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THE
GOVERNMENT
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No:
111/2006/ND-CP
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Hanoi,
September 29, 2006
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DECREE
GUIDING THE IMPLEMENTATION OF THE BIDDING LAW AND THE
SELECTION OF CONSTRUCTION CONTRACTORS UNDER THE CONSTRUCTION LAW
THE GOVERNMENT
Pursuant to the December 25, 2001 Law on
Organization of the Government;
Pursuant to November 29, 2005 Bidding Law No. 61/2005/QH11 and November 26,
2003 Construction Law No. 16/2003/QH11 of the National Assembly;
At the proposal of the Minister of Planning and Investment and the Minister of
Construction,
DECREES:
Chapter I
GENERAL PROVISIONS
Article 1.- Governing
scope
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2. The selection of contractors for bidding
packages of ODA projects shall comply with the provisions of Clause 3, Article
3 of the Bidding Law. The procedures for submission, appraisal and approval of
contents of bidding plans and results of selection of contractors for those
projects shall comply with the provisions of this Decree.
Article 2.-
Interpretation of terms
In this Decree, the following terms are
construed as follows:
1. Use of state capital according to the
provisions of Clause 1, Article 1 of the Bidding Law covers also expenditures
in forms of purchase, hire or hire-purchase. If a project is executed in the
form of joint venture or business cooperation contract or joint-stock company,
the state capital portion of 30% or more shall be determined in proportion to
the state capital portion in the legal capital, contributed capital or joint
stock capital of that project.
2. Dossier of requirements means the entire
documentation used for the appointment of contractors, competitive offers,
direct procurement or contractor selection in special cases, including
requirements for a bidding package, which serve as legal grounds for
contractors to prepare dossiers of proposals and for the bid solicitor to
evaluate such proposals in order to select a contractor that satisfies the
requirements in the dossier of requirements; and serve as a basis for
negotiation, finalization and conclusion of contracts. Investors shall decide
on the contents of dossiers of requirements.
3. Dossier of proposals means the entire
documentation prepared by a contractor based on the dossier of requirements and
submitted to the bid solicitor according to the terms in the dossier of
requirements;
4. Contractor-selection results means bidding
results for open or restricted bidding or selection results for other selection
forms;
5. Violation of bidding law means an act of
failing to implement or to fully implement the provisions of bidding law;
6. Bidding participation means the contractors'
participation in open or restricted bidding;
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Article 3.- Assurance of
competition in bidding
The Prime Minister shall specify an appropriate
roadmap to assure competition in bidding according to the provisions of Article
11 of the Bidding Law.
Article 4.- Preferences
in international bidding
1. Preferences in international bidding provided
for in Article 14 of the Bidding Law apply as follows:
a/ For consultancy service bidding packages:
Contractors eligible for preferences may have the total points of their bids
added with 7.5% of that total; for consultancy service bidding packages with
high technical requirements, the contractors’ technical points are added with
7.5% of those points;
b/ For construction and installation bidding
packages: Evaluation prices of bids submitted by contractors not eligible for
preferences must be added with a sum of money equal to 7.5% of bidding prices
after errors or flaws of those contractors are corrected or adjusted
respectively;
c/ For procurement bidding packages: Evaluation
prices of bids submitted by contractors not eligible for preferences must be
added with a sum of money corresponding to the value of import tax, export tax,
import-related charges and fees payable under legal provisions, which, however,
may not exceed 15% of goods prices, except for goods subject to import tax or
import-related charges and fees;
d/ For bidding packages for selection of general
engineering contractors, the determination of preferences is based on the
provisions of Point a of this Clause. For other bidding packages for selection
of general construction contractors, the determination of preferences complies
with the provisions of Point b of this Clause.
2. When bids of foreign contractors are ranked
equally, the ranking priority is given to the bids proposing higher domestic
expenses. When bids of domestic contractors and foreign contractors are ranked
equally after the application of preferences according to the provisions of
Clause 1 of this Article, the ranking priority is given to the bids of domestic
contractors.
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1. Subjects
a/ Except for contractors, individuals directly
involved in bidding activities must possess professional bidding training or re-training
certificates;
b/ Other individuals who wish to possess such
certificates.
2. Management of training and re-training on
bidding
The Ministry of Planning and Investment shall
organize professional training and re-training on bidding according to the
provisions of Clause 5, Article 68 of the Bidding Law, specifically:
a/ Summing up training and re-training
activities of training establishments, based on the annual bidding reports of
ministries, branches and localities;
b/ Establishing a data system of
bidding-training establishments on the basis of information supplied by those
establishments.
3. Conditions for establishments to organize
training and re-training activities
a/ Having business registration certificates or
founding decisions, for establishments having no business registration
certificates in accordance with law;
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4. Conditions for the grant of bidding
certificates
a/ Certificates are granted to trainees who
attend all bidding courses and pass examinations or tests;
b/ A certificate-awarding bidding course must be
organized for at least 3 days.
5. Responsibilities and obligations of
bidding-training establishments
a/ To be responsible for training quality; to
supply information on their own establishments to the data system according to
the provisions of Point b, Clause 2 of this Article;
b/ To carry out training and re-training
activities and grant training certificates to trainees according to
regulations;
c/ To annually report on their training
activities to the Ministry of Planning and Investment, concerned ministries,
branches or localities for monitoring and sum-up.
Article 6.- Bidding
expenses
1. The sale price of a bidding dossier set (tax
inclusive) shall be decided by the investor based on the size and nature of the
bidding package but may not exceed VND 1,000,000 for domestic bidding; for
international bidding, that price shall comply with international bidding
practice.
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3. The expense for the Advisory Council to
handle a contractor's petition on bidding results is 0.01% of the bidding price
offered by that contractor but must be VND 2,000,000 at least or VND 30,000,000
at most.
The management and use of expenses mentioned in
Clauses 1 and 2 of this Article shall comply with the current provisions of
law.
Article 7.- Bidding
newspaper and website
1. The publication of bidding information
prescribed in Article 5 of the Bidding Law is free of charge for agencies and
organizations that send information for publication.
2. Agencies and units having bidding newspapers
and websites operate in the form of non-business units with revenues.
3. A bidding newspaper is published daily.
4. Supply of bidding information
a/ Responsibility to supply information
- Ministries, ministerial-level agencies, other
central agencies and People's Committees at all levels shall supply information
mentioned at Points g and h, Clause 1, Article 5 of the Bidding Law.
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b/ Time limit for information supply
With regard to notices of invitation for
pre-qualification, for bids or for expression of interest, information must be
supplied within 15 days before the distribution of dossiers of invitation for
pre-qualification, bidding dossiers or dossiers of invitation for expression of
interest; with regard to notices of invitation for competitive offers,
information must be supplied within 10 days before the distribution of dossiers
of requirements. Other information prescribed in Clause 1, Article 5 of the
Bidding Law must be supplied within 10 days after the signing of relevant
documents.
The Ministry of Planning and Investment shall
specify the supply of information and the schedule for publication of bidding
information.
Chapter II
BIDDING PLAN
Article 8.- Bases for
elaboration of a bidding plan
1. The investment decision and documents serving
as grounds for making that decision; the business registration certificate, the
investment certificate; or the decision of the head of the project-preparing
agency, for project preparations.
2. International treaties or agreements, for ODA
projects.
3. The approved design, cost estimate and total
cost estimate (if any).
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5. Relevant legal documents (if any).
Article 9.- Contents of
each bidding package in a bidding plan
The division of a project into bidding packages
shall comply with the provisions of Clause 4, Article 6 of the Bidding Law,
ensuring that the size of each bidding package is not too small or too big as
this may restrict the participation of contractors. Contents of a bidding
package include:
1. Title of the bidding package
The title of the bidding package reflects its
nature, contents and scope of work, which are compatible with the contents of
the project.
2. Bidding-package price
The bidding-package price is determined on the
basis of the approved total investment capital or total cost estimate or cost
estimate and relevant regulations.
3. Capital sources
Capital sources or the mode of arranging capital
for payment to contractors must be clearly determined for each bidding package;
when ODA capital is used, the name of the donor and the capital structure
(domestic and foreign) must be identified.
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The form of selecting contractors (domestic or
international bidding or pre-qualification, if any) as well as the bidding mode
must be identified according to the provisions of Articles 18 thru 24 of the
Bidding Law, Article 97 of the Construction Law, and the provisions of Article
26 of the Bidding Law, respectively.
5. Time for selection of contractors
The time for organizing the selection of
contractors to undertake the bidding package must be determined so as to ensure
the progress of that bidding package.
6. Forms of contract
Depending on the nature of the bidding package,
the applicable forms of contract must be determined according to the provisions
of Articles 49 thru 53 of the Bidding Law and Article 107 of the Construction
Law.
7. Time for performance of contracts
The time for performance of contracts must
ensure that the execution of the bidding package accords with the
project-execution schedule.
Article 10.- Submission
for approval of a bidding plan
1. Submission responsibility
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2. Dossier submitted for approval
a/ The document submitted for approval of the
bidding plan has the following contents:
- The jobs already done, including those related
to project preparation, with their value and legal grounds;
- The jobs to which one of the forms of
selecting contractors prescribed in Articles 18 thru 24 of the Bidding Law and
Article 97 of the Construction Law cannot be applied;
- The bidding plan, which covers jobs
constituting bidding packages to be executed in one of the forms of selecting
contractors prescribed in Articles 18 thru 24 of the Bidding Law and Article 97
of the Construction Law, including such jobs as mine sweeping, building of
resettlement areas, works insurance and training. Bases for division of the
project into bidding packages must also be stated. For each bidding package,
all contents prescribed in Article 9 of this Decree are required. When open
bidding is not applied, the reasons therefor are required.
The total value of the jobs which have been
done, the jobs to which no form of selecting contractors is applied and the
jobs falling under the bidding plan must not exceed the total investment amount
of the project.
When it is necessary to devise a bidding plan
for one or some bidding packages to be executed in advance according to the
provisions of Clause 2, Article 6 of the Bidding Law, the document submitted
for approval must still have the contents prescribed in this Clause.
b/ Documentation accompanying the document
submitted for approval
Upon submitting the bidding plan, the investor
shall enclose copies of documentation serving as bases for elaboration of that
plan according to the provisions of Article 8 of this Decree.
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1. Appraisal of a bidding plan
a/ Appraisal of a bidding plan means examination
and assessment of the contents under the provisions of Articles 8, 9 and 10 of
this Decree.
b/ The agency or organization appraising the
bidding plan shall make a report on appraisal results in compliance with the
provisions of Article 65 of the Bidding Law and submit it to the investment
decider for approval.
