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OFFICE OF THE
NATIONAL ASSEMBLY
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THE SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No. 17/VBHN-VPQH
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Hanoi, July 15,
2020
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LAW
ON PROCUREMENT
The Law on Public Procurement No. 43/2013/QH13 dated
November 26, 2013 of the National Assembly, coming into force as of July 1,
2014, amended by:
1. The Law No. 03/2016/QH14 dated November 22, 2016
of the National Assembly on amendment to Article 6 and Annex 4 on the list of
conditional business lines stipulated in the Law on Investment, coming into
force as of January 1, 2017;
2. The Law on Assistance for Small and Medium-Sized
Enterprises No. 04/2017/QH14 dated June 12, 2017 of the National Assembly,
coming into force as of January 1, 2018;
3. The Law on Architecture No. 40/2019/QH14 dated
June 13, 2019 of the National Assembly, coming into force as of July 1, 2020;
4. The Law on Public - Private Partnership
Investment No. 64/2020/QH14 dated June 18, 2020 of the National Assembly,
coming into force as of January 1, 2021.
Pursuant to the Constitute of the Socialist
Republic of Vietnam;
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Chapter I
GENERAL PROVISIONS
Article 1. Scope
This Law provides for state management of
procurement; responsibilities of concerned parties and activities of
procurement, including:
1. Selection of provider of consulting services,
non-consulting services, goods, works for:
a) Projects on development investment financed by
state of regulatory agencies, political organizations, socio-political
organizations, professional-socio-political organizations, socio-professional
organizations, social organizations, units of People’s armed forces, and public
non-business units;
b) Projects on development investment of state-owned
enterprises;
c) Projects on development investment other than
cases defined at point a and point b of this Clause which are financed by
state, state-owned enterprises with level equal to 30% or more or less than 30%
but more than 500 billion VND in total investment of project.
d) Procurement financed by state aiming to maintain
regular activities of regulatory agencies, political organizations,
socio-political organizations, socio-political-occupational organizations,
social organizations, socio-occupational organizations and units of the
People’s armed forces, and public non-business units;
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e) Purchase of national reserve goods financed by
state;
g) Purchase of drugs, medical supplies financed
state; medical insurance fund, revenues from services of medical examination
and treatment and other lawful revenues of public health facilities;
2. Selection of providers of consulting services,
non-consulting services, goods on Vietnam’s territory for implementation of
overseas direct-investment projects of Vietnamese enterprises which are
financed by state with level equal to 30% or more or less than 30% but more
than 500 billion VND in total investment of project;
3. [2] Selection of the investor in
implementation of investment projects in which land is used;
4. Selection of bidders in petroleum field, except
for selection of bidders to supply petroleum services related directly to
activities of search, exploration and development of mines and petroleum
exploitation as prescribed by law on petroleum.
Article 2. Regulated entities
1. Organizations and individuals that participate
in or related to activities of procurement defined in Article 1 of this Law.
2. Organizations and individuals that have
activities of procurement not within the governing scope of this Law may choose
to apply this Law. In case of choosing to apply, organizations and
individuals must observe the concerned provisions of this law and ensure
fairness, transparency and economic efficiency.
Article 3. Application of Law
on procurement, International treaties and international agreements
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2. [3] In case where it is necessary to
select contractors to provide input materials, fuels, substances, supplies,
consulting services or non-consulting services to ensure the continuity of
production, sale and procurement activities to maintain the regular operation
of state enterprises, enterprises must adopt regulations on contractor
selection to be uniformly applied internally on the basis of ensuring fairness,
transparency and economic efficiency.
3. For selection of bidders/investors for projects financed
by official development assistance (ODA) capital, concessional loans arising
from International treaties, international agreements between Vietnam and
donors, international treaties, international agreements shall be applied.
4. If International treaties to which the Socialist
Republic of Vietnam is a contracting party have provisions on selection of
bidders and investors different from this Law, such International treaties
shall prevail.
Article 4. Interpretation of
terms
For the purpose of this Law, the following terms
are construed as follows:
1. Bid Security means the bidder or investor
provides security by one of the security methods of paying a deposit, escrow or
providing a letter of guarantee of credit institutions or foreign banks’
branches which are established under Vietnamese law in order to secure the
liability in the bid participation of bidder or investor for a definite term as
stipulated in the Bid Documents, Request for Proposals.
2. Performance Security means the bidder or
investor provides security by one of the security methods of paying a deposit,
escrow or providing a letter of guarantee of credit institutions or foreign
banks’ branches which are established under Vietnamese law in order to secure
the liability of the Contract performance by bidder or investor.
3. Procuring Entity means a professional
agency or organization with sufficient capability to perform bidding
activities, including:
a) Investor or organization which is decided for
establishment or selected by the investor;
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c) The centralized procurement unit;
d) Competent regulatory agencies or the affiliated
organizations which are selected by the competent regulatory agencies.
4. Investor means the entity owning the
financing capital or the entity assigned responsibility to represent such
owner, or the borrower directly managing and implementing project.
5. Digital certificate means electronic
certificate granted by providers of digital signature certificate service in
order to perform online bidding on National E-procurement System.
6. Competent regulatory agencies mean
agencies signing contracts with investors.
7. Short list means list of
bidders/investors winning prequalification for competitive bidding with
prequalification; list of bidders invited for bid participation for limited
bidding; list of bidders with EOI responses meeting requirements of EOI
requests.
8. Consulting service means one or a number
of activities including: preparation, assessment of the planning report,
collective development diagram, architecture; survey and making of
pre-feasibility study report, feasibility study report, environmental impact
assessment report; survey and making of engineering, estimate; preparation of
EOI requests, Prequalification Document, Bids, Requests for Proposals;
assessment of EOI responses, Prequalification Application, Bidding Documents,
Proposals; verification, appraisal; supervision; management of project;
arranging finance; audit, training, transfer of technologies; other consulting
services.
9. Non-consulting service means one or a
number of activities including: logistics, insurance, advertisement,
installation not belong to Clause 45 of this Article, pre-acceptance test and
operation run, holding of training, maintenance, drawing maps and other
activities not being consulting services defined at clause 8 of this Article.
10. [4] PPP project enterprise refers
to an enterprise established by an investor to serve the purpose of executing
PPP projects where land is used.
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12. [5] Procurement refers
to the process of selecting a contractor to enter into and execute a contract
for the provision of consulting services, non-consulting services, procurement
of goods or construction; selecting investors to sign and execute investment
contracts for execution of projects where land is used on the basis of ensuring
competition, fairness, transparency and economic efficiency.
13. Online procurement means bidding which
is performed via use of National E-procurement System.
14. International bidding means bidding in
which both foreign and domestic bidders and investors may participate.
15. Domestic bidding means bidding in which
only domestic bidders and investors may participate.
16. Package price means the value of a
package approved in the plan on selecting bidders.
17. Bid price means the price stated by a
bidder in application for bid participation, quotation, including all costs for
performance of package as required by Bids, Request for Proposals.
18. Evaluated bid price means a bid price
after the error correction and adjustment of deviation as required in Bids,
less the value of discount (if any), plus elements to convert on a same ground
for whole use life cycle of goods and works. Evaluated bid price is used
to rank Bidding Documents for packages of procurement of goods, works and the
mixed packages applying form of competitive bidding or limited bidding.
19. Proposed successful bid means bid price
of the bidder who are proposed to win bid after the errors have been rectified
and discrepancies have been adjusted as required by the Bids, Requests for Proposals,
minus the value of discount (if any).
20. Successful bid means the price approved
in the results of selection of bidder.
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22. Package means a part of, or entire
project, estimate of procurement; a package may comprise items for the
procurement of similar goods for a number of projects or a one-off procurement,
procurement for a period in recurrent procurement, centralized procurement of
goods.
23. Mixed package means a package comprising
of engineering and goods provision (EP); engineering, works (EC); goods
provision and works (PC); engineering, goods provision, works (EPC); making
project, engineering, goods provision, works (turnkey).
24. Package with small scale means a package
with price in limitation prescribed by the Government.
25. Goods include machinery, equipment, raw
materials, fuel, materials, supplies, accessories; consumables; drugs, medical
supplies used for medical establishment.
26. National E-procurement System means an
information technology system which is set up and managed by the state
management agency of bidding activities with the aim to perform unified
management of information on bidding and online bidding.
27. EOI requests, Prequalification Documents mean
all documents including requirements on qualifications of bidders/investors as
the basis for the Procuring Entity to select list of bidders/investors winning
prequalification, list of bidders with EOI responses meeting requirements of
EOI requests.
28. EOI responses, Applications mean all
documents which are made by bidders/investors and submitted to the Procuring
Entity at the requirements of EOI requests, Prequalification Documents.
29. Bid Documents mean all of the documents
used for open or limited bidding stipulating the requirements for a project,
package and providing the legal basis for bidders/investors to prepare their
Bids and for the Procuring Entity to assess Bids aimed at selection of a
winning bidder/investor.
30. Request for Proposals mean all of the
documents used for Direct Contracting, Direct Procurement, Shopping Method
including the requirements for a project, package and providing the basis for
bidders/investors to prepare their Proposals and for the Procuring Entity to
assess Proposals aimed at selection of a winning bidder/investor.
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32. Contract means a document signed between
the investor and the selected bidder in performance of package under project;
between Procuring Entity and the selected bidder in recurrent procurement;
between the centralized-procurement units or unit with procurement need with
the selected bidder in the centralized procurement; between competent
regulatory body with the selected investor or between the competent regulatory
body and the selected investor and project enterprise in the investor
selection.
33. Protest means a request from any
bidder/investor participating in bidding for reconsideration of the results of
selection of bidder, results of selection of investor and regarding any other
relevant matter during the process or selecting contractor, investor when such
bidder or investor considers his rights and interests have been adversely
affected.
34. Competent person means person who
decides on the approval of project or person who decides on procurement as
prescribed by law. In case of selection of investor, the competent person means
the head of competent regulatory body as prescribed by law.
35. Contractor means a bidder liable for its
participation in bidding which gives its name to a tender, and which directly
signs in and implements a contract if selected. Contractor may be an individual
contractor or JV’s Party.
36. Subcontractor means a contractor
performing part of the work of a package on the basis of a contract signed with
the Contractor. Special Subcontractor means a Subcontractor performing
special works of a package proposed by the Contractor in Bid, Proposal on the
basis of requirements stated in Bid, Request for Proposals.
37. Foreign Contractor means an organization
established under foreign law or an individual of foreign nationality
participating in bid in Vietnam.
38. Domestic Contractor means an
organization established under Vietnamese law or individual of Vietnamese
nationality participating in bid.
39. Public products and services mean the
essential products and services for economic-social life of country, population
communities or assurance of national defense and security which the State must
organize implementation in the fields: health, education - training,
culture, information, communications, science – technology, natural resources -
environment, transport and other fields as prescribed by Government.
Public products and services include the public-interest products and services,
and services for public career.
40. Appraisal in the course of selecting
contractor or investor means check and assessment plan on selecting
bidders/investors, EOI requests, Prequalification Documents, Bidding Documents,
Request for Proposals and results of invitation for expression of interest,
results of prequalification, results of selection of bidder/ investor as the
basis for the authorized person to consider and make a decision on approval in
accordance with this Law.
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42. Validity period of Bids, Proposals means
number of days stipulated in Bid, Request for Proposals and calculated from the
deadline for submission of bids to the end effect day as prescribed in Bidding
Documents, Requests for Proposals. From the deadline for submission of
bids until ending of 24 hours of day of deadline for submission of bids is
calculated as 01 day.
43. Expert group includes individuals with
qualifications set up by the Procuring Entity or the bid consultancy unit in
order to assess EOI responses, Applications, Bids, Proposals and perform other
tasks during selection of bidders/investors.
44. State capital includes state budget
funds; national bonds, Governmental bonds, bonds of local authorities; official
development assistance capital, concessional loans from donors; fund for
development of non-business activities; credit facilities for investment and
development of the State; credit facilities guaranteed by the Government, loans
guaranteed by assets of state; investment and development funds of State-owned
enterprises, and value of land-use right.
45. Works include construction and
installation of works and work items.
Article 5. Eligibility of
bidders/investors
1. A bidder or investor being an organization shall
be deemed to be eligible when it satisfies the following conditions:
a) Having registration for establishment and
operation issued by the competent authority of country where it is operating;
b) Keeping independent accounting records;
c) Not undergoing dissolution process, are not
thrown into bankruptcy, and do not incur bad debts as prescribed by law;
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dd) Ensuring the competitiveness in bidding as
prescribed in Article 6 hereof;
e) Not being banned from bidding;
g) Its name is stated in short list for case where
the short list has been selected;
h) Being in a joint venture with domestic
contractors or employment of domestic subcontractors in case of a foreign
contractor making an international bidding in Vietnam, unless the domestic
contractor cannot acquire the competencies necessary to perform any portion of
the package.
2. A bidder or investor being an individual shall
be deemed to be eligible when it satisfies the following conditions:
a) Having full legal capacity as per the law of the
country of which such individual is a citizen;
b) Having an appropriate professional certificate
as prescribed by law;
c) Having lawful registration for operation as
prescribed by law;
d) Not facing a criminal prosecution;
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3. Bidders and investors with eligibility as
prescribed in Clause 1 and Clause 2 of this Article may make a bid as an
independent bidder/investor or in a joint venture; in case of joint venture, it
must have written agreement among members, in which clearly stating
responsibilities of the leading JV's Party and general responsibilities,
particular responsibilities of each JV’s Party.
