Circular 06/2020/TT-BKHDT guidance Decree 25/2020/ND-CP on regard to contractor selection

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MINISTRY OF PLANNING AND INVESTMENT --------	SOCIALIST REPUBLIC OF VIETNAM Independence - Freedom - Happiness ---------------
No. 06/2020/TT-BKHDT	Hanoi, September 18, 2020

CIRCULAR

GUIDANCE ON IMPLEMENTATION OF GOVERNMENT’S DECREE NO. 25/2020/ND-CP DATED FEBRUARY 28, 2020, ELABORATING ON IMPLEMENTATION OF A NUMBER OF ARTICLES OF THE LAW ON BIDDING WITH REGARD TO INVESTOR SELECTION

Pursuant to the Law on Bidding No. 43/2013/QH13 dated November 26, 2013;

Pursuant to the Government's Decree No. 63/2018/ND-CP dated May 4, 2018 on investment made according to the Public-Private Partnership approach;

Pursuant to the Government's Decree No. 25/2020/ND-CP dated February 28, 2020, elaborating on a number of articles of the Law on Bidding with regard to investor selection;

Pursuant to the Government's Decree No. 86/2017/ND-CP dated July 25, 2017, defining the functions, tasks, powers and organizational structure of the Ministry of Planning and Investment;

Upon the request of the Director of the Bidding Administration,

The Minister of Planning and Investment hereby issues the Circular providing guidance on the implementation of the Government’s Decree No. 25/2020/ND-CP dated February 28, 2020, elaborating on the implementation of a number of articles of the Law on Bidding with regard to investor selection.

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This Circular guides the implementation of certain regulations on the Government’s Decree No. 25/2020/ND-CP dated February 28, 2020, elaborating on the implementation of a number of articles of the Law on Bidding with regard to the investor selection (hereinafter referred to as Decree No. 25/2020/ND-CP), including:

1. Preparation and formulation of the invitation for prequalification, the invitation to bid, the request for proposal for a Public-Private Investment project (hereinafter referred to as PPP project); preliminary qualification and experience requirements, the invitation to bid or the request for proposal for an investment project using land.

2. Activities involved in the implementation of an investment project using land, including:

a) Identification of investment projects using land according to regulations laid down in clause 1 of Article 12 in the Decree No. 25/2020/ND-CP;

b) Preliminary evaluation of investor’s qualification and experience according to Article 13 of the Decree No. 25/2020/ND-CP;

c) Conduct of the appraisal of tasks or inclusions in the bidding process prescribed in Article 75, 76 and 79 of the Decree No. 25/2020/ND-CP;

d) Sequences and procedures for allocating and leasing out land to the successful bidder.

3. Disseminating information and selecting investors on the National Electronic Procurement System (hereinafter referred to as E-procurement System).

Article 2. Subjects of application

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Article 3. Preparation and formulation of the invitation for prequalification, the invitation to bid and the request for proposal for PPP projects

1. The invitation for prequalification shall be formulated using the Form/Sample given in the Appendix I hereto.

2. The invitation to bid shall be formulated using the Form/Sample given in the Appendix II hereto.

3. In case the prequalification prescribed in clause 3 of Article 18 and clause 2 of Article 80 in the Decree No. 25/2020/ND-CP is not required, the invitation to bid shall be prepared by modifying the Form/Sample specified in Appendix II hereto, including the additions of the requirement concerning the evaluation of investor's qualification and experience under the provisions set forth in Appendix I to this Circular and the regulation on the issuance, revision and clarification of the invitation to bid which are carried out on the E-procurement System.

4. In case the bidder appointment approach prescribed in point a of clause 3 of Article 9 in the Decree No. 25/2020/ND-CP is applied, the request for proposal shall be prepared by revising the Form/Sample specified in Appendix II hereto, excluding the regulation regarding the comparison and ranking of investors.

5. In case the bidder appointment approaches prescribed in point b and c of clause 3 of Article 9 in the Decree No. 25/2020/ND-CP are applied, the request for proposal shall be prepared by revising the Form/Sample specified in Appendix II hereto, including the addition of the evaluation of investor’s qualification and experience as prescribed in Appendix I hereto and excluding the regulation regarding the comparison and ranking of investors.

Article 4. Preparation and formulation of preliminary qualification and experience requirements, the invitation to bid or the request for proposal for investment projects using land

1. The notice of invitation to submit expression of interest, and preliminary qualification and experience requirements, shall be prepared and formulated using the Form/Sample given in Appendix III hereto.

2. The invitation to bid shall be prepared using the Form/Sample given in Appendix IV hereto, including the price floor of payment to the state budget (m₃) which is determined according to the regulations laid down in point k of clause 2 of Article 47 in the Decree No. 25/2020/ND-CP. During the preparation process, competent persons and bid solicitors shall, on their own, determine input parameters used for calculating m₃ value, or follow the instructions given in Appendix V to this Circular; shall ensure fairness, transparency, objectivity, scientism, feasibility, none of disadvantages for the involved parties, effective use of land and avoidance of any loss of the state budget’s funds.

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Article 5. Principles of use and revision of forms/samples

1. The italic letters used in Appendices I, II, III and IV to this Circular represent instructive and illustrative information which is clarified based on the size, nature, field and specific or separate condition (if any) of each project.

2. Modification and revision of Forms/Samples prescribed in Clause 3, Clause 4 and Clause 5 of Article 3 and Clause 3 of Article 4 of this Circular must conform to the provisions laid down in the Bidding Law, the Government’s Decree No. 63/2018/ND-CP dated May 4, 2018 on investment made according to the Public-Private Partnership approach, the Decree No. 25/2020/ND-CP and other legislative provisions related to the implementation of projects.

3. In addition to the criteria for evaluation of investor's qualification and experience as prescribed in Appendices I, II, III and IV to this Circular, authorized persons, Departments of Planning and Investment, bid solicitors may supplement other suitable evaluation criteria on the basis of ensuring conformance to the following principles:

a) Corresponding to the scale, nature, sector and particular and separate characteristics (if any) of each project;

b) Avoiding any breach of the provisions of the law; avoiding causing any restriction on investor’s participation or providing any advantage for one or more investors, resulting in the unfair competition.

In case of supplementation of the criteria for evaluation of investor’s qualification and experience, the request for approval of the invitation for prequalification, preliminary qualification and experience requirements, the invitation to bid and the request for proposal must include the detailed explanatory notes on supplements and proposal reasons to seek approval from competent persons.

Article 6. Activities involved in the implementation of investment projects using land

1. a) Identification of investment projects using land according to regulations laid down in clause 1 of Article 12 in the Decree No. 25/2020/ND-CP

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a) Commercial housing is determined under the provisions of clause 4 of Article 3 in the Law on Housing No. 65/2014/QH13 dated November 25, 2014;

b) Commercial or service works are determined under the provisions of point e of section 1.2 of Appendix I (Classification of construction works) to the Government’s Decree No. 46/2015/ND-CP dated May 12, 2015 on management of quality and maintenance of construction projects;

c) Multi-functional works and multi-functional complexes are multi-functional works belonging to the commercial and service works specified in Point b of this Clause, determined according to Clause 1 of Article 1 of Circular No. 07/2019/TT-BXD dated November 7, 2019 of the Minister of Construction, amending, supplementing and replacing a number of provisions in the Circular No. 03/2016/TT-BXD dated March 10, 2016 of the Minister of Construction, setting out the regulations on the grading of construction works and providing instructions applicable in the management of construction investment activities.

2. Preliminary evaluation of investor’s qualification and experience prescribed in Article 13 of the Decree No. 25/2020/ND-CP

a) The preliminary evaluation of investor's qualification and experience shall be based on preliminary qualification and experience requirements, project implementation registration documentation and documents evidencing documentation on registration for execution of projects (if any).

b) Based on the evaluation results, Departments of Planning and Investment shall seek the decision from the Presidents of provincial People's Committees on the implementation of projects as prescribed in Clause 3 of Article 13 in the Decree No. 25/2020/ND-CP.

3. In case there is only one investor meeting preliminary qualification and experience requirements, based on the project implementation progress, investment attraction objectives and other specific conditions of each project, the Presidents of provincial People's Committees shall consider issuing decisions on the implementation of either of the following plans:

a) 1^st plan: Notifying and guiding the investor to submit documents to apply for investment policy decisions in accordance with the law on investment and other relevant laws as prescribed at Point b of Clause 3 of Article 13 in the Decree No. 25/2020/ND-CP provided that these notification and instructional activities adhere to the principles of openness, transparency, competitiveness, and the project in question requires the accelerated progress;

b) 2^nd plan: Extending the deadline or time limit for registration for execution of a project. The extended deadline/time limit shall be decided by the Presidents of provincial People's Committees, ensuring time adequate for other potential investors to have the chance to access information and submit project execution registration documentation to promote the competitiveness. Investors already meeting requirements shall not need to re-submit the documentation for registration for execution of the project.

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4. Conduct of the appraisal of tasks or inclusions in the bidding process prescribed in Article 75, 76 and 79 of the Decree No. 25/2020/ND-CP

a) Departments of Planning and Investment shall take charge of appraising the invitation to bid, the request for proposal, the list of investors meeting technical requirements, results of investor selection in case these objects of appraisal are approved by Presidents of provincial People's Committee.

b) Planning or financial divisions under the control of specialized agencies of provincial People’s Committees shall take charge of appraising the invitation to bid, the request for proposal, the list of investors meeting technical requirements, results of investor selection in case these objects of appraisal are approved by these specialized agencies under the mandate from the Presidents.

c) Planning or financial divisions under the control of district People’s Committees shall take charge of appraising the invitation to bid, the request for proposal, the list of investors meeting technical requirements, results of investor selection in case these objects of appraisal are approved by the Presidents of district People’s Committees under the mandate from the Presidents of provincial People's Committees.

5. For investment projects using land prescribed in the Government's Decree No. 30/2015/ND-CP dated March 17, 2015, detailing the implementation of a number of articles of the Law on Bidding regarding investor selection, from the effective date of Decree No. 25/2020/ND-CP (April 20, 2020), after completion of compensation payment, support and residential relocation in accordance with the land law, allocating and leasing land to investors shall conform to the provisions of Clause 2 of Article 60 in the Decree No. 25/2020/ND-CP.

Article 7. Dissemination of information and release of preliminary qualification and experience requirements, invitation for prequalification and invitation to bid on the E-procurement System

1. Disseminating information on the E-procurement System

a) Responsibilities and time limit for dissemination of information

- Departments of Planning and Investment shall post the portfolio of investment projects using land and the notice of invitation to submit the expression of interest on the E-procurement System within 07 working days from the date on which the project portfolio is approved.

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b) When posting information specified in Point a of this Clause, the following documents must be enclosed:

- Decision to approve the portfolio of investment projects using land, comprising preliminary qualification and experience requirements;

- Decision to approve the invitation for prequalification;

- Decision to approve the invitation to bid for PPP projects not subject to prequalification requirements and investment projects using land.

c) The posting and dissemination of other information during the investor selection process on the E-procurement System shall conform to the provisions of Circular No. 11/2019/TT-BKHDT dated December 16, 2019 of the Minister of Planning and Investment, detailing the provision and posting of bidding information, roadmap for application of online investor selection and management and use of the non-refundable bid security or contract performance bond (hereinafter abbreviated as Circular No. 11/2019/TT-BKHDT).

