NATIONAL
ASSEMBLY
------- |
SOCIALIST REPUBLIC
OF VIET NAM
Independence - Freedom - Happiness ---------- |
Law No.
43/2013/QH13
|
Hanoi, November
26,2013
|
LAW
Pursuant to the Constitution
of the Socialist Republic of Vietnam;
National Assembly promulgates
the Law on bidding.
Chapter 1.
GENERAL
PROVISIONS
Article 1. Scope of
regulation
This Law provides for state
management on bidding; responsibilities of concerned parties and activities of
bidding, including:
1. Selection of tenderers to
supply the advisory services, non-advisory services, goods, construction and
installation for:
a) Projects on development
investment financed by state of state agencies, political organizations,
socio-political organizations, professional-socio-political organizations,
socio-professional organizations, social organizations, units of People’s armed
forces, and public non-business units;
b) Projects on development
investment of state-owned enterprises;
c) Projects on development
investment other than cases defined at point a and point b of this Clause which
are financed by state, state-owned enterprises with level equal to 30% or more
or less than 30% but more than 500 billion VND in total invested capital of
project.
d) Procurement financed by state
aiming to maintain regular activities of State bodies, political organizations,
socio-political organizations, socio-political-occupational organizations,
social organizations, socio-occupational organizations and units of the
People’s armed forces, and public non-business units;
dd) Procurement financed by
state aiming to supply products and services in serve of public purpose;
e) Purchase of national reserve
goods financed by state;
g) Purchase of drugs, medical
supplies financed state; medical insurance fund, revenues from services of
medical examination and treatment and other lawful revenues of public medical
establishments;
2. Selection of tenderers to
supply the advisory services, non-advisory services, goods on Vietnam’s
territory for implementation of overseas direct-investment projects of
Vietnamese enterprises which are financed by state with level equal to 30% or
more or less than 30% but more than 500 billion VND in total invested capital
of project.
3. Selection of investors to
perform the investment projects in form of public-private partnership (PPP),
investment projects with land use;
4. Selection of tenderers in
petroleum field, except for selection of tenderers to supply petroleum services
related directly to activities of search, exploration and development of mines
and petroleum exploitation as prescribed by law on petroleum.
Article 2. Subjects of
application
1. Organizations and individuals
that participate in or related to activities of bidding defined in Article 1 of
this Law.
2. Organizations and individuals
that have activities of bidding not within the governing scope of this Law may
choose to apply this Law. In case of choosing to apply, organizations and
individuals must observe the concerned provisions of this law and ensure
fairness, transparency and economic efficiency.
Article 3. Application of Law
on bidding, International treaties and international agreements
1. Bidding activities must
comply with the provisions of this Law and other related laws.
2. Case of selecting by bidding
for provision of raw materials, fuel, materials, supplies, advisory services,
non-advisory services in order to ensure the continuity for production and
business and procurement with the aim to maintain regular activities of
state-owned enterprises; implementation of bidding packages of investment
projects in the form of public-private partnership, investment projects with
land use of the selected investors, enterprises must promulgate regulations on
choosing tenderers for unified application in enterprises on the basis of
ensuring objective of fairness, transparency, and economic efficiency.
3. For selection of tenderers,
investors of projects financed by official development assistance (ODA)
capital, concessional loans arising from International treaties, international
agreements between Vietnam and donors, international treaties, international
agreements shall be applied.
4. If International treaties to
which the Socialist Republic of Vietnam is a contracting party have provisions
on selection of tenderers and investors different from this Law, such
International treaties shall prevail.
Article 4. Interpretation of
terms
In this Law, the following terms
are construed as follows:
1. Bidding guarantee means the
tenderer or investor provides security by one of the security methods of paying
a deposit, escrow or providing a letter of guarantee of credit institutions or
foreign banks’ branches which are established under Vietnamese law in order to
secure the liability in the bid participation of tenderer or investor for a definite
term as stipulated in the bid invitation documents, dossier of requirements.
2. Contract performance
guarantee means the tenderer or investor provides security by one of the
security methods of paying a deposit, escrow or providing a letter of guarantee
of credit institutions or foreign banks’ branches which are established under
Vietnamese law in order to secure the liability of the Contract performance by
tenderer or investor.
3. Bid solicitor means a
professional agency or organization with sufficient capability to perform
bidding activities, including:
a) Investor or organization
which is decided for establishment or selected by the investor;
b) Estimation unit directly
using capital source for regular procurement;
c) The unit of concentrated procurement:
d) Competent state agencies or
the affiliated organizations which are selected by the competent state
agencies.
4. Investor means the
entity owning the financing capital or the entity assigned responsibility to
represent such owner, or the borrower directly managing and implementing
project.
5. Digital certificate means
electronic certificate granted by providers of digital signature certificate
service in order to perform bidding via network on the national bidding network
system.
6. Competent state agencies
mean agencies signing contracts with investors.
7. Short list means list
of tenderers, investors winning pre-qualification for open bidding with
pre-qualification; list of tenderers invited for bid participation for limited
bidding; list of tenderers with dossiers of expression of interest meeting
requirements of dossiers of invitation for expression of interest.
