceed the successful bid. In case of supplementing the work volume
apart from Bid, Request for Proposals, leading to the excess of Contract Price
in comparison with the successful bid, the Contract Price must be ensured to
not exceed the approved price of package or estimate; if
project, estimate on package include many procurement,
total Contract Price must ensure to not exceed total the invested capital and
estimated budget already been approved.
5. The Government
shall provide for content of contract involving bidding.
Article 66. Performance Security
1. Performance
Security shall be applied to the selected bidders, except for contractors which
provide the consulting services, the selected bidders according to form of
Force Account and participation in implementation of community.
2. The selected
bidder must provide a Performance Security prior to the date on which the
contract takes effect.
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4. The validity
period of a Performance Security shall be calculated from the effective day of
contract until the date parties finish contractual obligations or until the day
of transfer of warranty obligations in case of having provisions on warranty.
In case of extending the contract performance period, it must require the
bidder to extend respectively validity period of Performance Security.
5. The contractor
shall not be entitled to the return of the Performance Security in the
following cases:
a) The contractor
refuses to perform the contract after the date the contract takes effect;
b) The contractor
violates agreements in contract;
c) The contractor
performs contract later than the progress due to the contractor’s fault but
refuse to extend the validity of Performance Security.
Article 67. Principles of adjustment to contract
1. Adjustment to
contracts must be specified specifically in the written contract, written
agreement on contractual conditions (if any).
2. Adjustment to
contracts shall only apply within validity period of contract.
3. Adjustment to
contract price shall only apply unit price contract, adjustable unit rate
contract and time-based contract.
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5. For contracts
based on modifiable unit price, the adjustment of unit price shall be performed
as from time of arising the elements causing changes of price and only be
applied for the performed volume in accordance with the progress stated in
contract or the adjusted progress as prescribed in Clause 6 and Clause 7 of
this Article.
6. The contract
time for performance shall be only adjusted in the following case:
a) In case of
force majeure, not relating to any violation or mistake of parties in contract;
b) Changes of the
work scope, design, measures for construction due to objective requirements
affect to the contract time for performance;
c) Handing over of
ground inconsistently with agreements in contract affect to the contract time
for performance but cause is not fault of contractor.
7. In case of
adjustment to the contract time for performance which do not prolong the
progress of finishing project, contractual parties may agree and unify such
adjustments. In case of adjustment to the contract time for performance which
prolong the progress of finishing project, it must report to the competent
person for consideration and decision.
Section 2. CONTRACT WITH INVESTOR
Article 68. Contract type
Contracts in
selection of investor include: Building-Operation-Transfer (BOT) contract,
building-transfer-operation (BTO) contract, building- owning-operation (BOO)
contract, building-transfer (BT) contract and other contractual kinds as
prescribed by law on investment.
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1. Contract
Documents include:
a) Contract Agreement;
b) Contract Addenda (if any);
c) Note of
Contract Negotiation;
d) Decision on
approving the result of investor selection;
dd) The written
agreement of parties about terms and conditions of the contract, including general conditions and particular conditions;
e) Bid, Proposal
and documents to clarify these dossiers of the selected investor;
g) Bid, Request
for Proposals and documents amending and supplementing these dossiers;
h) Relevant
documents.
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Article 70. Conditions for signing contract
1. At time of
signing, Bid and Proposal of the selected investor are still valid.
2. At time of
signing, the selected investor must ensure to meet requirements on technical
and financial capability for implementation of the project. In necessary case,
the competent person may conduct verification of information on capability of
investor, if the investor still satisfies requirements for implementation of
project, parties will sign contract.
3. The competent
regulatory agencies must ensure conditions on capital financed by state, ground
for implementation and other necessary conditions for carrying out the project
on the schedule.
Article 71. Contract with the selected investor
1. After selecting
investor, the competent regulatory agencies shall sign contract with the
selected investor or the selected investor and project management enterprise.
For JV investor, all JV’s Parties must
directly sign and affix their seal (if any) on the written contract. The
contract signed between parties must comply with provisions of this Law and
other provisions of relevant legislation.
2. Contract signed
between parties must conform to content in Bid, Request for Proposals, Bid, Proposals,
result of contractual negotiation, and decision on approving result of investor
selection and written agreement on investment.
Article 72. Performance Security
1. The selected
investor must provide a Performance Security prior to the date on which the
contract takes effect.