Article 6. Ensuring
competitiveness in bidding
1. Bidders submitting EOI responses, Applications
must be independent legally and independent financial with consulting bidders
for making EOI requests, Prequalification Documents; assessment of EOI
responses, Applications; appraisal for results of invitation for interest,
results of prequalification.
2. Bidders making a bid must be legally and
financially independent with the following parties:
a) Investor, Procuring Entity;
b) The consulting bidders for the making,
verification, and appraisal of dossiers of design and estimate; the making,
verification of Bidding Documents, Request for Proposals; assessment of Bids,
Proposals; appraisal of results of selecting bidder of such package;
c) Other bidders that participate in same package
for limited bidding.
3. A consulting bidder who supervises execution of
a contract must be legally and financially independent from the bidder who
performs the contract, the consulting bidder who verifies such package.
4. [6] Investors making a bid must be
legally and financially independent of the parties hereunder:
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b) Competent regulatory authorities, Procuring
Entity.
5. The Government shall elaborate on this Article.
Article 7. Conditions for
issuing the Bidding Documents, Request for Proposals
1. The Bidding Documents, Request for Proposals of
a package may be only issued to select bidders when having full the following
conditions:
a) The approved plan on selection of bidders;
b) The approved Bidding Documents, Request for
Proposals include contents of requirements on procedures for bidding, Bid Data
Sheet; criteria for evaluation, forms of bidding, volume table of bid
invitation; requirements on progress, techniques, quality; general conditions,
particular conditions of contracts, model contracts and other necessary
contents;
c) Invitation to Bid, notice of quotation
invitation or short list must be published as prescribed by this Law; Notice of
Proposed Procurement
d) Capital sources for package are allocated under
the time for performance of package;
dd) Content, list of goods, services and estimates already
been approved by competent person in case of recurrent procurement and
centralized procurement;
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2. Bidding Documents, Request for Proposals of a
project may be only issued to select investors when having full the following
conditions:
a) Project under list of projects announced by
Ministries, Ministerial agencies, Governmental agencies, the People’s
Committees of provinces or central-affiliated cities as prescribed by law or
projects proposed by investors;
b) The approved plan on selection of bidders;
c) The approved Bidding Documents, Request for
Proposals;
d) Invitation to Bid, or short list must be
published as prescribed by this Law.
Article 8. Information of
bidding
1. All information must be published on National
E-procurement System, bidding newspapers including:
a) The plan on selection of bidders/investors;
b) Notice of invitation for expression of interest,
notice of invitation for prequalification;
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d) Short list;
dd) Results of selection of bidders/investors;
e) Results of bid opening for online bidding;
g) Information on handling of violations of law on
procurement;
h) Legal documents on bidding;
i) [7] List of investment projects using
land;
k) The database of bidders/investors, bidding
experts, lecturers of bidding, and establishments of training on bidding;
l) Other relevant information.
2. The information defined at Clause 1 this Article
is encouraged to publish on websites of Ministries, sectors and localities or
on other means of mass media.
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Article 9. Language of bid
Language to be used in bidding shall be Vietnamese
in the case of domestic bidding, and English or Vietnamese and English in the
case of international bidding.
Article 10. Currencies of bid
1. For domestic bidding, bidders are only allowed
to have bid quotation in Vietnam dong.
2. For international bidding:
a) Bidding Documents, Request for Proposals must
state the currency for bidding in Bids, Proposals but not exceeding three
currencies; for a specific work item, only give bid quotation in a currency
kind;
b) In case where Bidding Documents, Request for
Proposals stipulate that bidders may have bid quotation in two or three
currencies when assessing Bids, Proposals, quotation must be converted into a
currency kind; if having Vietnam dong used in such currencies, quotation must
be converted into Vietnam dong. Bidding Documents, Request for Proposals must
stipulate the convertible currency, time and bases to determine the exchange
rate for converting;
c) For domestic costs involving performance of
package, bidders must have a bid quotation in Vietnam dong;
d) For overseas costs involving performance of
package, bidders may have a bid quotation in foreign currency.
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1. Bid Security shall apply in the following cases:
a) Competitive bidding, limited bidding, and
Shopping Method for procurement of non-consulting service provision, goods
procurement, works, and mixed package;
b) Competitive bidding and Direct Contracting for
selection of investor.
2. Bidders and investors must conduct measures for
Bid Security before deadline for submission of bids for Bids, Proposals; case
of applying method of two-stage bidding, bidders must provide a Bid Security
during stage two.
3. Value of Bid Security is stipulated as follows:
a) For selection of bidder, value of Bid Security
is stipulated in Bidding Documents, Request for Proposals under a defined
amount of between 1% and 3% of package price basing on the scale and nature of
each particular package;
b) For selection of investor, value of Bid Security
is stipulated in Bidding Documents, Request for Proposals under a defined
amount of between 0.5% and 1.5% of total investment basing on the scale and
nature of each particular project.
4. The validity period of Bid Security is
stipulated in Bid, Request for Proposals equal to the validity period of the
Bids, Proposals plus thirty (30) days.
5. In case of extending the period of validity of
Bids, Proposals after deadline for submission of bids, and the Procuring Entity
must require bidders/investors to extend the period of validity of their Bid Security
for an equivalent term. In such a case, bidders/investors must extend the
period of validity of their Bid Security and not be permitted to change the
contents of their submitted Bids, Proposals. If any bidder or investor
refuses to extend the period of validity, his Bid, Proposal will be no valid
longer and be rejected, the party calling for tenders shall return or release
the biding guarantee to the bidder/investor within 20 days, since the Procuring
Entity receives a written refusal for extension.
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7. The Procuring Entity shall return or release Bid
Security to bidders or investors who are not selected under the duration
specified in Bid, Request for Proposals but not exceeding 20 days, after the
day of approving result of selection of bidder/ investor. For the
selected bidder/investor, his Bid Security will be returned or released after
he provides a Performance Security as prescribed in Article 66 and Article 72
of this Law.
8. A Bid Security shall not be returned in the
following cases:
a) The bidder or investor withdraws Bid, Proposal
after deadline for submission of bids when the Bid, Proposal still remains
valid;
b) The bidder or investor violates law on
procurement which leads to be cancelled bid as prescribed at Clause 4 Article
17 of this Law;
c) The bidder or investor fails to provide a
Performance Security as prescribed at Article 66 and Article 72 of this Law;
d) The bidder fails or refuses to negotiate and
finalize the contract, within a period of twenty (20) days from the date of
receipt of notification of winning bid from the Procuring Entity or has negotiated
and finalized the contract but refuses to sign the contract except for force
majeure cases;
dd) The investor fails or refuses to negotiate and
finalize the contract, within a period of thirty (30) days from the date of
receipt of notification of winning bid from the Procuring Entity or has
negotiated and finalized the contract but refuses to sign the contract except
for force majeure cases.
Article 12. Time limits
applicable during selection of bidders/investors
1. Time limits applicable during selection of
bidders:
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b) EOI requests, Prequalification Documents,
Bidding Documents, Request for Proposals shall be issued after 03 working days
from the first day of publishing notice of invitation for submission of EOI
responses, notice of prequalification invitation, Invitation to Bid, Notice of
Proposed Procurement, sending of Invitation to Bid before deadline for
submission of bids;
c) Duration for preparing EOI responses shall be at
least 10 days for domestic bidding and 20 days for international bidding, from
the first day when EOI requests are issued until deadline for submission of
bids; Bidders must submit EOI responses before deadline for submission of
bids;
d) Duration for preparing Applications shall be at
least 10 days for domestic bidding and 20 days for international bidding, from
the first day when Prequalification Documents are issued until deadline for
submission of bids. Bidders must submit Applications before deadline for
submission of bids;
dd) Duration for preparing Proposals shall be at
least 05 working days, from the first day when Requests for Proposals are
issued until deadline for submission of bids. Bidders must submit
Proposals before deadline for submission of bids;
e) Duration for preparing the Bids shall be at
least 20 days for domestic bidding and 40 days for international bidding, from
the first day when Bidding Documents are issued until deadline for submission
of bids. Bidders must submit the Bids before deadline for submission of
bids;
g) The maximum time allowed for assessment of EOI
responses, Applications shall be 20 days, for Proposals shall be 30 days, for
Bids shall be 45 days in the case of domestic bidding, as from the deadline for
submission of bids until the date the Procuring Entity submits to investor for
approving the results of contractor selection. The maximum time allowed
for assessment of EOI responses, Applications shall be 30 days, for Proposals
shall be 40 days, for Bids shall be 60 days in the case of international
bidding, as from the deadline for submission of bids until the date the
Procuring Entity submits to investor for approving the results of contractor
selection. In necessary case, time for assessment of dossiers of Bid,
Proposal may be prolonged but not exceed 20 days and must ensure time for
performance of project;
h) The maximum time for appraisal shall be 20 days for
each content of appraisal: plan on selection of bidder, EOI requests,
Prequalification Documents, Bidding Documents, Request for Proposals, result of
selection of bidder after receiving full the submitted documents;
i) The maximum time for approving EOI requests,
Prequalification Documents, Request for Proposals, Bidding Documents shall be
10 days, as from the date of receiving the written request for approving EOI
requests, Prequalification Documents, Request for Proposals, Bidding Documents
of the Procuring Entity or the appraisal report in case of having appraisal
requirement;
k) The maximum time for approving or giving the
handling opinion on result of bidder selection shall be 10 days, as from the
date of receiving the written request for approving the result of bidder
selection of the Procuring Entity or the appraisal report in case of having
appraisal requirement;
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m) Time for sending a document to modify a Bid to
bidders already received Bid shall be 10 days minimally for domestic bidding
and 15 days minimally for international bidding before day of deadline for
submission of bids; for modification of dossier of invitation for expression of
interest, Prequalification Document, Request for Proposals, it shall be 03
working days minimally before day of deadline for submission of bids If time
for sending a document to modify dossiers fail to meet provision at this point,
the Procuring Entity shall perform extension of deadline for submission of bids
time respectively in order to ensure provision on time for sending a document
to modify a dossier of invitation for expression of interest, dossier of
prequalification invitation, Bid or Request for Proposals;
n) Time-limit for sending notice of contractor
selection result to bidders bidding via post, facsimile shall be 05 working
days, as from the date of approving the result of bidder selection.
2. The Government shall elaborate time limits
applicable during selection of bidder for packages with small scale, packages
with participation of community; Time limits applicable during selection of
investor; Time limits applicable during selection of bidder or investor via
network.
Article 13. Expenses
associated with bidding
1. Expenses associated with the process of
selection of bidder include:
a) Expenses associated with preparation of EOI
responses, Applications, Bids, Proposals and participation in bidding shall be
borne by bidders;
b) Expenses associated with process of bidder
selection shall be included in total investment or estimated budget of
procurement;
c) EOI requests, Prequalification Documents shall
be issued to bidders free of charge;
d) Bidding Documents, Requests for Proposals shall
be sold or issued free of charge to bidders.
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a) Expenses associated with preparation of
Applications, Bids, Proposals and participation in bidding shall be borne by
investors;
b) Expenses associated with process of investor
selection shall be financed by state, other lawful capital sources and included
in total investment;
c) The investor who is selected to perform project
must pay expenses associated with process of investor selection;
d) Prequalification Documents, Bidding Documents,
Requests for Proposals shall be sold to investors.
3. Expenses associated with the process of online
bidding include:
a) Expenses associated with participation in
National E-procurement System, expenses associated with publishing information
of bidding and other expenses;
b) Expenses associated with submission of a bid,
organization of bid as prescribed at Clause 1 and Clause 2 of this Article.
4. The Government shall elaborate on this Article.
Article 14. Preferential
treatment in selection of bidders
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2. Entities entitled to preferential treatment in
international bidding to supply the consulting services, non-consulting
services, construction include:
a) Domestic bidders with individual status or in a
joint venture;
b) Foreign bidders in joint venture with domestic
bidders in which the domestic bidders take over from 25% or more of work value
of package.
3. Entities entitled to preferential treatment in
domestic bidding to supply the consulting services, non-consulting services,
construction include:
a) Bidders employing female laborers of 25 % or
more of laborer quantity;
b) Bidders employing laborers being invalids,
disable people of 25 % or more of laborer quantity;
c) [8] Bidders being micro-enterprises and
small enterprises.
4. Preferential treatment is calculated to apply
during assessing the Bids, Proposals in order to compare, rank the Bids,
Proposals according to one of the following methods:
a) Plus more points into the assessment point of
bidders belonging to entities entitled to preferential treatment;
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5. Entities and content or preferential treatment
in selection of bidder specified in this Article shall not apply in case where
International treaties in which the Socialist Republic of Vietnam is a
contracting party or international agreements between Vietnam and donors
otherwise provides for preferential treatment in selection of bidder.
6. The Government shall elaborate on this Article.
Article 15. International
bidding
1. International bidding shall be held to select
bidder only when it meets one of the following conditions:
a) The donor of package requests for holding
international bidding;
b) Packages for procurement of goods where the
goods are not yet able to be manufactured domestically or able to be
manufactured but fail to meet technical, quality or price requirements.
Cases of common goods, already been imported and offered for sale in
Vietnam, do not organize international bidding;
c) Packages of providing consulting service,
non-consulting service, works, mixture provision which domestic bidders are not
able to satisfy requirements of package performance.
