04/2000/TT-BKH in Vietnam, Circular No.04/2000/TT-BKH of May 26, 2000 guiding the implementation of the bidding regulation in Vietnam

APPLICATION OBJECTS

The objects of application of the Bidding Regulation are defined in Clause 2, Article 2 of the Bidding Regulation, concretely as follows:

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The investment projects implemented under the Regulation on Investment and Construction Management and prescribed at Point a, Clause 2, Article 2 of the Bidding Regulation are projects which use the State budget capital, State-guaranteed credit capital, the State’s development investment credit capital and/or development investment capital of the State enterprises, including:

1. Investment projects for new construction, renovation, overhaul, upgrading of projects already invested and constructed;

2. Investment projects for procurement of assets including equipment, machinery which require no installation and new technological and scientific products;

3. Projects using State budget capital for regional and territorial development planning, branch development planning, or urban and rural construction planning.

Section II. PROJECTS WHICH REQUIRE THE SELECTION OF INVESTMENT PARTNERS FOR IMPLEMENTATION

The projects which require the selection of investment partners for implementation are defined at Point d, Clause 2, Article 2 of the Bidding Regulation when 2 or more investors wish to participate therein, including:

1. Joint-venture projects;

2. Projects to be executed in form of business cooperation contracts;

3. Projects with 100% foreign capital;

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5. Other projects which require the selection of investment partners.

PRELIMINARY SELECTION OF BIDDERS

The preliminary selection of bidders is stipulated in Article 23 and Article 34 of the Bidding Regulation, concretely as follows:

Section I. GENERAL PROVISIONS ON PRELIMINARY SELECTION

1. Bidding packages valued at 300 plus billion VND for goods procurement and at 200 plus billion VND for construction and installation must all go through the preliminary selection. Depending on the nature of each bidding package, for bidding packages with value below the above-prescribed levels, the preliminary selection may also be organized on the basis of decisions made by competent persons in the approved bidding plans.

2. For goods procurement or construction and installation bidding packages without going through the preliminary selection, the bidding dossiers must clearly state the request that bidders fully submit the documents on capabilities prescribed at Point b, Clause 2, Article 9 of the Bidding Regulation and declare their capabilities and experience according to questionaire forms 2, 3, 4, 5, 6, 7, 8 and 9 at Section II of the Preliminary Selection Dossiers, Appendix III to this Circular.

3. The preliminary selection time lasting from the time of distributing the preliminary selection invitation dossiers till the time of announcing the results shall not exceed 90 days for the international bidding, or 60 days for the domestic bidding. The shortening of preliminary selection duration is encouraged.

Section II. PRELIMINARY SELECTION INVITATION DOSSIERS

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Section III. CRITERIA FOR EVALUATION OF PRELIMINARY SELECTION PARTICIPATION DOSSIERS

The evaluation of preliminary selection participation dossiers shall be carried out on the basis of points giving according to 3 criteria with the following major contents:

1. Technical capability (accounting for 20-30% of the total points), including:

a) The major business products;

b) The quantity and qualifications of professional cadres;

c) Personnel projection and site organization;

d) Projection on subcontractors;

e) The capability to deploy equipment for implementation of bidding packages;

f) The capability to enter partnership and to use Vietnamese subcontractors.

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a) Turnover for 3 to 5 latest years (depending on each bidding package);

b) Total assets, working capital, before- and after-tax profits in 3 to 5 latest years (depending on each bidding package);

c) Value of contractual parts being performed and not yet completed;

d) The bidder�s credit capability and addresses of banks which supply credits to the bidder.

3. Experience (accounting for about 30-40% of the total points), including:

a) The number of years with working experiences;

b) The quantity of contracts with value being equal to 50% or higher of the bidding package being under preliminary selection, which have been performed within 3 to 5 latest years;

c) The quantity of contracts already performed in the world, the region and in Vietnam within 3 to 5 latest years, which are similar to the bidding package being under preliminary selection.

For goods procurement bidding packages, depending on the nature of each bidding package, the temporal requirements stated at Points a and b of Clause 2 and Points b and c of Clause 3 of this Section may be less than 3 years if it suits the practical situation of the project and is approved by the competent person or the competent level.

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Section IV. EVALUATION OF PRELIMINARY SELECTION PARTICIPATION DOSSIERS

The evaluation of preliminary selection participation dossiers shall be made by the bid solicitors or hired experts. A preliminary selection participation dossier is evaluated as having met the preliminary selection requirements when it scores at least 60% of the total points and each criteria on technical capability, financial capability or experience is given 50% or more of the maximum points for such criteria.

PROJECT BIDDING PLANS

OTHER ISSUES

Section I. CONDITIONS FOR PARTICIPATION IN BIDDINGS

1. Where a corporation registers its name for the bidding, as stipulated at Point c, Clause 2, Article 9 of the Bidding Regulation, all its attached units with dependent cost- accounting shall not be allowed to participate therein in the capacity as independent bidders for the same bidding package in form of principal contractor (in partnership or unilateral).

2. Foreign bidders participating in biddings in Vietnam shall have to commit to procure and use supplies and equipment with suitable quality and prices, which are being manufactured, processed or available in Vietnam as provided for at Clause 4, Article 10 of the Bidding Regulation; if they are not available or can not be manufactured or processed in the country, the bidders may offer the imports from overseas on the basis of ensuring their quality and reasonable prices.

Section II. APPOINTED BIDDING

Other special bidding packages, to which the form of appointed bidding stipulated at Point d, Clause 3, Article 4 of the Bidding Regulation shall be applied at the requests of the capital-supplying agencies or due to their technical and technological complexities or to unexpected requirements of the projects, are those valued at 1 plus billion VND for goods procurement or construction and installation, or at 500 plus million VND for consultancy (excluding consultancy on elaboration of pre-feasibility or feasibility study reports) under projects of Groups A, B and C or the equivalent, and the appointment of bidders shall be decided by the persons competent to decide the investment, based on the evaluation reports of the Ministry of Planning and Investment and the written comments of the capital supplying agencies as well as other relevant bodies. For these bidding packages, if they belong to projects of Group A or the equivalent, the appointment of bidders shall be decided by the Prime Minister on the basis of the evaluation by the Ministry of Planning and Investment and written comments of the capital-supplying agencies and other relevant bodies, without dividing the responsibility therefor like for the bidding packages mentioned at Point c, Clause 3, Article 4 of the Bidding Regulation.

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Section III. BID INVITATION

Bid invitation shall be carried out through the announcement of bid solicitation or sending of bid invitation letters as provided for in Clause 2 of Article 20, Clause 3 of Article 22, Clause 3 of Article 33, Point b, Clause 1 of Article 45 and Clause 2 of Article 47, of the Bidding Regulation, including:

1. Bid invitation announcement

The bid invitation announcement shall apply in case of unrestricted bidding. The notice form is prescribed in Appendices I, II and III to this Circular.

The bid solicitor must make the announcement on the mass media, including daily newspapers, audio-visual means and/or other means, depending on the size and nature of the bidding packages, for at least 3 consecutive issues and the announcement must be made at least 5 days before the distribution of bidding dossiers, for small-sized bidding packages, or 10 days for other bidding packages after the first announcement.

In case of international biddings, the bid solicitors shall have to make such announcement according to the regulations in this Clause and at least on one English-language newspaper circulated widely in Vietnam or according to the donors’ regulations.

2. Sending of bid invitation letters

The sending of bid invitation letters shall apply to bidding packages under the restricted bidding, the bidding packages already gone through preliminary selection and the bidding packages selected through shortlists. The bid solicitors should send the bid invitation letters through fax, postal service or other means directly to the bidders on the list already approved by the competent persons or the competent authorities. The duration from the time of sending bid invitation letters to the time of distributing the bidding dossiers shall be at least 7 days for the international bidding and 5 days for the domestic bidding, 3 days for small bidding packages. The form of bid invitation letter for each specific domain is prescribed in Appendices I, II and III to this Circular.