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3. The validity
period of a Performance Security shall be calculated from the day of officially
signing contract until the date works is completed and tested for acceptance or
until the date conditions of service provision guarantee are completed as
prescribed in contract. In case of extending the contract performance period,
it must require the investor to extend respectively validity period of
Performance Security.
4. The investor
shall not be entitled to the return of the Performance Security in the
following cases:
a) The investor
refuses to perform the contract after the date the contract takes effect;
b) The investor
violates agreements in contract;
c) The investor
performs contract later than the progress due to the investor’s fault but
refuse to extend the validity of Performance Security.
Chapter 9.
RESPONSIBILITIES OF PARTIES IN SELECTION OF
BIDDERS/INVESTORS
Article 73. Responsibilities of the competent person
1. To approve the
plan on selection of bidder/ investor, except for case defined at point a
Clause 1 Article 74 of this Law.
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3. To deal with
breaches of bidding in accordance with this Law and other relevant laws.
4. To cancel bid
as prescribed at Clauses 2, 3 and 4 Article 17 of this Law.
5. To suspend bid,
to refuse recognition of result of selecting bidder/investor, or to declare
invalidity to decisions of the investor, the Procuring Entity when detecting
violations of bidding or other provisions of relevant law.
6. To inspect,
supervise, monitor the work of bidding and contract performance.
7. For the
selected bidder, apart from provisions at Clauses 1, 2, 3, 4, 5 and 6 of this
Article, the competent person shall have the following responsibilities:
a) To adjust tasks
and competence of investor in case of failing to meet legislation on bidding
and requirements of project, package;
b) To require the
investor, the Procuring Entity to supply dossiers, documents in order to serve
the inspection, supervision, monitoring, settlement of protests, handling of
violations on bidding and works defined at Clause 4 and clause 5 of this
article;
c) To give
opinions on handling of complex circumstances at the proposal of the investor
defined at point a clause 2 Article 86 of this Law.
8. For the
selected investor, apart from provisions at Clauses 1, 2, 3, 4, 5 and 6 of this
Article, the competent person shall have the following responsibilities:
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b) To approve
Prequalification Document, result of prequalification, Bid, Request for
Proposals, result of investor selection;
c) To make a
decision dealing with any exceptional situation;
d) To sign and
manage the contract performance;
dd) To cancel bid
as prescribed at Clause 1 Article 17 of this Law;
e) To require the
Procuring Entity to supply dossiers, documents in order to serve the
inspection, supervision, monitoring, settlement of protests, handling of
violations on bidding and works defined at Clause 4 and clause 5 of this
article.
9. To decide on
establishment of the Procuring Entity with personnel satisfying the conditions
as prescribed by this Law in case of investor selection for recurrent
procurement. If the personnel fails to satisfy, the
competent person must conduct selection of a professional bidding organization
to act as the Procuring Entity or to perform some of tasks of the Procuring
Entity.
10. To pay
compensation for loss and damage to relevant parties pursuant to this Law if
such loss and damage was caused by the competent person’s fault.
11. To make
explanations for observance with provisions in this article at the request of
superior agencies, inspection agencies, regulatory bodies on bidding activities.
12. To perform
other tasks as prescribed in this Law.
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1. To approve
contents during contractor selection including:
a) Plan on
selection of bidders in case where the package is
performed prior to decision on approving the project;
b) EOI
request, Prequalification Document, short list;
c) Bidding
Documents, Request for Proposals;
d) List of ranked
contractors;
dd) Result of
selection of bidders.
2. To sign or
authorize for signing and manage the contract performance with contractor.
3. To decide on
establishment of the Procuring Entity with personnel satisfying conditions as
prescribed in this Law. If the personnel fail to satisfy, it must conduct
selection of a professional bidding organization to act as the Procuring Entity
or to perform some of tasks of the Procuring Entity.
4. To make a
decision dealing with any exceptional situation.
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6. To maintain
confidentiality of relevant documents during selection of bidders.
7. To archive
relevant information during selection of bidders as prescribed by law on
archival and regulations of Government.
8. To report the
annual bidding work.
9. To pay
compensation for loss and damage to relevant parties pursuant to this Law if
such loss and damage was caused by the competent person’s fault.
10. To cancel bid
as prescribed at Clause 1 Article 17 of this Law.