2. [9] Investment projects using land,
except for cases where investment is restricted in accordance with the
investment law.
3. The Government shall elaborate on this Article.
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1. Individuals participating in bidding activities
must possess certificate of training on bidding and have professional
expertise, capability, experiences, language appropriate to the requirements of
the package, project, except for individuals belonging to bidders/investors.
2. Individuals who directly participate in making
EOI requests, Prequalification Documents, Bidding Documents, Requests for
Proposals; assessment of EOI responses, Applications, Bids, Proposals of
professional bidding organizations, enterprises, units operating in consulting
for bidding, professional management board of projects must have certificate of
practicing on bidding operation.
Article 17. Cases of bidding
cancellation
1. All Bids, Proposals failed to satisfy the
requirements of the Bid Documents, Request for Proposals.
2. Alteration of the objectives or scope of the
investment stated in the Bid Documents, Request for Proposals.
3. The Bid Documents, Request for Proposals failed
to comply with legislation on bidding or other relevant legislation that lead
to the failure of the selected bidder or investor to meet requirements to
perform package, project.
4. There is evidence showing the handing, taking,
brokerage of bribes, conclusion with each other in bidding, fraud, taking
advantage of positions, powers aiming to interfere illegally in bidding
activities that lead to the falsified result of selecting the bidder/investor.
Article 18. Responsibilities
upon bidding cancellation
Organizations and individuals infringing law on
procurement that lead to bidding cancellation as prescribed in Clause 3 and
Clause 4 Article 17 of this Law must compensate expenses associated with
related parties and be handled as prescribed by law.
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1. [10] (annulled)
2. Facilities of bidding training have the
following responsibilities:
a) Ensure quality of training and capacity
building; supply information on their training facilities to the regulatory bodies
on bidding operation;
b) Perform activities of training and capacity
building on the basis of framework programs on training in bidding and grant
the certificates of bidding for learners in accordance with regulations;
c) Store all dossiers of courses of training and
capacity building in bidding which are held by them in accordance with
regulations;
d) Conduct annual reports and reports at the
request of regulatory bodies of bidding operation about situation of training and
capacity building in bidding.
3. The Government shall elaborate on this Article.
Chapter II
FORMS AND METHODS OF
SELECTION OF BIDDERS/INVESTORS AND PROFESSIONAL BIDDING ORGANIZATIONS
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Article 20. Competitive
bidding
1. Competitive bidding is form of selection of
bidders/investors in which the number of participating tenders, investors shall
be unrestricted.
2. Competitive bidding is applied to packages,
projects under Scope of regulation of this Law, except for cases specified in
Articles 21, 22, 23, 24, 25, 26 and 27 of this Law.
Article 21. Limited bidding
Limited bidding shall apply in case where a package
has highly technical requirements or technical peculiarities for which only a
limited number of bidders are capable of satisfying the requirements of the
package.
Article 22. Direct Contracting
1. Direct Contracting for contractor shall apply in
the following cases:
a) Packages need to be performed to immediately
overcome or timely handle consequences caused by force majeure event; packages
need to be performed to ensure national secret; packages need to be carried out
immediately to not cause damages directly to life, health and assets of
population communities on geographical areas or to not severely affect to
adjacent projects; procurement of purchasing drugs, chemicals, supplies, and
health equipment in order to carry out the work of prevention and fighting of
epidemics in urgent cases;
b) Urgent packages need to be carried out aiming to
protect national sovereignty, national borders, and islands;
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d) Packages provide consulting service for making
feasible study reports, construction designs which have been appointed for
authors of designs of works architectures who won in selection or are selected
when authors have full conditions and capability in accordance with
regulations; packages of construction of statues, reliefs, monumental
paintings, art works in association with author right from the creation stage
to stage of construction of the works;
dd) Packages of relocation of technical
infrastructure works managed directly by a specialized unit in order to serve
the work of ground clearance; packages of detection and disposal of bombs,
mines, explosives in order to prepare construction of works;
e) Packages of providing public products and
services, packages with package price in the limitation allowed to apply Direct
Contracting as prescribed by Government in line with economic-social conditions
in each period.
2. Implementation of Direct Contracting for
packages defined at points b, c, d, dd and e Clause 1 this Article must satisfy
all the following conditions:
a) Having an approved decision on investment,
except for consulting packages for project preparation;
b) Having an approved plan on selection of bidders;
c) Having been allocated capital at the request of
the time for performance of procurement;
d) Having an approved estimate in accordance with
regulation, except for case of EP, EC, EPC packages, turnkey packages;
dd) Having time for implementation of Direct
Contracting as from the day of approving Request for Proposals to day of
signing contract not exceeding 45 days, case of packages with big scale, complex
content not exceeding 90 days;
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3. For packages under cases of Direct Contracting
specified at Clause 1 this Article and satisfy conditions for Direct
Contracting specified at Clause 2 this Article but still able to apply other
forms of selection of bidder defined at Articles 20, 21, 23 and 24 of this Law,
encouraging to apply other forms of selection of bidder.
4. Direct Contracting for investor shall apply in
the following cases:
a) There is only one investor registering bidding;
b) There is only one investor able to perform due
to concerning intellectual property, commercial secret, technologies or capital
arrangement;
c) Investor proposing project satisfy requirements
of implementation project with feasibility and highest efficiency in accordance
with regulations of Government.
Article 23. Shopping Method
1. Shopping Method shall apply to packages with
value in limitation as prescribed by Government and belonging to one of the
following cases:
a) Package of procurement of non-consulting
services which are commonly used and simple;
b) Package of procurement of goods which are
commonly used goods, readily available on the market, have standardized
technical features and are similar to each other in quality;
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2. Shopping Method is performed when satisfying all
following conditions:
a) Having an approved plan on selection of bidders;
b) Having an approved estimate in accordance with
regulation;
c) Having been allocated capital at the request of
the time for performance of package.
Article 24. Direct Procurement
1. Direct Procurement shall apply to packages of
procurement of similar goods of a same project, estimated budget of procurement
or of other project, estimate of procurement.
2. Direct Procurement shall be performed when
satisfying all following conditions:
a) The contractor has won bidding through open or
limited bidding and has signed performance contract of previous package;
b) The package has similar content, nature, and
scale less than 130% of package signed contract previously;
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d) Time-limit from signing contract of previous
package to day of approving result of Direct Procurement does not exceed 12
months.
3. If contractor performed the previous contract is
not able to continue performance of package of Direct Procurement, form of
Direct Procurement shall be applied to other contractor if such contractor
satisfies requirements on capability, experiences, techniques and price
according to the previous Bid and result of selection of bidder.
Article 25. Force Account
Force Account shall apply to packages of projects
and estimates of procurement in case organizations directly managing and using
such packages have technical and financial capability, and experiences
satisfying requirements of packages.
Article 26. Selection of
bidders/investors in special cases
In the case of a package, project with particular
requirements for which the forms of selection of bidder/ investor stipulated in
articles 20, 21, 22, 23, 24 and 25 of this Law cannot be applied, the competent
person shall prepare a plan for selection of bidder/ investor and submit it to
the Prime Minister for consideration and decision.
Article 27. Community’s
participation in performance
Population communities, organizations, teams,
groups of workers in localities which have packages may be assigned to perform
entire or part of such procurement in the following cases:
1. Packages under the national objective programs,
support programs of hunger elimination, poverty reduction for districts,
communes in mountainous, deep-lying and remote areas, islands, areas with
special difficulty-stricken economic-social conditions;
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Section 2. METHODS OF SELECTION
OF BIDDERS/INVESTORS
Article 28. The single-stage
one-envelope bidding procedure
1. The single-stage one-envelope bidding procedure
shall apply in the following cases:
a) Competitive bidding, limited bidding for
procurement of non-consulting service provision; procurement of procurement of
goods, works, mixed packages with small scale;
b) Shopping Method for procurement of
non-consulting service provision, goods procurement, works;
c) Direct Contracting for procurement of the
consulting service provision, non-consulting service provision, goods
procurement, construction, mixed packages;
d) Direct Procurement for procurement of goods
procurement;
dd) Direct Contracting for selection of investor.
2. Bidders/investors may submit Bids, Proposals
including Technical Proposal and Financial Proposal at the request of Bidding
Documents, Requests for Proposals.
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Article 29. The single-stage
two-envelope bidding procedure
1. The single-stage two-envelope bidding procedure
shall apply in the following cases:
a) Competitive bidding, limited bidding for
procurement of consulting services, non-consulting services, goods procurement,
works, mixed packages;
b) Competitive bidding for selection of investor.
2. Bidder or investor may submit concurrently both
envelopes of Technical Proposal and Financial Proposal in a separate form at
the request of Bid.
3. Bid opening shall be conducted twice.
Technical Proposal shall be opened as soon as deadline for submission of
bids. Bidders or investors satisfying the technical requirements shall
have the envelope of financial proposals opened for assessment.
Article 30. The two-stage
one-envelope bidding procedure
1. The two-stage one-envelope bidding procedure
shall apply in cases of competitive bidding, limited bidding for package of
procurement of goods, works, mixed packages with big scale and complex nature.
2. In the first stage, bidders may submit Technical
Proposal and Financial Proposal at the request of Bidding Documents but not yet
had Bid Price. On the basis of exchange with each contractor
participating in this stage, the envelope shall be determined for bid
invitation in second stage.
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Article 31. The two-stage
two-envelope bidding procedure
1. The two-stage two-envelope bidding procedure
shall apply in cases of competitive bidding, limited bidding for procurement of
goods, works, mixed packages with new, complex and particular techniques and
technologies;
2. In first stage, bidders shall submit
concurrently both envelopes of Technical Proposal and Financial Proposal in a
separate form at the request of Bid. Technical Proposal shall be opened
as soon as deadline for submission of bids. On the basis of assessment on
technical proposals of bidders in this stage, to determine contents corrected
in techniques in comparison with Bid and list of bidders satisfying
requirements and being invited for bidding in second stage. Financial
Proposal shall be opened in second stage.
3. In second stage, bidders satisfying requirements
in first stage shall be invited for submission of Bids. Bids include
Technical Proposal and Financial Proposal at the request of Bid for second
stage corresponding to content corrected in techniques. In this stage,
the envelope of Financial Proposal submitted in first stage shall be opened
concurrently with Bids in second stage for assessment.
Section 3. PROFESSIONAL BIDDING
ORGANIZATION
Article 32. Professional
bidding organization
1. Professional bidding organization includes
bidding agents, non-business units which are established with function of
performing professional bidding.
2. The establishment and operation of bidding
agents shall comply with legislations on enterprises.
3. The Government shall elaborate on this Article.
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THE PLAN AND PROCESS OF
BIDDER SELECTION
Article 33. Principles of
making the plan on bidder selection
1. The plan on bidder selection shall be formulated
for the entire project, estimate of procurement. In case where there are
inadequate conditions to formulate a plan on bidder selection for the entire
project, estimate of procurement, it shall be permitted to formulate a plan on
bidder selection for one or a number of packages to be performed in advance.
2. A plan on bidder selection must set out clearly
the number of packages and the contents of each procurement.
3. Division of the project, estimate of procurement
into different packages shall be based on the technical nature and the sequence
for its implementation, ensuring unity within the project, estimate of
procurement and an appropriate size of procurement.
Article 34. Formulation of
plan on bidder selection
1. Bases to formulate plan on bidder selection for
project:
a) Decision on approving project or certificate of
investment and relevant documents. For packages which must be performed
prior to a decision on approving project, based on decision of head of investor
or head of unit assigned to perform task of preparation of project, in case the
investor has not yet been identified;
b) Capital sources for project;
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d) Relevant legal documents.
2. Bases to formulate plan on bidder selection for
recurrent procurement:
a) Standards, norms of equipment, means of working
of agencies, organizations, units and cadres, civil servants, public employees;
equipment, means of working existing which need to be replaced, purchased for
supplementation, procured new ones to serve for work;
b) The approved decision on procurement;
c) The approved capital sources and estimate for
recurrent procurement;
d) Scheme on procurement, equipping for entire
branch which has been approved by the Prime Minister (if any);
dd) Result of price evaluation of agencies and
organizations with function providing service of price or quotation evaluation
(if any).
3. Plan on bidder selection may be formulated after
decision on approving project, estimate of procurement or concurrently with
process of formulating project, estimate of procurement or before decision on
approving project for procurement which need to be performed before decision on
approving project.
Article 35. Content of plan on
bidder selection for each package
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Name of procurement presents nature, content and work
scope of package, in line with contents stated in project, estimate of
procurement. If package includes many separate parts, plan on bidder
selection should state the name describing basic content of each part.
2. Price of package:
a) Price of package is determined on the basis of
total investment or estimated budget (if any) for project; estimate of
procurement for recurrent procurement. Price of package is included
exactly and fully entire expenses associated with performance of package, including
reserve expenses, charges, fees and taxes. Price of package may be
updated in time limit of 28 days before day of bid opening if necessary;
b) For packages of consulting service provision for
formulation of pre-feasible study report, feasible study report, price of
package shall be defined on the basis of information on average price according
to statistics of projects which have been made in a defined duration; the
estimated total investment based on investment ratio norms of projects;
preliminary total investment;
c) If package includes many separate parts, to
clearly indicate the estimated price for each part in price of package.
