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THE GOVERNMENT OF VIETNAM
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SOCIALIST REPUBLIC OF VIETNAM
Independence - Freedom – Happiness
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No: 214/2025/ND-CP
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Hanoi, August 04, 2025
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DECREE
ON ELABORATION OF AND MEASURES FOR IMPLEMENTATION OF THE
BIDDING LAW REGARDING CONTRACTOR SELECTION
Pursuant
to the Law on Government Organization No. 63/2025/QH15;
Pursuant
to the Law on Organization of Local Government No. 72/2025/QH15;
Pursuant
to the Law on Bidding No. 22/2023/QH15, as amended and supplemented by Law No.
57/2024/QH15, Law No. 90/2025/QH15;
At
the request of the Minister of Finance;
The
Government promulgates a Decree on elaboration of and measures for
implementation of the bidding law regarding contractor selection.
Chapter
I
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Article
1. Scope
1.
This Decree elaborates certain articles of the Bidding Law regarding contractor
selection, including: Clause 5, Article 3; Clause 1, Article 5; Clause 6,
Article 6; Clause 6, Article 10; Clause 3, Article 15; Clause 4, Article 19;
Clause 2, Article 20; Article 23; Clause 1, Article 24; Clause 2, Article 29;
Clause 2, Article 29a; Clause 3, Article 29b; Clause 4, Article 36; Clause 2,
Article 39; Clause 2, Article 43; Clauses 2 and 4, Article 44; Clause 3,
Article 45; Article 50; Clauses 3 and 7, Article 53; Clauses 3 and 4, Article
55; Article 57; Clause 1, Article 61; Clause 4, Article 67; Clause 6, Article
70; Clause 2, Article 84; Clause 4, Article 86; Clause 5, Article 87; Clause 4,
Article 88; Clause 5, Article 89 of the Law on Bidding.
2.
Measures to implement the Law on Bidding regarding contractor selection,
including:
a)
Registration on Vietnam National E-Procurement System (VNEPS);
b)
Contractor selection duration;
c)
Information disclosure in bidding activities;
d)
Bidder management.
Article
2. Interpretation of terms
1.
Online quotation is a repeated process where bidders electronically
submit new prices or non-price values (quantifiable according to bidding
document criteria) for ranking or re-ranking bids on VNEPS.
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3.
Successful bid is the price stated in the decision on approval for
contractor selection result.
4. Online
procurement means direct procurement of goods and services on VNEPS from
the bidder who has won the bid for the package for procurement of goods and
services through centralized procurement.
Article
3. Application of the Law on Bidding in cases where there are provisions
different from international treaties, foreign loan agreements
Before
signing international treaties, or foreign loan agreement containing specific
regulations on bidding which are different from those of the Law on Bidding or
are not included in the Law on Bidding, the Government shall decide whether to
apply regulations on bidding following procedures as follows:
1.
Before negotiations, the governing authority of the project shall send a
written proposal to the authority in charge of negotiation on the application
of regulations on bidding which are different from those of the Law on Bidding
or are not included in the Law on Bidding. The contents of the written proposal
shall include:
a)
Regulations adopted by the donor or international organization which are
different from those of the Law on Bidding or are not included in the Law on
Bidding;
b)
Necessity and impact assessment of the application of the regulations mentioned
in point a of this Clause.
2.
The authority in charge of negotiation shall solicit opinions from the Ministry
of Foreign Affairs, Ministry of Justice, and relevant agencies on the proposal
to apply regulations on bidding which are different from those of the Law on
Bidding or are not included in the Law on Bidding and contents of international
treaties or foreign loan agreements. The enquired authorities shall respond
in writing to the authority in charge of negotiation within 5 working days
from the receipt of the request for opinions and relevant documents.
3.
Before signing international treaties or foreign loan agreements, the authority
in charge of negotiation shall request the Government to consider deciding
the application of regulations adopted by the donor or international
organization of which the State or Government of the Socialist Republic of
Vietnam is a member.
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1. A
bidder for construction, goods procurement, non-consulting service, or PC
package must be legally and financially independent from the following parties:
a)
The consultants that provide the following consulting services for that
package: preparation, verification of the engineering design, design of
construction drawing design, estimate, design of Front-End Engineering Design
(FEED); valuation; supervision and appraisal of the contract performance;
preparation and appraisal of the prequalification document or bidding
documents; evaluation of prequalification applications or bids; appraisal of
the prequalification result or contractor selection result; management of the
project or contract; other consulting services directly to the package;
b)
The employer specified in point d Clause 1 Article 6 of the Law on
Bidding.
2. A
bidder for consulting service package must be legally and financially
independent from the following parties:
a)
The consultants that provide the following consulting services for that
package: preparation, appraisal of the expression of interests (EOI) request, bidding documents; evaluation of the
EOIs or bids; appraisal of the EOI result or contract selection result;
management of the project or contract and other consulting services directly to
the package;
b)
The employer specified in point d Clause 1 Article 6 of the Law on
Bidding;
c)
Apart from point a and b of this clause, a bidder for consulting service
package related to a goods procurement, construction, or non-consulting service
package must be legally and financially
independent from the contractors of that package: preparation,
verification of the engineering design; design of the construction drawing,
estimate; preparation, evaluation of FEED; valuation; preparation, appraisal of
the prequalification document or bidding documents; evaluation of
prequalification applications or bids; appraisal of the prequalification result
or contractor selection result; appraisal, supervision of the contract
performance.
3. A
bidder for EPC, EP, or EC package must be legally and financially independent
from the following parties:
a)
The contractor that prepares, verifies FEED;
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c)
The contractor that prepares, verifies a technical-economic report in case of
neither preparing a feasibility study report nor preparing a FEED as per the
construction law;
d)
The consultant for project management, supervision, appraisal, or contract
management who works for or is hired by the employer;
dd)
The consultant that conducts valuation; the contractor that prepares, evaluates
the prequalification document or bidding documents; the consultant that
evaluates the prequalification applications or bids; the consultant that
appraises prequalification application result or contractor selection result;
other consultants directly participating in the contractor selection process;
e)
The employer specified in point d Clause 1 Article 6 of the Law on
Bidding;
The
EPC, EP, EC contract packages shall be formed based on FEED or basic design;
however, if engineering design is mandated, these contract packages cannot be
formed.
4. A
bidder for turnkey package must be legally and financially independent from the
following parties:
a)
The contractor that prepares, verifies the pre-feasibility study report;
b)
The consultant for project management, supervision, appraisal, or contract
management who works for or is hired by the employer;
c)
The consultant that conducts valuation; the contractor that prepares, evaluates
the prequalification document or bidding documents; the consultant that
evaluates the prequalification applications or bids; the consultant that
appraises prequalification application result or contractor selection result; other
consultants directly participating in the contractor selection process;
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5.
Except for the case where the bidder performing the design work of the EPC, EP,
EC, turnkey package must be legally and financially independent from the
consultants specified in Points a, b, c, d and dd Clause 3 of this Article,
Points a, b and c Clause 4 of this Article, consultants may provide single or
multiple consulting services within the same project or package below:
a)
Prepare, verify investment policy proposals;
b)
Prepare, verify pre-feasibility study reports;
c)
Prepare, verify feasibility study reports;
d)
Prepare, verify technical and economic reports;
dd)
Conduct construction survey;
e)
Prepare, verify design drawings and estimates;
g)
Prepare, appraise the overall contractor selection
plan, specific contractor selection plan, prequalification documents,
EOI requests, bidding documents, RFPs; evaluate prequalification applications,
EOIs, bids, and proposals; appraise the results of evaluating prequalification
applications, results of evaluating EOIs, and contractor selection results;
h)
Supervise construction.
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6.
The ratio of shares and capital contribution among parties is determined at the
bid submission deadline and based on the ratio reflected in the business
registration certificate, establishment decision, or other equivalent
documents.
7.
For bidders participating as a joint venture or consultants selected as a
joint venture, the capital ownership ratio, of other members will be determined
using the following formula:
Where:
Xi:
is the capital ownership ratio of other members in “the ith joint venture
party”;
Yi:
is the percentage (%) of the workload of “the ith joint venture party” in the
joint venture agreement;
n: is
the number of parties in the joint venture.
Article
5. Principles of incentives
1.
Bidders eligible for multiple incentives in the capacity and experience or
financial assessments will receive only the most advantageous incentive
per evaluation item.
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3.
For mixed packages, the calculation of incentives is based on all proposals of the bidders in the consulting work, supply
of goods, construction. Bidders qualify for incentives if they propose domestic
costs (costs of consulting, non-consulting, Vietnamese-origin goods,
construction) of at least 25% of the work value of the package.
4.
The bidder must prove that they, goods and services offered by the bidder are
eligible for incentives as prescribed in Clause 1, Article 10 of the Bidding
Law.
Article
6. Incentives for Vietnamese-origin goods
1.
Incentives for Vietnamese-origin goods with a domestic production cost ratio of less than 50% and no goods with a domestic production cost ratio of 50%
or more are determined as follows:
a)
For least-cost selection (LCS), non-incentive goods and drugs will be adjusted
for comparison and ranking by adding 7.5% of the bid price (after error correction, deviation adjustment,
and any discounts) offered for the goods to that bid price;
b)
For evaluated price selection, non-incentive goods and drugs will be adjusted
for comparison and ranking by adding 7.5% of the bid price (after error
correction, deviation adjustment, and any discounts) offered for the
goods to the bidder’s evaluated price;
c)
For quality- and cost-based selection (QCBS), incentive goods or drugs receive
an incentive point added to their aggregate score based on the following
formula:
Incentive
point= 7.5% x (incentive good or drug price/bid price (after error correction,
deviation adjustment, and any discounts)) x aggregate score
Where:
Incentive good or drug price is the bid price (after error correction,
deviation adjustment, and any discounts) of the incentive good;
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2.
Incentives for Vietnamese-origin goods with a domestic production cost ratio of
at least 50% are determined as follows:
a)
For least-cost selection (LCS), non-incentive goods shall be adjusted for
comparison and ranking by adding 10% of the bid price (after error correction,
deviation adjustment, and any discounts) to that bid price; incentive goods
with a domestic production cost ratio below 50% will be adjusted for comparison
and ranking by adding 2.5% of the bid price (after error
correction, deviation adjustment, and any discounts) to that bid
price; bidders offering Vietnamese-origin goods with a
domestic production cost ratio below 50% and employing at least 50% disabled,
war invalids, or ethnic minorities under valid 3-month contracts or longer at
the bid submission deadline are exempt from adding an amount to the
bid price for comparison and ranking;
b)
For evaluated price selection (LCS), non-incentive goods will be adjusted
for comparison and ranking by adding 10% of the bid price (after error
correction, deviation adjustment, and any discounts) to the bidder’s
evaluated price; incentive goods with a domestic production cost ratio below
50% will be adjusted for comparison and ranking by adding 2.5% of the bid
price (after error correction, deviation adjustment, and any
discounts) to the bidder’s evaluated price; bidders offering
Vietnamese-origin goods with a domestic production cost ratio below 50% and
employing at least 50% disabled, war invalids, or ethnic minorities under valid
3-month contracts or longer at the bid submission deadline are exempt from
adding an amount to the bid price for comparison and ranking;
c)
For quality- and cost-based selection (QCBS), incentive goods with a
domestic production cost ratio at least 50% receive an incentive point added to
their aggregate score based on the following formula:
Incentive
point= 10% x (incentive good price/bid price (after error correction,
deviation adjustment, and any discounts)) x aggregate score
Where:
Incentive good price is the bid price (after error correction, deviation
adjustment, and any discounts) of the good with a domestic production cost
ratio at least 50%.
Incentive
goods with a domestic production cost ratio below 50% will apply the formula in
point c clause 1 of this Article; bidders offering Vietnamese-origin goods with
a domestic production cost ratio below 50% and employing at least 50% disabled,
war invalids, or ethnic minorities under valid 3-month contracts or longer at
the bid submission deadline qualify for a 10% incentive coefficient;
d) In
cases stipulated in points a, b, and c of this Clause, bidders offering
Vietnamese-origin goods with a domestic production cost ratio below 50% and
employing at least 50% disabled, war invalids, or ethnic minorities under valid
3-month contracts or longer at the bid submission deadline shall be eligible
for a 12% incentive coefficient instead of 10%.
3.
Incentives for innovative Vietnamese-origin products and products stipulated in
point i Clause 1 Article 10 of the Law on Bidding are determined as follows:
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b)
For evaluated price selection, non-incentive goods shall be adjusted for
comparison and ranking by adding 15% of the bid price (after error correction,
deviation adjustment, and any discounts) to that bid price; incentive goods
with a domestic production cost ratio below 50% will be adjusted for comparison
and ranking by adding 7.5% of the bid price (after error
correction, deviation adjustment, and any discounts) to that bid
price; incentive goods with a domestic production cost ratio at least 50% will
be adjusted for comparison and ranking by adding 5% of the bid price (after
error correction, deviation adjustment, and any discounts) to the
bidder’s evaluated price;
c)
For quality- and cost-based selection (QCBS), bidders offering innovative Vietnamese-origin products and
products stipulated in point i Clause 1 Article 10 of the Law on Bidding
receive an incentive point added to their aggregate score based on the
following formula:
Incentive
point= 15% x (incentive good price/bid price (after error correction,
deviation adjustment, and any discounts)) x aggregate score
Where:
Incentive good price is the bid price (after error correction, deviation
adjustment, and any discounts) of the innovative
Vietnamese-origin product.
Non-innovative
Vietnamese-origin products and products other than products stipulated in point
i Clause 1 Article 10 of the Law on Bidding, bidders offering Vietnamese-origin
goods with a domestic production cost ratio below 50% shall be eligible for a
15% incentive coefficient instead of 7,5%; Vietnamese-origin products with a domestic production cost ratio at least
50% shall be eligible for a 15% incentive coefficient instead of 10%.
d)
For quality-based selection (QBS), bidders offering innovative
Vietnamese-origin products and products stipulated in point i Clause 1 Article
10 of the Law on Bidding will be adjusted for comparison and ranking by adding
7.5% of the aggregate score to the bidder’s aggregate score;
4.
Innovative Vietnamese-origin products receive incentives according to Clause 3
of this Article if they are:
a) Products
falling under the list of high-tech products prioritized for investment and
development or encouraged for development, as designated by the Prime
Minister's decision;
b)
Products, goods resulting from special scientific, technological, and innovative
tasks, products, goods resulting from domestic scientific, technological, and
innovative tasks as prescribed by the law on science, technology, and
innovation;
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d)
Semiconductor chip products;
dd)
Products that have won the Ho Chi Minh awards, state awards for science and
technology as stipulated by laws on emulation and commendation and laws on
science, technology, and innovation;
e)
New products created from research and development results at one of the
facilities of the National Innovation Center or national-level innovation
centers, provincial-level innovation centers;
g)
New products created from research and development results and recognized in
accordance with the law on technology transfer.
Innovative
products specified in this Clause are entitled to incentives for a period of 6
years from the first-time production and meeting the conditions for placing on
the market.
5.
Domestically circulated Vietnamese-origin goods (goods
manufactured in Vietnam) are entitled to the following incentives:
a)
Drugs:
Criteria
for determining domestically-produced drugs eligible for incentives comply with
the guidelines provided by the Ministry of Health;
b)
For goods other than those specified in Point a of this Clause and point I
Clause 1 Article 10 of the Law on Bidding:
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Direct
formula: D (%) = G*/G x 100%
Indirect
formula: D (%) = (G - C)/G x 100%
Where:
G*:
is the domestic production cost;
G: is
the quoted price of the goods in the bid or proposal minus the tax value; for
bidders who are manufacturers, G is the ex-works price (EXW price) of the
goods;
C: is
the value of foreign import costs, excluding taxes and fees related to import;
D: is
the percentage of domestic production costs of goods. If D ≥ 30%, then those
goods are entitled to incentives according to this Article and Articles 6, 7,
8, 9, 10, and 11 of this Decree.
For
products specified in point I Clause 1 Article 10 of the Law on Bidding, goods
eligible for incentives are determined in accordance with the laws managing
sectors and fields.
Article
7. Incentives for international bidding
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a)
For least-cost selection (LCS), non-incentive bidders shall be adjusted for
comparison and ranking by adding 7.5% of the bid price (after error correction,
deviation adjustment, and any discounts) to that bid price;
b)
For quality-based selection (QBS), incentive bidders will be adjusted for
comparison and ranking by adding 7.5% of the technical score to the bidder’s
technical score;
c)
For quality- and cost-based selection (QCBS), incentive bidders will be
adjusted for comparison and ranking by adding 7.5% of the aggregate score to
the bidder’s aggregate score;
2.
For non-consulting, construction, and mixed packages:
a)
For least-cost selection (LCS), non-incentive bidders shall be adjusted for
comparison and ranking by adding 7.5% of the bid price (after error correction,
deviation adjustment, and any discounts) to that bid price;
b)
For evaluated price selection, non-incentive goods will be adjusted for
comparison and ranking by adding 7.5% of the bid price (after error correction,
deviation adjustment, and any discounts) to the bidder’s evaluated
price;
c) For
quality- and cost-based selection (QCBS), incentive bidders will be adjusted
for comparison and ranking by adding 7,5% of the aggregate score to the
bidder’s aggregate score.
d)
For quality-based selection (QBS), incentive bidders will be adjusted for
comparison and ranking by adding 7,5% of the technical score to the bidder’s
technical score;
3.
For goods procurement packages, the application of incentives for
Vietnamese-origin goods shall comply with Article 6 hereof; the application of
incentives for products specified in point I Clause 1 Article 10 of the Law on
Bidding shall comply with Clause 3 Article 6 hereof.
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5.
Incentives for domestic bidders that produce Vietnamese-origin goods shall
comply with Article 10 hereof
6.
Incentives for information technology services specified in point i
Clause 1 Article 10 of the Law on Bidding shall comply with Clauses 1 and 2
hereof.
Article
8. Incentives for domestic bidding
1.
For goods procurement packages, the application of incentives for
Vietnamese-origin goods shall comply with Article 6 hereof; the application of
incentives for products specified in point i Article 10 of the Law on Bidding
shall comply with Clause 3 Article 6 hereof.
For
goods procurement packages with a package price under 500 million VND, the
decision to only allow bidders employing at least 50% disabled, war invalids,
or ethnic minorities under valid 3-month contracts or longer at the bid
submission deadline to participate in the procurement shall be made by the
employer. In cases where the employer decides to apply this requirement but no
bidders participate or no bidders meet the criteria, it will be re-organized to
allow participation from a wider pool of bidders.
2.
For construction packages with a package price of up to 5 billion VND,
incentives for micro and small enterprises shall comply with point dd Clause 2
Article 10 of the Law on Bidding.
3.
Incentives for individuals, domestic innovative start-ups, and domestic
bidders shall comply with Article 9 hereof.
4.
Incentives for domestic bidders that produce Vietnamese-origin goods shall
comply with Article 10 hereof
5.
Incentives for information technology services specified in point i
Clause 1 Article 10 of the Law on Bidding shall comply with Clauses 1 and 2
Article 7 hereof.
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1.
Domestic innovative start-ups offering innovative products specified in Clause
4 Article 6 hereof are exempted from the revenue
and same-industry operational history requirements (within 6
years of qualified product launch).
2.
Domestic bidders specified in point g Clause 1 Article 10 of the Law on
Bidding that offer their own products or services are exempted from the
competition assurance conditions in evaluation criteria for eligibility and
capacity requirements within 5 years from the date of recognition by the
competent authority.
3.
When goods of individuals, group of individuals, or
innovative start-ups which qualify as innovative products specified in Clause 4
Article 6 hereof participate in bidding, they are entitled to incentives
according to Clause 3 Article 6 hereof.
4.
When services of innovative start-ups which qualify as innovative products
specified in Clauses 1 and 2 Article 7 hereof participate in domestic or
international bidding, they are entitled to incentives according to Clauses 1
and 2 Article 7 hereof.
Article
10. Incentives for domestic bidders that produce Vietnamese-origin goods
1.
For domestic bidders adopting transferred technology to produce
Vietnamese-origin goods in accordance with the bidding documents:
a)
They are exempt from the revenue and same-industry operational history
requirements (within 5 years of qualified product launch);
b)
Transferred technologies on the lists for investment incentives and technology
transfer are exempt from the requirements of demonstrating successful operation
and user confirmation of quality, in addition to the incentives in point a of
this clause. If the technology transferor guarantees the quality of products
produced by the bidder at the employer's request, the technology transferee
(bidder) can use the transferor's data and test results to demonstrate the
transferred technology's effectiveness and suitability for the produced goods.
This evidence can be based on the technology transfer contract or technology
transfer certificate issued in accordance with Clause 4 hereof by a competent
authority;
c)
All participating bidders will be evaluated on the same basis for capacity,
experience, goods quality, technical requirements, and other package requirements,
except for those specified in points a and b of this clause. Where necessary,
the employer can make additional requests to bidders receiving incentives,
including: extended warranty period, stricter production quality control,
factory testing, and comprehensive operation and maintenance services, and
other services to ensure reliable product operation.
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a)
They are exempt from the revenue and same-industry operational history
requirements (within 5 years of qualified product launch before the bid
submission deadline). Bidders are entitled to this incentive from the
time the bidder is established but not more than 7 years from the bid
submission deadline;
b)
They receive incentives as prescribed in Point b, Clause 1 of this Article for
the technology transfer component from other entities (if any).
3.
Individuals and groups of individuals offering innovative products specified in
Clause 4 Article 6 hereof are exempted from the revenue
and same-industry operational history requirements (within 6 years
of qualified product launch).
4.
Domestic bidders adopting transferred technology or technology encouraged for
transfer to produce Vietnamese-origin goods shall be determined on the basis of
Certificate of registration of technology transfer, Certificate of technology
encouraged for transfer in accordance with technology law and investment law.
Article
11. Incentives for products and services certified with ecology labels, energy
labels and equivalent
1.
Products and services certified with ecology labels, energy labels and
equivalent as per the law are entitled to incentives according to Clause 3,
Article 10 of the Bidding Law.
2. The employer, based on the package nature and usage needs,
may specify requirements for purchasing products, services certified with
eco-labels, energy labels, and equivalents in RFPs and bidding documents, based
on the compliance with Clause 3 Article 4 of the Law on Bidding; and specify
price evaluation formula for prioritizing products, services certified with
eco-labels, energy labels, and equivalents.
Article
12. Sustainable bidding
Based
on the package nature, the employer may specify sustainable bidding
requirements in the bidding documents and RFPs in one or more of the following
methods:
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2.
Specifying the price evaluation formula, which quantifies the sustainability
factors of bidding into the price evaluation formula for comparison and ranking
of bidders.
Article
13. Rules of applying contractor selection methods
1.
The employer may select to apply contractor selection methods in accordance
with Article 29b of the Law on Bidding.
2. If
the package meets the conditions for applying online quotations under
simplified procedure and online procurement stipulated in Clause 3 Article 99,
Article 103 hereof but the employer decides not to apply these methods, the
competitive bidding or shopping method shall apply in accordance with Article
21 and Article 24 of the Law on Bidding.
Article
14. Contractor selection fees
1.
For international bidding, the employer will determine, based on the project
scale and nature, the purchase price of the electronic bidding
document or RFP to be paid by bidders, aligning with international
practices.
For
state-funded packages, revenues from selling electronic bidding
documents or RFPs shall be transferred by the employer to the state budget
according to the State Budget Law. For non-state-funded packages,
revenues from selling electronic bidding documents or RFPs are the
employer's revenues and are managed and used according to the employer's
financial mechanism.
2.
Fees for preparation and appraisal of documentation during the
contractor selection process:
a)
The fee for hiring a bidding consultant to perform any work
during contractor selection process is not subject to
the fees outlined in Clauses 3, 4, 5, 6, and 7;
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c) If
an expert team or appraisal team is established by the employer to prepare and
evaluate prequalification documents, EOI requests, bidding documents, and RFPs;
to evaluate prequalification applications, EOIs, bids, and proposals; to
appraise contractor selection results, the costs incurred in their tasks are
included in the contractor selection cost estimate according to Clauses 4, 5, 6
and 7 of this Article;
d)
The costs specified in Clauses 3, 4, 5, 6 and 7 of this Article are determined
in the total estimated investment, procurement estimate, investment preparation
estimate, or recurrent expense estimate of the agency;
dd)
The management and use of the costs specified in Clauses 3, 4, 5, 6 and 7 of
this Article are carried out according to the employer's financial mechanism.
3.
The fee for preparing or appraising the overall contractor selection
plan is 0.5% of the feasibility study report fee, capped at a minimum
of 5,000,000 VND and a maximum of 40,000,000 VND.
4.
Fees for preparing and appraising documentation:
a)
The fee for preparing an EOI
request or prequalification document is 0.1% of the package
price, capped at a minimum of 2,000,000 VND and a maximum of 30,000,000 VND;
b)
The fee for appraising an EOI
request or prequalification document is 0.06% of the package
price, capped at a minimum of 2,000,000 VND and a maximum of 30,000,000 VND;
c)
The fee for preparing bidding documents or RFP is 0.2% of
the package price, capped at a minimum of 3,000,000 VND and a maximum of
60,000,000 VND;
d)
The fee for appraising bidding documents or RFP is 0.1% of
the package price, capped at a minimum of 2,000,000 VND and a maximum of
60,000,000 VND.
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a)
The fee for evaluating an EOI request
or prequalification application is 0.1% of the package price, capped
at a minimum of 2,000,000 VND and a maximum of 30,000,000 VND;
b)
The fee for evaluating a bid or proposal is 0.2% of
the package price, capped at a minimum of 3,000,000 VND and a maximum of
60,000,000 VND;
6.
The fee for appraising the contractor selection result, including
cases where no bidder is selected, is 0.1% of the package price, capped at
a minimum of 3,000,000 VND and a maximum of 60,000,000 VND.
7.
The fee for preparing and appraising EOI requests, prequalification
documents, bidding documents, or RFPs for similar packages within the same
project or procurement by the same employer, or for packages requiring
contractor selection reorganization, is capped at 50% of
the fee specified in Clause 4 of this Article. If a part of
a divided package needs to be re-bid, the maximum fee is 50% of the
estimated value of the re-bid part.
If
contractor selection needs to be reorganized, the contractor selection cost
will be calculated based on the specific circumstances of the package and added
to the project and procurement estimate. In case of international
bidding, the document translation fee is calculated in
accordance with market prices, ensuring the effectiveness of the package.
8.
The petition fee paid to the Petition Resolution Council (hereinafter
referred to as “Advisory Council”) regarding selection results is calculated as
a percentage of the bid price of the petitioning bidder, as follows:
a)
For bid price less than 50,000,000,000 VND, the rate is 0.03%, but
not less than 5,000,000 VND;
b)
For bid price from 50,000,000,000 VND to less than 50,000,000,000
VND, the rate is 0.025%, but not less than 15,000,000 VND;
c)
For bid price from 100,000,000,000 VND to less than 200,000,000,000 VND, the
rate is 0.02%, but not less than 25,000,000 VND;
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For
packages applying the single-stage and two-envelope method, two-stage and
two-envelope method, in case the bidder requests not to open the financial
proposal, the petition fee for the Advisory Council is determined
based on bid price.
9.
Fees for contractor selection on VNEPS include:
a)
The fee for maintaining the name and capacity profile of the bidder
on VNEPS is 330,000 VND for 1 year (including value added tax). Bidders
pay this fee from the second year onwards after the year of
registration to participate in VNEPS;
b)
The fee for submission of bids on VNEPS is 330,000 VND for 1 package (including
value added tax) for competitive bidding, limited bidding,
online quotation under ordinary procedures; 220,000 VND for 1
package (including value added tax) for shopping method;
c)
The winning bidder fee for a package under competitive bidding,
limited bidding, shopping method, or online bidding under ordinary procedures,
applying online bidding:
For
undivided packages: 0.022% of the successful bid but not greater than
2,200,000 VND (including value added tax).
For
packages divided into multiple parts, total winning bidder fee for all winning
bidders must not exceed 2,200,000 VND (value added tax included). In case
the value of 0.022% multiplied by the total successful bid of the package is
lower or equal to 2,200,000 VND, the winning bidder fee of each bidder is
0.022% of the total successful bid for the package part that the
bidder wins. In case the value of 0.022% multiplied by the total
successful bid of the package exceeds 2,200,000 VND, the winning bidder fee of
each bidder is calculated according to the following formula:
The
winning bidder fee (including value added tax) = 2,200,000 VND x (total successful
bid for the package part that the bidder wins/total successful bid of the
package);
d)
The connection fees for electronic bid security between VNEPS and various
institutions are determined by agreements between the VNEPS operator/supervisor
and these entities, which include domestic credit institutions, branches of
foreign banks established under Vietnamese law, domestic non-life insurers, and
branches of foreign non-life insurers established under Vietnamese law.
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Article
15. Detailed expenditures paid to the Advisory Council to resolve bidders'
petitions on contractor selection results
1.
Detailed expenditures: direct remuneration for members of the Advisory Council
to perform tasks, per diem, expenditures on stationery, translation and
interpretation, printing, meetings and other expenses serving the resolution of
petitions.
The
use of funds to pay the Advisory Council for resolving petitions shall be
performed in lump-sum payments. The total amount of expenditures must not
exceed the fee that the petitioner has paid as prescribed in Clause 8, Article
14 of this Decree.
2. If
the bidder's petition is upheld, the petitioner shall be refunded the amount
equal to the amount already paid.
3.
The bidder shall not be refunded the amount already paid in the following
cases:
a)
One or more aspects of the bidder's petition are determined to be incorrect;
b)
The bidder withdraws the petition during the resolution process.
Article
16. Preparation, submission, appraisal of, and approval for the overall
contractor selection plan for the project
1.
Depending on the project bidding's scale and nature, the employer (if
appointed) may request the competent person to consider developing an
overall contractor selection plan. If the employer has not been appointed yet,
the agency assigned to prepare the project may request the competent person to
consider developing an overall contractor selection plan.
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a)
Decision on investment policy for programs and projects;
b)
Project approval (if any);
c)
International treaties, loan agreements for ODA-funded projects, concessional
loans from foreign sponsors (if any);
d)
Project financing plan or project funding source plan (if any);
dd)
Relevant legal documents (if any).
The
overall contractor selection plan includes the contents specified in Article 17
of this Decree. The employer may hire a consultant to make an
overall contractor selection plan for the project in case the employer's
personnel are not qualified to do that.
3.
The employer is responsible for submitting the overall contractor selection
plan to the competent person for review and approval.
4.
Based on the request for approval for the overall contractor selection
plan, the competent person shall approve the overall contractor selection plan
after approving the project itself. The contents of contractor selection plan
must align with the approved overall contractor selection plan; if there are
any deviations, the employer shall report them to the competent person for
consideration and decision without resubmitting and reapproving the overall
plan.
5.
The employer is responsible for publishing the overall contractor selection
plan on VNEPS within 5 working days from the date on which the document is
issued.
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1.
Analysis of the project execution context:
Determine
specific requirements and objectives of the project, analyze factors in the
project execution context that can impact bidding activities; the bidder's
willingness to bid; factors include: legal regulations, economic, social,
technological factors, sustainable bidding, and other factors.
2.
Evaluation of the employer's capacity, resources, and experience:
The
evaluation of the employer's capacity, resources, and experience in bidding
includes:
a)
The capacity to carry out the contractor selection process from the contractor
selection overall plan (if any) to contract management;
b)
The employer's bidding performance, through the following
indicators: the average savings rate; the average number of bidders
participating in competitive bidding, limited bidding, shopping, online
quotation under normal procedures, the percentage of packages with
only one participating bidder under competitive bidding, limited
bidding, shopping, or online quotations under normal procedures, in the total
number of packages; percentage of packages with petitions on other contents during the contractor selection process,
contractor selection results; the number of instances where the employer did
not respond to requests for clarification on bidding documents or bidders’
petitions regarding bidding documents, other aspects in the contractor
selection process and contractor selection results; other indicators (if
any);
c)
Experience in executing similar projects, resolving petitions in contractor
selection, complaints and denunciations;
d)
Other factors.
3.
Market analysis and consultation:
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b)
Market consultation is carried out in one or more of the following ways: refer
to the most recent market consultation results for similar goods and services;
post market consultation questions on appropriate media; research catalogs and
brochures of manufacturers, suppliers, distributors, and agents; refer to the
experience of other employers who have conducted market consultations and
consult on the results of contractor selection for similar goods and service
procurement packages; organize market consultation conferences with potential
bidders on an open and transparent basis; organize information surveys from
production and business units; consult with experts in relevant fields, print
newspapers, magazines, specialized market analysis publications, information on
the Internet and other appropriate forms;
c)
The employer can hire consultants to research and analyze the market, use the
advice of experts or independent authorities or businesses in the market in
making an overall contractor selection plan, specific contractor selection
plan, bidding documents, RFPs but must ensure the principles of competition,
fairness and transparency;
d) In
case of not making an overall contractor selection plan, the employer can
conduct market analysis and consultation to prepare a specific contractor
selection plan, bidding documents, and RFPs.
4.
Risk identification and management in bidding:
a)
Analyze main risks related to the operating environment, market conditions, the
capacity of the entity that organize contractor selection and the complexity of
bidding activities;
b)
Assess the likelihood and impact of each risk on the project's bidding;
c)
Develop a management plan and minimize risks in the project's bidding through
the application of appropriate forms and methods of contractor selection,
technical requirements, standards and methods of evaluation of contract
conditions.
5.
Specific objectives of bidding activities:
Identify
specific objectives of bidding activities (including specific objectives on
sustainable procurement, if applicable) to ensure the overall objectives of the
project.
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Develop
an overall schedule to carry out main tasks and the package in accordance with
the project execution schedule.
7. Management
of contractor selection:
a)
Package division: the package division is based on the scale and nature of the
project's tasks, project execution progress and based on the results of market
analysis and consultation; determine the number of packages and the scope of
work of each package, identify packages to be divided into many parts;
b)
Form and method of contractor selection: determine the appropriate form
and method of contractor selection for each package of the project, clearly
stating whether the package applies centralized procurement, whether the
package applies shortlisting, domestic or international bidding;
c)
Contract type: determine the appropriate contract type for each package;
d)
Key considerations when developing bidding documents, RFPs, and managing
contract performance (if any).
Article
18. Package price and contractor selection duration
1.
The package price accurately reflects all costs to perform the package,
including: contingency costs (indexation and volume variations), fees, charges
and taxes. For construction packages applying fixed unit price and adjustable
unit price contracts, contingency costs include provisional amounts (if any)
and are only used when they incur. Packages with a short performance duration
and little possibility of risks or indexation may have a zero contingency cost
for indexation. Contingency costs are determined by the employer according to
the nature of each package but must not exceed the maximum level prescribed by
law (if any). In case the law stipulates that the goods are exempt from taxes
or free of charge, the package price does not include exempted taxes and
fees. The package price is updated within 28 days before the bid opening
date if necessary. In case the package consists of many separate parts, clearly
state the estimated value of each part.
2.
Grounds for determining package price:
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a)
Approved package estimate (if any) in case the law has regulations on making
estimates or has instructions on norms and unit prices. If conditions for an
estimate are unmet, the package price will be determined based on the
following: average prices of projects and packages completed within a specified
timeframe; total investment or estimated total investment according to the
investment cost per unit, estimated procurement value; expert salaries and
number of working days; other related information;
b)
Description and scope of work, number of experts, performance duration,
capacity and experience of consultants, expert salaries in accordance with law
(if any) and other factors;
Ministries
responsible for managing the labor sector shall take lead and cooperate with
other relevant ministries and agencies to issue regulations on salaries of
domestic consultant experts;
c)
Contractor selection results for similar goods and services for a maximum
period of 12 months before the date of submitting the specific contractor
selection plan, which may be adjusted based on changes in procurement volume or
market prices for the goods or services needed so as to determine the package
price. The market price at procurement time can be determined through market
consultation specified in Point b, Clause 3, Article 17 of this Decree. If no
similar goods or services were procured within the past 12 months, the package
price shall be determined by contractor selection results for similar goods or
services from previous years, adjusted for changes in procurement volume and
market prices. When submitting the specific contractor selection plan, the
employer attaches a list of selection results of similar goods and services
extracted from VNEPS (if any);
d) At
least one quotation is required for goods or services; collecting more than one
quotation is encouraged. If multiple quotations are received, the average price
should be used.
For packages for
procurement of drugs; chemicals, testing supplies, medical equipment;
components, accessories, and replacement materials used for medical equipment:
based on specialized requirements, the employer decides on technical criteria
and requests for quotations. The employer shall publish a request for
quotations on VNEPS. It is encouraged to publish such request on its portal or
website, Ministry of Health’s portal, or public service portal on medical
device management. Bidders must submit quotations within a minimum period of 10
days from the date on which the request for quotations is published on VNEPS.
