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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:
06/2010/TT-BKH
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Hanoi,
March 09, 2010
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CIRCULAR
DETAILING THE MAKING OF CONSULTANCY SERVICE BIDDING DOSSIERS
THE GOVERNMENT
Pursuant to November 29, 2005
Bidding Law No. 61/2005/QH11;
Pursuant to the June 19, 2009
Law Amending and Supplementing a Number of Articles of Laws Concerning Capital
Construction Investment;
Pursuant to the Government's
Decree No. 85/ 2009/ND-CP of October 15, 2009, guiding the implementation of
the Bidding Law and the selection of construction contractors under the
Construction Law;
Pursuant to the Government's
Decree No. 116/2008/ND-CP of November 14,2008, defining the functions, tasks, powers
and organizational structure of the Ministry of Planning and Investment;
The Ministry of Planning and
Investment details the making of consultancy service bidding dossiers as
follows:
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1. This Circular applies to
organizations and individuals in charge of making bidding dossiers for
consultancy service bid packages under projects regulated by the Bidding Law
when applying the form of domestic or international open bidding and restricted
bidding to select institutional consultancy contractors.
2. For consultancy service bid
packages under ODA-funded projects, if donors agree, the model bidding dossier
issued together with this Circular may be applied with modifications in
accordance with bidding regulations in treaties to which the Socialist Republic
of Vietnam is a contracting party or international agreements which have been
signed by competent agencies or organizations of the Socialist Republic of
Vietnam.
Article 2.
Model consultancy service bidding dossier
The model consultancy service
bidding dossier issued together with this Decision has the following principal
contents:
Part One. Instructions for
contractors
Chapter I. Requirements on
bidding procedures
Chapter II. Bid data sheet
Chapter III. Evaluation criteria
Part Two. Technical proposal
template
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Part Four. Terms of reference
Part Five. Contractual
requirements
Chapter IV. General contractual
terms Chapter V. Specific contractual terms Chapter VI. Model contract
When applying this model
dossier, organizations and individuals that make bidding dossiers shall base
themselves on the sizes and characteristics of bid packages to set requirements
on the principles of fair competition, equality, transparency and economic
efficiency; refrain from imposing conditions to restrict the participation of
contractors or create advantages for one or several contractors, thus causing
unfair competition.
In this model dossier, contents
in italic are for instructive and illustrative purposes which may be specified
by makers of bidding dossiers based on the size and characteristics of each bid
package. If it is necessary to make changes or additions to contents printed in
regular font, makers of bidding dossiers shall give written explanations and
ensure compliance with the bidding law; investors shall take responsibility
before law for those changes and additions.
Article 3.
Organization of implementation
1. This Circular takes effect on
May 1, 2010, and replaces the Planning and Investment Ministry's Decision No.
1048/2008/QH-BKH of August 11, 2008, providing the model consultancy service
bidding dossier.
2. Ministries, ministerial-level
agencies, government-attached agencies, other central agencies, People's
Committees at all levels and concerned organizations and individuals shall
implement this Circular.
Ministries, ministerial-level
agencies, government-attached agencies, other central agencies and
provincial-level People's Committees shall, within the scope of their management,
guide in detail some contents of this Circular (when necessary) while ensuring
compliance with this Circular.
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MINISTER
OF PLANNING AND INVESTMENT
Vo Hong Phuc
Form 8
CURRICULUM VITAE OF CONSULTANT
The tentative position:
_______________________________________________
Name of consultancy contractor:
______________________________________________________________
Full name:
________________________________________________________
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Date of birth:
______________________________________________________
Number of the working years at
the Company: ____________________ Nationality ____________________
Participating in professional
organizations: _____________________________________________________
_________________________________________________________________
Describing in details the
assigned tentative tasks: _________________________
_________________________________________________________________
Capability:
[Describing in details
experiences and the training courses already participated to satisfy the
assigned work scope. Describing in details the assigned tasks in the performed
projects, duration and location of implementation]
___________________________________________________________________
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[Clearly stating the related
diplomas, organizations issuing diplomas, training duration and type of
diplomas]
___________________________________________________________________
Experiences in work:
[Describing the undertaken
positions, the employing units, the working duration at each
position. In part of describing experiences, it should clearly
state the assigned tasks specifically in each project and name/address of
investor/ the bidding party]
___________________________________________________________________
Foreign languages:
[Clearly state the
qualification of foreign languages]
____________________________________________________________________
Confirm:
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____,
date____ ___ ____
Declarant
[Signature, position and full name]
Note:
- Each consultant in list stated
at the Form 7A, Form 7B must declare in this Form.