3. Capital sources:
For each package, it must clearly state capital
sources or methods of capital arrangement, time of capital allocation to pay
for bidder; case of using official development assistance capital, concessional
loans, it must clearly state name of donors and structure of capital sources,
including the financed capital, domestic reciprocal capital.
4. Forms and methods of selection of bidders:
For each package, it must clearly state forms and
methods of selection of bidders; selection of domestic or international
contractor.
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Beginning time of contractor selection is
calculated as from issuing Bid, Request for Proposals, and clearly indicated
under month or quarter in year. In case of competitive bidding with
application of short-list selection procedures, beginning time of contractor
selection is calculated as from issuing EOI requests, Prequalification
Documents.
6. Contract type:
Plan on selection of bidder must clarify contract
type as prescribed in Article 62 of this Law as the basis for formulation of
EOI requests, Prequalification Documents, Bidding Documents, Request for
Proposals; and signing contract.
7. Time for contract performance:
Time for contract performance is number of days
calculated from the effective date of contract until parties fulfill
obligations as prescribed in contract, exclusive of duration of warranty
obligation performance (if any).
Article 36. Submission for
approval of plan on bidder selection
1. Responsibilities for submission for approval of
plan on bidder selection:
a) Investor for project, the Procuring Entity for
recurrent procurement shall be responsible for submission of plan on bidder
selection to the competent person for consideration and approval;
b) For packages which need to be performed prior to
a decision on approving project, in case where the investor is identified, unit
of investor shall submit the plan on bidder selection to the head of investor
for consideration and approval. In case the investor has not yet been
identified, unit assigned to perform task of preparation of project shall
submit plan on bidder selection to the head of its unit for consideration and
approval.
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a) The performed part of work, including content of
work related to preparation of project, packages performed previously with the
respective value and legal bases for implementation;
b) The part of work which is not able to apply one
of form of contractor selection, including: operation of project
management board, organization of compensation and ground clearance,
commencement, inauguration, payment of loan interest and other affairs not able
to apply form of contractor selection;
c) The part of work in plan on bidder selection,
including content of work and respective value forming packages which are
performed in one of forms of contractor selection defined in Articles 20, 21,
22, 23, 24, 25, 26 and 27 of this Law. This part must clarify bases of
division of project, estimate of procurement into packages. For each
procurement, it must ensure to have full contents specified in Article 35 of
this Law. For procurement not apply form of competitive bidding, document
to submit for plan on bidder selection must clarify reason of applying other
selection form;
d) The part of work which have not yet adequate
conditions for formulating plan on bidder selection (if any), in which
clarifying content and value of this part of work;
dd) Part of summing up values of part of works
specified in points a, b, c and d this Clause. Total value of this part
does not exceed the approved total investment of project or estimated budget of
procurement.
3. Documents enclosed with report to submit for
approval of plan on bidder selection:
When submitting for approval of plan on bidder
selection, it must enclose copies of documents as the basis for formulation of
plan on bidder selection as prescribed in Article 34 of this Law.
Article 37. Evaluation and
approval of plan on bidder selection
1. Evaluation of plan on bidder selection:
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b) Organization assigned evaluation of the plan on
bidder selection shall formulate report on evaluation and submit to the
competent person for the approval;
c) Organization assigned evaluation of the plan on
bidder selection shall make an evaluation report and submit it to the head of
investor or the head of unit assigned to perform task of preparation of project
for approving plan on bidder selection in case where package needs to be
performed prior to decision on approval for project.
2. The approval for plan on bidder selection:
a) Based on the evaluation report, the competent
person shall approve the plan on bidder selection in writing in order to do as
basis for selection of bidder after project or estimate of procurement has been
approved or concurrently with decision on approving of project, estimate of
procurement in eligible case;
b) Based on the evaluation report, the head of
investor or the head of unit assigned to perform task of preparation of project
shall approve plan on bidder selection in case where package needs to be
performed prior to decision on approval for project.
Article 38. The process of
bidder selection
1. The process of bidder selection for competitive
bidding, limited bidding shall be performed as follows:
a) Prepare for selection of bidder;
b) Organize selection of bidder;
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d) Submit, evaluate, approve and publish result of
bidder selection;
dd) Finalize and sign contract.
2. The process of bidder selection for Direct
Contracting shall be performed as follows:
a) For Direct Contracting according to the ordinary
process including steps: Prepare for contractor selection; organize the
contractor selection; assess Proposals and negotiate on proposals of bidders;
submit, evaluate, approve and publish the result of bidder selection; finalize
and sign contract;
b) For Direct Contracting according to the reduced
process including steps: Prepare and send draft contract to bidder;
negotiate, finalize contract; submit, approve and publish the result of bidder
selection; sign contract.
3. The process of bidder selection for Shopping
Method shall be performed as follows:
a) For Shopping Method according to the ordinary
process including steps: Prepare for contractor selection; organize the
contractor selection; assess Proposals and negotiate contract; submit,
evaluate, approve and publish the result of bidder selection; finalize and sign
contract;
b) For Shopping Method according to the reduced
process including steps: Prepare and send requirement for quotation to
bidder; bidders submit quotation; assess quotations and negotiate contract;
submit, approve and publish the result of bidder selection; finalize and sign
contract.
4. The process of bidder selection for Direct
Procurement shall be performed as follows:
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b) Organize selection of bidder;
c) Assess the Proposals and negotiate on proposals
of bidders;
d) Submit, evaluate, approve and publish result of
bidder selection;
dd) Finalize and sign contract.
5. The process of bidder selection for Force
Account shall be performed as follows:
a) Prepare for plan on Force Account and draft
contract;
b) Finalize the plan on Force Account and
negotiate, finalize contract;
c) Sign contract.
6. The process of selection for individual
consulting bidder shall be performed as follows:
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b) The individual consulting bidders submit dossier
of scientific curriculum vitae;
c) Assess dossier of scientific curriculum vitae of
individual consulting bidders;
d) Negotiate, finalize contract;
dd) Submit, approve and publish result of bidder
selection;
e) Sign contract.
7. The process of bidder selection for packages
with participation of community in performance shall be performed as follows:
a) Prepare plan on selecting population communities,
organizations, teams, groups of workers in localities to carry out the package.
b) Organize selection;
c) Approve and publish the selection result;
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8. The Government shall elaborate on this Article.
Chapter IV
METHODS TO ASSESS BIDS,
PROPOSALS; CONSIDERATION FOR RECOMMENDATION AS THE WINNING BIDDER
Article 39. Methods to assess
Bids for packages of the non-consulting service provision, goods procurement,
construction, mixed packages
1. Least-Cost Selection:
a) This method applies to simple packages with
small scale in which technical, financial and commercial proposals are
considered as a same ground when satisfy requirements stated in Bid;
b) Criteria for evaluation of Bid include:
Evaluation criteria of capability, experiences and criteria of package;
c) For the Bids which have been assessed to satisfy
criteria for evaluation as prescribed at point b this Clause, Bid Prices after
the errors have been rectified and discrepancies have been adjusted are basis
for comparison and ranking. Contractors shall be ranked corresponding to
bid price after the errors have been rectified and discrepancies have been
adjusted, minus value of discount (if any). The bidder with lowest price
shall be ranked the first.
2. Lowest Evaluated Bid Selection:
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b) Criteria for evaluation of Bid include:
assessment criteria of capability, experiences in case of not applying
prequalification; technical evaluation criteria; standards for determination of
evaluated bid price.
Elements which are converted on the same ground to
determine evaluated bid price include: Necessary expenses associated with
operation, maintenance and other expenses related to origin of goods, loan
interest, progress, quality of goods or construction works of the package,
prestige of contractor through the progress and quality during implementation
of previous similar contracts and other elements;
c) For Bids which have passed step of technical
assessment, comparison and ranking are based on evaluated bid prices. The
bidder with lowest evaluated price shall be ranked the first.
3. Quality- and Cost-Based Selection:
a) This method apply to packages of information
technology, telecommunication or packages of goods procurement, works, mixed
packages when both Least-Cost Selection and Lowest Evaluated Bid Selection
specified at Clause 1 and Clause 2 of this Article fail to be able to apply;
b) Criteria for evaluation of Bid include:
assessment criteria of capability, experiences in case of not applying
prequalification; technical evaluation criteria; and the collective criteria
for evaluation. The collective criteria for evaluation are formulated on
the basis of combination between technical aspect and price;
c) For Bids which have passed step of technical
assessment, comparison and ranking are based on the collective points score
respectively. The bidder with the highest collective points score shall
be ranked the first.
4. For assessment criteria of capability,
experiences, use pass-fail system; for technical evaluation criteria, use
Weighted Scoring Method or pass-fail system. for Quality- and Cost-Based
Selection specified at Clause 3 of this Article, use Weighted Scoring Method.
When using Weighted Scoring Method, the score of minimum technical requirement
must be stipulated and not be less than 70% of the total points for technical
aspects.
5. The Government shall elaborate on this Article.
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1. For consulting bidder being organization, apply
one of the following methods:
a) Least-Cost Selection shall be applied to the
simple consulting packages. Criteria for evaluation of Bid are technical
evaluation criteria. For Bids which have passed step of technical
assessment, base on bid price after the errors have been rectified and
discrepancies have been adjusted, minus value of discount (if any). The bidder
with lowest price shall be ranked the first;
b) Fixed-Budget Selection shall be applied to the
simple consulting packages, expenses associated with performance of package are
determined specifically and fixed in Bid. Criteria for evaluation of Bid
are technical evaluation criteria. For Bids which have passed step of
technical assessment, bid price after the errors have been rectified and
discrepancies have been adjusted, minus value of discount (if any) not exceeding
expenses associated with performance of package, based on technical score for
comparison and ranking. The bidder with the highest technical point shall
be ranked the first;
c) Quality- and Cost-Based Selection shall be
applied to the consulting packages that pay attention to quality and expenses
associated with performance of package. Criteria for evaluation of Bid
are technical evaluation criteria and collective criteria for evaluation. The
collective criteria for evaluation are formulated on the basis of combination
between technical aspect and price. When formulating the collective criteria
for evaluation, it must ensure principle which the points for technical aspects
shall account for between 70% and 80% and the points for price shall account for
between 20% and 30% of the collective points score, percentage of points for
technical aspects plus to percentage of points for price shall be equal to
100%. The bidder with the highest collective points score is ranked the
first;
d) Quality-Based Selection shall apply to
consulting packages with high and particular technical requirements.
Criteria for evaluation of Bid are technical evaluation criteria.
When formulating technical evaluation criteria, the score of minimum
technical requirement must be stipulated and not be less than 80% of the total
points for technical aspects. Bidder has Bid satisfying the minimum
technical score as prescribed and obtain the highest technical score shall be
ranked the first and invited to come for opening Financial Proposal as basis
for negotiating contract.
2. For technical evaluation criteria specified at
points a, b, c and d Clause 1 of this Article, use the method of marking a
score. When formulating technical evaluation criteria, the score of
minimum technical requirement must be stipulated and not be less than 70% of
the total points for technical aspects, except for case specified at point d
Clause 1 of this Article.
3. For consulting bidders being individuals,
criteria for evaluation of Bids shall be criteria for evaluation of dossiers of
scientific curriculum vitae and technical proposals (if any). The bidder
with the best dossier of scientific curriculum vitae, Technical Proposal and
satisfying requirements of reference provisions shall be ranked the first.
Article 41. Methods to assess
Proposals
Method to assess Proposals in Shopping Method shall
comply with Least-Cost Selection specified at clause 1 article 39 of this Law.
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1. The consulting bidder being organization shall
be considered for recommendation as the winning bidder upon satisfying the
following conditions:
a) Having valid Bid and Proposal ;
b) Having Technical Proposal satisfying
requirements;
c) Having bid price after the errors have been
rectified and discrepancies have been adjusted, minus value of discount (if
any) being lowest price for Least-Cost Selection; having the highest technical
score for Fixed-Budget Selection and Quality-Base Selection; having the highest
collective points for the Quality- and Cost-Based Selection;
d) Having the proposed successful bid not exceeding
the approved package price. If the approved estimated budget of
procurement is lower than or higher than the approved package price, this
estimate shall replace package price as basis for consideration for
recommendation as the winning bidder.
2. The consulting bidder being individual shall be
considered for recommendation as the winning bidder upon satisfying the
following conditions:
a) The bidder has the best dossier of scientific
curriculum vitae, Technical Proposal (if any) and satisfying requirements of
reference provisions;
b) The bidder has the proposed successful bid not
exceeding the approved package price. If the approved estimated budget of
procurement is lower than or higher than the approved package price, this
estimate shall replace package price as basis for consideration for
recommendation as the winning bidder.
3. For bidders fail to be selected, in notice of
bidder-selection result must clearly state the reason thereof.
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1. The supplier of non-consulting service, goods,
works, mixed packages shall be considered for recommendation as the winning
bidder upon satisfying the following conditions:
a) Having valid Bid and Proposal ;
b) Having qualifications satisfying requirements;
c) Having Technical Proposal satisfying
requirements;
d) Having deficient discrepancies not exceeding 10%
of Bid Price;
dd) Having bid price after the errors have been
rectified and discrepancies have been adjusted, minus value of discount (if
any) being lowest price for Least-Cost Selection; having the lowest assessment
price for Lowest Evaluated Bid Selection; having the highest collective points
for the Quality- and Cost-Based Selection;
e) The bidder has the proposed successful bid not
exceeding the approved package price. If the approved estimated budget of
procurement is lower than or higher than the approved package price, this
estimate shall replace package price as basis for consideration for
recommendation as the winning bidder.