Section IV. BID PREPARATION TIME

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Section V. RECEIPT OF BIDS

The receipt of bids stipulated in Clause 5 of Article 20, Clause 4 of Article 22, Clause 4 of Article 33, Point c, Clause 1 of Article 45, Clause 3 of Article 47 of the Bidding Regulation shall be implemented as follows:

1. The bid solicitor shall receive bids submitted by bidders directly or by mail according to the addresses and time prescribed in the bidding dossiers.

2. The bid solicitor shall not receive bids or any supplementary documents, including price reduction letters, after the bidding closure (except for documents clarifying bids at the request of the bid solicitor as provided for in Article 11 of the Bidding Regulation). Bids submitted after the bidding closure are considered invalid and shall be returned to bidders in status quo.

3. When wishing to amend or withdraw their already submitted bids, bidders must send their written requests for the amendment or withdrawal of their bids, which must be received by the bid solicitors before the bidding closure time stated in the bidding dossiers.

Section VI. BID OPENING

The bid opening is stipulated in Clause 1, Article 13 of the Bidding Regulation, including:

1. Bid opening preparation

The bid solicitor shall invite representative of each bidder and may invite representatives of concerned management bodies to attend and witness the bid opening. The bid opening shall be conducted at places and time inscribed in the bidding dossiers, without depending on the presence or absence of the invited bidders.

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a) Announcement of participants.

b) Announcement of the quantity and names of bidders who have submitted bids.

c) Checking the seals of bids.

d) Opening bid bags one by one, reading and recording the following vital information:

- The names of bidders;

- The quantity of originals and copies of bids;

- The bid prices, including price reduction;

- Bid guarantee, if any;

- Other matters.

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f) Signing the bid-opening minutes for certification by the representative of the bid solicitor, the representatives of bidders and the representatives of concerned management bodies (if any).

g) Signing the originals of bids for certification by the experts’ team or the bid solicitor before making evaluation according to the provisions in Clause 1, Article 13 of the Bidding Regulation. The bids’ originals shall be preserved under the confidentiality regime and the evaluation shall be made upon their copies.

Section VII. SHORT LIST

The short list of bidders is prescribed in Clause 21, Article 3 of the Bidding Regulation, including:

1. The short list for consultancy bidding packages is the list of bidders invited to participate in the consultancy biddings, comprising at least 5 bidders. Where the number of bidders is not enough, the bid solicitor shall report such to the competent person or competent level for decision.

2. The short list for goods procurement or construction and installation bidding packages is the list of bidders selected through the step of technical evaluation, comprising all bidders who have got the minimum number of technical points or more as provided for in the approved evaluation criteria.

Section VIII. ASSIGNMENT OF RESPONSIBILITY FOR BIDDING

The assignment of responsibility for bidding provided for in Article 52 of the Bidding Regulation shall be effected as follows:

1. The Management Boards (or persons authorized by the Management Boards) of joint-venture enterprises (limited liability companies), the lawful representatives of parties to the business cooperation contracts, the Management Boards (or persons authorized by the Management Boards) of shareholding enterprises (joint-stock companies) shall have the following responsibilities for joint-venture, business cooperation contract or shareholding projects under their respective management as defined at Point b, Clause 2, Article 2 of the Bidding Regulation:

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b) To approve the basic contents of the bidding process prescribed at Points b, c, d, e, f, g and i of Clause 1, Article 51 of the Bidding Regulation.

2. The competent persons of State enterprises have the responsibility to approve the basic contents of the bidding process prescribed in Article 51 of the Bidding Regulation for projects falling under the scope of their investment deciding powers.

Section IX. KEEPING SECRET DOSSIERS, DOCUMENTS AND INFORMATION IN THE BIDDING PROCESS

Dossiers, documents and information relating to bidding packages throughout the bidding process are considered trade secrets which must be kept confidential according to the Ordinance on Protection of State Secrets. The keeping secret of dossiers, documents and information throughout the bidding process provided for in Clause 1, Article 13 and Article 56 of the Bidding Regulation shall cover the following:

1. Individuals and collectives of the bid solicitor, consultants for elaboration of bidding dossiers and bid-evaluating and-approving bodies must not disclose the contents of bidding dossiers to any subjects before the distribution of bidding dossiers;

2. The bid solicitor shall have to keep confidential bids submitted by bidders. The bidders shall have to keep confidential their own bids until the bidding results are announced. Competitive offer bids sent by fax must also be kept secret like other bids;

3. Individuals and collectives of the bid solicitor, of the experts or consultants’ team responsible for bid evaluation must not disclose information relating to the bid-evaluating process such as contents of bids, handbooks with records of and minutes of meetings on bid evaluation, evaluation comments of experts or consultants on each bidders and other relevant documents;

4. The mass media must not carry bid evaluation-related information stated in Clause 3 of this Section during the bid-evaluating process as from the time of bid opening till the time of announcing the bidding results;

5. The bid solicitor, the agencies submitting bidding results for approval, the bidding result-evaluating agencies and the competent persons or competent levels shall have to keep secret the submitted and approved dossiers on bidding results stated in Clause 2, Section I, Chapter I, Part Five of this Circular and documents relating to reports on bidding results evaluation by the evaluation agencies stated in Clause 3, Section II, Chapter I, Part Five of this Circular.

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ELABORATION OF BIDDING PLANS

Bidding plans shall be elaborated and submitted for approval to serve as basis for carrying out the biddings. When the bidding plans are elaborated, agencies, professional organizations or individuals, that are knowledgeable about projects, should be employed. Depending on the work characters and implementation time, the elaboration of bidding plans shall be effected as follows:

Section I. ELABORATING BIDDING PLANS TOGETHER WITH PROJECT INVESTMENT DECISIONS

For Group C projects, the project bidding plan must be elaborated and approved simultaneously together with the feasibility study report or the investment report and shall be reflected in the investment decision (prescribed in Clause 11 of Article 24 and Clause 10 of Article 30 of the Investment and Construction Management Regulation issued together with the Government’s Decree No.52/1999/ND-CP of July 8, 1999 and Decree No.12/2000/ND-CP of May 5, 2000). The project bidding plan must conform to the contents of the approved feasibility study report or investment report and conform to the Bidding Regulation.

Besides Group C projects, a number of other projects, if fully qualified, may have their bidding plans elaborated and submitted for approval together with the investment decisions, provided that all requirements on bidding plan stated in Article 8 of the Bidding Regulation must be satisfied.

Section II. ELABORATING BIDDING PLANS AFTER THE PROJECT INVESTMENT DECISIONS ARE APPROVED

For the remaining projects, the elaboration and approval of the project bidding plans shall be carried out after the investment decisions are approved. In this case, the bases for elaboration of the project bidding plans shall be the approved or effective documents such as:

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2. The investment decision;

3. The international treaties on financial support, for projects using sources of international assistance;

4. Approved cost estimates, total cost estimates (if any);

5. The capability of capital supply, practical situation of the project;

6. Other relevant legal documents (if any).

CONTENTS OF THE PROJECT BIDDING PLANS

A bidding plan shall include contents of the project’s work volume to be carried out according to the Bidding Regulation. When elaborating the bidding plan, 6 contents prescribed in Clause 2, Article 8 of the Bidding Regulation should be fully ensured, concretely as follows:

Section I. BIDDING PACKAGE DIVISION

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2. In special cases, a bidding package may also be divided into different parts for implementation under one or many contracts, which should be clearly defined in the bidding dossiers so that bidders may make offers to one, many or all parts of the bidding package.

Section II. THE PRICES OF BIDDING PACKAGES AND FINANCIAL SOURCES

The bidding packages’ prices shall be determined on the basis of their conformity with the total investment structure in the feasibility study report or the cost estimate or total cost estimate of the project, which has been approved by the competent person or the competent level. Each bidding package should be clearly determined in term of financial source such as budget capital, State-guaranteed credit capital, development investment credit capital of the State, development investment capital of enterprises, capital arranged by the contractor or other capital sources.

Section III. FORMS OF SELECTING BIDDERS AND BIDDING MODES

Depending on the work character of each bidding package and the practical situation of the project, suitable form of selecting the bidder and the bidding mode shall be determined. The bidding effected on the basis of each bidding package means a bidding package shall have only one bid and be open to bidding only once. Corresponding to each bidding package there is only one form of selecting bidders and only one bidding mode.