11. To be legally
liable before law and competent person for the process of selection of bidder.
12. To provide
information, relevant documents and make explanations on observance with
provisions in this Article at the request of superior agencies, inspection
agencies, regulatory bodies on bidding activities.
13. If the
investor currently being the Procuring Entity, the investor must take
responsibilities specified in Article 75 of this Law.
14. To perform
other tasks as prescribed in this Law.
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1. For contractor
selection to perform packages of project:
a) To conduct
preparations for contractor selection; to organize contractor selection, and to
assess EOI responses, Applications, Bids, Proposals;
b) To decide on
establishment of expert group;
c) To request
bidders to clarify their EOI responses, Applications, Bids and Proposals during
the process of dossier assessment;
d) To submit for
approval of the result of short list selection and result of bidder selection;
dd) To negotiate
and finalize contract with bidder;
e) To pay
compensation for loss and damage to relevant parties pursuant to this Law if
such loss and damage was caused by the Procuring Entity’s fault;
g) To maintain
confidentiality of relevant documents during selection of bidders;
h) To ensure
honesty, objectivity and impartiality throughout the process of bidder
selection;
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k) To be legally
liable before law and investor for the process of selection of bidder.
2. For selection
of tenders in recurrent procurement, apart from provisions at points a, b, c,
d, dd, e, g, h and i Clause 1 this Article, the Procuring Entity must take the
following responsibilities:
a) To approve the
Bid, Request for Proposals;
b) To approve the
result of bidder selection;
c) To sign and
manage the contract performance with contractor;
d) To make a
decision dealing with any exceptional situation;
dd) To resolve
protests during selection of bidders;
e) To cancel bid
as prescribed at Clause 1 Article 17 of this Law;
g) To be legally
liable before law and competent person for the process of selection of bidder;
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i) To provide
information to the bidding newspaper and to the national bidding website; to
provide information and relevant documents and make explanations on observance
with provisions in this Clause at the request of competent person, inspection
agencies, regulatory bodies on bidding activities;
k) To report the
annual bidding work.
3. For selection
of investors:
a) To conduct
preparations for investor selection; to organize investor selection; to assess
Applications, Bids, Proposals in accordance with this Law;
b) To decide on
establishment of expert group;
c) To request
investors to clarify their Applications, Bids and Proposals during the process
of dossier assessment;
d) To submit for
approval of Prequalification Document, result of prequalification, Bid, Request
for Proposals, result of investor selection;
dd) To negotiate
contract with investor;
e) To pay
compensation for loss and damage to relevant parties pursuant to this Law if
such loss and damage was caused by the Procuring Entity’s fault;
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h) To archive
relevant information during selection of investors as prescribed by law on
archival and regulations of Government;
i) To resolve
protests during selection of investor;
k) To ensure
honesty, objectivity and impartiality throughout the process of investor
selection;
l) To provide
information to the bidding newspaper and to the national bidding website; to
provide information and relevant documents and make explanations on observance
with provisions in this Clause at the request of competent person, inspection
agencies, regulatory bodies on bidding activities.
4. To perform
other tasks as prescribed in this Law.
Article 76. Responsibilities of the expert groups
1. To be honest,
objective and impartial throughout the process of implementation of tasks.
2. To conduct
assessments of EOI responses, Applications, Bids, Proposals correctly in
accordance with the requirements.
3. To report the
Procuring Entity about result of assessing EOI responses, Applications, Bids,
Proposals and list of the ranked bidders/investors.
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5. To reserve
their own opinions.
6. To pay
compensation for loss and damage to relevant parties pursuant to this Law if
such loss and damage was caused by the expert group’s fault.
7. To provide
information, relevant documents and make explanations on observance with
provisions in this Article at the request of competent person, the Procuring
Entity, inspection agencies, regulatory bodies on bidding activities.
8. To perform
other tasks as prescribed in this Law.
Article 77. Responsibilities of the bidders and investors
1. To request the
Procuring Entity to clarify dossier of invitation for expression of interest,
Prequalification Document, Bid, Request for Proposals.
2. To fulfill the
contractual undertakings provided to the Subcontractors (if any).
3. To lodge
protests, to make complaints and whistleblowing regarding bidding.
4. To comply with
the provisions of the law on procurement.