2. Release of preliminary qualification and experience requirements, invitation for prequalification and invitation to bid on the E-procurement System

a) The documents mentioned hereunder shall be published on the E-procurement System together with the notice of invitation to submit the expression of interest, the notice of invitation for prequalification and the notice of invitation to bid:

- Preliminary qualification and experience requirements imposed on investors wishing to execute investment projects using land;

- Invitation for prequalification for PPP projects;

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Investors may download files containing documents on the E-procurement System as the basis for making applications for registration of implementation of investment projects using land, applications for prequalification for PPP projects and bid packages.

b) If the invitation for prequalification or bidding documents is sold under the provisions of Clause 1, Article 7 of Decree No. 25/2020 / ND-CP, the investor must pay the bid solicitor an amount of money at the selling price of the invitation for prequalification, the invitation to bid when submitting the application for prequalification, the bid packages.

c) Invitation to bid for PPP projects subject to prequalification requirements shall be released directly to shortlisted investors. Any modification or clarification of the invitation to bid shall be subject to regulations laid down in Article 32 in the Decree No. 25/2020/ND-CP.

3. Checking information included in the notice of invitation to submit the expression of interest, the notice of invitation for prequalification and the notice of invitation to bid.

a) The Vietnam Public Procurement Review Journal shall be responsible for checking information included in the notice of invitation to submit the expression of interest, the notice of invitation for prequalification, the notice of invitation to bid posted by Departments of Planning and Investment, and bid solicitors.

b) In case of detecting invalid information, the Vietnam Public Procurement Review Journal shall notify Departments of Planning and Investment and bid solicitors within 02 working days after the information is posted on the E-procurement System. The notice can be sent through the E-procurement System, emails, mobile applications or other communication channels.

c) Within 03 working days after receipt of the notice as specified in Point b of this Clause, Departments of Planning and Investment and bid solicitors must edit information posted according to the notice of the Vietnam Public Procurement Review Journal.

d) After the deadline or time limit specified at Point c of this Clause, if invalid information has not been corrected, the E-procurement System shall disclose invalid information. The unit making the posting shall be legally responsible for the posting.

4. Posting or disseminating information on the Vietnam Public Procurement Review Journal

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b) Costs and expenses of posting or dissemination of information shall be subject to regulations laid down in clause 1 of Article 24 in the Circular No. 11/2019/TT-BKHDT.

Article 8. Revision and clarification of preliminary qualification and experience requirements, the invitation for prequalification and the invitation to bid uploaded on the E-procurement System

1. Revision or clarification of preliminary qualification and experience requirements imposed on investment projects using land

a) Revision of preliminary qualification and experience requirements

In case of revision of preliminary qualification and experience requirements, Departments of Planning and Investment must post on the E-procurement System revision decisions, enclosing objects of revision, at least 10 days before the deadline or time limit for submission of the application for registration for implementation of projects.

b) Clarification of preliminary qualification and experience requirements

- In case of needing to get clear about preliminary qualification and experience requirements, investors must sent written clarification requests to Department of Planning and Investment via the E-procurement System 05 working days before the deadline for submission of applications for registration for execution of projects for their processing and decision.

- Departments of Planning and Investment must make clear at the request of the investor and post the clarification statements on the E-procurement System at least 02 working days before the deadline for submission of the application for project implementation.

- Clarifications shall not be contrary to those that have already been approved. In case the clarification leads to the need for revision of preliminary qualification and experience requirements, the provisions of Point a of this Clause shall apply.

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a) Revision of the invitation for prequalification or the invitation to bid

In case of revision of the invitation for prequalification or the invitation to bid, the bid solicitor must post revision decisions, enclosing information subject to revision, on the E-procurement System at least 10 days before the bid closing date with respect to the prequalification; 15 days with respect to the domestic bidding; 25 days with respect to the international bidding.

With respect to group-C PPP projects, bid solicitors must post revision decisions, enclosing information subject to revision of the invitation for prequalification or the invitation to bid, on the E-procurement System at least 3 days before the bid closing date.

b) Clarification of the invitation for prequalification or the invitation to bid

- In case it is necessary to clarify the invitation for prequalification or the invitation to bid, investors must send requests for clarification to bid solicitors in writing or through the E-procurement System at least 05 working days before the bid closing date (with respect to prequalification); 07 working days (with respect to the domestic bidding); 15 days (with respect to the international bidding) for their review and action.

- Bid solicitors shall conduct the clarification at the request of the investor and post written clarification reports on the E-procurement System at least 02 working days before the bid closing date.

- Clarifications shall not be contrary to those that have already been approved. In case the clarification leads to the need for revision of the invitation for prequalification or the invitation to bid, the provisions of Point a of this Clause shall apply.

Article 9. Extension of the deadline for submission of registration for execution of investment projects using land and extension of the bid closing date

In case of extension of the deadline for submission of the application for registration of implementation of investment projects using land, or extension of the bid closing date on the E-procurement System, Departments of Planning and Investment and bid solicitors shall post the notice of extension, enclosing the extension decision on the E-procurement System, specifying the following information:

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2. Deadline for submission of application for registration for execution of investment projects and the new bid closing date;

3. Names of investors meeting preliminary qualification and experience requirements, or passing the prequalification in case of the extension prescribed in Point b of Clause 3 of Article 6 in this Circular or Clause 3 and Clause 4 of Article 23 in the Decree No. 25/2020/ND-CP.

Article 10. Submission and clarification of applications for registration for execution of investment projects using land on the E-procurement System

1. Investors shall submit applications for registration for execution of investment projects using land on the E-procurement System. By the end of the deadline for submission of the application for registration for project implementation, Departments of Planning and Investment shall conduct the evaluation of applications for registration for execution of projects that investors have already submitted.

2. The clarification of the application for registration for project implementation (if any) shall be carried out by Departments of Planning and Investment and bid solicitors through the E-procurement System.

Article 11. Extension of the deadline for submission of the application for registration for execution of investment projects using land in case of the E-procurement System failure

If the E-procurement System failure results in the temporary suspension, investment projects using land with the deadline for submission of the application for project implementation registration that falls within the period of the E-procurement System’s failure shall be granted extension as follows:

1. When such failure is corrected and the E-procurement System resumes during the time from 0h00’ to 12h00’, the new deadline shall fall on 15h00’ on the same date, except as prescribed in clause 3 of this Article.

2. When such failure is corrected and the E-procurement System resumes during the time from later than 12h00’ to 24h00’, the new deadline shall fall on 09h00’ on the subsequent date, except as prescribed in clause 3 of this Article.

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Article 12. Announcement of the portfolio of projects subject to the bidding process under specialized laws or legislation on private-sector involvement on the E-procurement System

1. The portfolio of projects subject to the bidding process under specialized laws or legislation on private-sector involvement must be posted on the E-procurement System within 7 working days starting from the date of approval of such portfolio.

2. A posting must comprise the followings:

a) Project information: Project names; investment objectives, investment scale; basic requirements for each project; investment duration and schedule; project implementation locations; other information about each project (if any).

b) Deadline for submission of application for registration for interest in implementation of each project;

c) Address that investors can contact or where they submit their application for registration for interest in execution of projects.

3. While posting information specified in Clause 1 of this Article, the decision on approval of the project portfolio must be enclosed.

4. The formulation, approval and announcement of the project portfolio; the form/sample of the invitation to bid and other contents (if any) for projects subject to the bidding process under specialized laws and the law on private-sector involvement shall conform to the instructions from Ministries and ministerial-level agencies and Governmental bodies as prescribed in Clause 3 of Article 16 in the Decree No. 25/2020/ND-CP. During the time that Ministries, ministerial-level agencies and Governmental bodies have not yet issued detailed regulations, the contents of bidding documents shall be formulated on the basis of revision of the forms/samples specified in Appendices III and IV to this Circular.

In all cases, the selection of investors prescribed in the specialized laws and the law on private-sector involvement must ensure conformance to the goals of competition, fairness, transparency and economic efficiency; ensure compliance with regulations of law on bidding, specialized laws and laws on private-sector involvement.

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1. Posting information; issuing, amending, and clarifying preliminary qualification and experience requirements, the invitation for prequalification, the invitation to bid; extending the deadline for submission of the application for registration of project implementation, and extending the bid closing time on the E-procurement System shall conform to the User's Guide posted on the E-procurement System.

2. Files uploaded on the E-procurement System must adhere to the following requirements:

a) They must be formatted in MS Word, Ms Excel, PDF, CAD and other forms; use Unicode fonts. In case files are large, they shall need to be uploaded to the system in * .zip or * .rar formats.

b) They must be protected from computer viruses, errors, corruption and must not be password protected.

Article 14. Transitional provisions

1. If any portfolio of investment projects using land (including preliminary qualification and experience requirements) announced from the effective date of Decree No. 25/2020/ND-CP (April 20, 2020) before the effective date of this Circular conforms to the Law on Bidding and Decree No. 25/2020/ND-CP, the procedures for announcement of the project portfolio shall not be required.

2. If the invitation for prequalification, the invitation to bid and the request for proposal issued during the period from the effective date of Decree No. 25/2020/ND-CP to earlier than the effective date of this Circular conform to the Law Bidding and Decree No. 25/2020/ND-CP, they shall not be subject to revision or re-issuance according to the Circular. Bid solicitors shall be responsible for evaluating invitations for prequalification, bid packages, proposals, and considering awarding the awarding of bids based on the contents of invitations for prequalification, invitations to bid, requests for proposals that they have been issued, including requests for payment to the state budget (m₃).

3. If an invitation for prequalification is issued before the effective date of Decree No. 25/2020/ND-CP, according to Clause 3 of Article 90 in the Decree No. 25/2020/ND-CP, the selection of investors shall be subject to the following regulations:

a) In case two or more investors pass the prequalification stage, the project may be bidden according to the open bidding process as prescribed in Clauses 1 and 2 of Article 9 of Decree No. 30/2015/ND-CP. Procedures for selecting the next investor shall be subject to regulations laid down in Chapters III, IV and V of the Decree No. 30/2015/ND-CP. Invitations to bid shall be issued to shortlisted investors as prescribed in Clause 1 of Article 30, Article 49 and Article 61 in the Decree No. 30/2015/ND-CP.

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c) The contents of the invitation to bid and the request for proposal shall be formulated on the basis of compliance with the provisions of Decree No. 30/2015/ND-CP, instructional Circulars and relevant law provisions that take effect at the time of approval of the invitation to bid or the request for proposal.

d) Winning investors shall implement projects under contracts and regulations laid down in laws on investment, construction, land, planning and other relevant legislation.

Article 15. Implementation

1. In the course of implementation, in case where legislative documents used as references in this Circular have been amended or supplemented or replaced, new versions of these documents shall apply.

2. Ministries, Ministry-level agencies, Governmental bodies, other central authorities, People’s Committees at all levels, and other entities, organizations or individuals concerned, shall be responsible for implementing this Circular. In the course of implementation of this Circular, if there is any difficulty likely to arise, Ministries, Ministry-level agencies, Governmental bodies, other central bodies, People's Committees at all levels, and other entities or individuals concerned, should send their feedbacks to the Ministry of Planning and Investment to receive its further instructions.

Article 16. Entry into force

1. This Circular shall enter into force from November 5, 2020.

2. This Circular shall replace Circular No. 15/2016/TT-BKHDT dated September 29, 2016 of the Minister of Planning and Investment, guiding the preparation of the invitation for prequalification, the invitation to bid for section of investors implementing PPP projects and Circular No. 16/2016/TT-BKHDT dated December 16, 2016 of the Minister of Planning and Investment, guiding the preparation of the invitation for prequalification, the invitation to bid for selection of investors implementing investment projects using land, except for the case specified in Clause 3 of Article 14 of this Circular./.