8. Advisory service means one
or a number of activities including: Preparation, assessment of the
planning report, overall development diagram, architecture; survey and making
of pre-feasibility study report, feasibility study
report, environmental impact assessment report; survey and making of
engineering, estimate; preparation of dossiers of invitation for expression of
interest, dossier of invitation for pre-qualification, bid dossiers, dossiers
of requirements; assessment of dossiers of expression of interest, dossiers of prequalification
participation, bid dossiers, dossiers of proposals; verification, appraisal;
supervision; management of project; arranging finance; audit, training,
transfer of technologies; other advisory services.
9. Non-advisory service means
one or a number of activities including: Logistics, insurance,
advertisement, installation not belong to Clause 45 of this Article,
pre-acceptance test and operation run, holding of training, maintenance,
drawing maps and other activities not being advisory services defined at clause
8 of this article.
10. Project management
enterprise means enterprise which is established by investor for
performance of investment project in form of private-public partnership or
investment project with land use.
11. Projects on development
investment (hereinafter collectively referred to as projects) include:
programs or projects on investment in new construction; projects on renovation,
upgrading, expansion of projects invested in construction; projects on
procurement of assets, including equipment, machinery without installation;
projects on repair, upgrading of assets, equipment; projects, schemes on
planning; projects, subjects on scientific research, technology development,
application of technologies, technical support, basic survey; other programs,
projects, or schemes on development investment.
12. Bidding means the
process of selecting a tenderer to sign and implement contract of provision of
advisory services, non-advisory services, procurement of goods, construction
and installation; selecting an investor to sign and implement contract of
investment project in form of public-private partnership, investment project
with land use on the basis of ensuring competitiveness, fairness, transparency
and economic efficiency.
13. Bidding via network means
bidding which is performed via use of the national bidding network system.
14. International bidding means
bidding in which both foreign and domestic tenderers and investors may
participate.
15. Domestic bidding means
bidding in which only domestic tenderers and investors may participate.
16. The bidding package price
means the value of a bidding package approved in the plan on selecting
tenderers.
17. The bidding price
means the price stated by a tenderer in application for bid participation,
quotation, including all costs for implementation of bidding package as
required by dossier of bid invitation, dossier of requirement.
18. The assessment price
means the bidding price after the errors have been rectified and discrepancies
have been adjusted as required in dossier of bid invitation, minus the value of
discount (if any), plus elements to convert on a same ground for whole use life
cycle of goods and works. The assessment price is used to rank dossiers of bid
participation for bidding packages of procurement of goods, construction and
installation and the mixture bidding packages applying form of public bidding
or limited bidding.
19. Proposed bid-winning
price means the bidding price of the tenderer who are proposed to win bid
after the errors have been rectified and discrepancies have been adjusted as
required by the bidding invitation documents, dossiers of requirements, minus
the value of discount (if any).
20. Winning bid price
means the price approved in the results of selection of tenderer.
21. Contractual price means
the price stated in written contract as the basis for advance payment, payment,
liquidation and finalization of contract.
22. Bidding package means
a part of, or entire project, estimate of procurement; a bidding package may
comprise items for the procurement of similar goods for a number of projects or
a one-off procurement, procurement for a period in recurrent procurement,
concentrated procurement of goods.
23. Mixture bidding package means
a bidding package comprising of engineering and goods provision (EP);
engineering, construction and installation (EC); goods provision and
construction and installation (PC); engineering, goods provision, construction
and installation (EPC); making project, engineering, goods provision,
construction and installation (turnkey).
24. Bidding package with
small scale means a bidding package with price in limitation prescribed by
the Government.
25. Goods include machinery,
equipment, raw materials, fuel, materials, supplies, accessories; consumables;
drugs, medical supplies used for medical establishment.
26. The national bidding
network system means an information technology system which is set up and
managed by the state management agency of bidding activities with the aim to
perform unified management of information on bidding and bidding via network.
27. Dossiers of invitation
for expression of interest, dossiers of invitation for pre-qualification mean
all documents including requirements on capability and experiences of
tenderers, investors as the basis for the bid solicitor to select list of
tenderers, investors winning pre-qualification, list of tenderers with dossiers
of expression of interest meeting requirements of dossiers of invitation for
expression of interest.
28. Dossiers of expression of
interest, dossiers of pre-qualification participation mean all documents
which are made by tenderers, investors and submitted to the bid solicitor at
the requirements of dossiers of invitation for expression of interest, dossiers
of invitation for pre-qualification.
29. Bid invitation documents
mean all of the documents used for open or limited bidding stipulating the
requirements for a project, bidding package and providing the legal basis for
tenderers, investors to prepare their bid dossiers and for the bid solicitor to
assess bid dossiers aimed at selection of a winning tenderer, or investor.
30. Dossier of requirements mean
all of the documents used for direct appointment of contractor, direct
procurement, competitive quotation including the requirements for a project,
bidding package and providing the basis for tenderers, investors to prepare
their dossier of proposals and for the bid solicitor to assess dossier of
proposals aimed at selection of a winning tenderer, or investor.
31. Bid dossiers, dossiers of
proposals mean all documents which are made by tenderers, investors
and submitted to the bid solicitor at the requirements of the bidding dossiers,
dossiers of requirements.
