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THE GOVERNMENT
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THE SOCIALIST REPUBLIC OF VIETNAM
Independence – Freedom – Happiness
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No. 63/2014/ND-CP
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Hanoi, June 26, 2014
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DECREE
DETAILING THE IMPLEMENTATION OF
SEVERAL PROVISIONS OF THE LAW ON BIDDING REGARDING THE SELECTION OF CONTRACTORS
Pursuant
to the Law on Government organization dated December 25, 2001;
Pursuant
to the Law on Bidding No.43/2013/QH13 dated November 26, 2013;
At the
request of the Minister of Planning and Investment,
The
Government promulgates the Decree on detailing the implementation of several
provisions of the law on bidding regarding the selection of contractors
Chapter I
GENERAL PROVISIONS
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Article 1: Governing scope
1. This
Decree hereby details the implementation of several provisions of the Bidding
Law regarding the selection of contractors who are eligible to be awarded
contracts which are governed by the regulations stated in Clause 1 and Clause 2
Article 1 of the Bidding Law.
2. The
selection of contractors for petroleum contracts as stipulated in Clause 4
Article 1 of the Bidding Law shall be applicable to the investment and
development projects as regulated in Point a, b and c Clause 1 Article 1 of the
Bidding Law, except for the selection of contractors directly involved in
petroleum exploration, extraction and mine development.
3. In
case international treaties and agreements provide for the application of
procedures for the selection of contractors, regulations specified in Clause 3
and Clause 4 of Article 3 of the Bidding Law shall apply. Procedures for
submission, verification and approval shall be followed in accordance with this
Decree.
4. In
case international treaties and agreements do not provide for procedures for
selection of contractors, regulations specified in the Bidding Law and this
Decree must be observed.
Section 2: ENSURING COMPETITIVENESS IN BIDDING
Article 2: Ensuring competitiveness in the bidding
1. The
contractors submit their EOI (expression of interest) responses or applications
for the prequalification held by the procuring entity must adhere to Clause 1
and Clause 2 Article 6 of the Bidding Law.
2.
Contractors who bid for mixed contracts must be legally and financially
independent from those who conduct feasibility study reports, technical design
proposals and construction drawings for the purpose of the contract award,
except for these accepted as a part of mixed contracts.
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4.
Contractors shall be considered legally and financially independent from other
contractors, consulting service providers, investors or procuring entities as
regulated in Clause 1, 2 and 3 of Article 6 of the Bidding Law when they meet
the following requirements:
a) They
must come from different agencies or are not directly managed by the same
organization if they are public service providers;
b)
Contractors, investors and procuring entities do not hold more than 30% of
shares or contributed capital of each other;
c)
Contractors do not hold more than 20% shares or contributed capital of each
other when all of bidders participate in selective bidding for a contract;
d)
Bidders and contractors who provide consulting services for that contract are
not allowed to hold mutual shares and contributed capital; shares and
contributed capital of either bidder or consulting contractor held by other
organizations and individuals account for above 20%.
5. In
respect of state-owned economic corporations, if products and services specified
in the contract are defined as their main production and trading sectors which
are considered the outflow of this company and the inflow of the other company
affiliated with these corporations, their subsidiaries have the right to
participate in the selection of contractors held by each of these subsidiaries.
In case products and services are the outflow of this company and concurrently
the inflow of the other company as well as are seen as the exclusive ones on
the market, the bidding must comply with the Prime Minister’s regulations.
Section 3: BID PREFERENCES IN THE SELECTION OF CONTRACTORS
Article 3. Rules of bid preferences
1. In
case bid package and proposal documentation are ranked at the same position
after bid preferences that has been counted, bidders who quote more domestic
expenses or employ more local employees (based on their wage and salary).
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3. With
respect to mixed contracts, bid preferences are based on all of bidder’s
proposals for the contracts for consulting service and goods supply as well as
construction works. Bidders shall be granted proper bid preferences if they
propose expenses incurred by the execution of domestic contracts (consulting
services, goods and construction works) which account for more than 25% of the
total value of the contracts.
Article 4. Bid preferences for the international bidding
1. In
terms of contracts for the consulting service supply:
a) In
case of the application of lowest bid method, bidders who are not granted bid
preferences must provide an additional monetary amount accounting for 7,5% of
these bidders’ quoted bid after correction of errors, adjustment of deviations
and deduction of discounts (if any) in order to carry out bidder’s comparison
and rating;
b) In
case of the application of fixed price method or technical method, bidders who
receive the bid preferences are given additional 7.5% of technical score to
these bidders' total technical score to serve the purpose of comparison and
rating;
c) In
case of the application of combined technical and price-based method, bidders
who receive the bid preferences are given additional 7.5% of combined scores to
total combined scores of these bidders for comparison and rating.
2. In
terms of contracts for non-consulting service supply, construction works and
mixed contracts:
a) In
case of the application of lowest bid method, bidders who are not granted bid
preferences must provide an additional monetary amount accounting for 7.5% of
these bidders’ quoted bid after correction of errors, adjustment of deviations
and deduction of discounts (if any) for comparison and rating;
b) In
case of the application of lowest bid method, bidders who are not granted bid
preferences must add a monetary amount accounting for 7.5% of these bidders’
quoted bid after correction of errors, adjustment of deviations and deduction
of discounts (if any) to the evaluated price of these bidders for comparison
and rating;
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3. In
terms of the contract for goods procurement, the bid preference applied to
domestic goods shall be implemented as regulated in Article 5 of this Decree.
Article 5. Bid preference for domestic goods
1. Goods
are eligible for bid preferences provided that bidders prove that domestic
production costs account for above 25% of total price. Percentage (%) of
domestic production cost of goods is calculated according to the following
formula:
D (%) = G*/G (%)
Where:
- G*:
Domestic production cost calculated by quoted price of goods defined in the bid
envelope and proposal which subtracts tax values and external costs, inclusive
of fees and charges;
- G:
Quoted price of goods defined in the bid envelope and proposal subtracting tax
values;
- D:
Percentage (%) of domestic production cost of goods. D3 gains the
rate of 25%, which can enable goods to receive the bid preferences as regulated
in Clause 2 of this Article.
2. Bid
preference calculation:
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b) In
case of the application of evaluated price method, goods that do not receive
bid preferences must add a monetary amount accounting for 7.5% of quoted bid
after correction of errors, adjustment of deviations and deduction of discounts
(if any) of these goods to the evaluated price of these bidders for comparison
and rating;
c) In
case of the application of combined technical and price-based method, goods
that receive the bid preferences are given additional preferential scores to
total combined scores as follows:
Preferential score = 0.075 x (preferential goods price /
bid price) x combined scores
Where: Preferential
goods price is quoted bid after correction of errors, adjustment of deviations
and deduction of discounts (if any) of goods that receive bid preferences.
Article 6. Bid preferences for the domestic bidding
1. In
terms of the contract for goods procurement, the preference applied to domestic
goods shall be implemented according to the regulations specified in Article 5
of this Decree.
2. Bid
envelopes and proposals from bidders who employ total female workers and
wounded soldiers or invalid employees accounting for above 25% and signing
minimum 03 month’s labor contracts and who are small enterprises granted bid
preferences as regulated in Clause 3 Article 14 of the Bidding Law shall
achieve higher ranks than those of bidders who are not granted bid preferences
in case their bid envelopes and proposals are ranked at the same position.
3. In
case of construction contracts worth less than VND 05 billion, only small and
ultra small enterprises are allowed to participate into the bidding as
stipulated by laws.
4. In
case bid envelopes and proposals from bidders achieve the same rank after bid
preferences that have been granted, those of local bidders shall be given
priority over others during the contract award.
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Article 7. Supply, advertisement and dissemination of the
bidding information
1.
Responsibility for the information supply:
a)
Ministries, ministerial-level agencies, Governmental agencies, Central bodies,
provincial People’s Committees and competent persons are responsible to
disseminate the bidding information mentioned at Point g Clause 1 Article 8 of
the Bidding Law on the national bidding network or the Vietnam Public
Procurement Review Journal;
b)
Ministries, ministerial-level agencies, Governmental agencies and other
centrally-governed bodies, provincial People’s Committees are responsible to
advertise the bidding information mentioned at Point h Clause 1 Article 8 of
the Bidding Law on the national bidding network;
c)
Procuring entities are responsible to supply the bidding information regulated
at Point a Clause 1 Article 8 of the Bidding Law on the national bidding
network;
d) Procuring
entities are responsible to provide the bidding information regulated at Point
b, c, d and dd Clause 1 Article 8 of the Bidding Law as well as other
information regarding the change in the bidding schedule (if any) on the
national bidding network or the Vietnam Public Procurement Review Journal;
dd)
Bidders are responsible to provide and update the information about their
competence and experience into the database of bidders on the bidding network
system according to regulations stated at Point d Clause 1 Article 5 and Point
k Clause 1 Article 8 of the Bidding Law;
e)
Bidding training institutions, lecturers and experts who hold certificates of
the bidding practices are responsible to provide the information regarding
their bidding training, lecturing and practice for the Ministry of Planning and
Investment to post on the national bidding network system as stipulated in
Point k Clause 1 Article 8 of the Bidding Law.
2.
Responsibility for the information dissemination:
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b) All of
proper information shall be advertised on the national bidding network system
or the Vietnam Public Procurement Review Journal. Whenever any improper
information is detected, the Ministry of Planning and Investment is responsible
to make their announcement on the national bidding network system or the
Vietnam Public Procurement Review Journal in order for information suppliers to
make any possible adjustment, correction and completion prior to postings.
3. The
information about the online selection of contractors shall be disseminated by
procuring entities on the national bidding network system but must ensure the
compliance with regulations specified at Point b Clause 2 of this Article.
4. In
case of projects or contracts identified in the list of national secrets, the
dissemination of information to the public must be carried out according to the
laws on national secret protection.
5. The
supply and dissemination of bidding information posted on the national bidding
network, the Vietnam Public Procurement Review Journal and through other means
of mass media are encouraged for the contracts that are not regulated by the
Bidding Law.
Article 8. Time limit and procedures for the supply and
dissemination of the bidding information
1. In
case of the self-advertisement of information posted on the national bidding
network:
a)
Concerned entities who are responsible to supply information as regulated at
Clause 1 Article 7 of this Decree carry out the registration of participants
into the national bidding network system according to regulations specified in
Article 87 of this Decree and perform the self-advertisement of their
information on the national bidding network system according to the guidance
from the Ministry of Planning and Investment;
b) In
respect of the information regulated in Point b, c Clause 1 Article 8 of the
Bidding Law, procuring entities shall release the Request for Expression of
Interest (hereinafter abbreviated as EOI), Prequalification, Invitation for
Bids and Request for Proposals, which complies with the bidding schedule
announced in the notification of EOI Request, Prequalification, Invitation for
Bids and Request for Offers but takes place within a minimum of 03 working days
from the first date on which the information is posted on the national bidding
network system;
c) In
respect of the information regulated in Point a, d, dd, g and h Clause 1
Article 8 of the Bidding Law, organizations responsible for the advertisement
of bidding information must ensure that their self-advertisement of bidding
information is not later than 07 working days from the date on which the
bidding documents are released.
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a) As
regards the information regulated in Point b, c Clause 1 Article 8 of the
Bidding Law, the time limit for the Vietnam Public Procurement Review Journal’s
receipt of the information is not later than minimum 05 working days before the
proposed date on which the Request for EOI, Prequalification, Invitation for
Bids and Request for Proposals are released. These pieces of information must
be posted on 01 publication of the Vietnam Public Procurement Review Journal;
b) In
respect of the information regulated in Point d, dd and g Clause 1 Article 8 of
the Bidding Law, the time limit for the Vietnam Public Procurement Review
Journal’s receipt of the information is not later than 07 working days from the
date on which the bidding documents are released. These pieces of information
must be posted on 01 publication of the Vietnam Public Procurement Review
Journal.
3. Within
a period of 02 working days from the date of the self-advertisement of
information as regulated in Point b, c, d, dd and g Clause 1 Article 8 of the
Bidding Law to be posted on the national bidding network system, the Vietnam
Public Procurement Review Journal is responsible to disseminate their received
information on 01 publication of the Vietnam Public Procurement Review Journal.
4. Within
a period of 02 working days from the date on which the Vietnam Public
Procurement Review Journal receives the information as regulated in Point b, c,
d, dd and g Clause 1 Article 8 of the Bidding Law, the Vietnam Public
Procurement Review Journal is responsible to post these pieces of information
on the national bidding network system and their publication as well. In
respect of the information regulated in Point b, c Clause 1 Article 8 of the
Bidding Law, procuring entities shall release the Request for EOI,
Prequalification, Invitation for Bids and Request for Proposals, which complies
with the bidding schedule identified in the notification of EOI Request,
Prequalification, Invitation for Bids and Request for Goods Quotations but
ensures that it is received within a minimum of 03 working days from the first
date on which the information is posted on the national bidding network system
or the Vietnam Public Procurement Review Journal;
5. The
supply and dissemination of information in the aim of the online bidding shall
observe the regulations specified in Clause 2 Article 88 of this Decree.
Article 9. Expenses incurred during the selection of
contractors
1. Based
on the size and nature of the contracts, investors decide the selling price of
one set of bidding documents and request for proposals (taxes included) for the
domestic bidding, including the maximum price of VND 2,000,000 for the bid
envelope and VND 1,000,000 for the Request for Proposals; as for the international
bidding, such selling prices shall adhere to the international bidding
practices.
2.
Expenses incurred by the composition and evaluation of the Request for EOI and
Prequalification:
a)
Expenses incurred by the composition of the Request for EOI and
Prequalification account for 0.05% of the bid price but are identified at the
minimum price of VND 1,000,000 and the maximum price of VND 30,000,000;
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3.
Expenditure on compilation and evaluation of the Invitation for Bids and
Request for Proposals:
a)
Expenses incurred by the composition of the Invitation for Bids and Request for
Proposals account for 0.1% of the bid price but are identified at the minimum
price of VND 1,000,000 and the maximum price of VND 50,000,000;
b)
Expenses incurred by the evaluation of the Invitation for Bids and Request for
Proposals account for 0.05% of the bid price but are identified at the minimum
price of VND 1,000,000 and the maximum price of VND 50,000,000;
4.
Expenses incurred by the evaluation of the EOI Response, Prequalification, Bid
Envelope and Proposals:
a)
Expenses incurred by the evaluation of the EOI Response and Prequalification
account for 0.05% of the bid price but are identified at the minimum price of
VND 1,000,000 and the maximum price of VND 30,000,000;
b)
Expenses incurred by the evaluation of Bid Envelopes and Proposals account for
0.1% of the bid price but are identified at the minimum price of VND 1,000,000
and the maximum price of VND 50,000,000.
5.
Expenses incurred by the evaluation of the result of the selection of
contractors, even when there are none of selected contractors, account for
0.05% of the bid price but are identified at the minimum price of VND 1,000,000
and the maximum price of VND 50,000,000.
6. In
respect of the contracts that elaborate the same contents in the same project
and purchase estimate as well as the contracts that require redoing the
selection of contractors, expenses incurred by the composition and evaluation
of the Request for EOI and Prequalification; Invitation for Bids and Request
for Proposals account for maximum 50% of the expense regulated in Clause 2 and
Clause 3 of this Article. In case of the contracts that require another
selection of contractors, expenses on the selection of contracts for the
project and purchase estimates must be accounted for and supplemented to meet
the actual requirements mentioned in the contracts.
7.
Expenses prescribed in Clause 2, 3, 4, 5 and 6 of this Article shall be
applicable to investors and procuring entities who are directly involved in the
bidding. In case bidder’s consultants are hired to carry out the contents
specified in Clause 2, 3, 4, 5 and 6 of this Article, expenses are defined on
the basis of the content, scope of work, execution period, competence and
experience of consultants and other elements.
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9.
Expenses incurred by the dissemination of bidding information and participation
in the national bidding network and the use of receipts during the selection of
contractors shall follow the instructions from the Ministry of Planning and
Investment and the Ministry of Finance.
Article 10. Safe custody for bid packages during the
selection of contractors
1. All of
documents regarding the selection of contractors shall be kept to a minimum of
03 years after the contract finalization, except for those prescribed in Clause
2, 3 and 4 of this Article.
2. If the
Proposals for financial contents by the bidders that do not pass the technical
evaluation shall be fully returned to the bidders as scheduled below:
a) In
terms of consulting service supply contract: Within the period of 10 days from
the date on which the contract with selected contractors are signed;
b) In
terms of the contracts for non-consulting service, goods purchase, construction
works and mixed contracts applying the single-stage two-envelope bidding
process: scheduled at the same time when the tender guarantee of eliminated
bidders is refunded or cleared.
Within
the time limit regulated at Point a, b of this Clause, if bidders that do not
reclaim their financial proposals, procuring entities shall consider and decide
the cancellation of financial proposals but ensure the confidentiality of
information enclosed in these financial proposals.
3. In
case of the bid cancellation, all of relevant documents shall be kept within
the period of 12 months from the date on which the decision on the bid
cancellation is made.
4.
Financial statements, as-built dossiers and other documents regarding the
selected bidders shall be kept in a safe manner according to legal regulations
on the document custody.
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THE SINGLE-STAGE PROCESS OF OPEN AND
LIMITED BIDDING FOR NON-CONSULTING SERVICE, GOODS PURCHASE, CONSTRUCTION WORKS
AND MIXED CONTRACTS
Section 1: SINGLE-STAGE ONE-ENVELOPE BIDDING PROCESS
Article 11. Specific process
1.
Pre-selection of contactors must include:
a)
Composing bidding document;
b)
Verifying and approving the bidding document.
2.
Selection of contactors must include:
a)
Soliciting bidders;
b)
Issuing, amending and clarifying the bidding documents;
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d)
Opening the bid packages.
3.
Evaluation of the bid envelope must include:
a)
Examining and evaluating the validation of the bid envelope;
b)
Specifically evaluating the bid envelope;
c) Rating
the bidder.
4.
Discussing the agreement.
5.
Reporting, verifying, approving, and announcing the result of contractor
selection.
6.
Completing and signing the contract.
Article 12. Composition of the bidding documents
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a)
Decision on Project Approval or the Investment Certificate for the project;
Decision on the Approval of Purchase Estimates for the recurring purchase and
other documents. In respect of the contracts that need executing prior to the
decision on the approval of the project, the decisions made by the heads of
project or unit in charge of the project preparation shall be followed if the
investor of the project has not been defined yet;
b) Approved plan for the selection of contractors;
c)
Technical dossiers along with approved estimates for the construction or
engineering contracts; required standards of technical features and
specifications for commodities (if applicable);
d) Bidding
regulations and other relevant laws; international treaties and agreements (if
applicable) for the projects funded by the official development assistance
capital or concessional loans;
dd) State
policies on taxes, fees and the bid preferences in the selection of contractors
and other relevant regulations.
2.
Bidding documents must provide for the evaluation criteria of the bid envelopes
including bidder's competence and experience; technical capability; the
definition of lowest bid (in case of the application of the lowest bid method);
the identification of evaluated price (in case of the application of evaluated
price method). The bidding documents are not allowed to mention any terms and
conditions that aim to restrict the participation of bidders or give priority
to one or several bidder(s), which can cause unfair competition among bidders.
3.
Criteria of the bid evaluation for the goods purchasing contracts include:
a)
Competence and experience
“Pass” or
“fail” system shall be used to form the evaluation criteria of bidder’s
competence and experience in which the minimum criteria are set to give
"pass" score for each content of bidder’s competence and experience.
The criteria are specified as follows:
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-
Manufacturing and trading capability, facilities, skill and expertise of those
who are involved in the contract execution;
-
Financial competence: Total asset and liability, short-term asset and
liability, revenue, profit, work-in-progress value and other essential
criteria.
The
definition of specific requirements that must be obtained for each criterion or
standard as prescribed in this Point should rely on the requirements of a
single contract. If bidders shall be given the “pass” criteria of all contents
mentioned in this Point, it means that they have met all requirements for their
competence and experience.
b)
Technical capability
When
using the pass, fail criteria system or 100 or 1,000-point grading scale to set
standards of the technical evaluation, the minimum and maximum point of each
general and specific standard in the grading scale must be defined. The
criteria setting for the technical evaluation shall be based on relevant
factors like the satisfaction with requirements for amount, quality and expiry
date of delivery, shipping, installation, warranty and reliability of bidders
through their previous performance of similar projects and other requirements
mentioned in the bidding solicitation. Based on each contract, the bidding
documents must provide criteria to serve as the basis of technical evaluation,
including:
-
Technical features and specifications of goods as well as production,
fabrication and technological standards;
-
Practicality and economic efficiency of technical solutions, goods supply and
assembling methods;
- The
satisfaction with requirements for warranty and maintenance;
-
Geographical and environmental adaptation;
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Possibility of financial provision (if required);
- Other
requirements for trading, execution duration, training and technology transfer;
-
Punctuality of goods supply;
-
Bidder’s trust defined by evaluating their execution of previous contracts;
- Other
essential factors.
c)
Determination of lowest bid (in case of the application of lowest bid method):
-
Determination of quoted bid;
- Error
correction;
-
Deviation adjustment;
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Conversion of quoted bid into a common currency (if any);
-
Determination of preferential value (if any);
-
Comparison of bidding documents to determine the lowest bid.
d)
Criteria for determining evaluated price (in respect of the application of
evaluated price):
Formula
of the determination of evaluated price:
GĐG = G ± ∆G + ∆ƯĐ
Where:
- G =
(quoted bid ± value of errors ± value of deviations) – value of discounts (if
any);
∆G denotes
value of elements embedded on the same level for the life circle of goods,
including:
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+ Loan
interest (if any);
+
Progress;
+ Quality
(efficiency and capacity);
+ Origin;
+ Other
factors (if any).