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MINISTER

Nguyen Chi Dung

APPENDIX I

PREQUALIFICATION DOCUMENT FOR SELECTION OF INVESTORS CARRYING OUT PPP PROJECTS
(Issued together with Circular No. 06/2020/TT-BKHDT dated September 18, 2020 of the Ministry of Planning and Investment on guidelines for Decree No. 25/2020/ND-CP dated February 28, 2020 of the Government elaborating the Law on Procurement concerning selection of preferred investor)

PREQUALIFICATION DOCUMENT

Project’s name: _____________________________

[insert the project’s name according to the approved feasibility study report]

Issued on: _____________________________

[insert date of issuing prequalification document to Investors]

...

[insert number and date of the Decision on approval for the prequalification document]

Consultant for Prequalification Document
(if any)
[name, signature, seal (if any)]

Procuring Entity

[name, signature, seal]

TABLE OF CONTENTS

SUMMARY

ABBREVIATIONS

PART 1. PREQUALIFICATION PROCEDURE

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Chapter II. Prequalification Data Sheet

Chapter III. Evaluation procedure and criteria

Chapter IV. Application Forms

PART 2. PROJECT’S REQUIREMENTS

SUMMARY

PART 1. PREQUALIFICATION PROCEDURES

Chapter I. Instructions to Investors

This Chapter includes Instructions to Investors to prepare Application. The Instructions include regulations on prepration and submission of Application, bid opening, evaluation of Application and selection of Investors to the shortlist.

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Chapter II. Prequalification Data Sheet

This Chapter consists of provisions that are specific to each project, and supplements the information included in Chapter I.

Chapter III. Evaluation procedure and criteria

This Chapter specifies the process and criteria for evaluation of Application.

Chapter IV. Application Forms

This Chapter contains the forms for the Application Submission Form and all the forms required to be submitted with the Application.

PART 2. PROJECT’S REQUIREMENTS

The Procuring Entity shall, according to the pre-feasibility study report; feasibility study report; design, estimate (if applicable) that are approved, determine the project’s requirements. Where appropriate, issue the foregoing documentation together with the Prequalification Document.

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PDS

Prequalification Data Sheet

ITI

Instructions to Investors

Application

Application for Prequalification

PQD

Prequalification Document

Law on Procurement

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Decree No. 63/2018/ND-CP

Decree No. 63/2018/ND-CP dated May 4, 2018 on investment under Public-Private Partnerships

Decree No. 25/2020/ND-CP

Government’s Decree No. 25/2020/ND-CP dated February 28, 2020 on guildelines for the Law on Procurement in terms of selection of investors

PART 1. PREQUALIFICATION PROCEDURES

CHAPTER I. INSTRUCTIONS TO INVESTORS

1. Prequalification contents

1.1. The Procuring Entity, with name and address indicated in PDS, issues the PQD to applicants interested in bidding for the project described in Part 2 - Project’s Requirements.

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1.3. Basic information on the Project is specified in PDS.

2. Fraud and Corruption

Fraud and Corruption in bidding specified in Article 89 of the Law on Procurement.

3. Investors’ eligibility

An individual investor or each JV’s Party is eligible when satisfying the following conditions:

3.1. Having been granted an enterprise registration certificate, an establishment decision or equivalent issued by the competent authorities of the country in which the Investor is operating;

3.2. Keeping independent accounting records.

3.3. Not undergoing dissolution process, are not thrown into bankruptcy, and do not incur bad debts as prescribed by law.

3.4. The Investor making a bid is legally and financially dependent from the consulting bidders, competent authority and Procuring Entity as prescribed in clause 4 Article 6 of the Law on Procurement and Article 2 of Decree No. 25/2020/ND-CP. Information about the consulting bidders is indicated in the PDS.

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3.6. Not being banned from bidding as prescribed in law on bidding.

4. Contents of the Prequalification Document

4.1. The Prequalification Document consists of Part 1, Part 2 in conjuction with any Addendum to the Prequalification Document (if any) as defined in the ITI Section 7. The Prequalification Document specifically includes the following contents:

Part 1. Prequalification procedure

- Chapter I. Instructions To Investors

- Chapter II. Prequalification Data Sheet

- Chapter III. Evaluation Procedure and Criteria

- Chapter IV. Application Forms

Part 2. Project’s Requirements

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4.3. The Procuring Entity accepts no responsibility for the accuracy and completeness of the Prequalification Document, Prequalification Document Clarification, minutes of pre-bid meeting (if any) or addenda to the Prequalification Document if they were not obtained directly from the Procuring Entity.

4.4. The Investor is expected to examine all instructions, PDS, forms, summary reports and other requirements in Prequalification Document to prepare their Applications.

5. Prequalification Document clarification, prequalification meeting

5.1. A prospective Investor requiring any clarification of the Prequalification Document shall contact the Procuring Entity in writing or via the National E-procurement System at least 5 working days before the dealine for submission of applications.

The Procuring Entity will respond in writing to any request for clarification within the given time required. The clarification of Prequalification Document shall be posted on National E-procurement System within 2 working days before the dealine for submission of applications; including a description of the inquiry but without identifying its source. Should the Procuring Entity deems it necessary to amend the Prequalification Document as a result of a clarification, it shall do so following the procedure under ITT Section 7.

5.2. In exceptional circumstances, the Procuring Entity shall hold a Pre-Bid Meeting if provided for in the PDS. The purpose of the meeting will be to clarify issues and to answer questions on any matter that may be raised in connection with the Prequalification Document. The Investor is requested, as far as possible, to submit any question in writing, to reach the Procuring Entity before the Pre-Bid Meeting.

6. Site Visit

6.1. The Investor will be granted permission by the Procuring Entity to access project site, but only upon the express condition that the Investor will release and indemnify the Procuring Entity from and against all liability in respect thereof. The Investor will be responsible for accidents, loss or damage to property, and any other loss, damage, costs, and expenses incurred as a result of the inspection. In exceptional circumstances, the Procuring Entity shall provide the Investor with guidelines for Site Visit as specifed in PDS.

6.2. The Investor should notify the Procuring Entity of the request for site visit before such visit is undertaken.

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7.1. At any time prior to the deadline for submission of applications, the Procuring Entity may amend the Prequalification Document by posting the addenda on the National E-procurement System. Any addendum issued, including the decision on amendment and amending contents shall be part of the Prequalification Document.

7.2. The time limit for posting the addenda is specified in the PDS. In case the time for posting Prequalification Document addenda does not comply with above regulations, the Procuring Entity shall extend the corresponding deadline for the submission of applications. The extension shall be made in accordance with ITI Section 16.2.

8. Cost of Applications

The Investor shall bear all costs associated with the preparation and submission of its application. The Procuring Entity will in no case be responsible or liable for those costs.

9. Language of Application

The application, as well as all correspondence and documents relating to the Prequalification Document exchanged by the Investor and the Procuring Entity, shall be written in the language prescribed in the PDS.

10. Documents comprising the Application

The Application shall comprise the following:

10.1. Application Submission Form, in accordance with ITI Section 11;

...

10.3 Documentary evidence establishing the Investor’s qualifications, in accordance with ITI Section 12;

10.4. Any other document required as specified in the PDS.

11. Application Submission Form

11.1. The Investor (for any individual Investor) shall prepare an Application Submission Form using the form No. 01 furnished in Chapter IV- Application Forms, with signature and seal (if any) of the Investor’s legal representative

(legal representative or authorized representative)

If the Investor’s legal representative authorizes his/her subordinate, a Power of Attorney (Form 02 provided in Chapter IV) must be enclosed. If the company’s charter or another document permits such subordinate to sogm the Application Submission Form, such document shall be enclosed (no Power of Attorney form 02 Chapter IV is required in this case). The original of the Power of Attorney (form 02 Chapter IV) must be sent to the Procuring Entity together with the Application Submission Form.

11.2. The Investor (for any Investor in a joint venture) shall prepare an Application Submission Sheet using the form PL 01 furnished in Chapter IV- Application Forms, with signatures and seals (if any) of each JV's Party’s legal representative or of the signature and seal of a JV's Party on behalf of the JV as specified in the Joint Venture Agreement (if any).

The legal representative of each JV's Party is a legal representative or authorized representative. In case of authorization, above regulation applied to individual Investor as prescribed in ITI Section 11.1 shall apply.

12. Documentary evidence establishing the Investor’s eligibility and qualifications

...

12.2. Documents establishing the qualifications of the Investor, including:

a) Investor’s eligibility using Forms in Part B of Chapter IV - Application Forms;

b) Other documents in accordance with PDS.

13. Period of Validity of Application

13.1. The Application shall remain valid for the period which is not shorter than the period specified in the PDS. The Application valid for a shorter period shall not be considered further.

13.2. In exceptional circumstances, the Procuring Entity may request Investors to extend the validity period of the Application before the expiration date. If the Investor refuses the extension of the Application, such Application shall not be considered further.

In case of extension, if only one Investor submits a responsive application or only one Investor passes the prequalfication as specified in ITI Section 22.3, the Investor that accepts the request for extension may update the qualifications during the Application Evaluation.

The request for extension and the responses shall be made in writing.

14. Format and Signing of Application

...

If there any amendments to or replacement for Application, the Investor shall prepare one original and a number of photocopies of the Application.

14.2. The Investor shall be responsible for the discrepancy between the original and the photocopies. In case of any discrepancy between the original and the copies leading no change to the shortlist, the original shall prevail. In the event of any discrepancy between the original and the copies leading any change to the rank of the Investor and the shortlist, the Application shall be rejected.

14.3. The original of Application shall be typed or written in indelible ink and have page numbers. Application Submission Form, addenda, clarifying documents, and other forms prescribed in Chapter IV - Application Forms must bear the signature and seal of the Investor’s legal representative or authorized representative (if any).

14.4. With regard to an Investor being a Joint Venture, the contents of the Application specified in ITI Section 14.3. must bear the signatures of legal representatives or all JV’s Parties or the leading Party that represents the Joint Venture according to the Joint Venture Agreement (if any).

The Joint Venture Agreement must bear the signatures of legal representatives of all JV’s Parties (if any).

14.5. Any interlineation, erasures, or overwriting shall be valid only if they are signed or initialed by the person signing the Application Submission Form.

15. Sealing and Marking of Application

15.1. The outer envelopes and covers of the orginal and the copies shall be clearly marked “APPLICATION ORIGINAL”, “APPLICATION COPIES”.

If there is any modification or replacement of Application, the modified or substituted documents (including the original and the copies) shall be put into separate envelopes and the outer envelopes and covers shall be clearly marked “MODIFIED APPLICATION ORIGINAL ", “MODIFIED APPLICATION COPIES”, “SUBSTITUTED APPLICATION ORIGINAL”, “SUBSTITUTED APPLICATION COPIES”.

...

15.2. The outer envelopes shall:

a) bear the name and address of the Investor;

b) be addressed to the Procuring Entity in accordance with ITI Section 1.1;

c) bear the project’s name specifed in ITI Section 1.3;

d) bear a warning: “not to open before the bid opening time”.

15.3. In case Application contains multiple documents, the Investor needs to pack the whole documents in way that ensures convenient reception and storage of Application, ensures the integrity of Application to avoid loss or missing.