- The consultancy contractor may
enclose copies of labor contracts; copies of graduation diplomas, professional
practicing certificates of the stated-above consultants (if necessary).
Part 5.
CONTRACT REQUIREMENTS
Chapter 4.
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Article 1.
Interpretation of terms
In this contract, the terms below
are construed as follows:
1. “Contract” means the written agreement between the investor
and the contractor, including appendices and enclosed documents.
2. “Contractual price” means the total amount of money agreed
between the investor and the contractor under the contract.
3. “Investor” means the organization defined in the Specific
terms.
4. “Advisory contractor” means the organization that provides
advisory services for the investor under this contract and is defined in the
Specific terms.
5. “Sub-contractor” means any contractor that concludes an
agreement or a contract with the main contractor to perform part of the
intended works in the bid package.
6. "Effective date of the contract” is the date specified
in Specific terms.
7. “Days” are continuous calendar days, including weekends and
holidays.
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Article 2.
Applied laws and language
The contract is regulated by
Vietnamese law. The language used in this contract is Vietnamese, unless
otherwise prescribed by Specific terms.
Article 3. Use
of documents and information related to the contract
1. The advisory contractor must not reveal the contents of
this contract, which is signed with the investor or the investor’s
representative, to any persons other than those related to the performance of this
contract without the investor’s prior written consent. Information shall be
provided by advisory contractor for the persons related to the performance of
this contract in accordance with the confidentiality practice and to an extent
sufficient to perform the contract.
2. The advisory contractor must not use any of the information
and documents mentioned in Clause 1 of this Article for any purposes other than
the performance of this contract without the investor’s written consent.
3. The documents mentioned in Clause 1 of this Article are
under the investor’s ownership. At the investor’s request, the advisory
contractor must return such documents to the investor (including the
photocopies) after their contractual obligations have been fulfilled.
Article 4.
Copyright
The advisory contractor is totally
responsible for any damage caused by a third party’s complaint against
violation of intellectual property rights related to the advisory services
provided for the investor by the advisory contractor.
Article 5. Type
of contract
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Article 6.
Payment
The investor shall pay the advisory
contractor in accordance with Specific terms.
Article 7.
Contractual price
The contractual price is agreed between
the advisory contractor and the investor during the negotiation of this
contract according to the successful bid, and is specified in the contract.
Article 8.
Amendments to the contract
1. If amendments to this contract are necessary during its
performance, the party that receives the request must consider giving specific
requirements for such contracts by the deadline stipulated in Specific terms so
that both parties can negotiate and adopt amendments to the contract. Such
amendments may cause the contractual price to increase or reduce, or change the
contract duration. Therefore, the corresponding contents of the contract must
also be adjusted to these amendments.
2. The amendments to the contract must be conformable with the
type of contract and the conditions in Article 5 of Specific terms.
Article 9.
Personnel[1]
The contractor must mobilize all
experts to carry out the works put forward in the bid package, unless otherwise
agreed with the investor. If a change in the personnel is necessary according
to Section 28 of Chapter I, the advisory contractor must appoint equivalent or
better persons in a timely manner.
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Article 10.
Sub-contractor
1. The contractor may sign contracts with the sub-contractors
enumerated in the list of sub-contracts in Specific terms to perform part of
the works mentioned in the bid package. The employment of sub-contractors does
not change the contractor's obligations. The contractor is responsible to the
investor for the volume, quality, progress of the works carried out by
subcontractors, and the fulfillment of their other obligations.
The replacement or addition of
sub-contractors beyond the list of contractors mentioned in Specific terms is
subject to the investor’s approval.
2. The value of the works carried out by the sub-contractors
mentioned in Clause 1 of this Article must not exceed the proportion (%) of
contractual price stipulated in Specific terms.
3. The contractor must not employ sub-contractors to perform
the works other than those to be carried out by sub-contractors in the bid
package.
4. Other criteria for sub-contractors in Specific terms.
Article 11.