∆ƯĐ
denotes the added value for those who are not granted bid preferences according
to the regulations mentioned at Point b Clause 2 Article 5 of this Decree.
4.
Criteria of the bid evaluation for the construction contracts include:
a)
Competence and experience
“Pass” or
“fail” criteria system shall be used to form the evaluation criteria for
bidder’s competence and experience in which the minimum requirements are set to
give "pass" score for each of these contents. The criteria are
specified as follows:
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-
Technical capability: Amount and qualification of key personnel and engineers
who will directly execute the contracts and quantity of available construction
equipment, capability of construction facility mobilization for the contract
execution;
-
Financial competence: Total asset and liability, short-term asset and
liability, revenue, profit, work-in-progress value and other essential
criteria.
The
determination of specific requirements for each criteria prescribed in this
Point should rely on requirements of each contract. Those who are evaluated to
pass all criteria mentioned in this point shall satisfy the requirements for
their competence and experience.
b)
Technical capability
When using the pass or fail criteria or 100 or 1,000-point
grading scale to set standards of technical evaluation, the minimum and maximum
point of each overall and specific standard in the grading scale must be
defined. The criteria setting for the
technical evaluation shall be based on relevant factors like the satisfaction
with requirements for design documentation, bill of quantities, bidder's
quality of performance on the previous contracts and other requirements
mentioned in the bidding documents. Based on each contract, the bidding
documents must provide detailed criteria as the basis of technical evaluation,
including:
-
Suitability and feasibility of technical solutions, construction arrangement
and method in conformity with proposals for the construction progress;
Except
the case in which bidders are requested to adhere to the construction method
specified in the bidding documents due to a particular contract, the bidding
documents should provide regulations on enabling bidders to propose a
construction method different from the one specified in the bidding documents.
-
Construction progress;
- Quality
assurance methods;
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-
Satisfaction with requirements for warranty and maintenance;
-
Bidder’s quality of previous performance on similar contracts;
- Other
essential factors.
c)
Determination of lowest bid price (in case of the application of lowest bid
price) shall adhere to the regulations mentioned in Point c Clause 3 of this
Article;
d)
Criteria for determining evaluated price (in respect of the application of
evaluated price method)
Formula
of the determination of evaluated price:
GĐG = G ± ∆G + ∆ƯĐ
Where:
- G =
(quoted bid ± value of errors ± value of deviations) – value of discounts (if
any);
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+
Operation and maintenance cost;
+ Loan
interest (if any);
+
Progress;
+
Quality;
+ Other
factors (if any).
- ∆ƯĐ
denotes the added value for those who are not granted bid preferences according
to the regulations mentioned at Point b Clause 2 Article 4 of this Decree.
5. In
terms of non-consulting service supply and mixed contracts
Based on
the size and nature of contracts as well as regulations specified in Clause 2,
3 and 4 of this Article, the evaluation criteria of competence and experience;
technical capability and lowest bid price (in case of the application of lowest
bid price method) or standards in the determination of evaluated price (in case
of the application of evaluated price method) shall be properly defined.
6. The
application of combined technical and price evaluation method for the
contractor selected through single-stage one-envelope bidding process shall not
be applied.
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8.
Regulations on employee recruitment and utilization:
a) In
terms of the international bidding, the bidding documents must set out the
regulations on the recruitment of domestic employees if these employees are
qualified and the domestic market is able to supply employments, especially
manual labors. The employment of foreign workers in the contracts is only
permitted when domestic workers are not qualified. Bidders who do not observe
the regulations on the employee utilization upon the contract execution,
depending on the severity of their violations, shall be prohibited from
participating in the bidding in Vietnam under the regulations specified in
Clause 4 Article 122 of this Decree;
b) In
terms of the contract that needs a lot of manual labors, the bidding documents
must require bidders to propose their solutions to the use of their local
workers at which their projects or contracts are executed;
c)
Investors take legal responsibility for their compliance with regulations
specified in Point a of this Clause during the composition of the bidding
documents, evaluation of bid packages, approval of the contractor selection
result, signing and execution of the contracts;
d) Bid
envelopes that fail to satisfy the requirement for the employee utilization
specified in the bidding documents as prescribed in Point a of this Clause
shall be eliminated.
Article 13. Verification and approval of the bidding
documents
1.
Bidding documents must be verified as prescribed in Article 105 of this Decree
prior to approval.
2. The
approval for the bidding documents must be in writing with reference to the
submission statement on the approval and report on verification of the bidding
documents.
Article 14. Arrangement for the selection of contactors
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Procuring
entities advertise the bid solicitation as prescribed in Point d Clause 1
Article 7 and Point b Clause 1 or Point a Clause 2 Article 8 of this Decree.
2. 2.
Issuing, amending and clarifying the bid solicitation:
a) The
bidding documents are released for contractors to participate in the open
bidding or for those who are short-listed bidders. In case of bidders as joint
ventures or consortiums, only one of the partners is required to purchase or
receive the bid solicitation, even if the joint venture or consortium has not
been founded yet when purchasing or receiving the bid solicitation;
b) In
case of correcting the bid solicitation after release, procuring entities must
make the decision on this correction as well as specify the corrected contents
in the bid solicitation, which shall notify the bidders who have purchased or
received the bid solicitation;
c) In
case the bid solicitation need to be clarified, bidders must send the written
requests to procuring entities within a minimum period of 03 working days
(applicable to domestic bidding) and 05 working days (applicable to
international bidding) before the deadline for the submission of bid packages
for any possible consideration and solution. The clarification of the bid
solicitation shall be undertaken by procuring entities by means of one or more
form(s) as follows:
-
Dispatch their clarification in writing to bidders;
- When
necessary, a pre-bid conference must be held to discuss and clarify these
confusing contents. Discussion contents for the clarification of the bid
solicitation must be recorded in the form of the minutes and documented to send
to bidders;
-
Clarified contents must not contrast with approved contents in the bid
solicitation. If the bid solicitation needs amending or modifying after this
clarification, this amendment or modification to the bid solicitation must be
carried out as prescribed in Point b of this Clause;
d) The
written decision on the amendment or modification as well as the record of the
bid solicitation constitutes the bid solicitation.
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a)
Bidders are responsible for the preparation and submission of their bid
packages as prescribed in the bidding documents;
b)
Procuring entities shall receive and monitor the bid packages, which adheres to
the regulations on the management of confidential files until the result of
contractor selection is made known to the public; under no circumstances is the
information of the bid packages revealed to any other bidders, except for the
information that need disclosing during the bid opening. Those sent to
procuring entities after the deadline for the bid submission shall not be
opened and considered invalid and subject to being eliminated. Any further
document that arrives after the deadline for bid submission with the aim of
amending the existing bid packages shall be invalid, except for any document
sent to clarify the bid packages as requested by the procuring entities or any
of such documents that serve to certify the validation, competence and
experience of the bidders;
c) Upon
wishing to amend or withdraw the bid packages, bidders must lodge a written
request to procuring entities. Procuring entities shall only give consent to
this amendment or withdrawal from bidders if written requests are submitted
prior to the deadline for the submission of bid packages;
d)
Procuring entities are obliged to receive all of the bid packages from all
bidders that arrive before the deadline for bid submission, even those who have
not purchased or received the bid solicitation directly released by the
procuring entities. In case bidders have not yet purchased the bidding
documents, they must pay a sum equal to the selling price of the bidding
documents to procuring entities to enable the bid packages to be accepted.
4. d)
Open the bid packages:
a) The
opening of the bid packages must be performed in the witness of all bidders and
start in 01 hour after the deadline for bid submission expires. Only bid
packages that have been submitted by the required deadline shall be opened in
the witness of legal representatives of bidders who attend the bid-opening
session, which is not dependent on the presence or absence of bidders;
b) Bid
packages shall be opened in the alphabetical order of bidder’s names and the
following processes must be observed:
- Request
each legal representative of bidders to confirm whether letter of discount is
attached to the bid packages or not;
- Check
whether the seal is broken;
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c)
Records on the bid opening: All information mentioned in Point b of this Clause
must be recorded. Records on the bid opening must be countersigned by
representatives of procuring entities and bidders who participate in the bid
opening session. Such records must be delivered to the participating bidders;
d)
Representatives of procuring entities must also append their signature in the
original bid, letter of discount (if any), authorization letter conferred on
bidder's legal representatives (if any); joint venture or consortium agreement
(if any); tender guarantee; financial proposals as well as other significant
contents of the bid packages.
Article 15. Rules for the bid evaluation
1. The
evaluation of the bid packages must follow the standards of the bid evaluation,
different requirements specified in the bidding documents, the bid envelopes,
demonstration or explanation of the bid envelopes to select the right
contractors who prove their proper competence, experience and feasible
solutions to executing contracts.
2. Since
the evaluation is based on the bid copies, bidders must be responsible to
ensure that they are identical to the originals. In case of any difference
between the originals and copies without leading to any change in the rating of
bidders, the originals are important to make critical evaluations.
3. In
case of any difference between the originals and copies which leads to the
difference between the evaluation result of original bid packages and that of
duplicate bid packages as well as change to the rating of bidders, such bid
packages shall be eliminated.
Article 16. Clarification of the bid packages
1. Upon
completion of the bid opening, bidders are responsible to clarify their bid
packages as requested by the procuring entities. In case bidder's evidence for
their validation, competence and experience have been lacked, procuring
entities request bidders to clarify and provide further documents to prove
their validation, competence and experience. In respect of technical and
financial proposals of bidders, the clarification must ensure no change in the
basic contents of bid packages and quoted bids.
2. In
case bidder's evidence for their validation, competence and experience have
been lacked after the bid closing, bidders are allowed to send further
documents for clarification. Procuring entities are responsible to accept the
documents on clarification for consideration and evaluation; further documents
on clarifying bidder's validation, competence and experience shall be
considered a part of the whole bid packages.
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Article 17. Error correction and deviation adjustment
1. Error
correction involves correcting errors contained in the bid packages including
numerical errors and others, which shall be performed under the following
rules:
a)
Numerical errors include those incurred in the inaccurate operations of
addition, abstraction, multiplication and division during the estimation of
quoted bid. In case the bidding documents
require the detailed analysis on unit price, the figures in the detailed
breakdown of quoted bid must be used as the basis of the correction of
numerical errors. In case there is some inconsistency between unit price
and total price, unit price shall serve as the basis of the error correction;
if any dramatic errors in unit price has been found due to decimal errors
(i.e., the decimal powers like 10, 100 or 1,000), total price shall serve as
the basis of the error correction;
b) Other
errors:
- At the
column of total price that has been fully calculated without equivalent unit
price, the unit price shall be additionally defined by dividing the total price
by the quantity; when unit price has been defined but total price remains
blank, the value in the total price column shall be identified by multiplying
the quantity by unit price; if the unit price and the value of any item has
been defined in the total price column but the quantity remains blank, this
blank value shall be filled with the number generated by dividing the value in
the total price column by the unit price of that item. In case the aforesaid
quantity that has been additionally defined is different from the quantity
mentioned in the bid packages, that value difference is the deviation in the
scope of supply, which shall be adjusted under regulations specified in Clause
2 of this Article;
- Error
or mistake of calculating unit must be corrected to satisfy the requirements
specified in the bidding documents;
- In case
there is any difference in the contents of technical and financial proposals,
technical proposals shall serve as the basis of the error correction.
2.
Adjustment of deviation:
a) In
case there exists the deviation in the scope of supply, the deficient quoted
value shall be added and the excess quoted value shall be subtracted to
correspond to the equivalent unit price specified in the bid packages
containing such deviations;
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In the
event that only one bidder passed the technical evaluation, the deviation
adjustment shall be carried out on the basis of accepting the equivalent offer
price; if the bid packages do not specify the unit price, the unit price in the
bid estimate shall be accepted; if there is no bid estimate, the unit price
forming the bid price shall be used as the basis of deviation adjustment;
b) If the
offer price is quoted with a deficiency in taxes, fees and charges payable as
requested in the bidding documents, procuring entities must add these expenses
to the quoted bid. These expenses shall not be amounted to the negative
deviation according to the regulations specified in Point d Clause 1 Article 43
of the Bidding Law;
c) If
bidders present their letters of discount, error correction and deviation
adjustment shall be performed on the basis of the quoted bid before discount.
Percentage (%) of the negative deviation is determined on the basis of the
quoted bid specified in the bid packages;
d) If the
bid packages with adjusted deviations are ranked at the first position to be
eligible for the contract negotiation, the lowest quoted offer out of other bid
packages that pass the technical evaluation shall be accepted to negotiate the
negative deviation.
3. After
error correction and deviation adjustment as prescribed in Clause 1 and Clause
2 of this Article, procuring entities must send a written notification to
concerned bidders about these corrections and adjustments. Within a period of
03 working days from the date on which bidders receive written notification
from procuring entities, bidders must send their written notice to procuring
entities about their consents to these error corrections and deviation
adjustments. If bidders refuse to accept the result of error corrections and
deviation adjustments on receipt of written notification from procuring
entities, the bid package of these bidders shall be eliminated.
Article 18. Evaluation of the bid packages
1.
Examining the validation of the bid packages must include:
a) Check
the number of original and duplicate bid packages;
b)
Examine ingredients of the bid packages, including the bid letter, agreement on
founding joint venture or consortium (if any), authorization for the validation
of the bid letter (if any); tender guarantee; proof of bidder’s validation;
proof of bidder's competence and experience; technical proposal; financial
proposal; other relevant ingredients.
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2.
Evaluation of the validation of bid packages:
A bid
package is considered valid when it fully meets the following requirements:
a) Keep
an original of the bid package available;
b) Hold
the bid letter signed and sealed by a bidder’s legal representative (if any) as
required in the bidding documents; identify definite time for the contract
execution specified in the bid letter to correspond to the technical proposal;
detail and fix the offer price in numbers and words, which must logically match
total offer price quoted in the general pricelist; do not propose different
quoted bids or invent any disadvantageous terms and conditions to investors or
procuring entities. As for a bidder as a joint venture or consortium, the bid
letter must be signed and sealed by a legal representative of each partner (if
any) or the head on behalf of joint venture or consortium must sign the bid
letter with reference to the duties assigned in the agreement on founding joint
venture or consortium;
c)
Validate the bid package to conform to the regulations specified in the bidding
documents;
d) Hold
the tender guarantee with its validity and expiry date conforming to
requirements given in the bidding documents. In the event of the tender
guarantee in the form of a guarantee letter, it must be issued by the legal
representative of credit institutions or foreign bank's branches in compliance
with Vietnam laws, which specify the value, expiry date and beneficiary as
required by the bidding documents;
dd) Do
not take part in two or more bid packages in which they are considered the main
contractor (independent contractor or a partner of joint venture or
consortium);
e) Show
the agreement on founding the joint venture or consortium, signed and sealed by
every partners (if any);
g) Prove
that bidders are not prohibited from participating in the bidding according to
bidding laws;
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Those who
submit their validated bid packages shall be considered and evaluated to verify
their competence and experience.
3.
Evaluation of competence and experience:
a)
Competence and experience evaluation shall comply with the evaluation criteria
prescribed in the bidding documents;
b)
Bidders with satisfactory competence and experience shall be considered and
evaluated to examine their technical capability.
4.
Technical and price-based evaluation:
a)
Evaluation of bidder’s offer price and technical capability must adhere to the
evaluation standards and methods prescribed in the bidding documents;
b)
Bidders who satisfy technical requirements shall be considered to define the
lowest price (in respect of the application of the lowest bid price method) and
evaluated price (in respect of the application of evaluated price method).
5. After
finalizing the rating of bidders, the expert group shall compile reports to
procuring entities for their consideration. Reports must clarify the following
contents:
a) List
of bidders who have been qualified for further consideration and rating
together with bidder’s positions in this rating;
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c)
Remarks on bidder's competitiveness, fairness, transparency and economic
efficiency of the contractor selection. If competitiveness, fairness,
transparency and economic efficiency have not been ensured, reasons and
recommendations for any possible solution must be stated as well;
d) Any
content of the bidding documents that has not conformed to bidding laws, which
can result to any possible confusion or ambiguity in further implementation or
lead to any possible deviations on the result of contractor selection;
recommendations and solutions.
Article 19. Contract negotiation
1. The
bidder who has seized the first position in the bidder's rating shall be
eligible for the contract negotiation. If any bidder who is invited to
negotiate the contract has not turned up or refused to proceed to the contract
negotiation, they are not allowed to reclaim their tender guarantee.
2.
Contract negotiation shall be based on the followings:
a) Report
on evaluation of the bidding documents;
b) Bid
package and bidder’s records of clarification of bid package;
c) Bidding
solicitation.
3. Rules
of the contract negotiation:
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b)
Contract negotiation is not allowed to change the quoted bid after error correction,
deviation adjustment and discount deduction (if any). While evaluating bid
packages and negotiating contracts, if workloads specified in the bill of
quantities are lower than these mentioned in the design documentation, the
soliciting party must request contractors to make up for this inadequacy on the
basis of the quoted price; if a bid package has not provided the quoted price,
procuring entities shall send reports to investors for consideration and
decision on fixing the price in the approved estimate for these inadequate
workloads or the price quoted by other bidders who have passed the technical
evaluation
c)
Negotiation over the negative deviation value shall comply with regulations
specified in Point d Clause 2 Article 17 of this Decree.
4. Contents
of contract negotiation:
a)
Unspecified, inappropriate and inconsistent contents between bidding documents
and bid packages or in the same bid package shall be negotiated to prevent any
possible dispute or unexpected impact on the contractual obligations of
contracting parties;
b)
Deviations that have been found by the contractor and contractor’s
recommendations (if any), including possible alternatives which contractors are
allowed to provide according to relevant bidding regulations;
c)
Personnel issues in respect of construction and mixed contracts:
In the
course of negotiation, selected bidder is not allowed to change their key
personnel as proposed in the bid package for those who are in charge of design
and survey (in respect of construction and mixed contracts that require
contractors to implement one or two design steps prior to construction),
construction site, except the case in which the evaluation time is extended
longer than the regulated time or because of unexpected events that dissuade
these key personnel from participating in the contract execution. In such case,
contractors have the right to change other personnel but must ensure the
substitute employees prove qualification, experience and capability equivalent
to or higher than proposed personnel and bidders are not allowed to change
their quoted bids;
d) Any
issue that arises during the selection of contractors (if any) in the aim of
completing detailed contents of the contract;
dd) Other
necessary issues.
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6. If the
negotiation fails, procuring entities must report investors for their
consideration and decision on soliciting bidders who are ranked at the next
positions for contract negotiation; if the successive negotiations also fail,
procuring entities must report investors for their consideration and decision
on the bid cancellation as regulated in Clause 1 Article 17 of the Bidding Law.
Article 20. Report, verification, approval and announcement
of the result of contractor selection.
1. On the
basis of the report on the result of the evaluation of bid packages, procuring
entities must submit the contractor selection result in which opinions on the
evaluation contents performed by expert group must be clarified.
2. Result of contractor selection must be verified as
prescribed in Clause 1 and Clause 4 Article 106 of this Decree prior to
approval.
3. Result of contractor selection must be approved in writing
and adhere to the documents on applying for the approval as well as the reports
on verification of contractor selection.
4. If the
winning contractor has been selected, the documents on approving the result of
contractor section must include the followings:
a)
Winning contractor’s name;
b)
Winning bid;
c) Type
of contract;
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dd) Other
notes (if any).
5. In
case of the bid cancellation as prescribed in Clause 1 Article 17 of the
Bidding Law, documents on approving the result of contractor selection or
deciding the bid cancellation must clarify reasons for this cancellation and
responsibility for concerned parties.
6. On
receipt of the decision on approving the result of contractor selection,
procuring entities must disseminate the information about the result of
contractor selection according to Point d Clause 1 Article 7 and Point c Clause
1 or Point b Clause 2 Article 8 of this Decree; send a written notification
about the result of contractor selection to the bidding contractors within the
required period as regulated in Point n Clause 1 Article 12 of the Bidding Law.
The notification must specify the following contents:
a)
Information specified in Point a, b, c and d Clause 4 of this Article;
b) List
of unselected bidders and a summary of reasons for elimination;
c) Plan for completing and signing the contract with selected
bidders.
Section 2: SINGLE-STAGE ONE-ENVELOPE BIDDING PROCESS
Article 21. Specific process
1.
Pre-selection of contactors must include:
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b)
Composing the bidding documents;
c) Verify
and approve bidding documents.
2.
Selection of contactors must include:
a)
Inviting bidding contractors;
b)
Issuing, revising and clarifying bidding solicitation;
c)
Preparing, submitting, receiving, managing, adjusting and withdrawing bid
packages;
d)
Opening technical proposals.
3.
Evaluation of technical proposals must include:
a)
Examining and evaluating the validation of technical proposals;
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c)
Approving list of bidders who satisfy the technical requirements.
4.