2. For bidders fail to be selected, in notice of
bidder-selection result must clearly state the reason thereof.
Chapter V
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Section 1. CENTRALIZED
PROCUREMENT
Article 44. General provisions
on centralized procurement
1. Centralized procurement means a way to organize
an competitive bidding in order to select contractor through a centralized procurement
unit with the aim to reduce expenses, time, and focal units of bidding
organization, strengthen the professionalism in bidding, and contribute in
increasing economic efficiency.
2. Centralized procurement shall apply in case
where goods and services need to be procured with big quantity, similar
categories at one or many agencies, organizations, enterprises or investors.
3. Centralized procurement may be performed in one
of the following ways:
a) The centralized procurement unit gathers needs
of procurement, conduct the selection of bidder, directly sign contract with
the selected bidder for goods or service provision;
b) The centralized procurement unit gathers needs
of procurement, conduct the selection of bidder, sign a written framework agreement
with one or many selected bidders as basis for units which have need of Direct
Procurement to sign contract with the selected bidders for goods or service
provision.
4. The centralized procurement unit shall conduct
the selection of bidder on the basis of assigned tasks, or sign contract with
units which have need for procurement.
5. The Government shall elaborate on this Article.
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1. Framework agreement in the centralized
procurement means a long-term agreement between the centralized procurement
unit with one or many selected bidders, in which include standards and
conditions as basis for procurement according to each specific contract.
2. Duration for use of framework agreements shall
be stipulated in plan on bidder selection but not exceed 03 years.
SECTION 2. RECURRENT
PROCUREMENT
Article 46. Conditions for
application
Regulatory agencies, political organizations,
socio-political organizations, socio-political-occupational organizations,
social organizations, socio-occupational organizations and units of the
People’s armed forces, and public non-business units may apply the recurrent
procurement of goods and services upon satisfying all the following conditions:
1. Use the capital sources for recurrent procurement;
2. Goods and services under list of goods and
services allowed applying recurrent procurement to maintain regular activities
of agencies, organizations and units.
Article 47. Organizing
selection of bidder
1. Selection of bidder in recurrent procurement
shall comply with Articles 38, 39, 40, 41, 42 and 43 of this Law.
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Section 3. PURCHASE OF DRUGS
AND MEDICAL SUPPLIES
Article 48. The selection of
bidder for drugs and medical supplies provision
1. Form, method, plan and process of selection of
bidder and method of assessment of Bid, Proposal for selection of bidder for
drugs and medical supplies provision shall comply with provisions at chapter
II, III and IV of this Law.
2. Selection of bidder for drugs provision shall
also be performed under form of price negotiation. Form of negotiation
shall be applied to packages for purchase of drugs which there are only one to
two producers; original proprietary medicines, rare drugs, drugs still in time
protected copyright and other particular cases.
3. A bidder shall be considered for the consulting
bidder being organization shall be considered for recommendation as the winning
bidder upon satisfying the following conditions:
a) Conditions specified at points a, b, d, dd and e
Clause 1 Article 43 of this Law;
b) Bidder has Technical Proposal which is assessed
to satisfy requirements on quality, provision, preservation and time limit for
drugs use.
4. The Government shall elaborate on this Article.
Article 49. Centralized
purchase of drugs
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2. The Government shall provide for the centralized
purchase of drugs and roadmap to perform the centralized purchase of drugs.
Article 50. Preferential
treatment in purchase of drugs
The preferential treatment in purchase of drugs
shall comply with Article 14 of this Law. For drugs produced domestically,
and the Ministry of Health has announced as satisfaction of such drugs for the
requirements on medical treatment, price of drugs and ability of provision, in
Bidding Documents, Request for Proposals shall stipulate that bidders are not
permitted to offer the import drugs.
Article 51. Responsibilities
of regulatory bodies in bidding of drugs and medical supplies
1. The Ministry of Health shall promulgate list of
drugs involving bidding; list of drugs involving centralized bidding; and list of
drugs allowed applying form of price negotiation.
2. Government shall provide for responsibilities of
Ministries and sectors in bidding of drugs and medical supplies, and the
disclosure of prices of drugs and medical supplies according to results of contractor
selection.
Article 52. Payment of
expenses associated with purchase of drugs and medical supplies
If non-public health facilities do not select to
apply provisions of this Law for purchase of drugs, medical supplies, such
health facilities shall only be paid from medical insurance fund according to
the drugs items and unit prices of drugs and medical supplies already won
bidding of the public health facilities at provincial level in the same
localities.
Section 4. PROVISION OF PUBLIC
PRODUCTS AND SERVICES
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The selection of bidders for provision of public
products and service shall perform under forms of competitive bidding, limited
bidding, and Direct Contracting, Shopping Method, Direct Procurement and Force
Account.
Article 54. The process of
bidder selection
1. The process of bidder selection for provision of
public products and services shall be performed as follows:
a) Prepare for selection of bidder;
b) Organize selection of bidder;
c) Assess the Bids, Proposals and negotiate
contract;
d) Submit, evaluate, approve and publish result of
bidder selection;
dd) Finalize and sign contract.
2. The Government shall elaborate on this Article.
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SELECTION OF INVESTORS
Article 55. Plan on investor
selection
1. Basis for plan on investor selection:
a) Decision on approving project;
b) International treaties, international agreements
for projects used official development assistance capital, concessional loans;
c) Relevant documents.
2. Content of plan on investor selection:
a) Name of project;
b) Total investment and total capital of project;
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d) Forms and methods of selection of investors;
dd) Beginning time of organization for investor
selection;
e) Contract type;
g) Time for contract performance.
Article 56. The process of
investor selection
1. The process of investor selection shall be performed
as follows:
a) Prepare for selection of investor;
b) Organize the selection of investor;
c) Assess the Bids, Proposals;
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dd) Negotiate, finalize and sign contract.
2. The Government shall elaborate on this Article.
Article 57. Submitting,
appraising and approving the plan on selection of investor, Prequalification
Document, result of prequalification, Bid, Request for Proposals and result of
investor selection
1. The Procuring Entity shall submit the plan on
selection of investor, Prequalification Document, result of prequalification,
Bid, Request for Proposals and result of investor selection to the competent
persons, concurrently organize appraisal.
2. Organizing the appraisal, making report on
appraisal of the plan on selection of investor, Prequalification Document,
result of prequalification, Bid, Request for Proposals and result of investor
selection to submit to the competent persons.
3. Based on the submitted dossier and report on
appraisal, the competent persons shall approve the plan on selection of
investor, Prequalification Document, result of prequalification, Bid, Request
for Proposals and result of investor selection.
4. The Government shall elaborate on this Article.
Article 58. Methods to assess
the Bids
1. Methods to assess the Bids include: Service
price-related evaluation, method of State-contributed capital, method of social
benefits, state benefits and combination method.
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3. The Government shall elaborate on this Article.
Article 59. Consideration for
contract award in investor selection
1. The selected investors must satisfy all following
conditions:
a) Having valid Bid and Proposal ;
b) Satisfying requirements on qualifications;
c) Satisfying technical requirements;
d) Satisfying financial requirements;
dd) Project obtains highest efficiency.
2. For investors not be selected, in notice of
result of investor selection must clearly state the reason thereof.
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SELECTION OF BIDDERS AND
INVESTORS ONLINE
Article 60. Selection of
bidders and investors online
1. When selecting bidders/investors online, the
following contents and process shall be performed on National E-procurement
System:
a) Publishing information on bidding as prescribed
in Article 8 of this Law;
b) Publishing EOI requests, Prequalification
Documents, Requests for Proposals;
c) Submission of Bid Security, Performance
Security, joint venture agreements;
d) Submitting, withdrawing EOI requests,
Prequalification Documents, Bids, Proposals;
dd) Opening Bids;
e) Assessing EOI responses, Applications, Bids,
Proposals;
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h) Other relevant content.
2. The Government shall elaborate selection of
bidders and investors online and the roadmap for application.
Article 61. Requirements for
National E-procurement System
1. It must publish, not limit the access of
information.
2. Users may realize the real time upon accessing
National E-procurement System. Time on National E-procurement System is
the real time and standard time in bidding through National E-procurement
System.
3. It must operate continuously, unified, be stable
and safe on information, have ability to identify users, keep confidential and
entire data.
4. It must perform the storage of information and
may retrieve histories of transactions on National E-procurement System.
5. It must ensure that bidders and investors cannot
send EOI responses, Applications, Bids, Proposals to the Procuring Entity after
deadline for submission of bids.
Chapter VIII
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Section 1. CONTRACT WITH
CONTRACTOR
Article 62. Contract type
1. Lump-sum contract:
a) Lump-sum contract means contract with fixed
price during performance for all work contents in contract. Payment for
lump-sum contract shall be performed many times during implementation or once
upon finishing contract. Total amounts paid to contractor until finishing
obligations under contract shall be equal to the price stated in contract;
b) When applying the lump-sum contract, prices of
packages as the basis for consideration for recommendation as the winning
bidder must include expenses associated with risk elements which may happen
during the course of implementation of contract, reserve expenses associated
with slippage in price. Bid Price must include all expenses associated
with risk elements and expenses associated with slippage in price which may
happen during the course of implementation of contract;
c) Lump-sum contract is type of basic contract.
When deciding on application of contract types defined at Clause 2 and
Clause 3 of this Article, the person approving the plan on bidder selection
must ensure that such contract types are more appropriate than lump-sum
contract. For packages of simple consulting service provision, and
non-consulting service provision; packages for goods procurement, works, mixed
packages with small scale must apply form of lump-sum contract;
d) For packages of works, during the course of
negotiating and finalizing contract, the relevant parties need review the table
of work volume under the approved design; if the bidder or the Procuring Entity
detects that the tables of work quantity and volume are not exact in comparison
with design, the Procuring Entity shall report to the investor for
consideration to decide on adjustment of the work volume in order to ensure the
conformity with design;
dd) When applying the lump-sum contract, the
investor for project, the Procuring Entity for recurrent procurement, the
centralized procurement units or units with need of procurement for the
centralized procurement shall be responsible for the accuracy of work quantity
and volume. In case of using consulting bidder to make dossier of design, Bid,
Request for Proposals, in contract between investor, Procuring Entity,
centralized procurement unit or unit which has need of procurement with the
consulting bidder must have provisions on responsibilities of parties in
handling or compensation in case of calculating wrongly the work quantity and
volume.
2. Unit price contract:
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3. Adjustable unit rate contract:
Adjustable unit rate contract means contract with
changeable unit price based on agreements in contract for all work contents in
contract. The contractor will be paid according to the practical work
quantity and volume which are tested for acceptance as prescribed on the basis
of the unit price in contract or the modified unit price.
4. Time-based contract:
Time-based contract means contract which is applied
to packages providing consulting service. The Contract Price is
calculated on the basis of working time according to month, week, day, hour and
costs other than remuneration. The contractor will be paid according to
the practical working time on the basis of remuneration corresponding to the
title and work stated in contract.
Article 63. Contract Documents
1. Contract Documents include:
a) Contract Agreement;
b) Contract Addenda, including the detailed list of
work scope, price table, and time for performance (if any);
c) Decision on approving the result of bidder
selection.
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a) The contract finalization record;
b) The written agreement of parties about terms and
conditions of the contract, including general conditions and particular
conditions;
c) Bid, Proposal and documents to clarify these
dossiers of the selected bidder;
d) Bid, Request for Proposals and documents
amending and supplementing these dossiers.
dd) Relevant documents.
3. When having changes of contents within contract,
parties must sign Contract Addenda.
Article 64. Conditions for
signing contract
1. At time of signing, the Bid or Proposal of the
selected bidder is still valid.
2. At time of signing, the selected bidder must
ensure to meet requirements on technical and financial capability for
implementation of the package. In necessary case, the investor for a
project, the Procuring Entity for recurrent procurement, the centralized
procurement unit or unit with need of procurement for the centralized
procurement may conduct verification of information on capability of bidder, if
the bidder still satisfies requirements for performance of package, parties
will sign contract.
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Article 65. Contract with the
selected bidder
1. After selecting contractor, the investor for a
project, the Procuring Entity for recurrent procurement, the centralized
procurement unit or unit with need of procurement for the centralized
procurement and the selected bidder must sign contract to perform the package.
For JV contractor, all JV’s Parties must directly sign and affix their
seal (if any) on the written contract. The contract signed between parties
must comply with provisions of this Law and other provisions of relevant
legislation.
2. A package may be performed according to one or
many contract; in a contract may apply one or many contract kinds specified at
Article 62 of this Law. In case of applying many contract kinds, it must
clarify the contract kind respectively with each content of specific work.
3. Contract signed between parties must conform to
content in Bid, Request for Proposals, Bid, Proposals, result of contractual
negotiation, and decision on approving result of bidder selection.
4. Contract Price does not exceed the successful
bid. In case of supplementing the work volume apart from Bid, Request for
Proposals, leading to the excess of Contract Price in comparison with the
successful bid, the Contract Price must be ensured to not exceed the approved
price of package or estimate; if project, estimate on package include many
procurement, total Contract Price must ensure to not exceed total the invested
capital and estimated budget already been approved.