15.4. If the envelopes are not sealed or the seals thereof are lost during the process they are transferred to the Procuring Entity, or they are not marked as required in ITI Sections 15.1. and 15.2, the Investor shall be responsible for that violations. The Procuring Entity will assume no responsibility for the confidentiality of the Application if the Investor fails to comply with above regulations.

16. Deadline for the submission of Applications

16.1. The Procuring Entity shall receive applications of all Investors submitted before the deadline for submission of Application. The Investor must pay the Procuring Entity an mount equal to the selling price for a set of Prequalification Document specified in the PDS before their applications are received.

...

In which case all rights and obligations of the Procuring Entity and Investors previously subject to the deadline shall thereafter be subject to the deadline as extended.

16.3. When the deadline for the submission of Application is extended, the Procuring Entity shall post the notification of extension of the deadline for the submission of applications on the National E-procurement System and send notices to the Investors that submitted the Applications (if any). The Procuring Entity shall clarify the deadline as extended in order for Investors have enough time to amend the Application under new requirements (if any). Any Investor who has submitted an Application may take it back for amendments. Any Application that has not been taken back shall be treated as “confidential” document.

17. Late Applications

The Procuring Entity shall not consider any Application that arrives after the deadline for submission of Applications. Any Application received by the Procuring Entity after the deadline for submission of Applications shall be declared late, rejected and returned unopened to the Investor.

18. Modification, Substitution, and Withdrawal of Applications

18.1. An Investor may modify, substitute, or withdraw its Application after it has been submitted by sending a written notice,duly signed by a legal representative or an authorized representative (if any) to the Procuring Entity. The Investor must enclose documents specified in ITI Section 11 to prove the eligibility of the signatory.

18.2. The corresponding substitution or modification of the Application must accompany the respective written notice. All notices must be:

a) submitted in accordance with ITI Sections 14 and 15;

b) received by the Procuring Entity prior to the deadline prescribed for submission of Bid, in accordance with ITI Section 16.

...

19. Opening of Applications

19.1.Except for late Applications prescribed in ITI Sections 17 and Applications requested to be withdrawn in accordance with ITI Section 18.3, all Applications received prior to the deadline for submission of Applications shall be opened and read out information prescribed in ITI Section 19.2. The Opening of Applications shall be held in public at the address, date and time specified in the PDS in the witness of participants being Investors’ representatives and relevant agencies and organizations. The Opening of Applications shall be conducted regardless of the adsence of any Investor’s representative. Only envelopes that are opened and read out at the Opening of Applications shall be considered further.

19.2. The Opening of Applications shall be conducted to every Application according to the following procedures:

a) The seals shall be checked;

b) All envelopes, including original, modified or substitute (if any) shall be opened and read out: the name of Investor, the validity period of Application, and other details as the Procuring Entity may consider appropriate;

c) The representative of the Procuring Entity shall countersign the origina of Application Submission Form, Power of Attorney of Investor’s legal representative (if any), Joint Venture Agreement (if any). No Application shall be rejected at opening of Applications except for late bids, in accordance with ITI Section 17 and Applications requested to be withdrawn as specified in ITI Section 18.3.

19.3. With regard to Applications requested to be withdrawn

The Procuring Entity will open and read out the request for withdrawal of Application. Applications requested to be withdrawn shall be returned to the Investors. No Application withdrawal shall be permitted unless the corresponding withdrawal notice contains a valid authorization to request the withdrawal.

19.4. With regard to Applications requested to be modified

...

19.5. With regard to Applications requested to be substituted

The Procuring Entity will open the outer envelope and read out the request for substitution of Application, and the substituting Application. The original Application will be returned to the Investor. No Application substitution shall be permitted unless the corresponding substitution notice contains a valid authorization to request the substitution.

19.6. The Procuring Entity shal prepare a record of the Application opening that shall include information prescribed in ITI 19.2, 19.3, 19.4 and 19.5. The record of Bid opening shall be signed by the representatives of the Investors participating in the Bid opening. If any signature of the Bidders is left in the record, it still remains valid. A copy of the record shall be distributed to all Investors who participate in the Application opening.

20. Confidentiality

20.1. Information relating to the Applications shall be treated as confidential documents until the notification of prequalification results is made to all Investors. No information mentioned in the Application of an Investor is disclosed to any other Investors, except for information disclosed at the Application opening.

20.2. Except for case of the Application clarification prescribed in ITI Section 21, the Investor is not permitted to contact to the Procuring Entity on any matter related to its Application and the package from the opening time until the notification of prequalification results.

21. Clarification of Applications

21.1. In the event that there is no documentary evidence establishing the Investor’s eligibility and qualifications in the Application when the deadline for submission of Applications expires, the Investor may send clarifications of its eligibility and qualifications to the Procuring Entity. The Procuring Entity shall receive the Clarification of Applications sent by the Investors; documentary evidence establishing the Investor’s eligibility and qualifications shall be an integral part of the Application. The Procuring Entity shall notify of receipt of Clarification of Bids in writing, by post, by fax or via email.

21.2. In the event that there is no documentary evidence establishing the Investor’s eligibility and qualifications in the Application, the Procuring Entity shall request the Investor to clarify and supplement that documentary evidence.

...

21.3. The request for clarification shall specify the deadline for clarifications (in accordance with the time for performance of the project and provided that the Investors have enough time to prepare them). If an Investor does not provide or provides non responsive clarifications of the information requested by the deadline set in the Procuring Entity’s request for clarification, the Application that submitted prior to the deadline for submission of Applications shall be considered.

22. Evaluation and Ranking

22.1. The evaluation of Applications shall be conducted in accordance with the evaluation procedure and critera as prescribed in Chapter III – Evaluation procedure and criteria.

22.2. Investors are ranked in accordance with PDS.

22.3. If only one Investor submits a responsive application or only one Investor passes the prequalification, the Procuring Entity will notify the extension of 20 days for receiving applications (since the date of notice).

After extension, if no more investor submits application or all investors submit irresponsive applications, the Procuring Entity shall report the competent person to deal with the situation as follows:

a) decide to apply direct contracting as specified in point a clause 3 Article 9 of Decree No. 25/2020/ND-CP. In this case, the competent person shall be held accountable for the competitiveness, fairness, transparency and economic efficiency of the selection of preferred investor, and shall take full responsibility for any formalism, collusive practice or other misconduct behaviors leading to claims or lawsuits and losses of state resources; or

b) designate the Procuring Entity to notify extension for receiving applications and make any further modifications to the Prequalification Document (as deemed appropriate).

The investor who submitted a responsive application is not required to resubmit another one, except for modification to the Prequalification Document.

...

An Investor is selected to be in the shortlist if meeting all the following requirements:

23.1. The Investor has a valid Application;

23.2. It’s total score of qualifications is not lower than the minimum score, and score of each evaluation item is not lower than the minimum score as prescribed in Section 2 Chapter III – Evaluation procedure and criteria;

23.3. Meet ranking requirement as prescribed in ITI Section 22.2.

24. Disclosure of prequalification result

After prequalification result is approved, the Procuring Entity shall send a notice of prequalification result (shortlist) to the Investors who submitted Applications, and post the shortlist on National E-procurement System.

25. Settlement of dispute and complaints

Investors are entitled to file complaints against the prequalification progress and results to the Procuring Entity, competent persons at the address prescribed in the PDS when they found their lawful rights and interests are infringed. The complaints in bidding shall be handled as prescribed in Section 1 of Chapter XII of the Law on Procurement and Articles 81and 83 of Decree No. 25/2020/ND-CP.

26. Actions against violations

...

26.2. The organization or individual violating the law on bidding shall be subject to, apart from the actions prescribed in ITI Section 26.1, the prohibitation from participating in the bidding and included in the list of investors violating bidding law on the National E-procurement System.

26.3. In case of any violation resulting in being banned from bidding, the Investor committing violation may be banned from bidding in terms of projects under management of competent persons or within a Ministry, agency or a locality or nationwide in accordance with Clause 3 Article 90 of the Law on Procurement.

26.4. Publication of actions against violations:

a) Each decision on actions against violations shall be sent to the organization or individual against which the action is taken and relevant agencies, and the Ministry of Planning and Investment for supervision;

b) Each decision on actions against violation shall be published on the Vietnam Public Procurement Review Journal, and National E-procurement System.

27. Surveillance

Competent persons shall assign entities in charge specified in PDS to carry out the surveillance of the selection of investors. Any practice or issue that is discovered not compliant with law on public procurement by the Investor shall be reported to the entities in charge mentioned above.

CHAPTER II. PREQUALIFICATION DATA SHEET

...

Name and address of the Procuring Entity:

- The Procuring Entity is: _____[Procuring Entity’s name]

- Representative: _____[representative’s full name]

- House/Floor/Room number: ___[insert number of floor, room (if any)]

- Street: ___[insert street’s name]

- City: ___[insert city’s or town's name]

- Post code: ___[insert post code (if any)]

- Phone number: ___[insert telephone number, including country and city code]

- Fax: ___[insert fax number, including country and city code]

...

ITI 1.2

Requirements pertaining to equity and borrowed capital:

- Minimum required equity that the Investor has to contribute (in accordance with clause 2 Article 10 of Decree No. 63/2018/ND-CP): ____[insert amount in figures and in words]

- Total minimum required equity and borrowed capital that the Investor is able to mobilize: __[insert a value in number and in words]

ITI 1.3

Project’s information: [summary of project’s information according to approval for project proposal or approved feasibility study report]

a) Project’s name: ________________________________________________

b) Type of contract: _____________________________________________

c) Name of authority competent to sign the contract with the Investor: _________________________________________________________

...

dd) Technical specifications, quality standards of project, products supplied or services performed, plan for management and business or performance of the services according to feasibility study report (or pre-feasibility study report);

e) Total estimated investment, total investment; State contribution to PPP project (if any): ______________________________________

g) Estimate of project execution progress:

- For a project the feasibility study report has not been made: [insert time for making a feasibility study report; time for selection of preferred investor; time for construction, completition and putting the construction works into operation].

- For a project with the approved feasibility study report: [insert progress, validity period of project contract; time for construction and operation of construction works].

h) Others: __________________________________________

ITI 3.4

- Consulting unit on evaluating project proposal, feasibility study report, feasibility study report (if any): ____[insert complete name and address]

- Consulting unit on evaluating engineering design, estimates (if any): ____[insert complete name and address]

...

- Consulting unit on evaluating Prequalification Document (if any): ____[insert complete name and address]

- Consulting unit on evaluating Application (if any): ____[insert complete name and address]

- Consulting unit on evaluating prequalification results (if any): ____[insert complete name and address]

- Consulting unit on making Bidding Documents (if any): ____[insert complete name and address]

- Consulting unit on evaluating Bidding Documents (if any): ____[insert complete name and address]

- Consulting unit on evaluating Bids (if any): ____[insert complete name and address]

- Consulting unit on evaluating approval for preferred investor (if any): ____[insert complete name and address]

ITI 3.5

Requirement for registration on National E-procurement System:________

...

If clause 1 Article 21 of Circular No. 11/2019/TT-BKHDT is amended or superseded, the procuring entity shall update this Section].

ITI 5.2

A Pre-Bid meeting [insert “will” or “will not”] take place. [If yes, date, time, and place shall be specified]

ITI 6.1

The Procuring Entity [insert “will” or “will not"] conduct a site visit.