Opening and evaluation of financial proposals must include:
a)
Opening financial proposals formulated by bidding contractors in the approved
list;
d)
Examining and evaluating the validation of financial proposals;
c)
Specifically evaluating financial proposals;
d)
Ranking bidding contractors.
5.
Negotiating the contract.
6.
Reporting, verifying, approving, and announcing the result of contractor
selection.
7.
Completing and signing the contract.
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Based on
the size and nature of a contract, short-listing process can be performed to
select the qualified contractors who have proper competence and experience for
the contract execution to send out the Invitation for Bids. The application of
short-listing process shall be decided by competent entities and must be
clarified in the plan for the contractor selection.
1. In
terms of open bidding:
a)
Composing application for the prequalification:
-
Application for prequalification must include the following contents: Summary
of project or contract information; instructions on preparing and applying for
the prequalification; standards in the competence and experience of the bidding
contractors;
-
Pass/fail system shall be used to set standards in the evaluation of
application for prequalification. In the criteria for evaluating applications
for prequalification, the minimum requirement must stipulate that all specific
contents of bidder’s competence and experience must receive "pass"
score;
b)
Approving the applications for prequalification must be performed in writing
and based on the statements on approving and reporting verification of the
request for prequalification;
c)
Request for prequalification must observe regulations stated in Point d Clause
1 Article 7 and Point b Clause 1 or Point a Clause 2 Article 8 of this Decree;
d)
Releasing the requests for prequalification:
Requests
for prequalification shall be released free of charge to bidders prior to the
deadline for bid submission;
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Procuring
entities must receive and manage the prequalification applications according to
regulations on the management of confidential documents till the announcement
of the prequalification result;
e)
Opening and evaluating applications for prequalification:
-
Applications for prequalification that have been submitted at the venue and
time as regulated in the request for prequalification shall be opened right
after the deadline for bid submission. The opening of application for
prequalification shall be documented and records on the bid opening shall be
sent to participating contractors. Any application for prequalification after
the deadline for bid submission is not eligible to be opened and is considered
invalid or eliminated;
-
Evaluation of applications for prequalification shall be implemented as
prescribed in the request for prequalification; Contractors whose applications
for prequalification are given "pass" score in terms of all contents
regarding contractors' competence and experience shall be short-listed.
g)
Reporting, verifying and approving the prequalification result:
- On the
basis of the report on the result of the evaluation of prequalification
applications, procuring entities must seek the approval of prequalification
result in which expert group’s opinions on the evaluation result must be
clarified;
-
Prequalification result must be verified as prescribed in Clause 1 and Clause 2
Article 106 of this Decree prior to approval;
- The
approval of prequalification result must be conducted in writing with reference
to the statements on approving and reporting the verification of
prequalification result.
- In case
short-listed bidders have been selected, the document on approving the
prequalification result must include selected bidder's name and other notes (if
any). In case short-listed bidders have not been selected, the document on
approving the prequalification result must determine the reasons why they are
not short-listed.
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2. In
terms of limited bidding:
a)
Defining and approving the short-list: the short-list must include minimum 03
bidders who prove their proper competence and experience to satisfy the
requirements of the contract and wish to be awarded the bids;
b)
Announcement of the short-list: After approval, the short-list must be
publicized as prescribed in Point d Clause 1 Article 7 and Point c Clause 1 or
Point b Clause 2 Article 8 of this Decree.
3.
Short-listed bidders are not allowed to enter into a joint venture when
participating in the same bidding.
Article 23. Composition of the bidding solicitation
1. Bases
of the composition of bid solicitation shall adhere to regulations mentioned in
Clause 1 Article 12 of this Decree.
2. The
evaluation criteria of the bid packages must include contractor's competence
and experience; technical capability; identification of lowest price (in case
of the application of the lowest bid price method); identification of evaluated
price (in case of the application of evaluated price method); identification of
pricing score and general evaluation standards (in case of the application of
combined technical and price-based method). As for the contract that has
undergone the prequalification, it is not necessary to regulate the evaluation
standards of contractor’s competence and experience but bidder's information
about their competence must be updated. The bidding documents are not allowed
to mention any terms and conditions that aim to restrict the participation of
bidders or give priority to one or several bidder(s), which can cause unfair
competition among bidders.
3.
Criteria for evaluating bidder’s competence, experience and technical
credentials shall adhere to regulations stated in Point a, Point b Clause 3 and
Point a, Point b Clause 4 Article 12 of this Decree.
4.
Determination of lowest bid price (in case of the application of lowest bid
price method) shall adhere to the regulations mentioned in Point c Clause 3
Article 12 of this Decree.
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6.
Criteria of the general evaluation (in case of the application of technical and
price-base method) shall comply with regulations stated in Article 24 of this
Decree.
7. Brand
and origin of goods must comply with regulations set out in Clause 7 Article 12
of this Decree.
8. The
recruitment and hire of employee must comply with regulations stated in Clause
8 Article 12 of this Decree.
9. In
terms of non-consulting service supply and mixed contracts:
Based on
the size and nature of the contract as well as regulations stated in Clause 2,
3, 4, 5, 6, 7 and 8 of this Article, the evaluation criteria of contractor's
competence and experience; technical capability; identification of lowest price
(in case of the application of the lowest bid price method); identification of
evaluated price (in case of the application of evaluated price method);
identification of pricing score and general evaluation standards (in case of
the application of combined technical and price-based method) shall be properly
set.
Article 24. General evaluation criteria
The
general evaluation criteria set out for the application of combined technical
and price-based method shall be specified as follows:
1.
Identifying the pricing score:
100 or
1,000 – point system is made identical to technical point scales to identify
the pricing score. Pricing score is calculated by the formula:
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Gmin x (100 or 1,000)
Gunder consideration
Where:
- Pricing
scoreunder consideration: the pricing score of technical proposal in
consideration;
- Gmin:
the lowest quoted bid after error correction, deviation adjustment and discount
deduction (if any) out of the quoted bids whose financial proposals are
evaluated;
- Gin
consideration: the bid after error correction, deviation adjustment and
discount deduction (if any) specified in the financial proposal that has been
taken into account.
2.
General evaluation criteria:
General
evaluation criteria are set on the basis of the combined technical and
price-based method. Depending on the size and nature of each contract, the
proportion of technical and price-based scores must be identified to ensure
that both are added together to equal 100%, which is specified as follows:
a) In respect
of the construction contract: Proportion of technical score (K) ranging from
10% to 15% and proportion of price-base score ranging from 85% to 90%;
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c) In
respect of the medicine purchase contract: Proportion of technical score (K)
ranging from 20% to 30% and proportion of price-base score ranging from 70% to
80%;
d)
Identifying the overall score:
Overall
score under consideration = K x Technical score under
consideration + G x Price-based score under consideration
Where:
-
Technical score under consideration is identified at the technical
evaluation step;
-
Price-based score under consideration is identified at the
price-based evaluation step;
- K:
Proportion of technical scores regulated in the overall scoring scale;
- G:
Proportion of price-based score regulated in the overall scoring scale;
- K + G =
100%. Proportion of technical score (K) and price-based score (G) must be
specifically identified in the bid solicitation.
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1.
Bidding documents must be verified as prescribed in Article 105 of this Decree
prior to obtaining the approval.
2. The
approval of bidding documents must be granted in writing with reference to the
statements on approving and reporting the verification of bidding documents.
Article 26. Contractor selection
1. 1.
Soliciting contractors;
a)
Notification of Invitation for Bids shall be applied in the event that the
short-listing is not carried out and this shall be performed according to the
regulations specified in Point d Clause 1 Article 7 and Point b Clause 1 or
Point a Clause 2 Article 8 of this Decree;
b) Send
out the Invitation for Bids to short-listed contractors.
2.
Releasing, correcting and clarifying the bidding documents:
The
release, adjustment and clarification of bidding documents shall comply with
regulations specified in Clause 2 Article 14 of this Decree.
3.
Preparing, submitting, receiving, managing, adjusting and withdrawing bid
packages:
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4. 4.
Opening technical proposals:
a)
Opening technical proposals must be public and starts within 01 hour from the
bid closing. Technical proposals that are submitted prior to the deadline shall
be opened as required in the bidding solicitation and witnessed by bidder’s
participating representatives without reference to the presence or absence of
bidders;
b) The
bid opening shall be carried out in the alphabetical order of bidder's name and
follow the processes hereunder:
- Check
the seal of bid packages;
- Open
the bid packages and clearly read the information about bidder’s name; quantity
of originals and copies of technical proposals; bid letter contained in
technical proposals; validity period of technical proposals; time of contract
execution; validity and expiry date of tender guarantee and other relevant information;
c) A
record on the bid opening: All information specified in Point b of this Clause
must be recorded in the record on the bid opening. The record on the bid
opening shall be countersigned by representatives of procuring entities and
participating bidders. This record must be sent to participating bidders;
d)
Procuring entity’s representatives must be countersigned in the bid letter,
authorization of bidder’s legal representatives (if any); agreement on founding
the joint venture or consortium (if any); tender guarantee and other
significant contents enclosed in each technical proposal;
dd)
Financial proposals from all of bidders must be sealed in a separate envelope
by the procuring entity and countersigned by representatives of procuring
entities and participating bidders.
Article 27. Rules of evaluation and clarification of bid
packages as well as error correction and deviation adjustment
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2. The
clarification of bid packages must adhere to regulations specified in Article
16 of this Decree.
3. Error
correction and deviation adjustment shall adhere to regulations specified in
Article 17 of this Decree.
Article 28. Evaluation of bidder’s technical proposals
1. a)
Examining the validation of bidder’s technical proposals must include:
a)
Examine the amount of original and duplicate technical proposals of bidders;
b) Check
all parts of a technical proposal, including bid letter and agreement on founding
the joint venture or consortium (if any), authorization of the signing on the
bid letter (if any); tender guarantee; proofs of bidder’s valid status; proofs
of bidder’s proper competence and experience; technical proposals and others
contained in the technical proposals;
c) Check
the consistent contents of originals and copies to serve as the detailed
evaluation of technical proposals.
2.
Evaluating the validation of technical proposals:
Bidder’s
technical proposals shall be considered valid when they can satisfy the
following requirements:
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b) Their
bid letter contained in the technical proposal must be signed and sealed by
bidder’s legal representatives (if any) as required in the bid documents; in
the bid letter, bidders must specify the progress of contract execution which
matches requirements of technical proposal. As for joint venture or consortium
bidders, bid letter must be signed and sealed by legal representatives of joint
venture or consortium partners (if any) or the heads of joint venture or
consortium according to the duties assigned in the agreement on founding joint
venture or consortium;
c) The
validity of technical proposals is enabled to meet the requirements specified
in the bidding documents;
d) The
tender guarantee is shown in which the value and validity period must meet
requirements specified in the bidding documents. In case the tender guarantee
is required in the form of the guarantee letter, this letter must be signed by
legal representatives of credit institutions or foreign bank’s branches that
have been founded under Vietnam laws, which must determine the value, validity
period and beneficiary of the tender guarantee according to requirements
specified in the bidding documents;
dd) They
are not involved in two or more technical proposals in which they serve as the
main contractor (independent contractor or partner of joint venture or
consortium);
e)
Agreement on founding the joint venture or consortium is signed and sealed by
each partner’s legal representatives (if any);
g)
Contractors are not affected by any ban on participating in the bidding
according to legal regulations on bidding;
h)
Contractors must ensure their valid status according to regulations specified
in Clause 1 Article 5 of the Bidding Law.
Contractors
who have sent their valid technical proposals shall be considered and evaluated
to confirm their competence and experience. As for a contract that has passed
the prequalification stage, their competence and experience do not need to be
evaluated.
3.
Evaluating bidder’s competence and experience:
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b)
Contractors who have proved their proper competence and experience shall be
considered and evaluated to confirm their technical credentials.
c)
Bidders that have passed the prequalification stage, shown their valid
technical proposals and had their current competence meet the requirements of
contracts shall be considered and evaluated to confirm their technical
capability.
4.
Evaluation of technical capability:
a)
Evaluation of bidder’s technical capability shall adhere to the evaluation
standards set out in the bidding documents;
b)
Contractors who have proved their proper technical capability shall be
considered and evaluated to confirm their financial credentials.
5. List
of bidders who can meet technical requirements must be approved in writing and
referred to the statement on approving and reporting the verification of
technical evaluation result. Procuring entity must announce the list of bidders
who meet technical requirements to all of participating bidders, in which those
who meet the technical requirements shall be invited to open their financial
proposals.
Article 29. Opening the financial proposal
1.
Examining the sealed envelope containing financial proposals.
2.
Opening the financial proposal:
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b) The
representative of bidders who participate in the opening of financial proposals
shall be requested to certify that their discount letters attached to their
financial proposals are available or not;
c) The
opening of financial proposals shall be done in the alphabetical order of
bidders who meet the technical proposal and follow the processes hereunder:
-
Examining the unbroken seal of proposal envelope;
- Opening
and reading aloud the information about bidder’s names; quantity of originals
and copies of financial proposals; bid letter contained in the financial
proposal; effective date of financial proposal; quoted bids specified in the
bid letter; discount value (if any); technical scores of the bid packages that
meet the technical requirements and other relevant information.
3. The
record on the opening of financial proposal:
a) All
information specified Clause 1 and Clause 2 must be recorded in the record on
the opening of financial proposals. The record on the opening of financial
proposals must be countersigned by representatives of procuring entity and
participating bidders. This record must be sent to bidders who meet the
technical requirements;
b)
Representatives of procuring entity must append their signature on all pages of
the original financial proposals.
Article 30. Evaluating the financial proposal
1.
Examining the validation of bidder’s financial proposals must include:
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b)
Examine all parts of the financial proposal, including the bid letter contained
in the financial proposal; overall and detailed price list; analysis of unit
price (if any) and other parts contained in the financial proposal;
c)
Examine the consistency of originals and duplicates to serve for the purpose of
performing the specific evaluation of financial proposals.
2.
Evaluating the validation of financial proposals:
Financial
proposals of bidders shall be considered valid when satisfying the following
requirements:
a) The
original of financial proposal is kept available;
b) Their
bid letter contained in the financial proposal must be signed and sealed by
bidder’s legal representatives (if any) as required in the bidding documents;
in the bid letter, the quoted bid must be specified and fixed in numbers or
words and must correspond to total bid specified in the overall price list as
well as is not allowed to make different quotations or provide terms and
conditions that cause disadvantages to investors or procuring entities. As for
joint venture or consortium bidders, financial proposal must be signed and
sealed by legal representatives of joint venture or consortium partners (if any)
or the heads of joint venture or consortium according to the duties assigned in
the agreement on founding joint venture or consortium;
c)
Validity of financial proposals must meet the requirements specified in the
bidding documents;
Those who
keep valid financial proposals shall be qualified for the detailed evaluation.
3.
Detailed evaluation of financial proposals and rating of bidders:
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b) After
finalizing the rating of bidders, expert group shall compile the report to
procuring entities for consideration. The report must specify the following
contents:
- List of
bidders who are put under consideration, ranked as well as bidder's ranks;
- List of
bidders who fail to meet the requirements and are eliminated; reasons for this
elimination;
- Remarks
on the competitiveness, equality, transparency and economic efficiency of the
selection of contractors. In case of a lack of competitiveness, equality,
transparency and economic efficiency, reasons and handling measures should be
clarified and suggested;
- Any
content that fails to conform to legal regulations on the bidding, possibly
results to ambiguity or controversies during the implementation or create
certain deviations of the contractor selection result (if any); any
recommendation and handling measures.
Article 31. Negotiating the contract; submitting,
verifying, approving and publicly announcing the result of contractor
selection.
1. The
bidder who is ranked at the first position shall be invited to negotiate the
contract with procuring entities.
2. The
contract negotiation shall comply with the regulations specified in Article 19
of this Decree.
3.
Submitting, verifying, approving and publicly announcing the result of
contractor selection shall adhere to regulations specified in Article 20 of
this Decree.
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OPEN AND LIMITED BIDDING PROCESSES FOR THE
CONTRACT FOR CONSULTING SERVICE SUPPLY
Section 1: BIDDERS AS ORGANIZATIONS
Article 32. Specific process
1.
Pre-selection stage must include :
a)
Short-listing bidders (when necessary);
b)
Composing the bidding solicitation;
c)
Verifying and approving the bidding documents.
2.
Contractor selection stage must include :
a)
Soliciting contractors ;
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c)
Preparing, submitting, receiving, managing, adjusting and withdrawing bid
packages;
d)
Opening technical proposals.
3.
Evaluation of technical proposals must include:
a)
Examining and evaluating the validation of technical proposals;
b)
Evaluating details of technical proposals;
c)
Approving list of bidders who prove their proper technical capability.
4.
Opening and evaluating the financial proposal must include:
a)
Opening financial proposals of bidders who are present in the approved list;
b)
Examining and evaluating the validation of financial proposals;
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d) Rating
bidders.
5.
Negotiating the contract.
6. Submitting,
verifying, approving and publicly announcing the result of contractor
selection.
7.
Completing and entering into the contract.
Article 33. Short-listing
Based on
the size and nature of the contract, the short-listing can be applied to select
the bidder who prove their proper competence and experience as required in the
contract for participation in the bidding. The application of the short-listing
process shall be decided by competent persons as well as clarified in the plan
for the selection of contractors.
1. In
respect of the open bidding :
a)
Generating the request for Expression of Interest :
- The
request for EOI must include the following contents: a summary of project and
contract information ; instructions on the preparation and submission of
EOIs; required standards in contractor’s competence and experience which
consists of requirements for the amount, capability and experience of bidding
experts;
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b) Approving
the request for EOI must be performed in writing and referred to the statements
on approving and reporting the verification of the request for EOI;
c) The
notification of EOI requests must comply with regulations specified in Point a
Clause 1 Article 7 and Point b Clause 1 or Point a Clause 2 Article 8 of this
Decree;
d)
Releasing the EOI requests:
The EOI
request shall be released free of charge to contractors prior to the deadline
for bid submission;
dd)
Receiving and managing EOIs:
Procuring
entities must receive and manage EOIs according to the regulations on the
secret file management till the result of EOIs is given;
e)
Opening and evaluating EOIs:
- EOIs
that have been submitted at the time and venue regulated in the request for
EOIs shall be opened right after the deadline for bid submission. The opening
of EOIs must be recorded and the record on the bid opening shall be sent to
contractors who respond to these EOIs. EOIs that have arrived after the
deadline for bid submission are considered ineligible to be opened, invalid and
will be eliminated ;
-
Evaluation of EOIs shall adhere to the evaluation standards set out in the
request for EOIs. EOIs of contractors that gain evaluating scores not lower
than the minimum required score shall be accepted in the short list ; any
EOI that gains the highest score shall be ranked at the first position ;
if there are more than 06 contractors who meet the requirements, only 06 top
bidders shall be accepted to present in the short list;
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- Based
on the report on the evaluation result of the EOIs, procuring entities shall
submit the approval of the result of EOIs which must clarify procuring entity’s
opinions about the evaluation contents given by the expert group;
- The
result of EOIs must be verified as prescribed in Clause 1 and Clause 2 Article
106 of this Decree prior to the approval;
- Result
of EOIs must be approved in writing and referred to the statements on approving
and reporting the verification result of EOIs;
- As for
the short-listing, the written approval of the EOI result must comprise
short-listed bidder’s name and notes (if any). In case the short-listing is
failed, documents on approving the EOI result must clarify reasons for the failure
to short-listing the contractors;
h)
Publicly announcing the short list : The short list must be widely
disseminated as prescribed in Point a Clause 1 Article 7 and Point c Clause 1
or Point b Clause 2 Article 8 of this Decree and sending notifications to
contractors who have submitted their responses to EOIs.
2. In
respect of the limited bidding:
a)
Determining and approving the short list : The determination and approval
of the short list must be carried out to minimum 03 bidders who prove their proper
competence and experience to match the requirements of the contract and wish to
participating in the bidding;
b)
Publicly announcing the short list: after approval, the short list must be
publicly announced according to regulations specified in Point d Clause 1
Article 7 and Point c Clause 1 or Point b Clause 2 Article 8 of this Decree.
3.
Bidders present in the short list are not allowed to form the joint venture or
consortium together to participate in the same bidding.
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1. The
composition of bidding documents must adhere to regulations stated in Clause 1
Article 12 of this Decree.
2.
Standards in the evaluation of bid packages comprise technical standards;
identification of lowest quoted price (in case of the application of the lowest
price method); identification of fixed price (in case of the application of
fixed price method); identification of pricing score and overall evaluation
standards (in case of the application of combined technical and price-based
method). The bidding solicitation is not allowed to provide any terms and
conditions to restrict bidder’s participation in the bidding or aim to give
priority to one or several bidders, which causes unfair competitiveness.
3.
Technical evaluation criteria: 100 or 1,000-point system shall be used for
evaluation as follows:
a)
Experience and competence of bidders must obtain the score accounting for
10% to 20% of total score;
b)
Solution and methodology of the contract execution must obtain the score accounting
for 30% to 40% of total score;
c)
Personnel for the contract execution must obtain the score accounting for
50% to 60% of total score;
d) Total
score proportion of the content specified in regulations stated in Point a, b,
c of this Clause must equal 100%;
dd)
Technical proposals are evaluated to meet the technical requirements when their
technical scores are not lower than 70% (equivalent to 80% of total score in
terms of the consulting contracts that set out high and particular technical
criteria). Additionally, the score of each content in terms of the competence,
experience, solution, methodology and personnel of bidders is not lower than
60% (equivalent to 70% applied to the consulting contracts that set out high
and particular technical criteria) of the maximum score that that content can
obtain.