2. Approval of a bidding plan
The investment decider shall approve the bidding
plan within 10 days after receiving the investor’s report, the appraisal report
of the appraising agency or organization and the opinions of the relevant
agencies (if any). The approval of the bidding plan by the Prime Minister shall
comply with the working regulation of the Government.
Chapter III
PRE-QUALIFICATION
Article 12.-
Application of pre-qualification
1. Pre-qualification shall comply with the
provisions of Point a, Clause 1, Article 32 of the Bidding Law.
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Article 13.- Order of
pre-qualification
1. Compilation of a dossier of invitation for
pre-qualification
The bid solicitor shall compile a dossier of
invitation for pre-qualification and submit it to the investor for approval.
The dossier of invitation for pre-qualification contains information guiding
the bidding package and the following requirements for contractors:
a/ Requirements on technical capability;
b/ Requirements on financial capability;
c/ Requirements on experience.
Pre-qualification responses are evaluated on the
basis of the "pass" or "fail" criterion, which must be stated
in the dossier of invitation for pre-qualification and include criteria for
each of the requirements on technical capability, financial capability and
experience.
Except for bidding packages for selection of
general engineering contractors, construction and installation bidding packages
and bidding packages for selection of general construction contractors require
that criteria for evaluation of pre-qualification responses conform to the
capability requirements set for each type and grade of construction work under
the provisions of the Construction Law.
2. Notice of invitation for pre-qualification
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3. Receipt and management of pre-qualification
responses
The bid solicitor shall receive
pre-qualification responses from contractors and manage them according to the
regulations on management of "secret" dossiers. Pre-qualification
responses submitted in strict compliance with the requirements of the dossier
of invitation for pre-qualification shall be opened publicly right after the
closure of pre-qualification. Pre-qualification responses submitted after the
pre-qualification-closing time may not be opened and shall be returned to
contractors.
4. Evaluation of pre-qualification responses
The bid solicitor shall evaluate
pre-qualification responses according to criteria mentioned in the dossier of
invitation for pre-qualification.
5. Submission and approval of pre-qualification
results
The bid solicitor shall submit to the investor
for approval pre-qualification results.
6. Notification of pre-qualification results
After the investor approves pre-qualification
results, the bid solicitor shall notify in writing those results to the
contractors who have participated in pre-qualification so as to invite them to
bidding.
Chapter IV
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Article 14.- Bidding
preparation
1. Selection of contractors to be invited for
participation in bidding
a/ For open bidding:
- The investor shall approve the dossier of
invitation for expression of interest with the following requirements for
contractors:
+Requirements on capabilities and number of
experts;
+ Requirements on financial capability;
+ Requirements on experience.
The dossiers of expression of interest are
evaluated on the basis of the "pass" or "fail" criterion,
which must be mentioned in the dossier of invitation for expression of
interest, and cover criteria on capabilities and number of experts, financial
capability and experience as well.
- The notice of invitation for expression of
interest must be published on a bidding newspaper for three consecutive issues
and on the bidding website; for international bidding, it must also be
concurrently published on an English newspaper widely circulated in the
country. After publication according to the above provisions, such an invitation
may also be published on other mass media;
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- The time limit for contractors to prepare
dossiers of expression of interest is five days for domestic bidding and 10
days for international bidding;
- The bid solicitor shall evaluate dossiers of
expression of interest submitted by contractors according to the evaluation
criteria, and submit to the investor for approval a list of contractors to be
invited for participation in bidding.
b/ For restricted bidding:
The investor shall approve the list of contractors
that are considered fully capable and experienced to be invited for
participation in bidding.
2. Compilation of bidding dossiers
a/ Bases for compilation of a bidding dossier:
- The investment decision and documents serving
as grounds for making that decision; the business registration certificate, the
investment certificate;
- The approved bidding plan;
- Legal provisions on bidding and relevant
provisions of law; international treaties or agreements (if any), for ODA
projects;
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When the bidding package needs to be executed
before the issuance of an investment decision, the organization assigned to
prepare the project shall base itself on the relevant documents to compile a
bidding dossier and submit it to the head of the project-preparing agency for
approval.
b/ Contents of a bidding dossier:
A bidding dossier must cover the contents
prescribed in Clause 2, Article 32 of the Bidding Law, including important
requirements (prerequisites) for elimination of bids. Specifically:
- The contractors are neither named in the list
of purchasers of bidding dossier sets nor registered for participation in
bidding, except for the case specified in Clause 2, Article 16 of this Decree;
- The contractors fail to ensure their lawful
capacity according to the provisions of Articles 7 and 8 of the Bidding Law;
- The contractors fail to meet the capability
conditions under the provisions of the Construction Law;
- The originals of bids are not available;
- The applications for bidding participation are
invalid;
- The bids fail to meet the validity
requirements as stated in the bidding dossier;
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- Other peculiar important requirements of the
bidding package.
Contractors that fail to satisfy one of the
prerequisites stated in the bidding dossier will be eliminated and their bids
will not be further considered.
3. Approval of a bidding dossier
Based on the appraisal report of the appraising
agency or organization, the investment decider shall approve or authorize the
investor to approve the bidding dossier according to the provisions of Article
60 of the Bidding Law.
4. Invitation for bids
a/ The bid solicitor shall send letters of
invitation for bids to contractors on the list of contractors to be invited for
participation in bidding. A letter of invitation for bids is made according to
the form in Appendix II to this Decree (not printed herein);
b/ The duration from the time the letters of
invitation for bids are sent to contractors to the time of distribution of the
bidding dossiers is at least 5 days for domestic bidding or 7 days for
international bidding.
Article 15.-
Bid-evaluation criteria
1. For consultancy service bidding packages
without high technical requirements, including those for construction
consultancy services under the provisions of the Construction Law:
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- The experience and capabilities of a
contractor. This content requires 10%-20% of the total points;
- The solutions and methodology to be applied to
meet the requirements of a bidding package. This content requires 30%-40% of
the total points;
- The contractor's personnel for execution of a
bidding package. This content requires 50%-60% of the total points.
The required minimum technical points must be determined
but not lower than 70% of the total points. A bid whose technical points are
not lower than the required minimum points is considered meeting the technical
requirements.
b/ Financial evaluation criteria: To use a point
scale (100, 1,000...) in conformity with the technical point scale. Financial
points required for each bid are determined as follows:
Financial points (of bids in consideration) =
{The lowest P x (100, 1,000... : P in consideration}
In which:
The lowest P is the lowest bidding price after
the correction of errors and adjustment of flaws, which is offered by the
contractor that passes the technical evaluation.
P in consideration means the bidding price after
correction of errors and adjustment of flaws of the bids in consideration.
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- The general evaluation criteria are formulated
on the basis of technical and financial evaluation criteria, of which the
technical points must not be lower than 70% of the total points while the
financial points must not be higher than 30% of the total points;
- The general points of a bid are determined
according to the following formula:
The general points = D technical x (K%) + D
financial x (G%)
In which:
- K%: The percentage of technical points (on the
general point scale).
- G%: The percentage of financial points (on the
general point scale).
- D technical: The number of points of the bid,
which is determined at the technical evaluation stage according to the
provisions of Point a of this Clause.
- D financial: The number of points of the bid,
which is determined at the financial evaluation stage according to the
provisions of Point b of this Clause.
2. For consultancy service bidding packages,
including those for construction consultancy services under the provisions of the
Construction Law, with high technical requirements:
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Article 16.-
Organization of bidding
1. Distribution of bidding dossiers
a/ The bid solicitor shall sell bidding dossiers
till the bid closure to contractors on the lists of contractors invited for
participation in bidding at the sale prices prescribed in Clause 1, Article 6
of this Decree. For a partnership of contractors, only one partner needs to buy
the bidding dossier;
b/ The modification and clarification of bidding
dossiers shall comply with the provisions of Clause 1, of Article 33 and Article
34 of the Bidding Law.
2. Preparation of bids
Contractors shall prepare and submit bids as
required by the bidding dossiers. When a contractor needs to change its
bidding-participation capacity (name) which is different from that it has
registered at the time of buying the bidding dossier or registering for bidding
participation, it is required to notify that in writing to the bid solicitor.
The bid solicitor shall consider it only when such written notice is received
before the bid closure.
3. Receipt and management of bids
Bid solicitors shall receive and manage the
submitted bids according to the regime of management of "secret"
dossiers. Bids sent to bid solicitors after the bid-closing time shall be all
considered invalid and returned to contractors in their original state. Any
documents sent by contractors after the bid-closing time as amendments or
supplements to the submitted bids shall be considered invalid.
4. Modification or withdrawal of bids
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5. Opening of technical proposal dossiers
a/ Bids shall be opened publicly right after the
bid-closing time on the date, at the time and place already stated in the
bidding dossier to the witness of all attendants, regardless of the presence or
absence of the invited contractors. The bid solicitor may invite
representatives of concerned agencies to attend the bid opening;
b/ The bid solicitor shall open the technical
proposal dossier of each contractor according to their names in the
alphabetical order and the following order:
- Inspecting the seal;
- Opening the dossier, reading and writing in
the minutes the following principal contents:
+ The name of the contractor;
+ The number of originals and the number of
copies of the dossier;
+ The validity term of the dossier;
+ The written request for dossier modification
(if any);
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The bid-opening minutes must be signed for
certification by representatives of contractors, the bid solicitor and
concerned agencies attending the bid opening.
After opening a bid, the bid solicitor shall
sign for certification every page of the original technical proposal dossier
and manage it according to the "secret" dossier management regime.
The evaluation of technical proposal dossiers shall be conducted using the
copies of those dossiers. Contractors shall be responsible for the accuracy and
compatibility of the copies with the originals as well as for the seals of
their bids.
Article 17.- Evaluation
of bids
The evaluation of bids for consultancy service
bidding packages, including those for construction services under the
provisions of the Construction Law shall be based on the evaluation criteria
and other requirements stated in the bidding dossiers, on the evaluation
principles prescribed in Article 28 of the Bidding Law and the evaluation order
provided for in Article 35 of the Bidding Law. Specifically:
1. Preliminary evaluation
a/ Checking the validity of a technical proposal
dossier according to the requirements of a bidding dossier:
- The validity of the application for bidding
participation. That application must be completed and signed by the lawful
representative of the contractor according to the requirements of the bidding
dossier. For a partnership contractor, unless the partnership agreement states
that all partners authorize a contractor leading the partnership to sign the
application for bidding participation, that application must be signed by the
lawful representative of each partner.
