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THE
MINISTRY OF PLANNING AND INVESTMENT
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SOCIALIST
REPUBLIC OF VIET NAM
Independence
- Freedom Happiness
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No.
01/2004/TT-BKH
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Hanoi,
February 2, 2004
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CIRCULAR
66/2003/ND-CP
OF JUNE 12, 2003 ON AMENDMENTS AND SUPPLEMENTS TO A NUMBER OF ARTICLES OF THE
BIDDING REGULATION
Pursuant to Article 4 of the
Governments Decree No. 66/2003/ND-CP of June 12, 2003 (hereinafter called Decree
66/CP for short) on amendments and supplements to a number of articles of the
Bidding Regulation promulgated together with the Governments Decree No.
88/1999/ND-CP of September 1, 1999 and Decree No. 14/2000/ND-CP of May 5, 2000
(hereinafter called Decree 88/CP and Decree 14/CP for short), and on the basis
of the Prime Ministers opinions guiding the implementation of Decree 66/CP (in
Document No. 1336/CP-CN of October 2, 2003), the Ministry of Planning and
Investment hereby guides the implementation of a number of contents of Decree
66/CP as follows:
Part 1
LEGAL CAPACITY OF
CONTRACTORS, FINANCIAL INDEPENDENCE
OF CONTRACTORS
(Prescribed
at Point 10, Clause 2, Article 1 of Decree 66/CP)
I. CIVIL
LEGAL CAPACITY AND CIVIL ACT CAPACITY OF CONTRACTORS
The civil legal capacity and
civil act capacity of domestic contractors shall be determined under the
provisions of the Civil Code of the Socialist Republic of Vietnam while the
civil legal capacity and civil act capacity of foreign contractors shall be
determined according to the laws of the countries of their nationalities.
Specifically, the following conditions must be met:
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2. For contractors being foreign organizations
Having lawful operation
registration papers, granted by competent bodies of the countries of the
contractors nationalities.
3. For contractors being
individuals
Vietnam,
granted by competent bodies, or lawful passports (for foreign individuals);
II. FINANCIAL INDEPENDENCE
OF CONTRACTORS
A contractor shall be considered
financially independent if meeting fully the following conditions:
1. Being an independent
cost-accounting unit;
2. Sharing no common
economic benefits with concerned organizations and individuals:
The contractors lawful
representatives have no relatives, who are their spouses, parents, children or
blood siblings, participating in the bid solicitors or the teams of experts
and/or consultants involved in evaluating bids or evaluating the bidding
results of the bidding packages which the contractors participate in.
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TECHNICAL EVALUATION
ACCORDING TO THE CRITERIA "SATISFACTORY" AND
"UNSATISFACTORY" APPLICABLE TO GOODS PROCUREMENT OR CONSTRUCTION
(Prescribed
in Clause 9, Article 1 of Decree 66/CP)
I. GENERAL
PROVISIONS
The evaluation of bids for goods
procurement or construction shall comply with the provisions of Article 30 and
Article 41 of the Bidding Regulation promulgated together with Decree 88/CP,
which are guided in Chapter II and Chapter III, Part Four of Circular No. 04/2000/TT-BKH
of May 26, 2000 of the Ministry of Planning and Investment (hereinafter called
Circular 04 for short).
The application of the method of
technical evaluation according to the criteria "satisfactory" and
"unsatisfactory" must be clearly stated in the bidding dossiers and
shall be effected in the following cases:
1. Small-sized bidding
packages;
2. Bidding packages with
clearly and precisely identified requirements on their technical
characteristics and parameters.
II.
ELABORATION OF TECHNICAL EVALUATION STANDARDS
The elaboration of technical
evaluation standards should comply with the provisions of Point 2 of Clause 12
and Point 2 of Clause 15, Article 1 of Decree 66/CP, covering the following
contents:
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The determination of the list of
general evaluation standards should be based on the nature of bidding packages
under the provisions of Point 2, Clause 12, Article 1 of Decree 66/CP (for
goods procurement bidding packages) and of Point 2, Clause 15, Article 1 of
Decree 66/CP (for construction bidding packages).
For general evaluation
standards, only the criteria "satisfactory" and
"unsatisfactory" shall be used.
2. Elaboration of detailed
evaluation standards
In order to have the bases for evaluating
bids according to each of the general evaluation standards, it is necessary to
elaborate detailed standards for each of the general evaluation standards.
For detailed evaluation
standards, depending on the characteristics of bidding packages, apart from the
criteria "satisfactory" and "unsatisfactory" prescribed for
the basic requirements of bidding dossiers, the criterion
"acceptable" may be applied to non-basic requirements, which,
however, must not exceed 30% of the total number of detailed evaluation
standards for one general evaluation standard.
3. Setting of the satisfactory
level:
- A general evaluation standard shall be considered
"satisfactory" when:
+ All of its detailed evaluation
standards are evaluated as "satisfactory" or;
+ The detailed evaluation
standards for basic requirements must be evaluated as "satisfactory,"
while those for non-basic requirements may be evaluated as
"satisfactory" or "acceptable," depending on each bidding
package.
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- A bid which is evaluated as satisfactory" according to
general evaluation standards shall be considered technically satisfactory
(basically meeting the requirements of the bidding dossiers). When a general
evaluation standard is evaluated as "unsatisfactory," the concerned
bid shall be considered technically unsatisfactory.
- The detailed evaluation standards
which are permitted to apply the criterion "acceptable" must be
clearly stated in the process of negotiating and finalizing the contracts so as
to guaranty the feasibility as compared with the requirements of bidding
dossiers.
