Circular 09/2022/TT-BGTVT bid evaluation methods for selection of investors

• Official number: 09/2022/TT-BGTVT
• Legislation Type: Circular
• Organization: The Ministry of Transportation and Communications
• Signer: Nguyen Duy Lam
• Issued Date: 22/06/2022

THE MINISTRY OF TRANSPORT OF VIETNAM --------	THE SOCIALIST REPUBLIC OF VIETNAM Independence - Freedom - Happiness ---------------
No.: 09/2022/TT-BGTVT	Hanoi, June 22, 2022

CIRCULAR

PROVIDING GUIDANCE ON BID EVALUATION METHODS AND CRITERIA FOR SELECTION OF INVESTORS EXECUTING PUBLIC-PRIVATE PARTNERSHIP PROJECTS AND TEMPLATE OF BUILD-OPERATE-TRANSFER CONTRACT IN TRANSPORT SECTOR

Pursuant to the Law on Public-Private Partnership Investment dated June 18, 2020;

Pursuant to the Law providing amendments to the Law on Public Investment, the Law on Public-Private Partnership Investment, the Investment Law, the Housing Law, the Law on Electricity, the Law on Enterprises, the Law on Excise Duties, and the Law on Civil Judgment Enforcement dated January 11, 2022;

Pursuant to the Government’s Decree No. 28/2021/ND-CP dated March 26, 2021 prescribing financial management mechanism of public-private partnership projects;

Pursuant to the Government’s Decree No. 35/2021/ND-CP dated March 29, 2021 providing guidelines for implementation of the Law on public-private partnership investment;

Pursuant to the Government’s Decree No. 12/2017/ND-CP dated February 10, 2017 defining the functions, tasks, powers and organizational structure of the Ministry of Transport;

At the request of the Director of the Transport Engineering Construction and Quality Management Bureau;

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Chapter I

GENERAL PROVISIONS

Article 1. Scope

This Circular provides guidance on bid evaluation methods and criteria for selection of investors executing public-private partnership (PPP) projects and template of the build-operate-transfer contract (hereinafter referred to as “BOT contract”) in transport sector.

Article 2. Regulated entities

This Circular applies to organizations and individuals that participate in or are involved in selection of investors for executing PPP projects and concluding BOT contracts in the transport sector.

Article 3. Application rules

1. In Appendixes I, II, III and IV enclosed with this Circular, the normal (or roman) text are mandatory contents while italicized text is for guidance and shall be specified in detail according to the scale, nature and specific conditions (if any) of each project but shall not include any criteria or conditions that limit the participation of investors or favour one or some investors.

2. Evaluation criteria must be included in bidding documents. During the bid evaluation, such evaluation criteria set out in the bidding documents must be observed without any changes or revisions.

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4. With regard to BTO (Build-Transfer-Operate) contract, BOO (Build-Own-Operate) contract, BLT (Build-Lease-Transfer) contract, BTL (Build-Transfer-Lease) contract, and mixed contract, when formulating the template of the contract in the bidding documents, the procuring entity may use appropriate contents of the template of the BOT contract provided in Appendix IV enclosed herewith as reference provided that they must be conformable with the type of contract, specific characteristics of each sector, each project and relevant laws.

Chapter II

BID EVALUATION METHODS AND CRITERIA

Article 4. Bid evaluation

Methods for evaluation of bids based on evaluation criteria laid down in the bidding documents include:

1. Evaluation of technical proposal applicable to projects executed employing competitive bidding or competitive negotiation approach as prescribed in Clause 1 Article 38 of the Law on Public-Private Partnership Investment hereinafter referred to as "PPP Law”)

a) Examination and evaluation of validity of the technical proposal: Comply with the provisions of Clause 1 and Clause 2 Article 56 of the Government’s Decree No. 35/2021/ND-CP dated March 29, 2021 on elaboration of the PPP Law (hereinafter referred to as “Decree No. 35/2021/ND-CP”).

b) Evaluation of investor’s capacity and experience:

With regard to a project executed employing competitive bidding approach where a prequalification has been taken: Comply with the provisions of Point a Clause 3 Article 56 of the Decree No. 35/2021/ND-CP.