32. Contract means the
document signed between the investor and the selected contractor in
implementation of bidding package under project; between bid solicitor and the
selected contractor in regular procurement; between the
concentrated-procurement unit or unit with procurement need with the selected
contractor in the concentrated procurement; between competent state agency with
the selected investor or between the competent state agency and the selected
investor and project enterprise in the investor selection.
33. Protest means a
request from any tenderer, investor participating in tendering for
reconsideration of the results of selection of contractor, results of selection
of investor and regarding any other relevant matter during the process or
selecting contractor, investor when such tenderer or investor considers his
rights and interests have been adversely affected.
34. Competent person means
person who decides on the approval of project or person who decides on
procurement as prescribed by law. In case of selection of investor, the
competent person means the head of competent state agency as prescribed by law.
35. Head contractor means
a tenderer liable for its participation in bidding which gives its name to a
tender, and which directly signs in and implements a contract if selected. Head
contractor may be dependent contractor or member of partnership of contractors.
36. Sub-contractor means
a contractor performing part of the work of a tender package on the basis of a
contract signed with the head contractor. The special sub-contractor means a
sub-contractor performing special works of a tender package proposed by the
head contractor in bidding dossier, dossier of proposals on the basis of
requirements stated in bidding dossier, dossier of requirements.
37. Foreign contractor means
an organization established under foreign law or an individual of foreign
nationality participating in bid in Vietnam.
38. Domestic contractor means
an organization established under Vietnamese law or individual of Vietnamese
nationality participating in bid.
39. Public products and
services mean the essential products and services for economic-social life
of country, population communities or assurance of national defense and
security which the State must organize implementation in the fields: Health,
education - training, culture, information, communications, science –
technology, natural resources - environment, transport and other fields as
prescribed by Government. Public products and services include the
public-interest products and services, and services for public career.
40. Appraisal in the course
of selecting contractor or investor means check and assessment plan on selecting
contractors, investors, dossiers of invitation for expression of interest,
dossiers of invitation for pre-qualification, bidding dossiers, dossier of
requirements and results of invitation for expression of interest, results of
pre-qualification, results of selection of contractor, investor as the basis
for the authorized person to consider and make a decision on approval in
accordance with this Law.
41. Time of bid closure means
the expiry time of receiving dossiers of expression of interest, dossiers of
pre-qualification participation, bid dossiers, dossier of proposals.
42. The validity duration of
bid dossiers, dossier of proposals means number of days stipulated in
bidding dossier, dossier of requirements and calculated from the time of bid
closure to the end effect day as prescribed in bidding dossiers, dossiers of
requirements. From the time of bid closure until ending of 24 hours of day of
bid closure is calculated as 01 day.
43. The expert group
includes individuals with capability and experiences set up by the bid
solicitor or the bid consultancy unit in order to assess dossiers of expression
of interest, dossiers of pre-qualification participation, bid dossiers, dossier
of proposals and perform other tasks during selection of contractors, investors.
44. Financed by the State means
the use of State Budget funds; national bonds, Governmental bonds, bonds of
local authorities; official development assistance capital, concessional loans
from donors; fund for development of non-business activities; credit facilities
for investment and development of the State; credit facilities guaranteed by
the Government, loans guaranteed by assets of state; investment and development
funds of State-owned enterprises, and value of land-use right.
45. Construction and
installation include works of construction and installation of works and
work items.
Article 5. Eligibility of
tenderers, investors
1. A tenderer or investor being
an organization shall be deemed to be eligible when it satisfies the following
conditions:
a) Having registration for
establishment and operation issued by the competent authority of country where
it is operating;
b) It is an independent cost
accounting entity;
c) It is not in the process of
dissolution; not concluded to fall into the state of bankruptcy or to be
insolvent as prescribed by law.
d) It has registered on the
national bidding network system;
dd) To ensure competitiveness in
bid as prescribed in Article 6 of this Law;
e) It is not in time banned from
bid participation;
g) Its name is stated in short
list for case where the short list has been selected;
h) It must have a partnership
with domestic contractors or use sub-contractors if it is foreign tenderer when
participating in international bid in Vietnam, unless domestic contractors have
not full capability to participate in any part of bidding package.
2. A tenderer or investor being
an individual shall be deemed to be eligible when it satisfies the following
conditions:
a) Having full capacity for
civil acts pursuant to the law of the country of which such individual is a
citizen;
b) Having an appropriate
professional certificate as prescribed by law;
c) Having lawful registration
for operation as prescribed by law;
d) Such individual is not being
examined for penal liability;
d) Such individual is not in
time banned from bid participation.
3. Tenderers and investors with
eligibility as prescribed in Clause 1 and Clause 2 of this Article may
participate in bid with an independent status or partnership; in case of
partnership, it must have written agreement among members, in which clearly
stating responsibilities of head of partnership and general responsibilities,
separate responsibilities of each member in partnership.
Article 6. Ensuring
competitiveness in bid
1. Tenderers submitting dossiers
of expression of interest, dossiers of pre-qualification participation must be
independent legally and independent financial with advisory tenderers for
making dossiers of invitation for expression of interest, dossiers of
invitation for pre-qualification; assessment of dossiers of expression of
interest, dossiers of pre-qualification participation; appraisal for results of
invitation for interest, results of pre-qualification.