If there are two or more quotations, the employer may choose the highest
quotation that aligns with their budget and professional requirements.
For
other goods and services, the employer may publish the request for quotations
on VNEPS or other methods; bidders must submit quotations within a minimum
period of 5 days from the date on which the request for quotations is published
on VNEPS.
The
employer is responsible for collecting quotations in a public and transparent
manner. The quoting entity must provide accurate prices of goods or services
based on their supply capabilities; and ensure the quotation complies with
competition law, anti-dumping regulations, and fair pricing practices;
dd)
Price appraisal results of an organization with the function of providing price
appraisal services or of the price appraisal council in accordance with
regulations (if any);
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g)
Declared prices that are announced or provided by competent authorities.
3.
For divided packages, the package price shall be determined based on
information as prescribed in Clause 2 hereof, where each part of the package
may be based on different contents of information as prescribed in Clause 2
hereof.
4.
The employer can consider sustainable bidding factors as prescribed in
Article 12 of this Decree and environmentally friendly products and services
when determining the package price. In this case, the package price includes
the costs necessary to meet sustainable bidding requirements.
5.
For contractor selection within the procurement estimate, the employer must
state the following contents in the specific contractor selection plan:
a)
The state budget estimates approved by competent authority according to the
budget year or expected budget estimate to be allocated in the budget year or
expected budget estimate to be allocated in next years in case of procurement for the next year or procurement for many
years; expected legal financial resources in
the fiscal year or expected legal financial resources for the following years
in case of procurement for the next year or procurement for many years;
b)
Value of procurement performed in the fiscal year or budget year;
c)
The part of the budget not used for procurement;
d)
The procurement estimate, calculated by subtracting the budget specified in
points b and c from the budget specified in point a of this Clause . The
employer is not required to appraise or approve the procurement estimate.
In
case the employer has available funds for procurement in the budget year or
fiscal year and does not use the expected
revenue for the year, it is not required to determine the procurement estimate
according to this Clause. In this case, the procurement estimate is the
available funding for procurement in the budget year or fiscal year.
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6.
For procurement estimate, employers can pre-select bidders for next year's
procurement during this year's procurement estimate process to ensure an
uninterrupted supply of goods, services, and construction. The specific contractor
selection plan must include procurement estimates for the following years to
set the package price.
7. Based on the scale,
nature, and progress of the project or package, the employer shall decide the
contractor selection duration for each package, which is the number of days
from the date of issuing bidding documents/RFPs to the date of receiving the
contractor selection results, incorporating appraisal time. In case the package
applies the short list selection procedure, the contractor selection duration
is from the date of issuing the prequalification documents and EOI requests
until the date of contractor selection results. If necessary, the time for
evaluating bids, proposals, and appraisal can be clearly stated.
8.
For the approved estimates as prescribed in point c Clause 8 Article 39 of the
Law on Bidding and Clause 2 Article 140 of this Decree, in the case where there
are regulations on preparation and authority for approval of estimates, the
preparation and approval of estimates shall comply with these regulations;
otherwise, the employer or the competent authority shall approve the estimates.
Article
19. National database on bidders and quality of goods used
1.
National database of bidders includes:
a)
Information about the bidders’ legal status;
b)
Information about the bidder's violations;
c)
Information about the bidder's capacity and experience, including: financial
statements or documents on revenue and net assets; the implementation of tax
declaration and tax payment obligations; financial resources; key personnel;
major machinery and equipment; contracts completed or ongoing under its
execution, production capacity, contracts with public main contents within the
scope of the Bidding Law;
d)
Information about the bidder's reputation in participating in bidding,
including information about violations during the bidding process specified in
Clause 1 Article 18 of this Decree;
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e)
Other information about bidders.
2.
National database on quality of goods used includes the following information:
a)
Name of goods;
b)
Origin, manufacturer, marking, label;
c)
Main specifications;
d)
Employer, goods users;
dd)
Quality of goods as prescribed in Clauses 5, 6 and 7, Article 20 of this
Decree;
e)
Other information.
3.
The national database on bidders and quality of goods used is regularly updated
to ensure objective and truthful information for contractor selection.
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Article
20. The employer or unit with procurement
1.
Except in cases where the bidder is simultaneously ranked first in multiple
packages or due to force majeure, the bidder's reputation in participating in
the bidding will be assessed when performing the following acts:
a)
The bidder fails to participate in, or refuses document verification, or has
completed the document verification but refuses to sign the document
verification minutes during the bid or proposal's validity period;
b)
The bidder fails to participate in, or refuses contract negotiation (if any),
or has participated in contract negotiation but refuses to sign the
contract negotiation minutes during the bid or proposal's validity period,
except for the case specified in Clause 7 Article 45 of this Decree;
c)
The bidder is selected as the winning bidder but does not proceed or refuses to
finalize the contract or framework agreement or fails to sign the contract or
framework agreement, except for the case specified in Clause 4 Article 34 of
this Decree;
d)
The bidder has signed the framework agreement but does not proceed or refuses
to finalize the contract or fails to sign the contract.
dd)
The bidder withdraw the bid, proposal after the bid submission deadline and
during the bid or proposal's validity period;
e)
The bidder fails to submit the original copy of bid security at the employer's
request or fails to pay in cash, or fails to submit a deposit in cheque, letter
of guarantee, or certificate of surety bond insurance in accordance with
regulations of laws on bidding;
g)
The successful bidder fails to furnish the required performance security;
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i)
The bidder fails to arrange key personnel, main construction equipment to
implement the construction package, PC package, construction part in the EC
package as committed in the bid for domestic bidding.
2.
Within 7 working days from the dates on which bidders commit any acts specified
in Clause 1 of this Article, the employer shall post the list of violating
bidders and related documents on VNEPS, specifically stating the dates on which
the acts were committed. For consulting service packages, information about the
bidder's reputation in participating in bidding serves as basis for technical
evaluation (if any). For other packages, bidders in this list must provide bid
security with a value three times higher than the required value for other
bidders within a period of 02 years from the last time they committed the acts
specified in Clause 1 of this Article without being considered the technical
evaluation during the contractor selection process.
3.
Information about the bidder's contract performance results includes:
a)
Progress of contract performance;
b)
Quality of goods, services, works, including incidents that occur during
contract performance (if any) and other relevant factors;
c)
Violations of contract, termination of contract and reasons;
d)
Other information (if necessary).
4.
The employer or unit with procurement needs in centralized
procurement shall publish the bidder's contract performance results on VNEPS.
Contract performance results must be published for each contract, based on the
completed work scope. The results can be published during or after the package
performance period but no later than 6 months from the period ends. If the
warranty period is longer than 6 months, the employer or unit with procurement
needs in centralized procurement must also update the bidder's contract
performance results after completing the warranty obligation (if any).
Within
20 days from the date on which the employer or unit with procurement needs
in centralized procurement posts information about the bidder's contract
performance results, the bidder may send feedback on VNEPS. If the bidder’s
feedback is correct, the employer or the unit with procurement needs
in for centralized procurement is responsible for updating the
information.
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a)
Actual quality of goods compared to provisions in the contract;
b)
The severity of good defects and the actions taken to remedy them, including
replacement of goods (if any);
c)
Frequency of defects and problems of goods and quality of warranty, repair and
remedial services (if any);
d)
Reliability, durability, performance, capacity (if necessary);
dd)
Other information (if necessary).
6.
Information on the quality of goods used for drugs, testing supplies,
medical equipment and supplies and components for preparing the medical
equipment shall comply with the law on pharmacy, medical equipment.
7.
The employer or unit with procurement needs in centralized procurement shall
publish the quality of goods used as prescribed in Clause 5 of this
Article on VNEPS. The quality can be published during or after the package
performance period but no later than 6 months from the period ends. If the
warranty period is longer than 6 months, the employer or unit with procurement
needs in centralized procurement must also update the quality of goods
used after completing the warranty obligation (if any).
Within
20 days from the date the employer or unit with procurement needs
in centralized procurement posts information about the quality of goods
used, the bidder may send feedback on VNEPS. If the bidder’s feedback is
correct, the employer or the unit with procurement needs in for
centralized procurement is responsible for updating the information.
8.
The employer or unit with procurement needs in centralized procurement
shall take legal responsibility for the truthfulness and objectivity of
information on published contract performance results and quality of goods
used.
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Article
21. Capacity and experience requirements for expert teams and
appraisal teams
1.
Members of the expert team and appraisal team must meet the following
requirements:
a)
Have a professional certificate in bidding, except for the cases
specified in Clauses 2 of this Article;
b) Obtain
at least a bachelor’s degree; for packages in the fields of security, national
defense, education, the employer shall decide to select members to participate
in the expert team, appraisal team to ensure the members’ capacity;
c)
Have active legal capacity as per the law; not being prosecuted for criminal
liability;
d)
Have at least 3 years of work in one of the fields related to the
legal, technical, financial aspect of the package: have experience or
perform technical-related tasks stated in the EOI request, prequalification
document, bidding document, RFP or financial- or legal-related tasks.
2.
For packages in projects related to science, technology, and innovation as per
the laws on science, technology, and innovation; projects applying high technology
as per the laws on high technology and projects applying new technology as per
the laws on technology transfer, the employer may decides to select members to
participate in the expert team, appraisal team to ensure they have the capacity
to perform the assigned tasks regardless of the qualifications in Points a and
d Clause 1 of this Article, except in cases where the members of the expert
team, appraisal team are individual consultants or individuals from bidding
consulting organizations.
In
case the opinion of specialized experts is needed, these experts are not
required to have a professional certificate in bidding.
3.
For the medical field, in the case where the employer does not have
personnel who meet the requirements specified in Clause 1 of this Article, they
may mobilize and assign tasks to personnel under their management authority or
invite cadres from the Department of Health, Ministry of Health, and experts in
the medical field to participate in the expert team, appraisal team, regardless
of the qualifications in Points a and d Clause 1 of this Article, or hire a
consulting entity. The organization of contractor selection must meet the
objectives of bidding which are competition, fairness, transparency, economic
efficiency, and accountability.
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1.
Information about contractor selection is publicly posted on VNEPS in
accordance with Articles 7 and 8 of the Law on Bidding. The employer shall post
the following information on VNEPS:
a) Untrustworthy
bidders
b)
Contractors having their contract terminated due to their faults;
c)
Contractors that are prohibited from participating in bidding activities as per
laws on bidding and other violating organizations and individuals.
The
employer may modify this information by attaching the decision on modifications
and specifying the reasons for the modifications. The employer shall take
responsibility for the amended information.
2.
The Ministry of Finance shall elaborate regulations on posting, management, and
use of information as prescribed in Clause 1 of this Article.
Article
23. Registration and management of accounts on VNEPS
1.
Registration to participate in VNEPS is carried out according to the following
process:
a)
Organizations and individuals fill into the registration form created on VNEPS
or National Public Service Portal (if any);
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c)
The individual submits an application on VNEPS or National Public Service
Portal (if any), including: Application form specified in point a of this
Clause, which is electronically signed or authenticated by the applicant; copy
of passport or equivalent document for the individual with foreign nationality.
2.
Update of account information on VNEPS is done as follows:
a)
Updated information includes: additions and modifications to registered
information; supplementing and modifying roles in bidding activities;
terminate, suspend, and restore participation status;
b)
Organizations and individuals update account information and perform digital
signature confirmation on VNEPS.
3.
The documentation specified in Clauses 1 and 2 of this Article will be
processed within 2 working days from the receipt of the request on VNEPS. The
results of processing documentation are announced on VNEPS, National Public
Service Portal (if any), and e-mails.
4.
Organizations and individuals who provide false information according to
Clause 2 hereof or Articles 7 and 8 of the Law on Bidding shall have their
accounts locked for 12 months upon detection.
5. In
case where a bidding consultant is hired to form the expert team, appraisal
team or to provide bidding consulting services, the consultant is not allowed
to post the content under the responsibility of the employer stipulated in
Articles 7 and 8 of the Bidding Law on behalf of the employer. In case a
bidding consultant, any organizations or individuals uses their account to post
information on behalf of the employer, the bidding consultant, organization, or
individual will have their account locked for 6 months upon detection.
Chapter
II
OFFLINE COMPETITIVE BIDDING, LIMITED
BIDDING FOR NON-CONSULTING, GOODS PROCUREMENT, CONSTRUCTION, MIXED PACKAGES
UNDER SINGLE-STAGE METHOD
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Article
24. Detailed procedures
1.
Contractor selection preparation, including:
a)
Shortlist (if necessary);
b)
Prepare bidding documents;
c)
Appraise (if any) and approve bidding documents.
2.
Contractor selection organization, including:
a)
Invite bids;
b)
Issue, modify and clarify bidding documents;
c)
Prepare, submit, receive, manage, modify, and withdraw bids;
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3.
Evaluation of bids and submission of contractor selection results, including:
a)
Check and evaluate the validity of bids:
b)
Evaluate bids in details and rank bidders (if there is more than 1 bidder);
c)
Submit bid evaluation result;
4.
The contract negotiation (if any) shall comply with Article 45 of this Decree
for goods procurement packages, construction packages, non-consulting
service packages applying international bidding, mixed packages, and packages
applying limited bidding as prescribed
in Clause 1 Article 22 of the Law on Bidding.
5.
Appraise, approve, and publicize the contractor selection result and explain
reasons for unsuccessful bidders upon their requests (if any).
6.
Finalize, sign, and manage contract performance.
7.
Bidding in advance stipulated in Article 42 of the Law on Bidding shall comply
with Clauses 1, 2, 3, 4, and 5 hereof. The finalization, signing, and
management of the contract performance stipulated in Clause 6 hereof shall only
be carried out after the project has been approved for investment.
For
goods procurement packages, in addition to organizations, individuals and group
of individuals may also participate as bidders to offer their own innovative
products in accordance with Clause 4 Article 6 of this Decree.
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Based
on the scale and nature of the package, the competent person decides to
apply the shortlisting procedure. The application of shortlisting
procedure must be recorded in the specific contractor selection plan.
1.
For competitive bidding:
a)
Prepare prequalification documents:
The
prequalification documents include the following contents: brief
description of the project, procurement estimate, package; instructions on
preparing and submitting prequalification applications; evaluation criteria for
the validity of prequalification applications; criteria for bidder capacity and
experience.
Prequalification
applications are evaluated using pass/fail criteria, which define the minimum
acceptable level for each element of the bidder's capacity and experience;
b)
Appraisal and approval of prequalification applications:
The
appraisal of prequalification applications is not required; in cases where an
appraisal is requested, it shall comply with Article 135 of this Decree before
approval. The approval of prequalification applications is done in
writing based on the approval report and appraisal report (if any) of the
prequalification documents;
c)
Invitation for pre-qualification applications shall comply with Point b, Clause
1, Article 8 of the Bidding Law;
d)
Issue prequalification documents:
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dd)
Receive and manage prequalification applications:
The
employer shall confidentially receive and manage prequalification
applications until the preliminary results are announced;
e)
Open and evaluate prequalification applications:
Prequalification
applications are submitted by the deadline and at the location specified
in the prequalification documents and are opened immediately after the bid
submission deadline. The record of the prequalification application opening
will be sent to participating bidders and posted on VNEPS within 24 hours upon
bid opening. Prequalification applications submitted after the bid submission
deadline are invalid, cannot be opened and will be disqualified. The evaluation
of prequalification applications is carried out according to the evaluation
criteria specified in the prequalification documents. Bidders whose
prequalification applications meet all capacity and experience requirements
will be shortlisted.
Bidders
who are individuals or groups offering innovative products that meet the
requirements in Clause 4, Article 6 of this Decree may be exempt from certain
criteria outlined in Clause 3, Article 10 of this Decree.
g)
Submit, appraise, and approve prequalification results:
The
expert team shall prepare the prequalification application and submit it to the
employer for consideration without appraisal. The prequalification application
shall be appraised upon request of the employer in accordance with Clauses 1
and 2 Article 136 of this Decree. based on the prequalification approval
proposal report and appraisal report (ì any), the employer shall approve the
results in writing. If a shortlist is created, the prequalification
approval shall specify successful bidders and relevant notes (if any). If a
shortlist is not created, the prequalification approval must clearly state the
reason.
h)
Publish the shortlist: the shortlist will be posted as required in Point b
Clause 1 and Clause 4 Article 8 of the Law on Bidding and shared with bidders
who submitted prequalification applications.
2.
For limited bidding:
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b)
After approval, the shortlist is posted according to Point b, Clause 1 and
Clause 4, Article 8 of the Law on Bidding.
3.
Shortlisted bidders cannot form a joint venture for this bidding process; If
they participate as a joint venture with a non-shortlisted bidder, it must be
granted the approval by the employer before the bid deadline.
Article
26. Preparation of bidding documents
1.
Grounds for preparing bidding documents:
a)
Approved overall contractor selection plan (if any);
b)
Approved specific contractor selection plan;
The
draft bidding documents shall be made after the contractor selection plan is
approved or may be made during the formulation of contractor selection plan but
must ensure approval after the contractor selection plan is approved
c)
Documentation on design, drawings, and notes to the package (if any);
d)
Technical specifications of the package including: characteristics,
specifications, technology requirements, service quality, inspection, testing,
taking-over inspection and other technical requirements ( if any);
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e)
Legal regulations on taxes, fees, incentives in contractor selection;
g)
Other related grounds.
2. Bidding documents
must provide all necessary information for bidders to prepare competitive bids
and cannot contain any restrictions that limit bidder participation or give any
bidder an unfair advantage, which may cause unfair competition as prescribed in
Clause 4 Article 44 of the Law on Bidding. The bidding documents must contain:
a)
Instructions to bidders, additional purchase option (if any);
b)
Bid data sheet;
c)
Evaluation criteria for the validity of bids; bidder’s capacity and experience
(if any); technique; finance, trade; information about the bidder's contract
performance result and the quality of similar goods used.
In
case of using special subcontractors, bidding documents must specify the
scope of work and requirements for the capacity, experience of the special
subcontractors
d)
Bidding and bid forms;
dd)
Scope of supply, technical requirements;
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g)
Documents, drawings and other contents (if any).
3.
The bidding documents must specify the criteria for evaluating the validity of
bids, including:
a)
There is the original bid;
b)
There is a letter of bid signed and stamped by the bidder's legal
representative (if any) according to the requirements of the bidding documents;
the signing date of the letter of bid must be after the issuance date of the
bidding documents; do not propose different bid prices or include conditions
that are disadvantageous to the employer. For a joint venture bidder, the
letter of bid must bear the signature and seal by the legal representative of
each joint venture party (if any) or the party assigned to by the joint venture
to sign the letter of bid according to the assigned responsibilities in the
joint venture agreement;
c)
The validity of the bid meets the requirements as prescribed in the bidding
documents;
d)
There is a bid security with value and validity period and the beneficiary
meets the requirements of the bidding documents. Bid security, in the form of a
bank guarantee or certificate of guarantee insurance, may not violate any of
the following requirements: their value or validity period must meet the
minimums specified in the bidding documents, the beneficiary name must be
correct, a valid signature must be present, the signature cannot be dated
before the bidding documents were issued, the document cannot contain any
conditions that disadvantage the employer. The bank guarantee or certificate of
guarantee insurance must be signed and stamped by a legal representative of a
domestic credit institution or foreign bank branch established under Vietnamese
law, a domestic non-life insurer, branch of foreign non-life insurer
established under Vietnamese law (if any). For insurance packages,
participating bidders may not present their own certificate of guarantee
insurance; For pre-bid package according to Article 42 of the Law on Bidding,
bidders are not required to provide bid security but they must commit in the
bid to participate in bidding;
dd)
The bidder is not named in two or more bids as an independent bidder or a joint
venture party;
e)
There is a joint venture agreement (in case of joint venture) signed and sealed
by the legal representative of each joint venture party (if any); the joint
venture agreement must clearly state the specific work each party will perform
and the estimated value of each party's work. Work assignments within the joint
venture will be determined by: items listed in the bid price schedule or tasks
required to produce those items. Tasks unrelated to these items or the
production of these items must not be assigned.
The
bidder must meet the eligibility requirements in accordance with Article 5 of
the Law on Bidding; For international bidding, in the case where it is
impossible to determine whether domestic bidders are incapable of performing
any tasks of the package, the employer may conduct a survey on VNEPS as
follows: post a notice requesting domestic bidders to participate accompanied
by the bidding documents for domestic bidders to register for one or several
specific tasks of the package that they can undertake within at least 05
working days; upon the registration deadline, if no domestic bidders register,
foreign bidders are not required to enter into a
consortium with a domestic bidder or subcontract domestic bidders. In this
case, the bidding documents shall not stipulate that foreign bidders are
required to enter into a consortium with a domestic bidder or subcontract
domestic bidders.
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4.
Criteria for evaluating bids for goods procurement packages include:
a)
Evaluation criteria for capacity and experience:
Bidders’
capacity and experience are evaluated using pass/fail criteria, which
define the minimum acceptable level for each element of the bidder's capacity
and experience, including: experience in supplying similar goods (if any);
production capacity (if any), and financial capability (net asset value,
revenue); fulfillment of tax declaration and payment obligations and other
necessary indicators to evaluate the bidder's financial capability; technical
facilities, qualifications of professional staff to perform related services
(if required).
Determining
the level of specific requirements for each criterion specified in this point
is based on the requirements of each specific package. Bidders that are
assessed to meet all the criteria specified in this point meet the requirements
for capacity and experience.
For
goods procurement packages, bidders who are individuals or groups offering
innovative products that meet the requirements Clause 4 Article 6 hereof may be
exempt from certain criteria outlined in Clause 3 Article 10 hereof.
Bidders
who are household businesses are exempt from financial statements and the net
asset value requirements.
b)
Technical evaluation criteria:
Technical
evaluation criteria are set based on pass, fail criteria or scoring methods.
In
case of using pass/fail method, for general evaluation criteria, only pass/fail
criteria are used. For basic detailed criteria in the general criteria, only
pass and fail criteria are used; for non-basic detailed criteria in the general
criteria, in addition to the pass and fail criteria, additional acceptable
criteria may be applied but must not exceed 30% of the total number of detailed
criteria in the general criteria. General criteria are assessed as passed when
all basic detailed criteria are assessed as passed and non-basic detailed
criteria are assessed as passed or acceptable.
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c)
Determine the lowest price (in case the least-cost selection is applied):
determine the bid price; correct errors and adjust deviations; deduct discounts
(if any); convert the bid price to a common currency (if any); compare
bids to determine the lowest price;
d)
Criteria for determining evaluated price (in case of applying the evaluated
price selection):
Formula
for determining evaluated price:
GĐG
= G ± ∆G + ∆ƯĐ
Where:
G =
(bid price ± error correction value ± deviation adjustment value) - discounts
(if any).
∆G is
the value of factors converted into one level for the entire life cycle of the
goods including: delivery time; payment schedule; costs of supplies and spare
parts during the initial period; availability of materials, spare parts and
after-sales services for the goods offered in the bid at the project location;
life cycle costs; device performance and capacity; elements of sustainable
bidding (if any); the bidder's contract performance results according to
Articles 19 and 20 of this Decree; the quality of goods used published
according to Article 20 of this Decree, including consideration of origin;
other factors (if any).
∆ƯĐ is
the value that must be added to non-incentive subjects according to Points b
and d Clause 1, Points b and d Clause 2 and Point b Clause 3 Article 6 of this
Decree.
5.
Criteria for evaluating bids for construction packages include:
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Bidders’
capacity and experience are evaluated using pass/fail criteria, which
define the minimum acceptable level for each element of the bidder's capacity
and experience, including: experience in performing similar packages (if any);
technical capacity: quantity and professional qualifications of key staff,
quantity of main construction equipment that can be mobilized to carry out the
package (if required); financial capacity: net asset value, revenue;
fulfillment of tax declaration and payment obligations and other necessary indicators
to evaluate the financial capacity of the bidder.
The
specific requirements for each criterion will be determined based on the
individual package requirements. Bidders that are assessed to meet all the
criteria specified in this point meet the requirements for capacity and
experience.
b)
Technical evaluation criteria:
Technical
evaluation criteria are set based on pass, fail criteria or scoring methods.
In
case of using pass/fail method, for general evaluation criteria, only pass/fail
criteria are used. For basic detailed criteria in the general criteria, only
pass and fail criteria are used; for non-basic detailed criteria in the general
criteria, in addition to the pass and fail criteria, additional acceptable
criteria may be applied but must not exceed 30% of the total number of detailed
criteria in the general criteria. General criteria are assessed as passed when
all basic detailed criteria are assessed as passed and non-basic detailed
criteria are assessed as passed or acceptable.
In
case a scoring method is used, the minimum score and maximum score must be
specified for each general criterion. The minimum scores for basic detailed
criteria can be specified in the general criteria; there is no minimum score
for non-basic detailed criteria.
Technical
evaluation criteria will assess a bidder's ability to meet the requirements
outlined in the design documents, scope of work, and contract performance
results, as detailed in Articles 19 and 20 of this Decree and other
requirements stated in the bidding documents. Based on each specific package,
when preparing bidding documents, it is necessary to specify the criteria as a
basis for technical evaluation, including: reasonableness and feasibility of
technical solutions, execution plans in accordance with proposed construction
progress; construction progress; project management methods, including:
project management organization, field management organization; quality
assurance measures; assurance of environmental sanitation and other conditions
such as fire safety and labor safety; level of satisfaction of warranty and
maintenance requirements; environmentally friendly factors (if any), including:
the use of supplies, materials, execution plans, lines, construction technology
and other factors (if any); bidder's contract performance results according to
Articles 19 and 20 of this Decree; other necessary factors. Requirements for
mobilizing key personnel and construction equipment are not required.
The
bidding documents must allow bidders to propose alternative construction
methods, except in special cases where a specific method is specified in the
bidding documents due to the package's nature.
For
construction work under the construction package, EC package, the technical
evaluation criteria require brand specifications according to the brand group
for materials, supplies, and other input factors (inputs for construction as
prescribed in construction laws for work items specified in bidding documents
which are not work items of the package). Bidders may offer brands of
materials, supplies, and other input factors as specified in the bidding
documents or other brands with equivalent or superior quality.
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d)
Criteria for determining evaluated price (in case of applying the evaluated
price selection):
Formula
for determining evaluated price:
GĐG = G ± ΔG + ΔƯĐ
Where:
G =
(bid price ± error correction value ± deviation adjustment value) - discounts
(if any).
∆G is
the value of factors converted into one level for the entire life cycle of the
construction work including: construction completion progress; life
cycle costs during the entire use of the construction work; loan interest
expenses (if any); elements of sustainable bidding (if any); the bidder's
contract performance results according to Articles 19 and 20 of this Decree;
other factors (if any).
∆ƯĐ is
the value that must be added to non-incentive subjects according to Point b
Clause 2 Article 7 of this Decree.
6.
For non-consulting and mixed packages:
Based
on the scale and nature of the package and the provisions in Clauses 2, 4 and 5
of this Article, determine evaluation criteria for capacity and experience;
technical evaluation criteria; determine the lowest price (in case the
least-cost selection is applied) or the criteria for determining the evaluated
price (in case the evaluated price selection is applied) accordingly.
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8.
For a divided package, the bidding documents must clearly state the bidding
conditions, the bid security measures and values for each part or multiple
parts, and the evaluation method for each part or multiple parts so that the
Bidders calculate bidding options according to their abilities.
9. Regulations on
trademarks and origin of goods:
a)
Except for the cases specified in point e Clause 3 Article 10, Clause 2 Article
44, Clause 1 Article 56 of the Law on Bidding and point b Clause 5 hereof,
bidding documents must not state requirements on the specific trademarks or
origin of the goods;
b) If
bidding documents specify an origin requirement by groups of countries or
territories but exclude Vietnamese origin specified in Clause 2 Article 44
of the Law on Bidding, Vietnamese goods can still be evaluated;
c)
The bidding documents may state the trademark or catalog of a specific product
for reference and illustration, followed by the phrase "or
equivalent". Additionally, the documents must clearly define what
constitutes an equivalent good in terms of technical specifications, usability,
and any other relevant aspects (if any).
10.
Regulations on labor use:
For
international bidding, bidding documents must prioritize the use of domestic
workers for unskilled positions, where their qualifications are suitable and
the supply is available. Foreign workers can only be employed when domestic
workers are underqualified. Bids that fail to meet the labor use requirements
outlined in the bidding documents will be rejected.
11.
Regulations on additional purchase options (if any):
In
case the specific contractor selection plan has regulations on additional
purchase options, the bidding documents must stipulate the maximum volume and
quantity of goods or services subject to the additional purchase option in
accordance with the approved specific contractor selection plan.
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If
the manufacturer, its representative office, or agent commits one or more of
the following acts without a legitimate reason: fails to provide a sales
permit; revokes a previously provided sales permit; limits competition by
issuing sales permits to only a few bidders; engages in other anti-competitive
practices, the bidders or employer will report these actions by posting
information on VNEPS. The manufacturer, representative office or agent facing a complaint from a bidder or
employer must respond via VNEPS.
Article
27. Appraisal of and approval for bidding documents
1.
The appraisal of bidding documents is not required; in cases where an appraisal
is requested, it shall comply with Article 135 of this Decree before approval.
2.
Approval for bidding documents must be based on the approval report and
appraisal report of bidding documents (if any).
Article
28. Organization of contractor selection
1.
Invitation for bids:
a)
Invitations to bid are applied according to Point b, Clause 1,
Article 8 of the Bidding Law if the shortlisting procedure is not applied;
b) In
case the package applies the shortlisting procedure, invitations to bid will be
sent to the bidders named on the shortlist.
2.
Issue, modify and clarify bidding documents:
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In
case of modifications of the bidding documents after issuance, the employer
must post on the VNEPS the modification decision enclosed with the detailed
modifications of the bidding documents and the modified bidding documents.
Modifications of bidding documents must be made at least 10 days before the bid
submission deadline; for construction packages, mixed packages with total
package price not exceeding 20 billion VND, package of goods procurement,
non-consulting services with total package price not exceeding 10 billion VND,
the modifications must be made at least 03 working days before the bid
submission deadline. In case there is not enough time, the bid submission
deadline must be extended;
c) In
case the bidding documents need to be clarified, the organization or individual
shall send a written request for clarification on VNEPS within at least 3
working days (for domestic bidding), 5 days (for international
bidding) before the bid submission deadline. The employer shall post the
clarifications to bidding documents on
the VNEPS at least 2 working days before the bid submission deadline. The
clarifications to bidding documents must not mention the name of the
bidder that requested clarification. If necessary, the employer may organize a
pre-bid meeting to discuss the content of bidding documents. The notice of
organization of the pre-bid meeting is posted on VNEPS; all interested bidders
are allowed to attend the pre-bid meeting without prior notification to the
employer. The employer must record the minutes of the pre-bid meeting and post
them on VNEPS. The minutes of the pre-bid meeting are considered clarifications
to the bidding documents.
Clarifications
to bidding documents must not contradict the approved bidding documents. In
case the clarifications to the bidding documents leads to the need to modify
the bidding documents, the modifications of the bidding documents shall comply
with point b of this clause;
d)
The decision on modifications or written clarifications to bidding
documents is an integral part of the bidding documents.
3.
Prepare, submit, receive, manage, modify, and withdraw bids:
a)
Bidders prepare and submit bids according to the requirements of the bidding
documents.
The
employer confidentially receives and manages bids until the contractor
selection results are announced. Bids or documents submitted after the deadline
to modify or supplement the bid will be rejected, except for: clarifications
requested by the employer; clarifications regarding eligibility, financial
statements, tax declaration and payment obligations, personnel and equipment
documents, similar contracts, production capacity to demonstrate the bidder
meets the requirements;
b)
The employer, or the expert team cannot disclose information from one bid to
another bidder, except for information disclosed at the bid opening;
c)
When there is a request to modify or withdraw the submitted bid, the bidder
must send a written request to the employer. The employer only accepts the
modifications or withdrawal of the bid when receiving a written request before
the bid submission deadline.
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a)
The bid opening must be conducted publicly and begin within 2 hours from the
bid submission deadline. The employer only opens bids received before
the bid submission deadline according to the requirements of the bidding
documents in the presence of representatives of bidders attending the bid
opening ceremony, regardless of the presence or absence of bidders. Bids are
opened in alphabetical order by bidder name and in the following order: check
the seal; open the envelope and clearly read the bidder's name; identify if the
bid is submitted independently or as a joint venture; check the number of
originals and copies of all documents; review the bid price stated in the
letter of bid and any offered discount; check validity period of the bid;
verify proposed performance duration; check value and validity of bid
security and other related information;
b)
Minutes of bid opening: The information specified in point a of this clause
must be recorded in the minutes of bid opening. The minutes of bid opening must
be signed by the representative of the employer and the bidders attending the
bid opening ceremony. The minutes will be sent to participating bidders and
posted on VNEPS within 24 hours upon bid opening;
c)
The representative of the employer signs the original letter of bid, letter of
discount (if any), and the authorization letter of the bidder’s legal
representative (if any); joint venture agreement (if any); bid security;
financial proposals and important contents of each bid.
Article
29. Principles for evaluating bids
1.
The evaluation of bids must be based on the bid evaluation criteria and other
requirements in the bidding documents, based on the submitted bids and
clarifications to bids to ensure the selection of a bidder with sufficient
capacity and experience and a feasible solution to perform the package; any
content within the bidding documents that restricts competition, as defined in
Clause 2, Article 24 of this Decree, will be disregarded during bid evaluation.
2.
The employer will allow the bidder to make additions of and substitutions for
key personnel (excluding engineering (E) personnel in EPC, EP, EC, or turnkey
contracts) or major equipment if: the proposed personnel or
equipment does not meet requirements, the bidder cannot demonstrate the ability
to mobilize personnel (including cases where personnel have been mobilized for
another contract whose working time overlaps with the performance duration of
this package). The bidder may only add or replace each key personnel position
and major equipment once within an appropriate period of time.
For
domestic packages, the expert team shall evaluate the content of key personnel,
major equipment of construction packages, PC packages, and construction parts
in EC packages based on the contractor's commitment in the bid without
evaluating the contents stated in the bid or attached documents in the bidding
documents. After the financial evaluation, the first-ranked bidder shall be
evaluated on key personnel, major equipment according to the declaration, and
attached documents in the bidding documents. In cases where the declared
content and attached documents fail to meet the requirements, the employer
shall request the bidder to clarify the bid for additions of and substitutions
of key personnel, major equipment. The additions of and substitutions of key
personnel, major equipment shall be carried out a maximum of 02 times to ensure
the compliance with requirements of bidding documents as committed by the
bidder. If the bidder fails to make additions of and substitutions to have its
key personnel, major equipment met the requirements of bidding documents as
committed in the bid, such bidder shall be disqualified, have its
reputation assessed as prescribed in Article 20 of this Decree, and
have its account blocked for a period of 03 months from the date on which the
employer publishes its name on VNEPS.
Any
bidder found to declare key personnel and major equipment untruthfully will be
ineligible to propose substitutes. Their bid will be disqualified, and they
will be subject to fraud allegations as per point b Clause 4 Article
16 of the Law on Bidding and be addressed under Point a Clause 1 Article 133 of
this Decree.
3. If
the proposed similar contract in the bid does not meet requirements, the
employer may request the bidder to supplement or replace another similar
contract for evaluation within a reasonable timeframe.
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5.
The evaluation of a bid is done on photocopies, the bidder is responsible for
the consistency between the original and the photocopies. In case there is a
discrepancy between the original and the photocopy but does not change the
bidder ranking order, the evaluation will be based on the original. In case
there are discrepancies between the original and the photocopy, leading to a
different evaluation result on the original than the evaluation result on the
photocopy and causing a change in the bidder's ranking order, the bid will be
rejected and the bidder will be subject to fraud allegations and will be
addressed according to Point a, Clause 1, Article 133 of this Decree.
6.
Deviation, reservation, omission in bids:
a)
“deviations” means departures from the requirements specified in the bidding
documents; “reservation” is the setting of limiting conditions or withholding
from complete acceptance of the requirements specified in the bidding
documents; “omission” is the failure to submit part or all of the information
or documentation required in the bidding documents;
b)
Provided that a bid is substantially responsive to the requirements of the
bidding documents, the employer may accept nonconformities that are not deviations,
reservations, or omissions;
c)
Provided that a bid is substantially responsive to the requirements of the
bidding documents, the employer may require the bidder to provide necessary
information or documents within a reasonable duration for correction of
nonconformities or non-material deviations in the bid related to the material
requirements. Requests to provide information and documents to rectify
these nonconformities or deviations must not affect any factor of the bid
price. Failure to comply with this request of the employer may result in
disqualifying the bidder;
d)
Provided that a bid is substantially responsive to the requirements of the
bidding documents, the employer or expert team may adjust nonmaterial and
quantifiable nonconformities related to the bid price; the bid price will be
adjusted to account for the cost of missing or non-compliant items; this
adjustment is solely for bid comparison purposes.
