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MINISTRY OF
TRANSPORT
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SOCIALIST REPUBLIC
OF VIETNAM
Independence – Freedom – Happiness
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No.
22/2021/TT-BGTVT
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Hanoi, September
30, 2021
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CIRCULAR
METHODS
AND QUALITY OF ASSESSING BIDDING DOCUMENTS FOR SELECTING INVESTORS FOR DREDGING
PROJECTS IN COMBINATION WITH DREDGED MATERIAL COLLECTION IN SEAPORT WATERS AND
INLAND WATERS
Pursuant to Vietnam Maritime Code dated November
25, 2015;
Pursuant to Law on Inland Waterway Transport
dated June 15, 2004; Law on amendments to Law on Inland Waterway Transport
dated June 15, 2014;
Pursuant to Decree No. 12/2017/ND-CP dated
February 10, 2017 of Government on functions, tasks, powers, and organizational
structure of Ministry of Transport;
Pursuant to Decree No. 58/2017/ND-CP dated May
10, 2017 of Government on elaborating to a number of Articles of Vietnam
Maritime Code providing for maritime activity management;
Pursuant to Decree No. 08/2021/ND-CP dated
January 28, 2021 of the Government managing inland waterway activities;
Pursuant to Decree No. 159/2018/ND-CP dated
November 28, 2018 of Government on dredging in seaport waters and inland
waterways;
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Pursuant to Decree No. 31/2021/ND-CP dated March
26, 2021 of the Government on elaborating to Law on Investment;
At request of Director of Traffic Infrastructure
Department, Director of Vietnam Maritime Administration, and Director of
Vietnam Inland Waterways Administration;
Minister of Transport promulgates Circular on
methods and quality of assessing bidding documents for selecting investors for dredging
projects in combination with dredged material collection in seaport waters and
inland waters.
Chapter I
GENERAL PROVISIONS
Article 1. Scope
This Circular prescribes procedures, methods, and
standards for assessing bidding documents and written recommendations of
investors for dredging projects in seaports and inland waters under joint
management of Ministry of Transport and People’s Committees of provinces in
combination with dredged material collection.
Article 2. Regulated entities
This Circular applies to agencies, organizations,
and individuals participating in or related to selection of investors for
dredging projects in seaport waters, inland waters in combination of dredged
material collection.
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1. Within 7 working days from
the date on which feasibility reports of projects are approved, agencies that
approve feasibility reports of projects shall upload lists of projects and
publicize project information on the National bidding network to serve as the
basis for identifying number of investors concerning, registering for project
execution.
2. Project information
publicized includes
a) Name of project; investment goal, investment
scale; basic requirements of the project; execution deadline and progress;
execution location;
b) Decision approving feasibility report of the
project, decision approving revision of feasibility report of the project (if
any);
c) Basic requirements for capacity and experience
of investors according to Annex attached hereto;
d) Deadline for submission of registration for
project execution;
dd) Location for submission of registration for
project execution: Submit in person at agency approving feasibility report of
the project (name of agency, address, and phone number for contact when
necessary); in case the National bidding network allows online registration,
submit registration on the National bidding network;
e) Other information (if necessary).
3. Investors are responsible
for preparing and submitting registration for project execution according to
Clause 2 of this Article.
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a) Written registration for project execution;
b) Documents on legitimacy, capacity, and
experience of investors;
c) Other relevant documents (if any).
5. Once deadline for
submission of registration expires, agencies approving feasibility reports of
project shall assess registration for project execution by judging details
under Clause 2 of this Article and basic capacity, experience of investors.
Investors satisfying these regulations are eligible for participating in
selection process under Article 4 hereof.
6. Based on assessment results
under Clause 2 of this Article, agencies approving feasibility reports shall
decide to organize investor selection according to Clause 1 Article 33 of
Decree No. 159/2018/ND-CP dated November 28, 2018 and Article 16 of Decree No.