2. Tenderers participating in
bid must be independent legally and independent financial with the following
parties:
a) Investment owner, bid
solicitor:
b) The advisory tenderers for
the making, verification, and appraisal of dossiers of design and estimate; the
making, verification of bidding dossiers, dossier of requirements; assessment
of bid dossiers, dossier of proposals; appraisal of results of selecting
tenderer of such bidding package;
c) Other tenderers that
participate in same bidding package for limited bidding.
3. A consultancy tenderer who
supervises implementation of a contract must be independent legally,
independent financially from the tenderer who performs the contract, the
consultancy tenderer who verifies such bidding package.
4. Investors participating in
bid must be independent legally and independent financial with the following
parties:
a) The consultancy tenderers for
bidding for investment projects in form of public-private partnership (PPP),
investment projects with land use, until day of signing the project contract;
b) The consultancy tenderer that
verifies the investment project in form of public-private partnership (PPP),
investment project with land use, until day of signing the project contract;
c) Competent state agencies, and
the bid solicitor.
5. The Government shall detail
this Article.
Article 7. Conditions for
issuing the bidding dossiers, dossier of requirements
1. The bidding dossiers, dossier
of requirements of a bidding package may be only issued to select tenderers
when having full the following conditions:
a) The approved plan on
selection of tenderers;
b) The approved bidding
dossiers, dossier of requirements include contents of requirements on
procedures for bidding, tables of bidding data; criteria for evaluation, forms
of bidding, volume table of bid invitation; requirements on progress,
techniques, quality; general conditions, specific conditions of contracts,
model contracts and other necessary contents;
c) Notice of bid invitation,
notice of quotation invitation or short list must be published as prescribed by
this Law;
d) Capital sources for bidding
package are allocated under the implementation schedule of bidding package;
dd) Content, list of goods,
services and estimates already been approved by competent person in case of
regular procurement and concentrated procurement;
e) Ensuring the handing over of
construction ground under implementation schedule of bidding package.
2. Bidding dossiers, dossier of
requirements of a project may be only issued to select investors when having
full the following conditions:
a) Project under list of
projects announced by Ministries, Ministerial agencies, Governmental agencies,
the provincial/municipal People’s Committees as prescribed by law or projects
proposed by investors;
b) The approved plan on
selection of tenderers;
c) The approved bidding
dossiers, dossier of requirements;
d) Notice of bid invitation, or
short list must be published as prescribed by this Law.
Article 8. Information of
bidding
1. All information must be
published on the national bidding network system, bidding newspapers including:
a) The plan on selection of
tenderers, investors;
b) Notice of invitation for
expression of interest, notice of invitation for pre-qualification;
c) Notice of invitation for
quotation, notice of bid invitation;
d) Short list;
dd) Results of selection of
tenderers, investors;
e) Results of bid opening for
bidding via network;
g) Information on handling of
violations of law on bidding;
h) Legal documents on bidding;
i) List of investment projects
in the form of public-private partnership, projects with land use;
k) The database of tenderers,
investors, bidding experts, lecturers of bidding, and establishments of
training on bidding;
l) Other relevant information.
2. The information defined at
Clause 1 this Article is encouraged to publish on websites of Ministries,
sectors and localities or on other means of mass media.
3. The Government shall detail
this Article.
Article 9. Language to be
used in bidding
Language to be used in tendering
shall be Vietnamese in the case of domestic bidding, and English or Vietnamese
and English in the case of international bidding.
Article 10. Currency to be
used in bidding
1. For domestic bidding,
tenderers are only allowed to have bid quotation in Vietnam dong.
2. For international bidding:
a) Bidding dossiers, dossier of
requirements must state the currency for bidding in bid dossiers, dossier of
proposals but not exceeding three currencies; for a specific work item, only
give bid quotation in a currency kind;
b) In case where bidding
dossiers, dossier of requirements stipulate that tenderers may have bid
quotation in two or three currencies when assessing bid dossiers, dossier of
proposals, quotation must be converted into a currency kind; if having Vietnam
dong used in such currencies, quotation must be converted into Vietnam dong.
Bidding dossiers, dossier of requirements must stipulate the convertible
currency, time and bases to determine the exchange rate for converting;
c) For domestic costs involving
implementation of bidding, tenderers must have a bid quotation in Vietnam dong;
d) For overseas costs involving
implementation of bidding, tenderers may have a bid quotation in foreign
currency
Article 11. Bidding guarantee
1. Bidding guarantee shall apply
in the following cases:
a) Open bidding, limited bidding,
and competitive quotation for bidding package of non-advisory service
provision, goods procurement, construction and installation, and mixture
bidding package;
b) Open bidding and direct
appointment of contractor for selection of investor.
2. Tenderers and investors must
conduct measures for bidding guarantee before time of bid closure for bid
dossiers, dossiers of proposals; case of applying method of two-phase bidding,
tenderers must provide a bidding guarantee during phase two.