7. In
the case the bid has any deviations, reservations, or omissions which
disqualifies the bid, other criteria will not be further evaluated. In case the
bidder does not meet one of the evaluation criteria of eligibility, capacity,
experience, technique, finance, the remaining criteria will not be further
evaluated.
8.
The employer may not allow the bidder to use a subcontractor that provides
consulting services for the package for which the bidder has won the bid. These
consulting services include: preparation, verification of the engineering
design, design of construction drawing design, estimate, FEED; valuation;
supervision and appraisal of the contract performance; preparation and
appraisal of the prequalification document or bidding documents; evaluation of
prequalification applications or bids; appraisal of the prequalification result
or contractor selection result; management of the project or contract; other
consulting services directly to the package;
Article
30. Clarification to bids
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2.
After bid submission deadline, if a bidder finds that their bid lacks required
documents on eligibility, similar contracts, production capacity,
financial statements, tax declaration and payment obligations, personnel, and
equipment, they will send clarification and additional documents to the
employer to demonstrate their qualifications and experience. The employer shall
receive the bidder's clarifications for review and evaluation; additional and
clarifying documents are an integral part of the bid.
3.
Clarifications regarding eligibility must not alter the nature of the
participating bidder. Clarifications regarding validity of the bid (excluding
eligibility), technical proposals, and financial proposals must ensure no
changes to the basic content of the submitted bid or the bid price.
4.
Clarification of a bid is only done between the employer and the bidder whose
bid needs to be clarified. The clarifications to bid must be
made in writing and kept by the employer as an integral part of the bid.
5.
The employer may verify the authenticity of any doubtful documents of the
bidder with relevant organizations or individuals.
Article
31. Error correction and deviation adjustment
1.
Error correction is the correction of errors in bids, including arithmetic
errors and other errors, carried out according to the following principles:
a)
Arithmetic errors include errors caused by performing addition, subtraction,
multiplication, and division calculations incorrectly when calculating the bid
price. For fixed unit price contracts, adjustable unit price contracts,
time-based contracts, cost-plus-a-fee contracts, output-based contracts,
percentage-based contracts, if there is a discrepancy between the unit price
and the amount, the unit price will be used as the basis for error correction;
if it is discovered that the unit price has an unusual difference due to a
decimal error (10 times, 100 times, 1,000 times), the amount of money is the
basis for error correction;
b) In
case the total value of the items is incorrect due to an error when adding or
subtracting the value of the items, the value of the items is the basis for
correcting the error;
c)
Discrepancies between the numerical and written bid price will be resolved as
follows: if the written price has a clear meaning, it takes precedence; if the
written price has no meaning or contains arithmetic errors, the numerical price
is used after correction based on points a and b of this Clause (if
applicable);
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dd)
Calculation unit errors: correct it to meet the requirements of the
bidding documents.
2.
Adjustment of deviations in scope of supply:
a)
Deviations in the scope of supply for construction packages:
For a
construction package that does not apply the lump sum contract, the bidder
must state the bid unit price and total amount for
all work items stated in the bid price schedule. If the bidder lists
the work items as required in the bidding documents but omits the unit price
and total amount for one or more work items, those items will not be considered
underbid. The missing unit price will be assumed to be distributed
proportionally among the other listed items in the bid price schedule and will
not be separately payable by the employer.
Work
items stated in the bidding documents that are not listed in the bidder's bid
price schedule are considered missing offers, and deviations are adjusted
according to Point c of this Clause for bid comparison and ranking. If a work
item in the bidding documents appears in the bidder's price schedule with a
unit price, but the quantity differs from the bidding document requirements
(either less or more), this will be considered an underbid or excess offer.
These deviations will be adjusted according to Point c of this Clause.
Work
items listed in the bidder's bid price schedule that are not within the scope
of work stated in the bidding documents are considered excess offers, and these
deviations are adjusted according to Point c of this Clause.
For
construction packages applying the lump sum contract, the bidder's bid price is
considered to include all necessary costs to carry out the package in
accordance with the design and technical requirements stated in the bidding
documents and do not make adjustments in case the scope of work proposed by the
bidder in the bidding documents is different from the requirements stated in
the bidding documents, unless the other proposed work is outside the scope of
the requirements in the bidding documents (in addition to the volume to be
completed according to the design). In this case, the portion of work
outside the scope of requirements in the bidding documents will be considered
an excess offer and adjusted according to Point c of this Clause;
b)
Deviations in the scope of supply for goods procurement and non-consulting
packages:
In
case the bidder lists the work items as required in the bidding documents but
omits the bid unit price and total amount for one or several work items, it is
considered an insufficient deviation and the deviation is adjusted
according to Point c of this Clause for bid comparison and ranking.
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Work
items listed in the bidder's bid price schedule that are not within the scope
of work stated in the bidding documents are considered excess offers, and these
deviations are adjusted according to Point c of this Clause;
c)
Adjust excess or insufficient deviations in the scope of supply:
If a
bid lacks any required items (as specified in Points a and b of this
Clause) and omits unit prices, the highest unit price of the item from
technically-responsive bids will be used as the basis for deviation
adjustment for those missing items; if the technically-responsive bids
omit unit prices, the unit prices of the package estimate will be used as the
basis for deviation adjustment; if the package estimate is unavailable, the
unit prices forming the package price will be used as the basis for deviation
adjustment, and for bidder comparison and ranking. The adjustment
of insufficient deviations is only for bid comparison and ranking purpose.
If a
bid proposes a lower volume of work than required in the bidding documents, the
cost of the missing work will be added using the unit price from the bid.
If a
bid proposes a higher volume of work than required in the bidding documents,
the cost of the excess work will be deducted using the unit price from the bid.
3. If
the bidder has a letter of discount, error correction and deviation adjustment
are carried out on the basis of the bid price without deducting the discount.
The percentage (%) of the insufficient deviation is determined on the basis of
the bid price stated in the letter of bid.
4.
Apply the unit price for the insufficient deviation to the first ranked bidder:
If a
bid has insufficient deviations after adjustment according to Point c, Clause 2
of this Article, but remains ranked first, and lacks a unit price for the
insufficient deviation, the proposed winning unit price will be determined
based on the following priorities: the lowest unit price among the
technically-responsive bids, the unit price in package estimate, unit
price forming the package price (if package estimate is unavailable).
5.
Following error correction, deviation adjustment, and application of unit
prices for insufficient deviations as outlined in Clauses 1, 2, 3, and 4
hereof, the employer shall notify the bidder of these adjustments in writing.
Within 3 working days of receiving such a notice from the employer, the bidder
must notify the employer in writing if they accept those adjustments.
bidder refuses those adjustments, their bid will be disqualified, unless
the error correction, deviation adjustment, and application of unit prices are
inappropriate or inaccurate.
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1.
Check the validity of the bid, including:
a)
Check the required documents of the bid, including: letter of bid; joint
venture agreement (if any); power of attorney from the bidder's legal
representative (if any); bid security; number of originals and photocopies of
bidding documents;
b)
Cross-check the original bid with its photocopies to ensure consistency before
conducting the detailed bid evaluation.
2.
2. Evaluate the validity of the bid:
a)
The bid is considered valid when it fully meets the requirements of Clause 3, Article
26 of this Decree;
b)
Bidders with valid bids will be evaluated for their capacity and experience.
3.
Capacity and experience evaluation:
a)
The capacity and experience evaluation is carried out according to
the evaluation criteria specified in the bidding documents;
b)
Bidders with qualified capacity and experience may undergo technical
evaluation.
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4.
Technical and financial evaluation:
a)
The technical evaluation is carried out according to the evaluation criteria
and methods specified in the bidding documents;
b)
Technically-responsive bidders may undergo financial evaluation using
least-cost selection or evaluated price selection. The bidder who has the
lowest bid price (after error correction, deviation adjustment, and
any discounts) (for the least-cost selection) or has the lowest
evaluated price (for the evaluated price selection) is ranked first.
Discount letters that are not published in the bid opening minutes will not be
evaluated.
If
only one bidder is technically responsive, there is no need to determine the
bidder ranking list. The employer does not have to approve the bidder ranking
list.
5. The expert team
prepares a report on the bid evaluation result and sends it to the employer for
consideration. The report on bid evaluation result must clearly state the
following contents:
a)
Evaluation result for each bid;
b)
List of considered and ranked bidders and order of ranking of bidders;
c)
List of non-responsive and disqualified bidders; reasons for bidder
disqualification;;
d) Comments on competitiveness, fairness,
transparency and economic efficiency in the contractor selection process.
If competitiveness, fairness, transparency, or economic efficiency cannot be
assured, reasons and propose solutions must be provided;
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e)
The proposal of investor to negotiate the contract (if any) with the
first-ranked bidder;
g)
Key considerations (if any).
6.
For goods procurement packages, construction packages, non-consulting service
packages applying international bidding, mixed packages, and packages applying
limited bidding as prescribed in Clause 1 Article 22 of the Law on
Bidding, if the contract negotiation applies, the employer shall invite the
first-ranked bidder to participate in the contract negotiation in accordance
with Article 45 hereof.
Article
33. Submission, appraisal of, approval for, and publication of contractor
selection results
1.
Based on the bid evaluation report of the expert team, contract negotiation
results (if any), the appraisal team shall appraise the contractor selection
results in accordance with Clauses 1 and 4, Article 136 hereof before sending
the results to the employer for approval.
2.
Based on the bid evaluation report and contractor selection appraisal results,
the employer shall approve the contractor selection result.
3.
In case the successful bidder is selected, the approval
for contractor selection result includes the following:
a)
Name of successful bidder;
b)
Successful bid price.
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d)
Package performance duration as prescribed in Clause 7, Article 39 of the
Bidding Law and contract performance duration according to civil law
regulations;
dd)
Key considerations (if any).
4. In
case of bid cancellation in accordance with Clause 1, Article 17 of the Bidding
Law, the approval for contractor selection results or decision on bid
cancellation must clearly state the reason for the bid cancellation and the
responsibilities of related parties when canceling the bid. The bid
cancellation decision shall be published on VNEPS within 05 working days from
the day on which it is signed;
5.
After the written approval for contractor selection result is issued, the
employer posts information about the contractor selection result according to
Point a, Clause 1 and Clause 4, Article 8 of the Bidding Law and send a
written notice of contractor selection result to participating
bidders within 5 working days from approval date. Contents of the notice of
contractor selection result:
a)
Contents specified in Clause 3 of this Article;
b)
List of unsuccessful bidders and the reasons for disqualification of each
bidder;
c)
Plan for finalizing and signing contracts with the successful bidder:
Unsuccessful
bidders can request a written or in-person explanation from the employer to
understand why their bids were not chosen. The employer is responsible for
responding to the bidder's request within 2 working days from the date of
receiving the bidder's request.
Article
34. Completion and signing of contracts
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a)
The contract form filled out with specific information of the package;
b)
Approved contractor selection result;
c)
Requirements stated in the bidding documents;
d)
Contents stated in the bid and clarifications to bid of the successful bidder
(if any);
dd)
Contents that need to be finalized in the contract.
2.
The contract finalization result is the basis for the employer and bidder to
sign the contract. If the bidder voluntarily reduces the price, the contract
price is the value after the discount.
3. If
the successful bidder does not come to finalize or refuses to finalize the
contract or sign the contract, the bid security will be forfeited.
4.
The bidder has the right to refuse to complete the contract without having
their reputation assessed according to Clause 1 Article 20 hereof and is
entitled to a bid security refund (if any) if the investor makes demands during
contract completion that do not align with the contents of the bidding
documents, the bid, contract negotiation results (if any), and the decision
approving the contractor selection results.
Article
35. Contract performance management
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2.
The employer must update the actual progress of contract performance when
completing the milestones specified in the contract on VNEPS.
3.
The employer is responsible for publicizing the bidder's contract performance
result on VNEPS according to Clauses 3 and 4, Article 20 of this Decree. For a
package with good supply involvement, the employer must also publicly disclose
on VNEPS the quality of goods provided by the bidder according to Clauses 5, 6
and 7, Article 20 of this Decree.
Section
2. SINGLE-STAGE AND TWO-ENVELOPE METHOD
Article
36. Detailed procedures
1.
Contractor selection preparation, including:
a)
Shortlisting (if necessary);
b)
Prepare bidding documents;
c)
Appraise (if any) and approve bidding documents.
2.
Contractor selection organization, including:
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b)
Issue, modify and clarify bidding documents;
c)
Prepare, submit, receive, manage, modify, and withdraw bids;
d)
Open technical proposals.
3.
Evaluate technical proposals, including:
a)
Check and evaluate validity of technical proposals;
b)
Evaluate technical proposals in details;
c)
Submit, appraise, and approve the list of technically-responsive
bidders.
4.
Open and evaluate financial proposals and submit contractor selection results,
including:
a)
Open financial proposals of technically-responsive bidders; for quality-based selection, open financial
proposals of the first-ranked bidder;
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c)
Evaluate financial proposals in details and rank bidders (if there is more than
1 bidder);
d)
Submit bid evaluation result;
5.
Negotiate contracts (if any) in accordance with Article 45 hereof for packages
specified in points b and c Clause 1, Clause 1a Article 31 and Clause 3a
Article 68 of the Law on Bidding.
6.
Appraise, approve, and publicize the contractor selection result and explain
reasons for unsuccessful bidders upon their requests (if any).
7.
Finalize, sign, and manage contract performance.
8.
Bidding in advance stipulated in Article 42 of the Law on Bidding shall comply
with Clauses 1, 2, 3, 4, 5, and 6 hereof. The finalization, signing, and
management of the contract performance stipulated in Clause 7 hereof shall only
be carried out after the project has been approved for investment.
For
goods procurement packages, in addition to organizations, individuals and group
of individuals may also participate as bidders to offer their own innovative
products in accordance with Clause 4 Article 6 of this Decree.
Article
37. Preparation of bidding documents
1. If
the package applies shortlisting procedure, it shall comply with Article 25 of
this Decree.
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3.
Bidding documents must provide all necessary information for bidders to prepare
bids and cannot contain any restrictions that limit bidder participation or
give any bidder an unfair advantage, which may cause unfair competition as
prescribed in Clause 2 Article 26 of the Law on Bidding.
4.
Bidding documents must specify evaluation criteria for the validity of
technical proposals and financial proposals, including:
a)
Evaluation criteria for the validity of a technical proposal:
There
is the original technical proposal;
There
is a letter of bid in the technical proposal signed and stamped by the bidder's
legal representative (if any) according to the requirements of the bidding
documents; the signing date of the letter of bid must be after the issuance
date of the bidding documents; do not propose different bid prices or include
conditions that are disadvantageous to the employer. For a joint venture
bidder, the letter of bid must bear the signature and seal by the legal
representative of each joint venture party (if any) or the party assigned to by
the joint venture to sign the letter of bid according to the assigned
responsibilities in the joint venture agreement;
The
validity of the technical proposal meets the requirements as prescribed in the
bidding documents;
There
is a bid security with value and validity period and the beneficiary meets the
requirements of the bidding documents. Bid security, in the form of a bank
guarantee or certificate of guarantee insurance, may not violate any of the
following requirements: their value or validity period must meet the minimums
specified in the bidding documents, the beneficiary name must be correct, a
valid signature must be present, the signature cannot be dated before the
bidding documents were issued, the document cannot contain any conditions that
disadvantage the employer. The bank guarantee or certificate of guarantee
insurance must be signed and stamped by a legal representative of a domestic
credit institution or foreign bank branch established under Vietnamese law, a
domestic non-life insurer, branch of foreign non-life insurer established under
Vietnamese law (if any). For insurance packages, participating bidders may not
present their own certificate of guarantee insurance.
For
pre-bid package according to Article 42 of the Law on Bidding, bidders are not
required to provide bid security but they must commit in the bid to participate
in bidding;
The
bidder is not named in two or more technical proposals as an independent bidder
or a joint venture party;
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The
bidder must meet the eligibility requirements in accordance with Article 5 of
the Law on Bidding; For international bidding, in cases where the conditions
for determining domestic bidders that are ineligible to participate in any
part of the package, the employer may conduct a survey on VNEPS as follows:
post a notice requesting domestic bidders to participate accompanied by the
bidding documents for domestic bidders to register for one or several specific
tasks of the package that they can undertake within at least 05 working days;
upon the registration deadline, if no domestic bidders register, foreign
bidders are not required to enter into a consortium with a domestic bidder or
subcontract domestic bidders. In this case, the bidding documents shall not
stipulate that foreign bidders are required to enter into a consortium with a
domestic bidder or subcontract domestic bidders.
In
the 3 years before the bid submission deadline, the bidder did not have
employed personnel (signed a labor contract with the bidder at the time they
committed the violation) who were convicted by a court of a bidding violation
leading to serious criminal consequences, with the intent for that bidder to
win the contract;
b)
Evaluate validity of financial proposals;
There
is the original financial proposal;
There
is a letter of bid in the financial proposal signed and stamped by the bidder's
legal representative (if any) according to the requirements of the bidding
documents; the signing date of the letter of bid must be after the issuance
date of the bidding documents; do not propose different bid prices or include
conditions that are disadvantageous to the employer. For a joint venture
bidder, the letter of bid must bear the signature and seal by the legal
representative of each joint venture party (if any) or the party assigned to by
the joint venture to sign the letter of bid according to the assigned
responsibilities in the joint venture agreement;
The
validity of the financial proposal meets the requirements as prescribed in the
bidding documents.
5.
Evaluation criteria of bids, including:
a)
Evaluation criteria for capacity and experience;
b)
Technical evaluation criteria;
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d)
Criteria for determining evaluated price (in case of applying the evaluated
price selection);
dd)
Combined evaluation criteria (in case of applying the quality- and cost-based
selection).
For
packages that have been pre-qualified, the bidding documents can omit
evaluation criteria for bidder capacity and experience. However, they must
require an update on the bidder's current capacity information.
6.
Evaluation criteria for capacity and experience; technical evaluation criteria
will be based on Points a and b, Clause 4 and Points a, b, Clause 5, Article 26
of this Decree.
7.
Determination of the lowest price (in case of applying the least-cost
selection) is carried out according to point c Clause 4 and point c Clause
5 Article 26 of this Decree.
8.
Determination of the evaluated price (in case of applying the evaluated price
selection) is carried out according to Point d Clause 4 and Point d Clause 5
Article 26 of this Decree.
9.
Determination of combined evaluation criteria (in case of applying the quality-
and cost-based selection) is carried out according to Article 38 of this
Decree.
10. The
technical-based selection is carried out according to clause 3a Article 58 of
the Law on Bidding. When applying the technical-based selection, if necessary,
the employer shall negotiate a contract with the bidder in accordance with
Article 45 of this Decree as a basis for considering bid award in
accordance with Article 61 of the Law on Bidding.
11.
Regulations on stating the trademark and origin of goods are specified in
Clause 9, Article 26 of this Decree.
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13.
Regulations on additional purchase options are specified in Clause 11,
Article 26 of this Decree.
14.
For non-consulting and mixed packages, based on the scale and nature of the
package and the provisions in this Article, determine evaluation criteria for
capacity and experience; technical evaluation criteria; determine the lowest
price (in case the least-cost selection is applied) or the criteria for
determining the evaluated price (in case the evaluated price selection is
applied), or combined evaluation criteria (in case the quality- and cost-based
selection is applied) accordingly.
15.
Regulations on sales permits are specified in Clause 12, Article 26 of this
Decree.
Article
38. Combined evaluation criteria
1.
Combined evaluation criteria apply to the quality- and cost-based selection on
the basis of determining an aggregate score.
The
aggregate score is determined as follows:
Where:
Technical
score under consideration: is the score determined at the technical evaluation
step of the bid under consideration;
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Lowest
G: is the bid price (after error correction, deviation adjustment, and any
discounts) of technically-responsive bids;
G
under consideration: is the bid price (after error correction,
deviation adjustment, and any discounts) of the bid under consideration;
K: Technical score
weight given in the aggregate score scale;
T:
Financial score weight given in the aggregate score scale;
K + T
= 100%. Technical score weight and financial score weight must be specifically
determined in the bidding documents.
2.
Combined evaluation criteria are built on the basis of a combination of
technical and financial aspects. Depending on the scale and nature of
each package, it is necessary to determine the technical
score weight and financial score weight accordingly, ensuring that their
total equals 100% according to the following principle:
a)
For construction, procurement, non-consulting, and mixed packages: Technical
score weight is from 10% to 30% and financial score weight is from 70% to 90%;
b)
For drug procurement packages: Technical score weight is from 30% to 40% and
financial score weight is from 60% to 70%;
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3. If
technical aspects need to be prioritized over financial aspects, the
employer considers deciding the specific technical score weight and financial
score weight accordingly, provided that the technical score weight does not
exceed 50% for packages specified in point a and b Clause 2 of this Article.
Article
39. Appraisal of and approval for bidding documents
1.
The appraisal of bidding documents is not required; in cases where an appraisal
is requested, it shall comply with Article 135 of this Decree before approval.
2.
The approval of bidding documents is done in writing based on the approval
report and appraisal report (if any) of the bidding documents;
Article
40. Organization of contractor selection
1.
Invitation for bids:
a)
Invitations to bid are applied according to Point b, Clause 1,
Article 8 of the Bidding Law if the shortlisting procedure is not applied;
b)
Send invitations to bid to bidders on the short list.
2.
Issue, modify and clarify bidding documents:
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3.
Prepare, submit, receive, manage, modify, and withdraw bids:
Preparation,
submission, receipt, management, modification, and withdrawal of bids shall
comply with Clause 3, Article 28 of this Decree.
4. Open
technical proposals:
a)
The opening of a technical proposal must be conducted publicly and begin within
2 hours from the bid submission deadline. The employer only opens
technical proposals received before the bid submission deadline according to
the requirements of the bidding documents in the presence of representatives of
bidders attending the bid opening ceremony, regardless of the presence or
absence of bidders.
b)
Technical proposals are opened in alphabetical order by bidder name and in the
following order: check the seal; open the envelope and clearly read the
bidder's name, check the number of originals and copies of the technical
proposal and the letter of bid in the technical proposal, validity period of
the technical proposal, proposed performance duration, value and validity
of bid security and other related information;
c)
The information specified in point b of this clause must be recorded in the
minutes of technical proposal opening. The minutes will be signed by
representatives of the employer and bidders attending the opening ceremony of
technical proposals an sent to participating bidders and posted on VNEPS
within 24 hours upon bid opening;
d)
The representative of the employer signs the original letter of bid, and the
authorization letter of the investor's legal representative (if any); joint
venture agreement (if any); bid security; important contents of each technical
proposal;
dd) The
financial proposals of all bidders must be sealed in a separate envelope by the
employer and must bear the signature and seal by representatives of the
employer and bidders attending the technical proposal opening ceremony.
Article
41. Principles for evaluation of and clarifications to bids, error correction
and deviation adjustment
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For a
divided package, bid evaluation and award will prioritize the bid with lowest
total proposed winning price (for least-cost selection); or prioritize the bid
with the lowest total evaluated price (for evaluated price selection); or
prioritize the bid with the highest aggregate score (for quality- and
cost-based selection) and the winning bid price for the entire package not exceeding
the approved package price, regardless of partial package estimates; for a
package for procurement of drugs, chemicals, testing supplies, medical
equipment, and medical procedures, the instructions of the Ministry of
Health (if any) will apply.
2. The bid
clarification shall comply with Article 30 of this Decree.
3.
Error correction and deviation adjustment are carried out in accordance with
Article 31 of this Decree.
Article
42. Checking and evaluation of validity of technical proposals
1.
Contents for checking the validity of a technical proposal:
a)
Required documents in the technical proposal, including: letter of bid in the
technical proposal; joint venture agreement (if any); power of attorney from
the bidder's legal representative (if any); bid security; number of originals
and photocopies of the technical proposal;
b)
The consistency of original copy and its photocopies to serve the detailed
technical proposal evaluation.
2.
Evaluation criteria for the validity of a technical proposal:
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Bidders
with valid technical proposals will be evaluated for their capacity and
experience. For packages that have been pre-qualified, no evaluation of
the bidder's capacity and experience is conducted.
3.
Capacity and experience evaluation:
a)
The capacity and experience evaluation is carried out according to
the evaluation criteria specified in the bidding documents;
b)
Bidders with qualified capacity and experience may undergo technical
evaluation;
c)
For packages with prequalification, the bidder who has passed the
prequalification step, has a valid technical proposal, and has updated capacity
to meet the requirements of the package will undergo the technical evaluation.
For
goods procurement packages, bidders who are individuals or groups offering
innovative products that meet the requirements Clause 4 Article 6 hereof may be
exempt from certain criteria outlined in Clause 3 Article 10 hereof.
4.
Technical evaluation:
a)
The technical evaluation is carried out according to the evaluation criteria
specified in the bidding documents;
b)
Open and evaluate financial proposals of technically-responsive bidders (if the
technical-based selection is applicable)
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Article
43. Opening of financial proposals
1.
The employer checks the seal of the envelope containing the financial
proposals.
2.
The opening of financial proposals is carried out as follows:
a) Only open financial proposals of bidders whose
names are on the list of technically-responsive bidders in the presence of
representatives of bidders attending the financial proposal opening ceremony,
regardless of the presence or absence of bidders;
For
packages applying the technical-based selection method, only the financial
proposals of the fist-ranked bidder shall be opened to serve as the basis for
contract negotiations (if any) in accordance with Article 45 of this Decree.
If the negotiations are unsuccessful, the employer shall invite the
next-ranked bidder to open the financial proposals as the basis for contract
negotiations.
b)
The opening of financial proposals is carried out for each financial
proposal according to the alphabetical order of the bidder's name in the list
of technically-responsive bidders and according to the following order:
check the seal; read the technical scores of technically-responsive bids (If
the scoring method is used); open the envelope and clearly read the
information: name of the bidder, number of originals, copies of the
financial proposal, letter of bid included in the financial proposal, validity
period of the financial proposal, bid price stated in the letter of bid,
discount (if any), and other related information.
3.
Minutes of opening financial proposals:
a)
The information specified in Clauses 1 and 2 of this Article must be recorded
in the minutes of opening financial proposals. The minutes of opening
financial proposals must be signed by representatives of the employer and
bidder participating in the opening of financial proposals. The minutes will be
sent to technically-responsive bidders and posted on VNEPS within 24 hours upon
bid opening;
b)
The representative of the employer must sign all original pages of the financial
proposal.
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1.
Contents for checking the validity of a financial proposal:
a)
Check the number of originals and photocopies of the financial proposal;
b)
Check the required documents in the financial proposal, including: the letter
of bid in the financial proposal; bid price schedule; other documents in the
financial proposal;
c)
Cross-check the original with its photocopies to ensure consistency before conducting
the detailed financial proposal evaluation.
2.
Evaluate the validity of the financial proposal:
The
financial proposal is considered valid when it fully meets the
requirements of Point b, Clause 4, Article 37 of this Decree.
Bidders
with valid financial proposals will undergo a detailed financial evaluation.
3.
Evaluate financial proposals in details and rank bidder:
a) Detailed evaluation of financial proposals and
bidder ranking are carried out according to the evaluation criteria specified
in the bidding documents. Any letter of discount that is not published in the
bid opening minutes will not be evaluated;
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Article
45. Contract negotiation
1. If
the package applies contract negotiation, the first-ranked bidder is invited by
the employer to negotiate the contract.
2.
Bases for contract negotiation:
a)
Bid evaluation report;
b)
The bid and clarifications to bid (if any) of the bidder;
c)
Bidding documents, which contain general conditions, specific conditions of the
contract and modifications of and clarifications to the bidding documents (if
any).
3.
Principles of contract negotiation:
a) Do
not negotiate the content of a bid that complies with the bidding documents;
b) Do
not change the unit price determined at the financial evaluation step, except
for packages applying technical-based selection method.
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a)
Contents that are insufficiently detailed, unclear, or inconsistent between the
bidding documents and the bid, or within different sections of the bid, which
can lead to issues and disputes or affect the responsibilities of the parties
during contract performance;
b)
Deviations identified and proposed by the bidder in their bid (if applicable).
This includes proposals for changes or alternative technical solutions, if the
bidding documents allowed bidders to submit such alternatives;
c)
Key personnel:
Bidders
cannot replace key personnel who have been proposed or have been
replaced once according to Clause 2, Article 29 of this Decree, except in cases
where the bid evaluation takes longer than originally anticipated in the
specific contractor selection plan or force majeure prevents the proposed key
personnel from performing the contract. In this case, the bidder can replace
other personnel but the replacements must possess qualifications, experience
and capacity equivalent to or higher than the originally proposed personnel and
the bidder is not allowed to change their bid price;
d)
Issues that arise during the contractor selection process (if any) to finalize
the detailed contents of the package;
dd)
The price negotiation applies in cases where the proposed winning price exceeds
the approved package price of packages applying technical-based selection
method, as the basis for bid approval in accordance with Article 61 of the
Bidding Law;
e)
Other necessary contents.
5.
During the process of contract negotiation, the parties complete the draft
contract; specific conditions of the contract, contract appendices, including:
detailed list of scope of work, price schedule, performance schedule (if any).
6. If
the bidder participates in negotiations but fails to conduct
negotiations in accordance with the principles and contents specified in
Clauses 3 and 4 of this Article or has conducted negotiations but fails
to sign the contract negotiation minutes, signifying their withdrawal from
the bidding process; or causes disadvantages to the employer, the bidder will
be disqualified and the bid security will be forfeited.
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8. If
the negotiation is not successful, the employer will report to the employer for
consideration and decide whether to invite the next ranked bidder to negotiate.
Article
46. Appraisal of, approval for, and publication of contractor selection result;
completion, signing, and management of contract
1.
The appraisal of, approval for, and publicization of contractor selection
result shall comply with Article 33 of this Decree.
2.
The completion, signing, and management of contracts shall comply with Article
34 and Article 35 of this Decree.
Chapter
III
OFFLINE COMPETITIVE BIDDING, LIMITED
BIDDING FOR NON-CONSULTING, GOODS PROCUREMENT, CONSTRUCTION, MIXED PACKAGES
UNDER TWO-STAGE METHOD
Section
1. TWO-STAGE AND TWO-ENVELOPE METHOD
Article
47. Preparation for bidding in first stage
1.
Shortlisting procedure for competitive bidding and limited bidding shall comply
with Article 25 of this Decree.
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a)
Bidding documents are prepared based on Clauses 1 and 2 Article 26 of
this Decree;
b)
Bidding documents in first stage include
the following contents: Summary about the project and package; instructions for
preparing and submitting bids in first stage; technical requirements of the
package based on the approved basic design or technical specifications;
technical evaluation criteria of the package.
Bidding
documents must allow bidders to propose alternatives to the technical options
offered in the bidding documents, without requiring them to propose
corresponding bid prices and bid security for these alternatives.
3.
Appraise and approve bidding documents:
a)
Bidding documents must be appraised according to Article 135 of this Decree
before approval;
b) Approval
for bidding documents must be based on the approval report and appraisal report
of bidding documents.
Article
48. Organization of bidding in first stage
1.
The invitation to bid in first stage shall comply with Clause 1, Article 28 of
this Decree
2.
Issue, modify and clarify bidding documents:
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3.
Prepare, submit, receive, manage, modify, and withdraw bids:
Preparation,
submission, receipt, management, modification, and withdrawal of bids shall
comply with Clause 3, Article 28 of this Decree.
4.
Bid opening:
The
bid opening shall comply with Clause 4 Article 28 of this Decree.
The
bid opening minutes in first stage do not include information about bid
security, bid prices and discounts (if any) of bidders.
Article
49. Evaluation of technical proposals, submission of, approval for, and
publicization of the list of bidders that meet the requirements of bidding
documents in first stage
1.
The bid evaluation principles shall comply with Article 29 of this Decree.
2.
The bid clarification shall comply with Article 30 of this Decree.
3.
The approval for and publicization of the list of bidders that meet the
requirements of bidding documents in first stage shall comply with Article 33
of this Decree. The list of bidders that meet the requirements of bidding
documents in first stage must be posted on VNEPS no later than 5 working days
from the date of approval.
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1.
Discussion about the bids in first stage:
The
employer invites each bidder on the list
of technically-responsive bidders in first stage to clarify the
contents of the technical proposal. The clarifications to the technical
proposal includes requirements for technical adjustments compared to the
bidder's proposal in first stage and comments on the content of the bidding
documents and the alternative technical plan. The detailed clarifications are
recorded by the employer and each bidder in writing. The employer and the
expert team must ensure that bids’ information in the first stage is not
disclosed.
Based
on the clarifications to technical proposals for each bidder, the expert
team synthesizes and reports to the employer the contents that need to be
adjusted and supplemented in terms of instructions to bidders, evaluation
criteria, and technical requirements, contract conditions and other contents of
the bidding documents in first stage. The employer is responsible for reviewing
and deciding on adjustment and supplementations based on the proposal of the
expert team.
2.
Prepare bidding documents in second stage:
a)
Grounds for preparing bidding documents:
In
addition to the grounds specified in Clauses 1 and 2, Article 26 of this
Decree, the bidding documents in second stage must be based on adjustment and
supplementations related to instructions to bidders, evaluation criteria, and
technical requirements, contract conditions and other contents of the bidding documents
in first stage.
b)
Contents of bidding documents:
Bidding
documents include the following contents: instructions to bidders,
additional purchase options (if any); bid data sheet; evaluation criteria for
the validity of bids; bidder's capacity and experience; technique; finance,
trade; information about the bidder's contract performance result and the
quality of similar goods used; bidding and bid forms; scope of supply,
technical requirements; contract conditions and forms; documents, drawings and
other contents (if any).
3.
Appraise and approve bidding documents:
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b)
Approval for bidding documents must be based on the approval report and
appraisal report of bidding documents.
4.
Organization of bidding:
a)
Bidding documents in second stage are issued to bidders in the list of bidders
that meet the requirements of bidding documents in first stage.
The
modification and clarification of the bidding documents in second stage shall
comply with Clause 2, Article 28 of this Decree.
b)
Prepare, submit, receive, manage, modify, and withdraw bids:
Preparation,
submission, receipt, management, modification, and withdrawal of bids shall
comply with Clause 3, Article 28 of this Decree.
5.
Bid opening:
The
bid opening shall comply with Clause 4 Article 28 of this Decree.
Article
51. Evaluation of bids in second stage
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2.
The bid clarification shall comply with Article 30 of this Decree.
3.
Error correction and deviation adjustment are carried out in accordance with
Article 31 of this Decree.
4.
The bid evaluation shall comply with Article 32 of this Decree.
Article
52. Contract negotiation; appraisal of, approval for, and publication of
contractor selection result; completion, signing, and management of contract
1.
The first-ranked bidder is invited by the employer to negotiate the contract.
2.
The contract negotiation shall comply with Article 45 of this Decree.
3.
The appraisal of, approval for, and publicization of contractor selection
result shall comply with Article 33 of this Decree.
4.
The completion, signing, and management of contracts shall comply with Article
34 and Article 35 of this Decree.
Section
2. TWO-STAGE AND TWO-ENVELOPE METHOD
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1.
Shortlisting procedure for competitive bidding and limited bidding shall comply
with Article 25 of this Decree.
2.
Prepare bidding documents in first stage:
a)
Bidding documents are prepared based on Clauses 1 and 2 Article 26 of
this Decree;
b)
Bidding documents in first stage include the following contents: Summary about
the project and package; instructions for preparing and submitting bids in
first stage; technical requirements of the package based on the approved basic
design or technical specifications; technical evaluation criteria of the
package. Bidding documents must allow bidders to propose alternatives to the
technical options offered in the bidding documents, without requiring them to
propose corresponding bid prices and bid security for these alternatives.
3.
Appraise and approve bidding documents:
a)
Bidding documents must be appraised according to Article 135 of this Decree
before approval;
b)
Approval for bidding documents must be based on the approval report and
appraisal report of bidding documents.
Article
54. Organization of bidding in first stage
1.
The invitation to bid in first stage shall comply with Clause 1, Article 28 of
this Decree
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3.
Preparation, submission, receipt, management, modification, and withdrawal of
bids shall comply with Clause 3, Article 28 of this Decree.
4.
Bid opening:
a)
The bid opening shall comply with Clause 4 Article 28 of this Decree;
b)
The bid opening minutes in first stage do not include information about bid
security, bid prices and discounts of bidders.
Article
55. Evaluation of technical proposals; appraisal of, approval for, and
publicization of the list of bidders that meet the requirements of bidding
documents in first stage
1.
The bid evaluation principles shall comply with Article 29 of this Decree.
2.
The bid clarification shall comply with Article 30 of this Decree.
3.
The appraisal of, approval for, and publicization of the list of bidders that
meet the requirements of bidding documents in first stage shall comply with
Article 33 of this Decree. The list of bidders that meet the requirements of
bidding documents in first stage must be posted on VNEPS no later than 5
working days from the date of approval.