- The validity of the partnership agreement. The
partnership agreement must clearly define responsibilities, powers, work volume
to be performed and the corresponding value of each partner, including the head
of the partnership, and responsibilities of the partnership leader, signatures
of all partners and their seals (if any);
- The availability of one of the valid papers as
required by the bidding dossier: The business registration certificate, the
investment certificate, the establishment decision, the lawful registration
paper or an appropriate professional certificate;
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- The appendixes and documents enclosed with the
bid.
b/ Eliminating those bids which fail to meet the
important requirements (prerequisites) stated in the bidding dossier according
to the provisions of Point b, Clause 2, Article 14 of this Decree.
2. Detailed evaluation
a/ Evaluating the bids for consultancy service
bidding packages, including those for construction consultancy under the
provisions of the Construction Law, without high technical requirements:
- Technical evaluation:
Conducting the technical evaluation according to
the evaluation criteria set in bidding dossiers. Investors shall approve lists
of contractors that satisfy technical requirements for financial evaluation.
- Financial evaluation:
Opening the financial proposal dossiers of
contractors that satisfy technical requirements in the order prescribed at
Point b, Clause 5, Article 16 of this Decree. A minutes on the opening of financial
proposal dossiers covers the following major contents:
+ The names of contractors;
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+ The bidding prices stated in the applications
for bidding participation;
+ Relevant information.
After opening bids, the bid solicitor shall sign
for certification every page of the original financial proposal dossier of each
bid and manage those dossiers according to the "secret" dossier
management regime. The financial evaluation shall be conducted using the copies
and contractors shall be responsible for the accuracy and the compatibility of
the originals with the copies as well as for the sealing of financial proposal
dossiers. The financial evaluation shall be based on the relevant evaluation
criteria stated in the bidding dossier.
- General evaluation:
The general technical and financial evaluation
shall be conducted under the general evaluation criteria prescribed in bidding
dossiers. Contractors that get the highest general points shall be proposed by
bid solicitors to investors for being ranked first and invited to negotiate
contracts according to the provisions of Article 18 of this Decree.
b/ Evaluation of bids for consultancy service
bidding packages, including those for construction consultancy services under
the provisions of the Construction Law, with high technical requirements:
Technical proposal dossiers shall be evaluated
according to criteria stated in a bidding dossier prescribed at Point a, Clause
2 of this Article. Those bids which get technical points not lower than the
required minimum points shall be considered satisfying the technical
requirements and ranked by the bid solicitor for submission to the investor for
approval. The first-ranking contractor shall be invited to open the financial
proposal dossier and to negotiate a contract according to the provisions of
Article 18 of this Decree.
Article 18.-
Negotiation of contracts
1. Based on the investor's decision, the bid
solicitor shall invite the first-ranking contractor to negotiate a contract.
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a/ The tasks and scope of specific tasks to be
performed by the consultancy contractor;
b/ The transfer of technologies and training;
c/ The working plan and arrangement of personnel;
d/ The schedule;
e/ The handling of changes in personnel (if
any);
f/ The arrangement of working conditions;
g/ The consultancy service charges;
h/ Other contents (if necessary).
If the contract negotiation fails, the bid
solicitor shall report it to the investor for considering and deciding on the
invitation of the next-ranking contractor for negotiation.
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1. The submission for approval and evaluation of
bidding results of consultancy service bidding packages shall comply with the
provisions of Articles 37 and 39 of the Bidding law and Articles 58 and 59 of
this Decree.
2. The approval of bidding results shall comply
with the provisions of Article 40 of the Bidding Law.
3. The notification of bidding results shall
comply with the provisions of Article 41 of the Bidding Law, specifically right
after receiving a decision approving the bidding results, the bid solicitor
shall send a notice of bidding results to all participating contractors; the
bid-winning contractor shall also send a plan on contract negotiation and
finalization.
Article 20.-
Negotiation, finalization and conclusion of contracts
1. The negotiation, finalization and conclusion
of contracts shall comply with the provisions of Article 42 and Chapter III of
the Bidding Law, and Section 2, Chapter VI of the Construction Law.
2. When the negotiation and finalization of a
contract fails, the investor shall report it to the investment decider for cancellation
of the earlier decision approving the bidding results and consideration and
invitation of the next-ranking contractor to negotiate a contract according to
the provisions of Article 18 of this Decree. In this case, the contractors are
requested to extend the validity of their bids, if necessary. The subsequent
steps shall comply with the provisions of Articles 19 and 20 of this Decree.
Chapter V
OPEN BIDDING AND
RESTRICTED BIDDING FOR PROCUREMENT OR CONSTRUCTION AND INSTALLATION BIDDING
PACKAGES
Section I. ONE-STAGE BIDDING
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1. The pre-qualification shall comply with the
provisions of Chapter III of this Decree.
2. Compilation of bidding dossiers
a/ Bases for compilation of bidding dossiers:
- Investment decisions and documents serving as
the basis to decide on investment; business registration certificates;
investment certificates;
- Approved bidding plans;
- Designing documents enclosed with the approved
total cost estimates and cost estimates (for construction and installation
bidding packages);
- Provisions of bidding law and relevant
provisions of law; international treaties or agreements (if any), for
ODA-funded projects;
- State policies on taxes, salaries and
preferences for domestic contractors or relevant regulations.
b/ Contents of bidding dossiers
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- Bidding dossiers must not set requirements on
specific trademarks or origins of goods according to the provisions of Clause
5, Article 12 of the Bidding Law. In special cases where it is necessary to
identify the trademark or catalogue of a producer or the country of origin of
goods for reference or illustration of technical requirements for the goods,
the phrase "or equivalent" must be clearly put after the indicated
trademark or catalogue or origin and the word "equivalent" must be
clearly defined as having similar technical properties or utilities as the
indicated goods. For complicated goods, contractors are required to submit sale
permits issued by producers;
- Bidding dossiers must state important
requirements (prerequisites) for elimination of bids. Specifically:
+ The contractors are not named in the list of
purchasers of bidding dossier sets or are not registered for participation in
bidding, except for the case defined in Clause 2, Article 26 of this Decree;
+ The contractors fail to ensure their valid
capacity according to the provisions of Articles 7 and 8 of the Bidding Law;
+ A bid security is absent or invalid that is it
is lower in value or uses a currency other than the prescribed one, has a
shorter effective term, is submitted not to the address and according to the
time set in the bidding dossier, states the wrong name of the contractor, is
not the original or contains no valid signature (for bank guarantee letter);
+ The bid originals are unavailable;
+ The applications for bidding participation are
invalid;
+ The bid effect fails to meet the requirements
set in the bidding dossier;
+ The bids offer unstable bidding prices or
different price levels or conditional prices;
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+ The contractors fail to meet the capability
and experience requirements according to the provisions of Point c, Clause 1,
Article 27 of this Decree and Article 7 of the Construction Law;
+ Other peculiar important requirements of the
bidding package.
Contractors that breach one of the prerequisites
in the bidding dossier shall be eliminated and their bids shall not be further
considered.
3. Approval of bidding dossiers
The approval of bidding dossiers shall comply
with the provisions of Clause 3, Article 14 of this Decree.
4. Invitation for bids
a/ Notice of invitation for bids
For open bidding without pre-qualification, a
notice of invitation for bids must be published on a bidding newspaper for
three consecutive issues and on the bidding website; for international bidding,
that notice must also be published on an English newspaper widely circulated in
the country. After being published according to the above provisions, that
notice may also be published on other mass media.
The contents of a notice of invitation for bids
shall comply with the forms provided for in Appendices III, IV and V to this
Decree.
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Letters of invitation for bids shall apply to
restricted bidding and bidding packages which have gone through
pre-qualification. Bid solicitors shall send letters of invitation for bids
made according to the forms set in Appendices III, IV and V to this Decree to
contractors on the list of those to be invited for participation in restricted
bidding or those having passed pre-qualification. The period from the time
those letters are sent to the time the dossiers of invitation for bids are
distributed is at least 5 days, for domestic bidding or 7 days, for
international bidding.
Article 22.- General
provisions on technical evaluation criteria
1. Use of the marking method
a/ A maximum point scale (100; 1,000...) is used
for the formulation of technical evaluation criteria. The contents of technical
evaluation criteria for procurement or construction and installation bidding
packages are mentioned in Clause 2 of Article 23 and Clause 2 of Article 24 of
this Decree. The required minimum technical points are set depending on the
nature of each bidding package but must not be lower than 70% of the total
technical points; or 80% for bidding packages with high technical requirements;
(Except for bidding packages for selection of
general engineering contractors), bidding packages for selection of general
construction contractors are required to set the minimum points for each offer,
which must not be lower than 70% of the corresponding maximum points.
b/ For procurement or construction and
installation bidding packages, contractors shall be considered satisfying the
technical requirements if the number of points attained is not lower than the
required minimum number of technical points.
(Except for bidding packages for selection of
general engineering contractors), bidding packages for selection of general
construction contractors shall require that bids are considered satisfying the
technical requirements when the points given to each offer are not lower than
the required corresponding minimum technical points and the total points given
to all offers are not lower than the required minimum technical points of the
whole bidding package.
2. Use of the "pass" or
"fail" criterion
a/ Evaluation criteria
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b/ A bid shall be evaluated as satisfying
technical requirements when all of its fundamental requirement contents are
evaluated "pass" while non-fundamental requirement contents are
evaluated "pass" or "acceptable".
Article 23.- Criteria
for evaluation of bids for procurement bidding packages
Criteria for evaluation of bids for procurement
bidding packages include criteria for evaluation of contractors' capabilities
and experience, criteria for technical evaluation and methods for determination
of expenses on the same ground (evaluation prices). Specifically:
1. Criteria for evaluation of contractors'
capabilities and experience, applicable to bidding packages not requiring
pre-qualification, including:
a/ The experience on execution of similar
bidding packages in Vietnam or in foreign countries; the major production or
business experience;
b/ The production and business capabilities,
material and technical foundations and professional qualifications of
personnel;
c/ The financial capability: total assets, total
payable debts, working capital, revenues, profits, value of contracts currently
performed and other criteria.
The determination of specific requirements for
each criterion provided for at Point a, b or c of this Clause shall be based on
the requirements of each bidding package.
The "pass" or "fail"
criterion may be used for evaluation prescribed in this Clause. Contractors
that "pass" all the three contents mentioned at Points a, b and c of
this Clause shall be evaluated as meeting the capability and experience
requirements.
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Technical evaluation criteria are formulated
according to the provisions of Article 22 of this Decree and cover contents on
capabilities to meet quantitative and qualitative requirements for goods
mentioned in a bidding dossier. Specifically:
a/ The characteristics and technical parameters
of goods, production standards and other contents;
b/ The rationality and economic efficiency of
technical solutions, measures for organization of goods supply;
c/ The equipment installation capability and
qualifications of technical personnel;
d/ The extent of satisfaction of warranty
requirements;
e/ The geographical adaptability;
f/ The environmental impacts and remedies;
g/ The financial capability (if required);
h/ Other factors regarding commercial and financial
conditions, time for execution, training and technology transfer (if any).