25/2020/ND-CP dated February 28, 2020 of the Government (with amendment thereto
under Clause 7 Article 108 of Decree No. 31/2021/ND-CP dated March 26, 2021).
Article 4. Selecting investors
for project execution
1. In case 2 or more investors
satisfying basic requirements for capacity and experience, bidding for
selecting investors shall be conducted in form of open bidding, including:
a) Prepare to select investors;
b) Organize investor selection;
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d) Open and assess written recommendations in terms
of financial - commercial matters;
dd) Request, appraise, approve, and publicize
investor selection results;
e) Negotiate, finalize, and sign contracts.
2. In case an investor
registering and satisfying basic requirements for capacity and experience or
multiple investors register where only one investor satisfies basic
requirements for capacity and experience, adopt procedures for accepting
investors according to regulations and law on investment and the followings:
a) Agencies approving feasibility reports of
projects shall prepare written recommendation. Written recommendation shall be
developed on the basis of revising form under Annex IV attached to
06/2020/TT-BKHDT dated September 18, 2020 of Minister of Planning and
Investment guiding implementation of Decree No. 25/2020/ND-CP dated February
28, 2020 of the Government elaborating to Law on Bidding regarding investor
selection (hereinafter referred to as “Circular No. 06/2020/TT-BKHDT”) and must
include methods and standards for assessing capacity, experience, and financial
– commercial matters under this Circular.
b) Investors shall prepare and submit written
recommendation as required by the written recommendation;
c) Assess written recommendation of investors.
During assessment, agencies approving feasibility reports of projects may
invite investors to clarify or revise necessary information of the written
recommendation;
d) Investors shall be accepted as soon as they
satisfy all following requirements: having legitimate written recommendation;
satisfying capacity and experience requirements; satisfying technical
requirements; satisfying financial – commercial requirements.
3. Activities under Points a,
b, dd, and e Clause 1 of this Article shall conform to regulations and law on
bidding. Activities under Points c and d Clause 1 of this Article shall conform
to this Circular.
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b) Bidding documents revised on the basis of
bidding document form must conform to Law on Bidding, Decree No. 25/2020/ND-CP
dated February 28, 2020 of the Government, relevant law provisions, and this
Circular.
Article 5. Assessing written
recommendation in terms of technical matters
1. Examine and assess
legitimacy of written recommendation regarding technical matters: Conform to
Article 52 of Decree No. 25/2020/ND-CP dated February 28, 2020 of the
Government on elaborating to Law on Bidding regarding investor selection (and
amendment thereto under Clause 12 Article 89 of Decree No. 35/2021/ND-CP dated
March 29, 2021 of the Government).
2. Assess in terms of capacity
and experience
a) Rely on basic requirements for capacity and
experience approved according to Point c Clause 2 Article 3 hereof, standards
and methods of assessing capacity, experience revised (if necessary);
b) Assessment based on capacity and experience
shall conform to standards for assessing capacity and experience in bidding
documents.
3. Assess in terms of
technical matters
Investors having legitimate written recommendation
and satisfying capacity and experience requirements shall be assessed in terms
of technical matters. Detail assessment of written recommendations in terms of
implementation techniques shall conform to methods and standards for assessing
technical matters specified in bidding documents as follows:
a) Assessment methods: Assessment of technical
matters shall utilize scoring scale of ___ [100 or 1,000] in which the
minimum score is ___% of the total score [no lower than 70%] and
score of each criteria (technical matters; project management; progress,
implementation period; collection of dredged materials, environment, and
safety) of ___% of maximum score of the criteria [no lower than 60%];
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- Technical requirements:
requirements regarding technical matters and technology for project execution;
requirements for project equipment owned by investors or joint investors to
equal at least 20% of total equipment; requirements for personnel for project
execution; requirements for construction organization methods.