[If the Procuring Entity instruct the Investor to a site visit, time and place shall be specified]

ITI 7.2

The Procuring Entity shall post Amendment of Prequalification Document on the National E-procurement System before the deadline for submission of Applications at least _____ days [insert specific number of days, provided that there is enough time for the Investor to complete the Application and no sooner than 3 working days for group-C PPP projectsand not sooner than 10 working days for PPP projects of other groups]

ITI 9

...

- Regarding international prequalification:

The Application, as well as all correspondence and documents related to the Application exchanged by the Investor and the Procuring Entity shall be written in: ____ [if the Prequalification Document is in English then insert “English”; if the Prequalification Document is in both English and Vietnamese, then insert “the Investor may chose either English or Vietnamese to prepare an Application according to the Application in English”.

Supporting documents and printed literature that are part of the Application may be in another language provided they are accompanied by an accurate translation of the relevant passages into _____ [if the Prequalification Document is in English, then insert “English”; if the Prequalification Document is in both English and Vietnamese, then insert “the Investor may chose either English or Vietnamese to prepare an Application”]. In case of absence of the translation, the Procuring Entity may request the Investor to supplement when necessary.

- Regarding national prequalification:

The Application, as well as all correspondence and documents related to the Application exchanged by the Investor and the Procuring Entity shall be written in Vietnamese.

Supporting documents and printed literature that are part of the Application may be in another language provided they are accompanied by a translation into Vietnamese. In case of absence of the translation, the Procuring Entity may request the Investor to supplement when necessary]

ITI 10.4

The Investor shall submit the following documents in conjunction with the Application: ___[insert other documents in conjuction with the Application other than regulations in ITI Sections 10.1, 10.2, 10.3, 10.4 and 10.5 as required by the scope and nature of the project without any restriction on participation of the Investor. If there is no requirement, clearly mark it “no requirement”].

ITI 12.1

...

a) With regard to an independent Investor, the following documentary evidence establishing the Investor’s eligibility and qualifications shall be provided:

Photocopies of one of the following documents: An enterprise registration certificate, an establishment decision or equivalent issued by the competent authorities of the country in which the Investor is operating.

b) With regard to a joint venture, the following documents shall be provided:

- Documents specified in Point a of this Section of each JV's Party;

- Joint Venture Agreement between Parties using Form No. 03 of Chapter IV - Application Forms.

ITI 12.2 (b)

The Investor shall submit the following documents in conjunction with the Application: ___[insert other documents in conjuction with the Application other than regulations in ITI Section 12.2. (a) as required by the scope and nature of the project without any restriction on participation of the Investor. If there is no requirement, clearly mark it “no requirement”].

ITI 13.1

Validity period of Application: ____days [insert number of days which is not later than 180 days], from the deadline for submission of Application.

...

The number of copies of the Application is: ____[insert number].

ITI 16.1

- The deadline for submission of Application is: time ___[hour, minute], date____________

[the deadline for submission of Application shall be specified according to the scope and nature of the project provided that period of time from the first day on which the Prequalification Document are issued to the deadline is at least 10 days for group-C PPP projects and at least 30 days for PPP projects of other groups and the deadline shall not fall to the early hour of a working day which may restrict the submission of bids by Investors].

- Price of Prequalification Document: __[insert price of a set of Prequalification Document provided not exceeding 5 milion dong for national prequalification; and not exceeding 10 milion dong for international prequalification].

ITI 19.1

Application opening at: _______[hour, minute] on____[date] at:

- House/Floor/Room number:________________

- Street:___________

...

[insert date, time and place of Application opening, provided that the Application is opened within 01 hour from the deadline for submission of Application].

ITI 21.1

Time limit for clarification of the Application is within: ___[based on progress of project, evaluation time] days from the deadline for submission of applications.

ITI 22.2

The Application with highest score shall be ranked first. If there are more 03 Investors satisfying requirements, ___ [according to scope, nature, and sector of the project, the Procuring Entity shall specify the number of Investors in the shortlist from 03 to 05 Investors] investors ranked first in the shortlist.

ITI 25

Mailing address:

a) Address of the Procuring Entity: ____ [insert address, fax, phone number of Procuring Entity].

b) Address of Competent Person: ______ [insert address, fax, phone number of competent authority that sign the contract].

...

Details of individuals, units participating in monitoring: ___ [insert complete name, address, telephone number, fax of the organization or individual in charge of monitoring the Investor selection progress which is assigned by the competent person (if any)]; if there is no requirement, clearly mark it “no requirement”].

CHAPTER III. EVALUATION PROCEDURE AND CRITERIA

Section 1. Verifying and evaluating eligibility of the Application

1.1. Verifying the Application

a) Verify the quantity of originals, copies of the Application;

b) Verify the documents of the original Application, consisting of: Application Submission Form, document establishing eligibility of the person signing Application Submission Form, power of attorney to sign the Application Submission Form; joint venture agreement (if any); documents proving the Investor’s qualifications; and other documents of the Application as prescribed in ITI Section 10;

c) Verify the uniformity of contents between original copy and photocopies to serve the detailed evaluation of Application.

1.2. Evaluating eligibility of Application

...

a) There is any original copy of Application;

b) There is an Application Submission Form bearing signature and seal (if any) of the legal representative of the Investor. Regarding a joint venture, Application Submission Form shall bear the signature and seal (if any) of the legal representative of every JV’s Party or the head of the joint venture authorized to sign the Application Submission Form according to the regarding joint venture agreement;

c) The Investor shall not have its name included in multiple Applications as an individual Investor or a JV’s Party;

d) The validity period of Application satisfies requirements as prescribed in ITI Section 13;

dd) In case of a joint venture, there is a joint venture agreement bearing signatures and seals (if any) of legal representatives of JV's Parties. The joint venture agreement shall specify responsibilities of the leading JV's Party and common and separate responsibilities of each JV’s Party using the Form PL 03 of Chapter IV – Application Forms;

e) The Investor’s status is eligible as prescribed in ITI Section 3.

An Application is eligible if all criteria are considered “responsive”. An Application is ineligible if any of the criteria is considered “irresponsive” and such Application shall be rejected. Any Investor having eligible Application shall be considered further.

Section 2. Qualification evaluation

2.1. Evaluation method:

...

2.2. Evaluation criteria

Table of Qualification criteria:

TABLE 1. QUALIFICATION CRITERA

No.

Qualification evaluation

Maximum

Details ⁽¹⁾

Minimum

...

I. Financial situation ⁽²⁾

Owner’s equity ⁽³⁾

Minimum equity that Investor has to contribute: ____ [insert minimum equity as prescribed in Section 1.2 of PDS]

In case of JV, owner’s equity of JV is the total owner’s equity of JV's Parties. Furthermore, each JV’s Party shall meet the requirement for portion of owner’s equity in the JV agreement; if any JV’s Party is consider irresponsive, the JV shall be considered not meeting the owner’s equity requirement.

The leading JV’s Party must have at least 30% of owner’s equity, each JV’s Party must have at least 15% of owner equity.

...

Total minimum required equity and borrowed capital that the Investor is able to mobilize ⁽⁴⁾

Total minimum required equity and borrowed capital that the Investor is able to mobilize: __[insert amount specified in PDS Section 1.2]

In case of JV, the total owner’s equity and borrowed capital that all JV’s Parties are able to mobilize shall be evaluated.

Experience of Investor ⁽⁵⁾

...

Minimum number of projects that Investor play role of Investor contributing owner’s equity or contractor: ___ projects [insert number as required]. Identification of projects⁽⁶⁾:

- Type 1: Project in ____ [insert sector similar to the sector of the considering project] that Investor plays role of Investor contributing owner’s equity and meets all the following conditions:

+ Project with total estimated investment/total investment is at least⁽⁷⁾ ____ [equivalent value, usually 50%-70% of total estimated investment/total investment of the considering project].

+ Project with minimum owner’s equity equals⁽⁸⁾___[insert equivalent value, generally 50-70% of owner’s equity of the considering project as prescribed, in clause 2 Article 10 of Decree No. 63/2018/ND-CP (not including required owner’s equity to perform other projects)].

+ Project applying BT contract in which___ [insert appropriate percentage, generally 70-80%] of workload is completed under contract. Project applying other type of contract and it is operating or finished in last ___ years [insert number as required].

- Type 2: Project in sector of infrastructure development, provision of public services that Investor plays role of Investor contributing owner’s equity and meets all the following conditions:

+ Project with total estimated investment/total investment is at least⁽⁹⁾ ____ [equivalent value, usually 50%-70% of total estimated investment/total investment of the considering project].

+ Minimum owner’s equity of the considering project equals⁽¹⁰⁾___[insert equivalent value, generally 50-70% of owner’s equity of the considering project as prescribed, in clause 2 Article 10 of Decree No. 63/2018/ND-CP (not including required owner’s equity to perform other projects)].

...

- Type 3: Project in similar sector that Investor plays role of Investor contributing owner’s equity and meets all the following conditions:

+ Package with scope of work that the Investor has performed similarly to the primary work of the project in question____[the Procuring Entity specifies the similar nature]

+ Value of the portion of work that the Investor has performed in the package/contract is at least ⁽¹¹⁾___ [insert equivalent value, usually 30%-70% of equivalent work of the project in question].

+ The package/contract finished in last ___ years [insert number as required].

- Type 4: Project in sector of infrastructure development, provision of public services that Investor plays role of primary contractor and meets all the following conditions:

+ Package with scope of work that the Investor has performed similarly to the primary work of the project in question____[the Procuring Entity specifies the similar nature]

+ Value of the portion of work that the Investor has performed in the package/contract is at least ⁽¹²⁾___ [insert equivalent value, usually 30%-70% of equivalent work of the project in question].

+ The package/contract finished in last ___ years [insert number as required].

Experience of the JV is the total experience in the projects that JV’s Parties have performed.

...

III. Preliminary plan for project execution and commitment of project execution ⁽¹⁴⁾

The approach and methodology (including comments on the proposal or feasibility study report of the project)

Preliminary proposal for project execution (including innovations)

...

IV. Other criteria ⁽¹⁵⁾

Notes:

(1) Procuring Entity specifies score system of each criterion.

Example: Regarding "Experience of Investor”, Procuring Entity may specify as follows:

- Investor performed 1-2 projects: maximum 50%;

- Investor performed 3-4 projects: maximum 70%;

...

(2) According to the scope, nature and sector of project, Procuring Entity may amend other finance-related critera, namely: net asset value, revenue, profit, etc.

If the Investor is a newly-corporated organization in the year, the financial situation of the Investor shall be evaluated based on the financial statement that has been audited by an independent audit unit from the incorporation time to the day within 28 days before the deadline for submission of bids.

(3) The owner’s equity of the Investor shall be determined according to the financial data of the Investor updated within 28 days before the deadline for submission of bids and commitment to mobilize owner’s equity.

The Investor shall provide information about its financial situation using Form No. 05 and provide commitment to mobilize owner’s equity using Form No. 06 of Chapter IV - Application Forms.

Remaining owner’s equity = Total owner’s equity - Expenses derived from litigation - owner’s equity for projects in progress and other long-term investments (if any) - owner’s equity to be retained as prescribed (owner’s equity set aside for apportionment or as required by law; owner’s equity to be retained for special contingencies in possible circumstances; other owner’s equity to be reimbursed and not intended for dividend declaration, etc.)