Section IV. THE TIME FOR ORGANIZING BIDDING FOR EACH BIDDING PACKAGE

The time for organizing bidding shall be counted from the time of distributing the bidding dossiers to the time of announcing the bidding results.

Section V. TYPES OF CONTRACT

Depending on the character and time of bidding package performance, suitable types of contract shall be selected. Where a bidding package is implemented under many contracts, such contracts may be performed in the same or different types, depending on the requirements on the contents and implementation time, but this must be clearly stated in the bidding dossiers.

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The contract performance duration projected for each bidding package in the bidding plan must conform to the approved time- table of the project and the feasibility of the implementation of the bidding package.

SUBMISSION FOR APPROVAL, EVALUATION AND APPROVAL OF PROJECT BIDDING PLANS

Section I. SUBMISSION OF BIDDING PLANS FOR APPROVAL

1. Responsibility to submit bidding plans for approval

The investors shall have the responsibility to submit the project bidding plans to the competent persons for approval. For Group A or equivalent projects, the bidding plans shall be submitted to the Prime Minister by ministers, heads of ministerial-level agencies, heads of agencies attached to the Government, Management Boards of State corporations set up by the Prime Minister or presidents of the People’s Committees of the provinces or centrally-run cities according to the Government’s Working Regulations. Where the Management Boards of State corporations set up by the Prime Minister (Corporations 91) submit the bidding plans to the Prime Minister, the branch-managing ministries (if any) should send their written comments to the Prime Minister, clearly stating the legal bases, the contents and rationality of the bidding plans submitted by the above-said Management Boards of the State corporations.

2. Dossiers for bidding plan submission for approval

a) Documents for bidding plan submission for approval

The document for bidding plan submission for approval should reflect the following contents:

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The already performed work volume shall include bidding packages or work in service of investment preparation and investment implementation preparation, which have been done as prescribed, such as surveys, elaboration of pre-feasibility study reports and feasibility study reports and a number of other jobs if any. For each bidding package or work already performed, the name of execution unit, deciding level, performance value, type of contract and execution duration should be clearly stated.

- The work volume not opened to bidding:

This part include jobs which cannot be opened to bidding such as the expenses for the project management board, expenses for compensation, the rent of land use right, final settlement of the project, expenses for test run, payable fee amounts, loan interests during the construction, initial working capital in preparation for production, amounts of contributed capital reflected in kind, labor of organizations and/or individuals participating in the project prescribed in the investment decision, reserve funds and other expenses if any.

- Work volume to be opened to bidding (the project bidding plan):

This include the remaining work of the project, for which bidding should be organized, including bomb and mine sweeping, construction of resettlement quarters. The grounds for bidding package division, the grounds for application of form of selecting bidders, bidding mode and type of contract for each bidding package should be clearly explained.

The total value of the work volume already performed, not opened to bidding and to be opened to bidding must be compatible to and not exceed the total investment approved for the project.

b) Materials enclosed with the documents submitted for approval:

Upon the submission of the project bidding plans for approval, in addition to the documents submitted for approval, the copies of the following materials shall also be sent:

- The approved feasibility study report and explanation documents, if any, supplemented during the process of project evaluation;

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- The international agreement on financial support for projects using international financial support;

- The approved cost estimate, total cost estimate, if any;

- Other relevant legal documents.

Section II. EVALUATION OF PROJECT BIDDING PLANS

1. The responsibility to evaluate bidding plans

a) For Group A and equivalent projects

The Ministry of Planning and Investment shall have to assume the prime responsibility for the evaluation of project bidding plans to be submitted to the Prime Minister for consideration and approval as prescribed at Point a, Clause 2, Article 52 of the Bidding Regulation.

b) For Group B and equivalent projects

The evaluation of project bidding plans shall be undertaken by the authorities evaluating the bidding results as prescribed in Table 1 of Article 53 of the Bidding Regulation, concretely as follows:

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- For projects with the bidding plans to be approved by presidents of the People’s Committees of the provinces and centrally-run cities, the bidding plan-evaluating level shall be the provincial/municipal Services of Planning and Investment;

- For projects with the bidding plans to be approved by presidents of the People’s Committees of urban districts, provincial towns, rural districts, district townships, communes and wards, the evaluating level shall be their concerned attached units assisting the bidding.

c) For Group C projects and those with bidding plans to be approved simultaneously together with investment decisions:

The evaluation of the project bidding plans constitutes a content of the project evaluation (except for projects allowed to make investment reports without having to be evaluated), which falls under the responsibility of the project evaluating bodies and must comply with the Bidding Regulation.

2. Contents of bidding plan evaluation

The project bidding plan evaluation content shall cover the following tasks:

a) Checking such legal grounds of the bidding plan elaboration as the feasibility study report, the investment decision, the international agreement on financial support, cost estimate, total cost estimate and other relevant legal documents if any;

b) Checking the compatibility of the bidding plan contents with the relevant documents stated at Point b, Clause 2, Section I of this Chapter and with the Bidding Regulation, the rationality of the bidding plan against the practical conditions;

c) Comments and proposals of the evaluating body.

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a) For Group A and equivalent projects

The bidding plan evaluation time shall not exceed 30 days after the receipt of complete prescribed dossiers.

b) For other projects

The bidding plan evaluation time shall not exceed 20 days after the receipt of complete prescribed dossiers.

Section III. APPROVAL OF BIDDING PLANS

The competent persons shall have to approve the bidding plans. The time for approving a bidding plan shall not exceed 7 days after the receipt of report from the evaluating body, except for the bidding plans of Group A and equivalent projects, which shall be approved by the Prime Minister according to the Government’s Working Regulations.

Section IV. EXAMPLES ON PROJECT BIDDING PLANS

See example 1 in Appendix IV.

Part Three

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Bidding dossiers comprise all documents on requirements of a bidding package compiled by the bid solicitors, which shall serve as legal basis for bidders to prepare their bids and for the bid solicitors to evaluate bids.

COMPILATION OF BIDDING DOSSIERS

Section I. RESPONSIBILITY TO COMPILE BIDDING DOSSIERS

The compilation of the bidding dossiers prescribed in Clause 1 of Article 20, Clause 2 of Article 22, Clause 2 of Article 33, Point a, Clause 1 of Article 45, Clause 1 of Article 47 of the Bidding Regulation shall be effected by the bid solicitors or hired experts. The bidding dossiers constitute one of the important factors decisive to the quality and efficiency of the bidding packages. Upon the compilation of bidding dossiers, the agencies and/or individuals that are professionally qualified for the bidding packages and knowledgeable about bidding should be employed so as to ensure the quality of bidding dossiers and create favorable conditions for bidders to prepare their bids and for the bid evaluation.

Section II. GROUNDS FOR BIDDING DOSSIER COMPILATION

The compilation of bidding dossiers shall be effected on the following bases:

1. The investment decision or investment license and the feasibility study report or investment report enclosed therewith. For biddings to select investment partners for execution of project when the investment decision is not yet available, it shall be based on the written approval of the competent persons;

2. The approved bidding plan;

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4. The State’s stipulations on bidding and the signed international agreement on financial support if the ODA capital source is used;

5. Other relevant policies of the State such as taxes, wages, preferences for domestic bidders and other policies.

BIDDING DOSSIER REQUIREMENTS AND CONTENTS

Section I. REQUIREMENTS ON THE BIDDING DOSSIERS

The bidding dossiers must be complete, accurate, clear, objective and compatible to the grounds stated in Section II, Chapter I, Part Three of this Circular, according to the following contents:

1. Technically

a) For consultancy selection:

The contents in the reference provisions stated in Section IV, Appendix I to this Circular.

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The requirements on the scope of goods supply, quantity, quality, technological criteria, production criteria, technical properties, origins of equipment, warranty duration, environmental requirements.

c) For construction and installation

The technical design dossiers enclosed with the written anticipation of requirements on labor, construction machinery and equipment, the environmental requirements, tempo and other requirements.

2. Financially and commercially

a) The bid prices according to FOB, CIF prices or other prices.

b) The bid currency and comparative exchange rate.

c) The financial source and other relevant matters such as the purchaser’s credit, the seller’s credit, interest rates and assorted charges, lending and repaying time.

d) Type of contract and relevant matters.

e) Payment conditions.

