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THE
GOVERNMENT
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THE
SOCIALIST REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No.
23/2024/ND-CP
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Hanoi,
February 27, 2024
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DECREE
ON ELABORATION OF AND MEASURES FOR IMPLEMENTATION OF THE
LAW ON BIDDING ON SELECTION OF INVESTORS TO IMPLEMENT PROJECTS SUBJECT TO
BIDDING ORGANIZATION IN ACCORDANCE WITH SPECIAL LAWS
Pursuant to
the Law on Government Organization dated June 19, 2015;
Pursuant to
the Law on Local Government Organization dated June 19, 2015;
Pursuant to
the Law on amendments to the Law on Government Organization and the Law on
Organization of Local Governments dated November 22, 2019;
Pursuant to
the Law on Bidding dated June 23, 2023;
Pursuant to
the Law on Investment dated June 17, 2020;
At the
request of the Minister of Planning and Investment;
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Chapter I
GENERAL PROVISIONS
Article 1.
Scope
1.
The Government elaborates the following articles of the Law on Bidding
on selection of investors to implement projects subject to bidding organization
in accordance with special laws:
a) Clause 6,
Article 6 on ensuring competitiveness in investor selection;
b) Clause 6,
Article 10 on incentives in investor selection;
c) Clause 3,
Article 15 on costs associated with investor selection;
d) Clause 4,
Article 35 on investor selection methods;
dd) Clause 3,
Article 46 on investor selection procedures;
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g) Clause 5,
Article 62 on bid evaluation methods and criteria;
h) Clause 2,
Article 73 on the contents of investment project contracts;
i) Clause 4,
Article 86 on inspection and supervision of bidding for investor selection;
k) Clause 4,
Article 88 on handling situations in investor selection;
l) Clause 2,
Article 96 on transitional regulations.
2.
Measures to implement the Law on Bidding on investor selection,
including:
a) Announcing
investment project information for projects not subject to investment guideline
approvals;
b) Implementing
investment projects.
3.
Requirements pertaining to capacity and experience of members of expert
teams and appraisal teams; information connection and sharing between VNEPS and
other information systems; online bidding techniques in line with the features
and development of VNEPS; and actions against violations in bidding are laid
down in the corresponding regulations in the Government's Decree on elaboration
of and measures to implement the Law on Bidding regarding contractor selection.
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a) Projects for
international football betting business in accordance with law on the business
of betting on horse racing, greyhound racing, and international football;
b) Projects for
construction of domestic solid waste treatment works in accordance with law on
environmental protection;
c) Dredging
projects in seaport waters and inland waterways combined with product recovery
in accordance with law on maritime traffic and inland waterways;
d) Projects for
specialized aviation works at airports and airfields in accordance with law on
civil aviation, except for aviation operations centers of domestic airlines at
airports, airfields;
dd) Projects
for road traffic works in accordance with law on road traffic including
mixed-function areas serving public and commercial purposes;
e) Projects for
renovation and re-construction of apartment buildings in accordance with
housing law;
g) Projects for
construction of water supply source works, water supply systems in accordance
with law on production, supply and consumption of clean water;
h) Projects
subject to bidding when there are at least 2 investors registering for
implementation, including: projects in the fields of education, vocational
training, health, culture, and sports, environment in accordance with law on
promotion of private sector involvement, except for projects specified in
Points b and g of this Clause; horse and greyhound racing projects, including
business of betting on horse racing and greyhound racing according to legal
regulations on business of betting on horse racing, greyhound racing and
international football; projects for construction of social housing in
accordance with housing law.
5.
Projects that are subject to bidding in accordance with special laws
laid down in Clause 4 of this Article and use land must fully meet the
following requirements:
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In case the
land zone where the project is to be implemented has a land parcel managed by
the State in accordance with land law, the State shall appropriate the entire
project area (including land areas managed by the State within the project
scope).
b) Be not
eligible for auction of land use rights in accordance with land law, not
eligible for auction of public assets in accordance with law on management and
use of public assets.
6.
Projects not subject to investor selection in accordance with this
Decree include:
a) Projects
using land in the form of transfer, lease of land use rights, receipt of
capital contribution in form of land use rights for production and business in
accordance with land law;
b) Be eligible
for auction of land use rights in accordance with land law, law on management
and use of public assets;
c) Projects of
which land is allocated or leased by the State not through auction of land use
rights, not through bidding for investor selection in accordance with land law.
Article 2.
Regulated entities
1.
Organizations and individuals participating in or related to selecting
investors to implement investment projects specified in Clause 4, Article 1 of
this Decree.
2.
Organizations and individuals whose bidding do not fall into the cases
specified in Clause 4, Article 1 of this Decree may choose to apply the Law on
Bidding in accordance with Clause 4, Article 2 of the Law on Bidding.
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For the
purposes of this Decree, these terms below shall be construed as follows:
1.
“investor selection progress timeline” means a schedule that presents
all the tasks with corresponding time during the investor selection process, as
a basis for conducting investor selection in accordance with Clause 3, Article
49 of the Law on Bidding.
2.
“EOI requester” means an agency or unit under a ministry or
ministerial-level agency; specialized agency, agency under the Provincial
People's Committee, Economic Zone Management Board; District-level People's
Committee that is assigned to carry out the procedure for requesting EOI
(Expression of Interest).
3.
“competent authority” means an agency that approves the investment
guidelines according to the law on investment or an agency that decides to
organize bidding for investor selection. For projects under the investment
guideline approval for the National Assembly or the Prime Minister, the
competent authority is the agency that decides to organize bidding for investor
selection.
4.
“agencies deciding to organize bidding for investor selection” include
ministries, ministerial-level agencies, Provincial People's Committees, and
Economic Zone Management Boards.
5.
“total investment capital” includes preliminary total project
implementation costs, other costs in accordance with special laws (if any) and
compensation, support, and resettlement costs (if any).
Article 4.
Ensuring competitiveness
1.
From the date of issuance of an EOI request, the investor that submits an
application for registration to implement an investment project must be legally
independent and financially independent from the following parties:
a) Competent
authority, EOI requester;
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c) The
consultant on preparation of a pre-feasibility study report or feasibility
study report if the special law requires a pre-feasibility study report or
feasibility study report before the organization of an EOI meeting, except for
a project proposed by the investor;
d) The
consultant on preparation of EOI request and evaluation of the project
registration application.
2.
From the date of issuance of Bidding document, the investor
participating in the bidding may not have shares or capital contributions with
the following consultants:
a) The
consultant on preparation of application for approval for investment guidelines
(if the investment project is subject to investment guideline approval),
project proposal (if the investment project is not subject to investment
guideline approval), except for a project proposed by the investor;
b) The
consultant on preparation of a pre-feasibility study report or feasibility
study report if the special law requires a pre-feasibility study report or
feasibility study report before organization of the bidding, except for a
project proposed by the investor;
c) The
consultant on preparation of and evaluation of Bidding document; evaluation of
bids; appraisal of investor selection result.
3.
From the date of issuance of an EOI request, Bidding document, the
investor that submit the project registration application or the investor that
participates in the bidding will be assessed as legally independent and
financially independent from competent authority, procuring entity, EOI
requester if they has no capital ownership ratio of more than 50% of shares,
total number of voting shares, capital contribution of each other. In case the
investor submits a project registration application and participates in the bidding
as a joint venture, the capital ownership ratio is determined according to the
following formula:
Where:
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Yi: is
the equity contribution rate of “the ith joint venture party” in the joint
venture agreement.
n: is the
number of parties in the joint venture.
4.
From the time of issuance of an EOI request or Bidding document, the
investor that submits the project registration application or the investor that
participates in the bidding and the consultants specified in Clause 1, Clause 2
of this Article may not have the capital ownership ratio of over 30% of shares,
total number of voting shares, capital contribution of each other. In case of a
joint venture investor or joint venture consultant, the capital ownership ratio
is determined as follows:
a) The capital
ownership ratio of other organizations, individuals and joint venture investors
is determined according to the following formula:
Where:
Xi: is
the ratio of ownership of capital, shares, and voting shares of organizations
and individuals to “the ith investor participating in the bidding”.
Yi: is
the equity contribution rate of “the ith joint venture party” in the joint
venture agreement.
n: is the
number of parties in the joint venture.
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Where:
Xi: is
the ratio of ownership of capital, shares, and voting shares of organizations
and individuals to “the ith consultant” in the joint venture.
Yi: is
the ratio of responsibility division in “the ith joint venture agreement
document” in the joint venture agreement.
n: is the
number of parties in the joint venture.
5.
For an investor who has a parent-subsidiary structure in accordance with
law on enterprises and submits a project registration application or
participates in bidding for an investment project:
a) The parent
company or subsidiary company, or parent company or joint venture subsidiary
companies may only participate in one project registration application or
submits one bid;
b) The investor
that submits the project registration application or participates to bid and
any of the consultants specified in Clauses 1 and 2 of this Article do not have
parent-subsidiary relationship, since the issuance of the EOI request or Bidding
document.
6.
Determination of the capital ownership ratio between the parties is
based on the ratio stated in the Business Registration Certificate,
establishment decision, and other equivalent documents.
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1.
Entities eligible for incentives and incentive rates:
a) Investors
that have solutions to apply advanced technology, high technology,
environmentally friendly technology, and the best available techniques to
minimize environmental pollution to their projects which pose high risk of
adverse environmental impacts as prescribed by the Law on environmental
protection are entitled to a 5% incentive when having their bids evaluated;
b) Investors
that commit to make transfer of technologies included in the List of priority
high technologies as prescribed by the Law on high technologies or the List of
technologies of which the transfer is encouraged as prescribed by the Law on
technology transfer are entitled to a 2% incentive when having their bids
evaluated.
2.
When bidding, investors must submit documents proving their technology
application solutions, technology transfer and the right to legally use
technology in accordance with law on high technologies technology transfer,
environmental protection, and other relevant laws to enjoy incentives specified
in Clause 1 of this Article.
3.
Calculation of incentives:
The aggregate
score of an entity eligible for incentives is calculated according to the
following formula:
Where:
T’TH:
is the aggregate score of the investor eligible for incentives, including the
incentive rate for comparison and ranking.
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MƯĐ:
is the incentive rate that investor is entitled to in accordance with Clause 1
of this Article.
4.
If an investor eligible for incentives specified in Clause 1 of this
Article is selected to sign the contract, they must comply with the commitments
in their bid and investment project contract.
Article 6.
Management of costs and revenues in investor selection
1.
Cost limits in case the investor selection is carried out by the
competent authority, EOI requester, procuring entity, or appraisal team:
a) The cost of
preparing the EOI request or Bidding document is 0.05% of the total investment
capital but not exceeding 200,000,000 (two hundred million) VND;
b) The cost for
appraisal of each item of Bidding document and investor selection result is
0.02% of total investment capital but not exceeding 100,000,000 (one hundred
million) VND;
c) The cost of
evaluating project registration application or bids is 0.03% of total
investment capital but not exceeding 200,000,000 (two hundred million) VND;
d) In case of
reorganizing the investor selection, the cost of preparing the EOI request or Bidding
document; or evaluating bids is up to 50% of the equivalent cost specified in
Points a and b of this Clause.