3. Value of bidding guarantee is
stipulated as follows:
a) For selection of tenderer,
value of bidding guarantee is stipulated in bidding dossiers, dossier of
requirements under a defined amount of between 1% and 3% of the bidding package
price basing on the scale and nature of each particular tender package;
b) For selection of investor,
value of bidding guarantee is stipulated in bidding dossiers, dossier of
requirements under a defined amount of between 0.5% and 1.5% of total invested
capital basing on the scale and nature of each particular project.
4. The validity duration of
bidding guarantee is stipulated in bidding dossier, dossier of requirements
equal to the term of validity of the bid dossiers, dossier of proposals plus
thirty (30) days.
5. Case of extending the period
of validity of bid dossiers, dossiers of proposals after time of bid closure,
and the bid solicitor must require tenderers, investors to extend the period of
validity of their bidding guarantees for an equivalent term. In such a case,
tenderers, investors must extend the period of validity of their tender
guarantees and not be permitted to change the contents of their submitted bid
dossiers, dossiers of proposals. If any tenderer or investor refuses to extend
the period of validity, his bid dossier, dossier of proposals will be no valid
longer and be rejected, the party calling for tenders shall return or release
the biding guarantee to the tenderer, investor within 20 days, since the bid
solicitor receives a written refusal for extension.
6. If a partnership participates
in bid, every member in partnership may perform separate bidding guarantee or
make agreement in which one member will be responsible for implementation of
its bidding guarantee or for bidding guarantee of other members in partnership.
Total value of bidding guarantee is not lower than the value required in
bidding dossiers, dossier of requirements. When having member in partnership
violating provision in Clause 8 of this Article, bidding guarantee of all
members in partnership will not be returned.
7. The bid solicitor shall
return or release bidding guarantee to tenderers or investors who are not
selected under the duration specified in bidding dossier, dossier of
requirements but not exceeding 20 days, after the day of approving result of
selection of tenderer, investor. For the selected tenderer, investor, his
bidding guarantee will be returned or released after he provides a contract
performance guarantee as prescribed in Article 66 and Article 72 of this Law.
8. A Bidding guarantee shall not
be refunded in the following cases:
a) Tenderer or investor
withdraws bid dossier, dossier of proposals after time of bid closure when the
bid dossier, dossier of proposals still remains valid.
b) Tenderer or investor violates
law on bidding which leads to be cancelled bid as prescribed at Clause 4
Article 17 of this Law;
c) Tenderer or investor fails to
provide a contract performance guarantee as prescribed at Article 66 and
Article 72 of this Law;
d) The tenderer fails or refuses
to negotiate and finalize the contract, within a period of twenty (20) days
from the date of receipt of notification of winning bid from the bid solicitor
or has negotiated and finalized the contract but refuses to sign the contract
except for force majeure cases;
dd) The investor fails or
refuses to negotiate and finalize the contract, within a period of thirty (30)
days from the date of receipt of notification of winning bid from the bid
solicitor or has negotiated and finalized the contract but refuses to sign the contract
except for force majeure cases.
Article 12. Time-limits
applicable during selection of tenderers, investors
1. Time-limits applicable during
selection of tenderers:
a) The maximum time for approval
of plan on tenderer selection shall be 05 working days after receiving report
on appraisal;
b) Dossiers of invitation for
expression of interest, dossiers of invitation for pre-qualification, bidding
dossiers, dossier of requirements shall be issued after 03 working days from
the first day of publishing notice of invitation for submission of dossiers of
expression of interest, notice of pre-qualification invitation, notice of bid
invitation, notice of quotation invitation, sending of letters inviting
submission of bidding before time of bid closure;
c) Duration for preparing
dossiers of expression of interest shall be at least 10 days for domestic
bidding and 20 days for international bidding, from the first day when dossiers
of invitation for expression of interest are issued until day of bid closure time;
Tenderers must submit dossiers of expression of interest before time of bid
closure;
d) Duration for preparing
dossiers of pre-qualification participation shall be at least 10 days for
domestic bidding and 20 days for international bidding, from the first day when
dossiers of invitation for pre-qualification are issued until day of bid
closure time. Tenderers must submit dossiers of pre-qualification participation
before time of bid closure;
d) Duration for preparing
dossiers of proposals shall be at least 05 working days, from the first day
when dossiers of requirements are issued until day of bid closure time.