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6. To pay
compensation for loss and damage to relevant parties pursuant to this Law if
such loss and damage was caused by the expert group’s fault.
7. To provide
information, relevant documents and make explanations on observance with
provisions in this Article at the request of competent person, the Procuring
Entity, inspection agencies, regulatory bodies on bidding activities.
8. To perform
other duties in accordance with this Law and other relevant laws.
Article 78. Responsibilities of the evaluating organizations
1. To act
independently and to comply with the provisions of this Law and other relevant
laws when conducting evaluations.
2. To request the
investor and the Procuring Entity to provide all relevant documents and data.
3. To maintain
confidentiality of documents and data throughout the process of evaluation.
4. To be honest,
objective and impartial throughout the process of evaluation.
5. To reserve
their own opinion and to bear liability for their evaluation report.
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7. To provide
information, relevant documents and make explanations on observance with
provisions in this Article at the request of competent person, the investor,
the Procuring Entity for recurrent procurement, centralized procurement,
inspection agencies, regulatory bodies on bidding activities.
8. To perform
other tasks as prescribed in this Law.
Article 79. Responsibilities of the Procuring Entity in participation
in National E-procurement System
In addition to
responsibilities defined in Article 75 of this Law, the Procuring Entity
participating in National E-procurement System shall have the following
responsibilities:
1. To equip an
information technology infrastructure which meets requirements of bidding
online;
2. To manage and
not disclose secret key of the granted digital certificate. In case where a
Procuring Entity lost digital certificate or detect the illegal use of digital
certificate, it must notify immediately to the provider of digital signature
certification service for cancelation and grant of new digital certificate; to
expand the validity period of digital certificate to ensure the digital
certificate to be valid during the process of bidding;
3. To be legally
liable before law for accuracy and honesty of information registered or published
on National E-procurement System when sign in by their digital signature;
4. To check and
certify the publishing of their information entered in National E-procurement
System;
5. To comply with
provisions of this Law and other provisions of relevant legislation.
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In addition to
responsibilities defined in Article 77 of this Law, the bidders and investors
participating in National E-procurement System also have the following
responsibilities:
1. To equip an
information technology infrastructure when participating in bidding online;
2. To manage and
not disclose secret key of the granted digital certificate. If users of bidders
or investors lost or detect the third party’s use of their digital certificate,
they must change the secret key of digital certificate, cancel digital
certificate under guide of the provider of digital signature certification
service; extend the validity term of the digital certificate to ensure the
digital certificate to be invalid during the process of participation in
bidding;
3. To be legally
liable before law for accuracy and honesty of information registered or
published on National E-procurement System when sign in by their digital
certificate;
4. To be
responsible for result when participating in bidding online in case of having
incident due to the network system at the side of bidders or investors which
make documents to be not able to be open or not readable;
5. To comply with
provisions of this Law and other provisions of relevant legislation.
Chapter 10.
STATE MANAGEMENT OF BIDDING ACTIVITIES
Article 81. Content of state management of bidding activities
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2. Granting
certificates of practicing in bidding operation.
3. Managing the
work of training and capacity building on bidding.
4. Summarizing,
assessing and reporting on the status of implementation of bidding activities.
5. Administering
on a nationwide basis the bidding information system.
6. Monitoring,
supervising, checking, inspecting, resolving protests, complaints and
whistleblowing regarding bidding, and dealing with breaches of the law on
procurement in accordance with this Law and other relevant laws.
7. Conducting
international cooperation on bidding.
Article 82. Responsibilities of Government and the Prime Minister
1. The Government
shall exercise unified administration of bidding throughout the country.
2. The Prime
Minister shall discharge the following responsibilities:
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b) Approve plan on
selection of bidders/investors in special cases;
c) Direct the work
of conducting inspections and of resolving complaints, whistleblowing and
dealing with breaches of the law in accordance with this Law and the other
relevant law;
d) Discharge other
responsibilities in accordance with this Law and other relevant laws.
Article 83. Responsibilities of the Ministry of Planning and Investment
1. To be
responsible before the Government for the exercise of unified state
administration of bidding activities nationwide as prescribed in Article 81 of
this Law.
2. In addition to
provision at Clause 1 this Article, the Ministry of Planning and Investment
shall have the following responsibilities:
a) To evaluate
plans on selection of bidder/ investor in projects under the consideration and
decision competence of the Prime Minister;
b) To build up,
manage, guide use of the national bidding website and bidding newspaper;
c) To perform
other tasks on bidding as assigned by Government and the Prime Minister.