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The bid evaluation criteria need to be stated right in the bidding dossiers. When the evaluation criteria stated in the bidding dossiers are not specific, the detailed evaluation criteria must be drawn up and approved by the competent person or the competent level before the bid opening. The bid evaluation criteria comprise the following principal contents:

a) For consultancy bidding packages

The point-giving method shall be applied to bid evaluation. The criteria for evaluation of consultancy bids shall include:

- The criteria for technical evaluation (evaluation of technical recommendations).

The criteria for technical evaluation are those for the evaluation of the contents of technical recommendation bags of bidders (or also called technical criteria for short), more concretely:

+ On experience (around 10- 20% of the total points)

This content includes:

* The experiences in performance of similar bidding packages. The number of similar bidding packages performed by the bidders in 3 to 5 latest years (depending on each bidding package).

* The experiences in performance of bidding packages with similar conditions: The number of bidding packages with similar natural, social and economic conditions performed in 3 to 5 latest years.

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. The bidder’s capability: The quantity and quality of the existing contingent of the bidder’s specialists, turnover in 3 to 5 latest years.

~ Managerial experiences: The extent of compatibility of the bidder’s current management level to the requirement of the bidding package.

~ Other activities.

The point ratio and minimum number of points required by each contents on experience shall be determined depending on the characters of each bidding package.

+ On solutions and methodology (30-40% of the total points).

This content include:

* The understanding of the purpose and requirement of the bidding package: The extent of the bidder’s understanding of the purpose and requirement of the bidding package is stated in the "reference provisions".

* The methodology proposed by the bidder: The comprehensiveness and rationality of the methodology proposed by the bidder as compared to the requirements stated in the "reference provisions".

* Innovations: The innovations proposed by the bidder shall be considered in the evaluation process.

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* Labor (month-person): The compatibility of labor (month-person) proposed by the bidder with the requirements stated in the bidding dossiers.

* Training and technology transfer: The compatibility with the training requirements stated in the bidding dossiers, such as the number of trainees, the training duration, forms of training- on site, in class, domestic, overseas; and with the technological transfer contents such as documents and software to be transferred.

* Working facilities: The reasonability of the requirements for support in working place, equipment, supporting personnel of the bid solicitor, travel means.

* Presentation method: The method of bid presentation by the bidder.

The point ratio and minimum number of points required for each content on solution and methodology shall be determined depending on the nature of each bidding package.

+ Criteria on personnel (about 50-60% of the total points).

This content includes:

* Personnel according to the title of each expert: Titles of personnel participating in the ordinary bidding package shall include the chief adviser (team leader) and the titles of other experts on specific domains. The point ratio and minimum number of points of the titles shall be determined depending on the nature of each bidding package. Usually, the chief adviser’s points account for the highest percentage. Upon the personnel evaluation according to each title, attention should be paid to some following points:

~ For the chief adviser (team leader): The requirement on his/her experience is that he/she has already worked as chief adviser in previous projects. At the same time, the requirements on his/her capability and experience are like the requirements on an expert in a specific domain. The expert working in the capacity as a chief adviser must have at least 5 years of working in the specialized field related to the project.

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~ Depending on the nature of each bidding package, the signatures of key experts are required as commitment to their curricula vitae as well as time fund for the performance of the bidding package as stated in the bidding dossiers (Form 4, Section VI, Appendix I to this Circular).

* The personnel criteria for each title shall be considered on the basis of the 4 following contents:

~ General experience (10-20% of the total points of each title): Educational level, number of working years.

~ Experiences related to the bidding package (60-70% of the total points of each title): The number of similar bidding packages already performed.

~ Other factors (10-20% of the total points of each title): Experience in working overseas, foreign languages…

~ Experts on permanent staff of the bidder (5% of the total points of each title).

- Criteria for the general technical and price evaluation.

The general evaluation criteria include the technical criteria and the price criteria, in which the technical criteria must not be lower than 70% and the price criteria must not be higher than 30% of the total points. The evaluation method, the formula for determining the price points and the general points are stated in Clause 9, Section III, Appendix I to this Circular.

b) For goods procurement bidding packages:

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The criteria for evaluation of the bidder’s capabilities and experiences for the goods procurement bidding packages provided for in Clause 1, Article 29 of the Bidding Regulation include the following contents:

+ The production and business capabilities: The major manufacturing and trading products (quantity and categories), the quantity and qualifications of professional staff, the material and technical foundation of the bidder.

+ The financial capability: The total asset, working capital, turnover, before- and after-tax profits in 3 to 5 latest years.

+ Experiences: The number of years with working experiences. The number of similar contracts already performed in 3 to 5 latest years in Vietnam and foreign countries.

Depending on the nature of each bidding package, the time required for the calculation of financial capability (through norms on total assets, working capital, turnover, profits) and the time required for the performance of similar contracts may be less than 3 years provided that it suits the practical situation of the project and is approved by the competent person or the competent level.

The three contents mentioned above shall not be given points but only considered according two standards "pass" or "fail" in order to determine the bidder’s capabilities to participate in the bidding. Those bidders who pass all three above contents shall be considered as having enough capabilities and experiences for participation in the bidding.

- Criteria for technical evaluation to select the short list.

The criteria for technical evaluation prescribed in Clauses 2, 3 and 4 of Article 29 of the Bidding Regulation include the following contents:

+ Technical requirements:

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* The eco-technical properties, codes of supplies and equipment, names of manufacturing firms and countries, the year of manufacture.

* The rationality and economic efficiency of technical solutions, organizational measures for delivery of supplies and equipment to the place of installation.

* Technical personnel’s capability for equipment and facility installation.

* The technical adaptability.

* The geographical adaptability.

* Impacts on the environment and handling measures.

+ Financial supply capability (if so requested).

+ Other contents:

* Contractual terms: The extent of meeting the contractual terms stated in the bidding dossiers.

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* Technological transfer: Capability of technological transfer to the entire project or part by part of the project.

* Training: The plans for domestic and overseas training of officials and workers directly performing and taking over the jobs.

* Other contents, if any.

The point scale of 100 or 1,000 shall be used for the evaluation of the above-mentioned technical contents to select the short list. Depending on the nature of each bidding package, the point ratio and minimum number of points required for each content shall be determined. The minimum points for all the above contents, as prescribed, must not be lower than 70% of the total points, meaning the minimum points may represent 70, 71, 72,.. 80%, depending on the nature of each bidding package.

- Criteria for bringing things to the same floor for determination of the evaluation prices.

The criteria for bringing things to the same floor for determination of the evaluation prices include the following principal contents:

+ The use duration: The life span of machine, depreciation time;

+ The capacity of the entire production chain, the capacity of main equipment (calculated into product unit price). The standards on product quality;

+ The manufacturing technology: Origins of equipment, manufacturing standards, technological level;

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+ Expenses for maintenance, renovation, overhauls;

+ Commercial terms (payment terms, warranty terms), financial terms (loan interests, assorted charges).

c) For construction and installation bidding packages:

- Criteria for evaluation of bidders’ capabilities and experiences:

The criteria on bidders’ capabilities and experiences provided for in Clause 2, Article 40 of the Bidding Regulation include:

+ Experiences: The number of years with working experience. The number of similar contracts performed within 3 to 5 latest years in similar geographical areas, on similar sites;

+ The quantity and qualifications of officials and technical workers of the bidders;

+ The financial capability: Turnover, before- and after-tax profits, working capital, for 3 to 5 latest years.

The 3 above contents shall not be given points but only be considered according to two standards "pass" or "fail" to determine the bidders’ capabilities to participate in the biddings. Those bidders who pass all the three above contents are considered as having full capabilities and experiences for participation in the bidding.

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The technical evaluation criteria prescribed in Clauses 1, 3 and 4 of Article 40 of the Bidding Regulation include the following contents:

+ Technical and quality requirements:

* The extent of satisfying the requirements on techniques, quality of the supplies and equipment stated in the technical design dossiers and technical instructions.

* The rationality and feasibility of technical solutions, organizational measures for construction: The general timetable chart, the site organization chart, personnel arrangement, technical solutions.