5. The Government shall provide for content of
contract involving bidding.
Article 66. Performance
Security
1. Performance Security shall be applied to the
selected bidders, except for contractors which provide the consulting services,
the selected bidders according to form of Force Account and participation in
implementation of community.
2. The selected bidder must provide a Performance
Security prior to the date on which the contract takes effect.
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4. The validity period of a Performance Security
shall be calculated from the effective day of contract until the date parties
finish contractual obligations or until the day of transfer of warranty
obligations in case of having provisions on warranty. In case of
extending the contract performance period, it must require the bidder to extend
respectively validity period of Performance Security.
5. The contractor shall not be entitled to the
return of the Performance Security in the following cases:
a) The contractor refuses to perform the contract
after the date the contract takes effect;
b) The contractor violates agreements in contract;
c) The contractor performs contract later than the
progress due to the contractor’s fault but refuse to extend the validity of
Performance Security.
Article 67. Principles of
adjustment to contract
1. Adjustment to contracts must be specified
specifically in the written contract, written agreement on contractual
conditions (if any).
2. Adjustment to contracts shall only apply within
validity period of contract.
3. Adjustment to contract price shall only apply
unit price contract, adjustable unit rate contract and time-based contract.
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5. For contracts based on modifiable unit price,
the adjustment of unit price shall be performed as from time of arising the
elements causing changes of price and only be applied for the performed volume
in accordance with the progress stated in contract or the adjusted progress as
prescribed in Clause 6 and Clause 7 of this Article.
6. The contract time for performance shall be only adjusted
in the following case:
a) In case of force majeure, not relating to any
violation or mistake of parties in contract;
b) Changes of the work scope, design, measures for
construction due to objective requirements affect to the contract time for performance;
c) Handing over of ground inconsistently with
agreements in contract affect to the contract time for performance but cause is
not fault of contractor.
7. In case of adjustment to the contract time for
performance which do not prolong the progress of finishing project, contractual
parties may agree and unify such adjustments. In case of adjustment to
the contract time for performance which prolongs the progress of finishing
project, it must report to the competent person for consideration and decision.
Section 2. CONTRACT WITH
INVESTOR
Article 69. Contract Documents
1. Contract Documents include:
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b) Contract Addenda (if any);
c) Note of Contract Negotiation;
d) Decision on approving the result of investor
selection;
dd) The written agreement of parties about terms
and conditions of the contract, including general conditions and particular
conditions;
e) Bid, Proposal and documents to clarify these
dossiers of the selected investor;
g) Bid, Request for Proposals and documents
amending and supplementing these dossiers;
h) Relevant documents.
2. When having changes of contents within contract,
parties must sign Contract Addenda.
Article 70. Conditions for
signing contract
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2. At time of signing, the selected investor must
ensure to meet requirements on technical and financial capability for
implementation of the project. In necessary case, the competent person
may conduct verification of information on capability of investor, if the
investor still satisfies requirements for implementation of project, parties
will sign contract.
3. The competent regulatory agencies must ensure
conditions on capital financed by state, ground for implementation and other
necessary conditions for carrying out the project on the schedule.
Article 71. Contract with the
selected investor
1. After selecting investor, the competent
regulatory agencies shall sign contract with the selected investor or the
selected investor and project management enterprise. For JV investor, all
JV’s Parties must directly sign and affix their seal (if any) on the written
contract. The contract signed between parties must comply with provisions
of this Law and other provisions of relevant legislation.
2. Contract signed between parties must conform to
content in Bid, Request for Proposals, Bid, Proposals, result of contractual
negotiation, and decision on approving result of investor selection and written
agreement on investment.
Article 72. Performance
Security
1. The selected investor must provide a Performance
Security prior to the date on which the contract takes effect.
2. Based on scale, nature of project, the value of a
Performance Security shall be stipulated in the Bid Documents, Requests for
Proposals at a definite level of between 1% and 3% of total investment of
project.
3. The validity period of a Performance Security
shall be calculated from the day of officially signing contract until the date
works is completed and tested for acceptance or until the date conditions of
service provision guarantee are completed as prescribed in contract. In
case of extending the contract performance period, it must require the investor
to extend respectively validity period of Performance Security.
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a) The investor refuses to perform the contract
after the date the contract takes effect;
b) The investor violates agreements in contract;
c) The investor performs contract later than the
progress due to the contractor’s fault but refuse to extend the validity of
Performance Security.
Chapter IX
RESPONSIBILITIES OF
PARTIES IN SELECTION OF BIDDERS/INVESTORS
Article 73. Responsibilities
of the competent person
1. To approve the plan on selection of bidder/
investor, except for case defined at point a Clause 1 Article 74 of this Law.
2. To resolve protests during selection of bidder/
investor.
3. To deal with breaches of bidding in accordance
with this Law and other relevant laws.
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5. To suspend bid, to refuse recognition of result of
selecting bidder/investor, or to declare invalidity to decisions of the
investor, the Procuring Entity when detecting violations of bidding or other
provisions of relevant law.
6. To inspect, supervise, monitor the work of
bidding and contract performance.
7. For the selected bidder, apart from provisions
at Clauses 1, 2, 3, 4, 5 and 6 of this Article, the competent person shall have
the following responsibilities:
a) To adjust tasks and competence of investor in
case of failing to meet legislation on bidding and requirements of project,
package;
b) To require the investor, the Procuring Entity to
supply dossiers, documents in order to serve the inspection, supervision,
monitoring, settlement of protests, handling of violations on bidding and works
defined at Clause 4 and clause 5 of this article;
c) To give opinions on handling of complex
circumstances at the proposal of the investor defined at point a clause 2
Article 86 of this Law.
8. For the selected investor, apart from provisions
at Clauses 1, 2, 3, 4, 5 and 6 of this Article, the competent person shall have
the following responsibilities:
a) To decide on selection of the Procuring Entity;
b) To approve Prequalification Document, result of
prequalification, Bid, Request for Proposals, result of investor selection;
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d) To sign and manage the contract performance;
dd) To cancel bid as prescribed at Clause 1 Article
17 of this Law;
e) To require the Procuring Entity to supply
dossiers, documents in order to serve the inspection, supervision, monitoring,
settlement of protests, handling of violations on bidding and works defined at
Clause 4 and clause 5 of this article.
9. To decide on establishment of the Procuring
Entity with personnel satisfying the conditions as prescribed by this Law in
case of investor selection for recurrent procurement. If the personnel
fails to satisfy, the competent person must conduct selection of a professional
bidding organization to act as the Procuring Entity or to perform some of tasks
of the Procuring Entity.
10. To pay compensation for loss and damage to
relevant parties pursuant to this Law if such loss and damage was caused by
their fault.
11. To make explanations for observance with
provisions in this article at the request of superior agencies, inspection
agencies, regulatory bodies on bidding activities.
12. To perform other tasks as prescribed in this
Law.
Article 74. Responsibilities
of the investor
1. To approve contents during contractor selection
including:
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b) EOI request, Prequalification Document, short
list;
c) Bidding Documents, Request for Proposals;
d) List of ranked contractors;
dd) Result of selection of bidders.
2. To sign or authorize for signing and manage the
contract performance with contractor.
3. To decide on establishment of the Procuring
Entity with personnel satisfying conditions as prescribed in this Law. If the personnel
fails to satisfy, the competent person must conduct selection of a professional
bidding organization to act as the Procuring Entity or to perform some of tasks
of the Procuring Entity.
4. To make a decision dealing with any exceptional
situation.
5. To resolve protests during selection of bidders.
6. To maintain confidentiality of relevant
documents during selection of bidders.
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8. To report the annual bidding work.
9. To pay compensation for loss and damage to
relevant parties pursuant to this Law if such loss and damage was caused by
their fault.
10. To cancel bid as prescribed at Clause 1 Article
17 of this Law.
11. To be legally liable before law and competent
person for the process of selection of bidder.
12. To provide information, relevant documents and
make explanations on observance with provisions in this Article at the request
of superior agencies, inspection agencies, regulatory bodies on bidding
activities.
13. If the investor currently being the Procuring
Entity, the investor must take responsibilities specified in Article 75 of this
Law.
14. To perform other tasks as prescribed in this
Law.
Article 75. Responsibilities
of the Procuring Entity
1. For contractor selection to perform packages of
project:
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b) To decide on establishment of expert group;
c) To request bidders to clarify their EOI
responses, Applications, Bids and Proposals during the process of dossier
assessment;
d) To submit for approval of the result of short
list selection and result of bidder selection;
dd) To negotiate and finalize contract with bidder;
e) To pay compensation for loss and damage to
relevant parties pursuant to this Law if such loss and damage was caused by the
Procuring Entity’s fault;.
g) To maintain confidentiality of relevant
documents during selection of bidders;
h) To ensure honesty, objectivity and impartiality
throughout the process of bidder selection;
i) To provide information to the bidding newspaper
and to the national bidding website; to provide information and relevant
documents and make explanations on observance with provisions in this Clause at
the request of competent person, investor, inspection agencies, regulatory
bodies on bidding activities;
k) To be legally liable before law and investor for
the process of selection of bidder.
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a) To approve the Bid, Request for Proposals;
b) To approve the result of bidder selection;
c) To sign and manage the contract performance with
contractor;
d) To make a decision dealing with any exceptional
situation;
dd) To resolve protests during selection of
bidders;
e) To cancel bid as prescribed at Clause 1 Article
17 of this Law;
g) To be legally liable before law and competent
person for the process of selection of bidder;
h) To archive relevant information during selection
of bidders as prescribed by law on archival and regulations of Government;
i) To provide information to the bidding newspaper
and to the national bidding website; to provide information and relevant documents
and make explanations on observance with provisions in this Clause at the
request of competent person, inspection agencies, regulatory bodies on bidding
activities;
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3. For selection of investors:
a) To conduct preparations for investor selection;
to organize investor selection; to assess Applications, Bids, Proposals in
accordance with this Law;
b) To decide on establishment of expert group;
c) To request investors to clarify their
Applications, Bids and Proposals during the process of dossier assessment;
d) To submit for approval of Prequalification
Document, result of prequalification, Bid, Request for Proposals, result of
investor selection;
dd) To negotiate contract with investor;
e) To pay compensation for loss and damage to
relevant parties pursuant to this Law if such loss and damage was caused by the
Procuring Entity’s fault;
g) To maintain confidentiality of relevant
documents during selection of investors;
h) To archive relevant information during selection
of investors as prescribed by law on archival and regulations of Government;
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k) To ensure honesty, objectivity and impartiality
throughout the process of investor selection;
l) To provide information to the bidding newspaper
and to the national bidding website; to provide information and relevant
documents and make explanations on observance with provisions in this Clause at
the request of competent person, inspection agencies, regulatory bodies on bidding
activities.
4. To perform other tasks as prescribed in this
Law.
Article 76. Responsibilities
of the expert groups
1. To be honest, objective and impartial throughout
the process of implementation of tasks.
2. To conduct assessments of EOI responses,
Applications, Bids, Proposals correctly in accordance with the requirements.
3. To report the Procuring Entity about result of
assessing EOI responses, Applications, Bids, Proposals and list of the ranked
bidders/investors.
4. To maintain confidentiality of relevant
documents during selection of bidders/investors.
5. To reserve their own opinions.
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7. To provide information, relevant documents and
make explanations on observance with provisions in this Article at the request
of competent person, the Procuring Entity, inspection agencies, regulatory
bodies on bidding activities.
8. To perform other tasks as prescribed in this
Law.
Article 77. Responsibilities
of the bidders and investors
1. To request the Procuring Entity to clarify
dossier of invitation for expression of interest, Prequalification Document,
Bid, Request for Proposals.
2. To fulfill the contractual undertakings provided
to the Subcontractors (if any).
3. To lodge protests, to make complaints and
whistleblowing regarding bidding.
4. To comply with the provisions of the law on
procurement.
5. To be honest and accurate during the process of
participation in bidding and while lodging protests or making complaints and
whistleblowing.
6. To pay compensation for loss and damage to
relevant parties pursuant to this Law if such loss and damage was caused by
their fault.
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8. To perform other duties in accordance with this
Law and other relevant laws.
Article 78. Responsibilities
of the evaluating organizations
1. To act independently and to comply with the
provisions of this Law and other relevant laws when conducting evaluations.
2. To request the investor and the Procuring Entity
to provide all relevant documents and data.
3. To maintain confidentiality of documents and
data throughout the process of evaluation.
4. To be honest, objective and impartial throughout
the process of evaluation.
5. To reserve their own opinion and to bear
liability for their evaluation report.
6. To pay compensation for loss and damage to
relevant parties pursuant to this Law if such loss and damage was caused by
their fault.
7. To provide information, relevant documents and
make explanations on observance with provisions in this Article at the request
of competent person, the investor, the Procuring Entity for recurrent
procurement, centralized procurement, inspection agencies, regulatory bodies on
bidding activities.
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Article 79. Responsibilities
of the Procuring Entity in participation in National E-procurement System
In addition to responsibilities defined in Article
75 of this Law, the Procuring Entity participating in National E-procurement
System shall have the following responsibilities:
1. To equip an information technology
infrastructure which meets requirements of bidding online;
2. To manage and not disclose secret key of the
granted digital certificate. In case where a Procuring Entity lost
digital certificate or detect the illegal use of digital certificate, it must
notify immediately to the provider of digital signature certification service
for cancelation and grant of new digital certificate; to expand the validity
period of digital certificate to ensure the digital certificate to be valid
during the process of bidding;
3. To be legally liable before law for accuracy and
honesty of information registered or published on National E-procurement System
when sign in by their digital signature;
4. To check and certify the publishing of their
information entered in National E-procurement System;
5. To comply with provisions of this Law and other
provisions of relevant legislation.