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The investor whose technical proposal is considered valid and meets capacity and experience requirements will be eligible for a detailed technical evaluation.

c) Detailed technical evaluation: Comply with the provisions of Article 6 of this Circular.

The investor that meets technical requirements will be eligible for evaluation of financial-commercial proposal.

2. Evaluation of financial-commercial proposal applicable to projects executed employing competitive bidding and competitive negotiation approaches as prescribed in Clause 1 Article 38 of the PPP Law.

a) Examination and evaluation of validity of the financial-commercial proposal: Comply with the provisions of Clause 1 and Clause 2 Article 59 of the Decree No. 35/2021/ND-CP;

b) Error correction and deviation adjustment: Comply with Clause 1 Section 2 Part B Chapter III of Appendix IV enclosed with the Circular No. 09/2021/TT-BKHDT dated November 16, 2021 of the Ministry of Planning and Investment providing guidelines for selection of investors executing public-private partnership projects and investment projects involving land use (hereinafter referred to as “Circular No. 09/2021/TT-BKHDT”);

c) Evaluation methods and criteria: Comply with the provisions of Article 7 of this Circular.

3. Evaluation of bids applicable to projects executed employing direct contracting approach as prescribed in Point a Clause 1 Article 39 of the PPP Law

a) Examination and evaluation of validity of the bid: Comply with the provisions of Point a Clause 1 of this Article and Clause 5 Article 29 of the Decree No. 35/2021/ND-CP;

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c) Detailed technical evaluation: Comply with the provisions of Point c Clause 1 of this Article; detailed technical evaluation shall be carried out using the pass/fail method as prescribed in Section II Appendix II enclosed herewith. The list of investors meeting technical requirements is not required;

d) Detailed financial-commercial evaluation: Comply with the provisions of Clause 2 of this Article and Article 7 of this Circular. Ranking of investors is not required.

4. Evaluation of bids applicable to projects executed employing direct contracting approach as prescribed in Point b Clause 1 Article 39 of the PPP Law

a) Evaluation of investor’s eligibility: Comply with the provisions of Article 29 of the PPP Law and Clause 5 Article 29 of the Decree No. 35/2021/ND-CP;

b) Evaluation of investor’s capacity and experience: Comply with the provisions of Article 5 of this Circular.

Article 5. Capacity and experience evaluation methods and criteria

1. Evaluation methods

a) Evaluation of independent investors: Comply with the provisions of Clause 3.1 Section 3 Part A Chapter III of Appendix IV enclosed with the Circular No. 09/2021/TT-BKHDT;

b) For investors that are consortium members: Comply with the provisions of Clause 3.1 and Clause 3.2 Section 3 Part A Chapter III of Appendix IV enclosed with the Circular No. 09/2021/TT-BKHDT.

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Article 6. Technical evaluation methods and criteria

1. Evaluation methods: Comply with the provisions of Clause 4.1 Section 4 Part A Chapter III of Appendix IV enclosed with the Circular No. 09/2021/TT-BKHDT.

2. Evaluation criteria: Comply with Appendix II enclosed herewith.

Article 7. Financial – commercial evaluation methods and criteria

1. Based on the scale and nature of each project, the procuring entity shall decide to adopt one of the following methods for comparison and ranking of investors meeting financial – commercial requirements:

a) Comparison and ranking method based on VGF (viability gap funding) for construction of infrastructure works/systems (which does not apply to a PPP project of which sub-projects are funded by public investment funding as prescribed in Point a Clause 5 Article 70 of the PPP Law), and other contents such as payback period, product prices/charges and relevant factors specified in the bidding documents.

The investor that proposes the lowest VGF shall be ranked first and considered successful.

In case an investor is eligible for incentives, the VGF value provided for the investor must be determined before the investor is ranked adopting the formula specified in ITB 26.3 (Instructions to Bidders) Chapter II Part 1 of Appendix IV enclosed with the Circular No. 09/2021/TT-BKHDT.

In case investors propose the same VGF value, they shall be ranked according to technical evaluation results. In case the scoring method is employed, the investor whose technical bid is granted the highest score shall be ranked first. In case the pass/fail method is employed, the investor that has the fewest number of substantially nonresponsive criteria shall be ranked first.