Compensation for breaches of contract
Except for the force majeure events
prescribed in Article 15 of this Chapter, if the advisory contractor fails to
perform part or all of the contractual works by the agreed deadline, the
investor may deduct an amount of compensation from the contractual price, which
is proportional to the percentage (%) of the works carried out behind schedule
according to the Specific terms, every week or another agreed period of time
until the works are completed. The deduction must not exceed the maximum level
stipulated in Specific terms. When the deduction reaches the maximum
level, the investor may consider terminating the contract according to Article
13 of this Chapter.
Article 12.
Deadline extension
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Article 13.
Contract termination due to advisory contractor’s fault
1. The investor is entitled to terminate the contract in part
or in full by sending a written notification to the advisory contractor if the
advisory contractor fails to carry out the works mentioned in Specific terms.
2. The investor may send the notification of contract
termination to the advisory contractor when the investor finds that the
advisory contractor goes into bankruptcy without incurring any damages. Such
termination does not cause the investor to lose their benefits under the
contract and the law.
3. When the investor terminates the contract in part or in
full according to Clause 1 of this Article, the investor may sign a contract
with another contractor to perform the terminated part of the contract. The
advisory contractor shall pay compensation to the investor for the extra costs
of the performance of the terminated. However, the advisory contractor must
keep performing the part that is not terminated.
Article 14.
Contract termination due to investor’s fault
The advisory contractor is entitled
to terminate the contract in part or in full by sending a written notification
to the investor if the investor fails to carry out the works mentioned in
Specific terms.
Article 15.
Force majeure events
1. In this contract, force majeure events are those beyond the
reasonable control and prediction of either party, such as war, riot, strike,
blaze, natural disaster, flooding, epidemic, quarantine, or bad weather.
2. When a force majeure event occurs, the affected party must
immediately notify the other party of such event and its reasons. A written
confirmation of the force majeure event issued by a local competent authority
must also be sent to the other party.
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3. Either party that fails to perform their duties due to the
force majeure event shall not pay damages, face penalties, or have the contract
terminated.
Any dispute between both parties
derived from the occurrence or prolongation of the force majeure event shall be
settled in accordance with Article 17 of this Chapter.
Article 16.
Dispute settlement
1. The advisory contractor and the investor must settle every
dispute between them through negotiation in an amicable manner.
2. If the dispute cannot be settled this way by the deadline
stipulated in Specific terms, either party may request the settlement of the
case using the method stipulated in Specific terms.
Article 17.
Notifications
1. Any notification sent by either party to the other must be
made in writing and sent to the addresses provided in Specific terms.
2. The notification shall come into force from the day it is
received by the other party or on the effective date written on the
notification itself, whichever is later.
Chapter 5.
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Article
Clause
Contents
1
3
Investor:
____________________ [Name of the investor]
4
Advisory contractor:
________________ [Name of the successful contractor]
6
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[Depending on the nature
of the contract e.g. “This contract comes into force from the day on which it
is signed by both parties”, etc.]
2
- Applied law: _______________
- Language in the contract: _______________ [The language
in the invitation to bid, if it is not Vietnamese]
5
Type of contract:
_____________________________
[Write the type of
contract conformable with approved bidding plan]
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- Method of payment: _______________________
[Depending on the nature
and requirements of the contract]
Advisory contractor may
be paid in cash, by credit note, or by wire transfer.
If a deposit must be paid
to the advisory contractor, the rate, deadline, and method of returning the
deposit must be specified. The advisory contractor may be requested to
present the deposit guarantee using form 17 in Chapter VI]
- Currency and payment deadline
Currency: _______________ [Consistent
with the currency used during the bidding and contract conclusion].
Payment deadline:
_____________ [The payment may be made without delay or after a period of
time after the advisory contractor present sufficient documents] The
documents compulsory for payment must be specified]
8
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The investor’s or contractor’s
request for amendments to the contract is responded after: _______________
[Write the number of days
from the receipt of the request for amendments]
2
Amendments to the contract:
The result and contractual
price must not be changed if the contract is all-inclusive. If the contract
is a fixed-term contract or additional works beyond the invitation to tender
are necessary, the scope of regulation must be specified]
10
1
List of sub-contractors:
____________ [In accordance with the list in the bid package]
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2
Value of the works carried
out by sub-contractors does not exceed ______ of the contractual
price [Depending on the scale and nature of the contract, provided the
sub-contractors do not carry out every work of the contract]
4
Other demands on
subcontractors: _______________________ (if any)
11
Deduction rate: __________ %
per week (or day, month, etc.)