III.
EVALUATION ACCORDING TO THE CRITERIA "SATISFACTORY" AND
"UNSATISFACTORY"
The evaluation according to the
criteria "satisfactory" and "unsatisfactory" must be based
on the evaluation standards specified in the bidding dossiers and it is
forbidden to omit, add or alter any contents of such evaluation standards,
1. To evaluate only bids which
have passed the preliminary evaluation under the guidance in Section I, Chapter
II (for goods procurement bidding packages) and Section I, Chapter III (for
construction bidding packages), Part Four of Circular 04.
2. The financial and commercial
evaluation shall be conducted only for short-listed contractors that have been
assessed as technically satisfactory (according to the criteria
"satisfactory" and "unsatisfactory") and under the provisions
of Clause 2, Section II, Chapter II (for goods procurement bidding packages)
and Clause 2, Section II, Chapter III (for construction bidding packages), Part
Four of Circular 04.
IV.
ILLUSTRATIVE EXAMPLES
Examples to illustrate the
elaboration of evaluation standards and the technical evaluation of bids
according to the criteria "satisfactory" and
"unsatisfactory" are shown in Appendix I to this Circular (not
printed herein).
Part 3
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(Prescribed
in Clause 5, Article 1 of Decree 66/CP)
The selection of contractors to
perform EPC bidding packages may be conducted in any of the appropriate
contractor-selecting forms prescribed in Article 4 of the Bidding Regulation
promulgated together with Decree 88/CP on the condition that it must be
incorporated in the bidding plans approved by competent persons as the basis
for implementation.
In cases where the form of
public bidding or restricted bidding is applied to select contractors for EPC
bidding packages, the implementation process must comply with the provisions of
Article 20, Article 22 and Article 33 of Decree 88/CP and Clause 5, Article 1
of Decree 66/CP, using the 2-step bidding mode defined in Clause 3, Article 5
of Decree 88/CP. Accordingly, the EPC bidding shall be organized in the
following process:
I. BIDDING
PREPARATION
1. Pre-qualification
The pre-qualification must be
organized for EPC bidding packages each valued at VND 300 billion or more. The
pre-qualifying process shall comply with the provisions of Article 23 and
Article 34 of Decree 88/CP and Chapter II, Part One of Circular 04, with
attention being paid to the following:
- The
minimum score required for passing the pre-qualification must be set to be
equal to 70% or more of the total score.
- The minimum score required for
each criterion: experience, technical capability and financial capability, must
be set to be equal to 50% or more of the score of such criterion in each of the
engineering (E), procurement of equipment and supplies (P) and construction (C)
domains.
c/ Pre-qualification invitation
notices must be published under the provisions of Clause 2, Section I, Part 4
of this Circular, with the following principal contents:
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- General introductions on the
bidding package;
- Instructions for inquiry into
the pre-qualification invitation dossiers;
- Instructions on the time and
place for receiving pre-qualification invitation dossiers.
2. Bidding dossiers
2.1. Bidding dossiers shall be
prepared on the following bases:
2.2. Bidding dossiers for
stage 1 and stage 2 include the following principal contents:
The
elaboration of standards for evaluation of bids shall comply with the
provisions of Clause 5, Clause 12 and Clause 15, Article 1 of Decree 66/CP,
with reference to the guidance at Point a, Point b and Point c, Clause 3,
Section I, Chapter II, Part Three of Circular 04, covering the following
specific contents:
The standards for technical evaluation of
EPC bidding packages must comply with the provisions of Clause 5, Article 1 of
Decree 66/CP, specifically as follows:
- The evaluation standards must
cover all three contents, engineering (E), procurement of equipment and
supplies (P) and construction (C), including the setting of the minimum
technical score required .
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On the basis of the above-said
principles, the elaboration of the standards for technical evaluation of EPC
bidding packages shall be conducted with either of the following two methods:
Method 1: To set the minimum
technical score required (E, P and C) to be equal to
90% of the total technical score. This method shall be applied when each of the
contents (E, P and C) of EPC bidding packages is subject to high technical
requirements.
Method 2: To set the minimum
technical score required for each content (E, P and C), to be not necessarily
equal to 90% of the total technical score, which, however, must comply with the
provisions on the minimum scores required for bidding packages purely
engineering (E), purely supplies and equipment procurement (P) or purely
construction (C ). Accordingly, in normal cases, the required minimum score
required for one content (E, P or C) must be set not to be lower than 70%;
whereas in the cases involving high technical requirements, the required
minimum score must be set to be equal to 90% of the total technical score.
Concurrently, the standards for
general technical evaluation of all three contents E, P and C shall be also
determined. The coefficient of correlation between the contents E, P and C (for
example, E accounting for 30%, P, 50% and C, 20% of the total general technical
score) shall be determined depending on the characteristics of each specific
bidding package, provided that the required minimum score must be equal to 90%
of the total general technical score.
This method shall apply when not
every content E, P and C is subject to high technical requirements.
The contents of detailed
evaluation standards for each of the contents E, P and C should be based on the
relevant provisions of Decree 88/CP and Circular 04.
The method of evaluating the bids satisfaction of
technical requirements shall be used to compare and classify contractors. In
cases where the evaluation standards are determined by method 1, contractors
that satisfy technical requirements for EPC bidding packages are those with
their bids gaining, after being evaluated according to each of the contents E,
P and C, at least 90% of the total technical score .
In cases where the evaluation standards are prescribed by method 2, contractors
that satisfy technical requirements for EPC bidding packages are those with
their bids getting at least 90% of the total general technical score.
