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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.:
21/2022/TT-BKHDT
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Hanoi, September
30, 2022
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CIRCULAR
PRESCRIBING
PREPARATION OF BIDDING DOCUMENTS FOR PROCUREMENT OF NON-CONSULTING
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 non-consulting 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 non-consulting
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
for non-consulting service contract packages
within the scope specified in Article 1 of this Circular.
Article 3. Forms of bidding documents for
non-consulting services
1. Use of forms of bidding
documents:
a) Form No. 01 of bidding documents for
non-consulting 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
non-consulting 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, reasonable requirements that ensure
competitiveness, fairness, transparency and economic efficiency shall be
established;
b) Bidding documents shall not include 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 form of bidding documents may
be modified provided that all such modifications will make the bidding
documents stricter and more reasonable, 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:
- Key personnel requirements
shall not be imposed if the non-consulting service contract
package does not require highly-skilled personnel. With regard to
non-consulting services which have specific and complex factors and must be
performed by highly-experienced personnel having appropriate professional
knowledge, key personnel requirements may be imposed. Reasons for establishing
the key personnel requirement must be specified in the request for approval of
bidding documents submitted to the investor. The investor/procuring entity must
ensure that the key personnel requirement is not aimed at limiting
participation of bidders or giving advantage to one or some bidders, thereby
causing unfair competition. The bidding documents shall not include personnel
requirements regarding technical workers and unskilled workers;
- If 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
meet personnel requirements laid down in the bidding documents;
b) Main equipment (if any):
- Depending on the scale and
nature of each contract package, the investor/ 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.
3. 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 provided that they shall not be
contrary to the provisions of the Law on Bidding, the provisions of CPTPP,
EVFTA and UKVFTA Agreements, and other relevant laws.
Article 5. Implementation
1. This Circular comes into
force from November 20, 2022.
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 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, supplemented or superseded,
the new ones shall apply.
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7. The Circular No.
11/2015/TT-BKHDT dated October 27, 2015 of the Minister of Planning and
Investment of Vietnam shall cease to have effect from the effective date of
this Circular. Procuring entities shall, when preparing request for proposals
documents in case of direct contracting, apply forms of bidding documents
enclosed with the Circular No. 08/2022/TT-BKHDT dated May 31, 2022 of the
Minister of Planning and Investment of Vietnam provided that the compliance
with the provisions of the Law on Bidding and the Decree No. 63/2014/ND-CP must
be ensured.
8. Any difficulties that arise
during the implementation of this Circular to the Ministry of Planning and
Investment of Vietnam for consideration./.
MINISTER
Nguyen Chi Dung