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MINISTRY OF
PLANNING AND INVESTMENT OF VIETNAM
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SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom – Happiness
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No.
12/2022/TT-BKHDT
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Hanoi, June 30,
2022
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CIRCULAR
ELABORATING THE PREPARATION OF BIDDING
DOCUMENTS FOR PROCUREMENT OF GOODS UNDER THE Comprehensive and Progressive
Agreement for Trans-Pacific Partnership (CPTPP), EU-Vietnam Free Trade Agreement
(EVFTA) AND UK-Vietnam Free Trade Agreement (UKVFTA)
Pursuant to the Law on Procurement dated
November 26, 2013;
Pursuant to Decree No. 95/2020/ND-CP dated
August 24, 2020 of the Government of Vietnam providing instructions on bidding
under the CPTPP Agreement in procurement of goods;
Pursuant to Decree No. 09/2022/ND-CP dated
January 12, 2022 of the Government of Vietnam amending some Articles of Decree
No. 95/2020/ND-CP dated August 24, 2020 of the Government of Vietnam providing
instructions on bidding under the CPTPP Agreement in procurement of goods to
instruct bidding under the CPTPP, EVFTA and UKVFTA Agreements in procurement of
goods;
Pursuant to Decree No. 86/2017/ND-CP dated July
25, 2017 of the Government of Vietnam on function, tasks, powers and
organizational structures of the Ministry of Planning and Investment of
Vietnam;
At the request of the Director General of Public
Procurement Agency;
The Minister of Planning and Investment of
Vietnam promulgates a Circular elaborating the preparation of bidding documents
for procurement of goods under the CPTPP Agreement, EVFTA Agreement and UKVFTA
Agreement.
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This Circular elaborating the preparation of
bidding documents on procurement of goods under the Comprehensive and
Progressive Agreement for Trans-Pacific Partnership (CPTPP), the EU-Vietnam
Free Trade Agreement (EVFTA) and the UK-Vietnam Free Trade Agreement (UKVFTA)
applicable to open tendering packages under single-stage and one-envelope
bidding procedure or single-stage and two-envelop bidding procedure.
Article 2. Regulated entities
This Circular is applied to organizations and
individuals participating or involving in the bidding for procurement of goods
under the regulations specified in Article 1 hereof.
Article 3. Application of the templates of
bidding documents on procurement of goods
1. Application of the templates of bidding
documents;
a) Template No. 01 shall be used for open bidding
under single-stage and one-envelope bidding procedure;
b) Template No. 02 shall be used for open bidding
under single-stage and two-envelope bidding procedure;
2. In case of contractor appointment, request for
proposals may be made according to regulations of this Circular in accordance
with regulations of CPTPP, EVFTA and UKVFTA Agreements.
Article 4. Preparation of bidding documents
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a) Based on the scope and nature of each contract
package and the rules of competition, fairness, transparency and economic
efficiency, procuring entities shall establish suitable requirements;
b) Based on the demand for using goods, procuring
entities shall set technical requirements in conformity with the demand in
reality and conditions of the market;
c) Procuring entities must refrain from
establishing conditions intended to limit the participation of bidders or give
advantages to one or certain bidders thereby causing unfair competition (such
as specifying labels and origins of goods, naming countries, groups of
countries and territories in a manner that causes discrimination, except for
intra-regional bidding as prescribed in Article 15 of the Decree No.
95/2020/ND-CP); refrain from establishing requirements that bidders need to
have one or multiple previous contracts with procuring entities of a specific
country, territory or bidders must have experience of supply of goods or services
within the territory of such country or territory as a criterion for
disqualification of such bidders.
In case it is impossible to give the detailed
description of technical specifications, 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 text
"or equivalents” should be printed at the back side of these trademarks
and catalogues, and contents of technical specifications, 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;
d) If there is any modification to the template of
bidding documents, the entities in charge of preparing, processing, and
approving the bidding documents must ensure that modification makes the bidding
documents better organized and more conformable and not contravene to the
CPTPP, EVFTA and UKVFTA Agreements. The request for approving the bidding
documents must specify the modifications compared to original template of
bidding documents and reasons thereof for the investor to consider.
2. Sale permit
a) Regarding common and available-on-market goods
which are standardized and come with warranty according to the manufacturer’s
rules, the bidding documents must not require bidders to include the
manufacturer’s sale permit or a certification of joint venture relationship or
any other equivalent documents;
b) Regarding special or complex goods where the
manufacturer needs to have liability in terms of provision of after-sale
services such as warranty, maintenance, repair, provision of spare parts, and
other related services, the bidding documents may require bidders to submit the
manufacturer’s sale permit.
