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THE
MINISTRY OF PLANNING AND INVESTMENT
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SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No.
09/2020/TT-BKHDT
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Hanoi,
November 27, 2020
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CIRCULAR
ON GUIDELINES FOR PREPARATION OF BIDDING DOCUMENTS FOR
PROCUREMENT OF GOODS UNDER COMPREHENSIVE AND PROGRESSIVE AGREEMENT FOR
TRANS-PACIFIC PARTNERSHIP
Pursuant to the Law on Public
Procurement dated November 26, 2013;
Pursuant to Resolution No.
72/2018/QH14 dated November 12, 2018 of the National Assembly on ratification
of Comprehensive and Progressive Agreement for Trans-Pacific Partnership and
relevant documents;
Pursuant to the Government’s
Decree No. 95/2020/ND-CP dated August 24, 2020 on guidelines for procurement
under Comprehensive and Progressive Agreement for Trans-Pacific Partnership;
Pursuant to the Government's
Decree No. 86/2017/ND-CP dated July 25, 2017 defining the functions, tasks,
entitlements and organizational structure of the Ministry of Planning and
Investment;
At the request of Director of
Public Procurement Agency;
The Minister of Planning and
Investment promulgates a Circular on guidelines for preparation of bidding
documents for procurement of goods under Comprehensive and Progressive
Agreement for Trans-Pacific Partnership (hereinafter referred to as CPTPP).
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This Circular set forth preparation
of bidding documents for procurement of goods under Article 1 of the
Government’s Decree No. 95/2020/ND-CP dated August 24, 2020 on guidelines for
procurement of goods under CPTPP (hereinafter referred to as Decree No.
95/2020/ND-CP).
Article 2.
Regulated entities
This Circular applies to
organizations and individuals engaging in or involving in the selection of Bidders
of procurement of goods under scope of regulation prescribed in Article 1
hereof.
Article 3.
Application of form of bidding documents for procurements of goods
1. Application of form of bidding
documents:
a) Form of bidding documents for
procurement of goods No. 01 (Form No. 01) applicable to open tendering packages
under single-stage and one-envelope bidding procedure;
b) Form of bidding documents for
procurement of goods No. 02 (Form No. 02) applicable to open tendering packages
under single-stage and two-envelope bidding procedure.
2. Upon preparation, appraisal and
approval for bidding documents for procurement of goods, the relevant entities
must:
a) Establish suitable requirements
based on the scope and nature of each package and the rules of competition,
fairness, transparency and economic efficiency;
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c) In case of intra-regional
bidding, the bidding documents must specify that the intra-regional bidder may
only offer goods originating in the Parties that make a bid. The Party is a
country that meets the following requirements:
- It has signed the CPTPP on March
8, 2018;
- At the time of approval for the
bidding documents, CPTPP is effective in that country;
d) Refrain from establishing
conditions intended to limit the participation of the bidders or make an
advantage for one or certain bidders for unfair competition, such as describing
specific make and origin of the good, including naming the a country, group of
countries, or territory as a discriminatory practice, except for intra-regional
bidding as prescribed in Articles 4 and 15 of Decree No. 95/2020/ND-CP and
point c of this clause; refrain from establishing a requirement that the bidder
has performed one or multiple contracts with a procuring entity of a country,
territory or the bidder must have experience in supply of the good or service
in the territory of the country or territory as a criterion for
disqualification of the bidder.
In case it is impossible to give
the detailed description of technical features, technological design and standards,
trademarks and catalogues of specific products should be shown as a reference
or illustration of technical requirements of these products, but the remark
"or equivalents” should be printed at the back side of these trademarks
and catalogues, and contents of technical features, operational functions,
technological standards equivalent to those of these products as well as other
information (if any) should be clearly stated, except for information about
origin of goods.
dd) If there is any modification to
the form of bidding documents, the entities in charge of preparation,
appraisal, and approval for the bidding documents must ensure that modification
makes the form of bidding documents more appropriate, logical and well
organized and not contravention with CPTPP. The request for approval for
bidding documents must specify the modifications compared to original form of
bidding documents and reasons thereof for the investor to consider.
3. Regarding a package of
procurement of goods applying limited tendering, for reference purpose, the
form of bidding documents may be modified.