[the rate depends on the nature
and requirements of the contract]
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13
1
Contract termination due to
advisory contractor’s fault:
[Enumerate the advisory
contractor’s breaches that lead to the contract termination by the investor]
14
Contract termination due to
investor’s fault:
[Enumerate the investor’s
breaches that lead to the contract termination by the advisory contractor]
16
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Dispute settlement:
______________________
[Specify the time and method
of dispute settlement depending on the nature and requirements of the
contract, including the time for filing the petition, the dispute settlement
body, the budget for dispute settlement, etc. It is recommended that the
dispute be settled by arbitration].
17
1
Mailing addresses:
- Investor’s address: ____________
Phone number:
_____________________________
Fax:
__________________________________
E-mail:
________________________________
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Phone number: _____________________________
Fax:
__________________________________
E-mail:
________________________________
Chapter 6.
CONTRACT FORM
The contract is either
all-inclusive, partial, or fix-term depending on the nature and requirements of
the contract.
In case the contract is consists
of multiple sub-contracts, the investor may combine the forms of all-inclusive,
partial or fix-term advisory service contracts to draw up a mixed contract.
The General terms must not be
changed. The Specific terms must be set according to the italic guidelines].
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ADVISORY SERVICE
CONTRACT
(Applied to all-inclusive or partial contract)
[Location and date]
Contract number: ____________
Contract name: ____________________
Project name: ____________________
- Pursuant to 1 ___________ [the Civil Code No.
33/2005/QH11 dated June 14, 2005 of the National Assembly];
- Pursuant to 1 ___________ [the Law on Bidding
No. 61/2005/QH11 dated November 29, 2005 of the National Assembly];
- Pursuant to 1 __________ [the Law on
amendments of the laws on to investment in infrastructural development No.
38/2009/QH12 dated June 19, 2009 of the National Assembly];
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- Pursuant to the Decision No. _____ dated _____________ on
approval for bidding result of _________ [name of the contract] No. ______________
dated __________ ;
- Pursuant to the record on contract negotiation and
conclusion signed by the investor and the successful contractor on
_________________;
We, the undersigned, represent the
parties to this contract, including:
Investor
Investor’s name: ____________
Representative: _________________________________________________________
Position:
______________________________________________________________
Address:
______________________________________________________________
Phone number: _________________________________________________________
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E-mail:
_______________________________________________________________
Account number: _______________________________________________________
Tax code:
_____________________________________________________________
Letter of authorization No.
_____________ dated _____________ (if any)
Advisory contractor
Contractor’s name:
____________________ [successful contractor]
Representative: _________________________________________________________
Position:
______________________________________________________________
Address:
______________________________________________________________
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Fax:
__________________________________________________________________
E-mail:
_______________________________________________________________
Account number: _______________________________________________________
Tax code:
_____________________________________________________________
Letter of authorization No.
_____________ dated _____________ (if any)
Both parties agree to enter into an
advisory service contract with the following terms and conditions:
Article 1.
Subjects of the contract
Subjects of this contract are the
services enumerated in Appendix A “Reference terms”
Article 2.
Contract components
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1. The contract paper (together with Appendices);
2. Record on contract negotiation and conclusion;
3. Decision on approval for bidding result;
4. Specific terms;
5. Specific terms;
6. Bid package and its written explanations (if any);
7. Invitation to bid and additional documents (if any);
8. Other documents (if any).
Article 3.
Responsibilities of advisory contractor
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2. Mobilize and assign the personnel enumerated in Appendix B
“Advisory contractor’s personnel” to perform services;
3. Send reports to the investor in accordance with Appendix C
“Advisory contractor’s obligation to report”;
4. Fulfill other responsibilities and obligations mentioned in
Specific terms and Specific terms of the contract.
Article 4.
Responsibilities of investor
1. The investor must pay the advisory contractor in accordance
with Article 5 of this contract, fulfill other responsibilities and obligations
mentioned in Specific terms and Specific terms of the contract.