(4) Investor must provide a commitment to mobilize borrowed capital using Form No. 06 of Chapter IV - Application Forms. Investor attaches a commitment of provide finance issued by a bank or a credit institution in terms of remaining financial obligations (other than owner’s equity) undertaken by the Investor.

(5) If the project requires the Investor to operate the works, the Procuring Entity shall consider supplementing the regulation that Investor and partners (operation contractors) shall have experience in management and operation of similar projects. For the partners, the Investor is required to provide an agreement in practice between the Investor and partners or commitments of the partners with respect to their involvement in the project.

If the project is in a new sector or has large investment scope and no investor has experience in similar projects, the Procuring Entity shall, based on the data on their performed projects, the possibility of investment phasing of the project in question to determine requirement for experience of the Investor. In such circumstances, the requirement for experience of the Investor may be modified lower than the guidance provided that it still conforms to the reality and project’s requirements. In addition, during the evaluation process, the Procuring Entity must ensure that the Investor has edaquate financial and technical capacity to undertake the project. The project’s requirements in the Prequalification Document, Bidding Documents, and contract must specify sufficient responsibilities of the Investor and the actions taken (fines, indemnities, actions in subsequent period) in a case where the Investor fails to meet the requirements pertaining to time schedule and quality. Furthermore, the competent person may require a Performance Security greater than 3% but not exceeding 10% of the total estimated investment of the project.

(6) The Investor shall provide information about its experience using Form No. 07 of Chapter IV - Application Forms. The Investor may recite their experience in a similar contract once.

...

(7); (8); (9); (10); (11); (12): Total investment equals total estimated investment as required by special law plus original working capital to operate the project. For projects the total investment of which has not been specified in the approval document, project contract, the Investor shall funish the documentary evidence of this amount.

(13) The Investor shall provide taking-over certificate, contract finalization or certification of the regulatory body to prove that it has met technical and quality requirements in the projects/packages performed.

(14) The Investor proposes preliminary plan for project execution and commitment to project execution using Form No. 08 of Chapter IV - Application Forms.

(15) According to the scope, nature, sector and particular conditions (if any) of the project, the Procuring Entity shall require other criteria as deemed appropriate.

CHAPTER IV. APPLICATION FORMS

A. Legality

1. Form No. 01: Application Submission Form

2. Form No. 02. Power of Attorney

...

4. Form No. 04: Investor Information Form

B. Qualifications and Experience

1. Form No. 05: Financial situation of Investor

2. Form No. 06: Guarantee of Financing and Credit Sources for Investors

3. Form No. 07: Experience in Similar Projects

4. Form No. 08: Preliminary plan for project execution

FORM NO. 01

APPLICATION SUBMISSION FORM ⁽¹⁾

...

To: _____[Procuring Entity’s name]

After carefully studying the Prequalification Document of ______ [project’s name] issued by _____[Procuring Entity’s name] dated ____[insert the issue date of Prequalification Document] and addenda thereof No. ____[insert the number of the addenda (if any)] dated _____, we, ____[insert the Investor’s name], submit an Application for the above-mentioned project. This Application is submitted without conditions attached.

We will provide the Procuring Entity with any additional information as required.

We hereby declare that⁽²⁾:

1. We only participate in this Application as an individual Investor or JV's Party.

2. We are not undergoing dissolution process, are not thrown into bankruptcy, and do not incur bad debts as prescribed by law.

3. We do not commit violations against regulations on assurance of competitiveness in bidding.

4. We are not involved in corrupt, fraudulent or conclusive practice and other violations against law on bidding.

5. Every information provided herein is truthful to be the best of our knowledge.

...

This Application takes effect within ____ days⁽³⁾ [insert number of days], from __________[deadline for submission of bids] ⁽⁴⁾.

Legal representative of Investor⁽⁵⁾
[Full name, position, signature and seal (if any)⁽⁶⁾]

Notes:

(1) Investor must provide sufficient and accurate information including names of the Procuring Entity and the Investor, validity period of the Application.

(2) If the Investor is found violating any declaration, the Investor shall be presumed having fraudulent practice and its Application shall be disqualified; and the Investor shall incur sanctions as prescribed.

(3) Validity period of the Application is from the the deadline for submission of Applications to its expiration date as prescribed in the Prequalification Document. The period of time from the deadline for submission of Bid to 24:00 of the deadline date is considered 01 day.

(4) Insert the deadline date as prescribed in Section 16.1 of the PDS.

(5) In case of independent Investor, the Application Submission Form shall bear the signature and seal of the Investor’s legal representative. Regarding a JV, the Application Submission Form shall bear the signature and seal (if any) of the legal representative of every JV’s Party or the leading JV’s Party authorized to sign the Application Submission Form according to the regarding joint venture agreement (if any).

...

(6) If a foreign Investor has no seal, a certification of the competent authority is required to prove that the signature in the Application Submission Form and other documents in the Application is written by the Investor’s legal representative.

FORM NO. 02

POWER OF ATTORNEY

[Location and date]_______________

I am __________[insert name, ID/passport number, position of Investor’s legal representative], the legal representative of _______ [insert name of Investor] at _____________ [insert address of bidder] hereby authorizes _____________ [insert name, ID/passport number, position of authorized representative] to perform the following tasks during the participation in the process of bidding for ____________ [insert name of the package] of _____________ [insert name of the project] held by ____________ [insert name of the Procuring Entity]:

[The area of competence of authorization includes one or certain tasks below:

- To sign Application Submission Form;

- To sign documents with the Procuring Entity during the prequalififcation process, including the request for clarification of Prequalification Document and clarification of Application;

...

- Sign documents with the Procuring Entity during the bidding process, including the request for clarification of Bidding Documents and clarification of Bids;

- Sign proposals in selection of preferred investor (if any);

- Other tasks [insert details of tasks (if any)].

The authorized representative only perfoms the tasks within the area of competence of a legal representative of __________ [insert name of Investor]. ___________ [insert name of legal representative] is totally responsible for the tasks performed by ____ [insert name of the authorized representative] within the authorization scope.

The Power of Attorney is effective from __________ [date] to _________ [date] ⁽¹⁾ and is made into _______ copies with equal value. The Authorizer keeps ___ copies. The authorised person keeps ___ copies. (01) original shall be attached to the orignial Application.

Authorized representative
[Full name, position, signature and seal (if any)⁽²⁾]

Authorizer
[Full name, position, signature and seal (if any) of the legal representative⁽³⁾]

Notes:

...

(2), (3) The authorized representative may use the seal of the Investor or their seal.

FORM NO. 03

JOINT VENTURE AGREEMENT

(Location),__________(date)

Representatives of signatories to the joint venture agreement include:

Name of JV's Party: ____[insert name of each JV’s Party]

- Country of operation:

- TIN:

...

- Phone number:

- Fax:

- Email:

- Legal representative:

- Position:

Power of Attorney No. __dated__________(in case of authorization).

The Parties have reached a consensus on entering into a joint venture agreement with the following contents:

Article 1. General rules

1. Parties voluntarily establish this joint venture to participate in the process of bidding for _______________ [insert name of project].

...

JV’s address:

Phone number:

Fax:

Email:

JV’s representative:

3. Every JV's Party is committed not to unilaterally participate or establish a joint venture with another Investor to participate in the bidding process.

Article 2. Assignment of duties

All Parties unanimously to undertake joint and separate responsibilities to execute tasks in the prequalification process of the project as follows:

1. All parties unanimously authorize ________ [insert a Party’s name] as the leading JV's Party of the JV who reprensents the joint venture to perform the following tasks:

...

- To sign Application Submission Form;

- To sign documents with the Procuring Entity during the prequalififcation process, including the request for clarification of Prequalification Document and clarification of Application;

- To sign Letter of Bid;

- Sign documents with the Procuring Entity during the bidding process, including the request for clarification of Bidding Documents and clarification of Bids;

- Sign proposals in selection of preferred investor (if any);

- Perform other tasks except for signing of contract [specify details of other tasks (if any)].

2. Roles and responsibilities of JV’s Parties are specified in the table below ⁽¹⁾ [specify role(s) of each JV’s Party and owner’s equity rate in the JV]:

No.

Name

...

Owner’s equity

Amount

Party 1 [leading]

[at least 30%]

...

[at least 15%]

Party 3

[at least 15%]

...

Total

....

100%

Article 3. Effect of Joint Venture Agreement

1. The Joint Venture Agreement takes effect from the day on which it is signed.

2. The Joint venture agreement expires in the following cases:

...

- There is/are change(s) in JV's Parties. If the change(s) is/are approved by the Procuring Entity, Parties shall establish a new joint venture agreement.

- It is not selected to the shortlist;

- The Joint Venture is not awarded the contract;

- The Procuring Entity notifiies the cancellation of prequalfiication;

- The Procuring Entity notifiies the cancellation of Investor selection process;

- All parties have fulfilled their duties and finalize the contract.

The Joint Venture Agreement is made into _______ copies with equal legal value, each party keeps _________ copies, attached with the original Application. All original copies have equal value.

Legal representative of JV's Party ⁽²⁾
[name of legal representative of each JV's Party, position, signature and seal (if any)⁽³⁾]

...

(1) The Investor shall specify its role and owner's equity holding rate of each JV's Party.

(2) The legal representative of the Investor/JV’s Party is determined in ITI Section 11.

(3) If a JV's Party is a foreign Investor which has no seal, a certification of the competent authority is required to prove that the signature in the joint venture agreement is written by the legal representative of the JV's Party.

FORM NO. 04

INVESTOR INFORMATION FORM

(Location),__________(date)

1. Name of Investor/JV's Party:

2. Country of operation:

...

4. Legal address of Investor at the country of operation:

5. Investor’s legal representative details:

- Name

- Address:

- Phone number/Fax:

- Email address:

6. Organizational structure of Investor.

Legal representative of Investor
[Full name, position, signature and seal (if any)]

...

(1) Regarding a joint venture, each JV' Party shall declare information using this Form.

(2) Attached are photocopies of one of the following documents: An enterprise registration certificate, an establishment decision or equivalent issued by the competent authorities of the country in which the Investor is operating.

FORM NO. 05

FINANCIAL SITUATION OF INVESTOR ⁽¹⁾

1. Name of Investor/JV's Party:

2. Financial situation of Investor/JV's Party:

a) Summary of financial data ⁽²⁾:

No.

...

Amount

Total owner’s equity

Expenses derived from litigation (if any)

Owner’s equity for other projects in progress and other long-term investments (if any)

...

Owner’s equity to be retained as prescribed

Remaining owner’s equity

(5) = (1) - (2) - (3) - (4)

b) Attachments⁽³⁾

Attached is documentary evidence of financial data of the Investor updated within 28 days before the deadline for submission of bids:

- Copy of financial statement audited within 28 days before the deadline for submission of bids (the Investor may use the annual financial statement, interim financial reporting, owner’s equity use reports).

...

- If the period of 28 days before the deadline for submission of bid does not coincide with the financial statement period or a period in which the Investor has a financial statement audited, the Investor shall provide a financial statement audited at the latest.

Furthermore, the Investor shall declare and provide proof of change to the financial data from the audit report date to the time of making the bid (such as documentary evidence of owner’s equity increase). The Investor shall be held accountable to any information provided in the Application. If information provided is found inaccurate, the Investor will be considered fraudulent as prescribed in Point c Clause 4 Article 89 of the Law on Procurement and incur penalities as prescribed in ITI Section 26.