The elaboration of standards on
a single plane for determining evaluation prices shall comply with the
provisions of Point 3, Clause 12 (for goods procurement bidding packages) and
Point 3, Clause 15 (for construction bidding packages), Article 1 of Decree
66/CP.
- The reference articles on designing consultancy,
management, operation and transfer;
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- Quality,
- Environmental requirements;
- Other requirements (if any).
- Bidding application form;
- Bid form;
- Bidding guaranty form;
- Contract performance guaranty
form;
- Advance guaranty form;
- Form of declaration of partners
and/or sub-contractors;
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- Form of
- Other forms (if any).
3. Bid invitation
Bid invitation shall be made in
the form of bid invitation notices for bidding packages subject to public
bidding without pre-qualification or bid invitation letters sent to contractors
participating in restricted bidding or to pre-qualified contractors (in cases
where pre-qualification has been organized). Bid invitation notices shall
comply with the provisions of Clause 3, Section I, Part 4 of this Circular. Bid
invitation letters must be sent at least 7 days before the issuance of bidding
dossiers.
II.
ORGANIZATION OF BIDDING AND BID CONSIDERATION
1. Stage 1:
Bid solicitors shall issue stage-1 bidding dossiers either with
some charge or free of charge to contractors participating in the biddings or
to pre-qualified contractors.
After issuing the stage-1 bidding dossiers, bid solicitors shall
have to clarify their contents at the requests of contractors or at pre-bidding
meetings held by themselves. Stage-1 bidding dossiers may be clarified through
direct or indirect exchanges provided that such exchanges must be recorded in
writing and be sent to all contractors participating in the biddings.
After receiving the stage-1 bidding dossiers, contractors shall
prepare their bids (without price offers) properly in terms of content and form
as required by the stage-1 bidding dossiers and submit them within the time
limits prescribed in the stage-1 bidding dossiers.
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Immediately
after the closing of the bidding, bid solicitors must organize the public
opening of bids under the provisions of Clause 9, Article 1 of Decree 66/CP and
Section VI, Chapter III, Part One of Circular 04.
Basing
themselves on the requirements stated in the stage-1 bidding dossiers, bid
solicitors shall meet with contractors to reach agreement on the technical
requirements and standards so that the bid solicitors prepare stage-2 bidding
dossiers.
2. Stage 2:
2.1. The stage-2 steps of from
issuing bidding dossiers to opening bids shall be the same as from step a/ to
step e/ of stage 1. Stage-2 bidding dossiers should be precise in their
technical, financial and commercial requirements so that the contractors having
participated in stage 1 can prepare official bids.
2.2. Evaluation of stage-2 bids
Basing themselves on the
evaluation standards set in the stage-2 bidding dossiers, bid solicitors shall
evaluate bids in the following order and on the following principles: Bids
shall be examined and evaluated at the subsequent step only after they have
been evaluated as satisfactory at the preceding step. The evaluation of bids
shall unfold in the following order:
To
check the bids legal and administrative validity, the contractors experience
and capability, their satisfaction of the prerequisites stated in the bidding
dossiers,
Step
1: Technical evaluation to select contractors that basically satisfy the
requirements of the bidding dossiers. The technical evaluation shall be
conducted on the basis of a score scale. In the process of evaluation, the bid
solicitors may request contractors to explain unclear and unreasonable contents
in their bids, such as those related to quantities, unit prices and other
contents. Such explanations must be recorded in writing and signed for
certification by the two parties. The short list of contractors that satisfy
technical requirements must be considered and officially approved in writing by
the project owners.
Step 2: Financial and commercial
evaluation to determine evaluation prices: The financial and commercial
evaluation shall comply with the provisions of Clause 2, Section II, Chapter
II, and Clause 2, Section II, Chapter III, Part Four of Circular 04, with
attention being paid to the following:
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- For irrational unit prices (or
costs) constituting bid prices which are too low compared with the approved
prices of the bidding packages, the contractors must clearly justify them with
plausible grounds.
- The standards put to a single
plane for determining the evaluation prices should cover the following
principal contents:
+ The useful life;
+ The designed capacity;
+ The quality standards of
products;
+ The quality of equipment and
supplies to be used for construction and installation;
+ Operation and maintenance
costs;
+ The origins of equipment and
supplies;
+ Financial and commercial
conditions;
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+ Other contents.
The number of contents to be
selected and put to a single plane shall depend on each bidding package.
III.
SUBMISSION FOR APPROVAL, EVALUATION, APPROVAL AND PUBLICIZATION OF BIDDING
RESULTS, NEGOTIATION AND FINALIZATION OF CONTRACTS
The submission for approval,
evaluation, approval, publicization of bidding results, negotiation and
finalization of contracts shall comply with the provisions in Part Five of
Circular 04.
Bid-winning contractors shall
have to properly perform the signed contracts, including also the use of
sub-contractors as stated in their bids. Where sub-contractors must be changed
due to objective reasons, the approval of the project owners shall be required.
Part 4
BIDDING BULLETINS AND
WEBSITES
(Prescribed
in Clause 18, Article 1 of Decree 66/CP)
This Part guides the publication
of bidding information on the States bidding bulletin and website. Apart from
the scope and subjects specified in this Part, the ministries, branches and
localities may, depending on their specific conditions, decide on the
publication of bulletins and the building of websites on their respective
biddings as well as the contents to be published therein.