2.
In case a consultant is hired to perform the tasks specified in Clause 1
of this Article, investor selection costs are as follows:
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b) In case
there are no regulations on expert salary level, it is based on statistics with
costs paid to experts in similar projects implemented in a specified period of
time or in total investment capital.
3.
Detailed expenditures in case the investor selection is carried out by
the competent authority, EOI requester, procuring entity, or appraisal team:
a) The
expenditure on survey and collection of project information as a basis for
preparing the EOI request or Bidding document, including the cost for preparing
a project proposal (if the investment project is not subject to investment
guideline approval) or an application for investment guideline approval (if the
investment project is subject to investment guideline approval) (if any);
b) The
expenditure on office supplies, translation, propagation, and communications;
c) The
expenditure on meeting for soliciting expressions of interest, inviting bids,
and opening bids;
d) The
expenditure on posting information on investor selection;
dd) Other
expenditures on preparing the EOI request; preparing and appraising Bidding
document; evaluating project registration application, bids, opening bids, and
resolving complaints.
4.
The expenditure specified in Point d, Clause 3 of this Article is
applied according to the corresponding regulations in the Government's Decree
on elaboration of and measures to implement the Law on Bidding on contractor
selection.
5.
Funds to pay for the expenditures in Clauses 1 and 3 of this Article are
used from regular expenditures of the competent agency, EOI requester,
procuring entity, and appraisal team.
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7.
The preparation, approval, and enactment of estimates of investor
selection expenditures specified in Clauses 1, 2 and 3 of this Article are
carried out in accordance with the law on preparation, approval and enactment
of regular expenditure estimates from the state budget as follows:
a) Pursuant to
the State Budget Law and Clause 6 of this Article, the EOI requester or the
procuring entity shall prepare expenditure estimates according to each detailed
expenditure specified in Clause 3 of this Article and include them into their
annual budget estimate, and then submit it to the competent authority for approval
in accordance with the law on state budget;
b) After the
annual budget estimate is approved, the competent authority allocates regular
expenditure estimates to assigned units in accordance with the law on state
budget;
c) If a project
comes up that requires bidding during the year, the EOI requester or the
procuring entity shall supplement the estimate and submit it to the competent
authority for approval in accordance with law on state budget.
8.
Management of investor selection costs:
a) The management,
use, and settlement of investor selection costs shall comply with the law on
state budget. In case the EOI requester or the procuring entity is a public
sector entity that organize the investor selection, the management, use and
settlement of investor selection costs shall be carried out in accordance with
the law on the financial autonomy mechanism of public sector entities;
b) In case a
consultant is hired to perform part or all of the tasks in Clause 1 of this
Article, the total cost of investor selection including taxes must not exceed
the approved estimate for the consultancy. The payment for the consultant is
made according to the contract between the competent authority, the procuring
entity, or EOI requester and the consultant. The management, use, payment, and
settlement for the consultant are carried out in accordance with applicable
regulations of the law on state budget.
9.
Management of investor selection revenues:
a) For
international bidding, the selling price (including tax) of a set of electronic
Bidding document must not exceed 30,000,000 (thirty million) VND;
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Article 7. Expenditures
on resolving investors' petitions regarding investor selection result
1.
In case there is a petition about the investor selection result resolved
by a competent person, the investor shall pay a fee for resolving the petition
to the standing assistance department of the Petition Resolution Advisory
Council (hereinafter referred to as the Advisory Council) in accordance with
Point dd, Clause 2, Article 90 of the Law on Bidding.
2.
The fee paid by the investor to the Advisory Council specified in Clause
1 of this Article is 0.02% of the total project investment capital of the
petitioning investor but not exceeding 200,000,000 (two hundred million dong). During
the petition process, if the investor withdraws the petition, they will only be
refunded 50% of the paid petition fee in case the Advisory Council has not been
established or the Advisory Council has been established but a council meeting
has not yet been held. In case the Advisory Council has held a council meeting,
the investor will not be refunded their paid petition fee.
For the
remaining petition fee paid by investor, the standing assistance department of
the Advisory Council shall transfer it to the state budget within 7 working
days from the date on which the investor withdrew their petition.
3.
The standing assistance department of the Advisory Council shall prepare
and submit the expenditure estimate for resolving each investor’s petition to
the President of the Advisory Council for approval.
4.
The expenditure estimate approved by the President of the Advisory
Council specified in Clause 3 of this Article may not exceed the fee paid by
the investor as prescribed in Clause 2 of this Article.
5.
The President of the Advisory Council shall decide the expenditure
limits according to the approved estimate for members of the Advisory Council,
the standing assistance department of the Advisory Council and other expenses
to resolve the petition. Payment of remuneration to members of the Advisory
Council for Resolution of Petitions who are officials and public employees
shall comply with the relevant laws.
6.
The standing assistance department of the Advisory Council shall spend
the expenditure on resolving a petition according to the expenditure estimate
approved by the President of the Advisory Council.
7.
After resolving the petition, the President of the Advisory Council is
responsible for confirming the actual expenditure. In case the actual
expenditure is less than the petition fee paid by the investor to the Advisory
Council, the standing assistance department of the Advisory Council shall make
a refund to the investor within 7 days from the date on which the President of
the Advisory Council confirms the actual expenditure.
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9.
Funding sources to refund the investor according to the document on
resolving the petition on investor selection result are specified as follows:
a) In case the
procuring entity is an administrative unit or a public sector entity, the
funding source to refund the investor will be allocated from their regular
expenditure estimate;
b) In case the
procuring entity is not an administrative unit or a public sector entity, the
funding source to refund the investor will be allocated from their operating
budget.
10.
Any organizations or individuals in breach as specified in the decision
on resolving petition on investor selection result made by the competent
authority must compensate the procuring entity in accordance with law.
Article 8.
Investor selection procedures
1.
For projects applying competitive bidding, limited bidding according to
the single-stage, one-envelope method and projects applying the competitive
bidding according to single-stage, two-envelope method:
a) Announce
investment projects;
b) Prepare
bidding for investor selection;
c) Organize
bidding for investor selection;
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dd) Submit,
appraise, approve, and publish the investor selection result;
e) Negotiate,
finalize, and sign contracts.
2.
For projects applying open bidding according to the two-stage,
one-envelope method:
a) Announce
investment projects;
b) Prepare
bidding for investor selection in first stage;
c) Organize
bidding for investor selection in first stage;
d) Prepare and
organize bidding for investor selection in second stage;
dd) Evaluate
bids in second stage;
e) Submit,
appraise, approve, and publish the investor selection result;
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3.
For projects in which the number of interested investors must be
determined as prescribed in Clause 2, Article 46 of the Law on Bidding and
Point h, Clause 4, Article 1 of this Decree:
a) Announce
investment projects;
b) Invite for
expression of interests;
c) In case there
are at least 2 interested investors registering to implement the project,
comply with Points b, c, d, dd, and e Clause 1 of this Article (for projects
applying competitive bidding according to the single-stage, one-envelope
method) or single-stage, two-envelope method, or points b, c, d, dd, e and g,
Clause 2 of this Article (for projects applying competitive bidding according
to the two-stage, one-envelope method).
Chapter II
INVESTOR SELECTION
PROCEDURES FOR PROJECTS APPLYING COMPETITIVE BIDDING AND LIMITED BIDDING
ACCORDING TO THE SINGLE-STAGE, ONE-ENVELOPE METHOD, OR SINGLE-STAGE,
TWO-ENVELOPE METHOD
Section 1.
ANNOUNCEMENT OF INVESTMENT PROJECTS
Article 9.
Announcing investment projects subject to investment guideline approvals
Competent
authorities shall post decisions on investment guideline approval on VNEPS
within 5 working days from the dates of issuance.
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1.
For an investment project that is not subject to investment guideline
approval, the competent person shall assign the agency under the ministry or
ministerial-level agency; specialized agency, agency under the Provincial
People's Committee, Economic Zone Management Board; or District-level People's
Committee to prepare a corresponding project proposal, which includes the
contents specified in Points b, c, d, dd and e, Clause 2, Article 47 of the Law
on Bidding, and then submit it to Head of ministerial-level agency, President
of the Provincial People's Committee, Head of Economic Zone Management Board
for approval.
2.
The competent agency shall post the investment project information in
accordance with Clause 1 of this Article within 5 working days from the
issuance date of the approval.
3.
Investors may propose to implement investment projects other than
projects approved and announced by competent authorities in accordance with
Clauses 1 and 2 of this Article, unless special laws stipulate that investors
are not allowed to propose projects themselves. The procedures for a project
proposal are as follows:
a) The investor
prepares a project proposal including the contents specified in Points b, c, d
and e, Clause 2, Article 47 of the Law on Bidding and the corresponding
contents specified in Points a, b and c Clause 1, Article 33 of the Investment
Law. The investor shall bear all the costs incurred in preparing the project
proposal;
b) If an
investment project falls under authority of the Provincial People's Committee,
the investor shall submit 4 sets of project proposal to the corresponding
Department of Planning and Investment. Within 3 working days from the date of
receiving the project proposal, the Department of Planning and Investment shall
report it to the President of the Provincial People's Committee to assign a
specialized agency to synthesize and review the project proposal of that
investor.
If an
investment project falls under authority of a ministry, ministerial-level
agency, or Economic Zone Management Board, the investor shall submit 4 sets of
project proposal to an agency that is tasked by the Minister, Head of
ministerial-level agency, or Head of Economic Zone Management Board to receive
and review the project proposal of that investor;
c) Within 25
days from the date of assignment, the agency at Point b of this Clause shall
verify the conformity of the project proposal with Clauses 4, 5 and 6, Article
1 of this Decree, and then submit it to the competent person for approval for
the investment project;
d) The
competent agency shall post the investment project information proposed by the
investor on VNEPS within 5 working days from the issuance date of the approval.
Section 2.
PREPARATION FOR BIDDING FOR INVESTOR SELECTION
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1.
The competent person shall assign an agency, affiliated unit, or
specialized agency to prepare an investor selection progress timeline according
to Appendix I issued with this Decree.
2.
The competent person shall approve the investor selection progress
timeline, which determines the procuring entity, the form and method of bidding
for investor selection, and the starting time of investor selection to
implement the investment project.
3.
If the investment project is subject to investment guideline approval
according to investment law, the investor selection progress timeline shall be
approved independently or concurrently with the decision on investment
guideline approval.
4.
If the investment project is not subject to investment guideline approval
according to investment law, the investor selection progress timeline shall be
approved r concurrently with the investment project information.
5.
The competent authority shall post the approved investor selection
progress timeline on the VNEPS within 5 working days from the issuance date of
the approval.
Article 12.
Bases for preparing Bidding document
1.
Planning, plans, and programs, including:
a) Relevant
planning and plans in accordance with law on planning, special laws, and
relevant laws;
b) Construction
planning that is appropriate to the scale and nature of the project in
accordance with construction law and special laws and approved by the competent
authority if the project has the construction phase. In case the investment
project has many functions, the investment project is determined based on the
main works of the project or the main works with the highest level in case the
project has many main works in accordance with the construction law;
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2.