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Ministries,
ministerial equivalent bodies, and all level people's committees shall, within
their tasks and powers, have the following responsibilities:
1. To exercise
administration of bidding work;
2. To summarize, assess and report on the status of
implementation of bidding activities;
3. To resolve
protests regarding bidding;
4. To conduct
checks and inspections, resolve complaints, whistleblowing, and with breaches
of the law on procurement;
5. To organize the
capacity building of bidding knowledge for cadres, civil servants and public
employees engaged in bidding work;
6. In cases where
a minister, head of a ministerial equivalent body or chairman of a people's
committee at any level is concurrently the authorized person, then such
minister, head or chairman must also discharge the responsibilities stipulated
in article 73 of this Law; if being investor, he must also discharge the
responsibilities stipulated in article 74 of this Law.
Article 85. Responsibilities of the organization operating National
E-procurement System
1. To manage and
operate National E-procurement System.
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3. To supply
services to guide investors, the Procuring Entity, bidders/investors in bidding
online, and registering, publishing information on National E-procurement
System.
4. To save
information in serve of searching, monitoring, supervising, checking,
inspecting and auditing.
5. To publish
conditions on information technology infrastructure of users when participating
in bidding online.
Article 86. Dealing with exceptional situations
1. Dealing with
exceptional situations means settlement of cases arising in bidding which have
not yet been stipulated specifically clearly in law on procurement. The person
making a decision on dealing with any exceptional situation in bidding shall be
responsible before the law for his decision on the basis of ensuring the
following principles:
a) Ensuring
competitiveness, fairness, transparency and economic efficiency;
b) Acting on the
basis of the approved plan on selection of bidder/ investor, EOI requests,
Prequalification Documents, Bidding Documents, Request for Proposals, EOI
responses, Applications, Bids, Proposals; result of selection of bidder/
investor; the contract signed with selected bidder/investor; practical
situation of performance of packages and projects.
2. Competencies
for dealing with exceptional situations in bidding:
a) For contractor
selection to perform packages of project, the person making decision to deal
with exceptional situations is investor. In complex cases, the investor may
make decision on dealing with exceptional situations after consulting the
competent person;
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c) For investor
selection, the person making decision to deal with exceptional situations is
competent person.
3. The Government
shall elaborate this Article.
Article 87. Inspection, examination and supervision of bidding
activities
1. Inspection of
bidding activities:
a) Bidding
inspections shall be carried out and applied to organizations and individuals
who are involved in bidding activities specified in this Law;
b) The bidding Inspectorate
shall be the specialized inspectorate for the bidding sector. The organization
and operations of the bidding Inspectorate shall be performed in accordance
with the law on inspections.
2. Checks of
bidding activities:
a) Checks of
bidding activities include:
checks of
promulgation of documents guiding on bidding of Ministries, sectors, localities
and enterprises; checks of training on bidding, checks of formulation and
approval of plan on selection of bidder/ investor; checks of selection of
bidder/ investor; conclusion in contracts and other activities involving
bidding;
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3. Supervision of
bidding activities:
Supervision of bidding
activities is regular work of the competent person aiming to ensure the
observance of process of selection of bidder and investor with this Law.
4. The Government
shall elaborate this Article.
Article 88. Complaints and whistleblowing
The making of
complaints and whistleblowing and the resolution of such complaints and
whistleblowing on bidding shall be performed in accordance with the law on
complaints and whistleblowing.
Chapter 11.
FRAUD AND CORRUPTION AND
ACTIONS TAKEN
Article 89. Fraud
and Corruption
1. Corrupt
practice.
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3. Collusive
practice, including the following acts:
a) Agreeing
on bidding withdrawal or withdrawal of Letter of Bid already been submitted so
that one party or parties in agreement win bid;
b) Agreeing to let
one or many parties to prepare Bid for parties of bidding so that one party may
win bid;
c) Agreeing on
refusal for goods provision, refusal for signing contract of Subcontractor, or
forms which cause other difficulties to parties which refuse to participate in
agreement.