Tenderers must submit dossiers of proposals before time of bid closure;
e) Duration for preparing the
bid dossiers shall be at least 20 days for domestic bidding and 40 days for
international bidding, from the first day when bidding dossiers are issued
until day of bid closure time. Tenderers must submit the bid dossiers before
time of bid closure;
g) The maximum time allowed for
assessment of dossiers of expression of interest, dossiers of pre-qualification
participation shall be 20 days, for dossier of proposals shall be 30 days, for
bid dossiers shall be 45 days in the case of domestic bidding, as from the date
of bid closure time until the date the bid solicitor submits to investment
owner for approving the results of tenderer selection. The maximum time allowed
for assessment of dossiers of expression of interest, dossiers of
pre-qualification participation shall be 30 days, for dossier of proposals
shall be 40 days, for bid dossiers shall be 60 days in the case of
international bidding, as from the date of bid closure time until the date the
bid solicitor submits to investment owner for approving the results of tenderer
selection. In necessary case, time for assessment of dossiers of bid dossier,
dossier of proposals may be prolonged but not exceed 20 days and must ensure
implementation schedule of project;
h) The maximum time for
appraisal shall be 20 days for each content of appraisal: plan on selection of
tenderer, dossiers of invitation for expression of interest, dossiers of
invitation for pre-qualification, bidding dossiers, dossier of requirements,
result of selection of tenderer after receiving full the submitted documents;
i) The maximum time for
approving dossiers of invitation for expression of interest, dossiers of
invitation for pre-qualification, dossier of requirements, bidding dossiers
shall be 10 days, as from the date of receiving the written request for
approving dossiers of invitation for expression of interest, dossiers of
invitation for pre-qualification, dossier of requirements, bidding dossiers of
the bid solicitor or the appraisal report in case of having appraisal
requirement;
k) The maximum time for
approving or giving the handling opinion on result of tenderer selection shall
be 10 days, as from the date of receiving the written request for approving the
result of tenderer selection of the bid solicitor or the appraisal report in
case of having appraisal requirement;
l) The maximum period of
validity of a bid dossier, dossier of proposals shall be 180 days as from the
bid closure; in case of bidding package with bid scale, complex nature, bidding
package under two-phase bidding method, the maximum period of validity of a bid
dossier shall be 210 days, as from the bid closure. In necessary cases a
tenderer may request extension of the period of validity of his bid dossier,
dossier of proposals, and must ensure progress of project;
m) Time for sending a document
to modify a bidding dossier to tenderers already received bidding dossier shall
be 10 days minimally for domestic bidding and 15 days minimally for
international bidding before day of bid closure; for modification of dossier of
invitation for expression of interest, dossier of invitation for
pre-qualification, dossier of requirements, it shall be 03 working days
minimally before day of bid closure. If time for sending a document to modify
dossiers fail to meet provision at this point, the bid solicitor shall perform
extension of bid closure time respectively in order to ensure provision on time
for sending a document to modify a dossier of invitation for expression of
interest, dossier of pre-qualification invitation, bidding dossier or dossier
of requirements;
n) Time-limit for sending notice
of tenderer selection result to tenderers bidding via post, facsimile shall be
05 working days, as from the date of approving the result of tenderer
selection.
2. The Government shall detail
time-limits applicable during selection of tenderer for bidding packages with
small scale, bidding packages with participation of community; time-limits
applicable during selection of investor; time-limits applicable during
selection of tenderer or investor via network.
Article 13. Expenses for bidding
1. Expenses of the process of
selection of contractor include:
a) Expenses for preparation of
dossiers of expression of interest, dossiers of pre-qualification
participation, bid dossiers, dossiers of proposals and participation in bidding
shall be borne by tenderers.
b) Expenses of process of tender
selection shall be included in total invested capital or estimated budget of
procurement;
c) Dossiers of invitation for
expression of interest, dossiers of invitation for pre-qualification shall be
issued to tenderers free;
d) Bidding dossiers, dossiers of
requirements shall be sold or issued free to tenderers;
2. Expenses of the process of
selection of investor include:
a) Expenses for preparation of
dossiers of pre-qualification participation, bid dossiers, dossiers of
proposals and participation in bidding shall be borne by investors;
b) Expenses of process of
investor selection shall be financed by state, other lawful capital sources and
included in total invested capital;
c) The investor who is selected
to perform project must pay expenses of process of investor selection;
d) Dossiers of invitation for
pre-qualification, bidding dossiers, dossiers of requirements shall be sold to
investors.
3. Expenses of the process of
bidding via network include:
a) Expenses for participation in
the national bidding network system, expenses for publishing information of
bidding and other expenses;
b) Expenses for participation in
a bid, organization of bid as prescribed at Clause 1 and Clause 2 of this
Article.
4. The Government shall detail
this Article.
Article 14. Preferential
treatment in selection of tenderers:
1. Tenderers shall be enjoyed
preferential treatment when participating in domestic or international bidding
to supply goods of which costs for domestic production occupy 25% or more.
2. Entities entitled to
preferential treatment in international bidding to supply the advisory
services, non-advisory services, construction and installment include:
a) Domestic tenderers bidding
with independent or partnership status;
b) Foreign tenderers in
partnership with domestic tenderers in which the domestic tenderers take over
from 25% or more of work value of bidding package.
3. Entities entitled to
preferential treatment in domestic bidding to supply the advisory services,
non-advisory services, construction and installment include:
a) Tenderers employing female
laborers of 25 % or more of laborer quantity;
b) Tenderers employing laborers
being invalids, disable people of 25 % or more of laborer quantity;
c) Tenderers being small-size
enterprises.
4. Preferential treatment is
calculated to apply during assessing the bid dossiers, dossiers of proposals in
order to compare, rank the bid dossiers, dossiers of proposals according to one
of the following methods:
a) Plus more points into the
assessment point of tenderers belonging to entities entitled to preferential
treatment;
b) Plus more amount into the
bidding price or assessment price of tenderers not belonging to entities
entitled to preferential treatment;
5. Entities and content or
preferential treatment in selection of tenderer specified in this Article shall
not apply in case where International treaties in which the Socialist Republic
of Vietnam is a contracting party or international agreements between Vietnam and
donors otherwise provides for preferential treatment in selection of tenderer.