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The to be-published contents
stated in this Section shall apply to important national projects, group-A and
group-B projects under the Construction and Investment Management Regulation,
joint-venture projects and business cooperation contracts (as prescribed at
Point b, Clause 2, Article 2 of Decree 88/CP), which have been granted
investment licenses by the Ministry of Planning and Investment, including:
1. Bidding plans: The
registration of notification of bidding plans shall be effected according to
Form 1, Appendix II to this Circular (not printed herein).
2. Pre-qualification invitation
and pre-qualification results: The registration of notification of
pre-qualification invitation and pre-qualification results shall be effected
according to Form 2, Appendix II and Form 4, Appendix II to this Circular (not
printed herein).
The publication of pre-qualification
invitation notices shall apply to bidding packages with pre-qualification,
which belong to the projects stated in Section I of this Part.
3. Bid invitation: The
registration of bid invitation notices shall be effected according to Form 3,
Appendix II to this Circular (not printed herein).
4. The list of contractors
participating in restricted biddings: The registration of notification of the
list of contractors participating in restricted biddings shall be effected
according to Form 4, Appendix II to this Circular (not printed herein).
5. The short list of contractors
participating in consultancy biddings: The registration of notification of the
short list of contractors participating in consultancy biddings shall be
effected according to Form 4, Appendix II to this Circular (not printed
herein).
6. The results of selection of
contractors: Information on the results of selection of contractors, covering
bidding results, contractor appointment results, direct procurement and
self-execution, shall be published according to Form 5, Appendix II to this
Circular (not printed herein).
Particularly for information
stated in Clauses 3, 4, 5 and 6, Section I of this Part, for the immediate
future, only information on consultancy bidding packages valued at VND 5 billion
or more and on goods procurement and construction bidding packages valued at
VND 20 billion or more, which belong to the projects stated in Clause 1,
Section I of this Part, shall be published.
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8. Legal documents on bidding,
which are currently effective, newly promulgated or being drafted, including:
a/ Legal documents on bidding,
promulgated by the National Assembly, the National Assembly Standing Committee,
the Government or the Prime Minister;
9. The Investment
and Planning Ministrys reports on review of the bidding work nationwide: To be
made according to Forms 7 and 8, Appendix II to this Circular (not printed
herein).
10. The ministries, branches and
localities reports on review of the bidding work: To be made according to Forms
7 and 8, Appendix II to this Circular (not printed herein).
11. Local bidding activities,
including bidding activities of the ministries, branches and localities, with
the following principal contents:
12.
The databases on contractors, consisting of the list of contractors and
essential information on contractors, which have been registered, modified or
added on the database.
13. Other related contents.
II. PERIODS
OF PUBLICATION OF BIDDING INFORMATION
1. The bidding bulletin
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- Bid invitation notices.
- The list of individuals and organizations
violating the Bidding Regulation;
- The list of contractors banned
from participating in biddings;
- Information on the handling of
violations of the Bidding Regulation.
- Bidding plans;
- Pre-qualification results;
- The list of contractors
participating in restricted biddings;
- The short list of contractors
participating in consultancy biddings;
- The results of selection of
contractors;
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- Reports on review of the
bidding work;
- Local bidding activities;
- Information on contractors
newly registered on the database on contractors.
In case of necessity, some kinds of bidding information may
be published in one or many issues.
2. The bidding website
- Pre-qualification invitation notices;
- Bid invitation notices.
- Bidding plans;
- Pre-qualification results;
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- The short list of contractors
participating in consultancy biddings;
- The results of selection of
contractors;
- Information on the handling of
violations of the Bidding Regulation;
- Legal documents on bidding,
which are being drafted;
- Reports on review of the
bidding work;
- The list of individuals and organizations violating the
Bidding Regulation;
- The list of contractors banned
from participating in biddings;
- Legal documents on bidding,
which are currently in force;
- The database on contractors;
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In case of necessity, some kinds of bidding information may
be published for a number of days or constantly.
III.
INFORMATION-SUPPLYING AGENCIES
The agencies which supply
information for the States bidding bulletin and website must ensure the time
schedule prescribed in Section V of this Part and must bear responsibility before
law for the truthfulness and accuracy of the data they supply.
Where the information-supplying
agencies fail to comply with the following regulations, the violating
organizations and individuals shall be handled under the provisions of Clause
26, Article 1 of Decree 66/CP.
The information-supplying
agencies include:
1. The Ministry of Planning and
Investment:
Information supplied by the
Ministry of Planning and Investment for the States bidding bulletin and website
shall cover the contents specified at Point a of Clause 8, Clause 9 and Clause
13, Section I of this Part.
2. The ministries, branches,
ministerial-level agencies, Government-attached agencies as well as the Peoples
Committees of the provinces and centrally-run cities (hereinafter referred collectively
to as the ministries, branches and localities):
Information supplied by the
ministries, branches and localities for the States bidding bulletin and website
shall cover the contents specified in Clause 7, at Point b of Clause 8, in
Clause 10 and Clause 11, Section I of this Part.
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Information supplied by the
project owners for the States bidding bulletin and website shall cover the
contents specified in Clauses 1, 2, 3, 4, 5, 6 and 7, Section I of this Part.
4. Contractors:
Contractors shall supply
information through their registration under the provisions in Part 5
"Database on contractors" of this Circular.
IV. FORMS
OF INFORMATION SUPPLY
The supply of bidding
information to the Ministry of Planning and Investment for publication in the
States bidding bulletin and website shall be as follows:
1. Compulsory form: To send the
original papers directly or by post to the Ministry of Planning and Investment
(at No. 2 Hoang Van Thu street,
Hanoi).