4. Fraudulent
practice, including the following acts:
a) Providing a
wrong presentation intentionally or falsifying information, dossier or
documents of a party in bidding with the aim to obtain financial benefits or
other benefits or with the aim to avoid any obligation;
b) Individuals who
personally assess EOI responses, Applications, Bids,
Proposals, evaluate result of selection of short list, result of selection of
investor, bidder, intentionally providing wrong report or untrue information
falsifying the result of selection of bidders/investors.
c)
Bidders/investors intentionally provide dishonest information in EOI responses,
Prequalification Application, Bids, Proposals falsifying the result of
selection of bidders/investors.
5. Interference practice,
including the following acts:
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b) Impeding
bidder/investors, authorities in charge of supervision, inspection and audit.
6. Inequality
and intransparency, including the following acts:
a) Making a
bid as a bidder/investor in a procurement, project for which it
is also the Procuring Entity, investor or person performing tasks of the Procuring Entity, investor;
b) Formulating
and engaging in evaluation of dossier of invitation for
expression of interest, Prequalification Document, Bid, Request for Proposals
for a same procurement, project;
c) Engaging
in evaluation of Bids, Proposals, concurrently evaluate result of
selection of bidder/ investor for a same package, project;
d) Any individual of the Procuring Entity, investor directly participates in the process of selection of bidder/ investor or participate in
expert groups, evaluation groups for result of selection of bidder/ investor,
or a head of competent regulatory body, investor, the Procuring
Entity for packages, projects in which his or her natural parent, parent-in-law,
spouse, natural child, adopted child, son or daughter-in-law or sibling
participates give their name in bidding or are representatives in law of
bidders/investors making the bid;
dd) Participation
by a bidder in bidding for goods procurement, works in a procurement for which
such participant previously has provided consulting
services;
e) Provision of
one's name as the bidder for a procurement belonging to a project of an
organization or body for which such person worked, within a period of 12 months
from the date on which such person ceased to work for such body or
organization;
g) Being consulting bidder for supervision concurrently provide the
verification consulting for the procurement which is under supervision of
bidder;
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i) Imposition of
specific requirements regarding brand names and country of origin of goods in
Bid Documents applicable to procurement for procurement of goods, for works and
mixed packages when applying forms of competitive bidding, limited bidding;
k) Division of a
project, estimate for procurement into packages contrary to the provisions in
this Law with the aim to apply Direct Contracting or limit participation of
bidders.
7. Disclosure,
receipt of the following data and information regarding selection of bidder/
investor, except for cases defined at point b clause 7 and point e clause 8
article 73, clause 12 Article 74, point i Clause 1 Article 75, Clause 7 Article
76, Clause 7 Article 78, point d Clause 2 and point d clause 4 Article 92 of
this Law:
a) Contents of EOI
requests, Prequalification Documents, Bid Documents prior to the stipulated
date for issuance of such documents;
b) Contents of EOI
responses, Applications, Bids, Proposals, notebooks and minutes of bid
consideration meetings, comments and assessments regarding each dossier of
expression of interest, dossier of prequalification participation, Proposals
prior to the announcement of the short list, results of selection of bidder/
investor;
c) Requests for
clarification of Bids, Proposals made by the Procuring Entity and responses of
bidders/investors during the process of assessment of Bids, Proposals prior to
announcement of the results of selection of bidder/ investor;
d) Reports by the
Procuring Entity, by the expert group, evaluation report, report of consulting
bidder, report of relevant specialized agencies during the process of selection
of bidder/ investor prior to announcement of the results of selection of
bidder/ investor;
dd) Result of
selection of bidder/ investor prior to the stipulated time for announcement;
e) Other documents
during the process of selection of bidder/ investor which are stamped
"confidential" as prescribed by law.
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a) Contractor
transfer to other contractor a part of work under procurement at value of 10%
or more (after deducting part of work under responsibilities of Subcontractors) calculated on the signed Contract Price;
b) The investor or
supervision consulting accepts for contractor to transfer work under duty of
contractor, deducted part of work under duty of Subcontractors as stated in
contract.
9. Holding selection
of bidder when the financing source for the package has
not yet been determined, resulting in insolvency of the contractor.
Article 90. Actions against violations
1. Any
organization or individual who breaches the law on procurement and other
relevant law shall, depending on the nature and seriousness of violation, be
disciplined, sanctioned administratively or liable to criminal prosecution; in
case where violation of law on procurement causes damages to benefits of state,
the lawful rights and benefits of organizations and individuals, the offender
must pay compensation as prescribed by law.