6. The Government shall detail
this Article.
Article 15. International
bidding
1. International bidding shall
be held to select tenderer only when it meets one of the following conditions:
a) The donor of bidding package
requests for holding international bidding;
b) Tender packages for
procurement of goods where the goods are not yet able to be manufactured
domestically or able to be manufactured but fail to meet technical, quality or
price requirements. Cases of common goods, already been imported and offered
for sale in Vietnam, do not organize international bidding;
c) Bidding packages of providing
advisory service, non-advisory service, construction and installation, mixture
provision which domestic tenderers are not able to satisfy requirements of
bidding package performance.
2. Investment projects in form
of public-private partnership (PPP), investment projects with land use, except
for cases limited investment as prescribed by law on investment.
3. The Government shall detail
this Article.
Article 16. Conditions for
individuals to participate in bidding activities
1. Individuals participating in
bidding activities must possess certificate of training on bidding and have
professional expertise, capability, experiences, language appropriate to the
requirements of the bidding package, project, except for individuals belonging
to tenderers, investors.
2. Individuals who directly
participate in making dossiers of invitation for expression of interest,
dossiers of invitation for pre-qualification, bidding dossiers, dossiers of
requirements; assessment of dossiers of expression of interest, dossiers of
pre-qualification participation, bid dossiers, dossier of proposals of professional
bidding organizations, enterprises, units operating in advisory for bidding,
professional management board of projects must have certificate of practicing
on bidding operation.
Article 17. Cases of bidding
cancellation
1. All bid dossiers, dossiers of
proposals failed to satisfy the requirements of the bid invitation documents,
dossier of requirements.
2. Alteration of the objectives
or scope of the investment stated in the bid invitation documents, dossier of
requirements.
3. The bid invitation documents,
dossier of requirements failed to comply with legislation on bidding or other
relevant legislation that lead to the failure of the selected tenderer or
investor to meet requirements to perform bidding package, project.
4. There is evidence showing the
handing, taking, brokerage of bribes, conclusion with each other in bidding,
fraud, taking advantage of positions, powers aiming to interfere illegally in
bidding activities that lead to the falsified result of selecting the tenderer,
investor.
Article 18. Responsibilities
upon bidding cancellation
Organizations and individuals
infringing law on bidding that lead to bidding cancellation as prescribed in
Clause 3 and Clause 4 Article 17 of this Law must compensate expenses for
related parties and be handled as prescribed by law.
Article 19. Training and
capacity building on bidding
1. Facilities are entitled to
hold activities of training and capacity building on bidding for individuals
specified in Article 16 of this Law upon satisfying the following conditions:
a) Be established and operate as
prescribed by law;
b) Have material facilities,
documents for teaching which meet standards as prescribed by state management
agencies on bidding activities;
c) Have contingent of lecturers
on bidding possessing certificate of practicing in bidding operation;
d) Have name in list of
facilities of bidding training on the national bidding network system.
2. Facilities of bidding
training have the following responsibilities:
a) Ensure quality of training
and capacity building; supply information on their training facilities to the
state management agencies on bidding operation;
b) Perform activities of
training and capacity building on the basis of framework programs on training
in bidding and grant the certificates of bidding for learners in accordance
with regulations;
c) Store all dossiers of courses
of training and capacity building in bidding which are held by them in
accordance with regulations;
d) Conduct annual reports and
reports at the request of state management agencies of bidding operation about
situation of training and capacity building in bidding.
3. The Government shall detail
this Article.
Chapter 2.
FORMS
AND METHODS OF SELECTION OF CONTRACTORS, INVESTORS AND PROFESSIONAL BIDDING
ORGANIZATIONS
SECTION 1. FORMS OF SELECTION
OF CONTRACTORS, INVESTORS
Article 20. Open bidding
1. Open bidding is form of
selection of contractors, investors in which the number of participating
tenders, investors shall be unrestricted.
2. Open bidding is applied to
bidding packages, projects under Scope of regulation of this Law, except for
cases specified in Articles 21, 22, 23, 24, 25, 26 and 27 of this Law.
Article 21. Limited bidding
Limited bidding shall apply in
case where a bidding package has highly technical requirements or technical
peculiarities for which only a limited number of tenderers are capable of
satisfying the requirements of the bidding package.