Article 80. Responsibilities
of the bidders and investors participating in National E-procurement System
In addition to responsibilities defined in Article
77 of this Law, the bidders and investors participating in National
E-procurement System also have the following responsibilities:
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2. To manage and not disclose secret key of the
granted digital certificate. To manage and not disclose secret key of the
granted digital certificate. If users of bidders or investors lost or detect
the third party’s use of their digital certificate, they must change the secret
key of digital certificate, cancel digital certificate under guide of the
provider of digital signature certification service; extend the validity term
of the digital certificate to ensure the digital certificate to be invalid
during the process of participation in bidding;
3. To be legally liable before law for accuracy and
honesty of information registered or published on National E-procurement System
when sign in by their digital certificate;
4. To be responsible for result when participating
in bidding online in case of having incident due to the network system at the
side of bidders or investors which make documents to be not able to be open or
not readable;
5. To comply with provisions of this Law and other
provisions of relevant legislation.
Chapter X
STATE MANAGEMENT OF
BIDDING ACTIVITIES
Article 81. Content of state
management of bidding activities
1. Promulgating, disseminating, propagating,
guiding and organizing implementation of legal documents and policies on
bidding.
2. Granting certificates of practicing in bidding
operation.
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4. Summarizing, assessing and reporting on the
status of implementation of bidding activities.
5. Administering on a nationwide basis the bidding
information system.
6. Monitoring, supervising, checking, inspecting,
resolving protests, complaints and whistleblowing regarding bidding, and
dealing with breaches of the law on procurement in accordance with this Law and
other relevant laws.
7. Conducting international cooperation on bidding.
1. The Government shall exercise unified
administration of bidding throughout the country.
2. The Prime Minister shall discharge the following
responsibilities:
a) Make decisions on the bidding issues stipulated
in article 73 of this Law for projects under his competence;
b) Approve plan on selection of bidders/investors
in special cases;
c) Direct the work of conducting inspections and of
resolving complaints, whistleblowing and dealing with breaches of the law in
accordance with this Law and the other relevant law;
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1. To be responsible before the Government for the
exercise of unified state administration of bidding activities nationwide as
prescribed in Article 81 of this Law.
2. In addition to provision at Clause 1 this
Article, the Ministry of Planning and Investment shall have the following
responsibilities:
a) To evaluate plans on selection of bidder/
investor in projects under the consideration and decision competence of the
Prime Minister;
b) To build up, manage, guide use of the national
bidding website and bidding newspaper;
c) To perform other tasks on bidding as assigned by
Government and the Prime Minister.
Ministries, ministerial equivalent bodies, and all
level people's committees shall, within their tasks and powers, have the following
responsibilities:
1. To exercise administration of bidding work;
2. To summarize, assess and report on the status of
implementation of bidding activities;
3. To resolve protests regarding bidding;
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5. To organize the capacity building of bidding
knowledge for cadres, civil servants and public employees engaged in bidding
work;
6. In cases where a minister, head of a ministerial
equivalent body or chairman of a people's committee at any level is
concurrently the authorized person, then such minister, head or chairman must
also discharge the responsibilities stipulated in article 73 of this Law; if
being investor, he must also discharge the responsibilities stipulated in
article 74 of this Law.
1. To manage and operate National E-procurement
System.
2. To maintain confidentiality of documents and
data throughout the process of bidding through net work in accordance with
regulations.
3. To supply services to guide investors, the
Procuring Entity, bidders/investors in bidding online, and registering,
publishing information on National E-procurement System.
4. To save information in serve of searching,
monitoring, supervising, checking, inspecting and auditing.
5. To publish conditions on information technology
infrastructure of users when participating in bidding online.
1. Dealing with exceptional situations means
settlement of cases arising in bidding which have not yet been stipulated
specifically clearly in law on procurement. The person making a decision
on dealing with any exceptional situation in bidding shall be responsible
before the law for his decision on the basis of ensuring the following
principles:
a) Ensuring competitiveness, fairness, transparency
and economic efficiency;
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2. Competencies for dealing with exceptional
situations in bidding:
a) For contractor selection to perform packages of
project, the person making decision to deal with exceptional situations is
investor. In complex cases, the investor may make decision on dealing
with exceptional situations after consulting the competent person;
b) For selection of tenders in recurrent
procurement, centralized procurement, the person making decision to deal with
exceptional situations is the Procuring Entity;
c) For investor selection, the person making
decision to deal with exceptional situations is competent person.
3. The Government shall elaborate on this Article.
1. Inspection of bidding activities:
a) Bidding inspections shall be carried out and
applied to organizations and individuals who are involved in bidding activities
specified in this Law;
b) The bidding Inspectorate shall be the
specialized inspectorate for the bidding sector. The organization and
operations of the bidding Inspectorate shall be performed in accordance with
the law on inspections.
2. Checks of bidding activities:
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b) Checks of bidding shall be conducted regularly
or irregularly under decisions on the heads of agencies competent to check.
3. Supervision of bidding activities:
Supervision of bidding activities is regular work
of the competent person aiming to ensure the observance of process of selection
of bidder and investor with this Law.
4. The Government shall elaborate on this Article.
The making of complaints and whistleblowing and the
resolution of such complaints and whistleblowing on bidding shall be performed
in accordance with the law on complaints and whistleblowing.
1. Corrupt practice.
2. Take advantage of positions, powers aiming to
interfere illegally in a bidding process.
3. Collusive practice, including the following
acts:
a) Agreeing on bidding withdrawal or withdrawal of
Letter of Bid already been submitted so that one party or parties in agreement
win bid;
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c) Agreeing on refusal for goods provision, refusal
for signing contract of Subcontractor, or forms which cause other difficulties
to parties which refuse to participate in agreement.
4. Fraudulent practice, including the following
acts:
a) Providing a wrong presentation intentionally or
falsifying information, dossier or documents of a party in bidding with the aim
to obtain financial benefits or other benefits or with the aim to avoid any
obligation;
b) Individuals who personally assess EOI responses,
Applications, Bids, Proposals, evaluate result of selection of short list,
result of selection of investor, bidder, intentionally providing wrong report
or untrue information falsifying the result of selection of bidders/investors.
c) Bidders/investors intentionally provide
dishonest information in EOI responses, Prequalification Application, Bids,
Proposals falsifying the result of selection of bidders/investors.
5. Interference practice, including the following
acts:
a) Destroying, cheating, changing, hiding proof or
reporting contrary to the truth; threatening, disturbing or suggesting with any
party with the aim to prevent the clarification of acts of handing, taking,
brokerage of bribes, fraudulence or conclusion with functional agencies,
authorized agencies in conducting supervisions, checks, inspections and audit;
b) Impeding bidder/investors, authorities in charge
of supervision, inspection and audit.
6. Inequality and intransparency, including the
following acts:
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b) Formulating and engaging in evaluation of
dossier of invitation for expression of interest, Prequalification Document,
Bid, Request for Proposals for a same procurement, project;
c) Engaging in evaluation of Bids, Proposals,
concurrently evaluate result of selection of bidder/ investor for a same
package, project;
d) Any individual of the Procuring Entity, investor
directly participates in the process of selection of bidder/ investor or
participate in expert groups, evaluation groups for result of selection of
bidder/ investor, or a head of competent regulatory body, investor, the
Procuring Entity for packages, projects in which his or her natural parent,
parent-in-law, spouse, natural child, adopted child, son or daughter-in-law or
sibling participates give their name in bidding or are representatives in law
of bidders/investors making the bid;
dd) Participation by a bidder in bidding for goods
procurement, works in a procurement for which such participant previously has
provided consulting services;
e) Provision of one's name as the bidder for a
procurement belonging to a project of an organization or body for which such
person worked, within a period of 12 months from the date on which such person
ceased to work for such body or organization;
g) Being consulting bidder for supervision
concurrently provide the verification consulting for the procurement which is
under supervision of bidder;
h) Application of a form of selection of bidder/
investor other than competitive bidding when the conditions stipulated in this
Law have not been satisfied;
i) Imposition of specific requirements regarding
brand names and country of origin of goods in Bid Documents applicable to procurement
for procurement of goods, for works and mixed packages when applying forms of
competitive bidding, limited bidding;
k) Division of a project, estimate for procurement
into packages contrary to the provisions in this Law with the aim to apply Direct
Contracting or limit participation of bidders.
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a) Contents of EOI requests, Prequalification
Documents, Bid Documents prior to the stipulated date for issuance of such documents;
b) Contents of EOI responses, Applications, Bids,
Proposals, notebooks and minutes of bid consideration meetings, comments and
assessments regarding each dossier of expression of interest, dossier of
prequalification participation, Proposals prior to the announcement of the
short list, results of selection of bidder/ investor;
c) Requests for clarification of Bids, Proposals
made by the Procuring Entity and responses of bidders/investors during the
process of assessment of Bids, Proposals prior to announcement of the results
of selection of bidder/ investor;
d) Reports by the Procuring Entity, by the expert
group, evaluation report, report of consulting bidder, report of relevant
specialized agencies during the process of selection of bidder/ investor prior
to announcement of the results of selection of bidder/ investor;
dd) Result of selection of bidder/ investor prior
to the stipulated time for announcement;
e) Other documents during the process of selection
of bidder/ investor which are stamped "confidential" as prescribed by
law.
8. Bid transfer including the following acts:
a) Contractor transfer to other contractor a part
of work under procurement at value of 10% or more (after deducting part of work
under responsibilities of Subcontractors) calculated on the signed Contract
Price;
b) The investor or supervision consulting accepts
for contractor to transfer work under duty of contractor, deducted part of work
under duty of Subcontractors as stated in contract.
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1. Any organization or individual who breaches the
law on procurement and other relevant law shall, depending on the nature and
seriousness of violation, be disciplined, sanctioned administratively or liable
to criminal prosecution; in case where violation of law on procurement causes
damages to benefits of state, the lawful rights and benefits of organizations
and individuals, the offender must pay compensation as prescribed by law.
2. In addition to being dealt with pursuant to the
provisions in clause 1 of this article, depending on the nature and seriousness
of violation, organizations and individuals breaching law on procurement shall
be also banned participation in bidding activities and put into list of
infringing contractors on National E-procurement System.
3. Competence of banning participation in bidding
activities is prescribed as follows:
a) The competent persons shall issue decisions on
banning participation in bidding activities for projects, estimate of
procurement under their management; case of serious violation, they may suggest
the Ministers, Heads of ministerial-level agencies, chairpersons of the
People’s Committees of provinces or central-affiliated cities to issue decision
on banning participation in bidding activities within management of Ministries,
sectors and localities or suggest the Minister of Planning and Investment to
issue decisions on banning participation in bidding activities nationwide;
b) The Ministers, Heads of ministerial-level
agencies, chairpersons of the People’s Committees of provinces or
central-affiliated cities shall issue decisions on banning participation in
bidding activities within management of their Ministries, sectors and
localities for cases suggested by the competent persons as prescribed at point
a this Clause;
c) The Minister of Planning and Investment shall
issue decisions on banning participation in bidding activities nationwide for
cases suggested by the competent persons as prescribed at point a this Clause.
4. Disclosure of actions against violations:
a) Decisions on actions against violations must be
sent to the dealt organizations and individuals, the relevant agencies and
organizations, concurrently be sent to the Ministry of Planning and Investment
for monitoring and summing up;
b) Decisions on actions against violations must be
published on bidding newspaper, National E-procurement System.
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1. When consider that lawful rights and benefits
are severely affected, the contractors and investors have rights:
a) To make protests to the Procuring Entity,
investor, competent person about matters during selection of bidder/ investor;
result of selection of bidder/ investor according to the process of resolution
of protests specified in Article 92 of this Law;
b) To institute court proceedings at any time,
including time of resolution of protests or after having result of resolution
of protests.
2. In case where bidders/investors instituted court
proceedings, they are not entitled to send protest to the Procuring Entity,
investor, or the competent person. If in the process of resolution of
protests, bidders/investors instituted court proceedings, the resolution of
protests shall be terminated immediately.
1. The process of resolution of protests regarding
matters during selection of bidders shall be performed as follows:
a) A contractor may send a written protest to the
investor for project; the Procuring Entity for recurrent procurement,
centralized procurement since happening matters and prior to having notice of
result of bidder selection;
b) The investor, the Procuring Entity shall be
responsible to have a document to resolve a protest made by a bidder within a
time limit of 07 working days from the date of receipt of the written protest
of the bidder;
c) If the investor, the Procuring Entity has no
document to resolve the protest or if the bidder disagrees with the result of
resolution of protest, the bidder shall have the right to lodge the protest
with the authorized person within 05 working days, as from the expired day of
replying or day of receiving document of resolution of protest made by investor,
the Procuring Entity;
d) The authorized person shall be responsible to
resolve a protest made by a bidder within a time limit of 15 working days from
the date of receipt of the written protest of the bidder.