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Determination of evaluation prices means the
determination of expenses on the same technical, financial and commercial grounds
and other elements in order to compare and rank bids. Methods for determination
of evaluation prices must be mentioned in the evaluation criteria. Evaluation
prices are determined in the following order:
- Determining bidding prices;
- Correcting errors;
- Adjusting flaws;
Post-correction and -adjustment bidding prices
are called the proposed requested bid-winning prices.
- Converting the proposed bid-wining prices to a
common currency (if any) so as to have a basis for determination of evaluation
prices;
- Calculating expenses on the same grounds for
determination of evaluation prices, including:
+ Technical conditions such as the
implementation schedule; the capacity and performance of machinery and
equipment; the consumption of power, fuels and materials; the costs of
operation and maintenance, the useful life of works and other technical
elements, depending on specific requirements of each bidding package.
+ Financial and commercial conditions;
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+ Other factors.
Factors for determination of evaluation prices
shall be specified depending on the nature of each bidding package. Bids with
the lowest evaluation prices shall be ranked first.
Article 24.- Evaluation
criteria applicable to bids for construction and installation bidding packages
Evaluation criteria applicable to bids for
construction and installation bidding packages include criteria for evaluation
of capabilities and experience of contractors, criteria for technical
evaluation and contents of determination of evaluation prices. Specifically:
1. Criteria for evaluation of capabilities and
experience of contractors, applicable to bidding packages not requiring
pre-qualification, including:
a/ Experience on execution of similar bidding
packages in Vietnam, in similar geographical areas and sites;
b/ Technical capability: the number and
qualifications of staff and technical workers directly involved in the
execution of bidding packages and the number of available construction
equipment, the capability of mobilizing construction equipment for execution of
bidding packages;
c/ Financial capability: total assets, total
payable debts, working capital, revenues, profits, value of contracts currently
performed and other criteria.
The determination of specific requirements for
each criterion prescribed at Point a, b or c of this Clause must be based on
the requirements of each bidding package.
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2. Technical evaluation criteria
Technical evaluation criteria are formulated
according to the provisions of Article 22 of this Decree and cover contents on
the extent of satisfaction of requirements for technical designing dossiers and
accompanied estimates. Specifically:
a/ The rationality and feasibility of technical
solutions and measures for organization of the construction;
b/ The satisfaction of environmental hygiene
conditions and other conditions on fire prevention and fighting and labor
safety;
c/ The extent of satisfaction of demands for construction
equipment (quantity, categories, quality and mobilization schedule), materials
and manpower for construction;
d/ The extent of satisfaction of warranty
requirements;
e/ The measures to guarantee quality;
f/ The financial supply capability (if required);
g/ The construction schedule;
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3. Contents of determination of evaluation
prices
Determination of evaluation prices means the
determination of expenses on the same technical, financial and commercial
grounds and other elements in order to compare and rank bids. Methods for
determination of evaluation prices must be stated in the evaluation criteria.
The determination of evaluation prices is conducted in the following order:
- Determining the bid prices;
- Correcting errors;
- Adjusting flaws;
Post-correction and -adjustment bidding prices
are called the proposed bid-winning prices.
- Converting the proposed bid-wining prices to a
common currency (if any) so as to have a basis for determination of evaluation
prices;
- Calculating expenses on the same grounds for
determination of evaluation prices, including:
+ Technical conditions such as the
implementation schedule; the management, operation and maintenance expenses;
the useful life of works and other technical factors, as required by each
specific bidding package;
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+ Preferences in international bidding (if any);
+ Other elements.
Elements for determination of appropriate
evaluation prices shall be determined depending on the nature of each bidding
package. Bids with the lowest evaluation prices shall be ranked first.
Article 25.- Criteria
for evaluation of bids for bidding packages for selection of general
construction contractors (except for bidding packages for selection of general
engineering contractors)
Criteria for evaluation of bids for bidding
packages for selection of general construction contractors (except for bidding
packages for selection of general engineering contractors) include criteria for
evaluation of each content specified at Point a, Clause 1 of Article 15,
Articles 22, 23 and 24 of this Decree.
Article 26.-
Organization of bidding
1. Distribution of bidding dossiers
a/ The bid solicitor shall sell bidding dossier
sets until the bid-closing time to contractors on the list of those having
passed pre-qualification (in case of pre-qualification), to contractors invited
for participation in restricted bidding or to contractors that wish to
participate in open bidding at the sale prices prescribed in Clause 1, Article
6 of this Decree. For a partnership contractor, only one partner is required to
buy the bidding dossier;
b/ The modification and clarification of bidding
dossiers shall comply with the provisions of Clause 1 of Article 33 and Article
34 of the Bidding Law.
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The preparation, reception, modification or
withdrawal of bids shall comply with the provisions of Clauses 2, 3 and 4,
Article 16 of this Decree.
3. Bid opening
a/ Bids shall be opened publicly right after the
bid-closing time on the date and at the time and place specified in the bidding
dossiers to the witness of all present people, regardless of the presence or
absence of the invited contractors. The bid solicitor may invite
representatives of concerned agencies to attend bid opening;
b/ The bid solicitor shall open, one after
another, bids of contractors named in the list of those who have bought the
bidding dossier sets, registered for participation in bidding and submitted
bids before the bid-closing time according to the contractors' names in the
alphabetical order. The bid-opening order is as follows:
- Checking the seal of a bid;
- Opening, reading and recording into a minutes
the following principal contents:
+ The name of the contractor;
+ The number of originals and copies of the bid;
+ The valid term of the bid;
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+ The value and valid term of the bid security;
+ The written request for modification of the
bid (if any);
+ Other relevant information.
The bid-opening minutes must be signed for
certification by representatives of the bid solicitor, contractors and
concerned agencies.
After opening bids, the bid solicitor shall sign
for certification every original page of all bids and manage them according to
the regime of management of "secret" dossiers. Bids shall be
evaluated based on their copies. Contractors are responsible for the accuracy
and consistency between the copies and the originals as well as the seals of
their bids.
Article 27.- Evaluation
of bids
Bids shall be evaluated on the basis of the
bid-evaluation criteria and other requirements mentioned in bidding dossiers,
on the evaluation principles specified in Article 28 of the Bidding Law and in
the order prescribed in Article 35 of the Bidding Law. Specifically:
1. Preliminary evaluation
a/ Checking the validity of a bid:
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- The validity of the partnership agreement: The
partnership agreement must specify the responsibilities, powers, work volumes
to be performed and the corresponding values of each partner, including the
partnership leader as well as the responsibilities of the partnership leader;
and contain signatures of all partners and their seals (if any);
- The availability of one of the papers required
by the bidding dossier: The business registration certificate, the investment
certificate, the establishment decision or the lawful operation registration
certificate, the permit for sale of goods under the copyright of the producer
(if required);
- The number of originals and the number of copies
of bids;
- The validity of the bid security;
- The appendices and documents enclosed with the
bids.
b/ Eliminating those bids which fail to satisfy
prerequisites prescribed in the bidding dossier according to the provisions of
Point b, Clause 2, Article 21 of this Decree;
c/ Evaluating the capabilities and experience of
contractors according to the relevant criteria mentioned in the bidding
dossier, for bidding packages not requiring pre-qualification.
For bidding packages having gone through
pre-qualification, information declared by contractors at the time of
pre-qualification must be updated for proper evaluation of the contractors'
ability to meet the requirements on capabilities and experience.
2. Detailed evaluation of bids
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Technical evaluation according to the set
criteria is prescribed in the bidding dossier. In the course of evaluation, the
bid solicitor may request contractors to explain and clarify unclear or
abnormal contents in their bids. Evaluation prices are determined according to
the provisions of Point b of this Clause only for those bids which are approved
by the investor as satisfying the technical requirements.
b/ Determination of evaluation prices
The determination of evaluation prices shall comply
with the provisions of Clause 3 of Article 23 and Clause 3 of Article 24 of
this Decree.
3. Ranking of bids according to evaluation
prices: The bid with the lowest evaluation price shall be ranked first. For a
complicated bidding package, if it is necessary, the bid solicitor may propose
the investor to permit the contractor with the first-ranking bid to enter into
preliminary negotiations on a contract, thereby facilitating the negotiation
and finalization of the contract after obtaining the bid-winning results.
Article 28.- Correction
of errors and adjustment of flaws
1. Correction of errors
Correction of errors means the correction of
errors in bids, including arithmetical errors, other errors and decimal errors,
which is conducted on the following principles:
a/ For arithmetical errors, including errors
made due to wrong addition, subtraction, multiplication or division:
- When the unit price is inconsistent with the
total sum, the unit price shall be used as a legal basis for error correction;
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b/ For other errors:
- When the total sum column is filled in without
a corresponding unit price, the unit price shall be determined by dividing that
total sum by the quantity;
- When the unit price is available but the total
sum column is left blank, the total sum shall be determined by multiplying the
quantity by the unit price;
- For a specific item, when both unit price and
total sum are available but the quantity column is left blank, that quantity
shall be determined by dividing the total sum by the unit price of that item.
When the determined quantity varies with that mentioned in the bidding dossier,
it shall be considered a flaw in terms of the scope of supply and be adjusted
according to the provisions of Clause 2 of this Article;
- Decimal errors: Errors related to the use of
comma (,) instead of full stop (.) or vice versa are corrected appropriately
according to the Vietnamese writing style.
Arithmetical errors are corrected based on the
total absolute value, regardless of the increase or decrease of bidding prices
after correction.
After correcting errors according to the above
principles, the bid solicitor shall notify the concerned contractors in
writing. The contractors shall notify in writing the bid solicitor of their
acceptance to correct the errors. If the contractors refuse to correct errors,
their bids shall be eliminated.
2. Adjustment of flaws
Adjusting flaws means adjusting incomplete or
redundant contents of bids based on the requirements of the bidding dossier and
adjusting differences between different parts of a bid; between technical
proposals and financial proposals; between numerals and letters; and between
the application for bidding participation and other documents of a bid. The
adjustment of flaws is conducted as follows:
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b/ In case of flaws between technical proposals
and financial proposals, the technical proposals shall be used as a legal basis
for the adjustment of those flaws;
c/ In case of inconsistency between numerals and
letters, letters shall be used as a legal basis for the adjustment of that
flaw;
d/ In case of a difference between prices
(excluding discount) stated in the application for bidding participation and
those in the general price table, that difference is considered a flaw and is
adjusted according to prices in the general price table after that table is
adjusted and corrected according to the detailed price table.