The list of projects subject to land appropriation approved by the
competent authority in accordance with land law (if the project is specified in
Clause 4, Article 1 of this Decree and using land); or the decision on
revocation of public assets that is approved by a competent authority in
accordance with the law on management and use of public assets (if the project
uses public assets subject to revocation).
3.
The decision on investment guideline approval (if the project is subject
to investment guideline approval in accordance with law on investment), or an
approval for investment project information (if the project is not subject to
investment guideline approval as prescribed in Article 9 or Article 10 of this
Decree).
4.
The investor selection progress timeline shall be approved in accordance
with Clause 2, Article 11 of this Decree.
5.
Other documents in accordance with special laws and relevant laws (if
any).
Article 13.
Preparation, appraisal of, and approval for Bidding document
1.
The procuring entity assigns an expert team to prepare Bidding document
according to the contents specified in Article 48 of the Law on Bidding for
investors to prepare their bids.
2.
Methods and criteria for evaluating bids are laid down in Articles 44,
45, 46 and 47 of this Decree.
3.
Appraisal of and approval for Bidding document:
a) The procuring
entity submits to the competent person the draft Bidding document and related
documents, and sends them to the appraisal team;
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c) The
competent person approves the Bidding document in writing based on the approval
request and appraisal report of the Bidding document.
Article 14.
Shortlisting procedure for limited bidding
1.
The procuring entity identifies a short list of at least 3 investors
that meet the requirements of the investment project and wishes to participate
in the bid, and submits the list to the competent person for approval.
2.
After approval, the procuring entity publicly posts the short list on
VNEPS.
3.
Investors on the short list are not allowed to enter into joint ventures
to participate in the bidding.
Section 3.
ORGANIZATION OF BIDDING FOR INVESTOR SELECTION
Article 15.
Conditions for issuance of Bidding document
Bidding
document are only issued to select investors when the following conditions are
met:
1.
A decision on investment guideline approval is issued (if the project is
subject to investment guideline approval in accordance with law on investment),
or an approval for investment project information is issued (if the project is
not subject to investment guideline approval as prescribed in Article 9 or
Article 10 of this Decree).
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3.
The Bidding document are approved.
4.
Other conditions in accordance with special laws (if any).
Article 16.
Invitation to bid, issuance, modifications and clarifications of Bidding
document; extension of deadline for submission of bids
1.
Invitation to bid:
a) The
invitation to bid is posted in accordance with Clause 2, Article 8 of the Law
on Bidding. For projects subject to international competitive bidding as
prescribed in Clause 2, Article 11 of the Law on Bidding, the invitation for
bid must be posted in English and Vietnamese on VNEPS and on the websites of
relevant Ministries, the Provincial People's Committee (if any), or an
English-language newspaper published in Vietnam;
b) Send
invitations to bid to investors on the short list for limited bidding.
2.
Issuance of Bidding document:
a) For competitive
bidding, Bidding document are published on VNEPS. The procuring entity posts a
complete file of Bidding document free of charge on VNEPS;
b) For limited
bidding, Bidding document are issued to investors on the short list.
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In case of
modifications of the Bidding document after issuance, the procuring entity must
post on the VNEPS the modification decision enclosed with the detailed
modifications of the Bidding document and the modified Bidding document. The
posting of the decision on modifications of the Bidding document is done at
least 15 days for domestic bidding and 25 days for international bidding before
the deadline for submission of bids. In case there is not enough time, the
deadline for submission of bids must be extended.
4.
Clarifications of Bidding document:
case the Bidding
document need to be clarified, the investor shall send a written request for
clarification to the procuring entity on VNEPS within at least 7 working days
(for domestic bidding), 15 days (for international bidding) before the bid
submission deadline. Clarifications of Bidding document are carried out by the
procuring entity in one or more of the following forms:
a) Posting
detailed clarifications on VNEPS;
b) If
necessary, organize a pre-bid meeting to discuss matters in the Bidding
document that investors are unclear about. The communication must be made into
a record by the procuring entity to clarify the Bidding document and must be
posted on VNEPS.
The detailed
clarifications of the Bidding document must be posted on the VNEPS at least 2
working days before the bid submission deadline and must not be contrary to the
content of the Bidding document which were already posted on the VNEPS. In case
the clarifications of the Bidding document leads to the need to modify the
Bidding document, the modifications of the Bidding document shall comply with
Clause 3 of this Article.
5.
The decision on modifications or written clarification of the Bidding
document is an integral part of the Bidding document.
6.
In case it is necessary to extend the bid submission deadline, the
procuring entity shall post a notice of extension along with the decision to
approve the extension on VNEPS. The notice of extension must clearly state the
reason for the extension, new deadline for bid submission.
Article 17.
Preparation, submission, receipt, management, modification, replacement, and
withdrawal of bids
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2.
The procuring entity receives bids from all investors submitted before the
bid submission deadline and manages submitted bids in a confidential manner
until the investor selection result is made public; information in the Bidding
document of investors participating in the bidding must not be disclosed,
except for information disclosed when the bid is opened.
3.
When there is a request to modify, replace or withdraw the submitted
bid, the investor must send a written request to the procuring entity. The
procuring entity only accepts the modifications, replacement, or withdrawal of
the investor's bid when receiving a written request before the bid submission
deadline.
4.
Bids or documents sent by the investor to the procuring entity after the
bid submission deadline are invalid, cannot be opened and are rejected, except
for documents clarifying the bid at the request of the procuring entity, or
clarifying and additional documents to prove the investor's eligibility,
capacity and experience.
Section 4.
EVALUATION OF BIDS FOR PROJECTS APPLYING THE SINGLE-STAGE, ONE-ENVELOPE METHOD
Article 18.
Bid opening
1.
The bid opening must be conducted publicly and begin within 2 hours from
the bid submission deadline. The procuring entity only opens bids received
before the bid submission deadline according to the requirements of the Bidding
document in the presence of representatives of investors attending the bid
opening ceremony, regardless of the presence or absence of investors.
2.
The procuring entity checks the seal and opens each bid in alphabetical
order by investor's name and clearly reads the following information:
a) Name of
investor;
b) Number of
originals and copies of documents;
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d) Proposal to
increase or decrease the value specified in point c of this clause (if any);
dd) Validity
period of the bid;
e) Value and
validity of bid security;
g) Other
related information.
3.
The bid opening record includes the information specified in Clause 2 of
this Article, must be signed by the representative of the procuring entity and
investors attending the bid opening ceremony, and then be sent to the attending
investors.
4.
The representative of the procuring entity signs the original letter of
bid and the authorization letter of the investor's legal representative (if
any); joint venture agreement (if any); bid security; contents of business
investment plans and proposals on investment efficiency in developing the
industry, field and locality of each bid.
Article 19.
Principles for evaluating bids
1.
The evaluation of a bid is based on the bid evaluation criteria and other
requirements in the Bidding document, based on the submitted bid and the
documents clarifying the investor’s bid so as to ensure the selection of an
investor with sufficient capacity and experience and feasible technical and
financial plan to implement the project.
2.
The evaluation of a bid is done on photocopies, the investor is
responsible for the consistency between the original and the photocopies. In
case there is a deviation between the original and the photocopy but does not
change the investor ranking order, the evaluation will be based on the
original. In case there is a deviation between the original and the photocopy,
leading to a different evaluation result on the original than the evaluation
result on the photocopy, changing the ranking order of the investor, that
investor's bid will be disqualified.
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a) “deviation”
means a departure from the requirements specified in the Bidding document;
“reservation” is the setting of limiting conditions or withholding from
complete acceptance of the requirements specified in the Bidding document;
“omission” is the failure to submit part, or all of the information or
documentation required in the Bidding document.
b) Provided
that a bid is substantially responsive to the requirements of the Bidding
document, the procuring entity may accept nonconformities that are not deviations,
reservations, or omissions;
c) Provided
that a bid is substantially responsive to the requirements of the Bidding
document, the procuring entity may require the investor to provide necessary
information or documentation, within a reasonable period of time, to rectify
non-material nonconformities or deviations in the bid related to the documentation
requirements. Requests to provide information and documents to rectify these
nonconformities or deviations must not affect the investor's proposal for investment
effectiveness in developing the industry, field, and locality of the investor. Failure
to comply with the request of the procuring entity may result in disqualifying
the investor.
Article 20.
Clarification of bids
1.
After bid opening, in case the investor's bid lacks documents on
eligibility, financial statements, and documents proving their experience in
implementing similar projects, the procuring entity may request the investor to
clarify and supplement documents to prove their eligibility, capacity and
experience. The investor must clarify the bid when requested by the procuring
entity. Clarification of the investor’s eligibility, capacity, and experience
may not change the nature of the eligibility, capacity, and experience of the
investor participating in the bid.
2.
After closing the bid, in case the investor discovers that the bid lacks
information and documents about their capabilities, they will be sent for
clarification. The procuring entity shall receive clarifying and supplementing
documents to prove the investor's eligibility, capacity and experience for
evaluation. These documents are considered an integral part of the bid.
3.
Clarifications of proposals on the business investment plan, proposals
on investment efficiency in developing the industry, field, and locality must
ensure the principle of not changing the corresponding proposals in the bid
that has been submitted.
4.
Clarification of a bid is only done between the procuring entity and the
investor whose bid needs to be clarified. The clarification of the bid must be
made in writing and kept by the procuring entity as an integral part of the
bid.
Article 21.
Evaluation of bids
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a) Check the
number of originals and photocopies of the bid;
b) Check the
required documents of the bid, including: letter of bid, joint venture
agreement (if any), authorization letter to sign the letter of bid (if any);
bid security; documents proving the eligibility of the person signing the
letter of bid (if any); documents proving the investor's eligibility, capacity
and experience; proposal on the business investment plan; proposal on
investment efficiency in developing the industry, field, and locality; other
documents of the bid;
c) Check the
consistency of content between the original and the photocopy(ies) to serve the
detailed evaluation process of the bid.
2.
Evaluate the validity of the bid:
An investor's
bid is considered valid when it fully meets the following requirements:
a) There is the
original bid;
b) There is a
valid letter of bid, signed and sealed by the investor's legal representative
(if any) as required in the Bidding document. For a joint venture investor,
the letter of bid must be signed and sealed by the legal representative of each
joint venture party (if any), or the party assigned to by the joint venture to
sign the letter of bid according to the assigned responsibilities in the joint
venture agreement;
c) The value
stated in the bid must be specific and fixed in numbers and words; do not
propose different values in terms of investment efficiency for development of
industry, field, locality or include conditions that are disadvantageous to
competent authorities or the procuring entity;
d) The validity
of the bid meets the requirements as prescribed in the Bidding document;
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e) The investor
is not named in two or more bids as an independent investor or a joint venture
party;
g) There is a
joint venture agreement signed and sealed by the legal representative of each
joint venture party (if any);
h) The investor
ensures eligibility in accordance with Article 5 of the Law on Bidding.
3.