Article
56. Preparation and organization of bidding in first stage
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The
employer invites each bidder whose approved technical proposal meets the
requirements of bidding documents in first stage to clarify the contents of
technical proposal. The clarifications to the technical proposal includes
requirements for technical adjustments compared to the bidder's proposal in
first stage and comments on the content of the bidding documents and the
alternative technical plan. The detailed clarifications are recorded by the
employer and each bidder in writing. The employer and the expert team must
ensure that bids’ information in the first stage is not disclosed.
Based
on the clarifications to technical proposals for each bidder, the expert
team synthesizes and reports to the employer the contents that need to be adjusted
and supplemented in terms of instructions to bidders, evaluation criteria, and
technical requirements, contract conditions and other contents of the bidding
documents in first stage. The employer is responsible for reviewing and
deciding on adjustment and supplementations based on the proposal of the expert
team.
2.
Prepare bidding documents in second stage:
a)
Grounds for preparing bidding documents:
In
addition to the grounds specified in Clauses 1 and 2, Article 26 of this
Decree, the bidding documents in second stage must be based on adjustment and
supplementations related to instructions to bidders, evaluation criteria, and
technical requirements, contract conditions and other contents of the bidding
documents in first stage;
b)
Contents of bidding documents:
Bidding
documents include the following contents: instructions to bidders,
additional purchase options (if any); bid data sheet; evaluation criteria for
the validity of bids; bidder's capacity and experience; technique; finance,
trade; information about the bidder's contract performance result and the
quality of similar goods used; bidding and bid forms; scope of supply,
technical requirements; contract conditions and forms; documents, drawings and
other contents (if any).
3.
Appraise and approve bidding documents:
a)
Bidding documents must be appraised according to Article 135 of this Decree
before approval;
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4.
Organization of bidding:
a)
Bidding documents in second stage are issued to bidders in the list of bidders
that meet the requirements of bidding documents in first stage.
The
modification and clarification of the bidding documents in second stage shall
comply with Clause 2, Article 28 of this Decree.
b)
Prepare, submit, receive, manage, modify, and withdraw bids:
Preparation,
submission, receipt, management, modification, and withdrawal of bids shall
comply with Clause 3, Article 28 of this Decree. Bidders submit bids including
separate technical proposals and financial proposals according to the
requirements of the bidding documents in second stage, including the bid price
and bid security. Financial proposals are offered according to the main
technical proposal of the bidder; if the bidder offers an alternative technical
plan, it must be enclosed with the financial proposal for this alternative.
5.
Open technical proposals:
The
technical proposal opening shall comply with Clause 4 Article 40 of this
Decree.
Article
57. Evaluation of technical proposals in second stage
1.
The bid evaluation principles shall comply with Article 29 of this Decree.
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Article
58. Appraisal of, and approval for the list of technically-responsive
bidders in second stage
1.
The appraisal of, approval for, and publicization of the list of
technically-responsive bidders in second stage shall comply with Clauses 1 and
3 Article 136 of this Decree.
2.
The employer shall notify and post a list of technically-responsive bidders on
VNEPS no later than 5 working days from the date this list is approved and open
financial proposals of these technically-responsive bidders.
Article
59. Evaluation of financial proposals in second stage
1. The
bid evaluation principles shall comply with Article 29 of this Decree.
2.
The bid clarification shall comply with Article 30 of this Decree.
3.
Error correction and deviation adjustment are carried out in accordance with
Article 31 of this Decree.
4. The
financial proposal evaluation shall comply with Article 44 of this
Decree.
Article
60. Appraisal of, approval for, and publication of contractor selection result;
completion, signing, and management of contract
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2.
The contract negotiation shall comply with Article 45 of this Decree.
3.
The appraisal of, approval for, and publicization of contractor selection
result shall comply with Article 33 of this Decree.
4.
The completion, signing, and management of contracts shall comply with Article
34 and Article 35 of this Decree.
Chapter
IV
OFFLINE COMPETITIVE BIDDING, LIMITED
BIDDING FOR CONSULTING PACKAGES
Section
1. CORPORATE BIDDERS
Article
61. Detailed procedures
1. Contractor
selection preparation, including:
a)
Shortlisting (if necessary);
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c)
Appraise (if any) and approve bidding documents.
2.
Contractor selection organization, including:
a)
Invite bids;
b)
Issue, modify and clarify bidding documents;
c)
Prepare, submit, receive, manage, modify, and withdraw bids;
d)
Open technical proposals.
3.
Evaluate technical proposals, including:
a)
Check and evaluate validity of technical proposals;
b)
Evaluate technical proposals in details;
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4.
Open and evaluate financial proposals and submit contractor selection results,
including:
a)
Open financial proposals of technically-responsive bidders; for quality-based
selection, open financial proposals of the first-ranked bidder;
b)
Check and evaluate validity of financial proposals;
c)
Evaluate financial proposals in details and rank bidders (if there is more than
1 bidder);
d)
Submit bid evaluation result;
5.
Contract negotiation:
6.
Appraise, approve, and publicize the contractor selection result and explain
reasons for unsuccessful bidders upon their requests (if any).
7.
Finalize, sign, and manage contract performance.
8.
Bidding in advance stipulated in Article 42 of the Law on Bidding shall comply
with Clauses 1, 2, 3, 4, 5, and 6 hereof. The finalization, signing, and
management of the contract performance stipulated in Clause 7 hereof shall only
be carried out after the project has been approved for investment.
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1.
Based on the scale and nature of the package, the competent person decides
to apply the shortlisting procedure. The application of shortlisting
procedure must be recorded in the specific contractor selection plan.
2.
For competitive bidding:
a) Prepare EOI
request:
The
EOI request include the following contents: summary about the project,
procurement estimate, package; instructions on preparing and submitting EOIs;
evaluation criteria for the validity of EOIs; criteria for bidder capacity and
experience; personnel standards (if any). Criteria for evaluating EOIs are
built on the basis of using the scoring method, which stipulates the minimum
required score not lower than 60% of the aggregate score;
b)
EOI request appraisal:
The
appraisal of EOI requests is not required; in cases where an appraisal is
requested, it shall comply with Article 135 of this Decree before approval.
c)
The approval for EOI request is done in writing based on the approval report
and appraisal report (if any) of the EOI request;
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dd)
The EOI request is published on VNEPS free of charge; The preparation time for
EOI requests must be at least 9 days for domestic bidding and 18 days for
international bidding. Any modification must be made at least 3 working days
before the bid submission deadline;
e)
The employer shall confidentially receive and manage EOIs until the EOI
result is announced;
g)
Open and evaluate EOIs:
EOIs
are submitted by the deadline and at the location specified in the EOI
request and are opened immediately after the bid submission deadline. The
record of the EOI opening must be made in writing, sent to participating
bidders, and posted on VNEPS within 24 hours upon bid opening. EOIs submitted
after the bid submission deadline are invalid, cannot be opened and will be
disqualified.
The
evaluation of EOI is carried out according to the evaluation criteria specified
in the EOI request. Bidders' EOIs with a score not lower than the minimum
required score will be included in the shortlist; the bidder's EOI with the
highest score is ranked first; if there are more than 6 qualified bidders, 6
highest-ranked bidders will be selected for the shortlist;
h)
Submit, appraise, and approve the EOI result:
The
expert team prepares a report on the EOI evaluation result and sends it to the
employer for consideration. The appraisal of EOI results is not required; in
cases where an appraisal is requested, it shall comply with Clauses 1 and 2
Article 136 of this Decree. Bases on the report on EOI evaluation
results, appraisal report of EOI results (if any), and the employer issue a
written approval for EOI results. If a shortlist is created, the written
approval for EOI results shall specify successful bidders and relevant
notes (if any). If a shortlist is not created, the written approval for EOI
results must clearly state the reason;
i)
The shortlist will be posted as required in Point b Clause 1 and Clause 4
Article 8 of the Law on Bidding and shared with bidders who submitted EOIs.
3.
For limited bidding:
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b)
After approval, the shortlist is posted according to Point b, Clause 1 and
Clause 4, Article 8 of the Law on Bidding.
4.
Shortlisted bidders cannot form a joint venture for this bidding process; If
they participate as a joint venture with a non-shortlisted bidder, it must be
granted the approval by the employer before the bid deadline.
Article
63. Preparation of bidding documents
1. Grounds
for preparing bidding documents:
a)
Approved overall contractor selection plan (if any);
b)
Approved specific contractor selection plan;
The
draft bidding documents shall be made after the contractor selection plan is
approved or may be made during the formulation of contractor selection plan but
must ensure approval after the contractor selection plan is approved
c)
Scope and requirements of work; experience and personnel requirements of the
consultant and other necessary requirements (if any);
d) Legal
regulations on bidding and related laws; international treaties and loan
agreements (if any) for ODA-funded projects and concessional loans;
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e)
Other related grounds.
2.
Bidding documents must provide all necessary information for bidders to prepare
competitive bids and cannot contain any restrictions that limit bidder
participation or give any bidder an unfair advantage, which may cause unfair
competition as prescribed in Clause 4 Article 44 of the Law on Bidding.
3.
Bidding documents must specify evaluation criteria for the validity of
technical proposals and financial proposals, including:
a)
The technical proposal is considered valid when it fully meets the following
requirements:
There
is the original technical proposal;
There
is a letter of bid in the technical proposal signed and stamped by the bidder's
legal representative (if any) according to the requirements of the bidding
documents; the signing date of the letter of bid must be after the issuance
date of the bidding documents; do not propose different bid prices or include
conditions that are disadvantageous to the employer. For a joint venture
bidder, the letter of bid must bear the signature and seal by the legal
representative of each joint venture party (if any) or the party assigned to by
the joint venture to sign the letter of bid according to the assigned
responsibilities in the joint venture agreement.
The
tax declaration and tax payment obligations have been fulfilled;
The
validity of the technical proposal meets the requirements as prescribed in the
bidding documents.
The
bidder is not named in two or more technical proposals as an independent bidder
or a joint venture party.
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The
bidder must meet the eligibility requirements in accordance with Article 5 of
the Law on Bidding; For international bidding, in cases where the conditions
for determining domestic bidders that are ineligible to participate in any
part of the package, the employer may conduct a survey on VNEPS as follows:
post a notice requesting domestic bidders to participate accompanied by the
bidding documents for domestic bidders to register for one or several specific
tasks of the package that they can undertake within at least 05 working days;
upon the registration deadline, if no domestic bidders register, foreign
bidders are not required to enter into a consortium with a domestic bidder or
subcontract domestic bidders. In this case, the bidding documents shall not
stipulate that foreign bidders are required to enter into a consortium with a
domestic bidder or subcontract domestic bidders.
In
the 3 years before the bid submission deadline, the bidder did not have
employed personnel (signed a labor contract with the bidder at the time they
committed the violation) who were convicted by a court of a bidding violation
leading to serious criminal consequences, with the intent for that bidder to
win the contract;
b)
The financial proposal is considered valid when it fully meets the following
requirements:
There
is the original financial proposal.
There
is a letter of bid in the financial proposal signed and stamped by the bidder's
legal representative (if any) according to the requirements of the bidding
documents; the signing date of the letter of bid must be after the issuance date
of the bidding documents; do not propose different bid prices or include
conditions that are disadvantageous to the employer. For a joint venture
bidder, the letter of bid must bear the signature and seal by the legal
representative of each joint venture party (if any) or the party assigned to by
the joint venture to sign the letter of bid according to the assigned
responsibilities in the joint venture agreement.
The
validity of the financial proposal meets the requirements as prescribed in the
bidding documents.
4.
Evaluation criteria of bids, including: technical evaluation criteria;
determine the lowest price (if the least-cost selection is applied); combined
evaluation criteria (if the quality-and cost-based selection is applied).
5.
Technical evaluation criteria: using scoring methods, including:
a)
Bidder experience and capacity: from 0% to 15% of total score;
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c)
Solutions and methodology to perform the package: from 30% to 40% of total
score;
d)
Personnel performing the package: from 50% to 60% of total score;
dd)
Depending on the nature of the package, the bidding documents may require
technology transfer with a weight of from 0% to 10% of the total score;
e)
The total weight of score for the items specified in Points a, b, c, d and dd
of this Clause is 100%.
Technical
proposals are evaluated to meet technical requirements when the technical score
is not lower than 70% of the aggregate score (or 80% for consulting service
packages with high and special technical requirements) and the score of each
required item on solutions and methodology, personnel, and technology transfer
(if any) is not lower than 60% of the maximum score of that item (not lower
than 70% for that item for consulting service packages with high and specific
technical requirements). The employer should determine whether a minimum
score is necessary for the "bidder experience and capacity"
criterion, based on the nature of the procurement package.
6.
Based on the scale and nature of the package, the bidding documents stipulate
the financial evaluation method according to one of the following methods:
a)
Least-cost selection;
b)
Quality- and cost-based selection;
c)
Quality-based selection.
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8. Combined
evaluation criteria (in case of applying the quality- and cost-based
selection);
a)
Determine cost-based score:
Use a
scale consistent with the quality-based scale to determine the cost-based
price. The cost-based score is determined as follows:
Cost-based score under consideration
=
Lowest price x (technical scale)
Price under consideration
Where:
Cost-based
score under consideration: Cost-based score of the financial proposal under
consideration;
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Price
under consideration: The bid price (after error correction, deviation
adjustment, and any discounts) of the financial proposal under consideration;
b)
Combined evaluation criteria:
The
aggregate score is determined according to the following formula:
Aggregate
score under consideration = K x Technical-based score under consideration
+ G x Cost-based score under consideration
Where:
Technical-based
score under consideration: is the score determined at the technical evaluation
step of the bid under consideration;
Cost-based
score under consideration: is the score determined at the financial evaluation
step;
K:
technical-based score weight given in the aggregate score scale;
accounting for 70% to 80%;
G:
cost-based score weight given in the aggregate score scale; accounting for
20% to 30%;
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Article
64. Appraisal of and approval for bidding documents
1. The
appraisal of bidding documents is not required; in cases where an appraisal is
requested, it shall comply with Article 135 of this Decree before approval.
2.
Approval for bidding documents must be made in writing based on the approval
report and appraisal report of bidding documents.
Article
65. Organization of contractor selection
1.
Invitation for bids:
a)
Invitations to bid are applied according to Point b, Clause 1,
Article 8 of the Bidding Law if the shortlisting procedure is not applied;
b) In
case the package applies the shortlisting procedure, invitations to bid will be
sent to the bidders named on the shortlist.
2.
The issuance, modification, and clarification of the bidding documents shall
comply with Clause 2, Article 28 of this Decree. For uncomplicated consulting
service package or urgent consulting service package which needs to be executed
immediately to meet execution schedule requirements, the bid must be prepared
at least 7 days before the bid submission deadline; the bidding documents must
be modified at least 3 days before the bid submission deadline.
3.
Preparation, submission, receipt, management, modification, and withdrawal of
bids shall comply with Clause 3, Article 28 of this Decree.
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Article
66. Principles for evaluating bids
1.
The evaluation of bids must be based on the bid evaluation criteria and other
requirements in the bidding documents, based on the submitted bids and
clarifications to bids to ensure the selection of a bidder with sufficient
capacity and experience and a feasible solution to perform the package; any
content within the bidding documents that restricts competition, as defined in
Clause 2, Article 63 of this Decree, will be disregarded during bid evaluation.
2. If
the proposed similar contract in the bid does not meet requirements of the
bidding documents, the employer may request the bidder to supplement or replace
another similar contract for evaluation within a reasonable timeframe.
3.
The evaluation of a bid is done on photocopies, the bidder is responsible for
the consistency between the original and the photocopies. In case there is a
discrepancy between the original and the photocopy but does not change the
bidder ranking order, the evaluation will be based on the original. In case
there are discrepancies between the original and the photocopy, leading to a
different evaluation result on the original than the evaluation result on the
photocopy and causing a change in the bidder's ranking order, the bid will be
rejected and the bidder will be subject to fraud allegations and will be
addressed according to Point a, Clause 1, Article 133 of this Decree.
Article
67. Clarification to bids
1.
After bid opening, the bidder is responsible for clarifying the bids according
to the request of the employer. If a bid lacks required documents on
eligibility, similar contracts, tax declaration and payment obligations,
personnel, the employer shall request clarification and additional documents,
2.
After bid submission deadline, if a bidder finds that their bid lacks required documents
on eligibility, similar contracts, tax declaration and payment obligations,
personnel, they will send clarification and additional documents to the
employer. The employer shall receive the bidder's clarifications for review and
evaluation; additional and clarifying documents are an integral part
of the bid.
3.
Clarifications regarding eligibility must not alter the nature of the
participating bidder. Clarifications regarding validity of the bid (excluding
eligibility), technical proposals, and financial proposals must ensure no
changes to the basic content of the submitted bid or the bid price.
4.
Clarification of a bid is only done between the employer and the bidder whose
bid needs to be clarified. The clarifications to bid must be
made in writing and kept by the employer as an integral part of the bid.
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Article
68. Error correction and deviation adjustment
1.
For types of contracts in Article 64 of the Bidding Law, if the bidder
omits the unit price for one or more work items in the financial proposal
although these work items have been stated in the technical proposal as
required in the bidding documents, the missing unit price will be assumed to be
distributed proportionally among the other listed item in the bid.
2.
For time-based contracts:
a) In
case the total value of the items is incorrect due to an error when adding or
subtracting the value of the items, the value of the items is the basis for
correcting the error;
b) In
case of an error in the total bid price due to addition or subtraction mistakes
within the "Amount" column, the individual values in the
"Amount" column will be used to correct the error;
c) If
there is a discrepancy between the unit price and the amount, the unit price
will be used as the basis for error correction. Discrepancies between the
numerical and written bid price will be resolved as follows: if the written
price contains arithmetic errors, the numerical price is used after correction
based on points a and b of this Clause (if applicable); otherwise, the written
price will prevail;
d) In
case of discrepancies between the technical proposal and the financial proposal
regarding: the number of personnel involved, the number of working days, the
quantity of each non-salary cost item, the number of other input factors
offered in the technical proposal and financial proposal, the quantities
specified in the technical proposal will be used as the basis for error
correction and deviation adjustment. Deviation adjustment in this case is
done according to the quantity and volume stated in the technical proposal with
the unit price stated in the financial proposal.
3.
For lump-sum contracts:
In
case of applying a lump-sum contract, the bid price after discount (if any)
proposed by the bidder in the letter of bid included in the financial proposal
is considered to include all necessary costs to perform the package according
to the scope of work stated in the bidding documents, without error correction
and deviation adjustment. Discrepancies between the numerical and written
bid price will be resolved as follows: if the written price has a clear
meaning, it takes precedence; if the written price has no meaning, the
numerical price is used.
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Error
correction and deviation adjustment are carried out in accordance with Article
31 of this Decree.
5.
Following error correction and deviation adjustment (as outlined in Clauses 1,
2, 3, and 4 hereof), the employer shall notify the bidder of these adjustments
in writing. Within 3 working days of receiving such a notice from the employer,
the bidder must notify the employer in writing if they accept those
adjustments. If the bidder refuses those adjustments, their bid
will be disqualified, unless the error correction, deviation adjustment are
inappropriate or inaccurate.
Article
69. Checking and evaluation of the validity of technical proposals
1.
Evaluate criteria for the validity of a technical proposal:
The
evaluation of validity of the technical proposal shall comply with Clause 1
Article 42 of this Decree but exclude the bid security.
2.
Evaluate the validity of the technical proposal:
The
technical proposal is considered valid when it fully meets the requirements of
Point a, Clause 3, Article 63 of this Decree. Bidders with valid technical
proposals will be evaluated for their technical aspect.
3.
Technical evaluation:
a)
The technical evaluation is carried out according to the evaluation criteria
specified in the bidding documents;
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c)
The bidder that meets the technical requirements or achieves the highest
technical score (for the quality-based selection) may have their financial
proposal opened and evaluated.
4.
The expert team prepares an evaluation report of technical proposals and
sends it to the employer for consideration. The list of technically-responsive
bidders must be approved in accordance with Clauses 1 and 3 of this Decree. The
list of technically-responsive bidders shall be approved by the employer based
on the evaluation report of technical proposals, appraisal report of list
of technically-responsive bidders; if the technical-based method is applied,
the technically-responsive bidders in the evaluation report of
technical proposals, appraisal report of list of technically-responsive
bidders shall be ranked. T he employer shall notify the list of
technically-responsive bidders and non-responsive bidders, provide the
explanation for non-responsiveness, and invite all participating bidders to
open the financial proposals. The employer must post a list of
technically-responsive bidders on VNEPS within 5 working days from the date of
approval for this list.
Article
70. Opening, checking and evaluation of financial proposals
1.
The opening of financial proposals shall comply with Article 43 of this Decree;
for packages applying the technical-based selection method, only the financial
proposal of the fist-ranked bidder shall be opened.
2.
The evaluation of the validity of financial proposals shall comply with point b
Clause 3 Article 63 of this Decree.
Bidders
with valid financial proposals will undergo a detailed financial evaluation.
3.
The detailed evaluation of financial proposals, ranking of bidders, and
submission of the bid evaluation results shall comply with Clause 3 Article 44
of this Decree. The employer does not have to approve the bidder ranking list.
Article
71. Contract negotiation
1.
The first-ranked bidder is invited by the employer to negotiate the contract.
The contract negotiation and principles of contract negotiation shall comply
with Clause 2 and point a Clause 2 Article 45 of this Decree.
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a)
Contents which are insufficiently detailed, unclear, or inconsistent between
the bidding documents and the bid, or within different sections of the bid,
which can lead to issues and disputes or affect the responsibilities of the
parties during contract performance;
b)
Deviations identified and proposed by the bidder in their bid (if applicable).
This includes proposals for changes or alternative solutions, if the bidding
documents allowed bidders to submit such alternatives;
c)
Personnel:
Bidders
cannot replace key personnel who have been proposed in their bids, except
in cases where the bid evaluation takes longer than originally anticipated in
the specific contractor selection plan or force majeure prevents the proposed
key personnel from performing the contract. In these cases, the replacements
must possess qualifications, experience and capacity equivalent to or higher
than the originally proposed personnel and the bidder is not allowed to change
their bid price;
d)
Issues that arise during the contractor selection process (if any) to finalize
the detailed contents of the package;
dd)
Costs related to consulting services based on the requirements of the package
and actual conditions.
e)
Other essential contents.
3.
During the process of contract negotiation, the parties complete the draft
contract and specific conditions of the contract.
4. If
the negotiation is not successful, the employer will report to the employer for
consideration and decide whether to invite the next ranked bidder to negotiate.
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The
appraisal of, approval for, and publicization of contractor selection result;
completion, signing, and management of contracts shall comply with Article 33,
34, and 35 of this Decree.
Section
2. INDIVIDUAL BIDDERS
Article
71. Selection of individual consultants
1.
Individual consultant may include one or a group of experts. If the
consultant is a group of experts, the experts will appoint a representative to
deal with the employer. If the group of experts wins the bid, all of the
members must sign a contract with the employer in person. Individual
consultants are selected based on their capacity and experience, and a fixed
price is agreed upon.
2.
For individual consulting service packages with a package price not exceeding
200 million VND, contractor selection is carried out according to the
shortened process specified in Article 76 and Article 77 of this Decree.
For individual consulting service packages with a package price of over 300
million VND, contractor selection is carried out according to the ordinary
process specified in Article 74 and Article 75 of this Decree.
Article
72. Preparation and approval for terms of reference under ordinary
procedures
1.
The terms of reference include:
a)
Brief description of the project, procurement estimate;
b)
Requirements on scope, volume, quality and performance duration of the package;
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d)
Conditions and location of contract performance;
dd)
Package price according to the fixed price method;
e)
Other necessary matters (if any).
2.
Based on the documents submitted by the expert team, the employer considers
approving the terms of reference.
Article
75. Posting of invitations to bid and evaluation of individual consultants'
scientific resumes; approval for the contractor selection result; signing of
contract; posting of individual consultant selection result under ordinary
procedures
1.
After the terms of reference are approved, the employer posts an invitation to
bid along with the terms of reference on VNEPS, clearly stating the deadline
for receiving scientific resumes. Individual consultants need at least 5
working days to prepare a scientific resume.
Any
clarification requests on the terms of reference must be submitted through
VNEPS at least 3 working days before the
bid submission deadline for consideration. The employer shall respond to the
clarification request on the VNEPS at least 2 working days before the bid
submission deadline.
If
the terms of reference need to be amended after they are issued, the employer
must post the decision to amend them, along with the amended version and
detailed amendments, on VNEPS at least 3 working days before the bid submission
deadline.
2.
Submission of scientific resumes:
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3.
Evaluation of scientific resumes and result submission:
The
scientific resume of each individual consultant is evaluated based on the terms
of reference. An individual consultant will be ranked first if they meet all
the following criteria: fulfill the eligibility requirement outlined in Clause
3, Article 5 of the Bidding Law; have the best scientific resume and technical
proposal (if any), and meet the requirements of the terms of reference. The
expert team prepares a report on the scientific resume evaluation and sends it
to the employer for consideration.
4.
Contract negotiation:
The
employer invites the first-ranked individual consultant to negotiate the
contract according to the approved terms of reference, including the scope of
work, performance schedule, reporting requirements, consulting costs, contract
prices and other necessary matters. The result of contract negotiation is
recorded in writing and must be signed by the employer and the individual
consultant.
5.
Approval for individual consultant selection result is based on the result of
evaluating the individual consultants' scientific resumes and contract
negotiation result. The contract signed between the parties must align with the
decision approving the individual consultant selection result, contract
negotiation result, referencing clauses, and other related documents.
6.
The individual consultant selection result is posted on VNEPS according to
Point a, Clause 1 and Clause 4, Article 8 of the Bidding Law.
Article
76. Preparation and approval of terms of reference and list of individual
consultants under shortened procedures
1.
The preparation and approval for terms of reference are carried out in
accordance with Article 72 of this Decree.
2.
The employer identifies a list of at least 3 individual consultants to submit
to the employer for approval.
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1.
After the terms of reference and list of individual consultants are approved,
the employer sends invitation letters and terms of reference to the individual
consultants named on the list, clearly stating the deadline and location for
receiving scientific resumes. Individual consultants need at least 3
working days to prepare a scientific resume.
2.
Submission of scientific resumes:
Individual
consultants prepare scientific resumes according to the requirements stated in
the terms of reference and technical proposals (if any) and submit them to the
employer within the time limit and address stated in the invitation letter.
3.
Evaluation of the individual consultant's scientific resumes; contract
negotiation; approval for the contractor selection result; signing of
contracts; posting of individual consultant selection result shall comply with
Clauses 3, 4, 5 and 6, Article 75 of this Decree.
Chapter
V
DIRECT CONTRACTING, SHOPPING METHOD,
DIRECT PROCUREMENT, SELF-PERFORMANCE, CONTRACTOR SELECTION IN SPECIAL CASES AND
CONTRACTOR SELECTION TO PERFORM COMMUNITY-INVOLVED PACKAGE
Section
1. DIRECT CONTRACTING
Article
78. Ordinary procedures for direct contracting
1.
Urgent packages, including:
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b)
Packages which require immediate execution to address issues or mitigate the
consequences of unforeseen events such as natural disasters, fires, accidents,
incidents, disasters, or other force majeure events;
c)
Packages which require acceleration in execution progress to protect property,
health and lives of people or avoid severe impacts on adjacent structures;
d)
Urgent packages which require acceleration in execution progress to maintain
the operations of medical facilities including: packages for consulting and
non-consulting services, drugs, chemicals, medical equipment, components,
accessories, vehicles, and construction; failure to implement these immediately
shall disrupt the operations of health facilities and pose risks to patients’
health and lives;
dd)
Packages which need to be executed to serve emergency aid to patients as
prescribed in the Law on Medical Examination and Treatment (if any), including:
packages for consulting and non-consulting services, drugs, chemicals, medical
equipment, components, accessories, vehicles, and construction in cases of
sudden demand, lack of alternative items, and mandatory usage requirements to
protect health and lives of patients;
e)
Packages for consulting and non-consulting services, plant protection chemicals,
veterinary drugs, crop seeds, disinfectants, vaccines, supplies, and chemicals
needed for epidemic prevention and control;
g)
Packages for consulting and non-consulting services, drugs (including vaccines
and biological products), chemicals, testing supplies, medical equipment
(including vaccination supplies), components and accessories, facilities, and
construction should be initiated immediately upon: written directives of
competent authorities (health authorities or governments at all levels), decisions
on declaration of an epidemic for an infectious disease, or a locality’s
request to declare an epidemic for an infectious disease of group A (as per the
law);
h)
Packages for consulting and non-consulting services, drugs, chemicals, testing
supplies, medical equipment, components and accessories, facilities, and
construction for to establish, renovate, and build treatment areas, field
hospitals serving epidemic prevention and control when existing supplies at the health facility are insufficient;
i)
Packages for consulting and non-consulting services, drugs, chemicals, testing
supplies, medical equipment, components and accessories, facilities, and
construction serving diplomatic corps and other countries in their epidemic
prevention and control efforts, upon practical needs and requests from
competent authorities;
k)
Packages belonging to an emergency public investment project according to laws
on public investment.
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a)
Package of the project or procurement estimate which require immediate
execution to ensure the timely completion as per directives in the Resolutions
of the National Assembly of Vietnam, Resolutions of the Government of Vietnam,
Decisions, Directives, and written notifications given by competent
authorities;
a)
Investment projects which require immediate execution to ensure connectivity
and technical infrastructure synchronization of project's facilities as
directed in Resolutions of the National Assembly of Vietnam; Government's
Resolutions; Decisions, Directives, or notifications of the Government's
leaders to meet the requirements to ensure effective management, operation, and
continuous operation;
c)
Packages belonging to a special public investment project according to laws on
public investment;
d)
Packages for provision of conference, seminar, congress, and training session
organizing services (including catering, accommodation, transportation for
delegates; renting equipment, conference rooms, meeting rooms, and related
services) with the requirement to arrange centralized dining and accommodation
locations for delegates and to be carried out urgently; consultancy packages
for design, construction, and installation of booths at fairs, exhibitions to
be carried out urgently to organize national events, holidays; procurement
packages for national reserve goods, service provision in emergency situations
and urgent situations, and national reserve goods storage for items with
special requirements, conditions for specialized storage, expertise, technical
regulations according to the laws on national reserves; packages for
transportation, loading and unloading, packaging, insurance, and other services
related to the export of national reserve goods for relief, support, aid,
serving the foreign affairs tasks of the Communist Party of Vietnam, the State
of Vietnam;
dd)
Packages for repairing and renovating working headquarters, official residence
for provincial- and/or commune-level officials to meet requirements of digital
transformation, information technology which require immediate execution to
serve the reorganization of administrative divisions, state apparatus;
e)
Construction packages with a scale and nature similar to the previous package
which has been organized in the form of competitive bidding or limited bidding
and the contractor has met the schedule, ensured quality, and efficiency over a
period of 5 years from the time on which the contract is signed until the approval
of the contractor selection plan;
g)
Other cases applying direct contracting to select a bidder to implement the
package that meets the schedule, quality, and efficiency of the package,
project, procurement estimate.
3.
Packages falling under strategic fields, projects and tasks in scientific
research, technology innovation, and digital transformation, including:
a)
Packages for special scientific research projects, technology innovation
projects, in accordance with laws on science, technology, and innovation;
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c)
Packages involving the lease or procurement of digital technology products and services using the state budget funds to implement key
tasks of the national digital transformation or as required by resolutions of
the National Assembly of Vietnam, Standing Committee of the National Assembly
of Vietnam, the Government of Vietnam, or decisions of the Prime Minister
of Vietnam;
d)
Packages for development, expansion, and upgrade: National integrated database,
national database, national reporting information system; integrated data
sharing platform, software, shared databases of ministries, departments, and
local governments; document management system, operation system, specialized
databases of ministries, provinces; administrative procedure settlement
information system of ministries, provinces; smart monitoring and operation
centers; online public service provision systems at national, ministerial, and
local levels; national or regional-scale digital platforms or information
systems.
4. Procurement
packages under a procurement estimate without forming a project which has a
package price not exceeding 500 million VND; consulting service packages under
a project has a package price not exceeding 800 million VND; and packages for
non-consulting services, goods, construction, and mixed services under a
project has a package price not exceeding 2 billion VND.
5.
Packages specific professional, operational, technical, supply market
requirements or conditions, including:
a)
Procurement package for goods and services provided by a manufacturer or
supplier; procurement package for drugs, medical equipment provided the only
manufacturer on the market.
b)
Packages for printing, providing stamps, receipts, and seals stipulated in laws
on taxes and customs; packages for printing election materials;
c)
Packages for consulting, relocating technical infrastructure works to serve
land clearance and resettlement tasks; packages for consulting, explosives
clearance for site preparation;
d)
Package for consulting services shall be provided by the bidder that has
previously implemented it to ensure compatibility in technology and copyrights
that cannot be purchased from other bidders; non-consulting service packages
must be purchased from the bidder that has previously implemented it or from
the manufacturer or manufacturer's agent to compatibility in technology and
copyrights with existing equipment, machinery, software, and services or due to
warranty and maintenance conditions of the manufacturer that cannot be
purchased from other bidders, manufacturers;
dd)
Packages for research, testing, purchasing intellectual property rights,
purchasing broadcasting program copyrights; consulting packages, procurement
packages for equipment serving the information technology application in
management, monitoring, and preservation of goods in the national reserve
warehouse system; packages for upgrading and maintaining telecommunications
infrastructure to provide universal telecommunications services in areas where
there is only one enterprise providing universal telecommunications services
according to the program providing public utility telecommunications services
and telecommunications laws;
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g)
Packages for leasing of warehouse facilities for impounded goods; packages for
hiring of transport and handling services for impounded goods at seaports and
concentrated inspection places in case there is only one entity providing such
services in the port; packages for import of sporting weapons to serve training
activities and annual sports competitions of sports training centers, schools and
clubs;
h)
Consulting service packages for preparation of feasibility study reports or
construction engineering which are designated to the authors of work
architecture designs that win the bidding or are selected when they satisfy
relevant capacity requirements laid down in the Law on construction; packages
for construction or reconstruction of monuments, relief, grant murals and
artistic works subject to copyright from the stage of creation to the stage of
construction; consulting service packages for preparation of urban and rural
plannings which are designated to the authors of urban and rural planning
initiatives that have been successful in the urban and rural planning
competition; consulting service packages for archaeological exploration and
excavation; packages for consultancy on or execution of renovation or
restoration of national-level monuments, special national-level monuments and
world cultural heritage sites.
6.
Packages with requirements for protecting state secrets as per laws on state
secrets protection.
7.
Packages of nationally important projects eligible for direct contracting
according to the National Assembly’s resolutions issued when deciding
investment guidelines; packages eligible for direct contracting according to
laws on specific sectors and fields.
For
packages eligible for direct contracting according to this Clause, based on the
completion progress of the package, the employer shall carry out the direct
contracting under the ordinary procedure or simplified procedure in accordance
with Article 79, Clause 2 Article 80 of this Decree. If any provisions of this
Decree are different from those of any National Assembly’s resolution or laws
on specific sectors and fields, provisions of National Assembly’s resolutions
or laws on specific sectors and fields shall prevail.
Article
79. Ordinary procedures for direct contracting
1.
Ordinary procedures for direct contracting shall apply to packages specified in
points c, d, dd, e, g and h Clause 5, Clause 6 of Article 78 hereof.
2.
Direct contracting shall apply to the packages specified in Clause 1 if all of
the following requirements are satisfied::
a)
The contractor selection plan has been approved;
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c)
The cost estimate has been approved as required by laws on specific sectors and
fields (if any).
3.
The ordinary procedures for direct contracting are as follows:
a)
Prepare, evaluate, and approve RFPs:
Contents
of the RFP: brief description of the project, procurement estimate, package;
instructions for preparing and submitting proposals; instructions for preparing
and submitting proposals (if any); technical evaluation criteria; determine the
package price for direct contracting; contract conditions. The specific
requirements for each criterion will be determined based on the individual
package requirements.
Pass
and fail criteria shall apply for capacity and experience evaluation and
technical evaluation for construction packages, goods procurement packages,
non-consulting packages, and mixed packages; scoring method shall apply for
technical evaluation for consulting packages. RFPs may specify the specific marking,
label, and origin of goods; specific technical requirements of the goods and
services (if applicable).
Based
on the specific scale, nature, and conditions of the package, the employer may
stipulate in the RFP the percentage of savings from the proposed winning price
as the basis for bidder to prepare their proposals.
The
appraisal of RFPs is not required; in cases where an appraisal is requested, it
shall comply with Article 135 of this Decree. Approval for RFPs must be
based on the approval report and appraisal report of RFPs (if any).
b)
Identification of the bidder expected to receive the RFPs:
Based
on the scale and nature of the contract package and preliminary information
about the bidder capable of performing the contract package, the employer
determines the bidder to which the RFP is sent. No detailed evaluation of the
bidder's capacity or experience is needed at this stage.