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a) A bidder may send a written protest to the
investor for project; the Procuring Entity for recurrent procurement,
centralized procurement in period of 10 days after having notice of result of
bidder selection;
b) The investor, the Procuring Entity shall be
responsible to have a document to resolve a protest made by a bidder within a
time limit of 07 working days from the date of receipt of the written protest
of the bidder;
c) If the investor, the Procuring Entity has no
document to resolve the protest or if the bidder disagrees with the result of
resolution of protest, the bidder shall have the right to lodge the protest
with the authorized person and the Consulting Council for resolution of
protests within 05 working days, as from the expired day of replying or day of
receiving document of resolution of protest made by investor, the Procuring
Entity. The Minister of Planning and Investment shall establish a
Consulting Council for Resolution of Protests at central level; the Ministers,
Deputy Ministers of Ministerial agencies shall establish the Councils at
ministerial level; the heads of regulatory bodies on bidding at localities
shall establish the Councils at local level;
d) When receiving written protest, the Consulting
Councils for Resolution of Protests shall be entitled to request the bidders,
investors, the Procuring Entity and relevant agencies for information provision
in order to consider and have written report to the competent person about the
plan and content or replying protest within 20 days, after receiving the
written protest made by the bidder;
dd) In necessary case, the Consulting Councils for
Resolution of Protests shall, based on the written protest made by the bidder,
suggest the competent person to consider for temporary suspension of the bid.
If accepting, within 05 working days, after receiving the document of the
Consulting Council for Resolution of Protests, the competent person shall issue
a written notice about temporary suspension of the bid. The document of
temporary suspension of the bid must be sent to the investor, the Procuring
Entity, bidder within 03 working days after issuing the written notice about
temporary suspension of the bid. Duration of temporary suspension of the
bid shall be calculated from the date the investor, the Procuring Entity
receive the notice of temporary suspension until the competent person issues a
document to resolve protest;
e) The competent person shall issue decision on
resolution of protest regarding result of selection of bidder within 05 working
days, after receiving the written opinion of the Consulting Council for
Resolution of Protests.
3. The process of resolution of protests regarding
matters during selection of investors shall be performed as follows:
a) The investor may send a written protest to the
Procuring Entity as from happening events and prior to having notice of result
of selection of investor;
b) The Procuring Entity shall be responsible to
have a document to resolve a protest made by an investor within a time limit of
15 days from the date of receipt of the written protest of the investor;
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d) The authorized person shall be responsible to
resolve a protest made by an investor within a time limit of 05 working days
from the date of receipt of the written protest of the investor.
4. The process of resolution of protests regarding
result of selection of investor shall be performed as follows:
a) An investor may send a written protest to the
Procuring Entity in period of 10 days after having notice of result of investor
selection;
b) The Procuring Entity shall be responsible to have
a document to resolve a protest made by an investor within a time limit of 15
days from the date of receipt of the written protest of the investor;
c) If the Procuring Entity has no document to
resolve the protest or if the investor disagrees with the result of resolution
of protest, the investor shall have the right to lodge the protest with the
authorized person and the Consulting Council for resolution of protests within
05 working days, as from the expired day of replying or day of receiving document
of resolution of protest made by the Procuring Entity;
d) When receiving written protest, the Consulting
Councils for Resolution of Protests shall be entitled to request the investors,
the Procuring Entity and relevant agencies for information provision in order
to consider and have written report to the competent person about the plan and
content or replying protest within 30 days, after receiving the written protest
made by the investor;
dd) In necessary case, the Consulting Councils for
Resolution of Protests shall, based on the written protest made by the
investor, suggest the competent person to consider for temporary suspension of
the bid. If accepting, within 10 days, after receiving the document of the
Consulting Council for Resolution of Protests, the competent person shall issue
a written notice about temporary suspension of the bid. The document of
temporary suspension of the bid must be sent to the Procuring Entity, investor
within 05 working days after issuing the written notice about temporary
suspension of the bid. Duration of temporary suspension of the bid shall be
calculated from the date the Procuring Entity receives the notice of temporary
suspension until the competent person issues a document to resolve protest;
e) The competent person shall issue decision on
resolution of protest regarding result of selection of investor within 10 days,
after receiving the written opinion of the Consulting Council for Resolution of
Protests.
5. If a bidder or investor sends a written protest
directly to the competent person without observance with the processes of
resolution of protests specified in this Article, such written protest shall
not be considered for settlement.
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Resolution of disputes in bidding by courts shall
comply with law on civil procedures.
When instituting, parties have the right to request
the Court for immediate temporary suspension of bid disclosure; approval of
short list; approval of result of selection of bidder/ investor; conclusion in
a contract; performance of contract, and other temporary emergency measures as
prescribed by law.
1. This Law comes into forces as of July 01, 2014.
2. The Law on Procurement No. 61/2005/QH11 shall
cease to be effective on the effective date of this Law.
3. To annul section 1 Chapter VI of the
Construction Law No. 16/2003/QH11 and Article 2 of the Law amending and
supplementing a number of articles of the laws concerning capital construction
investment No. 38/2009/QH12.
The Government shall elaborate Articles, Clauses as
assigned in this Law./.
AUTHENTICATION
OF CONSOLIDATED DOCUMENT
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[1] The Law No. 03/2016/QH14 on amendment to
Article 6 and Annex 4 on the list of conditional business lines stipulated in
the Law on Investment has the following bases:
“Pursuant to the Constitute of the Socialist
Republic of Vietnam;
The National Assembly promulgates the Law on
amendment to Article 6 and Annex 4 on the list of conditional business lines
stipulated in the Law on Investment No. 67/2014/QH13.”.
The Law on Assistance for Small and Medium-Sized
Enterprises No. 04/2017/QH14 has the following bases:
“Pursuant to the Constitute of the Socialist
Republic of Vietnam;
The National Assembly promulgates the Law on
Assistance for Small and Medium-Sized Enterprises.”.
The Law on Architecture No. 40/2019/QH14 has the following
bases:
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The National Assembly promulgates the Law on
Architecture.”.
The Law on Public-Private Partnership Investment
No. 64/2020/QH14 has the following bases:
“Pursuant to the Constitute of the Socialist
Republic of Vietnam;
The National Assembly promulgates the Law on
Public-Private Partnership Investment.”.
[2] This clause is amended by point a clause 1
Article 99 of the Law on Public-Private Partnership Investment No. 64/2020/QH14,
coming into force as of January 1, 2021.
[3] This clause is amended by point b clause
1 Article 99 of the Law on Public-Private Partnership Investment No.
64/2020/QH14, coming into force as of January 1, 2021.
[4] This clause is amended by point c clause
1 Article 99 of the Law on Public-Private Partnership Investment No.
64/2020/QH14, coming into force as of January 1, 2021.
[5] This clause is amended by point d clause
1 Article 99 of the Law on Public-Private Partnership Investment No. 64/2020/QH14,
coming into force as of January 1, 2021.
[6] This clause is amended by point dd
clause 1 Article 99 of the Law on Public-Private Partnership Investment No.
64/2020/QH14, coming into force as of January 1, 2021.
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[8] This point is amended by clause 2
Article 33 of the Law on Assistance for Small and Medium-Sized Enterprises No.
04/2017/QH14 dated June 12, 2017 of the National Assembly, coming into force as
of January 1, 2018.
[9] This clause is amended by point g clause
1 Article 99 of the Law on Public-Private Partnership Investment No.
64/2020/QH14, coming into force as of January 1, 2021.
[10] This clause is annulled by point a
clause 3 Article 2 of the Law No. 03/2016/QH14 on amendment to Article 6 and
Annex 4 on the list of conditional business lines stipulated in the Law on
Investment, coming into force as of January 1, 2017.
[11] The phrase “hoặc được tuyển chọn” is
annulled by clause 4 Article 39 of the Law on Architecture No. 40/2019/QH14,
coming into force as of July 1, 2020.
[12] This clause is annulled by point h
clause 1 Article 99 of the Law on Public-Private Partnership Investment No.
64/2020/QH14, coming into force as of January 1, 2021.
[13] Article 2 of the Law No. 03/2016/QH14
on amendment to Article 6 and Annex 4 on the list of conditional business lines
stipulated in the Law on Investment, coming into force as of January 1, 2017,
reads as follows:
“Article 2
1. This Law enters into force from January 01,
2017, except for clause 2 of this Article.
2. The following conditional business lines take
effect from July 01, 2017:
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b) Manufacture, assembly and import of
automobiles.
The Government shall stipulate transitional
provisions applicable to entities operating in lines of business specified in
this clause.
3. The following articles and clauses shall be
abrogated:
a) Clause 1 Article 19 of the Law on Public
Procurement No.43/2013/QH13;
b) Article 151 of the Law on Construction
No.50/2014/QH13.”.
Articles 34 and 35 of the Law on Assistance for
Small and Medium-Sized Enterprises No. 04/2017/QH14 dated June 12, 2017, coming
into force as of January 1, 2018, read as follows:
“Article 34. Entry in force
This Law enters into force from January 1, 2018.
Article 35. Grandfather clause
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2. From the day on which this Law comes into
force, the commitments of the SME development fund before this Law comes into
force shall be carried on unless otherwise agreed by parties.”.
Articles 40 and 41 of the Law on Architecture No.
40/2019/QH14, coming into force as of July 1, 2020 read as follows:
“Article 40. Entry in force
This Law enters into force from July 1, 2018.
Article 41. Grandfather clause
1. Regulations on management of urban planning and
architecture already approved under the provisions of the Law on Urban Planning
prior to the entry into force of this Law may be continue to exist till end of
December 31, 2021.
2. Construction architectural design tests or
selections governed under the provisions of the Law on Construction with the
selection plan already approved prior to the entry into force of this Law may
be continued to exist till end of December 31, 2021.
3. Construction practicing certificate granted
to a person providing construction architectural design and construction
architectural design evaluation services under law on construction may be valid
till end of the expiry date, unless otherwise prescribed in clause 4 of this
Article.
4. If construction practicing certificate granted
a person providing construction architectural design and construction
architectural design evaluation services expires within the period from July 1,
2020 to end of December 31, 2020, it may be continued to exist till end of
December 31, 2020; in case of being lost or damaged, it will be reissued in
accordance with law on construction.”.
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“Article 100. Entry in force
1. This Law enters into force from January 1,
2021, except for clause 6 Article 101 of this Article.
2. The Government and competent regulatory
authorities shall elaborate on Clauses and Articles set forth in this Law.
Article 101. Grandfather clause
1. The projects in the sectors
prescribed in clause 1 of Article 4 in this Law and meeting the minimum total
investment requirements prescribed in clause 2 of Article 4 herein shall be
subject to the following regulations:
a) In case where an investment
policy decision has been made by a competent authority before the effective
date of this Law, the next steps shall be taken in accordance with this Law.
In case where the investment policy needs to be adjusted, regulations
laid down in Article 18 herein shall be observed;
b) In case where the
feasibility study report has been approved by a competent authority before the
effective date of this Law, next steps shall be taken in accordance with this
Law without having to go through the project approval procedures as per this
Law; the contents specified in Clause 6 of Article 23 of this Law must be
additionally approved in case investor selection has not yet been organized;
c) As for projects falling into
the cases specified at Points a and b of this Clause, if the state capital
contribution ratio in a PPP project is greater than the rate specified in
Clause 2 of Article 69 of this Law, any adjustment in the state capital ratio
shall not be required.
2. Projects that are not in the
sectors specified in Clause 1 of Article 4 of this Law or fail to meet the
minimum total investment requirements specified in Clause 2 of Article 4 of
this Law, and projects without the prequalification requirement in which
investor prequalification results have not been approved yet or the invitations
for bid or requests for proposal have not yet been issued, until the effective
date of this Law shall be halted.
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a) In case where their investor
prequalification results have been approved before the effective date of this
Law, they may be continued in accordance with this Law;
b) In case where the invitation
for bid or the request for proposal has been issued before the effective date
of this Law but the bid is closed after December 31, 2020, the bid solicitor
shall be responsible for extending the bid closing time to improve the
invitation for bid or the request for proposal in accordance with this Law
provided that such action does not result in any adjustment of the approved
investment policy and feasibility study report;
c) In case where the results of
investor selection are available, but the contract negotiation and conclusion
happens after the effective date of this Law, the contracting authority shall
negotiate and sign the contract, based on the results of investor selection,
bidding documents, proposal, invitation for bid and request for proposal in
accordance with this Law without resulting in any adjustment in the approved
investment policy and feasibility study report.
4. Project contracts signed
before the effective date of this Law may continue to be executed under
contractual terms and conditions.
5.
From the effective date of this Law, the transition of Build - Transfer (BT)
contracts shall be as follows:
a)
Projects where bidding documents or requests for proposal have not been issued
yet shall be suspended; in case where bidding documents or requests for
proposal have already been issued, they shall be continued based on the
invitations for bid, requests for proposals and legislative regulations at the
time of issuance of these invitations for bid or requests for proposal;
b)
With regard to projects where investor selection results are obtained before
the effective date of this Law, the contracting authority shall negotiate and
sign the contract, based on the results of investor selection, bidding
documents, proposals, invitations for bid and requests for proposal, and
legislative regulations valid at the time of issuance of invitations for bid or
requests for proposal;
c)
For projects which have signed contracts before the effective date of this Law,
project execution and payment under regulations of BT contracts and legislative
regulations valid at the time of contract conclusion shall be continued;
d)
Implementation of new BT projects shall be disapproved.
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7.
The Government shall elaborate on this Article.”.