Evaluate the bid:
a) Evaluation
of a bid includes evaluation of investor's capacity and experience, evaluation
of the business investment plan, and evaluation of investment effectiveness in
developing the industry, field, and locality;
b) The
evaluation of the bid is carried out according to the evaluation methods and
criteria specified in the Bidding document.
4.
After evaluating the bid, the expert team prepares a report and sends it
to the procuring entity for consideration. The report must clearly state the
following:
a) Investor
ranking list;
b) List of non-responsive
and disqualified investors; reasons for investor rejection;
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5.
Consideration for contract award:
The investor
considered for contract award must fully meet the requirements prescribed in
Article 48 of this Decree.
Section 5.
EVALUATION OF BIDS FOR PROJECTS APPLYING THE SINGLE-STAGE, TWO-ENVELOPE METHOD
Article 22.
Opening of technical proposals
1.
The opening of a technical proposal must be conducted publicly and begin
within 2 hours from the bid submission deadline. The procedure for opening a
technical proposal shall comply with Article 18 of this Decree. The record of
opening technical proposal includes the information specified in Points a, b,
dd, e and g, Clause 2, Article 18 of this Decree.
2.
The financial proposals of all investors must be sealed in a separate
envelope by the procuring entity and must be signed and sealed by
representatives of the procuring entity and investors attending the technical
proposal opening ceremony.
Article 23.
Evaluation of technical proposals
1.
Check the validity of the technical proposal, including:
a) Check the
number of originals and photocopies of the technical proposal;
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c) Check the
consistency between the original and the photocopy to serve the detailed
evaluation of the technical proposal.
2.
Evaluate the validity of the technical proposal:
The investor's
technical proposal is considered valid when it fully meets the following
requirements:
a) There is the
original technical proposal;
b) There is a
letter of bid in a valid technical proposal, signed and sealed by the
investor's legal representative (if any) as required in the Bidding document. For
a joint venture investor, the letter of bid must be signed and sealed by the
legal representative of each joint venture party (if any), or the party
assigned to by the joint venture to sign the letter of bid according to the
assigned responsibilities in the joint venture agreement;
c) The validity
of the technical proposal meets the requirements as prescribed in the Bidding
document;
d) There is a
valid bid security;
dd) The
investor is not named in two or more technical proposals as an independent
investor or a joint venture party;
e) There is a
valid joint venture agreement in case of joint venture;
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3.
The procedure for clarification of a technical proposal shall comply
with Article 20 of this Decree.
4.
Evaluate the technical proposal:
a) Principles
for evaluating a technical proposal comply with Article 19 of this Decree;
b) Investors
with valid technical proposals that meet capacity and experience requirements,
and business investment plan requirements will be considered and have their
financial proposals opened.
Article 24.
Approval for the list of technically-responsive investors
1.
The procuring entity shall consider approving the list of
technically-responsive investors submitted by the expert team.
2.
The procuring entity notifies the list of technically-responsive
investors to all investors participating in the bidding and invites investors
participating in the bidding to open financial proposals. The notice clearly
states the time and location of opening the financial proposals.
Article 25.
Opening of financial proposals
1.
Financial proposals of investors named in the list of
technically-responsive investors are opened publicly at the time and location
stated in the notice of list of technically-responsive investors. The bid
opening record includes information specified in Clause 2, Article 18 of this
Decree and must be sent to investors participating in the bid.
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Article 26.
Evaluation of financial proposals
1.
Check the validity of the financial proposal, including:
a) Check the
number of originals and photocopies of the financial proposal;
b) Check the
required documents in the financial proposal, including: The letter of bid in
the financial proposal; other documents in the financial proposal;
c) Check the
consistency between the original and the photocopy to serve the detailed
evaluation of the financial proposal.
2.
Evaluate the validity of the financial proposal:
The investor's
financial proposal is considered valid when it fully meets the following
requirements:
a) There is the
original financial proposal;
b) There is a
letter of bid in a valid financial proposal, signed and sealed by the investor's
legal representative (if any) as required in the Bidding document. For a joint
venture investor, the letter of bid must be signed and sealed by the legal
representative of each joint venture party (if any), or the party assigned to
by the joint venture to sign the letter of bid according to the assigned
responsibilities in the joint venture agreement;
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d) Validity of
the financial proposal must meet the requirements of the Bidding document.
Investors with
valid financial proposals will undergo a detailed financial evaluation in
accordance with Clause 4 of this Article.
3.
The procedure for clarification of a financial proposal shall comply
with Article 20 of this Decree.
4.
Evaluation of financial proposals:
a) Principles
for evaluating a financial proposal comply with Article 19 of this Decree;
b) Detailed
evaluation of financial proposals and investor ranking is carried out according
to the evaluation methods and criteria specified in the Bidding document.
5.
After evaluating the bid, the expert team prepares a report and sends it
to the procuring entity for consideration. The report must clearly state the
following:
a) Investor
ranking list;
b) List of
non-responsive and disqualified investors; reasons for investor rejection;
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6.
Consideration for contract award shall comply with Article 48 of this
Decree.
Section 6.
SUBMISSION, APPRAISAL, APPROVAL, AND PUBLICATION OF INVESTOR SELECTION RESULT
Article 27.
Submission, appraisal of and approval for investor selection result
1.
The submission, appraisal of and approval for investor selection result
are carried out as follows:
a) Based on the
report on the results of bid evaluation, the procuring entity submits to the
competent person the results of investor selection, and also sends them to the
appraisal team to organize the appraisal, clearly stating the opinions of the
procuring entity on the detailed evaluation of the expert team;
b) The
appraisal team shall appraise the investor selection result in accordance with
Article 53 of this Decree before approval;
c) The
competent person approves the investor selection result in writing based on the
approval request and appraisal report of the investor selection result.
2.
In case the successful investor is selected, the document approving the
investor selection result includes the following:
a) Project
name;
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c) One or more
information specified in Point c, Clause 2, Article 18 of this Decree;
d) Other
contents (if any).
3.
In case of bid cancellation in accordance with Point a, Clause 2,
Article 17 of the Law on Bidding, the approval for investor selection result or
decision on bid cancellation must clearly state the reason for the bid
cancellation and the responsibilities of related parties when canceling the
bid.
Article 28.
Publication of investor selection result
1.
Within 5 working days from the date of the approval for investor
selection result, the procuring entity posts information about the investor
selection result on VNEPS according to Point d, Clause 2, Article 7 and Clause
4, Article 8 of the Law on Bidding, and also send a written notice of investor
selection result to the investors participating in the bidding.
2.
Contents of the notice of investor selection result:
a) Information
specified in Clause 2, Article 27 of this Decree;
b) List of
unsuccessful investors and reasons for not being selected for each investor;
c) Plan for
negotiating, completing, and signing contracts with the successful investor.
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Section 29.
Negotiation and finalization of contracts
1.
Based on the investor selection result, the first-ranked investor is
invited to negotiate and finalize the contract. In case the investor is
invited to negotiate and finalize the contract, but they do not participate or
refuse to negotiate and finalize the contract, their bid security will not be
returned.
2.
The negotiation and finalization of the contract are carried out on the
basis of:
a) Bid
evaluation report;
b) The bid and
clarification of the bid (if any) of the investor;
c) The Bidding
document.
3.
Principles for negotiating and finalizing a contract:
a) Do not
negotiate and finalize the contract for the contents that the investor has
offered in accordance with the requirements of the Bidding document;
b) Do not
change the basic content of the bid.
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a) Negotiate
and finalize the proposed contents in the bid which are not detailed enough,
unclear or different; or negotiate and finalize the inappropriate or
inconsistent contents between the Bidding document and the bid which may lead
to disputes or affect the rights and obligations of the parties during contract
performance;
b) Negotiate
issues that arise during the investor selection process (if any) to finalize
the detailed contents of the contract;
c) Negotiate
other contents related to the project to have a basis for establishing
regulations on rights, obligations, and responsibilities in the contract;
d) Other
necessary contents.
5.
The investor is not allowed to change, withdraw, or refuse to implement
the basic contents proposed in their bid that is evaluated as substantially
responsive to the Bidding document by the procuring entity, unless any changes
proposed by the investor brings greater efficiency to the project.
6.
In case of unsuccessful negotiation and finalization of the contract,
the procuring entity shall report to the competent person to consider
cancelling the investor selection result and invite the next ranked investor to
negotiate and finalize the contract. In case of successful negotiation and
finalization of the contract with the next ranked investor, the procuring
entity submits, appraises, approves, and publicizes the investor selection
result in accordance with Article 27 and Article 28 of the Decree. In case of
unsuccessful negotiation and finalization of the contract with the next ranked
investor, the procuring entity shall report to the competent person to consider
cancelling the bid in accordance with Point a, Clause 2, Article 17 of the Law
on Bidding.
Article 30.
Signing of contracts and posting major information of investment project
contracts
1.
The signing of investment project contracts is carried out in accordance
with Articles 71, 72, 74 and 75 of the Law on Bidding.
2.
An investment project contracts includes basic contents as prescribed in
Article 73 of the Law on Bidding, Appendix II issued with this Decree and
regulations of special laws (if any).
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a) Project
name; contract number; time of contract signing;
b) Name and
address of the competent authority;
c) Name and
address of the investor;
d) Objectives
and scale of the project;
dd) Estimated
project implementation progress;
e) Project
implementation location, area, land use term;
g) Estimated
total investment capital;
h) One or more
information specified in Point c, Clause 2, Article 18 of this Decree;
i) Other
contents (if any).
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INVESTOR SELECTION
PROCEDURES FOR PROJECTS APPLYING COMPETITIVE BIDDING ACCORDING TO THE
TWO-STAGE, ONE-ENVELOPE METHOD
Article 31.
Preparation for bidding in first stage
1.
The two-stage, one-envelope method is applied in the case of competitive
bidding for investor selection to implement investment projects with specific
requirements for economic and social development of the industry, field,
locality but have not yet determined specific technical, economic, social and
environmental standards as prescribed in Clause 3, Article 35 of the Law on
Bidding.
2.
Preparation process for bidding in first stage includes:
a) The
preparation of and approval for investor selection progress timeline in
accordance with Article 11 of this Decree, which determines the specific
progress for each stage;
b) Disclosure
of investment project information shall comply with Article 9 or Article 10 of
this Decree;
c) The
preparation of the Bidding document in first stage shall comply with Clause 3
of this Article;
d) The
appraisal of and approval for the Bidding document in first stage shall comply
with Clause 3, Article 13 of this Decree.
3.
The Bidding document in first stage are prepared based on Article 12 of
this Decree, including the following basic contents:
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b) Instructions
for preparing and submitting bids in first stage;
c) Requirements
pertaining to investor eligibility in accordance with Article 5 of the Law on
Bidding;
d) Declaration
of investor’s history of litigation resulting from contracts completed or
ongoing under its execution;
dd) Preliminary
ideas about the business investment plan; investment efficiency and development
of the industry, field, and locality;
e) Other
necessary contents (if any).
The Bidding
document in first stage does not require investors to make financial proposals
and furnish a bid security.
Article 32.
Organization of bidding in first stage
1.