- Project management
requirements: project management methods; project supervision methods;
cooperation methods during project execution;
- Progress requirements and
project execution period requirements:
- Requirements for collecting
dredged materials: solutions for utilizing dredged materials; solutions for
disposing non-collectible dredged materials; solutions for gathering dredged
materials (if any);
- Environment and safety requirements:
conform to regulations and law on environmental protection and solutions for
guaranteeing traffic safety during project execution;
- In addition to standards
above, during development of assessment criteria for technical matters, bid
solicitors may adjust and revise other technical standards on a case-by-case
basis.
4. Investors satisfying
technical matters shall have their written recommendations assessed in terms of
financial – commercial matters. appraisal and approval of lists of investors
satisfying technical requirements shall conform to Article 53 of Decree No.
25/2020/ND-CP dated February 28, 2020 of the Government on elaborating to Law
on Bidding regarding investor selection (and amendment thereto under Clause 13
Article 89 of Decree No. 35/2021/ND-CP dated March 29, 2021 of the Government).
Article 6. Assessing in terms
of financial – commercial matters
1. Inspect and assess
legitimacy of written recommendations in terms of financial – commercial matter
according to Article 55 of Decree No. 25/2020/ND-CP dated February 28, 2020 of
the Government on elaborating to Law on Bidding regarding investor selection
(and amendment thereto under Clause 15 Article 89 of Decree No. 35/2021/ND-CP
dated March 29, 2021 of the Government).
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a) Employ comparison and ranking solutions based on
benefits for society and benefits for the Government;
b) Correct errors and rectify discrepancies:
prescribed by bid solicitors in bidding document;
c) According to bidding documents, in case dredging
costs of projects are less or equal to value of dredged materials, investors
shall be recommended for contracts if the investors propose the highest
difference between the dredging costs and value of dredged materials (in addition
to obligations of investors for state budget according to relevant law
provisions) to be submitted to state budget in cash according to bidding
documents and proposed value of dredged materials is no lower than value of
dredged materials according to bidding documents;
d) According to bidding documents, in case dredging
costs of projects are greater than value of dredged materials, investors shall
be recommended for contracts if the investors propose the lowest difference
between the dredging costs and value of dredged materials (in addition to
obligations of investors for state budget according to relevant law provisions)
according to bidding documents and proposed value of dredged materials is no
lower than value of dredged materials according to bidding documents;
dd In case after assessing written recommendations
for commercial – financial matters, all investors are equally qualified, the
investors with the highest technical score shall be proposed with contracts.
Chapter III
ORGANIZATION FOR IMPLEMENTATION
Article 7. Entry into force
1. This Circular comes into
force from December 1, 2021.
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3. In case documents referred
to this Circular are amended, the amended version shall prevail.
Article 8. Implementation
Chief of Ministry Office, Chief of Ministry
Inspectorate, Directors of Departments affiliated to Ministry of Transport,
Director of Vietnam Maritime Administration, Director of Vietnam Inland
Waterway Administration, Directors of Departments of Transport of provinces and
cities, and relevant agencies, organizations, individuals are responsible for
implementation hereof./.
PP. MINISTER
DEPUTY MINISTER
Nguyen Xuan Sang
ANNEX
BASIC REQUIREMENTS FOR CAPACITY AND EXPERIENCE OF
INVESTORS
(Attached to Circular No. 22/2021/TT-BGTVT dated September 30, 2021 of
Minister of Transport)
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Entry
Requirements
i
Financial capacity (1)
1
Owner’s equity (2)
Minimum owner’s equity to be prepared by
investors: ___ [specify value in number and in words. Minimum owner’s
equity must not be lower than 15% of total project investment where total
project investment is determined by total project expenditure including costs
for preparing investment, costs for dredging, tax, charges, fees for
licensing right for extracting minerals, and other costs related to the
project]
In case of joint venture, owner’s equity of joint
investors equal total owner’s equity of all members. At the same time, each
joint venture member must satisfy requirements corresponding to their owner’s
equity contribution according to joint venture agreement; any member that
fails to satisfy shall result in the joint investors failing to satisfy
requirements for owner’s equity.