Article 29.- Submission
for approval, appraisal, approval and notification of bidding results;
negotiation, finalization and conclusion of contracts
1. The submission for approval, appraisal,
approval and notification of bidding results comply with the provisions of
Articles 38 and 39 of the Bidding law and Clauses 2 and 3 of Article 19,
Articles 58 and 59 of this Decree.
2. Negotiation, finalization and conclusion of
contracts
a/ The negotiation, finalization and conclusion
of contracts comply with the provisions of Article 42 and Chapter III of the
Bidding Law, and Section 2, Chapter VI of the Construction Law.
b/ When the negotiation or finalization of a
contract fails, the investor reports thereon to the investment decider or the
authorized person for deciding on the annulment of the bidding results and
considering and selecting the next-ranking contractor as the bid winner who
will be invited to negotiate and finalize the contract. In that case, if
necessary, the concerned contractor is required to extent the valid term of the
bid and the bid security.
Section II. TWO-STAGE BIDDING
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1. The pre-qualification of contractors shall
comply with the provisions of Chapter III of this Decree.
2. Compilation of stage-1 bidding dossiers
a/ Bases for compilation of stage-1 bidding
dossiers are provided for at Point a, Clause 2, Article 21 of this Decree;
b/ Stage-1 bidding dossiers cover the contents
prescribed at Point b, Clause 2, Article 21 of this Decree but do not require
the contractors to offer bidding prices and to take measures to guarantee their
participation in bidding.
3. The approval of bidding dossiers shall comply
with the provisions of Clause 3, Article 14 of this Decree.
4. The invitation for participation in stage-1
bidding shall comply with the provisions of Clause 4, Article 21 of this
Decree.
Article 31.-
Organization of stage-1 bidding
1. Distribution of bidding dossiers
a/ The bid solicitor shall sell bidding dossier
sets until the bid-closing time to contractors on the list of contractors
having passed pre-qualification (in case of pre-qualification), to contractors
invited to restricted bidding or to contractors wishing to participate in open
bidding at the sale prices specified in Clause 1, Article 6 of this Decree. For
a partnership contractor, only one partner is required to buy the bidding
dossier;
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2. Reception and management of stage-1 bidding
dossiers
The bid solicitor shall receive and manage bids
according to the regime of management of "secret" dossiers.
3. Bid opening
Bids shall be opened according to the provisions
of Clause 3, Article 26 of this Decree. Bid-opening minutes do not cover
information on bidding prices and bid security.
4. Exchange of opinions on stage-1 bids
Based on the requirements of the bidding
dossier, the bid solicitor shall exchange opinions with each contractor to
clarify technical requirements of the bidding package. Exchanged opinions must
be recorded in a minutes which serves as a basis for compilation of the stage-2
bidding dossier.
Article 32.-
Preparation for, organization of, stage-2 bidding
1. Compilation of stage-2 bidding dossiers
Stage-2 bidding dossiers must identify
technical, financial (including bidding prices) and commercial requirements as
well as requirements on measures to secure bidding participation.
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2. Organization of bidding
Stage-2 bidding dossiers are sold to contractors
that have submitted stage-1 bids at the sale prices specified in Clause 1,
Article 6 of this Decree. The organization of bidding complies with the
provisions of Article 26 of this Decree.
Article 33.- Evaluation
of stage-2 bids
The evaluation of stage-2 bids shall comply with
the provisions of Article 27 of this Decree.
Article 34.- Submission
for approval, appraisal, approval and notification of bidding results;
negotiation, finalization and conclusion of contracts
The submission for approval, appraisal, approval
and notification of bidding results as well as the negotiation, finalization
and conclusion of contracts shall comply with the provisions of Article 29 of
this Decree.
Chapter VI
OTHER FORMS OF SELECTING
CONTRACTORS
Article 35.-
Appointment of contractors
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The Prime Minister shall specify special cases
where contractors may be appointed according to the provisions of Point e,
Clause 1, Article 101 of the Construction Law.
1. The process of appointing contractors for a
bidding package includes:
a/ Distributing dossiers of requirements;
b/ Preparing dossiers of proposals;
c/ Evaluating dossiers of proposals;
d/ Submitting for approval, appraisal and
approval of the contractor-appointment results;
e/ Negotiating, finalizing and concluding
contracts.
2. Dossier of requirements
a/ The bid solicitor shall compile the dossier
of requirements; for consultancy service bidding packages, the specification of
general evaluation criteria is not required; (except for bidding packages for
selection of general engineering contractors) procurement, construction and
installation bidding packages as well as bidding packages for selection of
general construction contractors need not to state elements for determination
of evaluation prices. A dossier of requirements has contents similar to those
of a bidding dossier;
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3. Dossier of proposals
Contractors proposed to be appointed shall
prepare dossiers of proposals with contents similar to those of bids, including
technical, financial and commercial proposals.
4. Evaluation of dossiers of proposals
a/ The bid solicitor shall evaluate dossiers of
proposals of contractors according to the evaluation criteria mentioned in the
dossier of requirements;
b/ Contractors may be appointed when their
dossiers of proposals satisfy all the following conditions:
- Having full capabilities and experience as
required by the dossier of requirements;
- Having technical proposals evaluated as
meeting the requirements of the dossier of requirements, based on the
evaluation criteria;
- Offering appointment prices not exceeding the
estimated prices (bidding-package prices), which have been approved for the
bidding package.
5. Submission for approval, appraisal and
approval of contractor-appointment results
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b/ For bidding packages subject to contractor appointment
under projects defined at Point c, Clause 1, Article 20 of the Bidding Law,
investors shall submit reports on contractor-appointment results to the Prime
Minister (if the Prime Minister directly approves those reports) or to the
persons authorized by the Prime Minister to approve those reports according to
the provisions of Clause 2, Article 41 of this Decree.
6. Negotiation, finalization and conclusion of
contracts
Based on decisions approving
contractor-appointment results, bid solicitors shall negotiate and finalize
contracts with appointed contractors for investors to conclude those contracts.
7. For bidding packages falling in such force
majeure circumstances as natural calamities, enemy sabotages or incidents which
need to be remedied immediately according to the provisions of Point a, Clause
1, Article 20 of the Bidding Law, the appointment of contractors is not
required to comply with the provisions of Clauses 1 thru 6 of this Article but
within 15 days after the appointment of contractors, investors or agencies in
charge of managing works or assets and contractors shall carry out procedures
to determine work volumes and their values so that the two parties conclude
contracts which serve as a basis for execution and payment.
8. When the appointment of contractors is
permitted for a bidding package which is executed before the issuance of the
investment decision, the organization assigned to prepare the project must
formulate and approve the cost estimates according to the provisions of Clause 3,
Article 20 of the Bidding Law. In this case, the cost estimates must correspond
to the value of work volumes approved by the head of the project-preparing
body.
9. For consultancy service bidding packages
valued at under VND 500 million each and construction and installation bidding
packages valued at under VND 1 billion each under renovation or overhaul
projects of state enterprises defined in Clause 3, Article 1 of the Bidding
Law, the appointment of contractors may apply when necessary, which, however,
must comply with the contractor-appointment process prescribed in Clauses 1
thru 6 of this Article.
Article 36.- Direct
procurement
The application of the form of direct
procurement must be approved together with bidding plans in compliance with the
provisions of Article 21 of the Bidding Law with regard to contracts already
signed with contractors after public bidding or restricted bidding.
The process of direct procurement is as follows:
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2. The evaluation of dossiers of proposals shall
comply with the following contents:
a/ Checking technical contents and unit prices;
b/ Updating the contractors' capabilities;
c/ Evaluating the implementation schedule;
d/ Other contents (if any).
3. Submission for approval, appraisal and
approval of direct procurement results
Based on the report on direct procurement
results and the appraisal report, the investment decider shall approve or
authorize others to approve the direct procurement results.
Article 37.-
Competitive offers in procurement
The application of the form of competitive
offers in procurement must be approved together with bidding plans in
compliance with the provisions of Article 22 of the Bidding Law.
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1. Dossier of requirements for competitive
offers
The investor shall approve the dossier of
requirements for competitive offers. A dossier of requirements for competitive
offers has such technical requirements as those on quantity, standards,
technical properties, time limit for goods supply, validity term of a price
notice, time for submission of price notices, warranty, maintenance, training,
technology transfer and other necessary contents, but has no requirements on
bid security. Technical requirements are evaluated according to the
"pass" or "fail" criterion as stated in the dossier of
requirements for competitive offers.
2. Organization of competitive offers
a/ The bid solicitor shall publish the
invitation for competitive offers on a bidding newspaper for three consecutive
issues and on the bidding website for interested contractors to register for
participation in bidding. After making announcement according to the above
provisions, the bid solicitor may also publish the invitation on other mass
media. The duration from the release of the first announcement of invitation
for competitive offers to the distribution of the dossier of requirements must
be at least 5 days;
b/ The bid solicitor shall send sets of dossier
of requirements to interested contractors in order to receive at least three
price notices from three different contractors. The time limit for contractors
to prepare price notices is at least three days;
c/ Contractors shall send price notices to the
bid solicitor in person, by post or fax. Each contractor may send only one
price notice;
d/ The bid solicitor shall keep secret
information in the price notice of each contractor. Right after the expiration
of the time limit for submission of price notices, the bid solicitor shall make
a minutes on reception of price notices with such contents as the names of
contractors, the offered prices, the after-sale conditions, the validity terms
of price notices and send copies of that minutes to the contractors that have
submitted price notices.
3. Evaluation of price notices
a/ The bid solicitor shall evaluate the
submitted price notices based on the technical requirements of the dossier of
requirements. A price notice shall be considered as passing the technical
evaluation if all of its technical offers are evaluated "pass";
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4. Approval of results of competitive offers and
conclusion of contracts
a/ Based on the report on the results of
competitive offers submitted by the bid solicitor and the appraisal report, the
investment decider shall approve the results of competitive offers for bidding
packages valued at VND 1 billion or more each; the investor shall approve the
results of competitive offers for bidding packages valued at under VND 1
billion each;
b/ The bid solicitor shall notify the results of
competitive offers to all contractors that have submitted price notices and
negotiate and finalize a contract with the selected contractor so that the
investor concludes that contract.
Article 38.-
Self-execution
The application of the form of self-execution
must be approved together with bidding plans in compliance with the provisions
of Article 23 of the Bidding Law and Point a, Clause 1 of Articles 41, 50, 57,
75 and 89 and Point b, Clause 2, Article 45 of the Construction Law.