2. Other forms (to be used
temporarily for publicization preparation):
The
information-receiving agencies shall not bear responsibility for any
congestion, loss or other reasons in the information-transmitting process. They
shall publish information according to regulations.
V. TIME
LIMITS FOR SUPPLY OF INFORMATION
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2.
VI. OTHER
PROVISIONS
1. Distribution of the bulletin:
The States bidding bulletin,
managed by the Ministry of Planning and Investment, shall be distributed nationwide
according to law provisions. All organizations and individuals that wish to
have the bulletin may buy it at paper distribution points of the post service
or through direct subscription with the Ministry of Planning and Investment.
2. Access to information on the
bidding website:
All organizations and
individuals may search and access information on the States bidding website
(managed by the Ministry of Planning and Investment) in service of their
professional work, The States bidding website can be accessed at the Planning
and Investment Ministrys website address: http://www.mpi.gov.vn (the bidding
section).
3. Information publication
costs:
Bidding information specified in
Section I of this Part shall be published free of charge in the States bidding
bulletin and website.
The expenses for information
preparation, processing, publication, circulation, storage and management and
other expenses shall be covered with the non-business and administration
funding source belonging to the general budgets of the agencies which manage
the States bidding bulletin and website. The management and use of the funding
for the operation of the States bidding bulletin and website shall comply with
the current financial regime.
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DATABASE ON CONTRACTORS
(Prescribed
in Clause 7, Clause 18 and Clause 22, Article 1 of Decree 66/CP)
I.
RESPONSIBILITIES OF THE INVOLVED PARTIES FOR THE DATABASE ON CONTRACTORS
1. The Ministry of Planning and
Investment
The Ministry of Planning and
Investment is the agency that publishes and manages the general database on
contractors nationwide, receives and processes the registration dossiers of
contractors managed by, established under decisions of, or licensed for
investment or operation by, the ministries or branches, and foreign contractors
wishing to participate in bidding activities in Vietnam.
The Ministry of Planning and Investment shall have to build the infrastructure
for the wide-area network, compile the applied softwares and provide technical
guidance to ensure the smooth operation of the database on contractors.
2. The provincial/municipal
Planning and Investment Services
The Planning and Investment
Services of the provinces and centrally run cities shall have to receive and
process the registration dossiers of contractors established under decisions
of, or licensed for investment or operation by, local competent agencies, then
transmit appropriate information onto the database on contractors under the
guidance of the Ministry of Planning and Investment.
3. Contractors
Contractors who participate in
the contractor-selecting process must be those named in the Planning and
Investment Ministry-managed database on contractors (under the provisions of
Clause 7, Article 1 of Decree 66/CP). For contractors that are banned from participating
in biddings forever (under the provisions of Point 2(h) of Clause 26, Article 1
of Decree 66/CP), their names shall be deleted from the database on
contractors.
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1. Dossiers of first-time
registration
- The paper of registration of information for the
database on contractors (according to Form 1a, Appendix III to this Circular,
not printed herein);
- A notarized copy of the
establishment decision (for units having no business registration), the
investment license, the business registration certificate or another legal
document of equivalent value.
- The paper of registration of information for the
database on contractors (according to Form 2a, Appendix III to this Circular
(not printed herein));
- A notarized copy of the
A foreign
- The paper of registration of information for the database on
contractors (according to Form 1a, Appendix III to this Circular (not printed
herein));
- A notarized copy of the
Contractors who are foreign
individuals shall make their registration dossiers in two sets, one in
Vietnamese and the other in English, of equal legality.
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- The form of registration of
modified and/or added information for the database on contractors (to use Form
1b, Form 2b or Form 3b, Appendix III to this Circular as appropriate, not
printed herein);
- A legal document as evidence
of the modified or added information on the contractor.
3. Forms of registration
The registration for entry into
the database on contractors shall take the following forms:
- Sending
dossiers:
+ By post the original sets of
the registration dossiers to the receiving agencies defined in Clause 1 and
Clause 2, Section I, Part 5 of this Circular; or
+ By submitting the original
sets of the registration dossiers directly to the receiving agencies defined in
Clause 1 and Clause 2, Section I, Part 5 of this Circular.
- Addresses for receiving
dossiers:
+ The address of the Ministry of
Planning and Investment, No. 2, Hoang Van Thu street, Hanoi.
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-
Submitting dossiers:
+ Sending by fax, or
+ Sending by e-mail, or,
+ Sending in the
information-receiving section in the bidding website.
- Addresses for receiving
dossiers:
+ The receiving address of the
Ministry of Planning and Investment:
* The fax number: 84-4-8230452
(the fax number of the Public Procurement Department, the Ministry of Planning
and Investment).
* The e-mail address:
[email protected] (the e-mail address of the Public Procurement Department,
the Ministry of Planning and Investment).
* The information-receiving
section in the website of the Ministry of Planning and Investment:
http://www.mpi.gov.vn (the bidding section).
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4. Process of registration for
entry into the database on contractors
a/ Contractors shall compile and
submit their dossiers in the registration forms as prescribed in Clause 1 and
Clause 3, Section II, Part 5 of this Circular.
b/ Where dossiers are submitted
in the compulsory form and determined to be valid, within 5 days after
receiving complete dossiers (excluding holidays as prescribed by law), the
receiving agencies shall fill in the certificates of registration of data on
contractors (select and fill in Form 1c, Form 2c or Form 3c, Appendix III to
this Circular (not printed herein), as appropriate), then send them by post to
the contractors according to their registered addresses, and at the same time
transmit the data already properly registered by the contractors for
publication on the database on contractors under the guidance of the Ministry
of Planning and Investment.