* Measures to ensure the conditions on environmental hygiene and other safety conditions such as fire and explosion prevention, labor safety.

* The extent of meeting requirements by construction equipment: The quantity, types, quality of equipment (the depreciation level already made), form of ownership over the equipment (own or rented) arranged for the bidding package.

* Measures to ensure quality.

+ Financial supply capability (if so requested)

+ Other contents:

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* The capability to enter into partnership with Vietnamese contractors, to use Vietnamese subcontractors by foreign bidders in case of international biddings.

* Other contents if so requested in the bidding dossiers.

Depending on the nature of each bidding package, the point ratio and minimum number of points required for each content shall be determined.

- Criteria for bringing things to the same floor for the determination of evaluation prices.

The evaluation floor may include the following criteria:

+ The volume, raw materials and materials according to the bidding dossiers;

+ Expenses for operation, maintenance of the project;

+ Construction conditions;

+ Commercial terms (payment and warranty terms), financial terms (if any);

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+ The project use duration.

4. Other contents.

a) Different kinds of tax as prescribed by law.

b) Project insurance and warranty.

Section II. CONTENTS OF THE BIDDING DOSSIERS

Depending on the nature of each bidding package, the principal contents of the bidding dossier are defined in Clause 1, Article 20 of the Bidding Regulation for consultancy selection, Article 24 for goods procurement, Article 35 for construction and installation, Clause 2 of Article 45 for small-sized bidding packages and Clause 1 of Article 47 for the selection of partners for project execution. Besides, to get more detailed information, the contents of the bidding dossiers for three major domains: consultancy, goods procurement and construction- installation are guided in the appendices to this Circular (for the bidding dossiers to select partners for project execution, the contents for consultancy selection may apply), more concretely:

Appendix I: Guiding form of the consultancy bidding dossier.

Appendix II: Guiding forms of the preliminary selection dossier and the goods procurement bidding dossier.

Appendix III: Guiding forms of the preliminary selection dossier and construction-installation bidding dossier.

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APPROVAL OF BIDDING DOSSIERS

Approving the bidding dossiers shall fall within the responsibility of the competent persons or the competent levels prescribed at Point e, Clause 1, Article 51 of the Bidding Regulation. The time for approving a bidding dossier shall not exceed 10 days for small-sized bidding packages and 20 days for other bidding packages.

Part Four

BID EVALUATION

CONSULTANCY BID EVALUATION

Section I. GENERAL PROVISIONS

The evaluation of consultancy bids prescribed at Point a, Clause 2, Article 13; Clauses 7, 8 and 9 of Article 20 of the Bidding Regulation is made in the following two steps:

1. Step 1: Opening the technical proposal dossier-bag for consideration and evaluation by method of point giving.

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Section II. EVALUATION OF TECHNICAL PROPOSAL DOSSIERS

1. Preliminary evaluation

a) Examining each bid’s administrative and legal compatibility with the requirements stated in the bidding dossier.

b) Clarifying bids: Bid clarification is prescribed in Article 11 of the Bidding Regulation. The documents requesting bidders to clarify their bids need to clearly state the time the bidder shall have to send their written clarifications.

2. Detailed evaluation of bids

The detailed technical evaluation of each bid shall be based on the evaluation criteria prescribed in the bidding dossiers and the detailed evaluation criteria approved before the bid opening as mentioned at Point a, Clause 3, Section I, Chapter II, Part Three of this Circular.

Section III. EVALUATION OF FINANCIAL PROPOSAL DOSSIERS

Following the evaluation of technical proposals, the list of bidders who have met the technical requirements (scoring 70% or more of the total technical points) shall be submitted to the competent person or the competent level for approval, then the financial proposal dossier-bags may be opened to give points on prices. Later, the bids shall be comprehensively evaluated according to point structure in terms of technical aspects and prices prescribed in the bidding dossiers for classification.

Section IV. NEGOTIATING THE CONTRACTS

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The contract negotiation needs to focus on the following contents:

1. The tasks and detailed contents of the consultancy work to be performed;

2. The contents of technological transfer and training;

3. The working plan and personnel arrangement;

4. Tempo;

5. Handling of personnel change if any;

6. The arrangement of working conditions;

7. Contents of consultancy costs, including expenses specified in Article 21 of the Bidding Regulation, paying attention to expenses other than the paid wages according to the principle of payment by actual spending which, however, must not exceed the mutually agreed level.

If the negotiation contents are agreed upon between the two parties, in which the value of the proposed contract shall not exceed the value of the bidding package in the approved bidding plan, the bidder shall be recommended as the bid winner. In case of negotiation failure, the bid solicitor shall report it to the competent person or competent level, asking for permission to invite the bidder ranking next for the contract negotiation.

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EVALUATION OF GOODS PROCUREMENT BIDS

The evaluation of goods procurement bids shall be conducted under the provisions in Clause 2, Article 13 and Article 30 of the Bidding Regulation according to the following order:

Section I. PRELIMINARY EVALUATION OF BIDS

1. Checking the bids’ validity and considering their basic satisfaction of the bidding dossier’s requirements

The bid solicitor shall consider every bid’s validity and basic satisfaction of the conditions prescribed in the bidding dossier so as to determine bids qualified for the next consideration. Checking bids’ validity and basic satisfaction shall cover the following contents:

a) The business registration papers, licenses to sell goods under the producers’ copyrights with regard to complex equipment and as required by the bidding dossier;

b) The numbers of originals and copies of bids as required by the bidding dossier;

c) The application for participation in biddings, which is completely filled in and signed by the head of the bidder’s organization or the authorized person enclosed with the letter of authorization;

d) The validity of bid guaranty;

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f) The bidder’s capabilities and experience;

g) Appendices and other enclosed documents as required by the bidding dossier;

h) Other requirements, if any.

2. Bid clarification

The bid clarification may be made directly or indirectly but presented in documents which shall serve as legal bases for bid consideration and evaluation. In the course of clarification, bidders must not alter the nature of their bids and must not change the bid prices.

3. Elimination of bids

Bids shall be eliminated when they fail to satisfy the validity condition and basic requirements being considered the pre-conditions stated in the bidding dossiers. Thereby, the pre-conditions for elimination of bids shall include:

a) The bidder’s name is not on the list of those registering their participation and the list of those who buy or are supplied with the bidding dossiers;

b) The bids are not submitted at the right places and on the right time prescribed in the bidding dossiers; for this case, the bids shall be returned in tact;

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d) Bids are submitted not with their originals, but only with their copies;

e) Failure to fully submit the regular papers prescribed as conditions for participation in biddings such as copies of business registration papers, licenses for sale of goods under the producers’ copyrights, if so requested;

f) Lacking valid signatures in the application for bidding participation;

g) Bids putting forward conditions contrary to the requirements of the bidding dossiers;

h) Bids containing unfixed bid prices like making the offer with two price levels, conditional price;

i) The bidder’s name is found in two or more bids for one bidding package in the capacity as independent or partnership bidders;

k) Failure to meet the requirements on capabilities and experiences according to the evaluation criteria stated in the bidding dossiers and the detailed evaluation criteria approved before the bid opening. For bidding packages which have already gone through preliminary selection, it is necessary to update information in order to re-examine the information declared by bidders at the time of preliminary selection for verification of the possibility of satisfying the capability and experience requirements by bidders, eliminating those bidders, who are incapable of meeting the set requirements. For bidding packages which do not go through preliminary selection, the criteria on bidders’ capabilities and experiences shall be evaluated according to the contents stated at Point b, Clause 3, Section I, Chapter II, Part Three of this Circular;

l) Other pre-conditions with particular characters of the bidding packages.

Those bidders who fail to meet one of the above-mentioned pre-conditions shall be eliminated from being considered in the detailed evaluation step.

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1. Step 1: Technical evaluation for selection of the short list:

Based on the technical evaluation criteria stated at Point b, Clause 3, Section I, Chapter II, Part Three of this Circular, the bid solicitor shall proceed with the bid evaluation on the basis of point giving.

Bids which meet the requirements with the minimum number of points or more as prescribed in the evaluation criteria shall be selected for the short list for further evaluation in Step 2.