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The
RFP shall be issued for the bidder expected to receive direct contracting.
c)
Evaluation of the proposal and negotiation of the bidder's proposals:
The
bidder prepares and submits the proposal based on the RFP. The evaluation of
proposal is carried out according to the evaluation criteria specified in the
RFP. During the evaluation process, the employer shall invite the bidder to
negotiate on the price to ensure compliance with the specified savings
percentage specified in the RFP, clarify, amend, or supplement the content of
the proposal to prove compliance with the requirements for capabilities, experience,
progress, volume, quality, technical solutions, and implementation methods of
the package.
The
bidder expected to receive the direct contracting if: It has a valid proposal;
possesses the capabilities, experience and proposed technical solutions that
meet the requirements of the RFP; and has a proposed winning price that does
not exceed the approved bid price.
d)
Appraisal, approval, and publication of contractor selection results:
The
appraisal of, approval for, and publicization of contractor selection result
shall comply with Article 33 of this Decree. The appraisal of contractor
selection results is not required; in cases where an appraisal is requested, it
shall comply with Clause 4 Article 136 of this Decree.
dd)
Complete, sign, and manage contract performance:
The
contract signed between the parties must be consistent with the decision on
approval for direct contracting result, proposals, RFPs, and other related
documents. The completion, signing, and management of contracts shall
comply with Article 34 and Article 35 of this Decree.
Article
80. Shortened procedures for direct contracting
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2.
For packages specified in Clauses 2, 3, 4 and points a, b Clause 5 Article 79
hereof, the employer shall apply the shortened procedures for direct
contracting specified in Clause 3 hereof. The conditions specified in Clause 2
Article 79 hereof shall apply to the direct contracting procedures.
3.
The direct contracting procedures include the following steps:
a)
Prepare and send a draft contract to the bidder:
The
employer shall, based on the objectives and scope of work, prepare and send a
draft contract to the bidder intended to have capability to execute the
package; for the packages specified in point e Clause 2 Article 78 hereof, the
employer shall send a draft contract to the bidder who won the bid through
competitive bidding or limited bidding and has already signed a contract to
execute the previous contract. The draft contract must contain the scope and
content of the work to be performed, performance duration, quality of work to
be achieved, corresponding value, and other relevant contents.
The
bidder proposed for direct contracting must meet eligibility requirements as
prescribed in Points a, b, c, d, e, g and i, Clause 1, Article 5 of the Bidding
Law; or the bidder being a household business that meets eligibility
requirements specified in Points a and b, Clause 2 and Points d, e, Clause 1,
Article 5 of the Bidding Law. For goods procurement packages, in addition to
organizations, individuals and group of individuals may also participate as
bidders to offer their own innovative products in accordance with Clause 3
Article 5 of this Decree shall be proposed to receive direct contracting and
RFP. Bidders must be independent from other organizations and individuals in
bidding participation and contract performance in accordance with regulations
(if any).
b)
Complete contracts; approve and publish contractor selection results:
Based
on the draft contract, the employer and the bidder proposed for direct
contracting shall complete the contract to serve as a basis for approving
contractor selection result and signing contract. During the contract
completion process, the employer and the bidder shall negotiate the price to
ensure that the proposed wining price is cost-effective and economical; for
construction packages applying direct contracting as prescribed in point e
Clause 2 Article 78 hereof, the employer and the bidder shall negotiate the
price to ensure a minimum saving of 5% of the bid price.
The
publicization of contractor selection result shall comply with Clause 5 Article
33 of this Decree.
c)
Sign and manage contract performance:
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4.
For packages or items with a value not exceeding 50 million VND, the head of
the procuring entity shall be responsible for his/her procurement decision
ensuring cost-effectiveness and efficiency. The conditions stipulated in Clause
2 of Article 79 of this Decree and procedures stipulated in Clause 3 of this
Article are not required, provided that all regulations regarding invoices and
documents are fully observed in accordance with the provisions of law or the
shortened procedure for direct contracting stipulated in Clause 3 hereof
is applied.
5. In
the case where the employer follows the ordinary procedure, they shall carry
out the procedures stipulated in Article 79 hereof.
Section
2. SHOPPING METHOD, DIRECT PROCUREMENT, SELF-PERFORMANCE
Article
81. Shopping method
Shopping
method applies to packages specified in Clause 1 Article 24 of the Law on
Bidding with a package price not exceeding 10 billion VND. The shopping method
is conducted according to the following process:
1.
Contractor selection preparation, including:
a)
Bidding documents are prepared in accordance with Clause 1 Article 26 of this
Decree. The bidding documents must contain: brief description of the project,
procurement estimate, package; instructions to bidders; bid data sheet;
evaluation criteria for the validity of bids; evaluation criteria for capacity,
experience and technical evaluation using pass and fail criteria; financial
evaluation criteria according to the least-cost selection or evaluated price
selection method. For goods procurement and construction packages, depending on
the scale and nature of the package, bidding documents may or may not include
evaluation criteria for capacity and experience, but bidders must commit to
having sufficient capacity and experience to perform the package. For
non-consulting service packages, bidding documents do not require evaluation
criteria of capacity and experience.
For
goods procurement packages, bidders who are individuals or groups offering
innovative products that meet the requirements Clause 4 Article 6 hereof may be
exempt from certain criteria outlined in Clause 3 Article 10 hereof.
Bidders being household businesses are exempt from submitting financial
statements and meeting net asset value requirements;
b)
Approval for bidding documents:
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2.
Organization of contractor selection:
a)
The employer shall post the invitation to bid and bidding documents on VNEPS
according to Point b, Clause 1, Article 8 of the Bidding Law;
b)
The issuance, amendments or clarifications to the bidding documents shall
comply with Clause 2, Article 26 of this Decree; the time limit for preparing
competitive bids must be at least 07 working days;
c)
Bidders submit bids according to the requirements of the bidding documents on
VNEPS;
d)
The employer shall organize the bid opening and publish the bid opening record
on VNEPS within 02 hours from the bid closing time. The minutes of bid opening
includes the following contents: name of bidder; bid price; discount (if
any); validity period of bid; value and validity period of bid security;
package performance duration. The bid opening minute shall be published on
VNEPS within 24 hours from the bid opening time.
3.
Evaluation of bids:
a)
The bid evaluation principles shall comply with Article 29 of this Decree;
b)
The bid clarification shall comply with Article 30 of this Decree;
c)
Error correction and deviation adjustment shall be carried out in accordance
with Article 31 of this Decree;
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dd)
Bidder ranking shall be carried out according to regulations in the bidding
documents (If there is more than 01 bidder). The bidder who has the lowest bid
price (after error correction, deviation adjustment, and
any discounts) (for the least-cost selection) or has the lowest
evaluated price (for the evaluated price selection) is ranked first.
4.
Approval for, and publication of contractor selection results:
The
approval for, and publication of contractor selection results shall comply with
Article 33 hereof; the contractor selection results are not required to be
appraised.
5.
Complete, sign, and manage contract performance:
The
contract signed between the parties must be consistent with the decision on
approval for contractor selection result, the bid, the bidding documents, and
other related documents. The completion, signing, and management of
contracts shall comply with Article 34 and Article 35 of this Decree.
Article
82. Direct procurement process
1.
The employer may only apply direct procurement once for goods in the package
expected to apply direct procurement within the project execution duration or
within a budget year or fiscal year of the procurement estimate; regarding
procurement estimates, if the package expected to apply direct procurement has
an execution period longer than one year, direct procurement may only be
applied once for the goods in that package in all years of the procurement
estimate.
2.
Contractor selection preparation, including:
a)
Preparation of RFPs:
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In
case of direct procurement with other bidders according to Clause 3, Article 25
of the Bidding Law, the RFPs includes evaluation criteria for eligibility,
capacity, experience, and technique prescribed in Article 26 of this Decree;
b)
Approval of RFPs:
Approval
for RFPs must be based on the approval report, not on appraisal report.
3.
The RFPs is issued to the pre-selected bidder. If this bidder is unable to
continue performing or refuses to perform the direct procurement package, the
employer shall select replacement bidder in this order of priority: a bidder ranked
on the previous package’s list, or another bidder who meets the requirements in
Clause 3, Article 25 of the Bidding Law.
4.
The bidder prepares and submits the proposal based on the RFPs.
5.
Evaluation of the proposal and negotiation of the bidder's proposal:
a)
Evaluation of the proposal, including: checking the technical aspect
and unit price; update information about bidders' capabilities; if choosing a
bidder for direct procurement different from the previous successful bidder,
the expert team must evaluate the eligibility, capacity and experience of that
bidder according to Article 32 of this Decree; evaluate performance progress,
measures to provide goods, technical solutions and measures to perform the
package; other matters (if any);
b)
During the evaluation process, the employer invites the bidder to negotiate or
clarify the proposal details to demonstrate that they meet the requirements of
capacity, experience and progress, quality, technical solutions and
measures to perform the package.
If the
VAT law changes after a direct procurement contract is signed, the unit price
(including VAT) for the goods cannot exceed the sum of the pre-tax value in the
contract and the new VAT amount at the time of applying the direct procurement
contract;
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6.
Approval for and publication of direct procurement result:
The
approval for, and publication of direct procurement result shall comply with
Article 33 hereof; the direct procurement result is not required to be
appraised.
7.
Complete, sign, and manage contract performance:
The
contract signed between the parties must be consistent with the decision on
approval for direct procurement result, proposal, RFPs, and other related
documents. The completion and management of contracts shall comply with
Article 34 and Article 35 of this Decree.
Article
83. Self-performance process
1.
Prepare self-performance plan and draft assignment agreement and assignment
document:
The
self-performance plan includes requirements on scope and content of
work; value and performance duration; quality of work to be performed;
acceptance and payment conditions; work
assignment agreement or work assignment document for a dependent accounting
unit or affiliated unit (hereinafter referred to as the unit assigned to
perform the package).
Payment
of salaries, allowances, management costs and other costs shall be agreed upon
by the employer and the unit assigned to perform the package.
2.
Finalize the self-performance plan:
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3.
Approve and publicize contractor selection result.
4.
Sign the work assignment agreement and manage the package performance:
a)
The organization that directly manages and uses the package shall sign a work
assignment agreement with the unit assigned to perform the package or issue a
work assignment document;
b) If
the law requires on-site supervision for the package, the organization that
directly manages and uses the package will select a consultant which is legally
and financially independent from that organization (following the Bidding Law)
to supervise the package performance process;
c) If
the law does not require independent supervision, no independent supervision
consultant is interested or available as the package is performed in a
disadvantaged area, or the package price of the package is under 1 billion VND,
the organization that directly manages and uses the package must supervise the
package performance on their own.
Section
3. CONTRACTOR SELECTION IN SPECIAL CASES
Article
84. Packages applying contractor selection in special case
1.
Packages for performance of political objectives and national interests as
directed in Resolutions, Conclusions, and guiding documents of the Central
Committee of the Communist Party of Vietnam, the Politburo, the Secretariat,
and key leaders of the Communist Party of Vietnam and the State of Vietnam for
which project execution and contract package performance or requirements
thereof cannot be fulfilled if any of the contractor selection methods
specified in Articles 21, 22, 23, 24, 25, 26, 27, 28, and 29a of the Bidding
Law is applied.
2.
Packages with strict national defense and security, external affairs, border
and territorial security requirements during their implementation for which
project execution and contract package performance or requirements thereof
cannot be fulfilled if any of the contractor selection methods specified in
Articles 21, 22, 23, 24, 25, 26, 27, 28, and 29a of the Bidding Law is applied.
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4.
Packages with one or several specific conditions in terms of processes,
procedures, criteria for contractor selection, conditions for signing and
performing the contract, including:
a)
Packages for procurement of drugs and vaccines under trials purchased
under their manufacturers’ specific purchase, payment, guarantee, security
requirements and other conditions imposed during the contract execution;
packages for procurement of drugs, vaccines and medical devices through
international organizations;
b)
Packages for procurement of domestic vaccines used in the expanded program on
immunization in case where there is only one domestic manufacturer;
c)
Selection of lawyers or solicitors providing legal services for protection of
legitimate rights and interests of the State of Vietnam and foreign regulatory
authorities at investigative bodies for application of trade remedies and
national, foreign, or international jurisdictional bodies or dispute resolution
bodies;
dd)
Packages for purchase of plane tickets for domestic and international
delegations;
dd)
packages for provision of services regarding development and management
participants, beneficiaries collection and disbursement of social insurance,
unemployment insurance, and health insurance benefits;
e)
Contract packages for verification of the pre-feasibility study reports or
feasibility study reports under the project which is decided or has the
investment guidelines approved by the National Assembly of Vietnam;
g)
Packages for valuation, valuation consulting to determine the value of assets
related to urgent criminal issues and cases requested by the competent
authorities;
h)
Packages for provision of conference, seminar, and international legal forum
organizing services in Vietnam;
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k)
Packages for performance of political objectives assigned by the Central
Committee of the Communist Party of Vietnam, the Politburo, the Secretariat,
and key leaders of the Communist Party of Vietnam and the State of Vietnam,
Ministers, Heads of ministerial authorities, Governmental authorities, and
other central authorities (hereinafter referred to as “heads of central
authorities”), Chairpersons of provincial People's Committees, including:
dissemination of information on printed newspapers, online newspapers, radio
and television stations, and other means of mass media in case such information
dissemination activities are performed under contracts signed directly by the
authorities that are granted information dissemination funding with these
organizations; cooperation in film production; packages for purchase of
information from foreign news agencies, foreign press organizations and for
printing of media publications for disseminating principles and policies of the
Communist Party or the State of Vietnam.
l)
Packages for production of broadcasting programs; artistic performances to
serve political objectives;
m) packages for purchasing services from internationally
credit rating agencies; packages for purchasing international payment services
(including associated equipment) exclusively provided by the Society for
Worldwide Interbank Financial Telecommunications (SWIFT); packages for
purchasing services from international financial and currency information
providers and transaction platforms; packages for purchasing international
legal database and resolution of international investment disputes;
n)
Packages for proving school meals or purchasing ingredients to supply school
meals for boarding and semi-boarding students at public educational
institutions; packages for proving meals for athletes and coaches at sports
training institutions or meals for domestic and international sports events in
Vietnam; purchasing raw materials to supply meals for athletes and coaches at sports
training institutions or drug addicts in rehabilitation centers or detainees or
people in custody at detention facilities within the armed forces.
o)
Packages for purchasing insurance for members of Vietnam’s sports delegations
participating in international sports events; package for doping testing to
serve domestic and international sports events held in Vietnam.
p)
Packages for purchasing services and solutions for anti-money laundering
exclusively provided by the United Nations Office on Drugs and Crime; package
for providing consulting services for transaction related to formulation,
construction, investor selection, and financial mobilization for important
projects invested through public-private partnership or other methods requiring
the selection of specialized organizations, having the function of supporting
the public sector and experience in executing similar projects; consulting
service packages exclusively provided by international development
organizations in designing or implementing policies, strengthening
institutions, developing capacity, and providing information for strategic
development or operations.;
q)
Packages involving the lease or procurement of digital technology products and
services using the state budget funds to implement key tasks of the national
digital transformation or as required by resolutions of the National Assembly
of Vietnam, Standing Committee of the National Assembly of Vietnam, the
Government of Vietnam, or decisions of the Prime Minister of Vietnam;
r)
Packages for goods or services procurement sold at uniform price as stipulated
by the State of Vietnam, including: electricity, water, fuel, environmental
sanitation fees, fixed telephone charges, maintenance of fixed telephone
switchboard systems, and other similar goods and services;
s)
Packages for leasing driving test centers; packages for serving foreign affairs
activities of reception of international delegations visiting and working in
Vietnam in accordance with regulations on diplomatic ceremonials; packages for
purchases of diplomatic gifts for leaders of the Communist Party of Vietnam,
the State of Vietnam, Ministers, Heads of ministerial authorities traveling
abroad on work trips or given to international delegations visiting and working
in Vietnam; packages for purchase of police dogs, police dog training, purchase
of drugs, explosives, drug or explosive scent pads used in police dog training;
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u)
packages under other projects or procurement estimates having one or some
specific requirements regarding contractor selection criteria and procedures,
and contract signing and execution that not fall under any of the cases
specified in points a, b, c, d, dd, e, g, h, i, k, l, m, n, o, p, q, r, s and t
of this Clause.
Article
85. Procedures for contractor selection in special cases
1.
For packages specified in Clause 1, Clause 2, Clause 3 and points i, k, l, m,
n, o, p, q, r, s and u Clause 4 Article 84 of this Decree, the employer shall:
a)
Prepare and approve the contractor selection plan:
Packages
for serving foreign affairs activities of reception of international delegations
visiting and working in Vietnam in accordance with regulations on diplomatic
ceremonials; packages for purchases of diplomatic gifts for leaders of the
Communist Party of Vietnam, the State of Vietnam, Ministers, Heads of
ministerial authorities traveling abroad on work trips or given to
international delegations visiting and working in Vietnam specified in point s
Clause 4 Article 84 hereof are not subject to this point.
b)
Negotiate and complete contracts with bidders having sufficient capacity and
experience;
c)
Approve and publicize contractor selection result;
d)
Sign and manage contract performance:
The
contract must contain the scope and content of the work to be performed,
performance duration, quality of work to be achieved, and corresponding value.
The signing and management of contracts shall comply with Article 34 and
Article 35 of this Decree.
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In cases specified in
point n, clause 4, Article 84 of this Decree, if the public educational
institution, rehabilitation center, or detention facility affiliated to the
armed forces is located in an extremely disadvantaged area as prescribed in
investment laws or border area or island, the head of such facility may decide
providing school meals or purchasing ingredients ensuring cost-effectiveness,
efficiency, and reporting regime based on invoices and records without having
to follow the procedures stipulated in this Clause.
In
cases specified in point r Clause 4 Article 84 of this Decree, the employer
shall sign a contract with the supplier stipulated in point d of this Clause
without having to follow the procedures stipulated in points a, b, c, and dd of
this Clause.
In
cases specified in clause 1, clause 2, clause 3, and points m, u, clause 4
Article 84 of this Decree, where the application of procedures specified in
this Clause cannot meet the requirements of implementation, package, or
project, the employer shall approve another contractor selection procedure to
select a bidder with sufficient capacity and experience to ensure the progress,
quality, and efficiency of the package.
2.
For packages specified in point a Clause 4 Article 84 of this Decree:
a)
The employer shall provide an explanation in proposal about basis of applying
contractor selection in special cases, selected bidder (if any), and draft
contractor selection plan for special cases, including: contractor selection
procedures and other relevant contents to meet specific conditions of the
package under the project or procurement estimate to ensure the selection of a
bidder with sufficient capacity and experience to implement the package,
ensuring progress, quality, and efficiency.
b)
Based on the proposal, the Minister of Health shall consider deciding whether
to approve or disapprove the application of contractor selection method in
special cases.
In
the cases where an international organization or a manufacturer of drugs,
vaccines, or medical equipment has specific regulations regarding purchasing
conditions, contract signing conditions (if any), advances, and payments as
binding conditions for the supply of drugs, vaccines, and medical equipment,
regulations of such international organization or manufacturer is applicable.
3.
For packages specified in point b Clause 4 Article 84 of this Decree:
a)
The Minister of Health shall assign an affiliated agency or unit to fulfill the
responsibilities of the employer in vaccine procurement;
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c)
Before December 31, vaccine manufacturers shall prepare a pricing planning
documentation corresponding to the supply quantity for the Expanded
Immunization Program and submit it to the Ministry of Health. The Ministry of
Health shall forward it to the Ministry of Finance for appraisal,
approval, and notification of the maximum vaccine price;
d)
Based on the maximum vaccine price notified by the Ministry of Finance, the
Ministry of Health shall decide approving the specific price that does not
exceed the maximum price. The annual contract
settlement value shall be determined based on the quantity of vaccines and the
specific price approved by the Ministry of Health.
4.
For packages specified in point c Clause 4 Article 84 of this Decree:
a)
The agency handling the lawsuit shall establish criteria, terms of reference,
and control mechanism for law-practicing organizations, lawyers to determine a
list of (no less than 03) law-practicing organizations, lawyers expected to be
hired; only law-practicing organizations and reputable, experienced lawyers are
named in this list;
b)
The agency handling the lawsuit will negotiate legal service contracts with the
most advantageous law-practicing organizations and lawyers based on the
criteria, terms of reference and control mechanism of law-practicing
organizations and lawyers in the lawsuit;
c)
The head of the agency handling the lawsuit approves and announces the result
of selecting law-practicing organization, lawyer;
d)
The agency handling the lawsuit finalizes and signs a legal service contract
with the chosen law-practicing organization, lawyer.
5.
For packages specified in point c Clause 4 Article 84 of this Decree:
a)
For international business trips, based on the approved work plan and flight
itinerary, the agency receiving budget and responsible for buying air tickets
must obtain at least two quotes from two different air ticket agents (or quotes
from one air ticket agent representing at least two airlines, with at least one
being Vietnam national airline). These quotes should be for the same flight
itinerary and will be compared to select the most suitable provider on the
basis of meeting the requirements: direct flight, suitable for work schedule; offers
the lowest total price, including airfare (taxes and surcharges), travel
expenses, and airport wait time fees. The head of agency responsible for
airfare purchases must prioritize cost-effectiveness when contracting with the
airline and remains accountable for their decisions. In case of changing flight
routes abroad due to business needs, the agency head shall decide the airfare
purchases based on the request of the head of the mission;
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The
agency head responsible for airfare purchases must prioritize
cost-effectiveness when contracting with the airline and remains accountable
for their decisions;
c)
Airfare purchases for domestic and international business trips according to
points a and b of this Clause do not require the preparation, appraisal, and
approval for a specific contractor selection plan.
6.
For packages specified in point dd Clause 4 Article 84 of this Decree, the
employer shall:
a)
Negotiate contract with bidders having sufficient capacity, meeting the
selection criteria and conditions determined by the competent authority
according to laws on social insurance, unemployment insurance, health
insurance;
b)
Approve and publicize contractor selection result;
c)
Sign the contract with the contractor. The contract must contain the scope and
content of the work to be performed, performance duration, quality of work to
be achieved, and contract value according to the payment limit set by the
competent authority as prescribed in laws on social insurance, unemployment
insurance, and health insurance.
7.
For packages specified in point e Clause 4 Article 84 of this Decree:
a)
The interdisciplinary Appraisal Expert Group shall determine the capacity and
experience of consulting contractors to immediately provide consulting services
in accordance with regulations, and report to the Chairperson of the State
Appraisal Council for approval;
b)
Within 15 days from the approval of the Chairperson of the State Appraisal
Council, The interdisciplinary Appraisal Expert Group must complete the
following procedures: Prepare and send a draft contract to the consulting
contractor, specifying the scope, content of the work to be performed,
performance duration, quality of work to be achieved, and contract value for
contract negotiation and finalization; conduct the contract negotiation and
finalization; submit the selection results to the Chairperson of the State
Appraisal Council for approval; prepare to sign the contract with the selected
consulting contractor. The contract shall be signed between three parties,
including the representative of the State Appraisal Council, the employer
(investor or agency assigned to prepare the project) and the selected
consulting contractor.
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a)
Send a draft contract to the bidder with sufficient capacity and experience,
specifying the requirements for the scope and content of the work to be
performed, performance duration, quality of work to be achieved, and
corresponding value for contract negotiation;
b)
Approve the contractor selection result and sign a contract with the successful
bidder.
9.
For packages specified in point t Clause 4 Article 84 of this Decree, the
employer shall:
a)
Organize the selection, evaluate the proposals, and negotiate on the proposals
of providers of underwriting services and/or legal advice services, and other
relevant agents based on evaluation criteria and the shortlist of bidders
approved by the Government in the Government's international bond issuance
project;
b)
Approve the selection of providers of underwriting services and/or legal advice
services, and other relevant agents;
c)
The employer shall negotiate and sign contracts with the successful bidder.
Section
4. CONTRACTOR SELECTION TO PERFORM COMMUNITY-INVOLVED PACKAGE
Article
86. Eligibility of residential communities, unions, and worker group in
local areas
1.
Residential communities, unions, and worker groups in local areas are
eligible to participate in the performance of a package specified in
Article 27 of the Bidding Law if citizens in the residential communities, local
workers, or union members live and reside in the local area where the
package is performed and benefit from the package.
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Article
87. Process for selecting bidders being residential communities, unions, and
worker groups
1.
After obtaining an approved specific contractor selection plan, the employer
drafts a contract including requirements on the scope and content of work to be
performed, quality and progress of work to be achieved, contract price, rights
and obligations of the parties.
2.
The employer posts a public notice of invitation to perform the package at the
headquarters of the Commune People's Committee and announces it on
commune-level media so that residential communities, unions, and worker groups
in the area know. The notice must clearly state the meeting time to discuss the
plan for package performance.
3.
Interested communities, organizations, and worker groups receive a draft
contract to research and prepare an eligibility documentation including the
following contents: full name, age, capacity and experience suitable for the
nature of the package of the members participating in package performance.
4.
The employer organizes a review and selects the best residential community,
union, or worker group and invites their representative to negotiate and sign
the contract.
If
there is only one interested residential community, union, or worker group, the
employer may consider assigning the package to that residential community,
union, or worker group. Where it is not possible to assign the
package to the residential community or union, or there is no interested
residential community or union, the package will be assigned to a worker group.
5.
The maximum duration from the public announcement of the invitation to
participate in the package performance to the signing of the contract is 30
days.
6.
The employer publicly announces the selected residential community, union, or
worker group on VNEPS, at the headquarters of the Commune People's Committee
and announces it via other means of commune-level media.
Article
88. Advance, payment, supervision and taking-over inspection of
packages
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2.
The employer shall directly supervise the package performance. The Commune
People's Committee and other unions shall jointly supervise the package
performance by the residential community, union, or worker group.
3.
The employer organizes the taking-over inspection of the completed
package. Parties that join the taking-over inspection:
a)
Representative of the employer;
b)
Representative(s) of the residential community, union, or worker group that
performed the package;
c)
Representative(s) of the local community that benefits from the products and
works of the package;
d)
Other relevant parties decided by the employer.
Chapter
VI
CONCENTRATED PROCUREMENT, PROCUREMENT
UNDER PROCUREMENT ESTIMATES, PROCUREMENT OF DRUGS, CHEMICALS, TESTING
MATERIALS, MEDICAL EQUIPMENT
Section
1. CENTRALIZED PROCUREMENT
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1. Centralized
procurement is carried out through centralized procurement units under
ministries, ministerial-level agencies, Governmental agencies, other central
agencies, provincial-level People's Committees, except cases specified in
Clause 5, Article 53 of the Bidding Law. If the centralized procurement unit
lacks sufficient capacity, a bidding consultant can be engaged to assist in
selecting the bidder.
2.
For goods and services that are required to be centrally procured through a
framework agreement, the unit with procurement needs must sign a contract
with the pre-selected vendor chosen during that process. If a framework
agreement remains in effect and the procurement unit enters into a
contract with a bidder other than the bidder selected through centralized
procurement, the contract will not be paid unless an exception is specified in
Clause 22 or Clause 23 of Article 140 of this Decree.
3. The centralized
procurement shall apply competitive bidding method. In cases where goods
in the centralized procurement list meet the conditions for applying direct
contracting, shopping, price negotiation, or contractor selection in special
cases specified in Clause 1, Article 23, Clause 1, Article 24, Clause 1,
Article 28, Article 29 of the Law on Bidding and Clause 1, Article 78, Article
81, Article 84 of this Decree, corresponding methods shall be applied.
Article
90. Responsibilities in centralized procurement
1.
The centralized procurement unit shall carry out the responsibilities of the
employer as stipulated in Article 78 of the Bidding Law.
2.
Goods and services encouraged for centralized procurement include:
a)
Standardized information technology equipment: desktop computers, printers, and
other devices;
b)
Office equipment: desk phones, printing paper, desks, chairs, cabinets, and
other equipment;
c)
Lighting equipment, air conditioner;
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dd)
Other goods and services.
Article
91. Centralized procurement process under competitive bidding
1.
Centralized procurement process:
Centralized
procurement under competitive bidding is carried out according to Article 24
and Article 36 of this Decree, including the following steps:
a)
Determine procurement volume:
The
volume of goods and services to be procured centrally shall be determined based
on the list of required goods and services prepared and sent to the centralized
procurement unit by the unit with procurement needs or the unit with
procurement needs determine such volume independently based on the actual
usage data (volume and quantity) from the previous procurement period.
For asset procurement under the Law on Management and Use of Public Assets, except for drugs, chemicals, testing supplies,
and medical equipment, the determination of centralized procurement volume is
based on the list of goods and services sent by the unit with procurement needs
to the centralized procurement unit as per the law on management and use of
public assets.
The
centralized procurement and price negotiation unit shall collect information on
the procurement needs of private health facilities, public health facilities
which are public service providers that are self-covering recurrent expenses
and investment, or self-covering recurrent expenses (if any) and organize the
purchase of drugs, chemicals, testing supplies, and medical equipment for these
units as stipulated for other public health facilities in the area;
b)
The preparation and approval of contractor selection plans shall comply with
Articles 37, 38, 39, and 41 of the Law on Bidding;
c)
The contractor selection organization shall comply with Article 28 and Article
40 of this Decree.
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d)
The evaluation of bids shall comply with the principles specified in Articles
29, 30, 32 or Articles 41, 42, 43, 44, and 45 of this Decree;
dd)
The appraisal of, approval for, and publication of the contractor selection
result and explanation for unsuccessful bidders’ disqualification upon their
requests comply with Article 33 and Article 46 of this Decree;
e)
Complete and sign the framework agreement:
The
centralized procurement unit and the successful bidder complete the content of
the framework agreement as prescribed in Article 92 of this Decree, as a basis
for signing the framework agreement. If a bidder is awarded multiple
parts of a package or many different packages, the bidder must submit a
commitment to ensure that the bidder has sufficient capacity and experience to
complete the work according to the quality and performance schedule; this
commitment is an integral part of the contract;
g)
Complete, sign, and perform the contract with the successful bidder:
If
the centralized procurement unit directly signs a contract with the successful
bidder, it is not required to sign a framework agreement as prescribed in
Point e of this Clause. The bidder who has signed the framework agreement must
furnish a performance security before or at the same time the contract takes
effect for the unit with the procurement need. The bidder furnishes
performance security for each unit with procurement unit or for the total number
of package parts that the bidder sign a contract according to the form
specified in the bidding documents or another form approved by the employer.
The
unit with procurement needs shall notify the centralized procurement unit if
the bidder does not sign the contract. The bidder who has signed a framework
agreement but fail to sign a contract as requested by the unit with procurement
needs or fail to furnish the performance security, except in cases of force
majeure, shall have the account locked on VNEPS for a period of 6 months from
the date on which the centralized procurement unit publishes the bidder’s name
on VNEPS, except in cases of force majeure;
h)
Contract finalization.
2.
Based on the scale and nature, a package may be divided into many parts to organize
the bidding to select one or more successful bidders.
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a)
Contractor selection based on supply ability:
Bidders
may offer the full quantity or volume in the bidding documents based on their
ability to supply goods or services. Based on the ability to supply goods
or services of each bidder, , the employer organizes the evaluation and
selects a combination of bidders in ranking order from high to low on the basis
of the evaluation criteria stated in the bidding documents. The selection of
the list of successful bidders must ensure that the total quantity of goods
offered by successful bidders is equal to
the quantity of goods stated in the bidding documents; the total proposed
winning price of the package is lowest (for packages applying the least-cost
selection) or the total evaluated price of the package is the lowest (for
packages applying the evaluated price selection) or the aggregate score of the
package is the highest (for packages that apply a quality-and cost-based
selection); and the successful bid of the entire package does not exceed the
approved package price.
The
unit with procurement needs or the centralized procurement unit signs a
contract with the bidder in order of priority in the bidder ranking list. If
the higher ranked bidder refuses to sign the contract, the unit with
procurement needs or the centralized procurement unit may sign a contract with
the adjacent ranked bidder.
If a
higher ranked bidder refuses to supply goods or services without a legitimate reason or force majeure or breaching the
framework agreement or contract, the breaches will be addressed according to
the framework agreement or contract. Any bidder breaching the contract shall be
subject to fines on breaches of the contract, not be refunded the
performance security deposit, and have their contract performance published on
the VNEPS;
b)
Contractor selection based on bidding volume:
The
contractor selection shall be conducted on the basis of evaluation criteria
specified in bidding documents in accordance with Article 26 and Article 37
hereof. Bidder shall offer the volume and quantity as required in the
bidding documents. The approved list of successful bidders includes the main
list (first ranked bidder) and reserve list (second ranked bidder onwards).
During the contract performance process, if the bidder on the main list
breaches the contract and cannot continue to supply goods or services according
to the quantity and volume specified in the framework agreement or according to
the signed contract, If the second ranked bidder refuses to sign the contract,
the situation shall be addressed according to Clause 16, Article 131 of this
Decree. The previously successful bidder breaching the contract shall be
subject to fines on breaches of the contract, not be refunded the
performance security deposit, and have their contract performance published on
the VNEPS;
Article
92. Content of framework agreement
1.
Based on the scale and nature of the package, the centralized procurement unit
shall specify the detailed content of the framework agreement in the bidding
documents accordingly but must include the main contents as prescribed in
Clause 2 of this Article.
2.
Main contents of the framework agreement:
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b)
Estimated time and location of goods delivery and service provision;
c)
Conditions for supplying goods or services; advance payment, payment, contract
finalization;
d)
Price corresponding to each type of goods or services;
dd)
Warranty and maintenance conditions; training and instructions on use of goods
or services;
e)
Responsibilities of bidders supplying goods or services, including
responsibility for signing and performing the contract and furnishing
performance security for the unit with procurement needs;
g)
Responsibilities of the unit with procurement needs in signing contracts and
using goods or services;
h)
Responsibilities of the centralized procurement unit;
i)
Validity period of the framework agreement;
k)
Penalties and compensation for damages due to breaches of contract;
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Section
2. PROCUREMENT UNDER PROCUREMENT ESTIMATES
Article
93. Procurement process
1.
Contractor selection under the procurement estimate follows the process
outlined in Chapters I, II, III, IV, V, VI and VII of this Decree. The
procurement decision submission or approval is not required.
2.
For goods on the list of standards and norms or the decision on devolution of
authority to determine standards and norms which is issued by the Government of
Vietnam or the Prime Minister, the condition for contract award approval is
that the approved package price of each item must not exceed the price limit
according to the standards or norms issued by the competent authority.
Section
3. PROCUREMENT OF DRUGS, CHEMICALS, TESTING SUPPLIES, MEDICAL EQUIPMENT
Article
94. Contractor selection based on quantity of medical procedures
1.
The contractor selection for a complete package of equipment, chemicals,
testing supplies, and accompanying services (excluding operating
personnel) shall comply with Point b, Clause 1, Article 55 of the Bidding
Law. Bidding documents include the following contents:
a)
Technical requirements for equipment; requirements for software to operate
equipment and calibrate equipment;
b)
Requirements on shelf life of chemicals and testing supplies;
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d)
The bid price summary schedule is built based on the expected number of medical
procedures and the unit price quoted by the bidder for each medical
procedure. This unit price is the total cost to perform the package for
each medical procedure, including costs of equipment, chemicals, and testing
supplies; warranty, maintenance, and component replacement services;
installation, training, instructions for use; chemicals, testing supplies, and
necessary accompanying supplies for testing the quality of the medical
procedure and calibrating equipment; backup equipment (if any); chemicals,
sample testing supplies and other related costs to perform the package.
The employer shall not bear any costs other than the package cost calculated
based on the number of medical procedures and unit price in the contract;
dd)
Requirements for the bidder on warehousing and storage of chemicals and testing
supplies to ensure that medical procedures are performed continuously and
without interruption;
e)
Requirements for installation and testing of quality and parameters of medical
procedures;
g)
Warranty and maintenance requirements, including periodic equipment
maintenance;
h)
Requirements for backup equipment, arrangement of backup equipment at medical
facilities (if necessary);
i)
Other necessary contents.
2.
The bidder must allocate all costs of package performance specified
in Point d, Clause 1 of this Article into the unit price for each medical
procedure and must not pay for any costs other than the costs calculated
according to the quantity of medical procedures and unit price in the contract.
3.
The package can be divided into parts corresponding to one or some types of
medical procedures. A health facility can consolidate the needs of other health
facilities to form a package.
4.
The contract performance period must not exceed 60 months. If the two parties
agree to apply the additional purchase option, the employer shall consider
amending the contract to correspondingly extend the contract performance period
for the additional work but no more than 18 months.
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6. In
all cases, the total extension of the contract performance period specified in
Clauses 4 and 5 of this Article may not exceed 18 months.