4. The
identification of lowest price (in case of the application of the lowest bid
price method) shall be carried out as prescribed in Point c Clause 3 of this
Decree.
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a)
Determining the quoted bid price;
b)
Correcting errors ;
c)
Adjusting deviations ;
d)
Deducting discounts (if any);
dd)
Conversing the quoted bid price into a common currency (if any);
e)
Identifying the winning quoted price, not exceeding the bid price that has been
specified and fixed in the bidding documents.
6.
Standards in the overall evaluation (in case of the application of the combined
technical and price-based method) shall be set out as follows :
a)
Determining the pricing score:
100 or
1,000-point scale shall be used to correspond to the technical scoring system.
The pricing score shall be identified as follows:
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Gmin x (100 or 1,000)
G under consideration
Where:
- Pricing
score under consideration : The pricing score of financial proposal
that has put under consideration;
- Gmin
: The lowest quoted bid price out of the quoted bid price of bidders of
which their financial capability is specifically evaluated after error
correction, deviation adjustment and discount deduction (if any);
- G under
consideration : The quoted bid price after error correction, deviation
adjustment and discount deduction (if any), specified in the financial proposal
under consideration.
b)
Overall evaluation criteria:
Overall
score shall be identified as follows:
Overall
score under consideration = K x Technical score under
consideration + G x Pricing score under consideration
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-
Technical score under consideration : The score identified in the
technical evaluation stage;
- Pricing
score under consideration : The score identified in the price-based
evaluation stage;
- K: The
proportion of technical score regulated in the overall scoring scale that
accounts for 70% to 80%;
- G: The
proportion of price-based score regulated in the overall scoring scale that
accounts for 20% to 30%;
- K + G=
100%.
Article 35. Verifying and approving the bidding documents
1.
Bidding documents must be verified as prescribed in Article 105 of this Decree
prior to the approval;
2. b)
Approving bidding documents must be performed in writing and referred to the
statements on approving and reporting the verification of bidding documents;
Article 36. Contractor selection
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a) The
notification of Invitation for Bids is applied to the case in which the
short-listing is not performed and adheres to the regulations stated in Point d
Clause 1 Article 7 and Point b Clause 1 or Point a Clause 2 Article 8 of this
Decree;
b) Send
out Invitation for Bids to contractors who are present in the short list.
2.
Release, amend and clarify the bidding documents;
Releasing,
amending and clarifying bidding documents must adhere to regulations specified
in Clause 2 Article 14 of this Decree.
3.
Prepare, submit, receive, manage, adjust and withdraw bid packages:
Preparing,
submitting, receiving, managing, adjusting and withdrawing bid packages shall
be implemented as prescribed in Clause 3 Article 14 of this Decree.
4. Open
technical proposals:
The
opening of technical proposals must adhere to regulations specified in Clause 4
Article 26 of this Decree and shall not include the content regarding the
tender guarantee.
Article 37. Rules of evaluation and clarification of bid packages
as well as error correction and deviation adjustment
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2. The
clarification of bid packages must adhere to regulations specified in Article
16 of this Decree.
3. Error
correction and deviation adjustment shall adhere to regulations specified in
Article 17 of this Decree.
Article 38. Evaluation of technical proposals
1. a)
Examining and evaluating the validation of technical proposals:
a) The
examination and evaluation of the validity of technical proposal shall be
implemented as prescribed in Clause 1 and Clause 2 Article 28 of this Decree,
except for the content regarding the evaluation of the validity of tender
guarantees;
b) Those
who keep valid technical proposals shall be qualified for the next specific
evaluation.
2.
Evaluating details of technical proposals:
a)
Evaluation of bidder’s technical capability shall adhere to the evaluation
standards set out in the bidding documents;
b)
Bidders who have met the technical requirements or gained the highest technical
score (in case of the application of the technical method) shall be considered
and their financial proposals shall be evaluated;
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Article 39. Opening and evaluating the financial proposal
1. The
opening of financial proposals shall be implemented as prescribed in Clause 2
Article 29 of this Decree.
2. The
evaluation of financial proposals shall be implemented as prescribed in Article
30 of this Decree.
Article 40. Negotiating the contract
1. The
contract negotiation shall comply with the regulations specified in Clause 1
and Clause 2 of this Decree.
2. Rules
of contract negotiation:
The
bidders' proposals that satisfy the requirements of the bidding documents shall
not be negotiated.
3. The
content of contract negotiation:
a)
Unclear and improper contents or those that cause inconsistency between bidding
documents and bid packages as well as different contents of the same bid
package during the contract execution;
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c)
Negotiation on personnel issue:
In the
course of negotiation, contractors are not allowed to change their proposed
personnel, except for the case in which the evaluation of bid packages is
prolonged more than the regulated time or, due to the unexpected reasons that
prevent their key proposed personnel from participating in the contract,
bidders are allowed to use different personnel provided that these substitutes
can prove expertise, experience and capability equivalent to or better than the
proposed personnel. Despite this change, bidders are not allowed to adjust
their quoted bid price;
d) Any
issue that arises during the selection of contractors (if any) in the aim of
providing full of detailed contents given in the bid package;
dd) Any
expense incurred by the provision of consulting services on the basis of
satisfying the requirements set out in the bid package as well as actual
conditions;
e) Other
essential contents.
4. In the
course of contract negotiation, negotiating parties must draft the official
contract; terms and conditions of contract, annexes consisting of detailed list
of workloads, price list and the implementation progress (if any).
5. In the
event that the negotiation fails, procuring entities shall send reports to
investors so that they can decide whether another bidder who is ranked at the
second position will be invited to negotiate the contract; if the consecutive
negotiation with the second bidder is not successful, procuring entities must
compile report to investors for consideration or decision on the bid
cancellation as prescribed in Clause 1 Article 17 of the Bidding Law.
Article 41. Submitting, verifying, approving and publicly
announcing the result of contractor selection
Submitting,
verifying, approving and publicly announcing the result of contractor selection
shall be carried out as prescribed in Article 20 of this Decree.
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Article 42. Providing, submitting and approving reference
terms and list of consultants of individual bidders
1.
Procuring entities must provide the reference terms and draft contract for the
position of consultants of individual bidders that need to be selected as well
as determine the list from 03 to 05 of consultants of individual bidders that
will be then submitted for approval. In case there is only one consultant of
individual bidders that meet the expected requirements for the contract
execution, procuring entities send a report to investors for their
consideration and decision. The content of reference terms must include:
a) A
concise description of projects;
b)
Requirements for coverage, workload, quality and time of the contract
execution;
c)
Requirements for capability and expertise of the consultants;
d)
Conditions and venues for the contract execution;
dd) Other
essential contents (if any).
2.
Consultants of bidders as individuals may include one individual consultant or
a group of consultants. If the consulting party is a group of consulting
experts, they must appoint their representatives to carry out transactions with
procuring entities and investors.
3. Based
on all documents that procuring entities submit, investors must consider and
approve reference terms and list of consultants of individual bidders.
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1. After
reference terms and list of consultants of individual bidders have been
approved, procuring entities shall send out the invitation letters and
reference terms to consultants of individual bidders in the list in which the
deadline and address for the receipt of scientific background record must be
clarified.
2.
Submitting the scientific background record:
Consultants
of individual bidders must prepare their scientific background records as
required in the reference terms as well as technical proposals (if any)
submitted to procuring entities according to the time and venue specified in
the invitation letters.
3.
Evaluating the scientific background record:
Based on
the content mentioned in the reference terms, procuring entities must evaluate
the scientific background record of each consultant of individual bidder.
Individual bidder’s consultants, who have their legal status as stipulated in
Clause 2 Article 5 of the Bidding Law as well as keep their best scientific
background record and technical proposal (if any) in compliance with the
reference terms, shall be invited to negotiate and complete the contract with
procuring entities.
4.
Negotiating and completing the contract.
5.
Approving the result of the selection of individual bidder’s consultants must
be carried out in writing and referred to the statements on approving and
reporting the result of evaluating the scientific background records of
individual bidder's consultants as well as the result of contract negotiation.
The official contract must accord with the decision on approving the result of
the selection of individual bidder's consultants, the result of contract
negotiation and contents enclosed in the reference terms.
Chapter IV
TWO-STAGE PROCEDURES FOR OPEN BIDDING AND
SELECTIVE BIDDING FOR SALE CONTRACTS, CONSTRUCTION CONTRACTS, AND MIXED
CONTRACTS
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Article 44. Preparation for the first stage of bidding
1.
Depending on the scale and nature of the contract, the short-listing method may
be employed to invite capable and experienced contractors that satisfy the
requirements of the contract to bid for the contract. The employment of
short-listing method shall be decided by a competent person, and must be
specified in the bidding plan; bidders shall be short-listed in accordance with
Article 22 of this Decree.
2. Making
the invitation for bids in the first stage:
a) The
basis for making the invitation for bids is specified in Clause 1 Article 12 of
this Decree;
b) The
invitation for bids in the first stage contains: summary of the
project/contract; instructions on preparation and submission of bids in the
first stage; technical requirements of the contract; financial requirements in
order for bidders to propose their technical plans and financial plans, which
are the basis for the procuring party to complete the invitation for bids at
the second stage; bidders are not requested to submit their bids or take
measures to ensure their participation in the bidding.
The
invitation for bids must not contain any clause that restricts participation of
bidders or gives advantage to certain bidders, which causes unfair competition.
3.
Evaluating and approving the invitation for bids:
a) The
invitation for bids must be evaluated in accordance with Article 105 of this
Decree before it is approved;
b) The
approval for invitation for bids must be granted in writing in accordance with
the report on evaluation of the invitation for bids.
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1. a) The
first stage of bid invitation shall be carried out in accordance with Clause 1
Article 26 of this Decree;
2.
Issuing, adjusting, clarifying the invitation for bids:
The
invitation for bids shall be issued, adjusted, and clarified in accordance with
Clause 2 Article 14 of this Decree.
3.
Preparing, submitting, receiving, managing, adjusting, and withdrawing
bid-envelopes:
Bid-envelopes
shall be prepared, submitted, received, managed, adjusted, and withdrawn in
accordance with Clause 3 Article 14 of this Decree.
4. Bid
opening:
a)
Bid-envelopes shall be opened publicly within 01 hours from the deadline for
submitting bids. Only open the bid-envelopes received by the procuring entity
before the bid closing time as required by the invitation for bids in the
presence of representatives of bidders during the bid opening ceremony,
regardless of the presence of the bidders;
b) Bid
envelops shall be opened one by one in alphabetical order as follows:
- Check
the seal;
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c) Bid
opening record: information mentioned in Point b of this Clause must be written
in the bid opening record. The bid opening record must be signed by
representatives of the procuring party and bidders that attend the bid opening.
The record must be sent to every bidder that attends the bid opening;
d) The
representative of the procuring entity must sign the original copy of the bid
form, the letter of attorney of the bidder (if any), and the partnership
agreement (if any).
5.
Discussion about bid-envelopes in the first stage:
While
evaluating bid-envelopes in the first stage, according to requirements in the
invitation for bids and proposals of bidders in the bid-envelopes, the
procuring entity shall discuss with each bidder in order to clarify the
technical and financial requirements of the contract, which is necessary for
completion of the invitation for bids at the second stage. The procuring entity
must ensure that information in bid-envelopes in the first stage of bidders is
not revealed.
Article 46. Preparing, organizing the second stage of
bidding
1. Making
the invitation for bids in the second stage:
a) Basis for
making invitation for bids:
Apart
from the basis specified in Clause 1 Article 12 of this Decree, when making the
invitation for bids in the second stage, it is required to refer to proposals
of bidders that participate in the first stage.
b)
Contents of the invitation for bids:
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2.
Evaluating and approving the invitation for bids:
a) The
invitation for bids must be evaluated in accordance with Article 105 of this
Decree before it is approved;
b) The approval
for invitation for bids must be granted in writing in accordance with the
report on evaluation of the invitation for bids.
3.
Holding the bidding:
a) Every
bidder who has submitted the bid-envelope in the first stage shall receive the
invitation for bids in the second stage. The invitation for bids in the second
stage shall be issued, adjusted, and clarified in accordance with Clause 2
Article 14 of this Decree;
b)
Preparing, submitting, receiving, managing, adjusting, and withdrawing
bid-envelopes:
Bid-envelopes
shall be prepared, submitted, received, managed, adjusted, and withdrawn in
accordance with Clause 3 Article 14 of this Decree.
4. Bid
opening:
Bid-envelopes
shall be opened in accordance with Clause 4 Article 14 of this Decree.
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1.
Bid-envelopes shall be evaluated in accordance with the rules in Article 15 of
this Decree.
2.
Bid-envelopes shall be clarified in accordance with Article 16 of this Decree.
3. Error
correction and adjustment of deviations shall be carried out in accordance with
Article 17 of this Decree.
4.
Evaluation of bid-envelopes and contract negotiation shall be carried out in
accordance with Article 18 and Article 19 of this Decree.
Article 48. Submitting, verifying, approving, and
announcing contractor selection result; drafting and concluding contract
1. The
result of contractor selection shall be submitted, verified, approved, and
announced in accordance with Article 20 of this Decree.
2.
Drafting and concluding the contract:
The
contract between both parties must conform to the decision to approve the
contractor selection result, the contract negotiation record, the bid-envelope,
the invitation for bids, and relevant documents.
Section 2: TWO-STAGE TWO-EVELOPE PROCEDURES
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1.
Depending on the scale and nature of the contract, the short-listing method may
be employed to invite capable and experienced contractors that satisfy the
requirements of the contract to bid for the contract. The employment of
short-listing method shall be decided by a competent person, and must be
specified in the bidding plan; bidders shall be short-listed in accordance with
Article 22 of this Decree.
2. Making
the invitation for bids of the first stage:
a) The
basis for making the invitation for bids is specified in Clause 1 Article 12 of
this Decree;
b)
Contents of the invitation for bids:
The
invitation for bids must specify criteria for evaluating bid-envelopes, including
criteria for evaluating bidders’ competence and experience (If the bidders have
undergone prequalification, the criteria for evaluating bidders’ experience may
be omitted in the invitation for bids; however, bidders must be requested to
update info about their competence), criteria for technical evaluation; request
for bidders’ financial proposals, and relevant contents mentioned in Clauses 2,
3, 4, 5, 7, 8 of Article 12, and Article 24 of this Decree. The invitation for
bids must not contain any clause that restricts the participation of bidders or
favor certain bidders, which creates unfair competition.
3.
Evaluating and approving the invitation for bids:
a) The
invitation for bids must be evaluated in accordance with Article 105 of this
Decree before it is approved;
b) The
approval for invitation for bids must be granted in writing in accordance with
the report on evaluation of the invitation for bids.
Article 50. Holding the first stage of bidding
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2.
Issuing, adjusting, clarifying the invitation for bids:
The
invitation for bids shall be issued, adjusted, and clarified in accordance with
Clause 2 Article 14 of this Decree.
3.
Preparing, submitting, receiving, managing, adjusting, and withdrawing
bid-envelopes:
Bid-envelopes
shall be prepared, submitted, received, managed, adjusted, and withdrawn in
accordance with Clause 3 Article 14 of this Decree.
4.
Opening technical proposals:
Technical
proposals shall be opened in accordance with Clause 4 Article 26 of this
Decree. Financial proposals shall be opened in the second stage.
5.
Evaluation of technical proposals:
a)
Technical proposals shall be evaluated in accordance with Article 28 of this
Decree.
b) While
evaluating technical proposals, according to requirements in the invitation for
bids and technical proposals of bidders, the procuring entity shall discuss
with each bidder in order to make technical adjustment to the invitation for bids.
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Article 51. Preparing, organizing the second stage of
bidding
1. Making
the invitation for bids in the second stage:
a) Basis
for making invitation for bids:
Apart
from the basis specified in Clause 1 Article 12 of this Decree, when making the
invitation for bids in the second stage, it is required to refer to the
discussions with bidders that participate in the first stage;
b)
Contents of the invitation for bids:
The
invitation for bids in the second stage is made based on the invitation for
bids in the first stage and must conform to technical adjustments agreed with
bidders.
2.
Evaluating and approving the invitation for bids:
a) The
invitation for bids must be evaluated in accordance with Article 105 of this
Decree before it is approved; only the contents related to technical
adjustments compared to the invitation for bids in the first stage shall be
evaluated;
b) The
approval for invitation for bids must be granted in writing in accordance with
the report on evaluation of the invitation for bids.
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Every
bidder who satisfies technical requirements in the first stage shall receive
the invitation for bids in the second stage. The invitation for bids in the
second stage shall be issued, adjusted, and clarified in accordance with Clause
2 Article 14 of this Decree.
4.
Preparing, submitting, receiving, managing, adjusting, and withdrawing
bid-envelopes:
Bid-envelopes
shall be prepared, submitted, received, managed, adjusted, and withdrawn in
accordance with Clause 3 Article 14 of this Decree. A bid-envelope consists of
a technical proposal and a financial proposal as requested in the invitation
for bids in the second stage, which are conformable with technical adjustments.
5. Bid
opening:
a) Bids
shall be opened publicly within 01 hours from dead line for bid submission.
Only open the bid-envelopes received by the procuring entity before the bid
closing time as required by the invitation for bids in the presence of
representatives of bidders during the bid opening ceremony, regardless of the
presence of the bidders;
b) Bids
shall be opened one by one in alphabetical order as follows:
- Request
the representative of each bidder who participates in the bid opening to
confirm the inclusion of letter of price reduction in their financial proposal
in the first stage and the bid-envelope in the second stage;
- Check
the seals of the envelopes that contain financial proposals in the first stage,
financial proposals in the first stage of the bidders that participate in the
second stage, and bid-envelopes of the bidders that participate in the second
stage of bidding;
- Open
the financial proposals in the first stage of the bidder that participate in
the second stage, and open the bid-envelopes in he second stage, each of which
consists of a technical proposal and a financial proposal in the second stage,
which are conformable with technical adjustments;
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d) The
representative of the procuring entity must sign the original copy of the bid
form, the letter of price reduction (if any), the letter of attorney of the
bidder (if any), the tender guarantee; the financial proposal, and other
contents of each bid-envelope.
Article 52. Evaluation of bid-envelopes and contract
negotiation in the second stage
1.
Evaluation of bid-envelopes and contract negotiation in the second stage shall
be carried out in accordance with Article 18 and Article 19 of this Decree. The
technical contents that have been concurred with in the first stage shall not
be evaluated again.
2. Every
bidder who satisfies technical requirements in the second stage shall have
their financial proposal evaluated. Financial evaluation shall be carried out
in consideration of the bidder’s financial proposal in the first stage and financial
proposal in the second stage, technical proposal in the first stage, and
technical adjustments proposed by the bidder in the second stage.
Article 53. Submitting, verifying, approving, and
announcing contractor selection result; drafting and concluding contract
1. The
result of contractor selection shall be reported, verified, approved, and
announced in accordance with Article 20 of this Decree.
2.
Drafting and concluding the contract:
The
contract between both parties must conform to the decision to approve the
contractor selection result, the contract negotiation record, the bid-envelope,
the invitation for bids, and relevant documents.
Chapter V
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Section 1: NO-BID CONTRACT AWARDING
Article 54: Limits on no-bid contract awarding
Limits on
no-bid contract awarding prescribed in Point e Clause 1 Article 22 of the Law
on Bidding:
1.
Contracts for consulting services, non-consulting services, and public
services: VND 500 million; contracts for goods procurement, construction,
installation, procurement of medicines, medical equipment, public procurement,
mixed contracts: VND 01 billion;
2.
Contracts for regular procurements: VND 100 million.
Article 55. Standard process of no-bid contract awarding
1.
Preparation for contractor selection:
a) Making
the request for proposals:
The
request for proposals must be made in accordance with Clause 1 Article 12 of
this Decree. The request for proposals shall contain summary of the
project/contract; instructions on preparation and submission of the proposal;
requirements with regard to the contractor’s competence and experience;
criteria for technical evaluation and price determination. The contractor’s
competence and experience shall be assessed as satisfactory or unsatisfactory;
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- The
request for proposals must be evaluated in accordance with Article 105 of this
Decree before it is approved;
- b) The
approval for invitation for bids must be granted in writing in accordance with
the report on evaluation of the request for proposals.
- The
eligible contractor defined in Points a, b, c, d, e and h Clause 1 Article 5 of
the Law on Bidding, who is experienced and capable enough to execute the
contract, shall receive the request for proposals.
2.
Contractor selection:
a) The
request for proposals shall be issued to the selected contractor;
b) The
contractor shall prepare and submit the proposal as requested in the request
for proposals.
3.
Proposal evaluation and negotiation:
a) The
proposal shall be evaluated in accordance with the criteria specified in the
request for proposals. During the evaluation, the procuring entity shall
request the contractor to enter into a negotiation, clarify, or adjust
information in the proposal in order to prove that the contractor meets all
requirements with regard to experience, competence, punctuality, quality,
technical solutions, and administration serving the contract execution;
b) The
contractor shall be selected when all of the following requirements are
satisfied: the contractor has a valid proposal; the bidder’s experience,
competence, and technical proposal satisfy requirements in the request for
proposals; the quoted prices do not exceed the approved estimates.
