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THE MINISTRY OF
PLANNING AND INVESTMENT OF VIETNAM
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THE
SOCIALIST REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No.:
15/2022/TT-BKHDT
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Hanoi, June 30,
2022
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CIRCULAR
PRESCRIBING
PREPARATION OF BIDDING DOCUMENTS FOR PROCUREMENT OF CONSTRUCTION SERVICES UNDER
THE FRAMEWORK OF THE COMPREHENSIVE AND PROGRESSIVE AGREEMENT FOR TRANS-PACIFIC
PARTNERSHIP, THE EU-VIETNAM FREE TRADE AGREEMENT AND THE UK-VIETNAM FREE TRADE
AGREEMENT
Pursuant to the Law on Bidding dated November
26, 2013;
Pursuant to the Government’s Decree No.
95/2020/ND-CP dated August 24, 2020 providing guidelines on bidding process in
procurement under the Comprehensive and Progressive Agreement for Trans-Pacific
Partnership;
Pursuant to the Government’s Decree No.
09/2022/ND-CP dated January 12, 2022 providing amendments to the Government’s
Decree No. 95/2020/ND-CP dated August 24, 2020 providing guidelines on bidding
process in procurement under the Comprehensive and Progressive Agreement for
Trans-Pacific Partnership as the basis for bidding for procurement under the
Comprehensive and Progressive Agreement for Trans-Pacific Partnership, the
EU-Vietnam Free Trade Agreement and the UK-Vietnam Free Trade Agreement;
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 of Vietnam;
At the request of the Director General of the
Public Procurement Agency;
The Minister of Planning and Investment of
Vietnam promulgates a Circular prescribing preparation of bidding documents for
procurement of construction services under the framework of the Comprehensive
and Progressive Agreement for Trans-Pacific Partnership, the EU-Vietnam Free Trade
Agreement and the UK-Vietnam Free Trade Agreement.
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This Circular provides detailed regulations on
preparation of bidding documents for procurement of construction services under
the framework of the Comprehensive and Progressive Agreement for Trans-Pacific
Partnership (hereinafter referred to as “CPTPP Agreement”), the EU-Vietnam Free
Trade Agreement (hereinafter referred to as “EVFTA Agreement”) and the
UK-Vietnam Free Trade Agreement (hereinafter referred to as “UKVFTA Agreement”)
used in competitive bidding process which is implemented adopting the single
stage-one envelope bidding procedure or single stage-two envelope bidding
procedure.
Article 2. Regulated entities
This Circular applies to organizations and
individuals that participate in or are involved in the selection of contractors
of construction service contract packages within the scope specified in Article
1 of this Circular.
Article 3. Forms of bidding documents for
construction services
1. Use of forms of bidding
documents:
a) Form No. 01 of bidding documents for
construction services shall be used in the competitive bidding process adopting
the single stage-one envelope bidding procedure;
b) Form No. 02 of bidding documents for
construction services shall be used in the competitive bidding process adopting
the single stage-two envelope bidding procedure.
2. In case of direct
contracting, Request for Proposals (RFP) documents may be prepared in
accordance with the provisions of this Circular provided that they shall not be
contrary to the provisions of CPTPP, EVFTA and UKVFTA Agreements.
Article 4. Preparation of bidding documents
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a) Depending on the scale and nature of each
contract package, the procuring entity may impose reasonable requirements that
must ensure competitiveness, fairness, transparency and economic efficiency;
Bidding documents must contain adequate information necessary for bidders’
preparation of their bids. If the procuring entity publishes bidding documents
containing inadequate or misleading information which causes difficulties to
bidders in preparing their bids, the published bidding documents will be
considered invalid; the procuring entity shall be required to modify and
publish the modified bidding documents;
b) The procuring entity may not impose any
requirement aimed at limiting participation of bidders or giving advantage to
one or some bidders, thereby causing unfair competition; and any requirement
that, in order for a bidder to participate in a procurement, the bidder has
previously been awarded one or more contracts by a procuring entity of a given
country or territory or that the bidder has prior work experience in that
country or territory;
c) Provisions of the forms of bidding documents may
be modified provided that all such modifications will make the bidding
documents stricter, and not be contrary to the provisions of CPTPP, EVFTA and
UKVFTA Agreements. Such modifications and reasons thereof must be clearly
specified in the request for approval of bidding documents submitted to the
investor.