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The investor that proposes the lowest public product or service price/charge shall be ranked first and considered successful.

In case an investor is eligible for incentives, the public product or service price/charge of the investor must be determined before the investor is ranked adopting the formula specified in ITB 26.3 Chapter II Part 1 of Appendix IV enclosed with the Circular No. 09/2021/TT-BKHDT.

If two or more investors propose the same public product or service price/charge which is also the lowest one, the investor shall be ranked according to technical evaluation result. In case the scoring method is employed, the investor whose technical bid is granted the highest score shall be ranked first. In case the pass/fail method is employed, the investor that has the fewest number of substantially nonresponsive criteria shall be ranked first.

c) Comparison and ranking method based on social benefits and state benefits, and other relevant contents specified in the bidding documents.

The investor that proposes the highest payment to state budget or the shortest contract execution period shall be ranked first and considered successful.

In case an investor is eligible for incentives, the value of the proposed payment to state budget or contract execution period of the investor must be determined before the investor is ranked adopting the formula specified in ITB 26.3 Chapter II Part 1 of Appendix IV enclosed with the Circular No. 09/2021/TT-BKHDT.

If two or more investors propose the same payment to state budget which is the highest one or the same contract execution period which is the shortest one, the investor shall be ranked according to technical evaluation result. In case the scoring method is employed, the investor whose technical bid is granted the highest score shall be ranked first. In case the pass/fail method is employed, the investor that has the fewest number of substantially nonresponsive criteria shall be ranked first.

d) Comparison and ranking method based on combined criteria shall comply with the provisions of Appendix III enclosed herewith.

2. Based on the scale and nature of each project and evaluation criteria defined in Clause 1 of this Article, the procuring entity shall clearly indicate financial-commercial evaluation contents as prescribed in Point 2.2.2 Section 2 Part B Chapter III of Appendix IV enclosed with the Circular No. 09/2021/TT-BKHDT.

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TEMPLATE OF BOT CONTRACT

Article 8. Contract agreement

The contract agreement made between the parties shall, inter alia, include the following contents: Legal grounds for conclusion of the project contract; general information about parties of the project contract (contracting authority, investor or project enterprise); contract documents and order of priority thereof; duration and starting time of validity of the project contract.

Article 9. General conditions

This Article contains the general clauses to be applied in all BOT contracts in the transport sector.

Article 10. Particular conditions

This Article contains clauses specific to each contract that modify or supplement the general conditions of a BOT contract in the transport sector.

Article 11. Appendixes to contract

An appendix to the contract shall be considered an integral part of the project contract. Where necessary, the contract may be accompanied by appendixes which elaborate its clauses and conditions.

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IMPLEMENTATION

Article 12. Transition

1. In case the bidding documents have been approved before the effective date of this Circular but not yet issued, the procuring entity may modify the bidding documents in accordance with the provisions of this Circular, and submit the modified bidding documents to competent authorities for approval.

2. In case bidding documents have been issued before the effective date of this Circular but investor selection results have yet to be approved, such issued bidding documents shall continue being used as the basis for evaluation of received bids.

3. With regard to projects of which investor selection results have been approved before the effective date of this Circular, competent authorities, contracting authorities and investors or project enterprises shall enter into negotiation and conclusion of contracts based on the issued bidding documents and bids submitted by investors.

4. Project contracts which have been concluded before the effective date of this Circular shall remain valid. During the contract execution, if any modifications or revisions to the contract are required, competent authorities, contracting authority and investor or project enterprise shall carry out negotiation and conclusion of an appendix to the contract in accordance with the provisions of this Circular.

Article 13. Effect

1. This Circular comes into force from October 01, 2022.

2. If any legislative documents referred to in this Circular are amended, supplemented or superseded, the new ones shall apply.

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Chief of the Ministry Office, Chief Inspector of the Ministry, Director General of Directorate for Roads of Vietnam, Directors of Departments/ Administrations affiliated to the Ministry of Transport, Directors of Project Management Boards affiliated to the Ministry of Transport, Directors of Provincial Departments of Transports, heads of relevant authorities/agencies and relevant individuals shall implement this Circular./.

PP. MINISTER
DEPUTY MINISTER
 



Nguyen Duy Lam