Contractors who have their names
officially published on the Planning and Investment Ministry-managed database
on contractors shall be eligible (under the provisions of Point c, Clause 7,
Article 1 of Decree 66/CP) for participating in the contractor-selecting
process in biddings held nationwide in the domains which they have registered.
c/ Where dossiers are submitted
in the compulsory form but their contents are invalid (failing to comprise all
papers as prescribed in Clause 1, Section II, Part 5 of this Circular, or
having some contents declared insufficiently or some contradictory
information), within 3 days as from the date of receiving the dossiers
(excluding holidays as prescribed by law), the dossier-receiving agencies must
issue written requests for verification and supplementation of dossiers
(according to Form 4, Appendix III to this Circular, not printed herein), and
send them by post to contractors according to their registered addresses.
d/ Where dossiers are submitted
in the temporary forms, within 2 days as from the date of receiving the
dossiers (excluding holidays as prescribed by law), the dossier-receiving
agencies shall transmit the information already registered by the contractors
for publication by the Ministry of Planning and Investment in the temporary
data section of the database on contractors.
The Ministry of Planning
and Investment shall have a separate guidance on the process of coordination in
handling and publishing information on contractors between the Ministry of
Planning and Investment and the provincial/municipal Planning and Investment
Services.
5. Modification and addition of
the contractors already registered data
When they need to modify and/or
add their registered data, contractors should compile and submit dossiers in
the registration forms and process as provided for in Clause 2, Clause 3 and
Clause 4, Section II, Part 5 of this Circular.
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The contractors modified and
added information, after being published on the Planning and Investment
Ministrys database on contractors, shall be new legal information on
contractors.
III.
FUNDING FOR PUBLICATION OF INFORMATION ON THE DATABASE ON CONTRACTORS
All information on contractors
shall be published free of charge on the Planning and Investment Ministrys
database on contractors.
The expenses for processing,
transmitting, publishing, storing and managing information on contractors shall
be covered with the non-business and administration funding source and be
incorporated in the general budget estimates of the agencies in charge of
managing the database on contractors. The management and use of the funding for
the operation of the database on contractors shall comply with current
financial regulations.
Part 6
EXAMINATION OF
PERFORMANCE OF THE BIDDING WORK
(Prescribed
in Clause 24, Article 1 of Decree 66/CP)
Examination of the performance
of the bidding work shall be conducted with respect to organizations and
individuals involved in the contractor-selecting process of bidding packages
belonging to projects subject to the application of the Bidding Regulation
(hereinafter called the examined subjects for short).
I.
DECENTRALIZATION OF EXAMINATION OF THE PERFORMANCE OF THE BIDDING WORK
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b/ To examine
the performance of the bidding work of the projects with investment therein
being decided by the Prime Minister and group-A projects with investment
therein being permitted by the Prime Minister, joint-venture projects and
business cooperation contracts (specified at Point b, Clause 2, Article 2 of
Decree 88/CP) to which the Ministry has granted investment licenses;
2. The ministries (other than
the Ministry of Planning and Investment), the ministerial-level agencies, the
Government-attached agencies, and the Peoples Committees at all levels
(hereinafter called the ministries, branches and localities for short):
a/ To decide on, and organize,
the examination of the performance of the bidding work by units under their
respective management and by projects executed under their decisions (including
projects assigned and authorized to their subordinate levels), joint-venture
projects and business cooperation contracts (specified at Point b, Clause 2,
Article 2 of Decree 88/CP) which they and the authorized industrial park- and
export-processing zone-managing boards have granted investment licenses, projects
of joint-stock companies (specified at Point b, Clause 2, Article 2 of Decree
No. 88/CP) under their management;
II. FORMS OF
EXAMINATION OF THE PERFORMANCE OF THE BIDDING WORK
The examination of the
performance of the bidding work shall be conducted in the following two forms:
1. Regular examinations:
Regular examinations mean
planned examinations decided by competent persons of the examining agencies on
a quarterly, biannual or annual basis of bidding activities carried out by the
subjects falling under the scope of examination.
In order to be proactive in
their examining work, the examining agencies should work out annual examination
plans covering the following contents:
2. Irregular examinations:
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III.
CONTENTS OF EXAMINATION OF THE PERFORMANCE OF THE BIDDING WORK
1.
b/ Examining the formulation of bidding plans and the
contractor-selecting process (including the approved bidding plans, the bidding
process, legal grounds for implementation, reasons for non-application of
public bidding, bid-winning results, the value of the signed contracts, the
situation of the contract performance and other related results);
2.
Depending on the specific
conditions, the irregular examination of the bidding work shall focus on the
following contents:
- Legal
grounds for organizing the selection of contractors: Legal documents such as
investment decisions (or investment licenses); decisions to approve the bidding
plans, bidding dossiers, designs and total cost estimates or cost estimates
(for construction bidding), the list of contractors participating in restricted
bidding, and other related contents;
- The valid status of the bid
solicitors, the groups of bidding experts and consultants; decisions on their
establishment, functions and tasks;
- The valid status of
contractors: Having their names registered in the database on contractors,
their civil legal capacity and civil act capacity.