2. Step 2: Financial and commercial evaluation to determine the evaluation prices:

Based on the bid prices offered by bidders, the bid solicitor shall proceed with the determination of the evaluation prices of bids on the short list according to the following contents and order:

a) Error correction:

Error correction means the correction of errors, including arithmetic errors, typing errors and unit miscalculation. If there is any error between the unit price and the total price due to wrong multiplication of the unit price by the volume, the unit price shall serve as legal basis.

When making error correction according to the above-mentioned principle, the bid solicitor shall notify the bidders thereof. If the bidders refuse to accept such error correction, their bids shall be eliminated. Where a bid contains arithmetic errors with difference representing over 15% (according to absolute value, without depending on the increase or decrease of bid prices when determining the evaluation prices) of the bid prices, it shall also be eliminated from further consideration.

b) Adjustment of disparities

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Upon the determination of evaluation prices, the superfluous offer shall be subtracted and the insufficient offer shall be added according to the principle that if it is inseparable from the bid price, the highest offer price shall be chosen for this content (in case of insufficient offer) and the lowest level among the other bids on the short list shall be taken (in case of superfluous offer).

- Adding or adjusting disparities between bid sections:

The adjustment of disparities in bids aims to ensure the consistency of bids. The disparities commonly seen in bids, which need to be adjusted, include:

+ The disparity between the value written in figures in tables and the values written in words in the explanation; for this case, the value written in words shall be used as legal basis;

+ The disparity between the general unit prices in the general price tables and the detail unit prices in the analytical unit price tables; for this case, the detail unit prices shall be used as legal basis;

+ The disparity between the technical offer contents and the financial offer contents; for this case, the technical offer contents shall be used as legal basis.

Bids with the total disparity value exceeding 10% (calculated according to absolute value, without depending on the increase or decrease of the bid prices when determining the evaluation prices) of the bid prices shall be eliminated from further consideration.

c) Conversion of bid prices into a common currency:

Converting the bid prices, if any, according to the exchange rates set by the bid solicitor in the bidding dossiers.

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Bringing things to the same floor for determination of the evaluation prices shall cover the contents mentioned at Point b, Clause 3, Section I, Chapter II, Part Three of this Circular.

Section III. BID CLASSIFICATION

The classification of bids on the short list shall be made according to the evaluation prices. Those bidders with the lowest evaluation prices shall be ranked first and recommended for bid winning.

Section IV. EXAMPLES ON EVALUATION OF GOODS PROCUREMENT BIDS

See example 2 in Appendix IV.

EVALUATION OF BIDS FOR CONSTRUCTION AND INSTALLATION

The evaluation of bids for construction and installation shall comply with the provisions of Clause 2, Article 13 and Article 41 of the Bidding Regulation according to the following order:

Section I. PRELIMINARY EVALUATION OF BIDS

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The contents of checking the bids’ validity and basic requirement satisfaction shall comply with the provisions on goods procurement bidding packages stated in Clause 1, Section I, Chapter II, Part Four of this Circular.

Bids are considered as having basically met the requirements of the bidding dossiers when they satisfy the requirements, conditions and technical characters of the bidding dossiers without disparities or limitations in materials which affect the scale, quality or implementation of projects and without restricting the bid solicitors’ powers or the bidders’ obligations.

The determination of a bid as being invalid or failing to meet the basic requirements must be made in an objective manner according to the requirements of the bidding dossier.

2. Bid clarification

The bid clarification shall comply with the provisions on goods procurement stated in Clause 2, Section I, Chapter II, Part Four of this Circular.

3. Bid elimination

The bid elimination shall comply with the provisions on goods procurement stated in Clause 3, Section I, Chapter II, Part Four of this Circular.

Particularly for the determination of the extent of meeting the requirements on capabilities and experiences by bidders, it should be based on the criteria prescribed in the bidding dossiers and the detailed evaluation criteria approved before the bid opening stated at Point c, Clause 3, Section I, Chapter II, Part Three of this Circular.

Section II. DETAILED EVALUATION OF BIDS

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The technical evaluation for selection of the short list shall be based on the requirements and evaluation criteria prescribed in the bidding dossiers and the detailed evaluation criteria already approved according to the contents stated at Point c, Clause 3, Section I, Chapter II, Part Three of this Circular.

Those bids scoring the minimum number of points or more shall be selected into the short list for further evaluation in Step 2.

2. Step 2: Financial and commercial evaluation for determination of evaluation prices:

Based on the bid prices offered by bidders, the bid solicitor shall proceed with the determination of evaluation prices of bids on the short list according to the following contents and order:

a) Error correction:

The error correction shall be carried out like that for goods procurement.

b) Adjustment of disparities:

It shall comply with that for goods procurement.

c) Conversion of bid prices into one common currency:

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d) Bringing things to the same floor for determination of evaluation prices:

The bringing of things to the same floor for evaluation price determination shall comply with the criteria stated at Point c, Clause 3, Section I, Chapter II, Part Three of this Circular.

Section III. CLASSIFICATION OF BIDDERS ACCORDING TO EVALUATION PRICES

Bidders on the short list with the lowest evaluation prices shall be ranked first and recommended for bid winning.

Chapter IV

EVALUATION OF BIDS FOR SMALL-SIZED BIDDING PACKAGES

The evaluation of bids for small-sized bidding packages is stipulated at Point c, Clause 2, Article 45 and Clause 4, Article 45 of the Bidding Regulation, including the following contents:

Section I. EVALUATION PRINCIPLES

1. The evaluation must be simple, quick, accurate and fair.

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3. Determining prices for comparison of bids on the short list, which meet the technical requirements to make classification and select the bid winner.

Section II. PRELIMINARY EVALUATION OF BIDS

1. Checking the bids’ compatibility with the bidding dossiers’ legal and administrative requirements so as to determine bidders with valid bids. Bidders may be requested to clarify bids according to general regulations.

2. Eliminating bids which are invalid and/or fail to satisfy the capability and experience requirements stated in the bidding dossiers.

Section III. DETAILED TECHNICAL EVALUATION TO MAKE THE SHORT LIST

1. For goods procurement

a) The extent of meeting the requirements on technology, quality, quantity and technical properties of goods;

b) Implementation time.

2. For construction and installation

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b) The implementation time.

Section IV. DETERMINATION OF PRICE FOR BID COMPARISON

The price for comparison of bids shall be determined on the basis of bid prices offered by bidders after error correction and disparity adjustment. The error correction and disparity adjustment shall be carried out like for bidding packages on goods procurement as well as construction and installation mentioned at Points a and b, Clause 2, Section II, Chapter II, and at Points a and b, Clause 2, Section II, Chapter III, Part Four of this Circular. Those bidders who have the lowest bid prices after the error correction and disparity adjustment shall be ranked first and recommended for bid winning.

Section V. TIME LIMIT FOR BID EVALUATION

The time limit for evaluation of a bid for a small-sized bidding package shall not exceed 10 days.

Section VI. EXAMPLE ON EVALUATION OF BIDS FOR SMALL-SIZED BIDDING PACKAGES

See example 3, Appendix IV.

Part Five

SUBMITTING FOR APPROVAL, EVALUATING, APPROVING AND ANNOUNCING BIDDING RESULTS, FINALIZATION AND SIGNING OF CONTRACTS

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SUBMITTING FOR APPROVAL, EVALUATING AND APPROVING THE BIDDING RESULTS

Section I. SUBMITTING FOR APPROVAL THE BIDDING RESULTS

1. Responsibility to submit the bidding results for approval

The investors or project owners shall have to submit the bidding results to competent persons or competent levels for consideration and approval. For bidding packages of Group A and the equivalent which fall under the Prime Minister’s approving responsibility, the submission of bidding results to the Prime Minister shall be made by ministers, heads of the ministerial-level agencies or agencies attached to the Government, the Management Boards of State corporations set up by the Prime Minister and the presidents of the provincial/municipal People’s Committees according to the Government’s Working Regulations. Where the Management Boards of the State corporations set up by the Prime Minister submit the bidding results to the Prime Minister, the branch- managing ministries (if any) shall have to send their written comments to the Prime Minister, clearly stating matters related to techniques, technologies, the management of branches related to the bidding packages, the specific remarks and proposals on the bidding results submitted by the above-said Management Boards.