2. In addition to
being dealt with pursuant to the provisions in clause 1 of this article,
depending on the nature and seriousness of violation, organizations and
individuals breaching law on procurement shall be also banned participation in
bidding activities and put into list of infringing contractors on National
E-procurement System.
3. Competence of
banning participation in bidding activities is prescribed as follows:
a) The competent
persons shall issue decisions on banning participation in bidding activities
for projects, estimate of procurement under their management; case of serious
violation, they may suggest the Ministers, Heads of ministerial-level agencies,
chairpersons of the People’s Committees of provinces or
central-affiliated cities to issue decision on banning
participation in bidding activities within management of Ministries, sectors
and localities or suggest the Minister of Planning and Investment to issue
decisions on banning participation in bidding activities nationwide;
b) The Ministers,
Heads of ministerial-level agencies, chairpersons of the People’s
Committees of provinces or central-affiliated cities shall issue
decisions on banning participation in bidding activities within management of
their Ministries, sectors and localities for cases suggested by the competent
persons as prescribed at point a this Clause;
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4. Disclosure of
actions against violations:
a) Decisions on
actions against violations must be sent to the dealt organizations and
individuals, the relevant agencies and organizations, concurrently be sent to
the Ministry of Planning and Investment for monitoring and summing up;
b) Decisions on
actions against violations must be published on bidding newspaper, National
E-procurement System.
5. The Government
shall elaborate this Article.
Chapter 12.
RESOLUTION OF PROTESTS AND DISPUTES IN BIDDING
Section 1. RESOLUTION OF PROTESTS REGARDING BIDDING
Article 91. Resolution of protests regarding bidding
1. When consider
that lawful rights and benefits are severely affected, the contractors and
investors have rights:
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b) To institute
court proceedings at any time, including time of resolution of protests or
after having result of resolution of protests.
2. In case where
bidders/investors instituted court proceedings, they are not entitled to send
protest to the Procuring Entity, investor, or the competent person. If in the
process of resolution of protests, bidders/investors instituted court
proceedings, the resolution of protests shall be terminated immediately.
Article 92. The process of resolution of protests
1. The process of
resolution of protests regarding matters during selection of bidders shall be
performed as follows:
a) A contractor
may send a written protest to the investor for project; the Procuring Entity
for recurrent procurement, centralized procurement since happening matters and
prior to having notice of result of bidder selection;
b) The investor,
the Procuring Entity shall be responsible to have a document to resolve a
protest made by a bidder within a time limit of 07 working days from the date
of receipt of the written protest of the bidder;
c) If the
investor, the Procuring Entity has no document to resolve the protest or if the
bidder disagrees with the result of resolution of protest, the bidder shall
have the right to lodge the protest with the authorized person within 05
working days, as from the expired day of replying or day of receiving document
of resolution of protest made by investor, the Procuring Entity;
d) The authorized
person shall be responsible to resolve a protest made by a bidder within a time
limit of 15 working days from the date of receipt of the written protest of the
bidder.
2. The process of
resolution of protests regarding result of selection of bidders shall be
performed as follows:
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b) The investor,
the Procuring Entity shall be responsible to have a document to resolve a
protest made by a bidder within a time limit of 07 working days from the date
of receipt of the written protest of the bidder;
c) If the
investor, the Procuring Entity has no document to resolve the protest or if the
bidder disagrees with the result of resolution of protest, the bidder shall
have the right to lodge the protest with the authorized person and the
Consulting Council for resolution of protests within 05 working days, as from
the expired day of replying or day of receiving document of resolution of
protest made by investor, the Procuring Entity. The Minister of Planning and
Investment shall establish a Consulting Council for Resolution of Protests at
central level; the Ministers, Deputy Ministers of Ministerial agencies shall
establish the Councils at ministerial level; the heads of regulatory bodies on
bidding at localities shall establish the Councils at local level;
d) When receiving
written protest, the Consulting Councils for Resolution of Protests shall be
entitled to request the bidders, investors, the Procuring Entity and relevant
agencies for information provision in order to consider and have written report
to the competent person about the plan and content or replying protest within
20 days, after receiving the written protest made by the bidder;
dd) In necessary
case, the Consulting Councils for Resolution of Protests shall, based on the
written protest made by the bidder, suggest the competent person to consider
for temporary suspension of the bid. If accepting, within 05 working days,
after receiving the document of the Consulting Council for Resolution of
Protests, the competent person shall issue a written notice about temporary
suspension of the bid. The document of temporary suspension of the bid must be
sent to the investor, the Procuring Entity, bidder within 03 working days after
issuing the written notice about temporary suspension of the bid. Duration of
temporary suspension of the bid shall be calculated from the date the investor,
the Procuring Entity receive the notice of temporary suspension until the
competent person issues a document to resolve protest;
e) The competent
person shall issue decision on resolution of protest regarding result of
selection of bidder within 05 working days, after receiving the written opinion
of the Consulting Council for Resolution of Protests.