- Experiences and capabilities of the selected contractors (especially for
bidding packages with their bid-winning prices too low as compared with the
prices of the bidding packages, bidding packages for which contractors are
appointed);
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- On the bid-winning prices
(particularly for the bid-winning prices which are too low as compared with the
prices of the bidding packages), the prices of the signed contracts, types of
contracts and other related contents;
- Specific problems, inquiries
of bid-soliciting individuals or collectives, of contractors (if any), and
solutions thereto;
IV. PROCESS OF EXAMINING THE PERFORMANCE OF THE BIDDING WORK
The examination-organizing
agencies shall conduct examinations in the following order:
1. Examination preparation:
2.
Examination:
The examination teams shall conduct
examinations for no more than 30 days according to the approved detailed
examination plans. When conducting examinations, the examination teams shall
collect and study materials and meet with the examined subjects before making
reports on examination results.
Before submitting the reports on
examination results to the examining agencies for consideration, the
examination teams should consult the examined subjects.
3. Handling of examination
results:
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The examining agencies shall
have to oversee the overcoming of problems pointed out in the conclusions on
the examination result reports.
V.
RESPONSIBILITIES AND POWERS OF EXAMINATION-ORGANIZING AGENCIES
1. To organize the
examination of the performance of the bidding work under the provisions in
Sections III and IV of this Part.
2. To monitor, sum up and
report to the Prime Minister on the situation of regular and unexpected
examinations of specific cases as requested by the Prime Minister. For the
ministries, branches and localities, they shall, apart from submitting the
examination reports to the Prime Minister, concurrently send them to the
Ministry of Planning and Investment for monitoring and sum-up.
3. To consider and decide
on the forms of handling violations according to their competence on the basis
of the proposals of the examination teams or transfer such proposals to the
functional agencies for handling according to law provisions.
VI.
RESPONSIBILITIES AND POWERS OF EXAMINATION TEAMS
1. To conduct
examinations according to the contents of the approved detailed plans and
Clause 2, Section IV of this Part;
2. To make examination them for approval;
3. To take responsibility
before law for their opinions presented in the examination result reports;
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VII.
RESPONSIBILITIES AND POWERS OF THE EXAMINED SUBJECTS
1. To comply with the
requests included in the detailed examination plans, such as preparing reports,
supplying materials, arranging meetings to work with the examination teams.
2. To give comments on
the related contents in the draft reports made by the examination teams;
3. To be entitled to
reserve their opinions in writing and send them to the examination teams and
the examining agencies.
VIII. OTHER
CONTENTS
1.
- The examination teams shall
complete the examination result reports immediately after the examination
termination but within 10 days for submission to the examination-deciding
agencies for consideration and decision.
- The ministries, branches and
localities shall submit to the Prime Minister the reports on the results of irregular
examinations within 15 days after concluding the examinations (for cases
requested by the Prime Minister).
- The ministries, branches and
localities shall make review reports and submit them to the Prime Minister
(concurrently send them to the Ministry of Planning and Investment) every six
months (by the end of July of the same year at the latest) and every year (by
the end of January of the subsequent year at the latest) on the situation of
the examination work.
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2. Examination expenses
The expenses for activities of examining the performance of the
bidding work include necessary expenses in service of the examination work,
such as:
- Travel expenses and
working-trip expenses of examination team members;
- Expenses for printing
materials;
- Other expenses (for
specialists, meetings and other activities).
The expenses for the examination of the performance of the
bidding work shall be covered with the non-business and administration funding
sources, incorporated in the general budget estimates of the agencies which
examine the performance of the related bidding work.
The management and use of the
funding for examining activities shall comply with the current financial
regime.
Part 7
HANDLING OF VIOLATIONS
OF BIDDING LEGISLATION
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The handling of organizations
and individuals that commit violations of the bidding legislation shall be
organized as follows:
I. FOR CONTRACTORS
1. The persons with competence
to approve the results of selection of contractors shall have the competence to
issue, and take responsibility for, violation-handling documents, clearly
stating the names of the violating organizations or individuals, the
violations, the violation-handling forms and levels (excluding the cases
involving criminal components, which shall be handled by functional bodies
according to law provisions). Violation-handling documents must be sent to the
involved parties and their superior managing agencies, the bid solicitors, the
project owners and their superior agencies, the Ministry of Planning and
Investment (the agency that manages the States bidding bulletin and website),
and other concerned administrative and law agencies.
2. For contractors that violate
the bidding legislation, have their violations published in the States bidding
bulletin and website for many times, the Ministry of Planning and Investment
shall base itself on the provisions of Point 2(h), Clause 26, Article 1 of
Decree 66/CP to issue notices in the bidding bulletin or website on the ban of such
contractors from participating in biddings for 1 year, 2 years, 3 years, or for
ever.
3. The sums of money used as
bidding guaranty which are forfeited from the contractors that have violated
the Bidding Regulation shall be remitted into the State budget according to law
provisions.
II. FOR BID
SOLICITORS, CONCERNED ORGANIZATIONS AS WELL AS INDIVIDUALS
Competent persons shall issue
violation-handling documents, clearly stating the names of the violating
organizations or individuals, the violations, and the violation-handling forms
and levels. Violation-handling documents shall be sent to the involved parties
and their superior managing agencies, the Ministry of Planning and Investment
(the agency that manages the States bidding bulletin and website), and other
concerned administrative and law agencies.
Part 8
OTHER CONTENTS
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I.