Article
95. Procurement of drugs, chemicals, testing supplies, medical equipment
1. If
centrally procured drugs, medical equipment, or testing supplies are on the
approved contractor selection plan but the contractor selection result has not
been announced, or no successful bidder is selected, or the framework agreement
of the centralized procurement package expires, then the health facility
can procure items according to the notice of the centralized procurement unit,
for up to 12 months: competitive bidding, limited bidding, direct
contracting, direct procurement, online quotation, online procurement, shopping
method according to the Bidding Law and this Decree. Payment will come from the
health insurance fund based on the contract price. In case of winning bid for
centralized procurement, the employer may continue the procurement
according to the contract signed with the bidder.
2.
The Ministry of Health shall organize centralized drug procurement at the
national level, and take charge and coordinate with the Ministry of Finance to
negotiate prices. If price negotiation is applied, the bidder invited to
negotiate must meet the eligibility requirements specified in Points a, b, c,
d, e, g and i, Clause 1, Article 5 of the Bidding Law.
3.
Regarding selection of drug suppliers, Vietnam Social Security shall
publicize the price of each winning drug paid from the health insurance fund of
each hospital, province, and the Ministry of Health on the website of Vietnam
Social Security.
Article
96. Payment of costs of purchasing drugs, chemicals, testing supplies, and
medical equipment for private health facilities, health facilities which are
public service providers that are self-covering recurrent expenses and
investment, or self-covering recurrent expenses
1.
Private health facilities, health facilities which are public service providers
that are self-covering recurrent expenses and investment, or self-covering
recurrent expenses can submit their consolidated procurement needs
for drugs, chemicals, testing supplies, and medical equipment to the local
centralized procurement unit for centralized procurement (national level, local
level) and price negotiation. When consolidating the needs for drugs,
chemicals, testing supplies, and medical equipment, private health facilities,
health facilities which are public service providers that are self-covering
recurrent expenses and investment, or self-covering recurrent expenses shall
organize their own plans to use drugs, chemicals, testing supplies, medical
equipment in accordance with regulations on procurement of drugs, chemicals,
testing supplies, medical equipment, similar to those required for local public
health facilities.
If a
private health facility or a health facility which is public service provider
that is self-covering recurrent expenses and investment, or self-covering
recurrent expenses needs to purchase drugs, chemicals, testing supplies, or
medical equipment through a centralized procurement unit, they must sign a
contract with the centralized procurement unit.
2.
Private health facilities and health facilities which are public service
providers that are self-covering recurrent expenses and investment, or
self-covering recurrent expenses that do not consolidate needs for centralized
procurement and price negotiation according to Clause 1 of this Article shall
organize their own selection of contractors to supply drugs, chemicals, testing
supplies, medical equipment.
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Chapter
VIII
ONLINE CONTRACTOR SELECTION
Section
1. ONLINE BIDDING
Article
97. Connecting VNEPS with other systems
1.
Connect to the National Information System for business registration,
cooperative registration, and household business registration (hereinafter
referred to as National Business Registration
System):
a)
VNEPS uses information from business registration, cooperative registration,
and household business registration to register bidders and track their
activities on VNEPS;
b)
VNEPS uses information on legal status, financial statements, and other
information of enterprises, cooperatives, and household businesses stored in
the National Business Registration System to evaluate
prequalification applications, EOI responses, bids and consider contract
award. Data shared between the National Business Registration
System with VNEPS is updated regularly and continuously;
c)
The Ministry of Finance shall develop, manage, and guide the implementation of
connections between the Systems specified in Points a and b of this Clause.
2.
Connect to the Tax Management System (TMS):
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b)
Information on tax liabilities and financial statements of organizations,
enterprises, and household businesses are updated regularly and continuously;
c)
The Ministry of Finance and the Ministry of Planning and Investment organize
the connection of the TMS with VNEPS through the National Business Registration
System; manage received information in accordance with the law on management,
connection, and sharing of digital data of regulatory agencies.
3.
Connect to the Treasury and Budget Management Information System (TABMIS):
a)
VNEPS shares information about contracts, performance progress, completed work
value tables, payment progress of contracts to manage contract performance,
payments, and bidder capacity, experience, and performance history.
b)
The Ministry of Finance organizes the connection of the TABMIS with VNEPS;
manage received information in accordance with the law on management,
connection, and sharing of digital data of regulatory agencies.
4.
VNEPS is connected to the information system of Vietnam Social Security, other
information portals and systems to simplify the bidding process, contract
management, and contract payment.
Article
98. Process for online contractor selection
1.
The preparation, appraisal of, and approval for prequalification documents, EOI
requests, and bidding documents shall comply with Articles 25, 26, 27, 37, 38,
39, 62, 63 and 64 of this Decree.
a)
For the requirements in the data sheet, evaluation criteria for eligibility,
capacity, and experience in the prequalification documents, bidding documents
of goods procurement, construction and non-consulting service packages,
employers may not attach request files other than the contents that have
been digitized in webform form on the VNEPS;
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2.
Criteria for evaluating prequalification applications, EOI responses, and
bidding documents are laid down in Articles 25, 26, 37, 38, 62 and 63 of this
Decree. Prequalification applications, EOIs, and bids are considered valid when
the bidder is not in a stage of suspension or termination from participating in
the System. Bids or any other documents submitted by the bidder to the employer
after the bid submission deadline for modifying or supplementing the submitted
bids are considered invalid and will not be considered, except for documents
clarifying the bids as requested by the employer.
3.
The evaluation of bids is carried out according to the principles specified in
Clauses 1, 2, 3, 4, 6, 7 and 8, Article 29; Clause 1, Article 41; and Clauses 1
and 2, Article 66 of this Decree.
For
packages for procurement of goods and non-consulting services using the
single-stage, one-envelope method or least-cost selection and bids without any
incentives, VNEPS shall automatically rank bidders according to their bid
prices; the evaluation of bids may be conducted against the first-ranked
bidder. If the first-ranked bidder is found nonresponsive, the next-ranked
bidder will be evaluated.
4.
Clarifications to bids are carried out through VNEPS according to Clauses 1, 3,
4, 5, Article 28 and Clauses 1, 3, 4, 5, Article 67 of this Decree.
5.
Error correction and deviation adjustment shall comply with Article 31 and
Article 68 of this Decree.
6.
Based on the bid evaluation report of the expert team, the employer shall
organize the document verification with the bidder.
7.
Contract negotiations (if applicable) shall comply with Clause 4 Article 24,
Clause 6 Article 32, Clause 5 Article 36, Article 45, Clause 5 Article 61, and
Article 71 of this Decree.
8.
EOIs, prequalification applications, bidding documents, shortlist selection
result, and contractor selection result shall be approved on VNEPS.
9.
Bidders must monitor and update information on VNEPS for packages in which they
are interested or participating. Where any errors which occur as a result of
the bidder’s failure to monitor and receive the information updated on VNEPS
cause it suffering disadvantaged conditions during its participation in
bidding, including: changes in and modifications to EOI requests,
prequalification documents, bidding documents, bid submission deadline,
contract negotiation and other matters, bidders must take responsibility and
bear the disadvantages during the bidding process.
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Organize
online contractor selection for all (100%) packages of investment projects or
procurement estimates applying competitive bidding, limited bidding, or
domestic shopping method for procurement of goods, construction,
non-consulting services, or consulting services, mixed packages, except for
packages applying the two-stage and one-envelope method, two-stage and two-envelope
method, or international bidding;
11.
Cases of non-bidding on VNEPS specified in Clause 5, Article 50 of the Bidding
Law include:
a)
Packages applying the two-stage and one-envelope method, two-stage and
two-envelope method, or international bidding;
b)
Packages applying direct contracting, order placement, task assignment,
direct procurement, self-performance, price negotiation, contractor selection
in special cases, community-involved packages, selection of individual
consultants under shortened procedures;
c)
Projects, procurement estimates, packages containing confidential contents and
the disclosure of information on VNEPS will affect community interests, or
endanger social order and security, or endanger national defense, security,
foreign affairs, and territorial borders.
In
case of publicizing information about the project, procurement estimate,
package, specific contractor selection plan, EOI request, prequalification
documents, bidding documents, contractor selection result according to Article
8 of the Bidding Law that may lead to the consequences specified in this point,
the employer shall consider approving the specific contractor selection plan
for not organizing online bidding.
If
some information in the project, procurement estimate, package, EOI requests,
prequalification documents, bidding documents need to be kept confidential and the remaining information may still be
made public, the employer shall decide the information provision method.
Confidential information must not be disclosed on VNEPS; other information may
be posted and online contractor selection may be organized;
d)
Packages exceed the technical infrastructure capacity of VNEPS;
dd)
Other packages as prescribed by law.
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Article
99. Conditions for applying online quotations
1.
Online quotation includes online quotation under ordinary procedures and online
quotation under shortened procedures.
2.
Online quotation under ordinary procedures applies in the following cases:
a)
Common and simple non-consulting service packages;
b)
Packages for procurement of readily available, standardized goods with similar
quality from multiple competing suppliers; price is the main deciding factor,
with no or minimal impact from life cycle costs;
c)
Groups of goods or services that can apply for online quotation include:
materials, fuel, basic construction materials (iron ore, road aggregate,
construction materials, copper pipes and other materials; standardized
information technology equipment, including computers, ink cartridges, modems
and other equipment; printing paper, photocopy paper, simple supplies, light
bulbs; purchase of the right to use commercial software; energy, coal or gas;
chemistry; shipping services; cleaning service; maintenance service; other
goods or services that meet the requirements of Points a and b of this Clause.
3.
Online quotation under shortened procedures applies in the following
cases:
a)
Packages for procurement of goods, provision of non-consulting services, or
construction with a value of no more than 02 billion VND for procurement
estimates, except for the case specified in point d of this Clause;
b)
Packages of procurement of goods, provision of non-consulting services, or
construction with a value of no more than 05 billion VND for projects;
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d)
Divided contract packages for procurement of goods (excluding drugs) for
retailing at retail facilities within the premises of public healthcare
facilities, where each part is an item with a value of no more than 1 billion
VND for procurement estimates.
For
drugs with only one distributor or medical equipment distributed exclusively in
Vietnam where only one contractor is capable of supplying, the shortened online
quotation process is not applicable.
Article
100. Principles of online quotation
1.
Bidders can continuously change prices and factors other than prices (if
any) during the online quotation period. The price levels and factors other
than prices (if any) offered by bidders are publicized on VNEPS during the
bidding process, except the bidder's name. VNEPS automatically ranks and
publicizes the price levels and factors other than prices (if any) during
the online quotation period; remaining time of the online quotation process.
2.
The online quotation only applies to packages evaluated according to the
least-cost selection.
3. If
there are many bidders offering the lowest price, the bidder offers the lowest
price first shall be ranked first.
4.
The end time for online quotation must be during business hours.
5. If
the shortened online quotation is applicable, the offered price must not be
higher than the package price. If the ordinary online quotation is
applicable, the offered price must not be higher than the
lowest price specified in the bid opening minutes of participating
bidders. If the bid prices after discount (if any) of all
technically-responsive bidders exceed the package price and no bidder
participates in online quotation under ordinary procedures, the employer will
address the situation according to Point b or Point c or Point d, Clause 8,
Article 140 of this Decree.
Article
101. Ordinary online quotation process
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2.
Contractor selection preparation, including:
The
preparation, appraisal, and approval of bidding documents shall comply with
Article 26 and Article 27 of this Decree. For packages with a package price of
less than 5 billion VND, the minimum time to prepare bids is 5 working days
from the first date the bidding documents are issued to the bid submission
deadline.
3. In
addition to the contents specified in Article 26 of this Decree, bidding documents
must also include at least the following information related to the online
quotation process:
a)
Notice on the application of online quotation during the contractor selection
process;
b)
Factors other than prices that bidders are allowed to change (if any) and
conversion formula to compare and rank bidders.
4.
Organization of contractor selection:
The
contractor selection organization shall comply with Article 28 of this Decree.
5.
Evaluation of bids and organization of online quotation:
a)
The bid evaluation shall comply with Article 98 of this Decree;
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c)
The bidder decides to participate in online quotation according to the
invitation of the employer. Even if a bidder is invited to participate in the
online quotation but does not submit a quote, their original bid submitted
before the bid submission deadline will still be financially evaluated.
6.
Recording of online quotation result:
a)
Bidders participate in online quotation on VNEPS. The minimum online quotation
time is 3 hours from the time the online quotation starts;
b)
VNEPS records the final offered price of each bidder at the end of the online
quotation process and the bidder ranking list;
c)
The consideration for contract award is carried out according to Article 61 of
the Bidding Law based on the bid price and non-price factors (if any) of the
first ranked bidder at the end of the online quotation process.
7.
Appraisal, approval, and publication of contractor selection results:
The
appraisal of, approval for, and publicization of contractor selection result
shall comply with Article 33 of this Decree.
8.
Complete, sign, and manage contract performance:
The
contract signed between the parties must be consistent with the decision on
approval for contractor selection result, the bid, the bidding documents, and
other related documents. The completion, signing, and management of
contracts shall comply with Article 34 and Article 35 of this Decree.
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1.
Prepare an invitation to bid based on the approved specific contractor
selection plan:
The
invitation to bid includes the following information:
a)
Specific requirements on origin, marking, trademark, manufacturer, technical
specifications of goods, delivery time, warranty and other necessary matters
(if any) for goods procurement package; scope of work, technical
requirements, performance duration, service completion time and other necessary
matters (if any) for non-consulting service packages; scope of work, technical
requirements, performance duration, construction drawing designs, specific
requirements on origin, marking, trademark, manufacturer of materials,
supplies, equipment (if any), requirements on key personnel, major construction
equipment (if any), performance duration, and other necessary matters (if any)
for construction packages. Delivery time and service completion time must be
appropriate and not restrict the participation of bidders in accordance with
Clause 3 Article 44 of the Law on Bidding;
b)
Online quotation start time, bidder ranking principles, bid increments, online
quotation end time and other relevant information (if any);
c) No
bid security is required.
2. After the employer
approves the invitation to bid, the employer shall post the invitation to bid
on VNEPS at least 5 working days for packages with a package price from 02
billion to 05 billion VND, and 3 working days for packages below 02 billion VND
before online quotation start time. The minimum online quotation time is 24
hours from the time the online quotation starts.
3. Bidders participate in direct online quotation on VNEPS to
bid for the items listed in the invitation to bid and can offer their prices
within the time limit specified in the invitation. From the second quotation, bidders are not allowed to offer
their prices lower than 90% of the lowest price specified in the VNEPS.
4. To
participate in online quotation, bidders must commit in their letter of bid to
meet the requirements in the invitation to bid. If the bidder is awarded the
contract but fail to comply with the commitment, the situation will be
addressed in accordance with the terms specified in that document (publicize
the bidder's name on VNEPS and lock the account within 6 months from the date
on which the employer publish the bidder’s name on VNEPS), except for force
majeure events.
5.
Recording of online quotation result:
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b)
The consideration for contract award is carried out according to Article 61 of
the Bidding Law based on the bid price of the first ranked bidder at the end of
the online quotation process.
c)
Based on the results of direct online quotation on VNEPS, the employer shall
invite the first-ranked bidder to accept the contract award approval on
VNEPS. The bidder that is invited are responsible for accepting the
contract award approval. In the cases where the bidder refuses or fails
to accept the contract award approval within 03 working days from the date the
employer invites the bidder to accept the contract award approval on VNEPS, the
bidder shall have its name published on VNEPS, have their account locked for a
period of 06 months from the date on which the employer publicizes the bidder's
name on VNEPS, and have their reputation evaluated in bidding participation.
The employer shall invite the next-ranked bidder to accept the contract award
approval.
6.
Approval for, and publication of contractor selection results:
On
the basis of contract award approval, the approval for, and publication of
contractor selection result shall comply with Article 33 hereof.
7.
Complete, sign, and manage contract performance:
The
contract signed between the parties must be consistent with the decision on
approval for contractor selection result, the bid, the bidding documents, and
other related documents. The completion, signing, and management of
contracts shall comply with Article 34 and Article 35 of this Decree.
Section
3. ONLINE PROCUREMENT
Article
103. Form of online procurement
1.
Online procurement must be approved in the specific contractor selection plan
and apply to goods or services of packages included in the procurement estimate
with a package price not exceeding 500 million VND; packages for procurement of
goods or services under projects with a
package price not exceeding 1 billion VND.
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Article
104. Online procurement process
1.
VNEPS automatically extracts information about the contractor selection result
for centralized procurement on the list of goods or services applicable to
online procurement.
2.
Based on the list of goods or services specified Clause 1 hereof,
employers who wish to procure online can order goods or services directly
on VNEPS. Order for each good and service includes: quantity,
volume; delivery method and shipping unit price (if any); unit price of the
good or service; payment methods; place of delivery or place of performance; other
necessary information.
3.
For each order of goods or services, VNEPS shall automatically send a
notification to the successful bidder of the previous centralized procurement.
Such bidder shall either confirm or reject the order on the VNEPS within 3 days
of receiving the order.
4.
VNEPS shall display a notice of confirmation or rejection of that order and
send a notice to the procurement unit.
5.
The online procurement result shall be published.
6.
The completion, signing, and management of contracts shall comply with Article
34 and Article 35 of this Decree. The bidder shall manage confirmed orders and
provide goods or services as requested, ensuring quality and schedule.
Article
105. Information on goods or services procured online
In
case of reducing the prices of goods or services compared to the provisions in
the framework agreement or previously signed contract, the bidder shall notify
the centralized procurement unit and VNEPS at least 5 days before the reduction.
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ORDERS AND ASSIGNMENT FOR PROVIDING GOODS
AND SERVICES
Article
106. Goods and services order placement
1.
The placing of orders for the production and supply of goods/services serving
as products and public services shall comply with Government's regulations on
assigning tasks, placing of orders for the production and supply of
goods/public services using the state budget from recurrent expenses.
2.
Goods/services other than those specified in Clause 1 hereof shall be ordered
using the state budget and lawful revenues of regulatory authorities and public
service providers, including:
a)
Goods/services in strategic fields; key or nationally significant scientific
research projects or tasks, projects or tasks on foundation industries, key industries,
energy infrastructure, digital infrastructure, green transport, national
defense and security, human resource training associated with technology
transfer; key digital technologies;
b)
Products/goods from findings of special science, technology and innovation
tasks as prescribed by the law on science, technology and innovation;
c)
Key digital technology tasks, products, and services; digital technology
products and services under national important projects, projects with special
nature and requirements from the Government, the Prime Minister, ministries,
departments, and local governments;
d)
Urgent goods and services ordered as directed in Resolutions, Conclusions,
and guiding documents of the Central Committee of the Communist Party of
Vietnam, the Politburo, the Secretariat, and key leaders of the Communist Party
of Vietnam and the State of Vietnam;
dd)
Goods/services which are ordered in accordance with laws on specific sectors
and fields (if any).
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Article
107. Related parties in order placement process
1.
The competent person is the person who decides investing the project or the
head of the superior agency or unit of the organization placing the order.
2.
The ordering organization is the agency or unit which is assigned to manage and
use state budget and other lawful revenues (if any) for order placement.
3.
The supplier is an organization, enterprise, or individual that receives the
order to provide goods or services.
Article
108. Conditions for suppliers winning orders
1.
For organizations, enterprises:
The
supplier, which is an organization or enterprise, must meet the following
conditions:
a)
For organizations: have appropriate functions and tasks for providing goods or
services ordered; for enterprises: have registered business lines, operating
licenses suitable for providing goods or services ordered;
b) It
is not undergoing dissolution process or subject to revocation of enterprise
registration certificate; is not facing insolvency as prescribed by the law on
bankruptcy;
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Article
109. Order placement process
1.
Prepare and approve an order placement plan:
a)
Prepare an order placement plan:
The
ordering organization shall prepare an order placement plan, including: Name of
goods/services to be ordered; estimated quantity, volume of goods/services;
quality of goods/ services; implementation duration and time of completion of
provision of goods/services; order estimate; specific requirements for
suppliers regarding finances, facilities, equipment, machinery, technical
expertise, production technology, implementation solutions, key personnel;
monitoring, evaluation, quality assurance mechanisms; and regulations on
inspection and acceptance of goods/services to be ordered.
The
specific content of the order placement plan is determined by the ordering
organization to ensure the quality, progress, and effectiveness of the order.
b)
The ordering organization shall issue a decision to approve the order placement
plan.
2.
Identify the supplier winning order:
a)
Identify the supplier winning order placement plan:
Based
on the approved order placement plan and preliminary information about the
supplier capable of providing goods/services, the ordering organization
determines the supplier to which the order placement plan is sent.
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The
proposed order price provided by the supplier must include all costs to supply
goods/services, fees, charges, and taxes as per laws. The supplier specifies
taxes, fees, and charges in the order price. In cases where goods/services are
first provided in Vietnam, the supplier shall outline factors of reasonable and
legitimate manufacture and business costs and profits to determine the order
price in accordance with Article 110 hereof.
c)
The eligibility documentation shall be evaluated as required by the order plan:
During
the evaluation process, the ordering organization may invite the supplier to
clarify or modify the eligibility documentation’s content to demonstrate
compliance with the specific requirements of the order placement plan.
The
supplier shall be invited to negotiate the contract when all the requirements
of the order placement plan is met.
3.
Contract negotiation:
a)
Matters to be negotiated:
order
price and other necessary details that are not clear in the order placement
plan and other necessary details;
b)
During the process of contract negotiation, the parties complete the draft
contract; specific conditions of the contract, contract appendices, including:
detailed list of goods/services, performance schedule (if any).
4.
Approve the order placement decision:
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a)
Supplier's name;
b)
Name of goods/services;
c)
Quantity, volume of goods/services;
d)
Order price;
e)
Contract type;
g)
Execution time, completion time.
5.
Sign and manage contract performance:
The
contract signed between the parties must be align with the order placement
decision, contract negotiation minutes, and other related documents.
6.
Publish results of contract execution (excluding information classified as
state secrets):
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Article
110. Order price
The
order price which is negotiated by the ordering organization with the supplier
must ensure the transparency, cost-effectiveness and combat misconducts, waste
and does not exceed the order estimate based on the following information:
1.
Total capital of the program/task, total investment of the project (if any).
2.
Comparison with the price of similar goods/services
3.
Rational and legitimate manufacture and business costs, profits (if any), or
accumulated according to regulations (if any), and other financial obligations
of the supplier as per laws.
4. In
the case where goods/services are provided for the first time in Vietnam, the
order price is determined based on the actual costs of supplying goods/services
and a reasonable profit. The supplier shall separately record and track
these costs and conduct independent audits to determine the payment basis for
the order price.
Article
111. Order placement contract, advance payment, payment, acceptance, contract
finalization
1.
Based on the nature of the goods/services, the ordering organization and the
supplier consider applying one of the types of contracts stipulated in Article
64 of the Bidding Law and laws on specific sectors and fields (if any).
2.
The order placement contract includes:
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b)
Quantity, volume of goods/services;
c)
Quality of goods/services as prescribed in laws on specific sectors and fields
(if any);
d)
Order price;
dd)
Contract type;
e)
Execution time, completion time.
g)
Time, place, method of delivery of goods/services;
h)
Methods of payment and settlement;
i)
Acceptance and contract finalization methods;
k)
Contract modification conditions;
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m)
Responsibilities of the parties for breach of contract and resolution
procedures;
n)
Supplier's responsibility to ensure progress, quality of goods/services;
supplier's obligation to pay damages due to contract violation, impose
penalties against contract violations to ensure the legal rights and interests
of the ordering organization;
o)
Other contents agreed upon by the parties but not contrary to laws.
3.
Advance payment, payment, acceptance, and contract finalization shall be agreed
upon and specified in the contract by the ordering organization and the
supplier.
4.
Contract modifications shall comply with the signed contract modification
conditions ensuring compliance with laws.
Article
112. Assignments for goods and services provision
1.
Public goods/services supply tasks shall be assigned in accordance with
regulations on state budget, Government’s regulations on task assignments,
order placement for public products/services provision funded by the state
budget from recurrent expense, and regulations on financial autonomy mechanisms
of public service providers.
2.
Other goods/services provision funded by the state budget and lawful revenues
of regulatory agencies, public service provider shall be assigned in accordance
with law on public investment, state budget, and specific sectors and fields
regarding the conditions, procedures, and processes for goods/services
provision assignment.
Chapter
IX
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Article
113. Contract with the contractor
1.
The contract signed between the employer (or authorized entity) and the
contractor is a civil contract and is made in writing. The legal representative
or person authorized by the legal representative (hereinafter referred to as
“legal representative”) of the contractor shall sign the contract; for joint
venture contractor, the legal representative of the joint venture parties shall
sign the contract according to Clause 3 Article 67 of the Law on Bidding. A
contract that has been signed by the parties, is valid, and in accordance with
law is the highest legal basis binding the responsibilities and obligations of
the parties during the contract performance process and to resolve any arising
disputes (if any).
The
content of the contract must be prepared according to the form specified in the
bidding documents or RFPs, and be consistent with the contract negotiation
results (if any), contract completion results, and contractor selection results
based on the requirements of the package and instructions of laws on specific
sectors and fields (if any).
2.
When signing a contract, the contract must ensure compliance with the
following:
a)
General conditions of the contract, specific conditions of the contract in the
bidding documents, RFPs and corrections and clarifications during the contractor
selection process;
b)
The bidder's detailed proposals in the bids and proposals approved by the
employer and the matters agreed between the two parties during the contract
negotiation process (if any), contract finalization;
c)
Approval for contractor selection results;
d)
Law regulations.
3.
Quality management of goods or services; currency and form of contract payment;
advance payment; contract payments; payment and contract finalization
principles comply with Articles 116, 117, 118, 119, 120 and 121 of this Decree.
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1.
Contract modifications occur when the employer and bidder mutually agree to
modify or supplement any terms and conditions outlined in the
original signed contract. Contract modifications can only be made during the
validity period; modifications to the schedule, volume, and price are carried
out in accordance with Clause 2, Article 70 of the Bidding Law. Contract
modifications apply to all types of contracts specified in Article 64 of the Bidding
Law and must be done in writing.
2.
Parties can agree in the contract on contract modification procedures according
to Point a, Clause 1, Article 70 of the Bidding Law in the following cases:
a)
When there is a change in policy or law that directly affects the performance
of the contract;
b)
Force majeure events;
c)
Changes in method of transportation, delivery location, and related services
for goods procurement packages;
d)
Additional volume and quantity of work under the purchase option in addition to
the volume and quantity stated in the contract. In this case, the contract
modification document must clearly stipulate the volume, value, delivery time
or service completion time for additional work and other necessary matters.
Delivery time or service completion time for additional work may extend beyond
the original contract performance period, but this extension must be approved
by a competent person. The employer may choose to purchase additional
quantities, but the total number of items purchased cannot exceed the maximum
limit specified in the respective contractor selection plan.
If
the VAT law changes after the additional purchase option applies, the unit
price (including VAT) of the good or service cannot exceed the sum of the
pre-tax value in the contract and the new VAT amount at the time of applying
the additional purchase option;
dd)
Changes in approved design;
e)
One or more parties propose initiatives and improvements in contract
performance that bring higher benefits to the employer;
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h)
Other cases as prescribed by law and agreement between the parties, including
volume, price and other matters.
3.
When the price index and other factors fluctuate according to the instructions
of the Ministry of Construction, employers and bidders can consider modifying
contracts for packages governed by the Construction Law. This ensures
compliance with civil law regulations regarding contract modifications due to
substantial changes to contract performance circumstances.
4.
For packages for procurement of goods and provision of non-consulting services
under the procurement estimate that apply fixed unit price contracts,
adjustable unit price contracts, if the originally agreed-upon contract
completion date arrives and the specified work remains incomplete, the employer
can request an extension from the competent person but not exceeding 6 months,
except cases specified in Clause 5, Article 94 of this Decree.
5.
Cases where the contract price, volume, or other specified terms can be changed
without requiring contract modifications or signing a contract modification
document as outlined in Clause 5 of Article 70 in the Bidding Law:
a)
Adjust contract prices due to inflation and deflation for adjustable unit price
contracts, time-based contracts, output-based contracts (if any) as prescribed
in Clauses 2 and 3 of Article 115 of this Decree;
b)
Increase or decrease volume for fixed unit price contracts, adjustable unit
price contracts; for packages of goods procurement and non-consulting services
that apply fixed unit price contracts, adjustable unit price contracts, the
addition of volume under the additional purchase option will apply contract
modifications according to Point d, Clause 2 of this Article;
c)
Increase or decrease time for time-based contracts; increase or decrease direct
costs of cost-plus-a-fee contracts; increase or decrease the base value to
calculate the percentage of costs for percentage-based contracts; increase or
decrease the level of payment deduction and increase in payment value for
output-based contracts;
d)
Other cases as prescribed by law and agreement between the parties.
If
the changes to the items specified in this Clause lead to failure to meet one
or more of the requirements specified in Clause 5, Article 70 of the Bidding
Law, the competent person must be reported to authorize the contract
modifications.
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1.
Contract price adjustment due to inflation and deflation (hereinafter referred
to as indexation) for adjustable unit price contracts is carried out in
accordance with Clauses 2 and 3 of this Article. For time-based contracts,
output-based contracts, indexation shall apply to long-term contracts or in
market situations with large price fluctuations.
2.
The indexation must be specified in the bidding documents or RFPs and be
finalized during the contract negotiation process (if any) and contract
completion. The contract must stipulate the principles and time for calculating
adjustments; input database to calculate adjustments; time to calculate the
price index or original price as a basis for determining the difference due to
indexation for each contract installment. The content of the contract
price must include a provisional indexation value calculated on the basis of
expected indexation and legal regulations on cost management as a basis for
payment. The indexation value shall be managed and paid as specified in the
contract, without having a contract modification document signed; if the
price fluctuations cause subsequent installments and total contract price to
exceed the originally package price, the employer shall consider the approval.
The parties must sign a contract modification document before making payment.
3.
The indexation is determined according to the following methods:
a)
Direct compensation method;
b)
Adjustment method using adjustment formula based on application of price index.
The price index used as a basis for calculating indexation is determined
according to the bidding documents, RFPs, detailed contract negotiation (if
any) and contract completion. The index source can be specified according to
the price index announced by the Ministry of Finance of Vietnam or the
construction price index announced by the Ministry of Construction and
Provincial People's Committees. For foreign-sourced cost items subject to
indexation adjustments, the price index published by the independent
statistical agency in the foreign country where the cost incurs may be applied.
Determining the method and formula for calculating price adjustments must be
based on a scientific basis, consistent with the nature of the package, and
specific regulations on indexation risk management in the contract.
Employers can apply adjustment formulas that are widely applied in the
international market, including regulatory templates of the Fédération
Internationale des Ingénieurs Conseils (FIDIC), and guidance from the World
Bank ( WB), Asian Development Bank (ADB) and other templates;
c)
Other adjustment methods specified in Points a and b of this Clause as per the
law.
Article
116. Quality management of goods or services
1.
Quality requirements of goods or services must be specifically regulated
through criteria, parameters, and product specifications, quality control
procedures stated in the technical requirements, specific conditions of the
contract and other matters in the bidding documents or RFPs. Based on the bidder's
proposal in the bid, clarifications during the evaluation of the bid, proposal
and detailed negotiations (if any), contract completion, quality requirements
of goods or services to be supplemented and completed to sign a contract.
2.
The contract must stipulate procedures to control quality indicators of goods
or services; control the origin of goods.
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1.
The currency used to pay for the contract must be specifically specified in the
contract and in accordance with the requirements of the bidding documents or
RFPs and must not contradict regulations of law.
2.
Costs incurred within Vietnam must be paid in Vietnamese Dong, while costs
incurred outside Vietnam can be paid in either foreign currency or Vietnamese
Dong, as stipulated in the contract.
3.
Payments can be made in cash, via bank transfer, or through other methods
mutually agreed upon by the parties in accordance with applicable laws and to
be clearly specified in the contract.
Article
118. Contract advance
1. A
contract advance is a sum of money paid upfront to the bidder to carry out the
work under the contract.
2.
Depending on the scale and nature of the package, determine the advance level
in accordance with law (if any). The contract must clearly specify the
following regarding the contract advance: advance amount, advance time, bank
guarantee for advance, advance recovery; responsibilities of the parties in the
management and use of advance funds; collecting the value of the advance guarantee
if the advance funds are used for improper purposes.
3.
The bidder shall ensure that the advance capital is used for proper purposes,
allocated to the correct recipients, and used effectively. It is strictly
forbidden to advance money without using it or using it for improper purposes.
Article
119. Contract payment
1.
The contract price and specific payment terms stated in the contract are the
basis for payment to the bidder.
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3. If
there are many different types of contracts in a contract, the payment
principles corresponding to each type of contract shall apply as prescribed in
Article 120 of this Decree.
Article
120. Payment principles for various types of contracts
1.
For lump-sum contracts:
Payment
is made according to a percentage of the contract price or the price of the
project, work item, and work volume corresponding to the payment period agreed
upon by the parties in the contract; when making payment, confirmation of
detailed completed volume is not required.
2.
For fixed unit price contracts:
The
payment value is determined on the basis of the fixed unit price in the
contract multiplied by the volume and amount of actual work that the bidder has
performed and has been accepted corresponding to the completion milestones and
terms in the contract.
3.
For adjustable unit price contracts:
The
payment value is determined on the basis of the unit price of adjusted unit
price according to the contract multiplied by the volume and amount of actual
work that the bidder has performed and has been accepted corresponding to the
completion milestones and terms in the contract. If the contract does not
adjust the unit price but adjusts price slippage, the payment value is
determined according to the contract price adjusted for price slippage
according to the contract.
4.
For time-based contracts:
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b)
For work outside the scope of Point a in this Clause, payment will be made on
the basis of the unit price per unit of time; total payment will be calculated by multiplying the unit price by the actual
working time aligned with the completion milestones and regulations outlined in
the contract;
c)
Related costs (in addition to expert salary, other work costs applying the unit
price per time unit specified in Points a and b of this Clause) include:
travel, survey, office rental, communication and other costs are paid according
to the method specified in the contract. For each of these costs, the contract
needs to clearly stipulate the payment method such as actual payment based on
valid invoices and documents presented by the bidder or payment based on the
unit price agreed upon in the contract.
5.
For percentage-based contracts:
The
payment value is determined by multiplying the percentage stated in the
contract by the value of the project that has passed the taking-over inspection
and consistent with the project insurance period stated in the contract.
6.
For output-based contracts:
The
payment value is determined on the basis of the actual value of the work that
has passed the taking-over inspection corresponding to the payment period
agreed upon by the parties in the contract, plus or minus the payment
increase/payment deduction value according to regulations in the contract based
on output results.
7.
For cost-plus-a-fee contracts:
Payment
is based on the actual costs the bidder has spent to perform the contract, plus
an appropriate profit amount for the bidder based on the provisions of the
contract.
8.
Processing of payment documents is carried out within 14 days from the date the
bidder submits all payment documents to the employer.
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1. A
contract shall be finalized in the following cases:
a)
The parties fulfill their obligations under the signed contract;
b)
The contract is terminated (cancelled) as per the law.
2.
The parties may agree that the contract will automatically expire upon
fulfilling the obligations under the signed contract or signing a contract
finalization record. The contract finalization record can be prepared
separately or as a part of the taking-over certificate or contract termination
record in consistence with the responsibilities of the parties specified in the
contract The finalization of the contract must be carried out within 45 days
from the date on which the parties fulfill their obligations under the signed
contract or within 45 days from the date the contract is terminated (cancelled)
according to regulations of law and no more than 90 days for large-scale and
complex contracts.
Chapter
X
INSPECTION AND MONITORING OF BIDDING
ACTIVITIES AND ADDRESSING OF VIOLATIONS IN BIDDING
Section
1. INSPECTION OF BIDDING ACTIVITIES
Article
122. Responsibilities for inspecting bidding activities
1.
Ministry of Finance:
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b)
Agencies tasked with managing bidding activities under the Ministry of Finance
in inspecting bidding activities according to Point a of this clause.
2. Ministries,
ministerial-level agencies, Governmental agencies, and other central agencies
shall take charge of inspection of bidding activities for projects and
procurement estimates of units under their management.
3.
Provincial-level People's Committees:
a)
Take charge of inspections of bidding activities for units under their
management;
b)
Departments of Finance shall assist the provincial-level People's Committee in
inspections of bidding activities stipulated in point a hereof.
4.
Competent persons shall organize inspections of bidding activities for packages
within their management scope.
Article
123. Responsibilities of inspectorate and inspectorate members
1.
Responsibilities of inspectorates:
a)
Inspect bidding activities in accordance with inspection decisions;
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c)
Draft the inspection report and notify the inspection report to organizations
and individuals within the inspected entity;
d)
Draft the inspection conclusion.
2.
Responsibilities of heads of inspectorates:
a)
Lead the formulation of and approval for detailed inspection plans;
b)
Assign tasks to inspectorate members when performing inspection.