The invitation to bid in first stage shall comply with Clause 1, Article
16 of this Decree.
2.
The issuance, modification, and clarification of the Bidding document
shall comply with Clauses 2, 3 and 4, Article 16 of this Decree.
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4.
Bid opening:
a) The bid
opening must be conducted publicly and begin within 2 hours from the bid
submission deadline. The record of bid opening must be sent to investors
participating in the bid;
b) The
representative of the procuring entity signs the original letter of bid, and
the authorization letter of the investor's legal representative (if any); joint
venture agreement (if any); bid security; important contents of each bid.
5.
Discussion about the bid in first stage:
a) Based on the
requirements specified in the Bidding document and investors' proposals in bid
in the first stage, the procuring entity discusses with each investor to
accurately request the business investment plan, investment efficiency in
development of the industry and field of the project as a basis for completing
the Bidding document in second stage;
b) Discussion
about the bid in first stage must not change the content of the decision on
investment guideline approval (if the project is subject to investment
guideline approval) or content of the approval for investment project
information (if the project is not subject to investment guideline approval);
c) The
discussion result is made into a record with signatures of the representatives
of the procuring entity and the bidding investors, and then sent directly to
the investors.
Article 33.
Preparation for and organization of bidding in second stage
1.
The Bidding document in second stage is prepared based on Article 12 of
this Decree and the discussion result about the Bidding document in first
stage.
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3.
The appraisal of and approval for the Bidding document in second stage
shall comply with Clause 3, Article 13 of this Decree.
4.
Organization of bidding:
a) The
procuring entity invites investors who have submitted bids in first stage to
receive the Bidding document in second stage. The issuance, modification, and
clarification of the Bidding document in second stage shall comply with Clauses
2, 3 and 4, Article 16 of this Decree;
b) The preparation,
submission, receipt, management, modification, replacement, and withdrawal of
bids shall comply with Article 17 of this Decree;
c) The bid
opening shall comply with Article 18 of this Decree.
Article 34.
Evaluation of bids in second stage
1.
The bid evaluation shall comply with Article 19 of this Decree.
2.
The bid clarification shall comply with Article 20 of this Decree.
3.
The bid evaluation in second stage shall comply with Article 21 of this
Decree.
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1.
The submission, appraisal of, approval for, and publicization of
investor selection result shall comply with Article 27 and Article 28 of this
Decree.
2.
The negotiation, finalization, signing of contracts, publication of
project contract information shall comply with Article 29 and Article 30 of
this Decree.
Chapter IV
INVESTOR SELECTION
PROCEDURES FOR PROJECTS WHICH NEED TO DETERMINE THE NUMBER OF INTERESTED
INVESTORS
Article 36.
Application of procedures for invitation for expression of interests (invitation
for EOIs)
1.
Procedures for invitation for expression of interests apply to projects
that need to determine the number of interested investors in accordance with
special laws specified in Point h, Clause 4, Article 1 of this Decree.
2.
International invitation for EOIs applies to investment projects
specified in Clause 1 of this Article, except for the cases specified in Points
a, b, c and d, Clause 2, Article 11 of the Law on Bidding and other cases as
prescribed by special laws.
3.
The competent person will assign an agency or unit under a ministry or
ministerial-level agency; specialized agency, agency under the Provincial
People's Committee, Economic Zone Management Board; District-level People's
Committee to act as the EOI requester.
4.
The EOI requester shall follow the procedures specified in Articles 37,
38, 39, 40, 41 and 42 of this Decree. The competent authority shall create and
delegate a specialized account to the EOI requester to post information and
invite EOIs on VNEPS.
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Before
invitation for EOIs, the competent authority shall publish the project
information on VNEPS in one of the following two cases:
1.
If the project is subject to investment guideline approval, the
competent authority shall post the decision on investment guideline approval.
2.
If the project is not subject to investment guideline approval, based on
the project proposal prepared and approved in accordance with Article 10 of
this Decree, the competent authority shall post the information specified in
Points b, c, d and e, Clause 2, Article 47 of the Law on Bidding.
Article 38.
Preparation of and approval for EOI request
1.
EOI request is prepared based on Article 12 of this Decree.
2.
Contents of the EOI request include:
a) Instructions
to investors;
b) Requirements
pertaining to investor eligibility in accordance with Article 5 of the Law on
Bidding;
c) Methods and
criteria for preliminary assessment of the investor's capacity and experience
as prescribed in Clauses 3 and 4 of this Article;
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dd) Information
and requirements for implementing investment projects;
e) Other
related contents (if any).
3.
The pass and fail method is applied to make a preliminary assessment of
the investor's capacity and experience. The investor is assessed as meeting
the preliminary requirements for capacity and experience when all standards are
assessed as passed.
4.
Preliminary assessment criteria for investor’s capacity and experience,
including:
a) Equity
requirements as prescribed in Point a, Clause 1, Article 45 of this Decree;
b) The
investor's experience in implementing similar projects as prescribed in Points
a and b, Clause 2, Clause 3 and Clause 4, Article 45 of this Decree.
5.
In case the project applies domestic invitation for expression of
interests but needs to promote the use of advanced technology, techniques, and
international management experience, the EOI request can apply Clause 5,
Article 45. of this Decree.
6.
The EOI request only states the requirements for the purpose of
selecting an investor that meets the eligibility, capacity, and experience in
project implementation; and may not state any conditions to limit the
participation of investors or to create an advantage for one or several
investors, causing unfair competition.
7.
The EOI request is prepared and approved at the same time during the
process of deciding on investment guideline approval (if the project is subject
to investment guideline approval according to the law on investment) or during
the preparation of and approval for investment project information (if the
project is not subject to investment guideline approval) or after these
decisions are approved by competent authorities.
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1.
The EOI invitation is posted on VNEPS in accordance with Clause 2,
Article 8 of the Law on Bidding. For projects subject to international
competitive bidding as prescribed in Clause 2, Article 36 of the Law on
Bidding, the EOI invitation must be posted in English and Vietnamese on VNEPS
and on the websites of relevant Ministries, the Provincial People's Committee
(if any), or an English-language newspaper published in Vietnam.
2.
The EOI request is published on VNEPS. The EOI requester posts a
complete file of EOI request free of charge on VNEPS.
3.
In case of modifications of the EOI request after issuance, the EOI
requester must post on the VNEPS the modification decision enclosed with the
detailed modifications of the EOI request and the modified EOI request. The
posting of the modified decision on VNEPS is done at least 10 days before the
deadline for submitting project registration application.
4.
Clarification of EOI request:
a) In case it
is necessary to clarify the EOI request, the investor shall send a request for
clarification to the EOI requester on VNEPS at least 5 working days before the
deadline for submitting project registration application.
b) The clarification
of the EOI request must be posted on VNEPS at least 2 working days before the
deadline for submitting project registration application;
c) The
clarification of the EOI request must not be contrary to the content of EOI
request which was posted on VNEPS. In case the clarifications of the EOI
request leads to the need to modify the EOI request, the modifications of the EOI
request shall comply with Clause 3 of this Article;
d) The decision
on modifications or written clarification of the EOI request is an integral
part of the EOI request.
5.
In case it is necessary to extend the deadline for submitting the
project registration application, the EOI requester shall post a notice of
extension along with the decision to approve the extension on VNEPS. The notice
of extension must clearly state the reason for the extension, new deadline for
bid submission.
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1.
Investors prepare and submit project registration applications on VNEPS
according to the requirements of the EOI request. The duration to prepare a
project registration application is at least 30 days from the first date of
issuing EOI request to the bid submission deadline.
2.
The project registration application of the investor includes: project
registration application form; documents on the investor's legal status,
capacity and experience; other relevant documents (if any).
3.
The modification and withdrawal of the project registration application
can only be made before the deadline for submitting the project registration application.
Article 41.
Bid opening and evaluation of project registration application
1.
The bid opening is carried out on VNEPS and begins within 2 hours from
the deadline for submitting the project registration application.
2.
The EOI requester organizes the evaluation of the project registration
applications submitted by the investors. Investors are responsible for
clarifying the project registration application at the request of the EOI
requester or by themselves if they found that their submitted project
registration application is missing documents regarding their certain capacity
and experience. All clarification requests and clarification documents from
investors are made on VNEPS.
Article 42.
Submission of, approval for, and publication of the results of invitation for
EOIs
1.
Based on the results of evaluating the project registration application,
the EOI requester proposes the competent person to review and approve the
results of the invitation for EOIs and organize investor selection as follows:
a) In case
there are two or more investors that meet the requirements of EOI request,
competitive bidding will be held to select the investor in accordance with
Article 43 of this Decree;
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c) In case
there are no interested investors, or no investors meet the requirements of the
EOI request, a written notice of completion of the invitation for EOIs will be
issued.
2.
For projects specified in Point a, Clause 1 of this Article, the
competent person shall approve the investor selection progress timeline in
accordance with Article 11 of this Decree, which shall decide the procuring
entity, form and method of bidding for investor selection, time to start
organizing the selection of investors to implement investment projects. The form
of bidding to select investors is determined according to the following
regulations:
a) Domestic competitive
bidding if no foreign investor submits a project registration application or no
foreign investor meets the requirements of the EOI request as prescribed in
Point dd, Clause 2, Article 11 of the Law on Bidding;
b)
International competitive bidding if at least one foreign investor meets the
requirements of EOI request.
3.
For the case specified in Point c, Clause 1 of this Article, the
competent person shall notify in writing of completion of the invitation for
EOIs and consider carrying out one of the following two procedures:
a) Re-implement
the procedure for inviting EOIs within the time limit decided by the competent
person;
b) Review and
edit EOI request but must ensure compliance with the decision on investment
guideline approval or project information approval and re-implement the
procedure for invitation for EOIs.
4.
Based on the decision of the competent person specified in Clause 1 of
this Article, the EOI requester shall post the results of invitation for EOIs
and the investor selection progress timeline or notice of completion of the
procedure for inviting EOIs on VNEPS.
Article 43.
Investor selection procedures
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Chapter V
METHODS AND CRITERIA FOR
EVALUATION OF BIDS
Article 44.
Evaluation method
1.
The evaluation of investors' bids is carried out on the basis of the
methods and criteria specified in Article 62 of the Law on Bidding, detailed
criteria and standards specified in Articles 45, 46 and 47 of this Decree.
2.
Bids are evaluated on a scale of 100 or 1,000, in which the aggregate
score is built on the basis of a combination of capacity and experience score,
business investment plan score and score of investment efficiency in the
industry, field, and locality, ensuring a total proportion of 100%, of which:
a) Capacity and
experience score accounts for 20% to 30% of the total score;
b) Business investment
plan score accounts for 20% to 50% of the total score;
c) Score of investment
efficiency in the industry, field, and locality accounts for 30% to 50% of the
total score.
3.
Investors must meet the following minimum scores to be evaluated and
ranked:
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b) The minimum
score of a standard or detailed criterion is not lower than 60% of the maximum
score of that criterion. For projects applying the single-stage, two-envelope
method, the minimum score of the standard and detailed criterion specified in
Article 45 and Article 46 of this Decree is not lower than 70% of the maximum
score of the criterion;
c) The minimum
score of each criterion is not lower than 50% of the maximum score of that
criterion.