2. Bidding result submission dossiers

The dossiers for bidding result submission (for various bidding domains) shall include:

a) The bidding result submission documents:

The bidding result submission documents need to indicate the following details:

- The bidding package contents and legal basis for organization of the bidding;

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- The bid evaluation results;

- The request for approval of bidding results, clearly stating the name of bidder proposed for bid winning (including the names of partnership contractors or subcontractors, if any), the proposed bid-winning price, type of contract and implementation duration. For proposed bid-winning price, such relevant contents as tax, reserve, inflation rate, if any, must also be stated.

b) Materials attached to the submission documents:

The materials attached to bidding result submission documents shall include copies of the following:

- The report on bid evaluation by the experts’ or consultants’ team;

- The investment decision or equivalent legal document, the international agreement on financial support, if any;

- The written approval of the basic contents of the bidding process as prescribed at Points a, b, c, d, e, f and g of Clause 1, Article 51 of the Bidding Regulation;

- The decision on setting up of experts’ or consultants� team.

- The minutes of bid opening, documents related to bid clarification, if any, requested by the bid solicitor and made by the bidder;

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- The draft contract, if any;

- The bidding dossier and bids of bidders;

- The preliminary comments on bidding results of the foreign donors (if any);

- Other relevant materials.

Section II. EVALUATION OF BIDDING RESULTS

1. The evaluation responsibility

The agencies responsible for evaluating the bidding results are defined in Table 1 of Article 53 of the Bidding Regulation. The bidding result-evaluating agencies and individuals must have knowledge about bidding, firmly grasp the Bidding Regulation, must not join the experts’ team assisting in the bidding packages they have to evaluate, ensure the honesty, objectiveness and fairness in evaluation and take responsibility for their evaluation opinions as provided for in Article 52 of the Bidding Regulation.

2. Contents of bidding result evaluation

The contents of bidding result evaluation shall cover the following major issues:

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b) The procedures and time for organizing the bidding: The time for distribution of bidding dossiers, the time for preparing bids, the time for bid opening (according to bid opening minutes), the time for bid evaluation against the prescribed time;

c) Examining the contents of bid evaluation by experts’ team: Documents on point giving, evaluation comments of each expert, the sum-up report of the experts’ team, the evaluation by foreign consultants if any, the compatibility of the evaluation with the bidding dossier’s requirements and the approved evaluation criteria, the extent of accuracy of the evaluation;

d) Examining the unclear contents in the bidding result submission dossiers;

e) Opinion divergence, if any, between the experts’ team, foreign consultants and the bid solicitors, as well as other opinions.

In the course of evaluating the bidding results, attention should be drawn to the fact that the evaluation of the bidding results does not mean the re-evaluation of bids.

3. The contents of written report on evaluation

The written report on evaluation results to be submitted to persons or levels competent to approve the bidding results include the following major details:

a) The outline of the project and bidding package: Outlining the project contents and the bidding package contents, the legal bases for conducting the bidding;

b) Brief description of the bidding process and bid evaluation results proposed by body submitting the results for approval;

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d) Recommendations of the bidding result evaluating agency and solutions to existing problematic cases.

4. The time for evaluation of the bidding results

The time for evaluation of the bidding results prescribed in Clause 2, Article 54 of the Bidding Regulation shall not exceed 30 days for bidding packages falling under the Prime Minister’s approving jurisdiction, 20 days for other bidding packages, after fully receiving the valid dossiers. For small-sized bidding packages, depending on the nature of each bidding package, the evaluation of bidding results shall depend on the requirements of the competent person or level before approving them. The time for evaluation of the results of bidding for a small-sized bidding package shall not exceed 7 days after the full receipt of dossiers.

Section III. APPROVING THE BIDDING RESULTS

The responsibility to approve the bidding results shall rest with the competent persons or the competent levels prescribed in Article 52 and Article 53 of the Bidding Regulation. Except for problematic bidding packages which need to be handled, the time for approval of the bidding results shall not exceed 5 days for small-sized bidding packages and 7 days for other bidding packages after the receipt of report from the evaluation agency. The bidding packages to be approved by the Prime Minister shall comply with the Government’s Working Regulations.

ANNOUNCEMENT OF BIDDING RESULTS, NEGOTIATION ON CONTRACT FINALIZATION

The announcement of bidding results and negotiation on contract finalization prescribed in Clause 3 of Article 13, Clause 13 of Article 20, Clause 8 of Article 22, Clause 8 of Article 33 and Clause 7 of Article 47, of the Bidding Regulation shall cover:

Section I. ANNOUNCEMENT OF BIDDING RESULTS

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Immediately after obtaining the decisions of the competent persons or the competent levels, the bid solicitor shall proceed with the announcement of bidding results through written notices on the bidding results, sent to participating bidders, including the bid winners and the bid failers as well. Where there is no bid winner or the bidding is cancelled, the bid solicitor shall also have to notify the bidders thereof.

2. Updating information on bidders’ capabilities

Before signing official contracts, the bid solicitor shall update changes in the bidders’ capabilities as well as other information related to the bidders. If detecting any changes which affect the contract performance capacity such as the declining financial capabilities, bankruptcy danger, the bid solicitor shall have to promptly report such to the competent persons or the competent levels for consideration and decision.

3. Requirements on announcement of bid winning

The bid solicitor must send written notices on bid winning to the bid winners together with the draft contracts and noticeable points to be discussed in negotiation on contract finalization. At the same time, the bid solicitor shall also inform the bidders of the time table, clearly stating the requirement on time for negotiation on contract finalization, the deposit paid as guarantee for the contract performance and the signing of contract.

Section II. NEGOTIATION ON FINALIZATION AND SIGNING OF CONTRACTS

1. Upon receiving the bid winning notice, the bid winner shall have to send to the bid solicitor a letter accepting the negotiation on contract finalization. Within no more than 30 days after the issuance of notice, if the bid solicitor receives neither the letter of acceptance nor the letter of refusal from the bidder, the former shall notify such to the competent person or the competent level for consideration and decision.

2. According to the mutually agreed time-table, the two parties shall proceed with the contract finalization negotiation so as to be able to sign the official contract.

The contract finalization negotiation covers contents aiming to solve existing incomplete matters on the contract by the bid winner, particularly the application of prices to disparities against the requirements of the bidding dossiers on the principle that the contract value shall not exceed the approved bid-winning price. The contract finalization negotiation shall also cover the study of innovations and superior solutions proposed by the bidders.

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3. The bid solicitor shall receive the contract performance guarantee from the bid winner before signing the contract as provided for at Point a, Clause 3, Article 32 of the Bidding Regulation. The conditions for the bidders to prepare the contract performance guarantee shall be the bidding result- approving decisions of the competent persons or competent levels and the bid-winning announcement of the bid solicitor. If the guaranteeing banks request the submission of the signed contracts before issuing the guarantee papers, such must be reported to the competent persons or the competent levels for consideration and decision. For this case, the contract may be signed in advance but the guarantee must be paid before the contract takes effect. Where the bidder has signed the contract and already paid the contract performance guarantee, but failed to perform the contract, the bid solicitor may not refund the contract performance guarantee to the bidder.

4. The bid solicitor shall return the bid guarantee, if any, only when receiving the contract performance guarantee from the bid winner. For bidders who have failed at biddings and not breached the Bidding Regulation, even when there is not bidding result, the bid solicitor shall return the bid guarantee to such bidders within no more than 30 days after the announcement of the bidding results.

Part Six

APPROVAL OF BIDDING PLANS AND BIDDING RESULTS FOR JOINT-VENTURE, BUSINESS COOPERATION CONTRACT OR SHARE-HOLDING PROJECTS

APPROVING RESPONSIBILITY

For joint-venture or business cooperation contract projects prescribed at Point b, Clause 2, Article 2 of the Bidding Regulation, the agencies which grant the investment licenses shall have the responsibility to approve the bidding plans and the bidding results. For projects of share-holding enterprises prescribed at Point b, Clause 2, Article 2 of the Bidding Regulation, the responsibility to approve the bidding plans and the bidding results shall rest with the agencies which decide the contribution of the State’s share capital to the share-holding enterprises.