IMPLEMENTATION OF THE CONTRACTOR-APPOINTING FORM
The contractor-appointing
process shall be implemented similarly to the process of bidding for a bidding
package. This is one of the contractor-selecting forms meeting the requirements
of the bid solicitors. Bidding packages for which contractors are appointed
must be approved by competent persons in the bidding plans. For appointment of
contractors, the project owners must set requirements on the bidding packages
(similarly to bidding dossiers) while the units proposed to act as contractors
shall base themselves on such requirements to prepare implementation measures
and put forward financial and commercial proposals (similar to bids) for
evaluation by the project owners according to evaluation standards. If the
units are evaluated as eligible, competent persons shall consider and decide on
the results of appointment of contractors for bidding packages valued at VND 1
billion or more (for goods procurement and construction) or valued at VND 500
million or more (for consultancy), the project owners shall decide on the
results of appointment of contractors for other bidding packages belonging to
all projects. Then, the project owners shall negotiate and sign contracts with
the appointed contractors.
II. OWNERS
REPRESENTATIVES
Under the provisions of Point 5,
Clause 19, Article 1 of Decree No. 66/CP, the responsibility to reach agreement
on the related contents on the biddings for joint-venture projects, business
cooperation contracts or joint-stock projects prescribed at Point b, Clause 2,
Article 2 of Decree 88/CP shall rest with the owners representatives as
provided for by law.
At present, pending the issuance
of documents clearly defining owners representatives, the agencies with
responsibility to reach agreement on the contents specified at Point 5, Clause
19, Article 1 of Decree 66/CP are the managing boards of the State corporations
or the owners of the State enterprises participating in the joint-venture or
joint-stock projects, in compliance with the decentralization provided for in
the Investment and Construction Management Regulation, and the opinions of the
Prime Minister in Document No. 1336/CP-CN of October 2, 2003.
The time limit for reaching
agreement on the bidding plans and the results of selection of contractors shall
not exceed 20 days as from the date of receipt of complete dossiers.
III.
PUBLICIZATION OF EVALUATION STANDARDS
1. Under the provisions of
Clause 12 and Clause 15, Article 1 of Decree 66/CP, the evaluation standards
for goods procurement or construction bidding packages must be stated in the
bidding dossiers. This provision shall also apply to consultant selection
bidding packages. Pre-qualification invitation dossiers (containing the
pre-qualification evaluation standards) shall be compiled and approved by the
project owners.
2. Pre-qualification invitation
dossiers (containing the pre-qualification evaluation standards) shall be
compiled and approved by the project owners.
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The approval of contracts shall
rest with the project owners under the provisions of Point 2, Clause 10,
V.
EVALUATION WORK
Under the provisions of Point
3(c), Clause 19, Article 1 of Decree 66/CP, the presidents of the Peoples
Committees of the provinces or centrally-run cities shall have competence to approve
the bidding plans, approve, or authorize the approval of, bidding dossiers, and
approve the results of selection of contractors for all bidding packages of
State budget-funded projects falling under their investment-deciding
competence. To ensure compliance with Point 2(b), Clause 20, Article 1 of
Decree 66/CP, the provincial/municipal Planning and Investment Services shall
assist the provincial/municipal Peoples Committee presidents in evaluating the
bidding plans and the results of selection of contractors for bidding packages
under the
For the evaluation of bidding
plans, bidding dossiers and the results of selection of contractors belonging
to the ministries or branches, the evaluating units may be the Planning and
Investment Departments or assigned units under the competence of the ministers,
the heads of the ministerial-level agencies or Government-attached agencies.
VI.
RELATIONSHIPS BETWEEN THE DECREES AS WELL AS THIS CIRCULAR AND
CIRCULAR 04
Where there are contradictory
contents in Decree 88/CP, 14/CP and 66/CP, the contents of Decree 66/CP shall
apply.
In the course of implementation,
if Circular 04 contains contents contradictory to those of Decree 66/CP and
this Circular, the provisions of Decree 66/CP and this Circular shall apply.
VII. TIME
LIMITS FOR PUBLICIZATION OF INFORMATION IN THE BIDDING BULLETIN AND WEBSITE AND
THE DATABASE ON CONTRACTORS
The publicization of bid
invitation notices and the registration of data on contractors in the Planning
and Investment Ministry-managed bidding bulletin and website and database on
contractors as a basis for bidding shall take implementation effect as from the
time to be officially announced later by the Ministry of Planning and
Investment. Prior to this time, the notification of invitation for pre-qualification
and for bids as well as the setting of the bidding participation conditions
shall be implemented as currently implemented.
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The bidding inspection shall
comply with Clause 25, Article 1 of Decree 66/CP. Bidding inspection shall
constitute part of the inspection work performed by the Ministry of Planning
and Investment according to its functions specified in the Governments Decree
No. 61/2003/ND-CP of June 6, 2003 on the functions, tasks, powers and
organizational structure of the Ministry of Planning and Investment. The
bidding inspection work shall be guided by the Ministry of Planning and
Investment in a separate circular.
IX. FORMS OF
BIDDING DOSSIERS
The forms of bidding dossiers
prescribed in Article 4 of Decree 66/CP shall be issued by the Ministry of
Planning and Investment in a separate document. Pending the issuance of such
document, the forms of bidding dossiers to be used shall be the forms guided in
Appendices I, II and III to Circular No. 04/2000/TT-BKH of May 26, 2000 of the
Ministry of Planning and Investment.
Part 9
IMPLEMENTATION EFFECT
This Circular takes effect 15
days after its publication in the Official Gazette. Should any problems arise
in the course of implementation, the ministries, branches and localities as
well as concerned units are requested to send their opinions thereon to the
Ministry of Planning and Investment for timely consideration, supplementation
and perfection as appropriate.
MINISTER OF
PLANNING AND INVESTMENT
Vo Hong Phuc