Investors who
meet the minimum score of each criterion specified in this Clause and have the
highest aggregate score are ranked first.
4.
For investment projects with specific requirements on business
investment conditions, management and development of the industry and field in
accordance with investment law and special laws, the Bidding document specifies
one or more evaluation criteria for the investor's business investment plan or
the investment efficiency in developing the industry, field, and locality
without having to build a scoring scale for this fixed criterion.
Article 45.
Evaluation criteria for capacity and experience
1.
Evaluation criteria for financial capacity and ability to arrange
capital include the following:
a) Equity
requirements are determined on the basis of the total investment capital of the
project;
For projects
specified in Clause 4, Article 1 of this Decree and using land, the minimum
equity requirement is determined in accordance with the land law. For other
projects, the minimum equity requirement is determined in accordance with
special laws. In cases where the special laws do not stipulate that, the minimum
equity requirement is not lower than 15% of total investment capital.
In case of a
joint venture, the equity of the joint venture investor is equal to the total
equity of the joint venture parties, each joint venture party must meet the
requirements corresponding to the equity contribution according to the joint
venture agreement. The lead party in the joint venture must have a minimum
equity contribution rate of 30%, and each joint venture party must have a
minimum equity contribution rate of 15%.
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c) Requirements
for financial indicators (if any).
2.
Evaluation criteria for experience in implementing similar projects
based on field; investment scale; duration and level of completion of works and
projects; equity ratio that the investor has participated in similar projects,
including the following criteria:
a) Experience
in investing and constructing similar works and projects (for projects with
construction components); experience in investing in similar projects (for
projects without construction components);
b) Experience
in operating and trading similar works and projects;
c) Requirements
for experience of key personnel and specialized equipment (if any);
d) Require
investors to declare history of litigation resulting from projects completed or
ongoing under its execution; competent authorities' assessment of the
investor's operating process in the provinces or centrally affiliated cities
where the projects are implemented (if any).
3.
In case of a joint venture, the joint venture investor's experience in
implementing similar projects specified in Clause 2 of this Article is equal to
the total number of projects that the joint venture parties have implemented.
4.
Investors may use their partners' experience to demonstrate their
experience in implementing similar projects specified in Clause 2 of this
Article. Partner is an organization that signs a contract with an investor to
participate in implementing an investment project and is proposed by the
investor in their Bid based on the experience requirements specified in the
Bidding document.
5.
In case the project applies domestic bidding but needs to promote the
use of advanced technology, techniques, and international management
experience, the Bidding document may stipulate that domestic investors can
engage foreign contractors as partners.
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Article 46.
Evaluation criteria for investors' business investment plans
1.
Technical evaluation criteria:
a) Requirements
on the suitability of the investment plan and project construction of the
investor (including scope, scale, preliminary total project implementation
costs, time, progress, phasing construction investment) with planning and plans
approved by competent authorities in accordance with law on planning,
construction, management of industries and fields and relevant laws; housing
development programs and plans, apartment renovation and construction plans in
accordance with housing law (for social housing construction projects,
apartment building rebuilding and renovation projects);
b) Requirements
on the suitability of the architectural design proposed by the investor,
including requirements on the main functions of the project, technical
infrastructure, architecture, and landscape to ensure synchronization with the
overall design of the construction works (for projects with construction
components), except for the provisions in Point g of this Clause;
c) Requirements
on feasibility of technology application solutions proposed by investors;
technology transfer requirements (if any); requirements for conformity with
regulations on technology criteria for domestic solid waste treatment in
accordance with law on environmental protection (for investment projects to
construct domestic solid waste treatment works);
d) Requirements
for compliance with investment and business conditions according to investment
laws and special laws (if any); requirements on phasing plans, operation and
business of the investor;
dd)
Requirements on the compatibility of the betting system investment plan and
betting business plan with the provisions of law on the business of betting on
horse racing, greyhound racing, and international football (applicable to
projects for international football betting business; horse racing and
greyhound racing projects, including horse racing and greyhound racing betting
business);
e) Requirements
pertaining to the quality of goods and services provided by investors
(applicable to projects for building domestic solid waste treatment works, projects
in the field of private sector involvement incentives); requirements pertaining
to specialized techniques, scope and scale of dredging, volume of recovered
products (applicable to projects for dredging seaport waters, inland waterway
waters combined with product recovery); requirements pertaining to clean water
quality, reducing water loss rate and ensuring safe, continuous and stable
water supply (applicable to projects for building water supply sources,
projects for building water supply system);
g) Requirements
for the main functions of the technical infrastructure, and landscape to be
synchronized with the overall project (applicable to aviation service works at
airports and airfields with construction components).
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a) Requirements
pertaining to plans for and costs of compensation, support, and resettlement
(if any);
b) Requirements
pertaining to the ability to contribute to social welfare for local workers
through the employment of local workers, human resource training, average
income level and average income growth rate;
c) Requirements
for the people to meet healthcare needs and benefits, and educational and
training benefits (applicable to projects that encourage private sector
involvement in the fields of health and education).
3.
Environmental evaluation criteria:
a) Requirements
pertaining to the conformity of the works, goods and services provided with the
environmental law; requirements pertaining to solutions for dredging seaport
waters and inland waterway waters to limit recovery of products affecting
seaport waters and inland waterway waters (applicable to projects for dredging
seaport waters, inland waterways combined with product recovery);
b) Requirements
for applying solutions to minimize adverse impacts on the environment
(applicable to projects in the group with a high risk of adverse impacts on the
environment in accordance with law on environmental protection);
c) Requirements
pertaining to environmental protection, clean production, and energy saving;
d) Requirements
pertaining to land and resource use rates; ability to preserve or improve land,
resources, and natural ecosystems in the project area.
Article 47.
Evaluation criteria for investment efficiency in developing the industry,
field, and locality
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1.
Value in money transferred to the state budget applicable to projects
for dredging seaport waters and inland waterways combined with product
recovery, in which:
a) Minimum
value of the difference between dredging costs and the value of recovered
products in case the project's dredging costs are less than or equal to the value
of recovered products;
b) Maximum
value of the difference between dredging costs and the value of recovered
products in case the project's dredging costs are greater than the value of
recovered products.
2.
Minimum value in money transferred to the state budget is determined
based on specific requirements and criteria specified in the special laws.
3.
The minimum revenue ratio shared by the investor is equivalent to the
value in money transferred to the state budget according to the business
investment plan used to prepare the Bidding document for an aviation service
work at an airport or airfield that generates revenue.
4.
Price bracket and maximum price in accordance with the law on prices and
the special laws.
5.
The minimum amount of technical infrastructure, social infrastructure,
public space serving the community surrounding the project and accompanying
operational services are appropriate to the needs of the locality where the
project is implemented.
6.
Minimum value of social assistance activities for social protection
beneficiaries or minimum value of other social welfare activities that the
investor contributes to the locality, in accordance with the needs of locality
where the project is implemented.
7.
Maximum threshold for total emission of toxic substances in accordance
with law on environmental protection.
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Article 48.
Principles for consideration for contract award
1.
An investor is considered awarding a contract when they fully meet the
following conditions:
a) They have a
valid bid;
b) They meet
the capacity and experience requirements;
c) They meet
the business investment plan requirements;
d) They meet
the requirements pertaining to investment efficiency in development of the
industry, field, and locality;
dd) They have
the highest aggregate score of capacity and experience; business investment
plan; and investment efficiency in developing the industry, field, and
locality.
2.
For unsuccessful investors, they shall be provided with a notice of
investor selection result that states the reason they did not win the bid.
Chapter VI
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Article 49.
Establishing an enterprise to implement the investment project of the
successful investor
1.
The successful investor has the right to establish an enterprise to
implement the investment project or directly implement the project. A
successful foreign investor must establish an enterprise to implement the
project. The establishment, management, operation and dissolution of
enterprises comply with law on enterprises, investment, and relevant laws.
2.
In case of planning to establish an enterprise to implement a investment
project as prescribed in Clause 1 of this Article, the investor must propose it
in their bid.
3.
An enterprise established by the investor in accordance with Clauses 1
and 2 of this Article has the following rights and obligations:
a) The
enterprise must have 100% charter capital held by the successful investor;
b) The
enterprise inherits the rights and obligations to implement the investment
project that the successful investor has committed to in their bid and
contract;
c) The
enterprise must meet the conditions for establishment and operation in
accordance with law on enterprises, investment, construction, land and special
laws;
d) The
investment project is non-transferable if it does not meet the conditions
specified in Clause 2, Article 76 of the Law on Bidding and the conditions
prescribed by the law on investment and the special laws.
4.
The successful investor has the right to contribute capital and increase
the charter capital of the enterprise to carry out other investment projects
(if any) provided that they do not affect the rights and obligations committed
in the bid and the contract.
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Article 50. Implementation
of investment projects of successful investors
1.
After completing compensation, support, and resettlement of the
project's land area, the successful investor or enterprise established under
Article 49 of this Decree will be allocated or leased land, determine land
levies and land rents in accordance with land law.
2.
The successful investor and the enterprise established by the successful
investor shall implement the investment project in accordance with the contract
and laws on enterprises, investment, construction, and land, and other relevant
laws.
Article 51.
Implementation of investment projects of investors approved in accordance with
investment laws
1.
Investors approved in accordance with Point b, Clause 1, Article 42 of
this Decree are allocated land, leased land, determine land levies and land
rents in accordance with land law and prescribed in Clause 1, Article 50 of
this Decree.
2.
Investors approved in accordance with Point b, Clause 1, Article 42 of
this Decree carry out their investment projects according to the investor
approval application and the investor approval decision and laws on business,
investment, construction, land, and other relevant laws.
Chapter VII
MATTERS TO BE APPRAISED
AND RESPONSIBILITIES FOR APPRAISAL AND APPROVAL DURING THE INVESTOR SELECTION
PROCESS
Article 52.
Appraisal of the Bidding document
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a) Proposal for
approval for the Bidding document from the procuring entity;
b) The Draft
Bidding document;
c) Photocopies
of documents: The decision on investment guideline approval (if the project is
subject to investment guideline approval in accordance with law on investment),
or an approval for investment project information (if the project is not
subject to investment guideline approval);
d) Other
documents in accordance with special laws and relevant laws.
2.
Matters to be appraised include:
a) The legal
bases and documents as a basis for preparing the Bidding document;
b) The
compatibility of the content of the Bidding document with the scale,
objectives, scope of work, and project implementation duration; the conformity
of the Bidding document with the provisions of the law on bidding and other
relevant laws;
c) Different
opinions (if any) between organizations and individuals participating in
preparing the Bidding document;
d) Other
related contents.
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a) Overview of
project information and legal bases for preparing the Bidding document;
b) Summarize
opinions of relevant agencies and departments (if any);
c) Comments and
opinions of the appraisal team on the matters specified in Clause 2 of this
Article; agreement or disagreement on the content of the Draft Bidding
document;
d) Proposals
and recommendations of the appraisal team on approval for the Bidding document;
proposed solutions in case the Bidding document contains content that does not
comply with the law on bidding and other relevant laws; recommendations in case
there is not enough basis to approve the Bidding document;
dd) Other
opinions (if any).