Article 4. Sale
permit of producers
1. Regarding common and
available-on-market goods which are standardized and under warranty as
recommended by the producer, the bidder is not required to submit a sale permit
or sale authorization issued by the producer or a certification of joint
venture relationship or any other equivalent documents (hereinafter referred to
as sale permit).
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If the bidder fails to enclose a
sale permit together with the bid, the bid may still be considered further for
contract award. The failure to enclose a sale permit as required by the bidding
documents does not constitute a ground for disqualification of the bidder. If
the bidder wins the bid, the bidder must present the sale permit before signing
the contract and be liable for the accuracy of any document or information
provided. If the bidder fails to present a sale permit to sign the contract,
the next ranked bidder shall be invited to enter into negotiation of the
contract.
3. If the content of the sale
permit does not meet the requirements in the bidding documents, the procuring
entity must require the bidder to clarify it as the ground for the contract
award and also authorize the bidder to replace or supplement information in the
sale permit.
4. If any producer or distributor
in Vietnam’s territory knowingly refuses to provide a sale permit the a bidder
without justifiable reasons and not in accordance with regulations of law on
trade and competition, which brings advantage or monopoly to another bidder,
the former bidder may report it to the Ministry of Industry and Trade for
further actions.
Article 5.
Requirement for supply of samples
1. Regarding common and
available-on-market goods which are standardized, the bidder is not required to
supply samples.
2. Regarding particular or complex
good that the investor or procuring entity may not identify the shape, model of
the good and it needs individual and separate manufacture, the bidders may be
required to supply samples to prove the specifications of the good. If the
bidders are required to supply samples, the request for approval for bidding
documents must specify reasons for the investor to consider. The investor and
procuring entity must ensure the supply of samples will not cause an increase
in the costs of the package, limit the participation of the bidders or bring an
advantage to one or certain bidders, which causes an unfair competition.
3. If the bidding documents require
supply of samples, the bidder may supply samples after the deadline for
submission of the bids.
Article 6. Requirement
for mobilization of personnel for performance of package
1. Regarding the work related to
supply of the good, the bidding documents may not require mobilization of key
personnel.
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3. If the bidding documents require
mobilization of key personnel, in the bid, the bidder must prove their capacity
to mobilize key personnel proposed to perform the package to meet the
requirements of the bidding documents. The key personnel may be on the payroll
of the bidder or mobilized by the bidder. If the key personnel proposed by the
bidder have not met the requirements of the bidding documents; the expert group
or procuring entity needs to require the bidder to replace another person
within a given time for further consideration without immediate
disqualification of the bid. In any circumstance, the bidder must undertake
that details about resumes and experience of the key personnel are true.
Article 7.
Contract
1. The contract primarily applied
to the procurement of goods is a lump sum contract. If the good is particular
or complex and large-scale and the time for performance of the contract is more
than 18 months, the adjustable unit price contract may apply. In a case where
an adjustable unit price contract applies, the bidding documents must specify
the price escalation formula; during the performance of the contract, if there
is a change in unit price which needs an adjustment, the bidder must prove
factors which lead to such change.
2. The bidding documents shall
consist of contract agreement form and terms and conditions of the contract as
the basis for bid proposal and negotiation, finalization, conclusion and
execution of contract.
3. The arbitrary termination of
contract specified in Section 29.3 General Conditions of Contract in the form
of bidding documents issued herewith may be done with the authorization of the
competent person with good reasons.
4. The contract concluded between
the investor and the contractor must be made in accordance with contract
agreement form and conditions of contract in the bidding documents, contract
amendments proposed by the investor and approved by the investor in the
progress of negotiation and finalization of contract in accordance with law on
bidding, CPTPP and relevant law provisions.
Article 8.
Implementation
1. This Circular comes into force
from January 15, 2021.
2. Regarding packages under scope
of regulation of CPTPP in which the bids have been opened before effective date
of this Circular, the bid evaluation and consideration for contract award shall
be done in accordance with the bidding documents and not in contravention with
CPTPP.
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4. Regarding packages under scope
of regulation of CPTPP in which the bidding documents have been approved before
effective date of this Circular but the bidding documents have not been issued,
these bidding documents shall be adjusted in order to conform to forms issued
herewith.
5. The entities listed in the
Appendices of Decree No. 95/2020/ND-CP and relevant entities shall implement
this Circular. Difficulties that arise during the implementation of this
Circular should be reported to the Ministry of Planning and Investment for
consideration./.
MINISTER
Nguyen Chi Dung