Investors hosting the joint venture must have a
minimum owner’s equity of 30% while each member must have a minimum owner’s
equity of 15%.
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Total value of owner’s equity and loan capital
that investors can arrange (3)
Total minimum value of owner’s equity and loan
capital that investors can arrange: ____ [specify value in number and in
words].
In case of joint venture, these criteria shall be
assessed based on total value of owner's equity and loan capital that joint members
are capable of arranging.
3
Net worth (4)
Net worth: ____ year [specify number of years
required] in which net worth must stay positive.
In case of joint venture, assess net worth of
each member.
4
Average annual revenue (5)
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In case of joint venture, assess total average
annual revenues of members.
II
Experience
Minimum number of projects in which investors or
joint venture members have participated in as investors contributing owner’s
equity or primary contractors: ___ projects [specify number of projects
required]. Methods of identifying project (6):
- Type 1: Dredging project
in which investors have participated as investors contributing owner's equity
and satisfied the following requirements:
+ Project having minimum total investment of (7)
____ [specify equivalent value, usually within 50% - 70% of total
investment of project in question]
+ Project in which investors have minimum owner’s
equity of (8) ___ [specify equivalent value, usually within 50%
- 70% of total investment of project in question].
+ Project whose construction process has been
completed in ___ recent years [specify number of years required].
- Type 2: Dredging projects
in which investors have participated as primary contractors for dredging
contract packages and satisfied the following:
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+ Contract packages/contracts concluded in ___
recent years [specify number of years required].
Experience of investors equals total number of
projects that investors/joint venture members have executed.
Projects/contract packages that investors have
executed must satisfy technical and quality requirements as per signed
contracts before being eligible for consideration and assessment (10)
III
Other criteria (11)
Note:
(1) Based on scale, nature, and field of the project,
bid solicitors may revise or add other financial criteria such as: interest,
etc.
In case investors are organizations established
within the year, financial capacity of investors shall be assessed on the basis
of financial reports audited by independent auditing bodies from the date of
establishment to 28 days prior to bid closing date.
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Investors must declare information and provide
documents on financial capacity using form prescribed under bidding documents.
Remaining owner’s equity of investors = Total
owner’s equity - Costs related to proceeding – owner’s equity guaranteed for
active projects and other long-term investment (if any) – owner’s equity to be
retained as per the law (owner’s equity for allocation or required by the law
for investors; owner’s equity to be retained according to special backup
demands for possible cases; other owner’s equity guaranteed to be reimbursed
and not used for dividend declaration, etc.).
(3) Investors must provide commitment for
mobilizing loan capital using form under bidding documents. Investors shall
attach written commitment for providing financial figures of financial
institutions or credit institutions for the remaining financial obligations (in
addition to owner’s equity) within responsibility for arranging of investors.
(4), (5) Net worth and average annual revenues are
determined on the basis of financial reports of investors. Investors must
declare information using form prescribed under bidding documents and provide
certified true copies of documents regarding financial reports, inspection
records of tax finalization, declaration for tax finalization bearing
confirmation of tax authority for date of submission of the declaration, audit
report (if any).
(6) Investors shall provide their experience using
form in bidding documents. Investors shall only excerpt experience in
implementing a similar project once.
Methods of converting projects: ______ [Bid
solicitors shall prescribe a class 2 project that equals up to 0.5 – 0.7 class
1 project and methods of rounding number when necessary].
(7), (8), (9) For projects where total investment
is unidentified in approving documents or project contracts, investors must
provide verifying documents to identify the total investment.
(10) Investors must provide records for inspection
and acceptance, contract liquidation or confirmation of government authority to
prove satisfaction of technical and quality requirements for executed
projects/contract packages.
(11) Based on scale, nature, sector, and specific
requirements of projects, bid solicitors s hall provide other appropriate
criteria while guaranteeing competitiveness, fairness, and transparency.