3.
Responsibilities of inspectorate members:
a)
Carry out inspection in accordance with regulations and as assigned by the head
of inspectorate;
b)
Prepare reports on individual inspection results as assigned;
c)
Report to the head of inspectorate on the results of the inspection they
conducted;
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Article
124. Responsibilities of organizations and individuals of the inspected entity
and relevant organizations and individuals
1.
Responsibilities of organizations and individuals in the inspected entity:
a)
Coordinate with and facilitate the inspectorate during the inspection process;
b)
Report, promptly provide full, accurate or truthful information or documents and
take legal responsibility for the information provided;
c)
Explain the contents in the draft inspection report (if any).
d)
Implement inspection conclusions of the inspection agency;
dd)
Send report on the implementation of inspection conclusions to the inspection
agency stipulated in Clause 4 Article 129 hereof.
2.
Responsibilities of relevant organizations and individuals:
a)
Report, promptly provide full, accurate or truthful information or documents
and take legal responsibility for the information provided;
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Article
125. Principles for organizing inspection
1.
Comply with the law, ensure accuracy, objectivity, openness, transparency and
timeliness.
2. Be
fair, objective, and do not cause difficulties for the inspected entity; comply
with regulations on anti-corruption.
3.
Conduct independently but with coordination and clear division of authority
among competent inspection agencies.
4.
Prevent overlap or duplication in scope, inspected entities, inspected matters,
and timing among competent inspection agencies.
5. If
there is overlap in the inspected entities, priority shall be given to
inspection by specialized authorities or superior agencies.
Article
126. Forms of inspection
1.
Periodic inspection:
a)
Periodic inspection is carried out according to the annual plan approved by the
head of the inspection agency;
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c) If
it is necessary to modify the approved periodic inspection plan, the inspection
agency shall make a modified plan and submit it to the head of the inspection
agency for approval;
d)
The approved periodic inspection plan and modified plans (if any) are the basis
for the head of the inspection agency to approve the inspection decision and
organize inspection;
The
periodic inspection plan and modified plans (if any) shall be sent to the
inspected entity within 10 days from the date of approval provided that the
inspected entity receives them at least 15 days before the inspection date.
2.
Ad-hoc inspections:
a)
Ad-hoc inspections decided by the head of the inspection agency;
b)
Ad-hoc inspections shall be conducted in specific cases the request of the
Prime Minister, heads of central agencies, Chairpersons of Provincial-level
People's Committees, and heads of inspection agencies.
Article
127. Methods of inspection
1. An
inspection may be conducted according to one or a combination of the inspection
methods specified in Clauses 2 and 3 of this Article.
2.
On-site inspection is the primary method applied and carried out directly at
the premises of the inspected unit.
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Article
128. Inspection duration and budget
1.
Inspection duration:
a)
The maximum duration for on-site inspection is 15 days from the date of the
inspection decision announcement, except as specified in point b of this
Clause. Within a maximum period of 45 days from the end of the on-site
inspection, the inspectorate must prepare an inspection report. The head of the
inspection agency shall approve the inspection conclusion within a maximum
period of 20 days from the date on which the draft inspection conclusion is
submitted.
b) If
the inspection has complex aspects and involves many inspected entities, the
maximum duration for on-site inspection is 20 days from the date of
announcement of the inspection decision. Within a maximum period of 45 days
from the end of the on-site inspection, the inspectorate must prepare an
inspection report. The head of the inspection agency shall approve the
inspection conclusion within a maximum period of 20 days from the date on which
the draft inspection conclusion is submitted;
2.
Budget for inspection:
a)
Budget for inspection are allocated in the annual current expenditure estimates
of the inspection agency of bidding
activities under ministries, ministerial-level agencies, Governmental agencies,
other central agencies, and Departments of Finance according to the State
Budget Law and guiding documents;
b)
State-owned enterprises, competent persons shall arrange their own funds to
carry out inspection.
Article
129. On-site inspection process
1.
Preparation for inspection:
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a)
Collect information and documents related to the inspection; In case of ad hoc
inspection, information and documents may be collected before or after the
inspection decision issuance;
b)
Determine the composition of the inspectorate and members of coordinating
agencies (if any);
c)
Request the head of the inspection agency to approve the inspection decision;
d)
The head of inspectorate shall approve the detailed inspection plan after the
inspection decision is approved; if the inspection has complex aspects,
involves many inspected entities or requires an ad hoc inspection, the head of
inspectorate shall consider submitting a detailed inspection plan to the head
of the inspection agency for approval;
dd)
Develop a report outline to serve as a basis for the inspected entity to
prepare a report on the bidding activities that need to be inspected;
e)
Send a notice, detailed inspection plan, and report outline to the inspected
entity, the superior agency of the inspected entity (if any) and relevant
entities (if any). The written notice is sent to the inspected entity at least
10 days before the inspection date.
2.
Organization of inspection:
a)
The leader of the inspectorate announces the inspection decision when beginning
the on-site inspection at the premises of the inspected unit and prepares an
inspection decision announcement record;
b)
The inspectorate collects, studies, analyzes, and assesses information and
documents related to the bidding activities, including the information
specified in Clause 2 Article 132 hereof, of the inspected entity; prepares
assessment tables and comments on each related content; checks and verifies
information and documents (if necessary); checks the implementation results to
serve as the basis for conclusion. During the inspection, the inspectorate may
discuss with the inspected entity and conduct a physical inspection if
necessary. Depending on the scale and nature of the inspection, the leader of
inspectorate decides preparing a record confirming the inspected contents;
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d)
After completing the on-site inspection at the premises, the inspectorate drafts
a inspection report and submits it to the leader of inspectorate for review and
decision, then submits it to the inspected entity for feedback. The draft
inspection report is sent to the inspected entity in writing, or
simultaneously in writing, fax, and email;
dd)
Based on the draft inspection report and explanations provided by the
inspected entity, the inspectorate completes the inspection report.
3.
Inspection findings:
a) On
the basis of the inspection report, the inspectorate drafts the inspection
finding and submit it to the head of the inspection agency for review and
approval. Inspection findings must include plans to address violations against
bidding laws;
b)
Inspection findings are sent to the inspected entity and the superior agency of
the inspected entity (if any) and relevant units (if necessary).
4.
Monitoring of the implementation of inspection findings:
a)
The head of the inspected entity shall organize and report the implementation
of inspection findings to the competent authority within the time limit
specified in the inspection findings. The report must include: measures to
address the weaknesses, errors specified in the inspection finding; measures to
rectify bidding activities; handling of responsibilities of organizations, individuals
according to the recommendations of the inspectorate (if any);
b)
Monitoring of implementation suggestions of inspection findings is carried out
through reports as prescribed in Point a of this Clause. If organizations and
individuals of the inspected entity and related organizations and individuals
who are responsible for implementing the suggestions in the inspection findings
fail to do or fail to fully and promptly do that, their violations will be,
depending on their nature and extent, addressed as per the law.
Article
130. Written inspection process
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The
inspection agency or the inspectorate established by the inspection agency
requires the inspected entity to report on
the implementation of its management responsibilities for bidding or the
implementation of bidding activities, including the following:
a)
Reporting purposes and requirements;
b)
Scope and content of the report;
c)
Outline of reporting requirements;
d)
Deadline for submitting report of the inspected entity;
dd)
Responsibilities of the inspected entity;
e)
Other related contents.
2.
Organization of inspection:
a)
Based on the report of the inspected entity, the inspection agency shall
collect, research, analyze and evaluate information, including the information
specified in Clause 1, Article 132 of this Decree about the inspected entity;
documents related to the report contents; verify information and documents when
necessary; during the inspection, the lead inspection agency can discuss with
the inspected entity (if necessary);
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3.
Inspection findings and monitoring of implementation of suggestions in inspection
findings are carried out according to Clauses 3 and 4, Article 129 of this
Decree.
Section
2. MONITORING OF BIDDING ACTIVITIES
Article
131. Monitoring of bidding activities by competent persons
1.
Authority to monitor bidding activities
a)
Ensure the compliance with regulations on bidding, related laws, and guidance
of superior authorities (if any) of the contractor selection.
b)
Select contractors meeting requirements for schedule, quality, and efficiency
for package execution;
c)
Detect any shortcomings in the contractor selection process to provide warnings
and measures to rectify;
d)
Ensure the openness and transparency in bidding activities;
dd)
Emphasize responsibilities of the employer in compliance with regulations on
bidding.
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Bidding
activities shall be monitored for one or more of the contents specified in
Clause 3 Article 86 of the Law on Bidding, including:
a)
Compliance with bidding regulations in the preparation, evaluation (if any),
and approval of contents in the contractor selection process;
b)
Compliance with the timeline for contractor selection according to the approved
selection plan; disclosure of information in bidding;
c)
Capacity of expert teams, appraisal teams;
d)
Compliance with bidding regulations and related laws on evaluation criteria in
prequalification applications, EOIs, bidding documents, and RFPs;
dd)
Evaluation process of prequalification applications, EOIs, bidding documents,
and RFPs;
e)
Clarification of prequalification documents, EOIs, bidding documents, RFPs,
prequalification applications, EOI responses, bids, and proposals;
g)
Resolve petitions in bidding of employers;
h)
Compliance with the schedule and quality of the contractor according to the
signed contract;
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3.
Cases of monitoring bidding activities
a)
Packages falling under the direct contracting specified in points a, b, c, e, g
Clause 2 and Clause 7 Article 78 of this Decree;
b)
Packages falling under the contractor selection in special cases specified in
Clause 1, Clause 2, Clause 3, and point u Clause 4 Article 84 of this Decree;
c)
Packages requiring monitoring as per the request of superior competent
authorities;
d)
Packages with petitions or feedback regarding the failure to meet the quality
and schedule requirements;
dd)
Packages not falling under points a, b, c, and d of this Clause, but the
competent person decides monitoring (if necessary).
4.
Procedures for monitoring of bidding activities
a)
Monitoring preparation: After the project or contractor selection plan is
approved or upon request from the superior competent authority, the competent
person shall assign an agency or unit to monitor bidding activities and send a
notice to the employer about the package to be monitored, monitoring contents,
and information of the monitoring agency or unit.;
b)
Monitoring execution: The monitoring agency or unit shall assign individuals to
directly participate in monitoring the package according to the monitoring
content; request the employer to report in writing on the monitoring content
and provide relevant records and documents for the monitoring agency or unit
according to the package schedule;
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5.
Responsibilities of the individual or unit supervising bidding activities
include:
a) Be
honest and objective; not cause inconvenience to the employer, expert team, or
appraisal team during the monitoring process;
b)
Request the employer, expert team, and appraisal team to provide relevant
documents and records to facilitate the monitoring process;
c)
Receive feedback from bidders and relevant organizations or individuals
regarding the contactor selection of the project;
d)
Maintain confidentiality of information as per law.
dd)
Take responsibility for the results of their monitoring.
e)
Fulfill other responsibilities as stipulated by bidding laws and other relevant
laws.
Article
132. Regular supervision of bidding activities by bidding authorities
under ministries, agencies and provinces
1.
Ministry of Finance shall:
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b)
Monitor the contractor selection of state-owned enterprises that do not use
state budget in accordance with pp d Clause 7 Article 3 of the Bidding Law
under its management;
c)
Monitor the contractor selection through information and data synthesized on
VNEPS to provide recommendations for ministries, departments, provinces, and
enterprises to improve the efficiency of bidding activities.
2.
Regulatory bodies on bidding under ministries, departments, and local
governments
a)
Regularly monitor the bidding activities of investors subject to Article 2 of
the Bidding Law under their management;
b)
Supervise the contractor selection in accordance with point d Clause 7 Article
3 of Bidding Law of state-owned enterprises that do not use state budget,
public service providers that are self-covering recurrent expenses and
investment, public service providers that are self-covering recurrent expenses
under their management.
3.
Contents of regular monitoring bidding activities
a)
Significant packages applying direct contracting or contractor selection in
special cases; goods/services of important projects applying order placement;
b)
Employers that fail to provide explanation for bidding documents or fail to
respond to bidding documents, contractor selection results; employers that have
a low average number of bidders of competitive bidding, limited bidding,
shopping method, and online quotation under ordinary procedures; employers that
have many packages with only one participating bidder; and employers that have
recommendations on bidding documents and contractor selection results; packages
that do not meet quality and schedule requirements; packages showing signs of
subcontracting; other relevant information.
4. Procedures
for regular monitoring of bidding activities for cases stipulated in point a
Clause 2 hereof
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b)
Bidding authorities affiliated to ministries, departments, or local governments
shall monitor and consolidate the information according to point a hereof to
request the employer to report or propose competent authorities to take timely
measures to ensure progress, quality, and effectiveness in executing the
bidding packages or projects;
c) In
cases of detecting organizations or individuals committing violations, the
bidding authorities affiliated to ministries, departments, or local governments
shall request the employer or the competent person to consider handling the
violating organizations or individuals and issue corrective documents regarding
the bidding activities of agencies and organizations within the area or under
their management.
5.
Procedures for regular monitoring of bidding activities for cases stipulated in
point b Clause 1 and point b Clause 2 hereof
a)
Quarterly, state-owned enterprises that do not use state budget, public service
providers self-covering both recurrent and investment expenses or public
service providers self-covering recurrent expenses shall send reports to the
Ministry of Finance and bidding authorities affiliated to ministries,
departments, or local governments as prescribed in Clause 3 hereof;
b)
The Ministry of Finance and bidding authorities affiliated to ministries,
departments, or local governments shall monitor and consolidate the information
according to point a hereof to request state-owned enterprises, public service
providers self-covering both recurrent and investment expenses and public
service providers self-covering recurrent expenses to take timely measures to
ensure progress, quality, and effectiveness in execution of packages and
projects;
c) If
necessary, the Ministry of Finance and bidding authorities affiliated to
ministries, departments, or local governments shall establish a supervision
team to supervise the contractor selection in accordance with point d Clause 7
Article 3 of Bidding Law of state-owned enterprises that do not use state
budget, public service providers that are self-covering recurrent expenses and
investment, public service providers that are self-covering recurrent expenses.
Section 3. ADDRESSING OF VIOLATIONS
Article
133. Bidding ban
1.
Organizations and individuals committing violations, including
individuals within the employer, expert team, or appraisal team shall be
banned from bidding for the following durations:
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b) 1
year to 3 years for any of the violations of points b and c, Clause 3; Clause
5; points g, i, and l Clause 6; Clause 8; and Clause 9 Article 16 of the
Bidding Law;
c) 6
months to 1 year for any of the violations of Points a, b, c, d, dd, e, Clause
6 and Clause 7, Article 16 of the Bidding Law;
For
joint venture bidders, the bidding ban specified in Clause 1 hereof shall apply
to all joint venture parties if any of joint venture parties commit any
violations specified in Article 16 of the Law on Bidding, except for the case
where the joint venture party committing any violations of point c Clause
3, Clause 4, points b, c, d, and dd Clause 5, points a, b, c, d, dd, e, and g
Clause 6, Clause 7, points a and b Clause 8 Article 16 of the Law on Bidding,
only that member is banned from bidding.
2. In
cases where an organization or individual commits 2 or more violations within
the management scope of the competent person and has not been banned from
bidding, the competent person shall issue a decision on bidding ban with a ban
period determined by the total duration of the violations but not exceeding 5
years.
3.
The statute of limitations for applying the bidding ban specified in Clause 1
of this Article is 10 years from the date of the violation.
4.
Ministries, ministerial-level agencies, provincial-level People's Committees
shall consider issuing a decision on bidding ban within the scope of their
management within 15 days from the date of receipt of one of the following
documents:
a)
Written request from the employer accompanied by documents proving the
violation;
b)
Petitions on the inspection findings of inspection agencies, inspection
findings of inspectorates, report on audit results from the state audit
authorities;
c)
Results of resolving petitions of the Council in charge of petition resolution;
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5. If
an organization or individual has 03 effective decisions on bidding ban issued
by competent persons on VNEPS, the head of central agency or the chairperson of
the People's Committee of province shall consider issuing a decision on bidding
ban within the management of the ministry, department, or province for a period
of 5 years for the violator.
6. If
an organization or individual has 05 effective decisions on bidding ban issued
by heads of central agencies and People's Committees of provinces on VNEPS, the
Minister of Finance shall issue a decision on bidding ban nationwide for a
period of 5 years for the violator. Decisions on bidding ban nationwide shall
be published on VNEPS by the Minister of Finance.
7. A
decision on bidding ban shall contain:
a)
Name of the violating organization or individual;
b)
Content of the violation, legal basis for addressing the violation, and ban
period for the violation; total ban period (if committing 2 or more
violations); ban scope;
c)
Entry into force.
8. In
the cases where an organization or individual is banned from participating in
bidding activities disagrees with the decision on bidding ban, they may file a
lawsuit in court following civil procedure law.
9.
Expert team or appraisal team members who commit violations against Article 16
of the Law on Bidding shall be subject to Clause 1 of this Article and have
their bidding professional certificates revoked.
Chapter
XI
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Article
134. Responsibilities of the appraisal team
1.
The employer shall appraise the following contents: EOI requests (if any),
prequalification documents (if any), bidding documents (if any), RFPs (if any),
results of evaluation of EOI responses, results of evaluation of
prequalification applications, list of technically-responsive bidders (for
packages applying the single-stage two-envelope method, two-stage two-envelope
method), contractor selection results.
2. In
the cases where the organization or individual assigned to appraise does not
have sufficient capacity, a consulting organization with sufficient capacity
and experience shall be selected to conduct the appraisal.
Article
135. Appraisal of EOIs requests, prequalification documents, bidding documents,
and RFPs
1.
Documents submitted for appraisal and approval include:
a)
Request for approval for EOIs requests, prequalification documents, bidding
documents, and RFPs of expert teams;
b)
Draft EOI requests, prequalification documents, bidding documents, and RFPs;
c)
Decision on project approval (if any), decision on approval for contractor
selection plan;
d)
Other relevant documents.
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a)
Documents serving as basis for the formulation of EOI requests,
prequalification documents, bidding documents, or RFPs;
b)
Compliance of the contents of EOI requests, prequalification documents, bidding
documents, or RFPs with the scale, objectives, scope of work, execution
timeline of the project, procurement estimate, package; with the minutes
between the employer and participating bidders in first stage (for packages
applying the two-stage method); with bidding laws and relevant laws;
c)
Opinions (if any) between organizations and individuals participating in
formulating EOI requests, prequalification documents, bidding documents, or
RFPs;
d)
Other related contents.
3.
The appraisal report includes:
a)
Overview of the main content of the project, procurement estimate, package,
legal grounds for formulating EOI requests, prequalification documents, bidding
documents, or RFPs;
b)
Comments and opinions of the appraisal team on legal grounds, compliance
with bidding laws and relevant laws; agreement or disagreement on the content
of the draft EOI requests, prequalification documents, bidding documents, and
RFPs;
c)
Proposals and recommendations of the appraisal team on approving the EOI
requests, prequalification documents, bidding documents, and RFPs; action plans
to address non-compliance in EOI requests, prequalification documents, bidding
documents, and RFPs with bidding laws and relevant laws; action plans to
address insufficient grounds for approval for EOI requests, prequalification
documents, bidding documents, and RFPs;
d)
Other opinions (if any).
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Article
136. Appraisal of results of evaluation of EOIs, results of evaluation of
prequalification applications, list of technically-responsive bidders,
contractor selection results
1.
General principles:
a)
Evaluation results of EOI responses, prequalification applications
(appraised as requested by the employer), and appraised contractor selection
results;
b)
For packages applying the single-stage and one-envelope method, the contractor
selection result shall be appraised without requiring appraisal of the list of
technically-responsive bidders;
c)
For packages of consulting services goods, construction, non-consulting
services, and mixed services, which apply the single-stage and two-envelope
method and packages that apply the form of online quotation under ordinary
procedures, the list of technically-responsive bidders must be appraised
before approval;
d)
For packages applying the two-stage and one-envelope method, documents
shall not be appraised in the first stage. The appraisal in second stage shall
be conducted similarly to those required for packages applying the single-stage
and one-envelope method;
dd)
For packages applying the two-stage and two-envelope method, the list of
technically-responsive bidders shall be appraised in the first stage. The
appraisal in second stage shall be conducted similarly to those required for
packages applying the single-stage and two-envelope method, in which the list
of technically-responsive bidders in the second stage shall be appraised in
accordance with the technical contents in the bidding documents for second
stage, which have been adjusted compared to first stage;
e)
Before signing the appraisal report, the appraisal team may convene a meeting
between the parties to resolve remaining issues if necessary;
g) It
is not required to appraise the list of ranking of bidders.
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a)
Documents submitted for appraisal and approval include:
Report
on the results of evaluation of EOI responses and prequalification applications
of the expert team;
Documents,
including: EOI requests, prequalification documents, bid opening minutes, EOI
responses, prequalification applications of bidders and other relevant
documents.
b)
Contents to be appraised include:
Documents
that serve as the foundation for inviting interest and organizing
prequalification;
Compliance
with time regulations during the invitation of interest and prequalification
process;
Evaluation
of EOI responses, prequalification applications; compliance with regulations of
bidding laws and other relevant laws during the evaluation of EOI responses,
prequalification applications;
Different
opinions (if any) between individuals in the expert team;
Other
related contents.
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Overview
of the main content of the project, procurement estimate, package, legal grounds
for invitation of interest, organization of prequalification;
Brief
statement describing process of invitation of interest, organization of
prequalification and request of the expert team on the results of evaluation of
EOI responses and prequalification applications;
Comments
and opinions of the appraisal units on the legal grounds, compliance with
bidding laws and other relevant laws; assurance of competitiveness fairness,
and transparency in the process of inviting interest and organizing prequalification;
agreement or disagreement on the results of evaluating EOI responses and
prequalification applications;
Proposals
and recommendations of the appraisal unit on the results of evaluating EOI
responses and prequalification applications; action plans to address
non-compliance with bidding laws and relevant laws during the process of
inviting interests and organizing prequalification; action plans to address
inconclusive results in evaluation of EOI responses and prequalification
applications;
Other
opinions (if any).
3.
Appraisal of the list of technically-responsive bidders for packages of
consulting services, non-consulting services, procurement of goods, and
construction under two-envelope method:
a)
Documents submitted for appraisal and approval include:
Report
on the results of the evaluation of technical proposals by the expert team;
Documents,
including: Bidding documents, RFPs, bid opening minutes, technical proposals of
bidders and other relevant documents.
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Evaluation
of technical proposals; compliance with regulations of bidding laws and other
relevant laws during the evaluation of technical proposals;
Different
opinions (if any) between individuals in the expert team
Other
related contents.
c) The
appraisal report includes:
Brief
statement of the process of organizing contractor selection (from the
disclosure the invitation to bid to the request of the expert team to appraise
the list of technically-responsive bidders) and the request for a list of
technically-responsive bidders of the expert team;
Comments
and opinions of the appraisal team on the legal grounds, compliance with
bidding laws and relevant laws; assurance of competitiveness, fairness, and
transparency in the process of selecting a list of technically-responsive
bidders; agreement or disagreement on the results of selecting a list of
technically-responsive bidders; action plans to address non-compliance with
regulations of bidding laws and other relevant laws during the evaluation of
technical proposals; action plans to address inconclusive results in selecting
a list of technically-responsive bidders;
Other
opinions (if any).
4.
Appraisal of contractor selection results:
a)
Documents submitted for appraisal and approval include:
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Minutes
of contract negotiations (if any);
Minutes
of document verification (if any);
Photographs
of the following documents: bidding documents, RFPs, minutes of bid openings,
bids, proposals of bidders and other relevant documents; if the list of
technically-responsive bidders has been appraised, only the record of opening
the financial proposals and photographs of the financial proposals of the
technically-responsive bidders shall be sent.
b)
Contents to be appraised include:
Documents serving
as basis for contractor selection;
Compliance
with time regulations during the process of organizing contractor
selection;
Evaluation
of bids and proposals for packages applying the single-stage and one-envelope
method, two-stage and one-envelope method, and two-stage and two-envelope
method; compliance with bidding laws and other relevant laws during the
evaluation of bids and proposals;
Evaluation
of financial proposals for packages applying the single-stage and two-envelope
method; compliance with bidding laws and other relevant laws during the
evaluation of financial proposals;
Compliance
with bidding laws and other relevant laws during the contract negotiation
process (if any); compliance of contract negotiation results with contractor
selection results (if any), bidder ranking list, bidding documents, RFPs and
bids, and proposals;
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Other
related contents.
c)
The appraisal report includes:
Overview
of the main content of the project, procurement estimate, package, legal
grounds for invitation of interest, organization of prequalification;
Brief
statement of the entire contractor selection process from selecting the
shortlist (if any) to submitting the contractor selection result for appraisal,
accompanied by documents as prescribed in Clauses 2 and 3 of this Article;
Summary
of proposals and recommendations of the expert team on the contractor selection
result;
Name
of the proposed successful bidder, proposed winning prices, type of contract,
package performance duration and contract performance duration;
Comments
and opinions of the appraisal team on the legal grounds, compliance with
bidding laws and relevant laws; assurance of competitiveness, fairness, and
transparency in the process of contractor selection; agreement or disagreement
on the contractor selection results; action plans to address non-compliance
with regulations of bidding laws and other relevant laws during the contractor
selection; action plans to address inconclusive results of contractor
selection;
Other
opinions (if any).
Chapter
XII
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Article
137. Conditions for consideration and settlement of petitions
1.
Regarding petitions against issues before the disclosure of contractor
selection results, a petition must meet the following conditions to be
considered and settled:
a)
For petitions regarding the content of bidding documents, the petition must be
from relevant agencies or organizations interested in the package; for other
issues related to the contractor selection, the petition must be from
participating bidders;
b)
The petition must bear the signature and seal (if any) of the legal
representative of the bidder, agency, or organization or be digitally signed
via an account, and sent to VNEPS;
c)
Bidders, agencies, or organizations must submit the petition to the employer
and competent authority by the deadlines specified in Clause 1, Article 138 of
this Decree.
2.
Regarding petitions against contractor selection results, a petition must meet
the following conditions to be considered and settled:
a)
The petition is prepared by the bidder participating in the bidding;
b)
The petition must bear the signature and seal (if any) of the legal
representative of the bidder, agency, or organization or be digitally signed
via an account, and sent to VNEPS;
c)
The content of the petition has not been subject to litigation, complaint, or
denunciation by the bidder;
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dd)
The bidder shall pay petition fees to the standing department of the President
of the Advisory Council (hereinafter referred to as “standing department”).
Within 03 working days from the date of receiving the bidder’s petition, the
standing department shall send a notice of petition fee payment to the bidder.
Within 02 working days from the date of receiving the notice, the bidder
must pay petition fees. In case the bidder fails to make the payment, the
bidder’s petition will be considered as unsatisfactory for consideration and
settlement;
e)
The bidder must submit the petition to the competent authority and standing
department by the deadlines specified in Clause 2, Article 138 of this Decree.
3. In
the case where the bidder, agency, or organization fails to meet the conditions
specified in Clause 1 and Clause 2 of this Article, the competent person shall
resolve the petition and send a written notice to the bidder, agency, or
organization.
Article
138. Petition resolution procedures
1.
The resolution of petitions against issues before the disclosure of contractor
selection results is carried out according to the following procedures:
a)
Bidders, agencies, or organizations shall send a petition against the bidding
documents to the employer before the bid submission deadline. Participating
bidders shall send a petition against other contents of the contractor
selection process to the employer before the disclosure of contractor selection
results. Petition’s contents shall be disclosed on VNEPS. The
information of bidders, agencies, and organizations submitting petitions, and
the time of submitting the petitions shall be disclosed to the employer on
VNEPS. The employer shall provide a written response to the bidder, agency, or
organization within 07 working days from the date of receiving the petition and
publish it on VNEPS.
In
cases where the bidder, agency, or organization does not agree with the
response or the employer fails to provide a response by the deadline specified
in point b of this Clause, the bidder, agency, or organization has the right to
send a petition to the competent person within 05 working days from the
deadline for response or the date of receiving the response from the employer;
The competent person shall provide a written response to the bidder, agency, or
organization within 07 working days from the date of receiving the petition and
forward it to the employer to publish it on VNEPS.
b)
Bidders, agencies, or organizations shall send a petition against the bidding
documents to the employer before the bid submission deadline. Participating
bidders shall send a petition against other contents of the contractor
selection process to the employer before the disclosure of contractor selection
results. The competent person shall provide a written response to the bidder,
agency, or organization within 07 working days from the date of receiving the
petition and send it to the employer to publish it on VNEPS.
In
the case where the bidder sends a petition to both the competent person and the
employer, the employer shall resolve the petition.
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a) The
bidder shall send a petition to the employer within 10 working days from the
date on which the investor selection result is published on VNEPS; Petition’s
contents shall be disclosed on VNEPS. The information of the bidder submitting
petition and the time of submitting the petition shall be disclosed on VNEPS.
The employer shall provide a written response to the bidder within 07 working
days from the date of receiving the petition and publish it on VNEPS.
In
cases where the bidder does not agree with the response or the employer fails
to provide a response within the deadline, the bidder has the right to send a
petition to the standing department within 05 working days from the deadline
for response or the date of receiving the response from the employer; The
Council in charge of petition resolution shall provide a written response to
the bidder within 30 working days from the date on which the Council in charge
of petition resolution is established and send the response to the employer for
disclosure on VNEPS.
b)
The bidder shall send a petition to the standing department within 10 working
days from the date on which the contractor selection result is published on
VNEPS; The Council in charge of petition resolution shall provide a written
response to the bidder within 30 working days from the date on which the
Council in charge of petition resolution is established and send the response
to the employer for disclosure on VNEPS.
In
the case where the bidder sends a petition to both the standing department and the
employer, the Council in charge of petition resolution shall resolve the
petition.
3. If
necessary, the Council in charge of petition resolution shall request the
competent person to consider deciding the suspension of signing and execution
of contracts. In cases where the Council in charge of petition resolution’s
petition is approved, within 05 working days from the date of receiving the
petition, the competent person shall send a notice on suspension of signing and
execution of contracts to the employer, specifying the duration of the
suspension.
4.
The written response must include a conclusion on the content of the employer's
petition. If it is concluded that the contents of the petition are true, the
resolution must clearly state the measures, methods, and timeframe to rectify
the consequences (if any). If it is concluded that the contents of the petition
are untrue, the written response must provide explanations. The
cost of resolving the petition shall be refunded in accordance with Clause 2
Article 15 hereof.
5. In
cases where the investor does not agree with the response of the employer,
competent person, or Council in charge of petition resolution, the bidder may
file a lawsuit in court.
6.
For the petition resolution by the competent person or the Council in charge of
petition resolution, the employer must publish the written response on VNEPS
within 5 working days from the date of receiving the response.
7.
For the contractor selection stipulated in point d Clause 7 Article 3 of the
Bidding Law or the contractor selection that does not fall into any case under
the scope and regulated entities of the Bidding Law but the organization, unit,
or state-owned enterprise choose to apply the Bidding Law in accordance with
Clause 4 Article 2 of the Bidding Law, the head of the organization, unit, or
state-owned enterprise shall resolve such petition. The head of the
organization, unit, or state-owned enterprise shall issue conditions and
procedures for petition resolution within their organization.
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1.
Authority and responsibilities of the Council in charge of petition resolution
a)
The Council in charge of petition resolution established by the bidding
authority affiliated to a Ministry, ministerial-level agency, Governmental
agency, or another central agency shall resolve petitions regarding packages
specified in Article 1 and Article 2 of the Bidding Law, for which a Ministry,
ministerial-level agency, Governmental agency, or another central agency is the
employer.
b)
The Council in charge of petition resolution established by the Director of the
Department of Finance shall resolve petitions regarding packages specified in
Article 1 and Article 2 of the Bidding Law for which the People's Committee of
the province or an organization or unit affiliated to the province-level
authority is the employer, except for packages specified in point a of this
Clause.
2.
The Council in charge of petition resolution and its standing departments
consist of:
a)
The Council in charge of petition resolution consists of a Chairperson, Vice
Chairperson (if necessary), representatives of relevant agencies and
representatives of professional associations, experts, and scientists (if any);
Members
of the Council must not be family members as prescribed by the Law on
Enterprises with the person signing the petition, members of the expert team,
appraisal team, and person signing the decision approving the results of contractor
selection.
b)
The Chairperson of the Council specified in point a Clause 1 of this Article is
a representative of the bidding authorities affiliated to these agencies. The
Chairperson of the Council specified in Point b Clause 1 of this Article is a representative
of the Department of Finance;
c)
The standing department is a unit managing bidding activities affiliated to
ministries, ministerial-level agencies, Governmental agencies, other central
agencies, and the Department of Finance. The standing department performs
administrative tasks as prescribed by the Council's Chairperson; receives and
manages expenses submitted by petitioning bidders.
3.
The activities of the Resolution Council are as follows:
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b)
The Council in charge of petition resolution operates on a case-by-case basis,
under the principles of collective decision-making by majority. Members are
entitled to advocate their opinions and are legally responsible for their
opinions;
c)
The Council in charge of petition resolution has the right to request the
bidders, employers, and relevant individuals and organizations to provide
information concerning the package and other information necessary for
performing its tasks;
Chapter
XIII
OTHER MATTERS
Article
140. Handling situations in online and offline bidding
1.
Any modifications to the package price or package content must necessitate
a corresponding adjustment to the specific contractor selection plan as per
laws before the bid submission deadline, except for the cases specified in
Clause 2 and Clause 8 of this Article.
2.
If, after approving the specific contractor selection plan, a package receives
an approved estimate that differs from the package price outlined in the plan
(either higher or lower), the estimate will replace the package price in the
plan, following these principles:
a) If
the approved estimate is higher than the package price outlined in the
plan but the higher estimate does not exceed the total investment of the
project or procurement estimate, the specific contractor selection plan shall
not be adjusted. If the higher estimate exceeds the total investment of the
project or procurement estimate, the specific contractor selection plan
has to be adjusted; if the form of contractor selection in the approved
specific contractor selection plan is no longer appropriate, the form of
contractor selection must be adjusted;
b) If
the approved estimate is lower than the package price outlined in the plan
without changing the form of contractor selection in the approved plan, the
specific contractor selection plan does not have to be adjusted. If it is
necessary to adjust the form of contractor selection to suit the new value of
the package according to the approved estimate, the specific contractor
selection plan must be adjusted.
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3.
When determining the shortlist, if fewer than 3 bidders that meet the
requirements, the employer will choose one of two approaches based on the
specific conditions of the package:
a)
Select additional bidders to the shortlist;
b)
Allow the immediate issuance of bidding documents to short-listed bidders.
4. If
no bidder participates in bidding by the bid submission deadline, the employer
shall take one of the following actions:
a) Cancel
the EOI request, prequalification document, and invitation to bid to re-invite
bids. It is necessary to review and amend the EOI request, prequalification
documents, or bidding documents (if needed) to ensure that there are no
conditions in the documents that limit the participation of bidders or give an
advantage for any bidders, causing unfair competition;
b)
Extend the bid submission deadline for at least 5 days for packages that are
currently seeking EOIs or prequalification applications, construction packages,
mixed packages with a package price not exceeding 20 billion VND, packages for
procurement of goods and non-consulting services with a package price not
exceeding 10 billion VND; extend the bid submission deadline for at least 10
days for other packages.
c)
Handling of situations in the case prescribed in this clause that arise from
selection of consultant for determination of land prices shall comply with the
Government’s regulations on land prices.
5. At
the bid submission deadline, for a package applying the form of competitive
bidding, limited bidding, shopping method, online quotation under ordinary
procedures, if only 1 bidder submit EOI responses, prequalification
applications, or bids, the employer shall take one of the following actions:
a)
Allow bid opening immediately to conduct evaluation.
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6. In
the cases specified in Clause 4 hereof and the case of bid cancellation in
accordance with Clause 1 Article 17 of the Law on Bidding, the time of
initiating contractor selection shall not be adjusted.
7. If
the first ranked bidder’s bid price (after error correction, deviation
adjustment, and any discounts) exceeds the package price and at least 1 bidder
in the ranked list’s bid price (after error correction, deviation adjustment,
and any discounts) does not exceed the package price, the first-ranked
bidder can be invited to negotiate the price provided that the final negotiated
price cannot exceed the approved package price. If negotiation is
unsuccessful, the next ranked bidder is invited to negotiate.
8. If
the bid prices (after error correction, deviation adjustment, and any
discounts) of all technically-responsive bidders on the ranking list exceed the
package price, the employer can choose one or more of the following options:
a)
Allow these bidders to re-offer their bid prices if the package price includes
all elements constituting the cost of package performance;
b)
Allow bidders to re-offer their bid prices and also review the package price
and content of approved bidding documents , if necessary.