3. The process of
resolution of protests regarding matters during selection of investors shall be
performed as follows:
a) The investor
may send a written protest to the Procuring Entity as from happening events and
prior to having notice of result of selection of investor;
b) The Procuring
Entity shall be responsible to have a document to resolve a protest made by an
investor within a time limit of 15 days from the date of receipt of the written
protest of the investor;
c) If the
Procuring Entity has no document to resolve the protest or if the investor
disagrees with the result of resolution of protest, the investor shall have the
right to lodge the protest with the authorized person within 05 working days,
as from the expired day of replying or day of receiving document of resolution
of protest made by the Procuring Entity;
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4. The process of
resolution of protests regarding result of selection of investor shall be
performed as follows:
a) An investor may
send a written protest to the Procuring Entity in period of 10 days after
having notice of result of investor selection;
b) The Procuring
Entity shall be responsible to have a document to resolve a protest made by an
investor within a time limit of 15 days from the date of receipt of the written
protest of the investor;
c) If the
Procuring Entity has no document to resolve the protest or if the investor
disagrees with the result of resolution of protest, the investor shall have the
right to lodge the protest with the authorized person and the Consulting
Council for resolution of protests within 05 working days, as from the expired
day of replying or day of receiving document of resolution of protest made by
the Procuring Entity;
d) When receiving
written protest, the Consulting Councils for Resolution of Protests shall be
entitled to request the investors, the Procuring Entity and relevant agencies
for information provision in order to consider and have written report to the
competent person about the plan and content or replying protest within 30 days,
after receiving the written protest made by the investor;
dd) In necessary
case, the Consulting Councils for Resolution of Protests shall, based on the
written protest made by the investor, suggest the competent person to consider
for temporary suspension of the bid. If accepting, within 10 days, after
receiving the document of the Consulting Council for Resolution of Protests, the
competent person shall issue a written notice about temporary suspension of the
bid. The document of temporary suspension of the bid must be sent to the
Procuring Entity, investor within 05 working days after issuing the written
notice about temporary suspension of the bid. Duration of temporary suspension
of the bid shall be calculated from the date the Procuring Entity receives the
notice of temporary suspension until the competent person issues a document to
resolve protest;
e) The competent
person shall issue decision on resolution of protest regarding result of
selection of investor within 10 days, after receiving the written opinion of
the Consulting Council for Resolution of Protests.
5. If a bidder or
investor sends a written protest directly to the competent person without
observance with the processes of resolution of protests specified in this
Article, such written protest shall not be considered for settlement.
6. The Government
shall elaborate this Article.
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Article 93. The principles of resolution
Resolution of
disputes in bidding by courts shall comply with law on civil procedures.
Article 94. The right to request Court for application of temporary
emergency measures
When instituting,
parties have the right to request the Court for immediate temporary suspension
of bid disclosure; approval of short list; approval of result of selection of
bidder/ investor; conclusion in a contract; performance of contract, and other temporary
emergency measures as prescribed by law.
Chapter 13.
IMPLEMENTATION PRVISIONS
Article 95. Entry in force
1. This Law comes
into forces as of July 01, 2014.
2. The Law on
Procurement No. 61/2005/QH11 shall cease to be effective on the
effective date of this Law.
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Article 96. Elaboration
The Government
shall elaborate Articles, Clauses as assigned in this Law.
This Law was
passed by Legislature XIII of the National Assembly of the Socialist Republic
of Vietnam at its 6th Session on 26 November 2013.
THE CHAIRMAN OF
THE NATIONAL ASSEMBLY
Nguyen Sinh Hung