2. Requirements regarding key
personnel and equipment
a) Key personnel:
- Depending on the scale and
nature of each contract package and pursuant to the Law on construction, the
procuring entity may establish reasonable requirements regarding key personnel
in the bidding documents. Bidding documents shall not include any key personnel
requirements with regard to positions of which standards of holders are not
required by the Law on construction or holders of common technical positions,
technical workers and unskilled workers;
- If the key personnel stated
in a bid fails to meet personnel requirements laid down in the bidding
documents, the bidder will be allowed a sufficient period of time to provide
clarifications, replace or make changes in its key personnel. Replacement of
each unqualified person shall be made once only. The bid shall be
disqualified if the bidder fails to have substitute personnel that meets
personnel requirements laid down in the bidding documents.
b) Main construction equipment:
- Depending on the scale and
nature of each contract package, the procuring entity shall impose appropriate
equipment requirements (including quantity, categories, functions and
capacity);
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c) The bidder that is successful and awarded the
contract shall be obliged to mobilize personnel and equipment as proposed or
replaced as prescribed in Point a and Point b of this Clause. The bidder's
failure to mobilize personnel and equipment will result in the bidder incurring
breach of contract penalties and having its prestige adversely affected when
participating in other contract packages.
d) The bidder’s inaccurate statement of personnel
and equipment will in any case result in the bidder being disbarred from
replacement of personnel and equipment as prescribed in Point a and Point b of
this Clause, having its bid disqualified, being considered to have entered into
fraudulent practices as prescribed in Clause 4 Article 89 of the Law on
Bidding, and thus incurring penalties as prescribed in Clause 1 Article 122 of
the Decree No. 63/2014/ND-CP dated June 26, 2014.
3. Requirements regarding
commitments and principle contract
If the bidding documents contain requirements
regarding commitments or principle contracts for equipment lease, supply of
main materials, warranty, maintenance or repair services but the bid is not
accompanied by these documents, the procuring entity shall allow a sufficient
period of time for the bidder to clarify their bid and provide additional
documents as the basis for bid evaluation.
4. Contract
a) Bidding documents must include the contract
form, and terms and conditions of the contract as the basis for bidders’
submission of their bids as well as negotiation, completion and conclusion of
contract.
The contract shall contain general conditions,
particular conditions and contract forms. Depending on the scale and nature of
each contract package, the investor shall decide to make reasonable
modifications to the contract. Where necessary, the investor may apply
construction contract forms developed by the International Federation of
Consulting Engineers (FIDIC) provided they are not contrary to the domestic
law.
b) The contract signed between the investor and the
successful bidder must be made according to the contract form and conditions of
the contract provided in bidding documents and modifications and revisions
proposed by the bidder and accepted by the investor during the negotiation and
completion of the contract provided that they shall not be contrary to the
provisions of the Law on bidding, CPTPP, EVFTA or UKVFTA Agreement and relevant
laws.
Article 5. Implementation
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2. Regarding the contract
packages governed by the CPTPP, EVFTA or UKVFTA Agreement for which bids have
been opened before the effective date of this Circular, the evaluation and
acceptance of bids shall be carried out according to the provisions of the
issued bidding documents provided that such evaluation and acceptance of bids
shall not be contrary to the provisions of the CPTPP, EVFTA and UKVFTA
Agreements.
3. Regarding the contract
packages governed by the CPTPP, EVFTA or UKVFTA Agreement for which the bid
closing date falls after the effective date of this Circular, if the
bidding documents have been approved and issued before the effective date of
this Circular but are found before the bid closing date to contain information
unconformable or contrary to the provisions of the forms of bidding documents
enclosed herewith, reasonable modifications should be made. If the issued
bidding documents are modified, bidders shall be allowed a sufficient period of
time to prepare their bids.
4. Regarding the contract
packages governed by the CPTPP, EVFTA or UKVFTA Agreement for which bidding
documents have been approved before the effective date of this Circular but yet
to be issued, such bidding documents shall be modified according to relevant
forms of bidding documents enclosed herewith.
5. If any legislative
documents referred to in this Circular are amended and supplemented, the new
ones shall apply.
6. The organizations mentioned
in the Appendix enclosed with the Decree No. 09/2022/ND-CP dated relevant
organizations and individuals are responsible for the implementation of this Circular.
Difficulties that arise during the implementation of this Circular should be
reported to the Ministry of Planning and Investment of Vietnam for
consideration./.
MINISTER
Nguyen Chi Dung