2. Mr./Ms. ___________ is appointed by the investor to
coordinate the activities under this contract.
Article 5.
Contractual price, payment deadline and payment method
1. Contractual price: ________________________ [Write the
amount in number, in words, and currency. The contractual price is expressed as
a percent of construction or work if the contract is a partial contract. If
multiple currencies are used, the value must be written both in numbers and in
words e.g. 1 million USD + 3 billion VND (one million US dollars and three
billion Vietnam dong)]. This amount is inclusive of all costs, interest, and
taxes payable by the advisory contractor.
2. Payment deadline:
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___________ [Write the
value/percentage and currency] when the investor receives and accepts the draft
report made by the advisory contractor.
___________ [Write the
value/percentage and currency] when the investor receives and accepts the
official report.
Total amount payable _______________
[Write the value and currency]
[The payment deadline may be
adjusted to the reports specified to Appendix C].
3. Method of payment:
The method of payment is specified
in Article 6 Specific terms
Article 6.
Type of contract
[Write the type of contract in
accordance with Article 5 of Specific terms: all-inclusive or partial contract]
Article 7.
Contract duration
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Article 8.
Effect
1. This contract takes effect from ___________ [Write the
effective date of the contract in accordance with Clause 6 Article 1 of
Specific terms].
2. This contract expires after it is finalized by both
parties.
This contract is made into _______
copies. The investor keeps ____ copy(ies), the advisory contractor keeps ____
copy(ies) with equal value.
Legal representative of advisory contractor
[full name, position, signature,
seal]
Legal representative of investor
[full name, position, signature,
seal]
APPENDIX
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Appendix B: Advisory contractor’s
personnel
Appendix C: Advisory contractor’s
obligation to report
Form 16
ADVISORY SERVICE
CONTRACT
(applied to fixed-term contract)
[Location and date]
Contract number: ____________
Contract name: ____________________
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- Pursuant to 1 ___________ [the Civil Code No.
33/2005/QH11 dated June 14, 2005 of the National Assembly];
- Pursuant to 1 ___________ [the Law on Bidding
No. 61/2005/QH11 dated November 29, 2005 of the National Assembly];
- Pursuant to 1 __________ [the Law on
amendments of the laws on to investment in infrastructural development No.
38/2009/QH12 dated June 19, 2009 of the National Assembly];
- Pursuant to 1 ____________ [the Government's
Decree No. 85/2009/NĐ-CP dated October 15, 2009 on guidelines for the Law on
Investment and selection of building contractors under the Law on Construction];
- Pursuant to the Decision No. _____ dated _____________ on
approval for bidding result of _________ [name of the contract] No. ______________
dated __________ ;
- Pursuant to the record on contract negotiation and
conclusion signed by the investor and the successful contractor on
_________________;
We, the undersigned, represent the
parties to this contract, including:
Investor
Investor’s name: ____________
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Position:
______________________________________________________________
Address:
______________________________________________________________
Phone number: ________________________________________________________
Fax:
_________________________________________________________________
E-mail:
_______________________________________________________________
Account number: _______________________________________________________
Tax code:
_____________________________________________________________
Letter of authorization No.
_____________ dated _____________ (if any)
Advisory contractor
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Representative: _________________________________________________________
Position:
______________________________________________________________
Address:
______________________________________________________________
Phone number: _________________________________________________________
Fax:
__________________________________________________________________
E-mail:
________________________________________________________________
Account number: _______________________________________________________
Tax code:
_____________________________________________________________
Letter of authorization No.
_____________ dated _____________ (if any)
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Article 1.
Subjects of the contract
Subjects of this contract are the
services enumerated in Appendix A “Reference terms”
Article 2.
Contract contests
The contract consists of the below
parts enumerated in descending order of priority when a dispute arises:
1. The contract paper (together with Appendices);
2. Record on contract negotiation and conclusion;
3. Decision on approval for bidding result;
4. Specific terms;
5. General terms;
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7. Invitation to bid and additional documents (if any);
8. Other documents (if any).
Article 3.
Responsibilities of advisory contractor
1. Perform the duties mentioned in Article 1 of this contract;
2. Send reports to the investor in accordance with Appendix B
“Advisory contractor’s obligation to report”;
3. Assign the personnel and allocate budget in accordance with
Appendix C “Budget estimate and advisory contractor’s personnel” to perform
services;
4. Fulfill other responsibilities and obligations mentioned in
general terms and specific terms of the contract.