The process of application of the self-execution
form must ensure the following conditions:
1. The investor selects under the provisions of
the Bidding Law a supervision consultancy contractor that is organizationally
and financially independent from the investor as required by law. The investor
shall supply necessary dossiers for the supervision consultancy contractor to
perform the tasks defined in Clause 2 of this Article.
2. The supervision consultancy contractor has
the following tasks:
a/ To supervise the execution of the bidding package
of the investor strictly according to the plan and solutions set by the latter;
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c/ To accept after test the work volume
performed by the investor in order to have grounds for payment.
Article 39.- Selection
of contractors for construction work architecture designing
Contractors for construction work architecture
designing shall be selected through contests according to the provisions of
Clause 3, Article 97 of the Construction Law and in compliance with the
provisions of Article 102 of the Construction Law.
Article 40.- Selection
of contractors in special cases
1. Based on the peculiarity of a bidding package
to which the forms of selecting contractors specified in Articles 18 thru 23 of
the Bidding Law and Article 97 of the Construction Law cannot apply, the
investor shall submit to the Prime Minister a plan on selection of contractors,
ensuring competition and economic efficiency, and concurrently send that plan
to the Ministry of Planning and Investment and the branch-managing ministry for
comments before submission to the Prime Minister for consideration and
decision.
2. When bidding peculiarities are provided for
in another law, the provisions of the decree guiding the implementation of that
law shall apply.
Chapter VII
DECENTRALIZATION OF
APPRAISAL AND APPROVAL IN BIDDING
Article 41.- The Prime
Minister
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a/ To approve bidding plans;
b/ To approve or authorize others to approve
contractor-selection results;
c/ To approve or authorize others to approve the
handling of bidding circumstances, settlement of petitions in bidding and
handling of violations of the bidding law.
2. To approve or authorize others to approve
bidding plans and contractor-appointment results for bidding packages
classified as national secrets or urgent projects for national interests or
energy safety and security according to the provisions of Point c, Clause 1,
Article 20 of the Bidding Law.
3. To approve or authorize others to approve
options on the selection of contractors in special cases according to the
provisions of Article 24 of the Bidding Law.
Article 42.- Ministers,
heads of ministerial-level agencies, heads of other central agencies and
presidents of provincial/municipal People's Committees
1. For projects and bidding packages directly
approved by the Prime Minister:
a/ To give written comments on bidding plans and
contractor-selection results for bidding packages under relevant projects which
are directly approved by the Prime Minister;
b/ To approve bidding dossiers;
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2. For investment projects they decide:
a/ To approve bidding plans;
b/ To approve or authorize others to approve
bidding dossiers and contractor-selection results for bidding packages under
those projects, except for contract-appointment results of bidding packages
directly approved by the Prime Minister according to the provisions of Clause
2, Article 41 of this Decree.
Article 43.- Presidents
of the People's Committees of provincial cities, urban districts, rural
districts, towns, townships, wards or communes and heads of other local
agencies
1. To approve bidding contents under authorization;
2. To approve bidding plans, approve or
authorize others to approve bidding dossiers and contractor-selection results
of bidding packages under investment projects they decide.
Article 44.- Managing
Boards or directors of enterprises
1. For investment projects decided by the Prime
Minister of which they are investors
a/ To approve bidding dossiers for bidding
packages with contractor-selection results directly approved by the Prime
Minister;
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2. For investment projects they decide:
a/ To approve bidding plans;
b/ To approve or authorize others to approve
bidding dossiers and contractor-selection results for bidding packages under
those projects, except for contractor-appointment results of bidding packages
directly approved by the Prime Minister according to the provisions of Clause
2, Article 41 of this Decree.
3. To make written agreements on bidding plans
and contractor-selection results for bidding packages valued at VND 50 billion
or more each for consultancy services, or VND 150 billion or more each for
construction and installation or procurement under joint venture projects,
business cooperation contracts or joint-stock projects in which the Vietnamese
party contributes a state capital portion of 30% or more to the legal capital,
charter capital or stock capital. Past 20 days after receiving dossiers of
request for agreement, if the managing boards or directors of enterprises send
no written agreements, they shall be considered having agreed on the bidding
plans and contractor-selection results with the joint-venture enterprises, the
other parties to business cooperation contracts or joint-stock enterprises.
Article 45.- Managing
boards of joint-venture enterprises, joint-stock companies and lawful
representatives of parties to business cooperation contracts
1. To approve bidding plans and
contractor-selection results of bidding packages under projects they invest in,
on the basis of written agreements prescribed in Clause 3, Article 44 of this
Decree.
2. To approve or authorize others to approve
bidding dossiers.
Article 46.- Appraising
agencies and organizations
1. The Ministry of Planning and Investment shall
appraise the following contents:
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b/ Contractor-selection results of bidding
packages which are directly approved by the Prime Minister;
c/ Contractor-selection plans in special cases
which are approved directly by the Prime Minister.
2. Provincial/municipal Planning and Investment
Services shall appraise the following contents:
a/ Bidding plans and contractor-selection
results for bidding packages under projects approved directly by presidents of
provincial/municipal People's Committees;
b/ Bidding dossiers for bidding packages
approved by presidents of provincial/municipal People’s Committees as
authorized by the Prime Minister and bidding packages falling under the
approving competence of presidents of provincial/municipal People's Committees,
Planning and Investment Services or relevant specialized Services;
c/ Contractor-selection results for bidding
packages approved by presidents of provincial/municipal People's Committees
under the Prime Minister's authorization.
3. Agencies and organizations assigned the
appraising task by ministers, heads of ministerial-level agencies, heads of
other central agencies, the managing boards or directors of enterprises shall
appraise:
a/ Bidding plans, bidding dossiers and
contractor-selection results for all bidding packages under projects which fall
under the investment-deciding competence of ministers, heads of
ministerial-level agencies, heads of other central agencies, managing boards or
directors of enterprises;
b/ Bidding dossiers, contractor-selection
results for bidding packages approved by ministers, heads of ministerial-level
agencies, heads of other central agencies, managing boards or directors of
enterprises under the Prime Minister's authorization.
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5. For projects falling under the
investment-deciding competence of presidents of People's Committees of
townships, wards or communes, heads of other local agencies, managing boards of
joint-venture enterprises, joint-stock companies or lawful representatives of
parties to business cooperation contracts, the relevant assisting sections
shall appraise contents of the bidding process.
6. For bidding packages of which
contractor-selection results are approved by persons authorized by investment
deciders, the authorized persons shall appoint units to appraise bidding
dossiers and contractor-selection results.
Chapter VIII
SETTLEMENT OF BIDDING
PETITIONS
Article 47.- Conditions
for consideration and settlement of petitions
1. Petitions must be made by contractors
participating in bidding.
2. Petitions must be signed by persons who sign
applications for bidding participation or are lawful representatives of
contractors and must be affixed with stamps (if any).
3. Persons responsible for settlement of
petitions receive petitions within the time limit prescribed in Clause 3,
Article 72 of the Bidding Law.
4. Contents of petitions have not yet brought to
court by the contractors.
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Article 48.- Settlement
of petitions
1. The time limit for settling a petition
prescribed in Article 73 of the Bidding Law is counted from the time the
administrative section of the person responsible for petition settlement
receives the petition.
2. The persons responsible for petition
settlement shall notify the contractors in writing of the non-consideration and
non-settlement of petitions if those petitions fail to meet the conditions
prescribed in Article 47 of this Decree.
3. Contractors are entitled to withdraw their
petitions in the course of settlement but must make written requests therefor.
Article 49.- Advisory
councils
1. Chairmen of advisory councils
a/ The chairman of the central-level advisory
council is the competent representative of the Ministry of Planning and
Investment. The central-level advisory council shall advise on petitions
related to bidding packages directly approved by the Prime Minister or at the
request of the Prime Minister.
b/ The chairmen of advisory councils of
ministries, ministerial-level agencies, government-attached agencies or other
central agencies (hereinafter called ministerial-level advisory councils) are
competent representatives of the units under these agencies which are assigned
to manage bidding. Except for bidding packages prescribed at Point a of this
Clause, the ministerial-level advisory councils shall advise on petitions
related to all bidding packages under investment projects decided or managed by
ministries.
c/ The chairmen of local advisory councils are
competent representatives of provincial/municipal Planning and Investment
Services. Except for bidding packages prescribed at Point a of this Clause,
local advisory councils shall advise on petitions related to all bidding
packages under investment projects decided or managed by localities.
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Depending on the nature of each bidding package
and when necessary, in addition to the members defined in Clause 2, Article 73
of the Bidding Law, the chairman of an advisory council may invite other
individuals to participate in the advisory council. Members of the advisory
council must not be relatives (biological parents, parents in law, wives or
husbands, biological children, adopted children, daughters or sons in law or
siblings) of the persons who sign petitions or of individuals who are directly
involved in the evaluation of bids under assignment by contractors or
investors, of individuals directly involved in the appraisal of
contractor-selection results and of the persons who sign for approval
contractor-selection results.
3. Activities of an advisory council
a/ The chairman of an advisory council shall
issue a decision to set up the council within 5 days after receiving petitions
from contractors. The advisory council shall work on a case-by-case basis.
b/ The advisory council shall work on the
collective principle, vote by majority and submit reports on its working
results to the investment decider for consideration and decision; each member
is entitled to reserve his/her opinions and be accountable before law for
his/her opinions.
4. Permanent assisting sections of an advisory
council
a/ Permanent assisting sections mean agencies or
organizations which are assigned the appraising task in bidding, but do not
comprise individuals directly involved in the appraisal of bidding packages
subject to petitions.
b/ Permanent assisting sections perform
administrative tasks assigned by the chairman of the advisory council; receive
and manage expenses paid by contractors that have petitions according to the
provisions of Clause 5, Article 47 of this Decree.
Chapter IX
HANDLING OF VIOLATIONS
OF BIDDING LAW
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1. Organizations or individuals that commit acts
in violation of the bidding law shall, depending on the severity of their
violations, be sanctioned in one of the following forms: caution, fine or ban
from participation in bidding activities. Cadres and civil servants who commit acts
in violation of the bidding law shall be handled in accordance with the
provisions of law on cadres and civil servants.
2. Principles and procedures for handling
violations and procedures for execution of sanctioning decisions shall comply
with the provisions of law.
3. Sanctioning decisions must be sent to
sanctioned organizations and individuals, to the Ministry of Planning and
Investment and concerned agencies and organizations.
4. Sanctioning decisions executed in any localities
or branches are effective for execution nationwide and in all branches.