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5.
Drafting and concluding the contract:
The
contract between both parties must conform to the decision to approve the
no-bid contract, the contract negotiation record, the proposal, the request for
proposals, and relevant documents.
Article 56. Shortened process of no-bid contract awarding
1. The
shortened process is applied to contracts defined in Point a Clause 1 Article
22 of the Law on Bidding, except for those that must be executed to ensure
state secrets:
The
investor or the regulatory body in charge of the contract shall appoint an
experienced and capable contractor to execute the contract. Within 15 days from
the appointment, both parties must complete the no-bid contract awarding
procedures, including: preparing and sending the draft contract to the
contractor, which specifies the tasks, schedule, quality, and corresponding
value, then concluding the contract. According to the result of contract
negotiation, the investor or the regulatory body shall approve the no-bid
contract and sign the contract with the selected contractor. The contractor
selection shall be announced in accordance with Point d Clause 1 Article 7 and
Point c Clause 1 or Point b Clause 2 Article 8 of this Decree.
2. If the
contract does not exceed the limits on no-bid contracts prescribed in Article
54 of this Decree:
a) In
consideration of the targets, tasks, and approved estimates, the procuring
entity shall prepare and send the draft contract to the contractor, who is
considered experienced and capable enough to execute the contract by the
investor. The draft contract shall specify the tasks, schedule, quality,
corresponding value, and relevant contents;
b) Based
on the draft contract, the procuring entity and the selected contractor shall
enter into a negotiation and complete the contract, which is the basis for
approving the contractor selection and contract conclusion;
c)
Contract conclusion:
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Section 2: Shopping
Article 57: Scope of shopping
1.
Standard process of shopping applies to any of the contracts defined in Clause
1 Article 23 of the Law on Bidding, the value of which does not exceed VND 05
billion.
2.
Shortened process of shopping applies to any of the contracts defined in Point
a Clause 1 Article 23 of the Law on Bidding whose value does not exceed VND 500
million; any of the contracts defined in Point b and Point c Clause 1 Article
23 of the Law on Bidding whose value does not exceed VND 1 billion; and regular
procurement contracts whose value does not exceed VND 200 million.
Article 58. Standard process of shopping
1.
Preparation for contractor selection:
a) Making
the request for proposals:
The
request for proposals must be made in accordance with Clause 1 Article 12 of
this Decree. The request for proposals shall contain summary of the
project/contract; instructions on preparation and submission of the proposal;
requirements with regard to the contractor’s competence and experience;
criteria for technical evaluation and determination of lowest prices. The
contractor’s competence and experience shall be assessed as satisfactory or
unsatisfactory;
b)
Evaluating and approving the request for proposals:
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- The
approval for the request for proposals must be granted in writing in accordance
with the report on evaluation of the request for proposals.
2.
Contractor selection:
a) The
procuring entity shall post the request for offers in accordance with Point d
Clause 1 Article 7 and Point b Clause 1 or Point a Clause 2 Article 8 of this
Decree.
The
request for proposals shall be issued to any bidder that wishes to participate
by the deadline written in the request for offers (at least 03 working days
from the day on which the request is posted on the national procurement system
or the Vietnam Public Procurement Review Journal);
b) The
request for proposals shall be adjusted and clarified in accordance with Clause
2 Article 14 of this Decree;
c)
Bidders shall send their proposals to the procuring entity directly or by post.
Each bidder may submit only one proposal;
d) The
procuring entity is responsible for protect the confidentiality of information
in the proposals submitted by bidders. Right after the deadline for submitting
proposals, the procuring entity shall open the proposals and make a bid opening
record, which contains: names of bidders, offered prices, validity periods of
proposals; values and validity periods of tender guarantee; contract duration.
This record shall be sent to every bidder that has submitted their proposals.
3.
Evaluation of Proposal evaluation and negotiation:
a) The
procuring entity shall evaluate the proposals submitted. A bidder is “passed”
if that bidder’s proposal is valid, the bidder’s experience and competence are
satisfactory, and all technical requirements are satisfied.
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c) The
contract negotiation shall be carried out in accordance with Article 19 of this
Decree.
4.
Reporting, verifying, approving, and announcing contractor selection result:
The
result of contractor selection shall be reported, verified, and announced in
accordance with Article 20 of this Decree.
5.
Drafting and concluding the contract:
The contract between both parties must conform to the
decision to approve the result of shopping, the contract negotiation record,
the proposal, the request for proposals, and relevant documents.
6.
Schedule for standard process of shopping:
a) The
minimum time limit for preparing the proposal is 05 working days from the day
on which the request for proposals is issued;
b) If the request for proposals must be adjusted, the
procuring entity must notify the bidder at least 03 working days before the
deadline for submitting proposals;
c)
Proposals shall be evaluated within 20 days from the bid opening date. Then,
the procuring entity shall make a request for approval for the result of
contractor selection, which is enclosed with the report on proposal evaluation.
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dd) The
result of contractor selection shall be approved within 05 working days from
receipt of request for approval from the procuring entity and the verification
report from the verifying unit;
e) Other
deadlines are specified in Clause 1 Article 12 of the Law on Bidding.
Article 59. Shortened process of shopping
1.
Preparing and sending the request for proposals:
a) The
request for quotation shall specify the tasks, technical requirements, validity
period of the quotation, quotation submission date, requirements with regard to
warranty, maintenance, training, transfer, contract drafting, time for
preparation and submission of the quotation (at least 03 working days from the
date of issue of the request for quotation) and other relevant information.
Guarantee for participation in bidding shall be omitted;
b) After
the request for quotations is approved, the procuring entity shall post it on a
provincial newspaper, or the national procurement system, or send it directly
to at least 03 capable bidders. If the request
for quotations is send directly, the procuring entity shall send the request to
any bidder that wishes to offers their quotations by the deadline for
submitting quotations. The request for quotations shall be issued free
of charged and sent directly, by post, email, or fax.
2.
Submitting and receiving quotations:
a) Each
contractor shall prepare and submit 01 quotation as requested. The quotation
may be submitted directly, by post, email, or fax;
b) The
procuring entity is responsible for protect the confidentiality of information
in the quotations submitted by bidders. Right after the deadline for submitting
quotations, the procuring entity make a note of receipt of quotations submitted
by the deadline, which specify information such as: contains: names of bidders,
quoted prices, validity periods of quotations. This note shall be sent to every
bidder who has submitted their quotation.
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a) The
procuring entity shall compare the quotations according to the request for
quotations. Any quotation that satisfies all requirements in the request and
the quoted price in which is lowest and does not exceed the contract value
after error correction, adjustment of deviation, and deduction of discount (if
any) shall be selected;
b) During
the evaluation, procuring entity may invite the bidder that offers the lowest
price after error correction, adjustment of deviation, and deduction of
discount (if any) to enter into a contract negotiation.
4.
Reporting, verifying, approving, and announcing contractor selection result:
The
result of contractor selection shall be reported, verified, and announced in
accordance with Article 20 of this Decree.
5.
Drafting and concluding the contract:
The
contract between both parties must conform to the decision to approve the
result of shopping, the contract negotiation record, and relevant documents.
6.
Schedule of shortened process of shopping:
a)
Quotations shall be evaluated within 10 days from the bid opening date. Then,
the procuring entity shall make a request for approval for the result of
contractor selection, which is enclosed with the report on quotation
evaluation.
b) The
result of contractor selection shall be verified within 04 working days from
the day on which the request for verification is received;
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Article 3: DIRECT PROCUREMENT
Article 60: Direct procurement process
1.
Preparation for contractor selection:
a) Making
the request for proposals:
The
request for proposals must be made in accordance with Clause 1 Article 12 of
this Decree. The request for proposals shall contain the summary of the
project/contract; request that the contactor update information about their
competence; requirements with regard to punctuality and commitment to provide
technically satisfactory goods with high quality as described in the invitation
for bids, and requirements for the unit prices. If goods in the direct
procurement contract is one of those in a similar contract that was signed
earlier, the value of such goods must be lower than 130% of the value of the
goods in the earlier contract;
b) The
request for proposals must be evaluated in accordance with Article 105 of this
Decree before it is approved;
c) The
approval for the request for proposals must be granted in writing in accordance
with the report on evaluation of the request for proposals.
2. The
request for proposals shall be issued to the selected contractor; If this contractor is not capable of performing the
direct procurement contract, the request for proposals shall be issued to
another bidder who satisfies the requirements in Clause 3 Article 24 of the Law
on Bidding.
3. The
contractor shall prepare and submit the proposal as requested.
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a)
Proposal evaluation:
- Check
information about techniques and prices;
- Update
information about the bidder’s competence;
- Assess
the progress, goods supply solution, technical solutions, and measures to
perform the contract;
- Other
contents (if any).
b) During
the evaluation, the procuring entity shall request the contractor to enter into
a negotiation, clarify information in the proposal in order to prove that the
contractor meets all requirements with regard to experience, competence,
punctuality, quality, technical solutions, and measures to perform the
contract;
c) The
procuring entity must ensure that the prices for items of the direct
procurement contracts do not exceed the prices for similar items of an earlier
contract, and that they are conformable with market prices at the time of
contract negotiation.
5.
Reporting, verifying, approving, and announcing contractor selection result:
a) The result of contractor selection must be verified in
accordance with Clause 1 and Clause 4 Article 106 of this Decree before it is
approved;
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c) The result of contractor selection shall be notified to
every bidder that submits the proposal, and shall be disclosed in accordance
with Point d Clause 1 Article 7 and Point c Clause 1 or Point b Clause 2
Article 8 of this Decree.
6.
Drafting and concluding the contract:
The contract between both parties must conform to the
decision to approve the result of direct procurement, the contract negotiation
record, the proposal, the request for proposals, and relevant documents.
Section 4: SELF-SUPPLY
Article 61. Preconditions
The
employment of self-supply method must be approved in the contractor selection
plan in accordance with Article 25 of the Law on Bidding, and satisfy
preconditions below:
1. The
licensed business lines are suitable for the contract requirements;
2. The
ability to mobilize manpower and equipment to ensure punctuality must be proven
in the self-supply plan;
3. The
unit appointed to perform the contract must not transfer any part thereof if
its value is 10% of the contract value or higher than VND 50 billion, whichever
come first.
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1.
Preparing the self-supply plan and draft the contract or assignment note:
The
self-supply plan shall specify the tasks, value, duration, quality thereof, the
draft contract or assignment note. If the contract is performed by a financially
dependent unit, the plan must include the draft contract. If a financially dependent unit is not available, the
plan must include a draft of the assignment note, which assigns an internal
unit to perform the contract.
2.
Completing the self-supply plan; negotiating, completing the contract or
assignment note:
Discuss
the information that is not clear or conformable in the self-supply plan, the
draft contract, or the assignment note, and other necessary contents.
3.
Signing the contract or assignment note:
The
procuring entity shall sign the contract or assignment note with a unit to
perform the contract.
4. If
specialized law prescribes that the contract performance must be supervised,
the procuring entity must select a supervisory contractor who is legally and
financially independent to supervise the contract performance; If specialized
laws do not require this or an independent supervisory contractor is not
available because the contract has to be performed in an remote area or the
contract value is below VND 01 billion, the procuring entity shall supervise
the contract performance itself.
Chapter VI
SELECTION OF CONTRACTORS FOR MINOR
CONTRACTS OR CONTRACTS PARTICIPATED BY LOCAL COMMUNITIES
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Article 63. Limits on minor contracts
A minor
contract is a contract for provision of non-consulting services or goods
purchase valued at up to VND 10 billion; a construction contract or mixed
contract valued at up to VND 20 billion.
Article 64. Selection of contractors for minor contracts
1. The
contractor selection process applied to minor contracts is the same at that
specified in Section 1 Chapter II and Chapter V of this Decree.
2.
Contractor selection schedule:
a) The
invitation for bids shall be issued within the time limits in the bidding
notice, which is not shorter than 03 working days from the day on which it is
posted on the national procurement network or the Vietnam Public Procurement
Review Journal;
b) The
time limit for preparing the bid-envelope shall not be shorter than 10 days
from the date of issue of the invitation for bids;
c) When
the invitation for bids must be adjusted, the procuring entity must notify the
bidders at least 03 working days before the deadline for submitting bids in order
for them to have enough time to prepare their bid-envelopes;
d)
Bid-envelopes shall be evaluated within 25 days from the bid opening date, then
the procuring entity shall submit a written request for approval for the
contractor selection result, which is enclosed with a report on contractor
selection result;
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e) The
g) Other
deadlines are specified in Clause 1 Article 12 of the Law on Bidding.
3. The
value of tender guarantee varies from 1% to 1.5% of the contract value; the
value of performance guarantee varies from 2% to 3% of the agreed price.
Section 2: SELECTION OF CONTRACTORS FOR CONTRACTS
PARTICIPATED BY LOCAL COMMUNITIES
Article 65. Eligibility of local communities, associations,
group of workers to participate in performance of contracts
1. A
local community, association, or group of workers is considered eligible to
participate in performance of any of the contracts prescribed in Article 27 of
the Law on Bidding when its member performs the contract and benefits from it.
2. The
representative of the local community, association, or group of workers must be
capable of civil acts, not facing any criminal prosecution, and is designated
by other members to sign the contract on their behalf.
Article 66. Selection of a local community, association, or
group of workers as a contractor
1. The
investor shall draft contract shall specify the tasks, schedule, quality,
contract value, rights and obligations of both parties.
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3. The
interested communities, associations, or groups of workers shall study the
draft contract and prepare introduction documents, specifying the members’
names, ages, competence, and experience, which suit the demands of the
contract.
4. The
investor shall invite the best community, association, or group of workers to
enter into a contract negotiation.
If there
is only one community, association, or group of workers shows their interest,
the investor shall consider giving the contract to such community, association,
or group of workers. If the contract cannot be given to a community or
association, it shall be given to a group of worker.
5. The
contract shall be concluded within 30 days from the day on which the invitation
is announced.
Article 67. Advance, payment, project supervision and
approval
1. The
local community, association, or group of worker shall receive advance and
payment from the investor in cash or by wire transfer via a representative
thereof in accordance with instructions of the Ministry of Finance.
2.
Investor shall supervise the construction, the People’s Committee of the
commune and other associations shall participate in the supervision.
3. The
investor shall carry out an inspection and consider approving the construction
after it is finished. Participants in the inspection:
a) A
representative of the investor;
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c)
Representatives of the community that benefits from the construction;
d) Other
participants decided by the investor.
Chapter VII
BULK PURCHASING, REGULAR PURCHASES,
PURCHASES OF MEDICINES, MEDICAL EQUIPMENT, AND PUBLIC PROCUREMENT
Section 1: BULK PURCHASING
Article 68. Rules for bulk purchasing
1. The
purchases must be made via a unit specialized in bulk purchasing (hereinafter
referred to as bulk-purchasing unit) of a Ministry, ministerial agency,
Governmental agency, a central agency, the People’s Committee of a province, or
a company. If the bulk-purchasing unit is not capable, it shall hire a
professional bidding organizer to select a contractor.
2. With
regard to goods and services on the list of goods/services that must be
purchased in bulk, the buyer shall recognize the result of contractor
selection, the framework agreement, and sign a contract with the selector
contractor via shopping pursuant to the framework agreement. If the contract is
signed with a contractor other than that selected via shopping, the contract
shall not be paid for.
3.
Application of online bidding to bulk purchasing shall be carried out under the
roadmap approved by the Prime Minister.
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Article 69. Responsibilities to bulk purchasing
1. The
bulk-purchasing unit shall fulfill the obligations in Article 74 and Article 75
of the Law on Bidding. Regulations in Clause 2 Article 74 and Point c Clause 2
Article 75 of the Law on Bidding shall be implemented as follows:
a)
Directly sign a contract with the selected contractor as prescribed in Point a
Clause 3 Article 44 of the Law on Bidding;
b) Sign a
written agreement as prescribed in Point b Clause 3 Article 44 of the Law on
Bidding.
2. The
entity superior to the bulk-purchasing unit shall discharge its duties
prescribed in Article 73 of the Law on Bidding.
Article 70. Overall bulk purchasing process
1.
Overall bulk purchasing process:
a) Survey
the needs;
b) Make,
evaluate, and approve the contractor selection plan;
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d) Carry
out the contractor selection;
dd)
Evaluate bid-envelopes and negotiate the contract;
e)
Verify, approve, and announce the result of contractor selection;
g)
Complete and sign the framework agreement;
h)
Complete, sign, and perform the contract with the selected contractor. If the
bulk-purchasing unit directly signs a contract with the selected contractor,
the framework agreement mentioned in Point g of this Clause may be omitted;
i) Pay
for and finalize the contract.
2.
Depending on the scale and characteristics of the contract, the bulk-purchasing
process may be divided into multiple parts, each of which may be performed by a
separate contractor.
Article 71: List of goods and services purchased in bulk
1. Goods
and services shall be put on the list of goods and services purchased in bulk
when:
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b) Goods
or services must be consistent and modern.
2.
Responsibility to issue the list of goods/services purchased in bulk:
a) The
Ministry of Finance shall issue to issue the national list of goods/services
purchased in bulk. The Ministry of Health shall issue the list of medicines
purchased in bulk;
b)
Ministries, regulatory bodies, local governments and companies shall issue
their own lists of goods/services purchased in bulk.
Article 72. Contents of the framework agreement
Depending
on the scale and characteristics of the contract, the bulk-purchasing unit
shall specify the contents of the framework agreement in the invitation for
bids, which consist of:
1. The
goods/services provided; quantities of goods/services;
2.
Intended delivery time and location;
3.
Conditions for transfer of goods/services; advances, payments, and contract finalization;
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5.
Warranty, maintenance; training, instructions on using goods/services;
6.
Responsibilities of the goods/services provider;
7.
Responsibilities of the unit that directly signs the sale contract;
8. Responsibilities
of the bulk-purchasing unit;
9.
Effective period of the framework agreement;
10.
Penalties for contract breaches;
11.
Relevant contents.
Section 2: REGULAR PURCHASING
Article 73. Regular purchases
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1.
Purchases of working equipment under government’s regulations on standards and
limits on working equipment of state agencies, officials and civil servants;
2.
Purchases of supplies, tools, and equipment serving regular operation;
3.
Purchases of machinery and equipment serving professional operation, assurance
of occupational safety and fire safety;
4.
Purchases of professional outfits (including payment for materials and
tailoring services);
5.
Purchases of IT products: machines, equipment, accessories, software, and other
IT products, including installation, test run, warranty (if any) IT projects
funded by government budget according to government’s regulations on management
of IT applications funded by government budget.
6.
Purchases of means of transport: cars, bikes, ships, boats, and other vehicles
(if any);
7.
Publications, documents, forms, stamps, books, videos, and propagation products
serving professional operation;
8.
Maintenance, repair of machines, equipment, vehicles; lease of the office
building and other goods; lease of the transmission lines; insurance, supply of
electricity, water; telephone line, and other services;
9.
Consulting services include: consultancy on technology selection; bid-envelope
evaluation, and other consulting services;
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11. Other
goods/services purchased for the purpose of sustaining the normal operation of
the unit.
Article 74. Regular purchase process
The
selection of a contractor for regular purchase must comply with regulations on
selection of contractors for the projects mentioned in Chapter II and Chapter
II of the Law on Bidding.
Section 3: Purchase of medicines and medical equipment
Article 75: PURCHASE OF MEDICINES AND MEDICAL EQUIPMENT
1.
Purchase of medicines by selection of contractor as prescribed in the Law on
Investment must comply with the rules below:
a) The
selected medicines have reasonable prices and satisfy requirements with regard
to quality, delivery, preservation, and relevant clauses;
b) The
selected contractor must supply medicines in accordance with the concluded
contract;
c) The
selected contractor must ensure that the supplied medicines satisfy quality
requirements with regard to all stages of the contract, including raw
materials, manufacture, packaging, delivery, preservation, and transfer;
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dd)
Single-stage two-envelope bidding process may be applied to minor contracts for
medicine supply if both quality and prices of medicines must be considered.
2. The
selection of contractor for supply of medical equipment is similar to the
process applied to goods purchase contracts.
Article 76. Entitlements to medicine purchase
1.
Entitlements to approve the contractor selection plan:
a)
Ministers; Heads of ministerial agencies, Heads of Governmental agencies and
other central agencies; Presidents of the People’s Committee of provinces shall
consider approving the plans for selection of medicines supplier of public
medical facilities under their management;
b) Legal
representatives of non-public medical facilities shall consider approving the
plans for selection of their medicine suppliers if contracts for medical
services covered by health insurance are signed with social insurance
authorities.
2.
Entitlements to approve the contractor selection plan:
a) Heads
of public medical facilities shall consider approving invitations for bids,
requests for proposals, and result of selection of their medicine suppliers;
b) When
buying medicines in bulk as prescribed in Section 1 of this Chapter, the
President of the People’s Committee of the province shall delegate the Director
of the Service of Health to consider approving the invitation for bids and the
selected medicine suppliers of the units under their management as prescribed
in Clause 1 Article 69 of this Decree;
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Article 77. Responsibilities of various authorities to
medicine purchasing
1. The
Ministry of Health shall:
a) Issue
lists of medicines purchased via bidding, medicines purchased in bulk, and
medicines with negotiable prices according to proposals of the National
Medicine Bidding Council;
b) Hold
national bulk purchases of medicines and preside price negotiations;
c)
Formulate a roadmap and provide guidance on purchase of medicines for local
governments, ensure bulk purchases of medicines are nationwide from 2016.
d)
Compile a list of medicines that can be manufactured in Vietnam, which meet the
requirements with regard to effectiveness, prices, and supply, according to
registration numbers, medicine prices declared by domestic manufacturers,
minimum registered quantity according to dosage form and compound, and other
criteria;
dd)
Annually make a short list of medicine manufacturers and suppliers that are
experienced, competent, and reliable, which is the basis for holding selective
bidding.