- If the Investor is a newly-corporated organization in the year, the Investor shall provide a financial statement that has been audited by an independent audit unit from the incorporation time to the day within 28 days before the deadline for submission of bids.

Legal representative of Investor
[Full name, position, signature and seal (if any)]

Notes:

(1) Regarding a joint venture, each JV' Party shall declare information using this Form.

(2) Based on the evaluation criteria, the Procuring Entity shall supplement information as deemed appropriate.

(3) Based on the evaluation criteria, the Procuring Entity may supplement the documents that Investor is required to prove the financial situation (for example: inspection report of tax finalization, declaration of tax finalization; documentary evidence that the Investor has filed an e-tax declaration; written certification of the tax authority; etc.).

...

FORM NO. 06

GUARANTEE OF FINANCING AND CREDIT SOURCES FOR INVESTOR

(Location),__________(date)

1. I am ___[name],______[position], the legal representative of ____[Investor’s/ JV’s name] confirm that all provided information in this document is true and enclosed documents are precise copies of the original documents.

2. The following financing and credit sources have been identified and maybe mobilized for the project:

Financing source

Amount⁽¹⁾

I. Committed owner’s equity:

...

II. Borrowed capital to be mobilized:

...

3. Attachments:

- Commitment to provide finance issued by a bank or credit institution enclosed with authority proof of the signatory.

- Commitment to ensure sufficient owner’s equity under the financial plan of the owner representative, owner or parent company enclosed with authority proof of the signatory.

- Other relevant documents

Legal representative of Investor
[Full name, position, signature and seal (if any)]

...

(1) To be inserted in figures, in words according to Currencies of Bid.

FORM NO. 07

EXPERIENCE IN SIMILAR PROJECTS⁽¹⁾

(Location),__________(date)

[The Investor shall declare its experience in similar projects]

1. Project No. 01: ____[project’s name]

Name of Investor/JV's Party:

...

Name of project/package:

Form of project

□ PPP investment, BT contract

□ PPP investment, other type of contract, except BT contract

□ Non-PPP investment

Sector of project

...

Role in project:

□ Individual Investor □ JV's Party

□ Project Manager □ Building Contractor □ Operation Contractor

Name of competent authority/representative of competent authority (for project); Investor/representative of Investor (for package)

Address:

Contact person:

Phone number:

Fax:

...

Details

7.1

Participating in the project as an Investor

Progress, Performance⁽²⁾:

□ Construction in progress, performed % of workload under the contract

□ Operation in progress

□ Completion

...

Total investment ⁽³⁾:

Contribution rate (in case of JV):

Mobilized owner’s equity:

Summary of similar characteristics of performed project and project in question

- Summary of performed work:

...

(Value and currency) equivalent to ___VND

- Summary of non-performed work to be completed:

- Value of non-performed work to be completed:

(Value and currency) equivalent to ___VND

Litigation Records:

Summary of special technical specifications/operation:

...

Performing the project as a Contractor

Scope of Work that the Investor has performed:

Value of work that the Investor has performed:

Progress, performance⁽⁴⁾:

Litigation Records:

...

Summary of special technical specifications:

2. Project No. 02: ____[project’s name]

Legal representative of Investor
[Full name, position, signature and seal (if any)]

Notes:

(1) The Procuring Entity may modify and supplement the information required in this Form in conformity with the evaluation of the Investor’s experience.

(2), (4) The Investor shall provide documentary evidence for information declared and progress and performance of the contract as well as notarized copy of the contract, the approved feasibility study report, contract finalization, certification of the competent authority/competent authority’s representative (for project), Investor/Investor’s representative (for package), etc.

(3): Total investment equals total estimated investment as required by special law plus original working capital to operate the project. For projects the total investment of which has not been specified in the approval document, project contract, the Investor shall funish the documentary evidence of this amount.

...

The Procuring Entity shall, according to the pre-feasibility study report; feasibility study report; design, estimate (if applicable) that are approved, determine the project’s requirements (issue together with the Application if necessary). Project’s requirements include:

- Project’s name;

- Name of authority competent to sign the contract with the Investor;

- Name of the unit in charge of project preparation or the investor that proposes the project;

- Location; scope and capacity of project; land use area;

- Technical Specifications;

- Total estimated investment;

- State contribution to PPP project (if any);

- Type of contract;

...

- Contract duration;

- Investment incentives and guarantee;

- Others.

APPENDIX III

SAMPLE OF THE NOTICE OF INVITATION TO SUBMIT EXPRESSION OF INTEREST; PRELIMINARY QUALIFICATION AND EXPERIENCE REQUIREMENTS OF INVESTORS REGISTERING FOR THE EXECUTION OF INVESTMENT PROJECTS USING LAND
(To the Circular No. 06/2020/TT-BKHDT dated September 18, 2020 of the Minister of Planning and Investment, providing guidance on implementation of the Government’s Decree No. 25/2020/ND-CP dated February 28, 2020, elaborating on implementation of a number of articles of the Law on Bidding with regard to investor selection)

This Appendix shall be structured as follows:

1. Sample notice of invitation to submit expression of interest in an investment project using land;

2. Sample preliminary requirements for qualifications and experience of an investor registering for execution of an investment project using land.

...

1. Sample notice of invitation to submit expression of interest in an investment project using land

SAMPLE NOTICE OF INVITATION TO SUBMIT EXPRESSION OF INTEREST IN INVESTMENT PROJECT USING LAND

(Place of issue), date (dd/mm/yyyy)_______

Dear interested investors

Department of Planning and Investment of_________[Enter name of the province or centrally-affiliated city] is writing to invite interested investors to submit required documents to register for the execution of the project_______[Enter the project’s name provided in the approved list of investment projects using land] that contain the following particulars:

1. Investment objectives and scale: ________________________________

2. Total estimated investment capital: ______________________________________

3. Compensation, support and resettlement costs: ____________________________________

4. Investment deadline or duration: _______________________________________________

...

6. Land plot area: _____________________________________________________

7. Land uses: _________________________________________________

8. Deadline for submission of application for registration for execution of the investment project: _______________________

[Enter the particular time and date provided that the period from the date of publication of the list of investment projects using land to such deadline has to be at least 30 days]

9. Contact details:

- Department of Planning and Investment of province/city: _____________________________________

- Address: ______________________________________________________________

- Telephone number: _________________________________________________________

- Fax number: _______________________________________________________________

...

10. Any investor having interest or wishing to register for execution of the project must apply for digital certificates and submit registration forms for execution of the project on the e-Procurement System.

Department’s Representative
[Full name, title, signature and seal]

2. Sample preliminary requirements for qualifications and experience of an investor registering for execution of an investment project using land

PRELIMINARY REQUIREMENTS FOR QUALIFICATIONS AND EXPERIENCE OF THE INVESTOR REGISTERING FOR EXECUTION OF THE INVESTMENT PROJECT USING LAND

Project title: ____________________

[Enter the name of the project specified in the list of investment projects using land]

...

[Enter the number and date of issuance of the decision on approval of the list of investment projects using land]

Chapter I

INVESTOR GUIDE

Section 1. INVITATION FOR EXPRESSION OF INTEREST

1. Department of Planning and Investment of_________[Enter name of the province or centrally-affiliated city] (hereinafter referred to as DPI) is writing to invite investors to submit required documents to register for the execution of the project_______[Enter the project’s name provided in the approved list of investment projects using land].

2. Project information:

Based on details of the approved list of investment projects using land, DPI may provide an executive summary of the project as follows:

- Investment objectives and scale: ______________________________

- Total estimated investment capital: ____________________________________

...

- Brief description of basic requirements of the project: ______________________________

- Investment deadline or duration: _____________________________________________

- Project site: ____________________________________________

- Land plot area: ___________________________________________________

- Land uses: _______________________________________________

- Investment indicators included in the approved planning scheme: _____________________________________

- Current conditions of the land plot: ____________________________________________

- Others: __________________________________________

- Deadline for submission of application for registration for execution of the investment project: ______________________

...

Section 2. PRELIMINARY REQUIREMENTS FOR INVESTOR’S QUALIFICATIONS AND EXPERIENCE

Preliminary requirements for investor’s qualifications and experience encompass financial capability and experience requirements. Details are provided in Chapter II.

Section 3. EXPLANATORY NOTES TO PRELIMINARY REQUIREMENTS FOR INVESTOR’S QUALIFICATIONS AND EXPERIENCE

1. In case of needing more explanations about preliminary qualification and experience requirements, investors must send written requests to Department of Planning and Investment via the e-Procurement System 05 working days before the deadline for submission of application for registration for execution of the project to seek their decision on appropriate actions.

2. After receipt of these written requests within the prescribed time limit, DPI must proceed to justify these requirements and post their answers on the e-Procurement System within at least 02 working days before the submission deadline, including anonymous investor’s questions or issues that they have been solved. In case where, after the clarification activity, the need for revision of preliminary qualification and experience requirements arises, the regulations set forth in Section 4 of this Chapter shall apply.

Section 4. REVISION OF PRELIMINARY REQUIREMENTS FOR INVESTOR’S QUALIFICATIONS AND EXPERIENCE

1. In case of needing the revision of preliminary qualification and experience requirements, Department of Planning and Investment must post the revision decision clearly stating what to be revised on the e-Procurement System at least 10 days before the deadline for submission of the application for registration for execution of the project.

2. Notwithstanding the aforesaid regulation, if the time limit for the notification of revision stated in the sub-section 4.1 above is missed, DPI must adjust the submission deadline accordingly. The extension of the submission deadline shall be subject to regulations laid down in Sub-Section 6.3.

Section 5. USED LANGUAGE

...

Section 6. APPLICATION FOR REGISTRATION FOR EXECUTION OF THE PROJECT AND SUBMISSION DEADLINE

1. The application prepared by an investor must be comprised of relevant forms, templates and documents prescribed in Chapter III.

2. Investors must submit their applications on the e-Procurement System by _______ [Enter the expiry time and date of submission provided that the period between the publication date of the list of investment projects using land and that expiry date is at least 30 days].

3. DPI can extend the submission deadline in case of the revision of requirements for investor’s qualifications and experience under the provisions of Section 4 of this Chapter or in the expectation of more investors' application as per paragraph b of Sub-section 2 of Section 9 in this Chapter, or where necessary. DPI must announce such deadline extension on the e-Procurement System and notify the new deadline to all of the applicant investors (if any).

Section 7. REVISION OR REPLACEMENT OF APPLICATION FOR REGISTRATION FOR EXECUTION OF THE PROJECT

After applying, investors may replace or revise the submitted application by adding more relevant documents or records on the e-Procurement system by the submission deadline.

Section 8. CLARIFICATION OF APPLICATION FOR REGISTRATION FOR EXECUTION OF THE PROJECT

Investors shall have the burden of clarifying their applications at DPI's request. All of the requests for clarification and responses from investors must be rendered via the e-Procurement System.

Section 9. NOTIFICATION OF RESULTS OF THE PRELIMINARY ASSESSMENT OF INVESTOR’S QUALIFICATIONS AND EXPERIENCE

...

2. If there is only one satisfactory investor, before making an announcement according to sub-section 1 of this Section, DPI must seek the provincial People's Committee's decision according to either of the following options:

a) 1^st option: Notifying and guiding the investor to submit documentation to apply for an investment policy decision in accordance with the law on investment and other relevant laws as prescribed at Point b of Clause 3 of Article 13 in the Decree No. 25/2020/ND-CP.

b) 2^nd option: Extending the deadline for submission of application for registration for execution of the project. The new deadline shall be decided by the President of a provincial People’s Committee and will be then announced on the e-Procurement System. Satisfactory investors shall be exempted from the re-submission requirement.