5. Organizations and individuals sanctioned for
violations of the bidding law are entitled to initiate lawsuits at a court.
Article 51.- Competence
to handle violations of bidding law
1. Investment deciders shall handle violations
of the bidding law in relation to investment projects they decide according to
the provisions of Article 60 of the Bidding Law. When investment deciders
breach the bidding law, they must be handled in accordance with law.
2. The Ministry of Planning and Investment shall
monitor the handling of violations of the bidding law and decide on the ban
from participation in bidding activities on organizations or individuals that
are subject to caution for five consecutive times under the provisions of
Clause 4, Article 53 of this Decree.
Article 52.- Fine
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1. A fine of between VND 5,000,000 and VND
20,000,000 is imposed for one of the following violations:
a/ Compiling, appraising or approving bidding
dossiers or dossiers of requirements in contravention of the bidding law, which
leads to the cancellation of bidding;
b/ Evaluating bids or dossiers of proposals,
appraising or approving contractor-selection results without basing on the
requirements of bidding dossiers, dossiers of requirements as well as the set
evaluation criteria, which distorts the contractor-selection results or leads
to the cancellation of bidding;
c/ Concluding contracts at variance with law,
causing damage to the State's interests;
d/ Other violations which lead to the
re-organization of bidding such as organizing bidding when bidding plans,
bidding dossiers or dossiers of requirements have not yet been approved,
2. A fine of between VND 20,000,000 and VND
50,000,000 is imposed for one of the following acts:
a/ Making arrangement or collusion between
contractors, between contractors and investors, bid solicitors, consultants for
compilation of bidding dossiers, appraising agencies or organizations or
approvers of contractor-selection results in order to distort the
contractor-selection results, which leads to the cancellation of bidding or the
selection of unqualified contractors as prescribed in Clause 3, Article 10 of
the Construction Law;
b/ Construction and installation or procurement
contractors connive with supervision consultancy contractors or testing
agencies or organizations to make wrong certification of the quality and volume
of works or goods.
3. Apart from violations which cause damage to
the interests of the concerned parties mentioned in Clauses 1 and 2 of this
Article or other consequences, fines may be imposed for other violations in
accordance with relevant laws.
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Depending on the severity of violations, a ban
from participation in bidding activities may be imposed. Specifically:
1. A ban from participation in bidding
activities for between 6 months and 1 year is imposed for one of the following
violations:
a/ Violation of the provisions of Clause 4,
Article 12 of the Bidding Law;
b/ Violation of the provisions of Clause 5,
Article 12 of the Bidding Law. Specifically:
Compilation, appraisal or approval by
organizations or individuals of bidding dossiers for procurement, construction
and installation bidding packages or bidding packages for selection of general
construction contractors which state specific requirements on goods' trademarks
or origins.
c/ Violation of the provisions of Clause 9,
Article 12 of the Bidding Law by individuals on the side of investors, bid
solicitors, teams of bidding experts, bidding consultants or appraising
agencies or organizations involved in bidding;
d/ Violation of the provisions of Clause 6,
Article 12 of the Bidding Law;
e/ Violation of the provisions of Clause 7,
Article 12 of the Bidding Law, specifically:
Permission by investment deciders for the
division of projects into bidding packages in contravention of the provisions
of Clause 4, Article 6 of the Bidding Law for appointment of contractors or
creation of opportunities for a small number of contractors to participate in
bidding;
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Acceptance and offer by investors and bid
solicitors of bid-wining requests to contractors participating in goods
procurement or construction and installation for bidding packages under
projects for which those contractors have earlier provided consultancy
services, except for EPC bidding packages, bidding packages for selection of
general engineering and construction contractors or general turn-key
contractors;
g/ Violation of the provisions of Clause 10,
Article 12 of the Bidding Law, specifically:
Failure to withdraw from assigned tasks by
individuals who directly participate in organizing bidding or evaluating bids
under assignment by investors, bid solicitors, members of teams of bidding
experts, bidding consultants; individuals directly involved in the appraisal of
contractor-selection results under assignment by appraising agencies or
organizations and signers of decisions on contractor-selection results when the
signees of applications for bidding participation are their relatives
(biological parents, parents in law, wives or husbands, biological children,
adopted children, daughters or sons in law or siblings);
h/ Violation of the provisions of Clause 11, Article
12 of the Bidding Law, specifically:
Causing of difficulties by organizations or
individuals on the side of bid solicitors, investors, state treasuries,
financial management agencies, banks or before-acceptance testing bodies in the
procedures of payment and settlement under contracts signed between investors
and contractors;
i/ Violation of the provisions of Clause 13,
Article 12 of the Bidding Law, specifically:
- Signing of the bidding-participation
application for a bidding package under a project of an agency or organization
by an individual within 1 year after he/she stops working for that agency or
organization;
- Decision to select the bid-wining contractor
with the person who signs the bidding-participation application for a project
of the agency or organization at which that person has stopped working under a
decision for less than one year;
j/ Violation of provisions of Clause 16, Article
12 of the Bidding Law, specifically:
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k/ Violation of the provisions of Clause 17,
Article 12 of the Bidding Law, specifically:
- Approval by investment deciders of bidding
plans to permit the selection of contractors when sources of capital for
execution of bidding packages have not yet been identified;
- Approval by investment deciders of
contractor-selection results without credit commitments though it is permitted
in bidding plans that capital sources for bidding packages are arranged by
contractors.
2. A ban from participation in bidding
activities for between 1 and 3 years is imposed for one of the following
violations:
a/ Violation of the provisions of Clause 2,
Article 12 of the Bidding Law, specifically:
- Abuse by individuals of their powers or
influence to force investors, bid solicitors, teams of bidding experts, bidding
consultants, agencies or organizations appraising contractor-selection results
to propose bid-wining contractors at variance with the requirements of bidding
dossiers and evaluation criteria already mentioned in bidding dossiers;
- Intentional reporting by individuals directly
evaluating bids or appraising contractor-selection results of wrong or
untruthful information which distorts contractor-selection results, the
conclusion and performance of contracts;
- Intentional supply by contractors of
untruthful information in their bids, which distorts contractor-selection
results, the conclusion and performance of contracts.
b/ Violation of the provisions of Clause 14,
Article 12 of the Bidding Law, specifically:
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- Permission by contractors for others to use
their names, signatures or seals; use by contractors of the names, signatures
or seals of other contractors to create a partnership for participation in bidding
and, after winning bids, failure to comply with the written partnership
agreements, except where it is otherwise provided for by contracts;
- Transfer by contractors to others of 10% or
more of the value of work volume they have to perform (excluding the work
volumes undertaken by subcontractors) under signed contracts, except for cases
of justifiable reasons permitted by investment deciders;
- Agreement by investors or supervision
consultants for contractors to transfer certain work volumes without permission
of investment deciders, except for those volumes which fall under
responsibilities of subcontractors as stated in contracts.
c/ Violation of the provisions of Clause 15,
Article 12 of the Bidding Law.
3. A ban from participation in bidding activities
for between 3 and 5 years is imposed for one of the following violations:
a/ Violation of the provisions of Clause 1,
Article 12 of the Bidding Law;
b/ Violation of the provisions of Clause 3,
Article 12 of the Bidding Law;
c/ Violation of the provisions of Clause 12,
Article 12 of the Bidding Law.
4. Organizations or individuals subject to
caution for 5 consecutive times shall be banned from participation in bidding
activities for 6 months. When they continue commit violations of bidding law,
they shall, for every two times more of violation, be banned from participation
in bidding activities for 1, 2 or 3 years correspondingly.
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OTHER ISSUES
Article 54.- Forms of
bidding document
1. Forms of bidding document include the form of
dossier of invitation for pre-qualification for procurement or construction and
installation bidding packages; the form of bidding dossier and the form of
report on evaluation of bids for consultancy service, procurement or
construction and installation bidding packages and bidding packages for
selection of general construction contractors.
2. The Ministry of Planning and Investment shall
issue forms of bidding document.
Article 55.- Warranty
1. Contractors shall provide work warranty if
contracts between them and investors cover the construction or provide goods
warranty if contracts between them and investors cover the goods procurement
under the provisions of law.
2. The contents of warranty, warranty time
limit, relevant expenses and responsibilities of concerned parties (investors
and contractors) must be stated in contracts.
Article 56.-
Professional bidding organizations
Professional bidding organizations defined in
Clause 3, Article 9 of the Bidding Law mean organizations established and
operating under the enterprise law, the bidding law or relevant laws.
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The bidding circumstances prescribed in Article
70 of the Bidding Law are handled as follows:
1. When it is necessary to adjust bidding
package prices or contents, except for cases prescribed in Clause 6 of this
Article, investors shall carry out procedures to adjust bidding plans according
to the provisions of law before bid-opening time.
2. When cost estimates of bidding packages are
lower than their approved prices, those cost estimates will substitute
bidding-package prices to serve as a basis for consideration of
contractor-selection results; when cost estimates of bidding packages are
higher than their approved prices, investors shall report thereon in writing to
investment deciders for consideration and decision of adjustment of
bidding-package prices within the bidding plans in order to ensure legal
grounds for consideration of contractor-selection results.
3. When by the bid-closing time less than 3
contractors have submitted bids, bid solicitors shall immediately report on the
bidding process to investment deciders or the authorized persons for
consideration and handling within no more than 2 hours so that the latter may
permit the extension of bid-closing time to increase the number of bids or
permit the opening and evaluation of submitted bids. When bids fall under the
approving competence of the Prime Minister, these circumstances shall be
handled by ministers, heads of ministerial-level agencies, heads of
Government-attached agencies or heads of other central agencies, presidents of
provincial-level People's Committees or chairmen of the managing boards of
enterprises set up under decisions of the Prime Minister in relation to
projects.
4. When bidding dossiers permit contractors to
make offers for one or different parts of a bidding package, the evaluation of
bids and consideration for approval of bid winners shall be conducted part by
part but must ensure that the bid-winning prices of bidding packages does not
exceed the approved prices of those bidding packages.
5. When bidding dossiers contain abnormal unit
prices, which are unfavorable to bid solicitors, bid solicitors may request
contractors to make written explanations and clarifications. If contractors'
explanations are not clear enough, the abnormalities shall be considered flaws
and must be adjusted under regulations as for redundant or deficient offers of
bids, in line with the requirements of bidding dossiers according to the
provisions of Article 28 of this Decree.
6. When the proposed bid-winning prices of
contractors exceed the approved bidding-package prices, investors shall report
them in writing to investment deciders or the authorized persons for
consideration and decision to permit these contractors to offer other prices or
together with the offer of new prices to reconsider the approved
bidding-package prices and contents of bidding dossiers if necessary.