2. The
National Medicine Bidding Council, the establishment of which is decided by the
Minister of Health, consists of representatives of the Ministry of Health, the
Ministry of Finance, Social Insurance Office, Vietnam Pharmacy Company
Association, and relevant organizations. The Council shall provide the Ministry
of Health with consultancy on:
a)
Compilation of lists of medicines purchased via bidding, medicines purchased in
bulk, and medicines with negotiable prices;
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b)
Selection of medicine suppliers during national price negotiation process;
3. Social
Insurance Office shall:
a)
Participate in the selection of medicines suppliers;
b)
Announce prices of selected medicines and average prices of selected medicines
that are covered by health insurance fund of each hospital, local budget, and
the Ministry of Health on the website of Social Insurance Office.
Article 78. Medicine price negotiation process
1. An
invitation to negotiate shall be sent to medicine suppliers (manufacturers,
suppliers) specifying the location, time, and types of medicines.
2. Based
on the invitation, each invited medicine supplier shall make a quotation for
medicines, which specifies their pharmacology, origins, quantity, offered
prices, delivery clause, and relevant contents.
3. The
negotiation council shall enter into a price negotiation with each medicine
supplier to determine the one that satisfy requirements with regard to quality,
quantity, preservation, delivery, and other relevant requirements pertaining to
specifications, quality, and price determination.
4. If two or more medicine suppliers enter into the price
negotiation, the negotiation council shall request the suppliers to make
another quotation after the negotiation. The request for another quotation must
specify the deadline and location for receiving the quotation, the time for
opening quotations, and invite the suppliers to attend the quotation opening
ceremony. Prices in the new quotation must not
exceed the negotiated prices. The supplier that offers the lowest price shall
win the contract.
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Article 79. Shortened no-bid contract awarding
Medicines
shall be purchased under no-bid contracts in the following cases:
1. The
contract does not exceed the limits on no-bid contracts prescribed in Article
54 of this Decree;
2. The
medicines are rare, urgently needed, but not included in the contractor
selection plan.
3. The
medicines that are used for emergencies (epidemics, natural disasters,
hostilities that seriously threaten patients’ health) are not on the list of
bidding for medicine supply in the year, which is approved by a competent
authority,
4. The
medicines are on the list of bidding for medicine supply in the year, which is
approved by a competent authority, but the result of contractor selection is
not available or no contractor is selected while such medicines are urgently
needed for emergencies;
5. The
medicines are on an approved list of bidding for medicine supply in the year,
but the demand exceeds the plan approved by a competent authority.
Article 80. Criteria for medicine evaluation
1. The
criteria for evaluating bid-envelopes include criteria for evaluating
experience and competence, criteria for technical evaluation, and criteria for
overall evaluation.
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a)
Experience in performing similar contracts; experience in manufacture/sale of
medicines;
b)
Competence in manufacturing and sale; technical infrastructure of the medicine
factory and the medicine storage;
c)
Financial capacity: total assets, total debts, short-term assets, short-term
debts, revenue, profit, value of unfinished contracts, and other criteria for
evaluating the contractor’s financial capacity.
The each
criterion mentioned in Points a, b, and c of this Clause depends on the
requirements of each contract or category of medicines. Any contractor that
satisfies all requirements in this Clause is considered satisfactory in terms
of experience and competence.
3.
Technical assessment criteria: on a scale from 1 to 100 or 1 to 1,000,
particularly:
a)
Medicine quality: 60% to 80%
b)
Packaging, preservation, delivery: 20% to 40%;
c) The
technical proposal is considered technically satisfactory if the technical
score is not smaller than 80%, and the score of quality, packaging,
preservation, delivery is not smaller than 60%.
Article 81. Selection of medicine suppliers and bulk
purchase of medicines
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2. Bulk
purchase of medicines shall comply with Section 1 of this Chapter.
Section 4: SELECTION OF CONTRACTORS SERVING PUBLIC
PROCUREMENT
Article 82. Contractor selection process
The
selection of a contractor serving public procurement is the same as the
selection of a contractor to enter into a contract for non-consulting services
or goods procurements of a project.
Article 83. No-bid contracts for public procurement
1. Public
procurement shall be carried out under a no-bid contract in the cases below:
a) The
value of the public procurement contract does not exceed the limits prescribed
in Clause 1 Article 54 of this Decree;
b) There
is only 01 contractor who satisfies the requirements of the contract for public
procurements.
2.
Conditions for no-bid contract awarding:
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3. Basis
for no-bid contract awarding:
a) A
decision to approve the plan for contractor selection.
b) A
price list of the value of the public procurement contract based on
technical/economic norms and budget limits issued by competent authorities. If
goods/services in the public procurement contract must be valuated, the prices
shall be decided by a specialized authority in accordance with regulations of
law on pricing and relevant laws;
c)
Quantity and quality of goods/services provided, which are approved by a
competent person.
d) Time
for commencement and completion;
dd) The
budget set by a competent person.
4.
Procedures for no-bid contract awarding:
a) The
shortened process of no-bid contract awarding prescribed in Article 56 of this
Decree shall apply to contracts for public services that do not exceed VND 500
million and contracts for public goods that do not exceed VND 01 billion;
b) The
standard process of no-bid contract awarding prescribed in Article 55 of this
Decree shall apply to public procurement contracts other than those mentioned
in Point a of this Clause.
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SELECTING CONTRACTORS ONLINE
Article 84. Scope and roadmap
1.
Selection of contractor online shall apply to consulting services,
non-consulting services, goods procurement, construction & installation,
and mixed contracts that are awarded through open bidding, selective bidding,
shopping, direct procurement, and no-bid contract awarding.
2. Online
contractor selection shall follow the roadmap issued by the Ministry of
Planning and Investment.
Article 85. Rules for selecting contractors online
1. When
selecting contractors online, the procuring entity and bidders shall make a
registration on the national bidding network.
2. Each
procuring entity shall issue free of charge the request for expression of
interest, request for prequalification, invitation for bids, or request for
proposals on the national bidding network.
3. Each
bidder shall submit only one bid-envelope or proposal on the national bidding
network for each contract.
4. The
procuring entity shall open the bids on the national bidding network right
after the deadline for submitting bids. If no bidders are interested, procuring
entity shall request the investor to consider rearranging the online contractor
selection; If fewer than 03 bidders submit their bids, the procuring entity
shall open the bids immediately without following the procedures in Clause 4
Article 117 of this Decree.
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Article 86. Cost of online contractor selection
The cost
of online contractor selection consists of: The fee for participation in the
national bidding network; fee for submission of bid-envelopes or proposals; fee
for contract award; fee for electronic contracts, and fee for using electronic
procurement system. Such cost must comply with instructions of the Ministry of
Planning and Investment and the Ministry of Finance.
Article 87. Registering participation on national bidding
network
1. When
participating in the national bidding network, the registered holders of
digital certificates prescribed in Clause 5 Article 4 of the Law on Bidding
shall register with the network operator .
2. The Ministry
of Planning and Investment shall provide detailed instructions on participants,
registration procedures, required information, and use of digital certificates
on the national bidding network.
Article 88. Online contractor selection process
1. Procuring
entity and bidders shall register their participation in the national bidding
network as prescribed in Article 87 of this Decree.
2. The
procuring entity shall post the notifications of request for expression of
interest, request for prequalification, invitation for bids, or request for
proposals on the national bidding network. Procuring entity must specify their
wanted goods if the contract is a goods procurement contract.
3. The
procuring entity shall issue the notifications of request for expression of
interest, request for prequalification, invitation for bids, or request for
proposals on the national bidding network together with the aforesaid
notifications. In case of discrepancy between the electronic document and
information on the form, the electronic document shall prevail.
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5. The
procuring entity shall open and decode applications for prequalification, EOI
responses, bid-envelopes, and proposals on the national bidding network right
after the deadline for submitting bids. The opening record shall be posted on
the national bidding network right within 02 hours from the deadline for
submitting bids.
6. After
applications for prequalification, EOI responses, bid-envelopes, and proposals
are evaluated, the procuring entity shall post the result of contractor
selection on the national bidding network. The result of contractor selection
shall be publicly posted on the national bidding network after it is approved
in writing.
7. The
Ministry of Planning and Investment shall specify the time and procedures for
selecting contractors online.
Chapter IX
CONTRACT
Article 89. General principles of contracts
1. The
written contracts are civil contracts which assign the parties the
responsibilities to perform the tasks prescribed in such contracts. The valid
contracts which are concluded by the parties and comply with the regulations of
the law are the legal documents that assign the parties the responsibilities
during the execution of such contracts.
2. The
contracts must be drawn up according to the prescribed forms in the invitation
for bid, proposals, and suitable to the conclusion of the contract
negotiations, the results of the selection of contractors according to the
requests of the contracts and guidance given by the regulatory authorities.
3. The
parties can choose referees to settle disputes during the execution of the
contracts before signing such contracts. The disputes needing settled by the
referees must be prescribed in the contracts.
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1. The
contractual prices must be specifically prescribed in the contracts attached to
the management rules about the amendments (if any).
2. The
contractual prices must be specific and conformable with the contractual price
brackets using the prescribed forms in the invitation for bid, request for
proposals and concluded before the contracts are signed.
Article 91. Currency and methods of payment for contracts
1. The
currency used for paying any contract must be specifically prescribed in such
contract and conformable with the requests of the invitation for bid, request
for proposals and the regulations of the law.
2. The
expenditures arising within Vietnam’s territory shall be paid in VND, others
shall be paid in foreign currencies under the regulations in the contract.
3. The
contract can be paid in cash, via wire transfer or other methods agreed by the
parties under the regulations of the law and prescribed in the contract.
Article 92. Advance
1. An
advance on the contract is an amount that is advanced to the contractor to
carry out the contractual tasks.
2. The
advance shall be determined according to the scope and nature of the contract.
A contract must prescribe: the advance, time for advance, advance guarantee,
withdrawal of advance; responsibilities of the parties to administer and use
the advance; revocation of the guarantee if the advance is used for wrong
purposes.
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4.
Regarding the production of high value building components, semi-finished
products and some materials need seasonally storing, the contract must
prescribe the advance plan and the advance to ensure the progress of the
contract.
Article 93. Adjustment to contractual prices workload
1. A
contract must specify the adjustment to the contractual price including the
adjustments, principles, time to calculate the adjustment and database to
calculate the adjustment.
2.
Adjustment to the unit prices:
Any
contract using variable unit prices must specify:
a) The
time to calculate the initial unit price (which is usually fixed 28 days before
the deadline for bid submission) to determine the difference between the
successful unit price and the variable unit prices;
b) The
database to adjust the unit prices of which the price indexes to adjust the
unit prices is the price indexes provided by the General Statistics Office or
the construction price indexes provided by the Ministry of Construction and the
People’s Committees of provinces;
c) Unit
price adjustment formula:
The
science-based unit price adjustment formulas must be conformable with the
contract. The preferable formula is the popular formula such as the formula of
the International Federation of Consulting Engineers (FIDIC), guidance of the
World Bank (WB), Asian Development Bank (ADB).
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a) A
contract must prescribe the principles to adjust the workload if the workload
is not determined at the time such contract is signed;
b) The
increased workload due to the subjective faults of the contractor must not be
adjusted;
c) If the
differential rate of the actual workload and the workload prescribed in the
contractual price list is more than 20%, the parties must reach an agreement on
suitable principles to adjust the unit price which is conformable with the
conditions for the change in the workload when such difference is paid.
d) In
case of the workloads that are not prescribed in the initial conditions for the
change in the contract or the cases requiring the cooperation of two parties in
preventing or minimizing the risks under the responsibility of one party, the
parties shall discuss to find the handling measures.
4. Any expenditure arising or change in the progress must be
reported to the competent authorities for consideration and the contract must
be added appendices which serves as a basis for the implementation.
Article 94. Contract payment
1. A
contractor shall be paid depending on the contractual price and specific
clauses on payment in the contract. If an investor does not make the payment
later than the stipulated time in the contract, (s)he shall be liable to the
late payment interest under the term of the contract.
2. The
payment does not depend on the estimate as well as the currents regulations and
instructions of the State on the limits and unit prices; unit prices in the
invoice for the purchase items such as materials, machinery, equipment and
other items.
3. In
case there are various types of contracts in a contract, each type of contract
shall be applied corresponding payment principles.
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1.
Payment principles:
A lump
sum contract can be paid several times after each inspection in proportion to
each completed workload or can be paid in lump sum after the contractor
completes all of the work in the contract by subtracting the advance (if any)
from the contractual price. In case the specific
payment amount in proportion to each work item or inspection stage cannot be
determined, such amount can be determined based on the rate (%) of the contract
value.
2.
Payment documents on a lump sum contract include:
a) A
record on the inspection of the workload which is confirmed by the contractor,
investor and supervisor (if any). This record shall confirm the completion of
the work, work item and work tasks conformable with the design. It is not
required to confirm the specific completed workload;
b) With
regard to the goods purchase: Depending on the nature of the goods, the payment
documents may include: invoices of the contractor, list of packaged goods,
transportation receipts, insurance form, Certificate of quality, record on the
goods inspection, Certificate of Origin and other relevant documents.
Article 96. Payment for fixed unit price contracts
1.
Payment principles:
a) The
payment is calculated by multiplying the fixed unit price in the contract and
the actual workload that the contractor has completed;
b) With
regard to construction, if the actual workload that the contractor has
completed following the design is less than the workload prescribed in the
contract, the contractor shall be paid the payment for the actual workload. If
the actual workload that the contractor has completed following the design is
more than the workload prescribed in the contract, the contractor shall receive
the payment for such difference using the fixed unit price in the contract;
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2.
Payment documents include:
a) A
record on the inspection of the workload which is confirmed by the contractor,
investor and supervisor (if any);
b) A
confirmation of the adjusted workload in comparison with the workload in the
contract which is confirmed by the representative of the contractor, investor
and supervisor (if any);
c) The
spreadsheet of proposed payment based on the confirmed workload that is
completed and the unit prices in the contract;
d) The
proposal for payment of the contractor specifying the completed workload and
value there of, differences compared to the contract, advances, and amounts
payable;
dd) With
regard to the goods purchase: Depending on the nature of the goods, the payment
documents may include: invoices of the contractor, list of packaged goods,
transportation receipts, insurance form, Certificate of quality, record on the
goods inspection, Certificate of Origin and other relevant documents.
Article 97. Payment for variable unit price contracts
1.
Payment principles:
a) The
payment is calculated by multiplying the variable unit price in the contract
and the actual workload that the contractor has completed;
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c) The
contractor shall receive the payment calculated on the basis of the record on
the inspection of the completed workload which is confirmed by the investor,
supervisor and contractor.
2.
Payment documents include:
a) A
record on the inspection of the workload which is confirmed by the contractor,
investor and supervisor (if any);
b) A
confirmation of the adjusted workload compared with the workload in the
contract which is confirmed by the representative of the contractor, investor
and supervisor (if any);
c) The spreadsheet
of proposed payment based on the confirmed workload that is completed and the
unit prices in the contract or the adjusted unit price prescribed in the
contract;
d) The
proposal for payment of the contractor specifying the completed workload and
value there of, differences compared to the contract, advances, and amounts
payable;
dd) With
regard to the goods purchase: Depending on the nature of the goods, the payment
documents may include: invoices of the contractor, list of packaged goods,
transportation receipts, insurance form, Certificate of quality, record on the
goods inspection, Certificate of Origin and other relevant documents.
Article 98. Payment for time based contracts
1.
Payment principles:
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b) The
relevant expenditures (excluding the salary of the expert prescribed in Point a
this Clause) including: administrative expense of the regulatory unit and
employment of experts (if any); expenditures on transportation, survey, leasing
working office, communication and other expenditures shall be paid by the
payment method prescribed in the contract. The payment for the expenditure must
be specified such as paying the expenditure based on the valid invoices and
documents provided by the contractor or paying such expenditure based on the unit
prices prescribed in the contract.
2.
Payment documents include:
Depending
on the nature of the consultancy, the payment documents may include the record
on the inspection of the result of the consultancy, documents on the progress
on the execution of the contract and relevant documents.
Article 99. Contract finalization
1. A contract shall be finalized when:
a) The
parties fulfill their obligations under the terms of the contract;
b) The
contract is cancelled under the regulations of the law.
2. The
contract finalization shall be recorded in writing and such record must be
signed by both parties. The record on the contract finalization can be filed
separately or part of the record on the final inspection or the record on the
consensus on the end of the contract whose contents conformable to the
responsibilities of the parties prescribed in the contract. The contract shall
be considered to be finalized after 45 days from the day on which the parties
to the contract fulfill their responsibilities prescribed in the abovementioned
record on the contract finalization. If the contract is big and complicated, it
shall be finalized within 90 days.
Chapter X
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Article 100. Responsibilities of Ministers; Heads of
ministerial-level agencies, Governmental authorities, other central
authorities; Presidents of the People’s Committees of provinces
1.
Regarding the projects approved by the Prime Minister of which they are not the
investors:
a) Give
written opinions about the plans to select the contractors as required;
d)
Perform other tasks to select the contractors with the authorization from the
Prime Minister.
2.
Regarding the projects approved by themselves:
a)
Approve the plans to select the contractors;
b)
Perform other tasks under the responsibilities of the competent persons
prescribed in Clause 73 of the Law on Bidding.
3.
Regarding the projects of which they are the investors:
a)
Approve the invitation for bid, request for proposals;
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c)
Perform other tasks under the responsibilities of the investors prescribed in
Clause 74 of the Law on Bidding.
Article 101. Responsibilities of Presidents of the People’s
Committees of districts and communes and Heads of other local authorities
1.
Regarding the projects approved by themselves:
a)
Approve the plans to select the contractors;
b)
Perform other tasks under the responsibilities of the competent persons
prescribed in Clause 73 of the Law on Bidding.
2.
Regarding the projects of which they are the investors:
a)
Approve the invitation for bid or EOI request;
a)
Approve the selected contractors;
c)
Perform other tasks under the responsibilities of the investors prescribed in
Clause 74 of the Law on Bidding.
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Article 102. Responsibilities of Board of Directors and
Chiefs of enterprises
1.
Regarding the projects approved by themselves:
a)
Approve the plans to select the contractors;
b)
Perform other tasks under the responsibilities of the competent persons
prescribed in Clause 73 of the Law on Bidding.
2.
Regarding the projects of which they are the investors:
a)
Approve the invitation for bid or EOI request;
a)
Approve the selected contractors;
c)
Perform other tasks under the responsibilities of the investors prescribed in
Clause 74 of the Law on Bidding and with the authorization.
Article 103. Responsibilities of Board of Directors of and
Chiefs of joint ventures , joint-stock companies and legal representatives of
parties to business agreements
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a)
Approve the plans to select the contractors;
b)
Perform other tasks under the responsibilities of the competent persons
prescribed in Clause 73 of the Law on Bidding.
2.
Regarding the projects of which they are the investors:
a)
Approve the invitation for bid or EOI request;
a)
Approve the selected contractors;
c)
Perform other tasks under the responsibilities of the investors prescribed in
Clause 74 of the Law on Bidding.
Article 104. Responsibilities of assessing units
1. The
Ministry of Planning and Investment shall assess:
a) The plans to select the contractors within the approval
authority of the Prime Minister;
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2. The
provincial Departments of Planning and Investment shall assess:
a) The
plans to select the contractors regarding the projects approved by the
Presidents of the People’s Committees of provinces, except for the contracts
prescribed in Clause 3 this Article;
b) The
EOIs, invitations for prequalification, invitation for bid, request for
proposals, result of the evaluation of EOIs, applications for prequalification,
result of the selection of contractors regarding the contracts of the projects
of which the People’s Committees of provinces are the investors when required,
except for the contracts prescribed in Clause 3 this Article.
3. The
provincials Departments of Health shall evaluate the plans to select the
contractors regarding the contracts for purchase of medicines and medical
materials that are approved by the Presidents of the People’s Committees of
provinces.
4. The
authorities and organizations that is assigned by the Ministers, Heads of
ministerial-level authorities, Governmental authorities, other central
authorities and Chiefs of enterprises to assess:
a) The
plans to select the contractors regarding the projects within the authority of
the Ministers, Heads of ministerial-level authorities, Governmental
authorities, other central authorities and Chiefs of enterprises;
b) The
EOI requests, invitations for prequalification, invitation for bid, EOI
request, result of the evaluation of EOIs, applications for prequalification,
result of the selection of contractors regarding the contracts of the projects
of which the Ministries, ministerial-level authorities, Governmental
authorities, other central authorities and enterprises when required.
5.
Divisions of districts in charge of plans and finance shall evaluate the plans
to select the contracts regarding the projects within the authority of the
Presidents of the People’s Committees of districts.
6.