APPROVAL OF BIDDING PLANS

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The legal basis for elaboration and approval of bidding plans for joint-venture and business cooperation contract projects are the investment license and the feasibility study report enclose therewith; for projects of share-holding enterprises, the legal basis shall be the investment decisions of enterprises

Where the value of the bidding packages included in the bidding plan exceeds the total investment level, the investment decisions or the investment licenses must be supplemented according to the current law provisions before requesting the approval.

Section II. RESPONSIBILITY TO REQUEST THE APPROVAL

The Management Boards (or persons authorized by the Management Boards) of joint-venture enterprises or share-holding enterprises or the lawful representatives of the parties to the business cooperation contract shall have the responsibility to issue documents requesting the approval of the bidding plans of the projects under their respective management.

Section III. DOSSIERS OF REQUESTING THE APPROVAL OF THE BIDDING PLANS

The dossiers of requesting the approval of bidding plan shall include:

1. The written request for the approval

The written requests for the approval of the project bidding plans need to state the legal bases for the elaboration of the bidding plans, the volume of work already performed, the volume of work not opened to bidding and the volume of work to be opened to bidding (the project bidding plans) as required at Point a, Clause 2, Section I, Chapter III, Part Two of this Circular. The project bidding plans need to fully demonstrate the contents mentioned in Chapter II, Part Two and Example 1, Appendix IV to this Circular.

The written request for agreement shall be made in Vietnamese language.

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When sending written requests for the approval of project bidding plans, the copies of the following documents need to be sent in attachment thereto: The investment decision, the investment license, the feasibility study report and other relevant documents, if any.

Section IV. EVALUATION FOR APPROVAL OF BIDDING PLANS

1. Evaluation responsibility

For projects granted with the investment licenses by the Ministry of Planning and Investment, the evaluation of the bidding plans in order to issue the written approval shall fall within the responsibility of the Ministry of Planning and Investment. For the provinces and centrally-run cities, such evaluation shall rest with the provincial/municipal Planning and Investment Services.

2. Contents of bidding plan evaluation

The bidding plan evaluation shall cover tasks mentioned in Clause 2, Section II, Chapter III, Part Two of this Circular.

3. The time for evaluation and approval of a bidding plan

The time for evaluation and approval of a bidding plan shall not exceed 20 days from the time the complete dossiers are received till the time the written approval of the bidding plan is issued.

IMPLEMENTATION ORGANIZATION AND EFFECT

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Section I. REQUIREMENTS ON THE BIDDING RESULT APPROVAL

The bidding result approval shall be effected for bidding packages with bidding plans already approved. Joint-venture enterprises, parties to business cooperation contracts or share-holding enterprises need to organize biddings after having the bidding plans approved and strictly adhere to the contents of the approved bidding plans such as the bidding package prices, the form of selecting bidders, bidding mode, types of contract. A number of basic contents of the bidding process such as the establishment of experts’ or consultants’ teams to assist the bidding, the list of bidders participating in restricted bidding, the bidding dossiers, the evaluation criteria, approval of the contract contents and other contents shall fall under the deciding jurisdiction of the Management Boards (or persons authorized by the Management Boards) of joint- venture enterprises, share-holding enterprises or lawful representatives of parties to the business cooperation contracts.

Section II. RESPONSIBILITY TO PROPOSE THE APPROVAL OF BIDDING RESULTS

The Management Boards (or persons authorized by the Management Boards) of joint-venture enterprises, share-holding enterprises or lawful representatives of parties to the business cooperation contracts have the responsibility to issue written documents proposing the approval of the bidding results of the bidding packages of the projects under their respective management.

Section III. DOSSIERS PROPOSING THE APPROVAL OF BIDDING RESULTS

The dossiers proposing the approval of bidding results shall include:

1. The written request for approval of the bidding results

The written request for approval of the bidding results should state the legal bases for the organization of the bidding, the contents of the bidding package, the process of organizing the bidding, the result of bid evaluation, the proposal on bidding results. The name of the bidder proposed for bid winning (including the names of partnership bidders and subcontractors if any), the proposed bid-winning price, the type of contract and the performance duration shall also be clearly stated therein. For the proposed bid-winning price, such relevant contents as tax, reserve, inflation, if any, should be touched upon.

The written request for the approval of bidding results shall be made in Vietnamese language.

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Materials to be attached to the written request for bidding result approval shall include the copies of the following materials:

a) The bid evaluation report of the experts’ or consultants’ team;

b) The documents approving the basic contents of the bidding results as prescribed at Points b, c, d, e, f and g of Clause 1, Article 51 of the Bidding Regulation;

c) The decision on establishment of the experts’ or consultants’ team;

d) The minutes of bid opening, documents related to the bid clarification, if any, requested by the bid solicitor and made by the bidder;

e) The minutes of the contract negotiation for consultancy selection bidding;

f) The draft contract, if any;

d) The bidding dossiers and bid of the bidder proposed for bid winning;

h) Other relevant documents.

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1. Evaluation responsibility

The agencies that issue documents to approve the bidding results shall conduct the evaluation if deeming it necessary. For the bidding plans to be approved by the Ministry of Planning and Investment, the evaluation for issuance of the written approval of the bidding results shall fall within the responsibility of the Ministry of Planning and Investment. The presidents of the People’s Committees of the provinces and centrally-run cities shall approve the bidding results on the basis of the evaluation by the provincial/municipal Planning and Investment Services.

2. Contents of bidding result evaluation

The bidding result evaluation shall cover tasks specified in Clause 2, Section II, Chapter I, Part Five of this Circular.

3. The time for evaluation and approval of bidding results

The time for evaluation and approval of the bidding results counted from the date of full receipt of the dossiers to the date of issuing the written approval of the bidding results shall not exceed 20 days.

Part Seven

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Section I. EXISTING MATTERS TO BE SETTLED AFTER THE PROMULGATION OF THE BIDDING REGULATION

1. For the bidding packages with bidding dossiers already distributed, Decrees No.43/CP and No.93/CP shall apply.

2. For the bidding packages with bidding results already submitted, the evaluation and approval of the bidding results shall be carried out according to the responsibility division provided for in Decrees No.43/CP and No.93/CP.

3. For the bidding packages with bidding dossiers not yet distributed, the bidding shall be organized according to Decree No.88/1999/ND-CP of September 1st, 1999 and Decree No.14/2000/ND-CP of May 5, 2000 of the Government.

4. For ODA projects with the international agreements on financial support being signed before the issuance of the Bidding Regulation, the signed agreements shall continue to apply.

Section II. REPORT ON THE SITUATION OF IMPLEMENTATION OF THE BIDDING WORK

1. Biannually and annually, the investors or project owners shall make and send sum-up reports to their immediate superior State management bodies.

2. Annually, the ministries, the ministerial-level agencies, the agencies attached to the Government, the State corporations set up by the Prime Minister and the People’s Committees of the provinces and centrally-run cities shall have to make and send sum-up reports to the Ministry of Planning and Investment before December 31st for further sum-up and submission to the Prime Minister.

Section III. INSPECTION OF THE IMPLEMENTATION OF BIDDING WORK

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1. Regular and irregular inspection

a) The regular and irregular inspection of biddings shall be conducted as follows:

- The ministries, the ministerial-level agencies, the agencies attached to the Government, the State corporations set up by the Prime Minister shall inspect the biddings organized by their attached units.

- The provinces and centrally-run cities shall inspect the biddings organized by districts, provincial towns and equivalent administrative units under their management.

- The Ministry of Planning and Investment shall assume the prime responsibility to inspect, together with the concerned ministries, branches and localities, the biddings organized by ministries, ministerial-level agencies, agencies attached to the Government, State corporations set up by the Prime Minister and localities.

b) The contents of regular and irregular inspection shall focus on matters related to bidding packages already performed, including:

- The legal procedures;

- The implementation order;

- The bidding results;

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2. Inspection upon problems and/or complaints

The inspection of matters hit with problems and/or complaints about biddings of organizations or individuals shall be carried out at the request of the competent persons. The agencies having the responsibility to inspect problems and/or complaints about biddings shall be the agencies which evaluate the bidding results as defined in Table 1 of Article 53 of the Bidding Regulation.