4.
Before signing the appraisal report, the appraisal team holds a meeting
between the parties to discuss and resolve issues in the Bidding document that
remain controversial (if necessary).
Article 53. Appraisal
of investor selection result
1.
Documents submitted for appraisal and approval include:
a) Proposal for
approval for investor selection result from the procuring entity;
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c) Photocopies
of documents: The Bidding document, bid closing and bid opening records, bids
of investors and other relevant documents.
2.
Matters to be appraised include:
a) Check documents
that are the basis for organizing bidding for investor selection;
b) Check
compliance with time regulations during the process of organizing bidding for
investor selection;
c) Check the
evaluation of bids; compliance with regulations of the law on bidding and other
relevant laws during the evaluation of bids;
d) Consider
different opinions (if any) between the procuring entity and the expert team;
between individuals in the expert team;
dd) Other
related contents.
3.
Contents of the appraisal report include:
a) Overview of
project information and legal basis for organizing bidding for investor
selection;
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c) Summarize
opinions of related agencies and departments (if any);
d) Comments and
opinions of the appraisal team on the matters specified in Clause 2 of this
Article; some observations on how well the investor selection process achieved
the goals of competition, fairness, transparency, economic efficiency, and
accountability; agreement or disagreement on the investor selection result;
dd) Proposals
and recommendations of the appraisal team on approving the investor selection
result; propose solutions in case of non-compliance with the provisions of the
law on bidding and other relevant laws during the bidding process to select
investors; recommendations in case there is not enough basis to approve the
investor selection result;
e) Other
opinions (if any).
Article 54.
Responsibilities of Ministers, heads of ministerial-level agencies, Presidents
of the Provincial People's Committees, Heads of the Economic Zone Management
Boards
1.
Approve the results of invitation for EOIs and investor selection
results.
2.
Approve EOI requests.
3.
Approve the Bidding document or authorize heads of agencies under
ministries or ministerial-level agencies; specialized agencies, agencies under
the Provincial People's Committee, Economic Zone Management Board;
district-level People's Committees to approve the Bidding document.
4.
Perform other tasks falling within the responsibilities of the competent
persons specified in Article 77 of the Law on Bidding.
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1.
Perform tasks under the responsibilities of the procuring entity as
prescribed in Article 79 of the Law on Bidding; approve the list of
technically-responsive investors.
2.
Perform tasks under the responsibilities of the EOI requester as
prescribed in Clause 4, Article 36 of this Decree.
3.
Perform other tasks on investor selection as authorized by competent
authorities.
Article 56.
Responsibilities of the appraisal team
1.
The Department of Planning and Investment shall appraise the following:
a) The Bidding
document of a project to which the President of the Provincial People's
Committee is the competent person, except for the case specified in Clause 3 of
this Article;
b) The investor
selection result of a project to which the President of the Provincial People's
Committee is the competent person.
2.
Agencies and units assigned by the Minister, head of ministerial-level
agency, Head of Economic Zone Management Board shall appraise the following:
a) The Bidding
document of a project to which the Minister, head of ministerial-level agency,
Head of Economic Zone Management Board is the competent person, except for the
case specified in Clause 3 of this Article;
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3.
In case the procuring entity is authorized to approve the Bidding
document in accordance with Point d, Clause 2, Article 79 of the Law on Bidding
and Clause 3, Article 54 of this Decree, the procuring entity shall establish
an appraisal team or assign an affiliated unit to appraise the Bidding
document.
4.
In case the organization or individual assigned to appraise does not
have enough capacity, then choose a consulting organization with sufficient
capacity and experience to do the appraisal.
Chapter VIII
HANDLING SITUATIONS AND
INSPECTING AND MONITORING BIDDING ACTIVITIES FOR INVESTOR SELECTION
Article 57. Handling
situations in investor selection
1.
On the bid submission deadline, if no investor has submitted the project
registration application or bid, the EOI requester or the procuring entity
shall report to the competent person to address the situation in either of two
ways below:
a) Allow
extension of deadline for bid submission for up to 30 days;
b) Cancel the EOI
invitation, notice of invitation to bid, and concurrently request the EOI
request and the procuring party to adjust the EOI request, invitation to bid
and reorganize the investor selection.
2.
At the bid submission deadline, if there are less than 3 investors who have
submitted the project registration applications or bids, the EOI requester or
the procuring entity shall report to the competent person within 4 hours from
the deadline to address the situation in either of two ways below:
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b) Allow bid
opening immediately to conduct evaluation.
3.
In case the Bidding document are discovered to have content that leads
to unclear or different interpretations during the bid evaluation process or
may distort the investor selection result, the procuring entity shall report
the competent person to consider and handle it according to the following
steps:
a) Modify and
clarify the Bidding document, ensuring that it is not contrary to the
investment guideline approval decision (if the project is subject to investment
guideline approval according to investment laws), project information approval
(if the project is not subject to investment guideline approval), and
regulations of Law on bidding and special laws;
b) Notify all
investors who have submitted bids of the modification of the Bidding document
and request the investors to submit additional bids for the amended content or
other contents of the Bidding document if there is an impact from the
modification of the Bidding document (if necessary);
c) Organize
re-evaluation of bids.
4.
After selecting a short list for an investment project under the limited
bidding procedure, if there are less than 03 investors that meet the project's
requirements, the procuring entity shall report the competent person to review
and approve the short list with less than 3 investors.
5.
After evaluating the bids, if at least investors have the highest and
equal aggregate score, then the investor will have the higher score in terms of
investment efficiency in developing the industry, field, or locality is
considered and recommended to win the bid.
6.
At the time of signing the contract, if the successful investor does not
meet the technical and financial capacity requirements to implement the investment
project as required by the Bidding document, then invite the next ranked
investor to enter into contract negotiation and finalization. If the bid of the
investor invited to negotiate and finalize the contract expires and their bid
security has been returned or released, they must extend their bid validity
period and bid security.
7.
If a joint venture wins a bid but has not signed the project contract
yet, or if the contract is signed but not yet in effect, any changes to the
equity contribution ratio within the joint venture require the procuring entity
to re-evaluate and update investor capacity according to Article 45 of this
Decree. This verification, in accordance with Article 45 of this Decree, will
ensure each joint venture party meets the minimum equity requirements. After
updating capacity information, the procuring entity shall report the competent
person to consider carrying out further procedures specified in this Decree.
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9.
If the EOI requester or procuring entity discovers they have posted
incorrect information on VNEPS before the bid submission deadline, they must
notify the relevant authority to remove the information and post a corrected
version.
10.
Beyond the situations outlined in Clauses 1 to 9 of this Article, the
EOI requester or procuring entity may report unforeseen circumstances in
investor selection to the competent authority. This report will enable a
considered decision that upholds the bidding objectives of competition,
fairness, transparency, economic efficiency, and accountability.
Article 58.
Inspection of bidding for investor selection
1.
Authority to inspect bidding for investor selection:
a) The Ministry
of Planning and Investment takes charge and organizes inspection of bidding for
investor selection according to periodic plans nationwide;
b) The
Minister, head of ministerial-level agency, or Head of the Economic Zone
Management Board takes charge and organizes inspection of bidding for investor
selection for projects for which they are competent persons;
c) The
President of the Provincial People's Committee takes charge and organizes the
inspection of bidding for investor selection applicable to projects for which they
are the competent person. The Department of Planning and Investment shall
assist the President of the Provincial People's Committee to inspect bidding
for investor selection within the province.
2.
Matters to be inspected in investor selection:
a) Promulgation
of guidance documents for investor selection implementation;
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c) Preparation of
and approval for EOI requests; evaluation of and approval for invitation for
EOI results;
d) Preparation
of and approval for the Bidding document; evaluation of and approval for
investor selection results;
dd) Content of
the signed contract and compliance with legal bases in signing and implementing
the contract;
e) Other
necessary contents.
3.
Inspection principles, forms, methods, and procedures shall comply with
the corresponding regulations in the Decree on elaboration and implementation
of the Law on Bidding regarding bidder selection.
Article 59. Supervision
of bidding for investor selection
1.
Supervision of investor selection as prescribed in Point a, Clause 3,
Article 86 of the Law on Bidding is carried out in combination with investment
project supervision or overall investment supervision by the investment
authority, the investment registry in accordance with the law on investment.
2.
Authority to supervise bidding for investor selection:
a) The
Minister, head of ministerial-level agency, or Head of the Economic Zone
Management Board takes charge and organizes supervision of bidding for investor
selection for projects for which they are competent persons or for projects
under their managed fields;
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3.
Matters to be supervised in investor selection:
a) Announcement
of investment projects (if the project is subject to investment guideline
approval); preparation of, approval for, and disclosure of investment projects (if
the project is not subject to investment guideline approval);
b) Preparation,
appraisal of and approval for the Bidding document;
c) Evaluation
of the bid;
d) Appraisal of
investor selection results;
dd) Results of
negotiation, finalization, and signing of the contract.
4.
At the end of the contract term, the competent authority will exercise
its legal oversight functions in terms of state investment management,
investment project supervision, and overall investment supervision to ensure
investors fulfill all their commitments during the project implementation.
Chapter IX
ELECTRONIC INVESTOR SELECTION
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1.
From January 1, 2025: Carry out procedures for inviting EOIs via the
domestic network in accordance with Article 61 of this Decree on VNEPS.
2.
From July 1, 2025: Implement electronic investor selection for
investment projects applying competitive bidding and limited domestic bidding
according to the single-stage, one-envelope method, or single-stage,
two-envelope method as prescribed in Article 62 of this Decree on the System.
3.
For investment projects in the case of international bidding, online
investor selection is not applicable, but project information must be made
public on the System in accordance with Clause 2, Article 7 of the Law on
Bidding.
Article 61.
Process for electronic invitation for EOIs
1.
Electronic EOI invitation, issuance of electronic EOI requests:
a) Electronic EOI
invitation (hereinafter referred to as E-EOI invitation) is posted on the
System in accordance with Clause 2, Article 8 of the Law on Bidding;
b) Electronic EOI
requests (hereinafter referred to as E-EOI request) is issued simultaneously
with E-Notice on the VNEPS. The EOI requester can upload the E-EOI request file
on the VNEPS for free and in full;
c)
Modifications and cancellations of the E-EOI invitation can only be made before
the deadline for submitting electronic project registration application
(hereinafter referred to as E-PRA), except in cases where no investor submits
the E-PRA.
2.
Modifications and clarifications of E-EOI invitation; extension of
submission of E-PRA:
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b)
Clarifications of E-EOI invitation:
In case the E-EOI
invitation needs to be clarified, the investor sends a request for
clarification to the EOI requester on the VNEPS at least 5 working days before
the deadline for submitting the E-PRA for consideration.