If
bidders are allowed to re-offer their bid prices, it is necessary to clearly
stipulate the time to prepare and re-bid proposal, but not more than 10 days
from the date on which the procuring entity sends a written request for
re-offering bid prices and clearly stipulate the opening of re-bid proposal
according to the bid opening process specified in Article 28 of this Decree or
re-offering bid prices on VNEPS for online bidding.
If it
is necessary to adjust the package price in the approved specific contractor
selection plan, the competent person is responsible for approving the
adjustment within 10 days from the date of receiving the request for adjustment
provided that the adjustment is done before the deadline for submitting re-bid
proposal;
c)
Invite these bidders to participate in online quotation under shortened
procedures. If it is necessary to adjust the package price in the
approved specific contractor selection plan, the competent person is
responsible for approving the adjustment before the start of online quotation;
d) The
first-ranked bidder may be invited to negotiate the price, provided that the
final negotiated price does not exceed the lowest bid price (after error
correction, deviation adjustment, and any discounts). If it is necessary to
adjust the package price in the approved specific contractor selection plan,
the competent person is responsible for approving the adjustment within 10 days
from the date of receiving the request for adjustment If negotiation is
unsuccessful, the next ranked bidder is invited to negotiate. This method only
applies to cases where the package uses competitive bidding and the employer
must be responsible for the competitiveness, fairness, transparency and
economic efficiency of the project, procurement estimate, and package.
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9.
For goods procurement packages as prescribed in Clause 2, Article 92 of this
Decree, if the first-ranked bidder’s bid unit price for any items
exceeds the standards issued by competent authorities but the proposed
winning bid price does not exceed the approved package price, the employer can
consider these options:
a)
Invite the first-ranked bidders to enter into negotiations for items whose
bidding unit prices exceed procurement standards issued by competent
authorities;
b)
Allow all bidders who pass the technical evaluation step to re-offer their bid
prices.
10.
For divided packages:
a) If
there is a part or parts of a package that does not have a bidder participating
in the bidding or does not have a bidder that meets the requirements, the
employer must report to the competent person to allow dividing that part into a
separate packages to organize contractor selection according to regulations;
b) If
a bidder is awarded all parts of the package, there will be only one contract
for the entire package. If multiple bidders are awarded a contract, the package
will have multiple contracts corresponding to the specific part(s) of each
bidder;
If
the bid price (after error correction, deviation adjustment, and any discounts)
of every technically-responsive bidders for a part of package exceeds the
estimated value of that part in the package price, causing the total proposed
winning price to be over the package price; or if the bid price (after
error correction, deviation adjustment, and any discounts) of the first-ranked
bidder in any parts of package is higher than the estimated value of
these parts in the package price, causing the total proposed winning price to
be over the package price, the employer can follow the options outlined in
Clauses 7 and 8 of this Article to handle the situations.
d) If
necessary, the employer may approve contractor selection results for each part,
provided that the proposed bid price does not exceed the price of that part in
the package.
11.
If a bid price (after error correction, deviation adjustment, and any
discounts) of a bid seems unusually low and could negatively impact the package
quality, or the bid price (after error correction, deviation adjustment, and
any discounts) of a construction package falls below 80% of the package price,
the employer will take the following steps:
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For
packages other than construction packages, EC packages, and items offered with
unusually low prices that contribute to the overall low bid price can be
considered as insufficient deviations. The employer may adjust deviations
for these items following Clause 2, Article 31 of this Decree. The adjustment
of insufficient deviations is only for bid comparison and ranking purpose. If
the bidder remains the first rank after the deviation adjustment, the
proposed winning price does not include the deviation adjustment amount
specified in this point;
For
construction packages and EC packages, If the bidder fails to provide a clear
and persuasive explanation, its bid shall be disqualified;
b) In
order to prevent risks, the employer may require a performance security deposit
which is greater than 10% but not more than 30% of the contract price.
12.
For construction and mixed packages applying international bidding (in cases
where laws on specific sectors and fields require the preparation of a package
estimate), if the first-ranked bidder’s bid is unbalanced: the unit prices
offered for items with simple technical requirements, items with additional
quantities are significantly higher than the those specified in the package
estimate; and the unit prices offered for items with complex tasks are
significantly lower than those specified in the package estimate, the employer
may request the bidder to provide a written explanation. The bidder must
demonstrate the compatibility between the bid price and the scope of work,
construction methods proposed by the bidder, performance schedule, and other
requirements of the bidding documents. If the bidder fails to provide a clear
and persuasive explanation, its bid shall be disqualified; In order to prevent
risks, the employer may require a performance security deposit which is greater
than 10% but not more than 30% of the contract price.
13.
If the bidding documents allow the bidder to propose construction methods
different from those stated in the bidding documents, any difference in
workload between the proposed method and the one in the documents will not be
considered a deviation and then adjusted in accordance with Clause 2, Article
29 of this Decree. This difference is not considered as insufficient deviation.
14.
In the case where the bidder is acquired during the bidding process, the
acquirer may continue to participate in the bidding and inherit the bidding
capacity of the acquired bidder.
15.
In the case where the branch, factory, or representative office is separated
from the legal entity according to civil laws, the new entity formed from the
separation may inherit the bidding capacity of the original entity.
16.
For packages applying contract negotiation in accordance with Clause 4, Article
24, Clause 6, Article 32, Clause 5, Article 36, Clause 5, Article 61, Clause 4,
Article 75 of this Decree, if the first-ranked bidder fails to participate in
the negotiation, refuses to sign the negotiation minutes, or the negotiation is
unsuccessful, the employer may consider inviting the next ranked bidder (if
any) to negotiate. The content of negotiation is based on the bid and the
bid price (after error correction, deviation adjustment, and any
discounts) of the bidder invited to negotiate. If the negotiation is
unsuccessful, the employer shall consider inviting the next bidders (if any) to
negotiate the contract; the negotiation content is based on the bid and
the bid price (after error correction, deviation adjustment, and any discounts)
of the bidder invited to negotiate the contract. Where bidders are invited to
negotiate a contract but refuse to negotiate, refuse to sign the negotiation
minutes, or negotiate unsuccessfully, the employer shall consider cancelling
the bid according to Clause 1, Article 17 of the Bidding Law.
If
the next ranked bidder is invited to negotiate a contract in accordance with
this point within the validity period of the bid but does not participate in
the negotiation or refuses to sign the negotiation minutes, their bid security
will be forfeited. If the bid of the next ranked bidder expires, the investor
must request the bidder to extend the validity period of the bid and bid
security before negotiating the contract.
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a)
Economic factors related to construction methods, production processes, or
service provision;
b)
Economic solutions applied or special advantages of the bidder leading to price
advantages;
c)
Origin of goods, services, and personnel provided for the package, which must
ensure compliance with legal regulations.
If
the conditions specified in Points a, b and c of this Clause are met, the
bidder's bid or proposal will still be accepted as the winning bid. In
order to prevent risks, the employer may require a performance security deposit
which is greater than 10% but not more than 30% of the contract price. If a
bidder receives subsidies from any organization or individual leading to unfair
competition, their bid or proposal will be disqualified.
18.
After evaluation, if multiple bidders are ranked best, the following criteria will be used in order to award the
contract:
a)
The contracts shall be awarded to small- and medium-sized enterprises owned by
women as per the law on supporting small- and medium-sized enterprises (if any)
b)
The contract shall be awarded to the
bidder with a higher technical score or fewer technically acceptable criteria
(if the package applies the least-cost selection); bidder with lower bid price
(after error correction, deviation adjustment, and any discounts) (if the
package applies the evaluated price selection or the quality- and cost-based
selection);
c)
The contract shall be awarded to the bidder whose head office is located in the
province where the package is performed;
d)
The contract shall be awarded to the bidder that employs war invalids or people
with disabilities with a labor contract for at least 3 months, still valid at
the bid submission deadline;
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e)
The contract shall be awarded to the bidder that employs female employees with
a labor contract for at least 3 months, still valid at the bid submission
deadline;
g)
These bidders may re-offer bid prices for the employer to select the bidder
offering the lowest bid price. A price higher than their previously offered
price (after any corrections, adjustments, or discounts) is not allowed to
offer. The re-offering of bid prices shall comply with Point a, Clause 8 of
this Article;
h)
Invite these bidders to participate in online quotation under shortened
procedures. Bidders cannot offer a price higher than their previously
offered price (after any corrections, adjustments, or discounts).
19.
If the successful bidder fails to sign the contract or the successful bidder no
longer meets the technical and financial requirements specified in Clause 2 of
Article 66 of the Bidding Law at the time of contract signing, the employer can
take the following steps:
a)
Cancel the approved contractor selection result, invite the second-ranked
bidder (if any) to complete the contract, and also request this bidder to
extend or renew the validity of their bid and bid security (in case
of expiration) for at least 30 days from the expected start date of contract
completion.
If
the second ranked bidder fails to complete the contract, or extend or renew the
validity of their bid and bid security as required, the employer
shall consider following one of the two options specified in Point b or Point c
of this Clause.
The
contract completion shall comply with Article 34 of this Decree. The content of
contract completion must be based on the bid and bid price (after error
correction, deviation adjustment, and any discounts) of the second ranked
bidder. After the contract completion with the second ranked bidder, the
employer shall issue a decision to award the contract to the second ranked
bidder before signing the contract with that bidder.
If
the second-ranked bidder fails to accept the contract completion results and
sign a contract with the employer, their bid security will be forfeited, except
for force majeure events or other cases that the employer fails to comply with
the principle of completing the contract. In this case, the employer shall
consider following one of two options specified in Point b or Point c of this
Clause;
b)
Invite the third ranked bidder (if any) to complete the draft contract. If the
third ranked bidder fails to participate in the contract completion, or fails
to extend or renew the validity of the bid and bid security as required, the
employer shall consider inviting the next ranked bidders (if any) to complete
the contract or cancel the bid according to Clause 1, Article 17 of the Bidding
Law.
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The
contract completion shall comply with Article 34 of this Decree. The content of
contract completion must be based on the bid and bid price (after error
correction, deviation adjustment, and any discounts) of the invited bidder.
After the contract completion, the employer shall issue a decision to
award the contract to the invited bidder before signing the contract with that
bidder.
If
the invited bidder fails to accept the contract completion results and sign a
contract with the employer, their bid security will be forfeited and the
employer will consider cancelling the bid according to Clause 1, Article 17 of
the Bidding Law;
c)
Cancel the bid in accordance with Clause 1, Article 17 of the Bidding Law.
20.
During the contract performance process, if the competent person rejects
the contractor selection result when there is evidence that the successful
bidder has violated Article 16 of the Bidding Law, or has violated relevant
laws leading to failure to ensure competition, fairness, transparency and
economic efficiency, or has falsified the contractor selection result, the
employer will take the following actions:
a)
Forfeit the performance security deposit and advance payments (if any);
b)
Pay the bidder for the work portions that the bidder has performed and have
been accepted according to the contract;
c)
Terminate the contract with the bidder; for a joint venture bidder where only
one joint venture party violates and is banned from participating in bidding
activities as prescribed in Clause 1, Article 133 of this Decree, the remaining
joint venture parties will not be considered incomplete contract due to the
bidder's fault;
d)
Publish information about violating bidders on VNEPS within 5 working days from
the date of issuance of the contract termination decision, send the contract
termination decision and other documents on handling violations (if any) to the
Ministry of Finance for consolidation and monitoring;
dd)
After terminating the contract with the previous successful bidder, the
unfinished work will be assigned to the second-ranked bidder in the ranking
list. If the second-ranked bidder fails to accept to sign the contract, the
employer appoints another bidder or separates the unfinished work into a new
package and organizes contractor selection as per laws. The package price can
be reviewed and re-approved for the unfinished work (if necessary). If a direct
contracting is applied, the value of the unfinished work is calculated as the
value stated in the contract minus the value of the previously performed work.
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a)
Request the employer to forfeit advance payments (if any) and terminate the
contract with the bidder. The bidder shall be refunded the performance
security deposit and reimbursed the costs related to contract termination due
to the employer's fault according to contract. The employer shall pay
damages to the bidder according to the contract;
b)
The unfinished work shall be separated into a new package to organize the
selection of contractors according to regulations. The package price can be
reviewed and re-approved for the unfinished work (if necessary);
c) If
more than 70% of the package work is already finished and the actions mentioned
in points a and b do not make good financial sense, the competent person shall
decide whether to continue maintaining the contract with the successful bidder.
22. If any joint
venture party breaches the contract, no longer has the capacity to
continue performing the contract, seriously affects the progress, quality, and
efficiency of the package, the employer will take the following actions:
a) a)
Impose contract penalties on all joint venture parties according to the
contract;
b) Forfeit the contract performance security deposit of all
joint venture parties in the case where the unfinished work is separated into a
new package to organize the selection of contractors according to point dd
hereof. If the unfinished work is separated to other joint venture parties
according to point d hereof, only the violator shall have their contract
performance security deposit forfeited;
c)
Terminate the contract with one or more joint venture parties that breach the
contract; In this case, only the violator(s) is considered as not completing
the contract and has their name be published in VNEPS; the remaining joint
venture parties shall continue to execute the contract corresponding to the
work they undertake. Within 05 working days from the date on which the contract
termination decision is issued, the employer shall publish the information
about the violators on VNEPS and provide the reason for the breach of contract
leading the contract termination. The decision shall be submitted to the
Ministry of Finance for consolidation and monitoring;
d)
The violating party’s work shall be assigned to the remaining parties to
perform if these parties are competent and experienced to take over.
dd)
dd) If the remaining parties refuse to perform or do not have enough capacity
or experience to perform, the employer shall separate the work into a separate
package for direct contracting according to Point dd, Clause 20 of this Article
or organize contractor selection according to regulations.
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If a
direct contracting is applied to the unfinished work, the value of the
unfinished work is calculated as the value stated in the contract minus the
value of the previously performed and accepted work.
The
employer must ensure that the appointed bidder has the capacity and experience
to meet the requirements for performing the remaining work of the
package. If the direct contracting is not applied, a new package will be
formed to organize contractor selection. The package price for the remaining
work may be reviewed (if necessary) before organizing contractor selection as
per the law. If the contract performance is behind schedule due to no fault of
the bidder, it is not allowed to terminate the contract to replace another
bidder. If the contract with a violator must be terminated to replace a new
bidder, the employer must publish the information about the violator and the
substitute bidder on VNEPS within 5 working days from the date of issuance of
the decision on contract termination. The decision on contract termination and
other documents dealing with violations (if any) shall be submitted to the
Ministry of Finance for consolidation and monitoring; The notice must clearly
state the reason for the bidder's breach of contract leading to the termination
of the contract, the method of selecting a substitute bidder, and the name of
the designated bidder if the form of direct contracting is applied.
24.
If a joint venture needs to finish a contract faster than originally planned
(which requires revision to the contract), or due to objective conditions not
caused by the contractor (natural disasters, floods, scarcity of construction materials,
delayed handover of construction sites, changes in geological conditions, and
other objective conditions not caused by the contractor), leading to the
inability to meet the schedule requirements, or due to unforeseeable
circumstances affecting the contract schedule, the employer and bidder may
agree on a new schedule and adjust the workload among the joint venture members
accordingly with the schedule or the shortened schedule. In this case, the
employer must ensure that the party undertaking the extra work has enough
capacity and experience to do that and transferring work among the parties is
not for bid transfer purpose
25.
If, during the contract performance, a court convicts the bidder's employees
(who had a valid employment contract with the bidder at the time of the
offense) of a bidding-related offense that significantly impacted the
bidder's ability to win the contract, the employer can terminate the contract
and forfeit the bidder's performance security deposit. The bidder is only paid
for the work performed and accepted according to the contract. The bidder is
considered to have failed to complete the contract and is posted on VNEPS; the
notice must clearly state the violation leading to termination of the contract;
for the unfinished work, the employer shall apply direct contracting according
to Point dd, Clause 20 of this Article or split into a new package and organize
contractor selection as per the law.
26.
If an investigation body alleges the bidder’s employees (who had a valid employment
contract with the bidder at the time of offense) of a bidding-related offense
that significantly impacted the bidder’s ability to win the contract, but they
have not been convicted by the Court or the bidder has not been banned from
bidding by a competent person, that bidder can still continue to participate in
the bidding.
27.
During the contract performance, if the bidder requests to switch to a newer
version or production year for certain goods than those specified in the
contract because of practical needs, the employer can agree to this request,
but only if all of these conditions are met:
a)
The bidder sends a written notice to the employer;
b)
The substitute goods and the goods originally stated in the contract
come from the same manufacturer and have the same origin;
c)
The substitute goods have technical features, configuration, parameters and
other technical requirements that are equivalent or better than the goods
originally stated in the contract;
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dd)
The unit price of the substitute goods do not exceed the unit price stated in
the contract.
28.
28. If the VNEPS system experiences a prolonged downtime requiring
extensive troubleshooting, the Ministry of Finance shall provide guidelines on
the VNEPS. These guidelines will outline how to select investors during VNEPS
downtime, including procedures for offline selection.
29.
For construction packages, non-consulting packages, and consulting packages
applying the bidding in advance in accordance with Article 42 of the Bidding
Law, in the cases where the approved project includes any contents that lead to
an increase in the package price (or an increase in the estimate if such
estimate is approved after the approval of contractor selection plan) by 30% or
more, or changes in any important technical evaluation criteria, or changes in
the construction grade stipulated in the issued bidding documents, the employer
shall cancel the bid in accordance with point b Clause 1 Article 17 of the
Bidding Law; in the cases where the approved project does not lead to an
increase in the package price or the estimate by 30% or more or changes in the
important technical evaluation criteria or the construction grade stipulated in
the bidding documents which have been issued and awarded to a bidder, the
employer may modify or supplement the volume of work to complete and sign the
contract with the winning bidder.
For
procurement packages applying the bidding in advance in accordance with Article
42 of the Bidding Law, in the cases where the approved project includes any
contents that lead to an increase in the package price by 20% or more or
changes of the type of goods stipulated in the issued bidding documents, the
employer shall cancel the bid in accordance with point b Clause 1 Article 17 of
the Bidding Law; in the cases where the approved project does not lead to an
increase in the package price by 20% or more or changes in the type of goods
stipulated in the bidding documents which have been issued and awarded to a
bidder, the employer may modify or supplement the volume of work to complete
and sign the contract with the winning bidder.
30.
For divided contract packages, in the cases where the proposed winning price of
each part exceeds 30% of the corresponding value in the package price (or the
package estimate if the package estimate is required in accordance with laws on
specific sectors and fields), the employer shall request the bidder to clarify
the elements constituting the bid cost, and consider relevant evidence as
follows:
a)
Economic and technical factors related to production processes, or service
provision;
b)
Market price determined through market analysis, market consultation according
to Clause 3, Article 17 of this Decree;
c)
Origin of goods/services according to legal regulations.
If
the conditions specified in Points a, b and c of this Clause and Claus 4
Article 29 of this Decree are met, the bidder's bid will still be accepted as
the winning bid.
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32.
For packages applying online contractor selection, in cases where during the
evaluation of bids, there is no selection result yet and a bidder listed in the
bid opening minutes has its account locked in accordance with bidding laws, the
bid of such bidder shall not be further evaluated.
33.
For goods procurement, in the cases where bidders offer goods with the same
code (if any), manufacturer, year of manufacture, and Vietnamese origin, but
some bidders declare while others do not declare these goods as being eligible
for incentives, the employer shall decide requesting bidders to make a
clarification to serve as a basis for evaluating the incentives.
34.
Beyond the situations outlined in Clauses 1 through 33 of this Article, the
employer will consider taking actions that upholds the bidding objectives of
competitiveness, fairness, transparency, economic efficiency, and
accountability.
Article
141. Bidder management
1.
Responsibilities of the bidder:
a)
Register on VNEPS as prescribed in Point d, Clause 1, and Article 5 of the
Bidding Law before the contractor selection results are approved;
b)
Regularly update and take responsibility for the accuracy and truthfulness of
information about their capacity and experience on VNEPS;
c) In
addition to the responsibilities specified in Points a and b of this Clause,
foreign bidders must also perform the following responsibilities:
foreign
bidders must comply with Vietnamese law on entry and exit; import and export of
goods; registration for temporary residence or temporary absence; accounting,
taxes and other relevant Vietnamese regulations, unless international treaties
to which the Socialist Republic of Vietnam is a member or loan agreements
provide otherwise.
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d)
Foreign bidders selected according to the Bidding Law are not required to apply
for a bidding license.
2.
Subcontractor management:
a)
The bidder may sign contracts with subcontractors in the list of subcontractors
stated in the bids, proposals or sign with subcontractors approved by the
employer to participate in performing the construction work; consulting
services; non-consulting services; related services of goods procurement
packages or mixed packages. Employing a subcontractor will not change the
bidder's obligations. The bidder must be responsible for the volume,
quality, progress and other responsibilities for the work performed by the
subcontractor;
b)
Any substitutions or additions of subcontractors (as detailed in point a) or
modifications to their assigned tasks (as outlined in the bid or proposal)
require prior written approval from the employer or supervisor and the total
cost of subcontracted work cannot exceed the maximum amount stipulated in the
contract; the employment of subcontractors must be consistent with the bidder's
needs in implementing the contract; the subcontractor must meet the capacity
and experience requirements of the bidder;
c)
The bidder shall employ subcontractors with the capacity and experience to meet
the requirements to perform the assigned work. If a special subcontractor
is employed to perform important work of the package according to the
requirements of the bidding documents, their capacity and experience shall be
evaluated according to the regulations stated in the bidding documents. When
employing special subcontractors, the bidder is not required to meet capacity
and experience requirements for the work assigned to these special
subcontractors;
d)
The bidder shall pay the subcontractors in full and on schedule according to
the agreement between the bidder and the subcontractors.
Article
142. Competent persons of component projects, sub-projects
In
the cases where the project is divided into component projects for independent
operation and exploitation or compensation, support, resettlement tasks are
divided into sub-projects as per laws, the contractor selection method shall be
applied as prescribed for independent projects. Competent persons who decide
investing in component projects, chairpersons of People's Committees at all levels
who manage sub-projects for compensation, support, and resettlement shall
exercise the authority and responsibility of the competent person in organizing
the contractor selection in accordance with the Bidding Law and this Decree.
Chapter
XIV
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Article
143. Amendments to certain Articles of the Government’s Decree No.
32/2019/ND-CP dated April 10, 2019, as amended by Government’s Decree No.
111/2025/ND-CP dated May 22, 2025
1. Clause 1 and Clause
2 Article 12 are amended as follows:
“1. State-funded
public services may be ordered from a public service provider by its superior
agency, according to the list specified in Appendix I hereto, if:
a)
The conditions specified in point a Clause 2 Article 9 hereof are satisfied;
b) It
does not undergo dissolution procedures;
c)
Other order placement conditions prescribed in relevant regulations of law (if
any) are satisfied.
2.
The state-funded public services may be ordered from another public service
provider according to the list specified in Appendix I hereto, if:
a) It
is not undergoing dissolution process or subject to revocation of enterprise
registration certificate; is not facing insolvency as prescribed by the law on
bankruptcy;
b)
The provider meets one or more requirements regarding: financial capacity,
facilities, equipment, machinery, technical expertise, production technology,
implementation solutions, management level, and personnel to ensure the
quality, progress, and efficiency of the order. In addition, with respect to
other public service providers that are ordered in a sector requiring state
licensing, they must be granted a license by the competent authority according
to laws on specific sectors and fields;
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d)
Other order placement conditions prescribed in relevant regulations of law (if
any) are satisfied.
2. Article 13a is
added following Article 13 as follows:
“Article
13a. Order placement process for providing public services
1. In
the case of ordering the provision of public service from the affiliated public
service provider, the order placement process is as follows:
a)
Determine the unit price, ordering price:
The
unit price, ordering price is determined by the competent authority according
to laws on price serving as the basis for order placement approval;
b)
The ordering authority shall approve the order placement decision for the
affiliated public service provider.
2. In
the case of ordering the provision of public services from other public service
providers, the order placement process is as follows:
a)
Prepare and approve an order placement plan:
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The
specific content of the order placement plan is determined by the ordering
authority to ensure the quality, progress, and effectiveness of the
order.
b)
Identify the service provider winning the order:
The
ordering authority shall identify a provider to award the ordering plan;
specific requirements for the provider according to the ordering plan are not
required to be evaluated before the ordering plan is received by the
provider.
The
provider shall submit an order form enclosed with the eligibility
documentation. In the following years, if the provider still applies to accept
the order, they shall commit to meeting the ordering conditions in accordance
with Clause 2 Article 12 of this Decree in the order form and do not require to
resubmit the eligibility documentation. The eligibility documentation shall
only be resubmitted if there are any changes.
The
ordering authority shall identify the provider who meets the ordering plan to
accept the order;
c)
Determine the unit price, ordering price:
The
unit price, ordering price is determined by the competent authority according
to laws on price serving as the basis for signing the ordering contract;
d)
The ordering authority and the provider sign the contract.”.
3. Article 16 is
amended as follows:
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For
public services that meet the conditions for order placement stipulated in this
Decree, if the ordering authority decides not to apply this form, another
contractor selection method stipulated in the bidding laws may be applied.”.
4. Clause 1 Article 17
is amended as follows:
“1.
Public utilities according to the list specified in Appendix II shall be
ordered when meeting the following conditions:
a)
The manufacturer or provider of public utilities is not undergoing dissolution
process or subject to revocation of enterprise registration certificate; is not
facing insolvency as prescribed by the law on bankruptcy;
b)
The manufacturer or provider of public utilities must meet one or more
requirements regarding: financial capacity, facilities, equipment, machinery,
technical expertise, production technology, implementation solutions,
management level, and personnel to ensure the quality, progress, and efficiency
of the order. In addition, with respect to other manufacturers or providers of
public utilities that are ordered in a sector requiring state licensing, they
must be granted a license by the competent authority according to laws on
specific sectors and fields;
c)
The list of public utilities with specific characteristics related to
intellectual property ownership or State monopoly production and business
stipulated by commercial laws and other relevant regulations, or the
manufacturer or provider of public utilities has been allocated the land use
rights and assets attached to land to serve the manufacture or provision of
public utilities, or the manufacturer or provider of public utilities
guarantees the quality, progress, and efficiency of the order.”.
5. Article 18a is
added following Article 18 as follows:
“Article
18a. Order placement process for providing public utilities
1.
Prepare and approve an order placement plan:
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The
specific content of the order placement plan is determined by the ordering
agency to ensure the quality, progress, and effectiveness of the order;
2.
Identify the manufacturer or provider of public utilities winning the order:
a) The
ordering authority shall identify a manufacturer or provider to award the
ordering plan; specific requirements for the manufacturer or provider according
to the ordering plan are not required to be evaluated before the ordering plan
is received by the manufacturer or provider;
b)The
manufacturer or provider shall submit an order form enclosed with the
eligibility documentation. In the following years, if the manufacturer or
provider of public utilities still applies to accept the order, they shall
commit to meeting the ordering conditions in accordance with Clause 1 Article
17 of this Decree in the order form and do not require to resubmit the
eligibility documentation. The eligibility documentation shall only be
resubmitted if there are any changes.
c) The
ordering authority shall identify the manufacturer or provider of public
utilities who meets the ordering plan to award the order;
3.
Determine the unit price, ordering price:
The
unit price, ordering price is determined by the competent authority according
to laws on price serving as the basis for signing the ordering contract;
4.
The ordering authority and the manufacturer or provider of public utilities
sign the contract.”.
6. Article 21 is
amended as follows:
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For
public utilities that meet the conditions for order placement stipulated in
this Decree, if the ordering authority decides not to apply this form, another
contractor selection method stipulated in the bidding laws may be applied.”.
7. Clauses 9 and 10
Article 3 of Decree No. 32/2019/ND-CP cease to be effective.
8. The phrases
“Ministry of Planning and Investment” are removed in Clause 4 Article 5 of
Decree No. 32/2019/ND-CP.
9. Clause 5 Article 12
and Clause 6 Article 17 of Decree No. 32/2019/ND-CP cease to be effective.
Article
144. Transition clauses
1.
For any package for which a specific contractor selection plan has
been approved, but by the effective date of this Decree, the EOI request,
prequalification documents, bidding documents, or RFPs have not been issued,
the employer may adjust the contractor selection plan to comply with
the Law No. 90/2025/QH15 and this Decree.
For
any package that applies the form of direct contracting under shortened
procedures, direct procurement, self-performance, contractor selection in
special case, contractor selection to perform the community-involved package,
if the specific contractor selection plan has been approved but by the effective
date of this Decree, the contractor selection result have not been
approved, the employer may adjust the contractor selection plan to comply with
the Law No. 90/2025/QH15 and this Decree.
2.
For any package for which the EOI request, prequalification application,
bidding documents, and RFPs has been issued before July 01, 2025, and
the bid is opened before August 04, 2025, then continue to organize the
shortlisting procedure, contractor selection, sign and manage contract
execution according to the provisions of the Law on Bidding No. 22/2023/QH15 as
amended and supplemented by Law No. 57/2024/QH15, and relevant documents
elaborating and providing guidelines.
3.
For any package for which the EOI request, prequalification application,
bidding documents, and RFPs has been issued before July 01, 2025 but its
submission deadline is after the effective date of this Circular, the employer
shall consider deciding to select one of the following ways:
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b)
Cancel the EOI request, prequalification document, and invitation to bid and
adjust the contractor selection plan (if necessary), bidding documents, EOIs,
prequalification documents, and RFPs to reorganize the contractor selection
according to accordance with the Bidding Law No. 22/2023/QH15 (as amended and
supplemented by Law No. 57/2024/QH15, Law No. 90/2025/QH15) and this Decree.
4.
From July 1, 2025 to the effective date of this Decree, the contractor
selection shall comply with Law on Bidding No. 22/2023/QH15 (as amended and
supplemented by Law No. 57/2024/QH15 and Law No. 90/2025/QH15), Decree No.
24/2024/ND-CP (as amended and supplemented by Decree No. 17/2025/ND-CP),
relevant guidelines which are still conformable with the provisions of the Law
on Bidding No. 22/2023/QH15 (as amended and supplemented by Law No.
57/2024/QH15 and Law No. 90/2025/QH15).
5.
During the period from July 1, 2025 to the effective date of this Decree, the
contractor selection on VNEPS shall be carried out as follows:
a)
EOI request, prequalification documents, and bidding documents shall be
prepared in accordance with Clause 4 and Clause 5 hereof and are attached on
VNEPS when issuing EOI request, prequalification document, and invitation to
bid;
b)
Prequalification applications, EOIs, bids, and bid security are attached,
digitally signed, and submitted on VNEPS as a basis for evaluating
prequalification applications, EOIs, bids, and bid security; the error
correction and deviation adjustment shall comply with Article 31 and Article 68
of this Decree. Information, such as bid price, discount (if any); validity of
the bid; package execution duration; value and validity of bid security shall
be declared in the form when submitting the bid on VNEPS for information
extraction in the bid opening minutes;
c) At
the bid opening, the employer shall use a digital certificate to open the bid
on VNEPS. The bidding opening ceremony shall not be organized. The bid opening
minutes shall be published on VNEPS;
d) The
preparation of consortium agreement, clarification of bidding contents,
submission and receipt of petitions shall be carried out on VNEPS.
6.
For public products and services for which and ordering decision and ordering
contract were signed before the effective date of Decree No. 32/2019/ND-CP (as
amended and supplemented by this Decree), continue to comply with Decree No.
32/2019/ND-CP until the completion of payment, financial settlement for the
supply of public products and services.
If
the order placement of public products and services using the state budget from
recurrent expenses has been included in the state budget estimate for the year
2025 (including the budget estimate carried over from the previous year to 2025
and the additional budget estimate for 2025) but the ordering decision has not
been issued and the ordering contract has not been signed, the ordering
authority shall decide applying the provisions of Decree No. 32/2019/ND-CP or
Decree No. 32/2019/ND-CP (as amended and supplemented by this Decree).
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8.
For decisions on bidding ban which have been issued before July 01, 2025:
a)
Any bidder who has been banned from bidding in the provincial administrative
division before the rearrangement shall continue to be banned from bidding in
the provincial administrative division after the rearrangement until the end of
the bidding ban duration specified in the bidding ban decision;
b)
Any bidder who has been banned from bidding in the district-level
administrative division before the rearrangement shall continue to be banned
from bidding in the commune-level administrative division formed after the
rearrangement, which encompass all or part of the area of the commune-level
administrative division that falls under the district-level administrative
division where the bidder is banned before the rearrangement, until the end of
the bidding ban duration specified in the bidding ban decision;
c)
Any bidder who has been banned from bidding in the commune-level administrative
division before the rearrangement shall continue to be banned from bidding in
the commune-level administrative division formed after the rearrangement, which
encompass all or part of the area of the commune-level administrative division
where the bidder is banned before the rearrangement, until the end of the
bidding ban duration specified in the bidding ban decision;
d)
For decisions of bidding ban issued by competent persons and authorities that
do not fall under cases specified in points a, b, and c hereof, any bidder that
has been banned from bidding in the area or under the management of the
administrative division before the rearrangement shall continue to be banned
from bidding in the area or under the management of the administrative division
formed after the rearrangement until the end of the bidding ban duration
specified in the bidding ban decision.
Article
145. Effect
1.
This Decree comes into force from the date on which it is signed.
2.
The following Decrees cease to have effect from the effective date of this
Decree, including:
a)
Decree No. 24/2024/ND-CP dated February 27, 2024 (as amended and supplemented
by Decree No. 115/2024/ND-CP dated September 16, 2024) and Decree No.
17/2025/ND-CP dated February 02, 2025;
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3. Vietnamese-origin
goods stipulated in point a Clause 1 Article 10 of the Bidding Law determined
in accordance with the regulations of commercial law regarding the
determination of Vietnamese-origin goods. Determination of domestically
manufactured drugs shall comply with the guidance of the Ministry of Health.
The provisions in point b Clause 5 Article 6 hereof shall apply until the
commercial law provides the guidance for determining Vietnamese-origin goods.
4.
Information about the execution results of contracts and quality of goods shall
be published in accordance with Article 19 and Article 20 of the Law on Bidding
No. 22/2023/QH15 (as amended and supplemented by Laws No. 57/2024/QH15, No.
90/2025/QH15).
5.
Determination of the list, requirements for the features and technical
requirements of procurement packages for medical equipment and testing supplies
to serve the contractor selection plan and organization shall comply with laws.
In the absence of regulatory provisions regarding this, the employer shall
decide establishing a council or assign an affiliated unit to determine the
list, requirements for features, and technical requirements to meet
professional requirements.
Article
146. Responsibility for implementation
1.
Ministry of Finance shall:
a) Elaborate
and guide articles and clauses as assigned in the Bidding Law No.
22/2023/QH15 (as amended and supplemented by Laws No. 57/2024/QH15, No.
90/2025/QH15), this Decree and other necessary contents to meet state
management requirements on bidding;
b) Consolidate
and manage database of bidders; quality of goods used; list of bidders
violating the law on bidding; untrustworthy bidders, contractors having their
contract terminated due to their faults, contractors that are banned from
participating in bidding activities and other organizations, individuals who
commit violations; list of successful foreign bidders;
c)
Issue bidding document forms for contractor selection plan;
guidelines on managing and using costs in contractor selection on VNEPS;
d)
Edit web forms on VNEPS to ensure compliance with the online bidding process
and increase competitiveness, fairness, transparency and economic efficiency in
bidding, ensuring effective state management of bidding.
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a)
Provide guidance on contractor selection and measures to implement Bidding Law
No. 22/2023/QH15 (as amended and supplemented by Laws No. 57/2024/QH15, No.
90/2025/QH15) and this Decree within the scope of their management;
b)
Issue contractor selection documentation forms for drugs;
c)
Provide guidance on principles, criteria, and consolidate needs to create a
list of drugs for centralized procurement; time limit for consolidating the
list, for promulgating the list; expected time to organize contractor
selection, expected time to disclose information on framework agreements and
contracts in centralized procurement;
d)
Research a guide grouping medical equipment according to technical and quality
standards.
3.
Ministries shall issue regulations, programs, and activities to promote
labeling, develop and improve procedures for energy labels; green lotus labels;
eco-agriculture labels, green agriculture, low-carbon agriculture; labels for
construction materials, green construction products, energy-saving construction
materials to implement the National Action Plan on Green Growth for the period
2021-2030 according to the Prime Minister's Decision, as the basis for applying
incentives in bidding stipulated in this Decree.
4.
Annually, ministries, ministerial-level agencies, Governmental agencies, other
central agencies, Provincial People's Committees, state-owned enterprises and
other agencies and organizations subject to Article 2 of the Bidding Law shall
send reports on bidding performance to the Ministry of Finance for consolidation
and reporting to the Prime Minister.
5.
Heads of central agencies and Chairpersons of People’s Committees of provinces
and central-affiliated cities, within the scope of their functions and tasks,
shall assume responsibility for implementation of this Decree.
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