7. When only one bid passes the technical
evaluation (for procurement, construction and installation bidding packages and
bidding packages for selection of general construction contractors, except for
those for selection of general engineering contractors), the determination of
evaluation prices is not required but the proposed bid-winning prices must be
determined to serve as a basis for consideration of bid-winning results.
8. When two bids gain the best evaluation
results and are equal (in terms of points or evaluation prices), except for
preferential cases prescribed in Clause 2, Article 4 of this Decree, the
contractor that requests the lower bid-winning price shall be considered to win
bidding.
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10. When the bid-winning prices proposed by
investors or appraising agencies are abnormally low or below fifty per cent
(50%) of the approved bidding-package prices or cost estimates, before
approving the bidding results, investment deciders or authorized persons may
put forth appropriate measures such as setting up inter-branch appraising teams
for more thorough appraisal of bids of contractors or other appropriate
measures in contracts to ensure the feasible performance of those contracts.
In addition to the above-mentioned cases, when
new circumstances arise, bid solicitors and investors shall report them to
investment deciders or authorized persons for consideration and decision.
Article 58.- Dossiers
submitted for approval of contractor-selection results
By considering reports on contractor-selection
results and dossiers submitted by bid solicitors for approval, investors shall
make reports and submit them to investment deciders or authorized persons for
consideration and decision. Dossiers submitted by investors for approval of
contractor-selection results comprise reports on contractor-selection results
and relevant documents.
1. A report on contractor-selection results
covers:
a/ Legal grounds of the selection of
contractors;
b/ Contents of the bidding package;
c/ The process of selecting and evaluating bids
or dossiers of proposals of contractors;
d/ The request on contractor-selection results,
including:
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- The proposed bid-winning price or the price
proposed for execution of the bidding package (inclusive of taxes, reserves and
price slippage, if any);
- The form of the contract;
- The time for performance of the contract.
When a contractor cannot be selected, a
subsequent handling solution is required.
2. Relevant documents include:
a/ Copies of the investment decision and
documents serving as grounds for making that decision; the business
registration certificate, the investment certificate or the establishment
decision, the international treaty or agreement (if any); the bidding plan;
b/ The bidding dossier, the dossier of
requirements;
c/ The decision on setting up of the bidding
expert team, the contract on hiring of bidding consultants or a professional
bidding organization;
d/ The list of contractors who have submitted
bids, dossiers of proposals and the bid-opening minutes;
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f/ The reports on evaluation of bids and
dossiers of proposals made by the bidding expert team, bidding consultant or
professional bidding organization;
g/ The document approving the contents of the
process of selecting contractors according to regulations;
h/ The minutes on negotiation of the contract,
for a consultancy service bidding package;
i/ The foreign donor's opinions on the
contractor-selection results (if any);
j/ The other relevant documents.
Article 59.- Appraisal
of contractor-selection results
1. Appraisal contents:
a/ Checking documents which serve as grounds for
the selection of contractors;
b/ Checking the process and time related to the
selection of contractors according to regulations: time for publication of
bidding information, distribution of bidding dossiers and dossiers of
requirements; time for preparation of bids and dossiers of proposals,
bid-closing time, bid-opening time, time for evaluation of bids and dossiers of
proposals;
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d/ Finding out unclear contents in the dossiers
submitted for approval of contractor-selection results;
e/ The opinions (if any) which remain different
between members of the bidding expert team, the bidding consultants, the
professional bidding organization and the contractors.
2. An appraisal report has the following main
contents:
a/ An overview of the project and concerned
bidding package: the major contents of the project and the bidding package,
legal grounds for selection of contractors;
b/ A summary of the process of organizing the
execution and proposals of the submitting agency on the contractor-selection
results;
c/ Comments on the legal aspect, the
implementation process and proposals of the submitting agency;
d/ Opinions on the contractor-selection results
or measures for handling the cases where grounds are not sufficient to make
conclusions on contractor-selection results.
3. Appraisal reports shall be submitted to investment
deciders stated in Clause 2 of this Article and concurrently to investors and
bid solicitors.
Article 60.- Management
of foreign contractors
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2. When performing contracts signed with
investors in the Vietnamese territory, foreign contractors shall register their
operations with the state agencies according to the provisions of this Article
in order to be granted operation registration certificates.
3. A foreign contractor's dossier of
registration for operation in Vietnam comprises:
a/ The operation registration paper made by the
foreign contractor or a representative of the foreign contractor according to
the form issued by the Ministry of Planning and Investment;
b/ A notarized copy of the written notice of
contractor-selection results;
c/ A notarized copy of the passport of the
contractor who is an individual; a notarized copy of the operation registration
granted by the competent agency of the country or territory of which the
contractor being an organization bears nationality (enclosed with a notarized
Vietnamese or English translation of that registration).
4. The operation registration certificate, for
foreign contractors granted such certificates free of charge.
5. The Planning and Investment Service of the
province or centrally run city where the foreign contractor is based
(hereinafter called the operation registering agency) shall receive and
consider that contractor's dossier of registration for operation in Vietnam.
Within 5 working days after receiving the complete and valid dossier prescribed
in Clause 3 of this Article, the operation-registering agency shall grant
operation registration certificate (made according to the form issued by the
Ministry of Planning and Investment) to the foreign contractor. It shall concurrently
notify the Planning and Investment Services of other localities of the
operation registration by that contractor if the bidding package is to be
executed in those localities.
When the operation-registering agency refuses to
grant the certificate, it shall notify the concerned foreign contractor thereof
in writing and state the reasons therefor.
6. An operation registration certificate becomes
invalid in the following cases:
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b/ The foreign contractor is suspended from
operation, dissolved or bankrupt under the provisions of Vietnamese law or the
law of the country or territory of which that contractor bears nationality.
7. When the foreign contractor undertakes
different bidding packages in the same duration, that contractor shall make
only one dossier of registration for operation in Vietnam whereby the operation
term lasts from the commencement of execution of the first bidding package till
the accomplishment of the last bidding package.
8. When the foreign contractor has been granted
by the operation-registering agency an operation registration certificate which
remains valid, if that contractor continues to execute another bidding package
in the same locality, that contractor is only required to supply updated
information to the operation-registering agency in order to be granted an
additional operation registration certificate (according to the form issued by
the Ministry of Planning and Investment).
9. Foreign contractors winning bids in
construction activities in Vietnam shall comply with the provisions of Clause
4, Article 7 of the Construction Law and the Prime Minister's Decision No.
87/2004/QD-TTg of May 19, 2004, promulgating the Regulation on management of
operation of foreign contractors in construction in Vietnam without having to
abide by the provisions of Clauses 1 thru 8 of this Article.
Article 61.- Bidding
inspection
1. The Ministry of Planning and Investment shall
assume the prime responsibility for, and organizes bidding inspection
throughout the country. Ministries, ministerial-level agencies,
government-attached agencies, other central and local agencies and People's
Committees at all levels shall conduct bidding inspection at the units under
their management and for investment projects they decide.
2. Bidding inspection is conducted regularly
under plans or extraordinarily (in case of problems or requests) under
decisions of competent persons of inspection agencies.
3. Contents of bidding inspection include:
a/ Inspecting bidding training and re-training
certificates, certificates of professional qualifications of bidding cadres and
experts and legal documents related to contractor selection.
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- Legal grounds;
- Contents of bidding plans, rationality of the
division of bidding packages and forms of selecting contractors applicable to
bidding packages;
- Schedules for execution of bidding packages
under the approved bidding plans. The adjustment of bidding plans (if any) and
reasons therefor;
- The submission for approval and approval of
bidding plans.
c/ Inspecting the selection of contractors for
execution of bidding packages according to the following contents:
- Compliance with the approved legal grounds
such as bidding plans, bidding dossiers and dossiers of requirements;
- The execution order and time.
d/ Detecting shortcomings in the bidding work
and proposing remedies.
4. After the end of an inspection, an inspection
report must be made. The inspecting agency shall monitor the remedy of
shortcomings listed in the conclusions of the inspection report.
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a/ Legal grounds;
b/ Inspection results;
c/ Comments;
d/ Proposals.
Article 62.-
Supervision of bidding activities by the community
The supervision of bidding activities by the
community complies with the provisions of law on supervision of investment by
the community.
Chapter XI
IMPLEMENTATION
PROVISIONS
Article 63.- Implementation
guidance
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2. For bidding packages for which bidding
dossiers are distributed after the effective date of the Bidding Law (April 1,
2006), the provisions of the Bidding Law apply. Specifically:
a/ From April 1, 2006, to before the effective
date of this Decree, the provisions of the Bidding Law and the guidance in the
Ministry of Planning and Investment's Official Letter No. 2820/BKH-QLDT of
April 21, 2006, apply;
b/ After this Decree takes effect, the
provisions of the Bidding Law and this Decree apply.
3. Bidding information continues to be published
in the Bidding Bulletin managed by the Ministry of Planning and Investment
until a bidding newspaper comes to the public under the specific guidance of
the Ministry of Planning and Investment.
4. The provisions on publication of information
on the bidding website, online bidding, certificates of participation in
bidding courses, forms of bidding document, forms of operation registration
certificates of foreign contractors shall comply with the guidance of the
Ministry of Planning and Investment. Dossiers of invitation for
pre-qualification and bidding dossiers comply with the provisions of Appendices
to this Decree (not printed herein) till detailed forms are issued.
5. The Finance Ministry shall guide the
provisions of Clause 2, Article 1 of the Bidding Law regarding projects funded
with state capital for asset procurement to maintain regular activities of
state agencies, political organizations, socio-political organizations,
socio-political-professional organizations, social organizations,
socio-professional organizations and people's armed force units.
6. The Ministry of Trade shall guide procedures
for import and export of goods by bid-winning contractors.
7. The Ministry of Construction shall, within
the ambit of its management, guide the necessary contents on selection of
contractors in construction activities in compliance with the provisions of
this Decree.
8. Ministries, ministerial-level agencies,
government-attached agencies, other central agencies and provincial-level
People's Committees shall, within their management scope, provide detailed
guidance on a number of contents of this Decree (if necessary) in compliance
with the provisions of this Decree.
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Article 64.-
Implementation effect
This Decree takes effect 15 days after its
publication in "CONG BAO." As from the effective date of this Decree,
the Government's Decree No. 88/1999/ND-CP of September 1, 1999, Decree No.
14/2000/ND-CP of May 5, 2000, and Decree No. 66/2003/ND-CP of June 12, 2003,
cease to be effective. All previous regulations of the Government, ministries,
ministerial-level agencies and localities which are contrary to the provisions
of the Bidding Law, the Construction Law and this Decree are annulled.