The
clarifications of E-EOI invitation is posted on the VNEPS at least 2 working
days before the deadline for submitting the E-PRA. The detailed clarifications
of E-EOI invitation must not be contrary to the content of E-EOI invitation
posted on the VNEPS.
If the E-EOI
invitation needs to be modified as a result of clarification, the modification
must follow the requirements outlined in Point a of this Clause.
c) In case of
extension of the deadline for submitting the E-PRA on the VNEPS, the EOI
requester posts a notice of extension along with the extension approval on the
VNEPS. The notice of extension must clearly state the reason for the
extension, new deadline for bid submission.
3.
Submission, modification, replacement, withdrawal of E-PRA:
a) Submission
of E-PRA:
The investor
shall prepare and submit the E-PRA on the VNEPS. In case of a joint venture,
the leading party of the joint venture or the assigned party in the joint
venture agreement shall submit the E-PRA and also attach the joint venture
agreement on the VNEPS.
The system
notifies the investor about the status of E-PRA submission (successful or
unsuccessful) via the email address registered by the investor. Information
recorded on the VNEPS as a basis for resolving complaints and disputes (if any)
includes: information about the sender, recipient, time of sending, sending
status, number of attached files on the VNEPS when the investor submits their E-PRA.
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The investor
shall clarify the E-PRA at the request of the EOI requester or by themselves if
they found that their submitted E-PRA is missing documents regarding their certain
capacity and experience. The clarification of the E-PRA is carried out on the
VNEPS.
c) Modification,
replacement, withdrawal of E-PRA:
After
submission, the investor can modify, replace, or withdraw the E-PRA. Investors
are not allowed to withdraw submitted documents after the deadline for E-PRA
submission.
4.
E-PRA opening:
The E-PRA is
opened and decoded for evaluation. Record of opening the E-PRA is posted
publicly on the VNEPS within 2 hours after the deadline for E-PRA submission.
5.
Evaluation of E-PRA:
At the deadline
for E-PRA submission, the EOI requester shall access the VNEPS and evaluate E-PRAs
of the investors.
6.
After having the E-PRA evaluation result, the EOI invitation result,
including the list of investors that meet the E-EOI invitation requirements,
shall be posted on the VNEPS.
Article 62. Process
for electronic investor selection
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a) Electronic
invitation to bid (hereinafter referred to as E-ITB) is posted on the VNEPS in
accordance with Clause 2, Article 8 of the Law on Bidding.
b) Electronic Bidding
document (hereinafter referred to as E-BD) is published simultaneously with E-ITB
on the VNEPS. The procuring entity can upload the E-BD on the VNEPS for free
and in full.
c)
Modifications and cancellations of E-BD can only be made before the bid
submission deadline, except in cases where no investor submits an E-Bid.
2.
Modification and clarification of E-BD:
a) In case the
E-BD is modified after its issuance, the procuring entity must post on the
VNEPS modifications along with the modified E-BD.
b)
Clarification of E-BD:
In case the
E-BD needs to be clarified, the investor sends a request for clarification to
the procuring entity on the VNEPS within the time limit specified in the E-BD
for consideration.
The
clarification is posted on the VNEPS at least 2 working days before the bid
submission deadline. The detailed clarifications of E-Bd must not be contrary
to the content of E-BD posted on the VNEPS.
If the E-BD
needs to be modified as a result of clarification, the modification must follow
the requirements outlined in Point a of this Clause.
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3.
Submission, modification, replacement, withdrawal of E-Bid:
a) Submission
of E-Bid:
Investors shall
prepare and submit E-bids on the VNEPS, and furnish E-bid security (if any) on
the VNEPS.
In case of a
joint venture, the leading party of the joint venture or the assigned party in
the joint venture agreement shall submit the E-Bid and also attach the joint
venture agreement on the VNEPS.
The VNEPS notifies
the investor about the status of E-Bid submission (successful or unsuccessful)
via the email address registered by the investor. Information recorded on the
VNEPS as a basis for resolving complaints and disputes (if any) includes: information
about the sender, recipient, time of sending, sending status, number of
attached files on the VNEPS when the investor submits their E-Bid.
b)
Clarification of E-Bid:
The investor
shall clarify the E-Bid at the request of the procuring entity or by themselves
if they found that their submitted E-Bid is missing documents regarding their
certain capacity and experience. The clarification of the E-Bid is carried out
on the VNEPS.
c) Modification,
replacement, withdrawal of E-Bid:
After
submission, the investor can modify, replace, or withdraw the E-Bid. Investors
are not allowed to withdraw submitted documents after the bid submission
deadline.
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The procuring
entity opens and decodes the E-bid for evaluation. Record of opening the E-Bid is
posted publicly on the VNEPS within 2 hours after the bid submission deadline.
5.
Evaluation of E-Bid:
At the E-Bid
submission deadline, the procuring entity shall access the VNEPS and evaluate
the E-Bids submitted by investors.
6.
After evaluating the E-bids, the investor selection result will be
approved and publicly posted on the VNEPS within the time limit specified in
Clause 4, Article 8 of the Law on Bidding.
Article 63.
National database of investors
1.
National database of investors on the VNEPS includes:
a) Information
about the investor's legal status;
b) Information
about the investor's capacity and experience;
c) Information
on actions against investors’ violations of bidding laws;
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2.
Investors are responsible for registering on the VNEPS in accordance
with Point d, Clause 1, Article 5 of the Law on Bidding before the investor
selection result are approved. They must keep their information up-to-date and
accurate as specified in Points a and b, Clause 1 of this Article. The
procedure for registering and updating investor information on the VNEPS is
implemented in accordance with the corresponding regulations in the
Government's Decree on elaboration and implementation of the Law on Bidding
regarding bidder selection.
3.
The information specified in Point c, Clause 1 of this Article is posted
on the VNEPS by the competent authority in accordance with Point a, Clause 2
and Clause 4, Article 8 of the Law on Bidding.
Chapter X
IMPLEMENTATION
Article 64.
Amendment to Clause 3, Article 5 of Decree No. 52/2020/ND-CP dated April 27,
2020 of the Government on investment in construction and business of golf
courses
“3. The form of
investor selection for golf course project is determined in accordance with the
law on investment, land and relevant laws.”
Article 65.
Transitional regulations
1.
If a project which is subject to investment guideline approval by a
competent authority or is subject to project portfolio approval (if not subject
to investment guideline approval) has not established investor capacity and
experience requirements by the time Bidding Law No. 22/2023/QH15 takes effect,
the following transitional regulations will apply.
a) Projects
utilizing an Expression of Interest (EOI) process under this Decree must follow
the EOI invitation and request procedures outlined in the Law on Bidding No.
22/2023/QH15 and this Decree;
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2.
If a project issued an EOI invitation before Bidding Law No.
22/2023/QH15 took effect, but the project registration applications have not
been approved by the effective date of the Bidding Law, then evaluate them
based on the investor capacity and experience requirements, along with relevant
regulations, which were in effect when those requirements were approved. After
obtaining the preliminary assessment results of capacity, experience, follow
one of the following cases:
a) For projects
in industries and fields lacking legal documents on investor selection before
Bidding Law No. 22/2023/QH15 and this Decree take effect, prepare, appraise,
and approve bidding documents and take next procedures prescribed in the Law on
Bidding No. 22/2023/QH15 and this Decree;
b) For projects
in industries and fields that have had legal documents on investor selection
before the time Bidding Law No. 22/2023/QH15 and this Decree take effect, competent
authorities can continue using those documents if the managing ministries have
not issued new ones. However, they also have the option to follow the
procedures outlined in the Law on Bidding No. 22/2023/QH15 and this Decree.
3.
If a project has had preliminary assessment results of the investor's
capacity and experience approved, but the bidding document is not issued by the
time Bidding Law No. 22/2023/QH15 takes effect, then follow one of the
following cases:
a) For projects
in industries and fields lacking legal documents on investor selection before
Bidding Law No. 22/2023/QH15 and this Decree take effect, prepare, appraise,
and approve bidding documents and take next procedures prescribed in the Law on
Bidding No. 22/2023/QH15 and this Decree;
b) For projects
in industries and fields that have had legal documents on investor selection
before the time Bidding Law No. 22/2023/QH15 and this Decree take effect,
competent authorities can continue using those documents if the managing
ministries have not issued new ones. However, they also have the option to
follow the procedures outlined in the Law on Bidding No. 22/2023/QH15 and this
Decree.
4.
If a project has issued a Bidding document but the bid evaluation result
has not been approved by the time Bidding Law No. 22/2023/QH15 takes effect,
then continue evaluating the bids according to the Bidding document, along with
relevant regulations, which are in effect at the time of approval for the
Bidding document. The signing and performance of the contract shall be carried
out in accordance with the law in effect at the time of approval for the Bidding
document.
5.
A project that has already obtained an investment guideline approval (if
the project is subject to investment guideline approval), or obtained a project
portfolio approval (if the project is not subject to investment guideline
approval), or issued the Bidding document, or received investor selection
result with a cost refund provision (as per the Law on Bidding No.
43/2013/QH13), can continue following the approved refund principles.
6.
For golf courses requiring investment guideline approval with investor
selection through bidding (as per the Law on Bidding), if no EOI request or
investor capacity/experience requirements are established by the time Bidding
Law No. 22/2023/QH15 takes effect, halt investor selection procedures outlined
in Article 64 of the Decree. If investor capacity/experience requirements or
Bidding documents have been issued before the date of this Decree takes effect,
continue to comply with Clauses 2, 3 or 4 of this Article.
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Article 66.
Entry into force
1.
This Decree comes into force from the date of signing.
2.
From the effective date of this Decree, Point c, Clause 1, Article 1 and
Article 16 of Decree No. 25/2020/ND-CP dated February 28, 2020 of the
Government on elaboration and implementation of the Law on Bidding on investor
selection, Clause 7, Article 108 of Decree No. 31/2021/ND-CP dated March 26,
2021 of the Government on elaboration and implementation of the Law on Investment
cease to be effective.
3.
If a special law mandates project bidding after this Decree's effective
date, investor selection must follow the procedures outlined in the Law on
Bidding and this Decree. The methods and criteria for evaluating the project
registration application, the Bidding document, and any other relevant aspects
should comply with the special law. This ensures the bidding process remains
competitive, fair, transparent, economically efficient, and accountable.
Article 67.
Implementation
1.
The Minister of Planning and Investment promulgates forms and documents
in the process of selecting investors non-electronically and electronically.
2.
Ministers shall:
a) Review
existing legal documents related to investor selection procedures for
investment projects within their scope of management. These documents should be
promptly amended, supplemented, or replaced to ensure they fully comply with
the Law on Bidding No. 22/2023/QH15 and this Decree;
b) Review and
assess the following: standards and criteria used to evaluate investor business
investment plans, standards and criteria used to evaluate the effectiveness of
investments in developing the industry or field, and implementation of
investment project contracts. Based on this assessment, where necessary, the
Minister can issue or request a competent authority to issue a document
outlining appropriate enforcement measures specific to the industry or field
being managed.
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ON BEHALF OF THE GOVERNMENT
PP. PRIME MINISTER
DEPUTY PRIME MINISTER
Tran Hong Ha