Article 4.
Responsibilities of investor
1. The investor must pay the advisory contractor in accordance
with Article 5 of this contract, fulfill other responsibilities and obligations
mentioned in general terms and specific terms of the contract.
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Article 5.
Contractual price, payment deadline and payment method
1. Contractual price: ________________________ [Write the
amount in number, in words, and currency. If multiple currencies are used, the
value must be written both in numbers and in words e.g. 2 million USD + 5
billion VND (one million US dollars and three billion Vietnam dong)]. This
amount is inclusive of all costs, interest, and taxes payable by the advisory
contractor, including:
- Remunerations for experts:
The investor shall pay remunerations
to the advisory contractor every month, every day, every hour [select one
and delete the rest] as agreed in Appendix C.
- Costs other than remunerations:
The investor shall pay the advisory
contractor no more than _________________ [Write the value and currency]
for the expenditures on:
+ Business trip (including traveling,
allowance and accommodation), stationery, printing, photocopies, and
communications. This expenditure shall be covered and must be certified by the
investor;
+ Other expenditures approved by the
investor.
2. Deadline and method of payment
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Article 6.
Timekeeping
During the work, including business
trips, the investor must fill the timekeeping table and other forms to monitor
the working time of the advisory contractor.
Article 7.
Type of contract: Fixed-term contract
Article 8.
Contract duration
[Write the contract duration in
accordance with Clause 2 Section 1 of the data sheet, bid package, and contract
negotiation result]
Article 9.
Effect
1. This contract takes effect from ___________ [Write the
effective date of the contract in accordance with Clause 6 Article 1 of
Specific terms].
2. This contract expires after it is finalized by both
parties.
This contract is made into _______
copies. The investor keeps ____ copy(ies), the advisory contractor keeps ____
copy(ies) with equal value.
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Legal representative of advisory contractor
[full name, position, signature,
seal]
Legal representative of investor
[full name, position, signature,
seal]
APPENDIX
Appendix a: Reference terms
Appendix B: Advisory contractor’s
obligation to report
Appendix C: Budget estimate and
advisory contractor’s personnel
Form 17
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[location and date]
To:
____________ [Write the investor’s name]
(hereinafter
referred to as investor)
[Write name and number of the contract number]
According to Specific terms,
______________ [Write the advisory contractor’s name and address]
(hereinafter referred to as contractor) must submit a bank guarantee to the
investor to ensure that the contractor uses the deposit of ________________ [Write
the value in numbers, in words, and currency] only for the performance of
this contract;
We, ____________ [Write the
bank's name] in _________ [Write the country or territory] at
_______________ [Write the bank’s address] (hereinafter referred to as
bank), at the request of the investor, hereby agrees to unconditionally and
irrevocably pay the investor at the investor’s request a maximum amount of ________________
[Write the amount in numbers, in words, and the currency] without the
contractor’s prior consideration.
In addition, we also agree that any
change or amendment to this contract, or any document related to the contract between
the investor and the contractor does not cause any change to our obligations to
this Guarantee.
The value of this guarantee will
decrease in proportion to the deposit collected by the investor over the period
mentioned in Article 6 of this contract after the contractor presents the
investor’s certification of the collected amount.
This Guarantee takes effect from the
day on which the contractor receives the deposit under the contract until
____________________ 3 or after the investor collects the
deposit in full, which ever is sooner.
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Legal representative of the bank
[full name, position, signature,
seal]
[1] Tuân thủ quy định tại khoản 3 Mục 12
BDL
1 Cập nhật các văn bản quy phạm pháp luật
theo quy định hiện hành.
1 Căn cứ điều kiện cụ
thể của gói thầu mà quy định phù hợp với yêu cầu nêu tại Điều 6 ĐKCT (thông thường
áp dụng đối với gói thầu đấu thầu quốc tế).
3 Ngày hoàn thành các nghĩa vụ quy định
trong hợp đồng. Trong trường hợp cần gia hạn thời gian thực hiện hợp đồng thì
yêu cầu gia hạn thời gian có hiệu lực của bảo lãnh tiền tạm ứng.