Relevant assisting bodies shall evaluate the plans to select the contractors
regarding the projects within the authority of the Presidents of the People’s
Committees of communes, heads of other local authorities, Boards of Directors
of joint ventures, joint-stock companies and legal representatives of the
parties to the business agreements.
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In case
such assigned organizations or individuals are ineligible, the investors shall
appoint qualified advisory organizations to conduct assessment. In any case,
the investors must be responsible for assessing the EOI requests, invitations
for prequalification, invitation for bid, request for proposals, results of the
evaluation of EOI response, evaluation of applications for prequalification and
the selection of contractors.
Article 105. Evaluation of EOI requests, invitations of
prequalification, invitation for bid, request for proposals
1. An
application for evaluation and approval includes :
a) An
application form for the evaluation of the EOI request, invitation for
prequalification, request for proposals of the procuring entity;
b) Drafts
of EOI request, invitations for prequalification, invitation for bid, request
for proposals;
c)
Photocopies of : Decision on approval for the project and budget estimate,
Decision on approval for the plan to select the contractor;
d)
Relevant document.
2.
Evaluation tasks include:
a) Reviewing
the documents which serve as a basis to file the EOI request, invitation for
prequalification, invitation for bid, request for proposals;
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c) Review
different opinions (if any) of the organizations and individual filing the EOI
request, invitation for prequalification, invitation for bid, request for
proposals;
d) Other
relevant tasks.
3. A
report on evaluation includes:
a) A
summary of the project and contract, legal grounds for compiling the EOI
request, invitations for prequalification, invitation for bid, request for
proposals;
b)
Comments and opinions of assessing units about the legal grounds, adherence to
the regulations of the law on bidding and other law provisions; consensus about
the drafts of the EOI request, application for prequalification, invitation for
bid and request for proposals;
c)
Suggestions of the assessing unit for the approval for the EOI request,
invitation for prequalification, invitation for bid, request for proposals;
handling measures in case the EOI request, invitation for prequalification,
invitation for bid, request for proposals do not comply with the regulations of
the law on bidding and other law provisions; solutions to the cases in which
the EOI request, invitation for prequalification, invitation for bid, request
for proposals cannot be approved due to lack of information;
d) Other
opinion (if any).
4. Any
assessing unit can hold a meeting between the parties to deal with the
remaining issues before signing the report on evaluation if necessary.
Article 106. Verification of evaluation result of EOI
responses, applications for prequalification, lists of bidders meeting
technical requirements, result of selection of contractors
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a) The
evaluation result of EOI responses, applications for prequalification, result
of selection of contractors must be verified before they are approved;
b) Only
the result of the selection of contractor shall be verified regarding any
single-stage one-envelope contract;
c) The
list of bidders meeting technical requirements must be verified before it is
approved regarding any single-stage two-envelope contract;
d) With
regard to any two-stage one-envelope, only the result of the selection of
contractor shall be verified in the second stage (there is no verification in
the first stage);
dd) With
regard to any two-stage two-envelope, only the list of bidders meeting
technical requirements shall be verified in the first stage and only the result
of the selection of contractor shall be verified in the second stage and
equivalent to the adjusted technical contents compared with that of the first
stage;
e) The
ranked list of bidders shall not be verified before it is approved, such list
shall be approved when the procuring entity requests;
g) The
verifying unit may hold a meeting between the parties to remedy the remaining
issues before sending the Report on verification if necessary.
2.
Verification of result of the evaluation of EOI responses and applications for
prequalification:
a) An
application for verification and approval includes:
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- A
report on the evaluation result of the EOI response and application for
prequalification;
-
Photocopies of: EOI request, invitation for prequalification, record on the
deadline for submitting bids and bid opening, EOI response, applications for
prequalification of the bidders and other relevant documents.
b) The
verification involves:
-
Verifying the documents which serve as a basis for the EOI request and
prequalification;
-
Checking the compliance with the regulations on the deadlines during the EOI
request and prequalification;
-
Verifying the evaluation of the EOI responses, applications for
prequalification; the compliance with the regulations of the law on bidding and
other relevant law provisions during the evaluation of the EOI responses and
applications for prequalification;
-
Considering different opinions (if any) between the procuring entity and the
expert group; among the members of the expert group;
- Other
relevant tasks.
b) A
report on the verification includes:
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- A brief
summary of the process of the EOI request, prequalification and the request of
the procuring entity for the evaluation result of EOI response and application
for prequalification;
-
Comments and opinions of the verifying unit about the legal grounds, the
compliance with the regulations on bidding and other relevant law provisions;
guarantee of competitiveness, impartiality and transparency during the EOI
request and prequalification; consensus or different opinions about the
evaluation of the EOI response and application for prequalification;
-
Recommendations of the verifying unit about the evaluation result of the EOI
response and application for prequalification; handling measures for
noncompliance with the regulations of the law on bidding and other relevant law
provisions during the EOI request and prequalification; and handling measures
for the cases in which the evaluation result of the EOI response and
application for prequalification can not be concluded due to lack of
information;
- Other
opinions (if any).
3.
Verification of the lists of bidders meeting technical requirements:
a) An
application for verification and approval includes:
- A written
request for the approval for the list of bidders meeting technical requirements
of the procuring entity, of which the opinions of the procuring entity about
the recommendations of the expert group must be specified;
- A
report on the evaluation result of the written technical proposal of the expert
group;
-
Photocopies of: invitation for bid, request for proposals, records on bid
closing and bid opening, written technical proposal of the bidders and other
relevant documents.
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-
Verifying the evaluation of the written technical proposal; compliance with the
regulations of the law on bidding and other relevant law provisions during the
evaluation of such proposal;
-
Considering different opinions (if any) between the procuring entity and the
expert group; among the members of the expert group;
- Other
relevant tasks.
b) A
report on the verification includes:
- A brief
summary of the process of selecting the contractor (from the announcement of
invitation to bid to the submission of the verification of the list of bidders
meeting the technical requirements) and the request of the procuring entity for
the list of bidders meeting the technical requirements;
-
Comments and opinions of the verifying unit about the legal grounds, the
compliance with the regulations on bidding and other relevant law provisions;
guarantee of competitiveness, impartiality and transparency during the
compilation of the list of bidders meeting technical requirements; consensus or
different opinions about the list of bidders meeting technical requirements;
handling measures for the noncompliance with the regulations of the law on
bidding an other relevant law provisions during the evaluation of the written
technical proposal, handling measures for the cases in which the result of the
compilation of the list of bidders meeting technical requirements cannot be
concluded due to lack of information;
- Other
opinions (if any).
4.
Verification of the bidding result:
a) An
application for verification and approval includes:
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- A
report on the evaluation result of the bid-envelop and written proposal of the
expert group;
- A
record on the negotiation of the contract;
-
Photocopies of: invitation for bid, request for proposals, records on bid
closing and bid opening, bid-envelop, written proposals of the bidders and
other relevant documents; cases in which the list of bidders meeting technical
requirements has been verified, only the record on the opening of the financial
proposals and the photocopies of the financial proposals of the bidders meeting
technical requirements.
b) The
verification involves:
-
Verifying the documents which serve as a basis for the selection of contractor;
-
Checking the compliance with the regulations on the deadlines during the
selection of contractor;
-
Verifying the evaluation of the bid-envelopes regarding the single-stage
one-envelope contract, two-stage one-envelope contract and two-stage
two-envelope contract; the compliance with the regulations of the law on
bidding and other relevant law provisions during the evaluation of the
bid-envelopes;
-
Verifying the evaluation of the financial proposals regarding the single-stage
two-envelope contract; the compliance with the regulations of the law on
bidding and other relevant law provisions during the evaluation of the
financial proposals;
-
Checking the compliance with the regulations of the law on bidding and other
relevant law provisions during the negotiation of the contract; checking the
conformity between the result of the contract negotiation with the bidding
result, the ranked list of bidders, invitation for bid, request for proposals
and the bid-envelopes and proposals of the bidders entering into the contract
negotiation;
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- Other
relevant tasks.
b) A
report on the verification includes:
- A
summary of the main contents of the project and contract, the legal grounds for
the selection of the contractor;
- A brief
summary of the selection of the contractor from the short-listing (if any) to
the request for the verification and approval for the bidding result, attached
with the submitted documents prescribed in Clause 2 and Clause 3 this Article;
- A brief
summary of the opinion of procuring entity about the bidding result;
-
Comments and opinions of the verifying unit about the legal grounds and the
compliance with the regulations of the law on bidding and other relevant law
provisions; the guarantee of competitiveness, impartiality and transparency and
economic effectiveness during the selection of contractor; consensus or
different opinions about the bidding result; handling measures for the
noncompliance with the regulations of the law on bidding and other relevant law
provisions during the selection of contractor; measures for cases in which the
bidding result cannot be concluded due to lack of information;
- Other
opinions (if any).
Chapter XI
PROVISION OF TRAINING IN BIDDING,
PROFESSIONAL BIDDING ORGANIZERS AND REQUIREMENTS FOR MEMBERS OF EXPERT GROUPS
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Article 107. Application, verification, recognition and
disqualification of training centers for bidding
1. Any
training center meeting the requirements prescribed in Points a, b and c Clause
1 Article 19 of the Law on Bidding shall submit an application for recognition
as a training center for bidding to the Ministry of Planning and Investment.
2. The
Ministry of Planning and Investment shall form a Council to verify such
application.
3. The
training center confirmed by the Council that is satisfies the requirements
prescribed in Points a, b and c Clause 1 Article 19 of the Law on Bidding shall
be recognized as training center for bidding and published on the national
bidding system.
4. A
training center for bidding shall be deleted from the national bidding system
when it:
a)
changes the transaction office without sending any written notification to the
Ministry of Planning and Investment within 60 days from such change.
b)
employs lecturers that are not listed in the national bidding system to deliver
lectures to the bidding training classes;
c)
provides training unconformable with the framework programme of bidding;
d) issues
Certificates to the persons who do not attending the bidding training classes
or persons who do not satisfies all of the requirements prescribed in Clause 1
Article 111 of this Decree;
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e) does
not send annual reports or irregular reports at the request of the Ministry of
Planning and Investment on its training activities.
Article 108. Provision of training in bidding
1. Any
training center for bidding wishing to offer bidding training courses must:
a) be
listed in the national bidding system;
b) have
classrooms and teaching aids that meet the requirements;
c) have
teaching material conformable with the framework programme under the
regulations of the Ministry of Planning and Investment attaching the dossiers
on tests of fundamental bidding training programme;
d) sign
labor contracts or teaching contracts with lecturers in bidding.
2. A
bidding training course issuing Certificates must be a fulltime course. There
are at most 150 learners in each class. After each course, the Head of the
training center shall issue Training certificates of bidding to the qualified
learners.
3. After
each training course in bidding after which Certificates are issued, the
training center shall send the training result attached with a List of learners
issued with Certificates to the Ministry of Planning and Investment to be
published on the national bidding system.
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Article 109. Requirements for lecturers in bidding
1. Have
at least Bachelor's Degrees in law, technology, and economics.
2. Have
at least 05 continuous years’ experience in bidding or at least 06 years’
experience in bidding (in case of discontinuity in the duration).
3. Have
practice certificates of bidding.
4.
Complete the training courses for lecturers in bidding offered by the Ministry
of Planning and Investment.
Article 110. Application, assessment, recognition and
disqualification of lecturers in bidding
1. Any
lecturer meeting all of the regulations in Article 109 of this Decree shall
send an application for recognition as lecturer in bidding to the Ministry of
Planning and Investment.
2. The
Ministry of Planning and Investment shall form a Council to verify such
application.
3. The
lecturer in bidding confirmed by the Council that (s)he satisfies the
requirements prescribed in Article 109 of this Decree shall be recognized as
lecturer in bidding and published on the national bidding system .
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a) give
lectures following the framework programme prescribed by the Ministry of
Planning and Investment;
b)
sharpen their knowledge and learn the policies if there are new policies;
c) send
annual reports or irregular reports at the request of the Ministry of Planning
and Investment on their teaching of bidding.
5. A
lecturer in bidding shall be deleted from the national bidding system if (s)he:
a) give
lectures unconformable with the framework programme prescribed by the Ministry
of Planning and Investment;
b) does
not learn new knowledge and policies;
c) does
not send annual reports or irregular reports at the request of the Ministry of
Planning and Investment on their teaching of bidding.
Article 111. Requirements for issuance of Training
certificates of bidding and practice certificates of bidding
1. A
learner shall be issued with the Training certificate of bidding if (s)he:
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b) passes
the final exam;
c) is
capable of civil act and not facing any criminal prosecution.
2. A
person shall be issued with the practice certificate of bidding if (s)he:
a) has a
certificate of training in bidding;
b) has at
least a Bachelor’s degree;
c) is
capable of civil acts and not facing any criminal prosecution.
d) has at
least continuous 04 years’ experience in works directly related to the bidding
or at least 05 years’ experience in bidding (in case of discontinuity in the
duration); or directly make or verify the EOI request, invitation for
prequalification, invitation for bid, request for proposals; evaluate the EOI
response, application for prequalification, bid-envelopes, proposals; verify
the evaluation result of EOI response, evaluation result of application for
prequalification and the bidding result of at least 05 large-scale contracts or
10 small-scale contracts;
dd) Pass
the exam held by the Ministry of Planning and Investment.
3. Each
practice certificate of bidding issued by the Ministry of Planning and
Investment shall be effective in 05 years from the issuance. If anyone issued
with the practice certificate of bidding commits any violation against the law
in bidding, their practice certificate shall be revoked depending on the nature
and severity of the violations.
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1. Create
and manage the database of lecturers in bidding, training centers for bidding,
persons issued with Training Certificates and practice certificates of bidding.
2.
Establish and provide the nationwide framework programme, learning and teaching
materials.
3. Give
detailed instructions on application, inspection and recognition of bidding
training centers and lecturers.
4. Hold
examinations to issue the practice certificates of bidding.
5.
Provide training and issue Certificates to the lecturers in bidding.
6.
Provide the forms for Certificates of lecturers in bidding, training
certificates and practice certificates.
7. Issue
the Decision on recognition for training centers meeting the requirements
prescribed in Points a, b and c Clause 1 Article 19 of the Law on Bidding.
8. Issue
Decision on recognition for lecturers meeting requirements prescribed in
Article 119 of this Decree.
9. Issue
Decision on disqualification of bidding training centers and lecturers
committing violations against the regulations in Clause 4 and Clause 5 Article
110 of this Decree.
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11. Summarize the training activities provided by training
centers and lecturers according to the Reports on bidding of the Ministries,
regulatory authorities and local authorities and Reports of the training
centers and lecturers.
Section 2: PROFESSIONAL BIDDING ORGANIZERS
Article 113: Requirements for professional bidding
organizations
1. Such
organizer must have permits for establishment and operation issued by the
competent authorities which allow them to act as bidding agents or bidding
consultancy or organizations in charge of bidding.
2. Employ
the regulatory bodies meeting the professional requirements to perform the
functions and duties as bidding agents, bidding consultancies, or organizations
in charge of bidding.
3. Their
personnel have professional ethics, honesty and impartiality during their work.
4. They
use procedures for management and control of the quality of their work.
Article 114: Consideration, recognition and announcement of
professional bidding organizers’ information
1. Any
organization meeting all of the requirements prescribed in Article 113 of this
Decree shall send an application for recognition as professional bidding
organizer to the Ministry of Planning and Investment.
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3. The
organization approved by the verifying Council shall be recognized as a
professional bidding organizer and announced in the national bidding system.
Article 115: Operation of professional bidding
organizations
1. A
professional bidding organizer is allowed to operate after it is announced in the
national bidding system.
2. A
professional bidding organizer can sign contracts to act as bidding agent or
provider of bidding consultancy for investors and procuring entities.
Section 3: EXPERT GROUP
Article 116: Expert group
1. Each
expert of such group must have a practice certificate of bidding, except for
the persons prescribed in Clause 3 and Clause 4 this Article.
2. An expert group may consist of experts in technology,
finance, commerce, administrative affairs, legality and relevant fields depending
on the nature and complexities of the contract.
3. Any
person other than the persons prescribed in Clause 2 Article 16 of the Law on
Bidding wising to participate in the expert group must:
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b) work
in the field related to the contract;
c) have
deep knowledge about the corresponding contents in the contract;
d) have
at least 03 years’ experience in the field related to economic and technical
contents of the contract.
4. Cases
in which the opinions of other experts are needed, such experts are not
required to have training certificates of bidding.
Chapter XII
HANDLING OF BIDDING CASES AND
CONSIDERATION OF BIDDING PETITIONS
Section 1: HANDLING OF BIDDING CASES
Article 117: Handling of bidding cases
1. If the
value or contents of a contract need adjusting, the plan to select the
contractor must be adjusted under the regulations of the law before the bid
opening (other than the cases prescribed in Clause 2 and Clause 8 this
Article).
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a) If the
approved estimate is higher than the contract value in the plan to select the
contractor but such estimate is lower than the total investment of the project
and the approved budget estimate, the plan to select the contractor shall not
be adjusted. If the approved estimate is higher than the total investment of
the project and the approved budget estimate, the plan to select the contractor
shall be adjusted; if the method for selecting the contractor in such plan is
no longer conformable, such method shall be adjusted;
b) If the
approved estimate is lower than the contract value in the plan to select the
contractor but the method for selecting the contractor in such plan is not
changed, the plan shall not be adjusted; if the method for selecting the
contractor needs adjusting to be conformable with the new value of the contract
according to the approved estimate, the plan shall be adjusted.
3. If
there are fewer eligible short-listed bidders, depending on each contract, such
case shall be handled by:
a) Adding
more bidders to the short-list;
b)
Allowing the invitation for bid to be sent to the short-listed bidders.
4. After
the deadline for submitting bids regarding the opening bidding, limited bidding
or competitive bidding, there are fewer bidders submitting the bid-envelopes
and proposals, such case shall be handled within 04 hours from such deadline by
either:
a)
extending the deadline in order to attract more bidders to submit the
bid-envelopes and proposals. In this case, the new deadline for submitting bids
and corresponding deadline must be specified so that the bidders can adjust the
submitted bid-envelopes and proposals according to the new requirements;
b)
Immediately opening bid-envelopes to carry out evaluation.
5. In case of a contract containing several items:
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b) The
evaluation of bid-envelopes, proposals and consideration for contract award
must ensure that the total successful bid for the contract is the lowest bid
(if the contract is awarded according to the lowest bid); total evaluated price
is the lowest (if the contract is awarded according to the evaluation); overall
score is the highest (if the contract is awarded according to the application
of combined technical and price-based method) and the successful bid for the
contract is lower than the approved price for the contract without compared
with the estimated cost of each item of the contract;
c) In
case there is an item of some items of a contract which no bidders are interest
in or no bidders satisfy the requirements prescribed in the invitation for bid
and request for proposals, the investor shall send a report to the competent
persons to adjust the plan to select the contractor by making the item(s) into
an independent contract whose value is the total estimated cost of such
item(s); the selection of contractors meeting the technical requirements with
regard to the items to which bidders submitting bid-envelopes must ensure the
evaluation principles prescribed in Point b this Clause;
d) There
will be one contract if a contractor wins all of the contract items. There will
be several contracts if several contractors win different contract items.
6. If the
unit prices in the bid-envelope and proposals are remarkably low, which
seriously affects the contract, the procuring entity shall request the bidder
to make a written explanation for the feasibility of such unit prices. If the
explanation of the bidder is not clear and persuasive, such unit prices shall
not be accepted. Such case shall be considered deviation and such deviation
shall be adjusted under the regulations similar to the regulations on the
deficient quoted value and proposals compared with the requirements in the
invitation for bid and request for proposals in accordance with the regulations
in Article 17 of this Decree.
7. If the
bid by the bidder ranked first exceeds the contract value (after error correction,
adjustment of deviation, and deduction of discount) and the by one ranked
bidder is lower than the contract value (after error correction, adjustment of
deviation and deduction of discount), the bidder ranked first shall be invited
to the price negotiation provided that the negotiated price shall not exceed
the approved contract value. If such negotiation collapses, the bidder ranked
next shall be invited.
8. If the
bids by the bidders meeting the technical requirements and included in the
ranked list exceed the approved contract value (after error correction,
adjustment of deviation, and deduction of discount), such case shall be handled
by either:
a)
allowing such bidders to submit new bids if the contract value includes the
constituents of the contractual cost;
b)
allowing such bidders to summit new bids and the procuring entity to request
the investor to reconsider the approved contract value and invitation for bid,
if necessary.
If the
bidders are allowed to submit new bids, the deadline for the preparation and
submission of new bids must be specified. The bidders shall submit new bids
within 10 days from the day on which the procuring entity send the written
request for the submission of new bids. The opening of bid-envelopes submitting
new bids shall be specified according to the procedures for bid opening
prescribed in Article 29 of this Decree. If the contract value in the approved
plan to select the contractor needs adjusting, the competent persons shall give
a decision on such adjustment within 10 days from the receipt of such
adjustment and before the deadline for the submission of new bids;
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9. If a
successful bid is lower than 50% of the approved contract value, an
interdisciplinary assessing group shall be established to request the
contractor to clarify constituents of the contractual cost and to consider
relevant evidences such as:
a) the
factors related to the execution of work, manufacturing process or provision of
cervices;
b) the
applied economic solutions or the considerable advantages of the contractor
leading to the advantages in prices;
c) the
origin of the goods, services and personnel provided for the contract provides
that the regulations of the law must be complied with;
If all
requirements prescribed in Points a, b and c this Clause are satisfied, the
bid-envelope and proposal of the bidder are accepted to win the contract. The
investor can set the value of tender guarantee higher than 10% but less than
30% of the successful bid which must approved by the competent persons. Such
approval must be recorded in writing. In case of any bidder supported by any
entity, which leads to unhealthy competition, the bid-envelope and proposal of
such bidder shall be invalidated.