If the bidding documents have a specific request
for the manufacturer’s sale permit or commitment of technical support and
warranty or other equivalent documents, the bidder shall only present one of
the following documents before concluding the contract: the sale permit of the
manufacturer or agent authorized to sale or the certificate of partnership or
the commitment of technical support and warranty of the manufacturer or other
equivalent documents;
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3. Samples of goods
Bidding documents must not include requests for
supplying samples In case a request for supplying samples serving technical
evaluation is involved, the investor must send a proposal to a competent authority
for consideration in the period of approval for the bidding documents. In the
proposal, reasons for the request for supplying samples and detailed criteria
for technical evaluation of the samples must be clarified. The investor and
procuring entity must ensure that the request for samples does not increase the
cost of the contract package, limit participation of bidders or give advantages
to one or multiple bidders thereby causing unfair competition. In case the
bidding documents include a request for supplying samples, the bidders may
supply the samples within 05 working days after the bid closing time.
4. Requirements for key employees
a) Regarding the work related to the supply of
goods, the bidding documents must not include requirements for mobilization of
key employees;
b) Regarding common and available-on-market goods
which do not require employees performing related services to be
highly-skilled, the bidding documents may not require key employees
c) If the related services are special and complex
that need employees who are highly-skilled and -experienced, the bidding
documents may require mobilization of key employees to perform such tasks. If
so, the request for approval for bidding documents must specify reasons for the
investor to consider. The investor and procuring entity must ensure that the
request for mobilization of key employees does not limit participation of the
bidders or give advantages to one or multiple bidders thereby causing unfair
competition;
d) In case a request for key employees is included
in the contract packages specified in points a, b and c of this clause and a
key employee listed in the bid does not meet requirements of the bidding
documents, the procuring entity may allow the bidders to specify, change and
add key employees in order to meet requirements of the bidding documents in a
suitable period. For each employee who does not meet the requirements, the
bidders shall only be allowed to replace once. In case a bidder fails to
recruit another employee meeting the requirements of the bidding documents,
that bid will be eliminated.
dd) In case a bidder is successful and awarded the
contract, the successful bidder shall mobilize employees and equipment as
requested previously or submit a request for change as prescribed in points d
of this clause. In case the bidder fails to mobilize employees, the bidder
shall incur penalties for breach of contract and lose prestige when
participating in other contract packages;
e) Any employees that are dishonestly declared by
the bidder shall not be replaced as prescribed in point c of this clause; the
bid of the bidder will be eliminated and the bidder will be considered as fraud
as prescribed in clause 4 Article 89 of the Law on Procurement and handled as
prescribed in clause 1 Article 122 of Decree No. 63/2014/ND-CP.
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In case the bidding documents include a request for
commitment and principle contract for equipment rental, supply of main
materials, warranty, maintenance, repair and maintenance but the bid does not
attach these documents, the procuring entity shall request the bidder to
clarify the bid and supplement such documents within a reasonable time to serve
as a basis for the evaluation of the bid.
6. Contracts
a) The type of contract applied primarily to
procurement of goods is all-inclusive contract. If the goods are special or
complex and large-scale and subject to price fluctuation, the variable unit
price contract may apply. In a case where a variable unit price contract
applies, the bidding documents must specify the price adjustment 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.
b) A bidding document must include a contract
template and specific terms and conditions of the contract which shall be used
as the basis for submission of bids by bidders and negotiation, completion and
conclusion of the contract by the parties. The contract shall include general
conditions, specific conditions and contract schedule. Based on each contract
package's scale and extent, the investor shall make decisions on amending
accordingly.
c) The arbitrary termination of contract specified
in Section 29.3 General Conditions of Contract in the template of bidding
documents issued herewith may be done with the authorization of the competent
person with good reasons;
d) The contract concluded between the investor and
the bidder must comply with the contract template, conditions in the bidding
documents and amendments proposed by the bidder and approved by the investor in
the period of negotiation and completion of the contract if they are not
contravene regulations of laws on procurement, regulations of CPTPP, EVFTA and
UKVFTA Agreements and other regulations of relevant laws.
Article 5. Organizing implementation
1. This Circular comes into force from August 25,
2022.
2. Circular No. 09/2020/TT-BKHDT dated November 27,
2020 of the Minister of Planning and Investment elaborating bidding documents
on procurement of goods under the CPTPP Agreement shall be annulled from the
date on which this Circular comes into force.
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4. Regarding contract packages regulated by CPTPP,
EVFTA and UKVFTA Agreements in which the bidding documents have been approved
and issued before effective date of this Circular but the deadline for
submission of bids is after the effective date of this Circular and the
deadline has not reached, any information inappropriate or in contravention of
the templates of bidding documents issued herewith must be modified
accordingly. If the bidding documents are modified after issued, the investor
and procuring entity must give the bidders a reasonable given time for the
bidders to prepare their bids.
5. Regarding contract packages regulated by CPTPP,
EVFTA and UKVFTA Agreements in which the bidding documents have been approved
before effective date if this Circular but have not been issued, these bidding
documents must be adjusted to the templates issued together with this Circular.
6. In case the legislative documents referred to
this Circular are amended or replaced, the newest document shall be applied.
7. The organizations listed in the appendix issued
together with Decree No. 09/2022/ND-CP, related organizations and individuals
are responsible for the implementation of this Circular. Difficulties that
arise during the period of implementation of this Circular should be reported
to the Ministry of Planning and Investment for prompt guidance./.
MINISTER
Nguyen Chi Dung
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