After extending the submission deadline, in case where there are more investors who satisfy preliminary qualification and experience requirements, the regulation set forth in sub-section 3 of this Section shall be applied. In case there is no more satisfactory investors, the regulation set out in paragraph a of this sub-section shall be applied.

3. In case where there are two or more satisfactory investors, the investor selection may be carried out according to the open bidding approach as per Point a of Clause 3 of Article 13 in the Decree No. 25/2020/ND-CP. Invitations to bid shall be easily accessible to investors, including those not on the list of satisfactory investors.

Chapter II

PRELIMINARY REQUIREMENTS FOR INVESTOR’S QUALIFICATIONS AND EXPERIENCE

No.

Items

...

Financial capabilities⁽¹⁾

Investor’s minimum equity capital⁽²⁾:_____[Enter the amount of the investor’s minimum equity capital. This amount shall not be 20% less than total investment in the project using less than 20 hectares of land; shall not be 15% less than total investment in the project using at least 20 hectares of land. In this amount, total investment is calculated by the aggregate of m₁ and m₂ under the provisions of point h and I of clause 2 of Article 47 in the Decree No. 25/2020/ND-CP].

For a consortia bidding, a consortium investor’s equity equals total equity of consortium members. Simultaneously, each consortium member must meet requirements corresponding to their portion of capital contribution to the equity under a consortium agreement. If there is any consortium member judged unsatisfactory, the consortium investor will be assessed as those failing to meet equity requirements.

The investor leading a consortium must hold at least 30% of the equity while each consortium member must hold at least 15% of the equity in a consortium.

Experience⁽³⁾

The minimum number of projects in which the investor or the consortium member or the co-partner in a consortium has got involved as an investor making an equity contribution or a main contractor: ____project(s) [Enter the required quantity]. A project is classified into the following types⁽⁴⁾:

- Type 1: The project in _____[Enter the sector the same as that of the project in question, including commercial housing, construction work designed for trading and service activities; multi-functional construction work or complex used for business purposes] in which the investor participated as a equity contributing investor and which fully meets the following conditions:

...

+ The project has the investor’s minimum share of equity ⁽⁶⁾ equaling ____[Enter the equivalent value which usually makes up between 50% and 70% of the required equity of the project in question].

+ The project’s construction phase has been completed over the last ____ years [Enter the required number of years].

- Type 2: The project in _____[Enter the sector the same as that of the project in question, including commercial housing, construction work designed for trading and service activities; multi-functional construction work or complex used for business purposes] in which the investor participated as a main contractor awarded construction bids and which fully meets the following conditions:

+ The value of the quantity of works in which the investor participated in a bid/contract must be⁽⁷⁾ at least _____ [Enter the equivalent value which usually makes up between 30% and 70% of the value of the corresponding works of the project in question].

+ The bid/contract has been completed over the last ____ years [Enter the required number of years].

- Type 3: The project in _____[Enter the sector the same as that of the project in question, including commercial housing, construction work designed for trading and service activities; multi-functional construction work or complex used for business purposes] in which the co-partner participated as a main contractor awarded construction bids and which fully meets the following conditions:

+ The value of the quantity of works in which the co-partner participated in a bid/contract must be⁽⁸⁾ at least _____ [Enter the equivalent value which usually makes up between 30% and 70% of the value of the corresponding works of the project in question].

+ The bid/contract has been completed over the last ____ years [Enter the required number of years].

The investor’s experience is defined by total number of projects that the investor/consortium member and the co-partner executed.

...

Others⁽¹⁰⁾

Notes:

(1) This may be modified or supplemented by other financial indicators, e.g. net asset value, revenue, profit, etc., based on the project’s scale, attributes and sectors.

In case where the investor is an entity newly incorporated in the assessment year, their financial capabilities can be assessed with reference to their financial statement audited by an independent auditing body within the maximum period of 28 days from the incorporation date to the submission deadline for application for registration for execution of the project.

(2) The investor’s equity is defined according to their financial data updated within the maximum period of 28 days before the deadline for submission of application for registration for execution of the project and the investor’s commitments to raising equity finance. The investor is obliged to provide information and documents about their financial capabilities by filling in the Form No. 02 available in Chapter III.

The investor’s residual equity = Gross equity - Costs incurred from legal proceedings - Equity provided under commitments for projects under construction and other long-term investments (if any) – mandatory retained equity (Equity particularly used for distribution or subject to legally binding requirements imposed on the investor; equity that must be retained to meet special contingency demands in case of unexpected events; other equity funds subject to reimbursement commitments and not used in stock dividend declarations,…).

(3) As for projects in new sectors or large-scale ones, if there is none of the investors acquiring adequate experience in executing the similar projects, data about past projects, investment staging capabilities of the project in question may be considered or consulted in order to determine investor experience requirements.

...

(4) The investor fills in the Form No. 03 given in Chapter III with information about their experience. The investor is allowed to describe their experience in executing only one similar project once and for all.

Co-partners jointly executing a project may be: Financing organizations; construction contractors; operation and management contractors.

Project conversion method: _____________________________ [regulating 01 type-2 or type-3 project equaling 0.5-0.7 type-1 project at maximum and how to round the decimal quantity value obtained after conversion to the nearest integer].

(5); (6); (7); (8) For projects in which total investments are not clearly defined by project approval documents or contracts, the investor needs to provide documentary evidence for these data.

(9) The investor must provide the acceptance testing or contract termination report or the attestation given by a state authority as evidence for their compliance with technical and quality requirements of projects/bids that they performed in the past.

(10) Based on the scale, attributes, sectors or particular or specific conditions (if any) of projects, other appropriate criteria may be added.

Chapter III.

FORMS

1. Form No. 01: Investor’s particulars

...

3. Form No. 03: Experience in executing similar projects

Form No.01

PARTICULARS OF THE INVESTOR AND CO-PARTNERS

I. Information about the investor/consortium member⁽¹⁾

1. Name:

2. Licensing country:

3. Year of establishment:

4. Legal office address in the licensing country:

...

- Name:

- Address:

- Phone/fax number:

- E-mail address:

6. Estimated capital contribution rate:

II. Information about co-partners

No.

Name⁽²⁾

Licensing country

...

Legal representative

Contract or written agreement with the co-partner⁽⁴⁾

Company 1

[Financing organization]

...

[Construction contractor]

Company 3

[Operation/Management contractor]

...

…..

Notes:

(1) As a consortium investor, each consortium member must fill out this Form on their own. Concurrently, the investor must submit these Forms, enclosing the duplicate written agreement on execution of the project between consortium members under which estimated capital contribution rates must be clearly stated.

One of the following copies should be attached: Enterprise Registration Certificate, Establishment Decision or any equivalent document issued by a competent authority of the host country where the investor is operating.

...

(3) The investor must delineate the roles of each partner.

(4) The investor must specify the contract number or written agreement, enclosing authenticated copies thereof.

Form No.02

INVESTOR’S FINANCIAL CAPABILITIES⁽¹⁾

1. Name of investor/consortium member:

2. Information about financial capabilities of the investor/consortium member:

a) Summary of financial data⁽²⁾:

No.

...

Value

Total equity

Costs incurred from legal proceedings (if any)

Equity provided under commitments for projects under construction and other long-term investments (if any)

...

Mandatory retained equity

Investor’s residual equity

(5) = (1) - (2) - (3) - (4)

b) Enclosed documents⁽³⁾

Enclosed herewith are documentary evidence for the investor’s financial data updated within the maximum period of 28 days before the deadline for submission of application for registration for execution of the project:

- Duplicate financial statement audited within the period of 28 days before the deadline for submission of application for registration for execution of the project (annual financial statement, mid-year financial statements and equity utilization report).

...

- Unless the 28-day period preceding the deadline for submission of application for registration for execution of the project coincides with the period of preparation of the financial statement, or the investor issues their audited financial statement within this period, the investor must provide the latest audited financial statement.

Concurrently, the investor needs to provide documentary evidence for any change in financial data made from the date of issuance of the audit report to the date of participation in the bid (for instance, documents evidencing any increase in the equity). The investor must take responsibility for provided information. If it is established that the provided information is inaccurate, falsifying the assessment results, the investor shall be subject to mandatory sanctions.

- In case where the investor is an entity newly incorporated in the assessment year, the financial statement audited by an independent auditing body within the maximum period of 28 days from the incorporation date to the submission deadline for application for registration for execution of the project.

Notes:

(1) As consortium investors, each consortium member must fill out this Form on their own.

(2) Based on assessment standards, more appropriate information should be provided.

(3) Based on assessment standards, more documents evidencing the financial capabilities that the investor needs to submit may be required (e.g. tax finalization inspection report, tax self-finalization declaration form, documents evidencing the investor already completing electronic tax finalization declaration form, written confirmation given by a tax administration agency, etc.)

Form No.03

...

(Place of issue), date (dd/mm/yyyy)_______

[The investor itemizes their experience in executing the similar projects as required]

1. Project No. 01: ___ [Enter the project’s name]

Name of the investor/the consortium member/the co-partner.

Contract No.

Signature date:

Title of the project/bid:

...

Investment sector

Roles:

□ Independent investor □ Consortium member

□ Main contractor

Name of the competent regulatory authority/representative of the competent regulatory authority (for projects); the investor/the investor’s representative (for bids)

Address:

Contact person’s name:

...

Fax:

Email:

Detailed information

6.1

Information required in case of playing the role as the investor/the consortium member in participating in the project

Project progress and quality⁽²⁾:

...

Capital contribution rate (applicable to the consortium investor):

Mobilized equity:

Brief description of the similarity between the project that the investor performed in the past and the project that the investor is bidding for.

- Summary of main points of the completed quantity of works:

- Value:

...

- Summary of main points of the ongoing quantity of works:

- Value:

(i.e. amount and currency unit) equivalent to… VND

Dispute or lawsuit-related history:

Brief description of special technical/engineering/operational requirements:

6.2

...

Scope of activities performed when participating in the project:

Value of the quantity of works performed:

Work progress and quality⁽³⁾:

Dispute or lawsuit-related history:

...

2. Project No. 02: ___ [Enter the project’s name]

…

Investor’s legal representative
[Full name, title, signature and seal (if any)]

Notes:

(1) Data fields included in this Form may be revised or supplemented to be consistent with preliminary requirements for investor’s qualifications and experience.

(2), (3) The investor must provide documentary evidence for provided information, project progress and quality, such as the notarized copy of the contract, acceptance testing and contract termination report, confirmation received from a competent regulatory authority/representative of a competent regulatory authority (for projects), the investor/the investor's representative (for bids), etc.

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Circular 06/2020/TT-BKHDT guidance Decree 25/2020/ND-CP on regard to contractor selection

Official number:	06/2020/TT-BKHDT	Legislation Type:	Circular
Organization:	The Ministry of Planning and Investment	Signer:	Nguyen Chi Dung
Issued Date:	18/09/2020	Effective Date:	Premium
Gazette dated:	Updating	Gazette number:	Updating
		Effect:	Premium

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Circular No. 06/2020/TT-BKHDT dated September 18, 2020 guidance on the implementation of Government’s Decree No. 25/2020/ND-CP elaborating on implementation of a number of articles of the Law on Bidding with regard to contractor selection

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