10. If
the invitation for bid allow the bidders to propose construction methods other
than the construction methods prescribed in the invitation for bid, the
difference between the workload according to the construction methods in the
invitation for bid and the workload according to the construction methods
proposed by the bidders shall not be adjusted in accordance with the regulations
in Article 17 of this Decree. Such difference shall not be considered negative
deviation.
11. If
the contractor violates the contract or is ineligible to continue executing the
contract, which seriously affects the progress, quality and effectiveness of
the contract, the investor shall request the competent persons consider
approving the cancellation of the contract with such contractor. The remaining
work shall be applied the no-bid contract of methods of selection of another
contractor provided that the quality and progress of the contract is ensured.
The value of the remaining work given to the new contractor is calculated by
subtracting the value of the completed work from the contract value. In case of no-bidding contract awarding, the
competent persons must ensure that the contractor must be qualified enough to
carry out the remaining work. If the contractor is not responsible for the
delay in conducting the contract, the contract signed with such contractor
shall not be cancelled. In case the contract signed with the delinquent
contractor must be ended, the investor must send a report to the Ministry of
Planning and Investment for consideration and announcement of such delinquent
contractor on the national bidding system and the Vietnam Public Procurement
Review Journal within 05 working days from the issuance of Decision on the
contract cancellation; such report must specify the reasons for the contract
cancellation, method of selection of new contractor and appointed contractor in
case of no-bidding contract awarding.
12. In
case any bidder is separated or merged during the bidding, such bidder shall be
allowed to continue participating in the bidding.
13. When
signing the contract, if the contractor does not satisfy the requirements for
technical and financial competence prescribed in Clause 2 Article 64 of the Law
on Bidding, the bidder ranked next shall be invited to the contract
negotiation. In this case, such bidder must revalidate their bid-envelope and
tender guarantee if the bid-envelope is invalid and the tender guarantee is
refunded or cleared.
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a)
Awarding the contract to the bidder that has the highest technical score if the
contract is awarded according to the lowest bid;
b)
Awarding the contract to the bidder that has the lowest bid if the contract is
awarded according to the evaluation or application of combined technical and
price-based method.
15. Any
case other than the cases prescribed in Clauses 1, 2, 3, 4, 5, 6, 7, 8, 9, 10,
11, 12, 13 and 14 of this Article arising shall be considered by the investor
provided that the bidding must be competitive, impartial, transparent and
economically effective.
Section 2: CONSIDERATION OF BIDDING PETITIONS
Article 118. Requirements for consideration of petition
1. The
petition is submitted by the bidder.
2. The
petition must bear the sign of the person signing the bid-envelopes or legal
representative of the bidder and the stamp (if any).
3. The
person in charge of considering the competitiveness receives the
competitiveness under the regulations in Article 92 of the Law on Bidding.
4. Such
proposal has not taken to court by the bidder.
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Article 119. Advisory Council
1.
President of Advisory Council
a) The
President of the Central Advisory Council is the competent representative of
the Ministry of Planning and Investment. The Central Advisory Council shall
give advice on the consideration of the petitions as required by the Prime
Minister;
b) The
President of the Advisory Council of Ministries, ministerial-level authorities,
Governmental authorities and other central authorities (hereinafter referred to
as Ministerial Advisory Council) is the competent representative of the units
in charge of administering the bidding of such authorities). b) The Ministerial
Advisory Council shall give advice on the consideration of the petitions
regarding the contracts of the projects approved and administered by the
Ministers, Heads of ministerial-level authorities, Governmental authorities and
other central authorities other than the contracts prescribed in Point a this
Clause;
c) The
President of the provincial Advisory Council is the competent representative of
the provincial Departments of Planning and Investment. The provincial Advisory
Council shall give advice on the consideration of the competitiveness regarding
the contracts of the projects in the provinces including the contracts of the
enterprises established and operated in such provinces other than the contracts
prescribed in Point a this Clause.
2.
Members of Advisory Council:
Members
of Advisory Council are the representatives of the competent persons and
relevant professional association. Depending on the nature of each contract, in
addition to the abovementioned members, the President of the Advisory Council
can invite other individuals for the Advisory Council. The members of the
Advisory Council must not be the relatives (biological parents, parents in law,
biological children, adopted children, in-laws, biological sisters and
brothers) of the persons signing the petition, of the persons directly
evaluating the bid-envelopes and proposals, of the persons directly assessing
the result of the selection of contractors and of the person approving the
result of the selection of the contractors.
3.
Activities of Advisory Council:
a) The
President of the Advisory Council shall make a Decision to form the Advisory
Council within 05 working days from the receipt of the petitions of the
bidders. The Advisory Council shall be formed depending on each case;
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4.
Standing assisting division of Advisory Council:
a) The
standing assisting division shall be in charge of administering the bidding
excluding the persons directly assessing the contracts for which the bidders
file the petitions;
b) The
standing assisting division shall be assigned the administrative tasks by the
President of the Advisory Council; receive and manage the cost paid by the
bidders submitting the petitions.
Article 120. Handling of petitions for selection of
contractors
1. The
duration of the consideration of any petition prescribed in Clause 1 and Clause
2 Article 92 of the Law on Bidding counted from the day on which the
administrative division of the person in charge of considering such petition
receives the petition.
2. The
person in charge of considering the competitiveness shall send the bidder a
written report that the petition shall not be considered if such petition does
not meet the requirements prescribed in Article 118 of this Decree.
3. The
bidder can send a written request for the withdrawal of the petition during the
consideration of such petition.
4. The
conclusion of the petition must be written on the reply to the petition; in
case such petition is approved, there must be measures, methods and time to
remedy the consequences (if any) and the standing assisting division shall
request the relevant entities to reimburse the amount that the bidder
submitting the petition pay to the Advisory Council. In case of disapproval,
the written reply must specify the reasons.
Chapter XIII
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Section 1: IMPOSITION OF PENALTIES FOR VIOLATIONS AGAINST
REGULATIONS ON BIDDING
Article 121. Penalties for violations against regulations
on bidding
1. Any
entity committing any violation against the law on bidding shall be given a
warning or a fine under the regulations of the law on imposition of penalties
for administrative violations in the field of planning and investment.
2. Any
entity committing any violation prescribed in Article 89 of the Law on Bidding
and Clause 8 Article 12 of this Decree shall be prohibited from participating
in the bidding.
3. Any
individual committing any violation against the law on bidding which
constitutes crimes under the regulations of the Criminal law shall be liable to
criminal prosecution.
4. Any
official committing any violation against the law on bidding shall be penalized
under the regulation of the law on officials.
Article 122. Prohibition of participation in selection of
contractors
Depending
on the degree of the violation, an entity shall be:
1.
Prohibited from participating in the bidding for 03 year to 05 years when
committing any violation against the regulations in Clauses 1, 2, 3, 4 and 5
Article 89 of the Law on Bidding;
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3.
Prohibited from participating in the bidding for 06 months to 01 year when
committing any violation against the regulations in Clauses 6 and 7 Article 89
of the Law on Bidding;
4.
Prohibited from participating in the bidding for 01 year to 05 years when
committing any violation against the regulations on use of employees prescribed
in Clause 8 Article 12 of this Decree.
Article 123. Bidding cancellation, bidding suspension and
invalidation of bidding result
1. The
competent persons, investors and procuring entities may cancel the bidding when
the bidders commit violations against the regulations of the law on bidding and
other law provisions by issuing the Decisions on bidding cancellation in
accordance with the regulations in Clause 4 Article 73, Clause 10 Article 74
and Point e Clause 2 Article 75 of the Law on Bidding.
2. The
bidding suspension, invalidation of bidding result and decisions of the
investors and procuring entities are prescribed as follows:
a) The
bidding suspension and invalidation of bidding result shall be applied when
there are evidences that the bidders commit violations against the regulations
of the law on bidding and other relevant law provisions, which makes the
bidding uncompetitive, partial and economically ineffective or falsifies the
bidding result;
b) The
bidding shall be suspended right after the violations are committed before the
bidding result is approved. The bidding result shall be invalidated from the
approval for the bidding result to the contract signing; or after the contract
signing if necessary;
c) The
record on the bidding suspension and invalidation of bidding result must
specify the reasons, measures and time to remedy the violations against the
regulations of the law on bidding;
d) The
competent persons shall invalidate the decisions of the investors and procuring
entities if such decisions are unconformable with the regulations of the law on
bidding and relevant law provisions.
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Any
wrongdoer committing violations against the law on bidding and causing damage
must compensate for such damage under the regulations of the law on
compensation for damage and other law provisions.
Section 2: INSPECTION AND SUPERVISION OF BIDDING
Article 125. Inspection of bidding
1. The
bidding shall be inspected periodically or irregularly at the request of the
Prime Minister, Presidents of the People’s Committees of provinces, competent
persons of the inspecting authorities in charge of bidding in accordance with
the regulations in Clause 2 this Article. Methods of inspection can be direct
inspection or report.
2. The
Ministers, Heads of ministerial-level authorities, Governmental authorities,
other central authorities, Presidents of the People’s Committees of provinces;
Directors of the provincial Departments of Planning and Investment, Heads of
Departments under the management of the People’s Committees of provinces;
Presidents of the People’s Committees of districts; ; Chiefs of state-owned
enterprises shall direct the inspection of bidding of the units under their
management and the projects approved by themselves to administer the bidding in
order to enhance the progress and effectiveness of the bidding and detect,
prevent and deal with the violations against the law on bidding.
3. The
Ministry of Planning and Investment shall take charge and inspect the bidding
across Vietnam; the Ministers, Heads of ministerial-level authorities,
Governmental authorities, other central authorities; the People’s Committees of
provinces; the provincial Departments of Planning and Investment and
departments under the management of the People’s Committees of provinces and
the People's Committees of districts; the state-owned enterprises shall take
charge and inspect the bidding as required by the competent persons of the
inspecting authorities in charge of bidding. The provincial Departments of
Planning and Investment shall assist the People’s Committees of provinces in
taking charge and conducting local inspection of bidding.
4.
Inspection of bidding including periodic inspection and surprise inspection.
a) A
periodic inspection involves:
-
Inspecting the issuance of guiding documents on bidding, and division of
responsibility for bidding;
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-
Inspecting the issuance of the Training certificates of bidding; practice
certificates of bidding;
-
Inspecting the formulation of and approval for the plan to select the
contractors, EOI request, invitation for prequalification, invitation for bid,
request for proposals, result of the selection of the contractors;
-
Inspecting the contract and the adherence to the legal grounds for the signing
and execution of the contract;
-
Inspecting the procedures for and progress of the execution of the contract
according to the approved plan to select the contractors;
-
Inspecting the report on the bidding;
-
Inspecting the inspection and supervision of the bidding.
b)
According to each request for surprise inspection, and Decision on inspection,
the chief inspector shall regulate the suitable inspection activities.
5. There
must be inspection report and conclusion after each inspection ends. The
inspecting authorities shall monitor the handling of the problems (if any)
mentioned in the inspection conclusion. In case of any violation, it is
required to impose the handling measures or send a report to the inspecting
authorities for consideration.
6. An
inspection conclusion includes:
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b)
Inspected contents;
c)
Comments;
d)
Conclusion;
dd)
Recommendations.
Article 126: Supervision of bidding
1. The
competent persons shall appoint the regulatory individuals or bodies in charge
of bidding to supervise the execution of the investors, procuring entities
during the selection of the contractors to endure the adherence to the
regulations of the law on bidding.
2. The
competent persons shall decide and direct the supervision of the bidding
regarding the contracts of the projects and budget estimates approved by
themselves if necessary; supervise the sole source contracts, high value
contracts of which the investors and procuring entities posing questions.
3. The
Ministry of Planning and Investment shall take charge and supervise the bidding
regarding the projects within the competence of the Prime Minister or at the
request of the Prime Minister. The Ministries, ministerial-level authorities,
Governmental authorities, other central authorities, units assigned to
administer the bidding under the management of such authorities shall take
charge and supervise the bidding in case the Ministers, Heads of
ministerial-level authorities, Governmental authorities, and other central
authorities are the competent persons. The provincial Departments of Planning
and Investment shall take charge and supervise the bidding regarding the local
projects.
4. A
supervision of the compliance of the bidding with the regulations of the law on
bidding involves supervising:
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a) the
release of the invitation for bid, request for proposals (when selecting the
contractor);
c) the
result of the evaluation of the bid-envelope, proposals, negotiation of the
contract (when assessing the bid-envelope and proposals);
d) the
assessment of and approval for the selection of the contractor;
dd) The
process of the completion of the contract, contents of the contract and the
adherence to the legal grounds for the signing and execution of the contract
(when completing and signing the contract)
5.
Methods of supervision of bidding:
a) The
competent persons shall send written requests to the investors and procuring
entities regarding the contracts needing supervising;
b) The
procuring entities shall send the names and addresses of the supervising entities
to the contractors having the invitations for bid and the proposals;
c) The
procuring entities shall provide the information about the selection of the
contractors for the supervising entities on receiving written requests;
d) The
supervising entities in charge of bidding shall send written reports on the
violations against the law on bidding to the competent persons for
consideration to ensure the effectiveness of the selection of the contractors.
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a) Stay
honest and impartial; do not harass the investors and procuring entities during
the supervision;
b)
Request the investors and procuring entities to provide relevant information
and documents which facilitate the supervision;
c) Receive
the reflections of the contractors and other entities related to the selection
of contractors on the supervised contracts;
d)
Protect the information under the regulations;
dd)
Fulfill other obligations under the regulations of the law on bidding and other
law provisions.
Chapter XIV
OTHER ISSUES
Article 127. Forms for bid-envelopes
1. Forms
for a bid-envelope include: Form for plan to select the contractor; form for
EOI request; form for invitation for prequalification, form for invitation for
bid; form for request for proposals; form for report on evaluation result of
the bid-envelope, proposals; form for evaluation of result of selection of
contractor and other forms.
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Article 128. Management of contractors
1.
Responsibilities of every contractor:
a)
Register the national bidding system under the regulations in Point d Clause 1
Article 5 of the Law on Bidding;
b)
Regularly update the information about their competence and experience on the
national bidding system;
c) In
addition to the responsibilities prescribed in Point a and Point b this Clause,
every foreign contractor shall:
- Comply
with the regulations of the law of Vietnam on exit and entry; import and export
of goods; registration of residence; accounting and tax scheme and other
relevant of law of Vietnam unless there are different regulations in the
international agreements to which the Socialist Republic of Vietnam is a
signatory or international agreements that the competent authorities of the
Socialist Republic of Vietnam have signed after selected to carry out the
contracts.
- The
investors shall send written reports on the successful bidders to the Ministry
of Planning and Investment, managing Ministries and the Departments of Planning
and Investment of provinces where the projects are carried out within 15 days
from the effective date of the contracts signed with the foreign contractors.
d) Any
foreign contractor selected under the regulations of the Law on Bidding does
not have to request for the issuance of bidding license.
2.
Management of subcontractors:
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b) The
prime contractor must not request the subcontractors to carry out the tasks
other than the tasks of the subcontractors mentioned in the bid-envelope and
proposals; the subcontractors can be replaced or new subcontractors can be
added to the List of the subcontractors prescribed in the bid-envelope and
proposals only when the investor agrees;
c) The
prime contractor shall select and employ the eligible subcontractors. In case of important contractors at the request of the
invitation for bid, the competence and experience of them shall be evaluated
under the regulations in the invitation for bid;
d) The
prime contractor shall pay the subcontractors under the agreement between the
prime contractor and the subcontractors.
3. The
Ministry of Planning and Investment shall maintain the database of the
contractors, list of contractors committing violations against the law on
bidding; summarize and provide the information about the contractors for the
relevant organizations and individuals, which facilitates the healthy
competitive during the selection of contractors.
Chapter XV
IMPLEMENTATION
Article 129. Guidance
1. With
regard to the contracts whose bidding plans have been approved but the EOI
requests, invitations for prequalification, invitations for bid, request for
proposals has not released before July 01, 2014, the adjustment to such bidding
plans must be approved if they do not comply with the regulations in the Law on
Bidding No. 43/2013/QH13.
If the
EOI requests, invitations for prequalification, invitations for bid, requests
for proposals released before July 01, 2014, the implementation shall comply
with the regulations of the Law on Bidding No. 61/2005/QH11, the Law on the
amendment and supplementation of the laws related to fundamental construction
No. 38/2009/QH12 dated June 19th 2009, Decree No. 85/2009/ND-CP dated October
15, 2009, Decree No. 68/2012/ND-CP dated September 12, 2012 of the Government,
the Decision No. 50/QĐ-TTg of the Prime Minister dated November 09, 2012 and
relevant Circulars.
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3. With
regard to the purchase funded by the state capital to provide the public goods
and services in accordance with the regulations on Point dd Clause 1 Article 1
of the Law on Bidding No. 43/2013/QH13, the selection of contractors in the
form of purchase order must comply with the regulations in the Decree No.
130/2013/ND-CP dated October 16, 2013; other forms of selection of contractors
must comply with the regulations in the Law on Bidding No. 43/2013/QH13 and
this Decree.
4. Any
individual issued with the Certificate of professional training in bidding
before the effective date of this Decree shall continue to participate in
bidding under the regulations in Article 16 of the Law on Bidding No.
43/2013/QH13. However, (s)he is require to update the information prescribed in
the current legislative documents on bidding.
5. The
Ministry of Planning and Investment shall:
a)
provide the roadmap for application and instructions on:
-
Registration of contractors in the National bidding system in accordance with
the regulations in Point d Clause 1 Article 5 and Point e Clause 2 Article 22
of the Law on Bidding No. 43/2013/QH13;
-
Issuance of the practice certificates of bidding to the individuals required to
have the practice certificates under the regulations of Clause 2 Article 16 and
Point c Clause 1 Article 19 of the Law on Bidding No. 43/2013/QH13;
-
Activities of the professional bidding organizers in accordance with the
regulations in Article 32 of the Law on Bidding No. 43/2013/QH13;
b)
provide instructions on other necessary contents of this Decree to facilitate
the management of the bidding.
6. The
Ministry of Finance shall:
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b)
provide the lists of goods and services applied bulk purchasing;
c) take
chare and cooperate with the Ministry of Planning and Investment in giving
guidance on the bulk purchasing;
d) give
guidance on the fees for the selection of contractors.
7. The
Ministry of Health shall be in charge of giving guidance on bidding for
medicines to facilitating disease prevention, examination and treatment which
is funded by the State budget, medical insurance fund and other resources in
the medical facilities.
8. The
Ministry of Industry and Trade shall:
a)
provide instructions on the procedures for the import and export of goods for
the successful bidders;
b)
publish the List of the goods that can be produced in Vietnam, List of popular
goods allowed to be imported into and sold in Vietnam.
9. The
Ministry of Labor, War Invalids and Social Affairs shall take charge and
cooperate with the Ministry of Finance and relevant regulatory authorities in
promulgating the regulations on the wages of the Vietnamese consulting
specialists, which serves as a basis to determine the value of the time-based
consulting contracts prescribed in Clause 4 Article 62 of the Law on Bidding
No. 43/2013/QH13.
10. The
Ministry of Construction shall giving instructions on labor costs of the
consulting services which serve as a basis to determine the time-based
consulting contracts prescribed in Clause 4 Article 62 of the Law on Bidding
No. 43/2013/QH13.
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12. The
Ministries, ministerial-level authorities, Governmental authorities, other
central authorities, the People’s Committees of provinces shall detail some
contents of this Decree (if necessary) within their competence, which complies
with the regulations in the Law on Bidding No. 43/2013/QH13 and this Decree.
13. The
Ministers, Heads of ministerial-level authorities, Governmental authorities,
other central authorities, the Presidents of the People’s Committees shall
assign Chiefs directly in charge of bidding and affiliated units to administer
bidding within their competence. Difficulties that arise during the
implementation of this Circular should be reported to the Prime Minister for
consideration. The Ministries, ministerial-level authorities, Governmental
authorities, other central authorities, the People’s Committees of provinces,
enterprises approved by the Prime Minister must send annual reports on the
bidding to the Ministry of Planning and Investment to summarize and notify the
Prime Minister.
Article 130. Effect
This
Decree takes effect from August 15, 2014.
The Decree
No. 85/2009/NÐ-CP of the Government giving instructions on the Law on Bidding
and selection of building contractors under the Law on Construction dated
October 15, 2009, Decree No. 68/2012/NÐ-CP dated September 12, 2012 of the
Government on the amendment to some Articles of the Decree No. 85/2009/NÐ-CP of
the Government dated October 15, 2009 and the Decision No. 50/QÐ-TTg of the
Prime Minister on the application of limited bidding regarding the contracts
considered and decided the Prime Minister dated November 09, 2012 shall expire
from the effective date of this Decree.
ON BEHALF OF THE GOVERNMENT
THE PRIME MINISTER
Nguyen Tan Dung
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