Article 22. Direct
appointment of contractor
1. Direct appointment of
contractor for contractor shall apply in the following cases:
a) Bidding packages need be
performed to immediately overcome or timely handle consequences caused by force
majeure event; bidding packages need be performed to ensure national secret;
bidding packages need be carried out immediately to not cause damages directly
to life, health and assets of population communities on geographical areas or
to not severely affect to adjacent projects; bidding package of purchasing
drugs, chemicals, supplies, and health equipment in order to carry out the work
of prevention and fighting of epidemics in urgent cases;
b) Urgent bidding packages need
be carried out aiming to protect national sovereignty, national borders, and
islands;
c) Bidding packages of provision
of advisory services, non-advisory services, procurement of goods which must
buy from contractors performed previously due to ensuring the compatibility of
technologies, copyright which not able to buy from other contractors; bidding
packages with nature of research, test; purchase of intellectual property
copyright;
d) Bidding packages provide
advisory service for making feasible study reports, construction designs which
have been appointed for authors of designs of works architectures who won in
selection or are selected when authors have full conditions and capability in
accordance with regulations; bidding packages of construction of statues,
reliefs, monumental paintings, art works in association with author right from
the creation stage to stage of construction of the works;
dd) Bidding packages of
relocation of technical infrastructure works managed directly by a specialized
unit in order to serve the work of ground clearance; bidding packages of
detection and disposal of bombs, mines, explosives in order to prepare
construction of works;
e) Bidding packages of providing
public products and services, bidding packages with bidding package price in
the limitation allowed to apply direct appointment of contractor as prescribed
by Government in line with economic-social conditions in each period.
2. Implementation of direct
appointment of contractor for bidding packages defined at points b, c, d, dd
and e Clause 1 this Article must satisfy all the following conditions:
a) Having an approved decision
on investment, except for advisory bidding packages for project preparation;
b) Having an approved plan on
selection of tenderers;
c) Having been allocated capital
at the request of the implementation schedule of bidding package;
d) Having an approved estimate
in accordance with regulation, except for case of EP, EC, EPC bidding packages,
turnkey bidding packages;
dd) Having time for
implementation of direct appointment of contractor as from the day of approving
dossier of requirements to day of signing contract not exceeding 45 days, case
of bidding packages with big scale, complex content not exceeding 90 days;
e) Contractor who is suggested
for direct appointment of contractor must have name in the database on
contractors of state management agencies on bidding operation.
3. For bidding packages under
cases of direct appointment of contractor specified at Clause 1 this Article
and satisfy conditions for direct appointment of contractor specified at Clause
2 this Article but still able to apply other forms of selection of contractor
defined at Articles 20, 21, 23 and 24 of this Law, encouraging to apply other
forms of selection of contractor.
4. Direct appointment of
contractor for investor shall apply in the following cases:
a) There is only one investor
registering implementation;
b) There is only one investor
able to perform due to concerning intellectual property, commercial secret,
technologies or capital arrangement;
c) Investor proposing project
satisfy requirements of implementation project with feasibility and highest
efficiency in accordance with regulations of Government.
Article 23. Competitive
quotation
1. Competitive quotation shall
apply to bidding packages with value in limitation as prescribed by Government
and belonging to one of the following cases:
a) Bidding package of
non-advisory services which are commonly used and simple;
b) Bidding package of
procurement of goods which are commonly used goods, readily available on the
market, have standardized technical features and are similar to each other in
quality;
c) Bidding package of construction
and installation of simple works which have had the approved construction
drawing design.
2. Competitive quotation is
performed when satisfying all following conditions:
a) Having an approved plan on
selection of tenderers;
b) Having an approved estimate
in accordance with regulation;
c) Having been allocated capital
at the request of the implementation schedule of bidding package.
Article 24. Direct
procurement
1. Direct procurement shall
apply to bidding packages of procurement of similar goods of a same project,
estimated budget of procurement or of other project, estimate of procurement.
2. Direct procurement shall be
performed when satisfying all following conditions:
a) The contractor has won
bidding through open or limited bidding and has signed performance contract of
previous bidding package;
b) Bidding package has similar
content, nature, and scale less than 130% of bidding package signed contract
previously;
c) The unit price of the items
of a bidding package for which the form of direct procurement is applied shall
not exceed the unit price of the corresponding items of the previous similar
bidding package for which a contract was signed;
d) Time-limit from signing
contract of previous bidding package to day of approving result of direct
procurement does not exceed 12 months.
3. If contractor performed the
previous contract fails to be able to continue implementation of bidding
package of direct procurement, form of direct procurement shall be applied to
other contractor if such contractor satisfies requirements on capability,
experiences, techniques and price according to the previous bidding dossier and
result of selection of contractor.
Article 25.
Self-implementation
Self-implementation shall apply
to bidding packages of projects and estimates of procurement in case
organizations directly managing and using such bidding packages have technical
and financial capability, and experiences satisfying requirements of bidding
packages.
Article 26. Selection of
tenderers, investors in special cases
In the case of a bidding
package, project with particular requirements for which the forms of selection
of contractor, investor stipulated in articles 20, 21, 22, 23, 24 and 25 of
this Law cannot be applied, the competent person shall prepare a plan for
selection of contractor, investor and submit it to the Prime Minister for
consideration and decision.
Article 27. Community’s
participation in performance
Population communities,
organizations, teams, groups of workers in localities where have bidding
packages may be assigned to perform entire or part of such bidding package in
the following cases:
1. Bidding packages under the
national objective programs, support programs of hunger elimination, poverty
reduction for districts, communes in mountainous, deep-lying and remote areas,
islands, areas with special difficulty-stricken economic-social conditions;
2. Bidding packages with small
scale which population communities, organizations, teams, groups of workers may
undertake.
SECTION 2. METHODS OF SELECTION
OF CONTRACTORS, INVESTORS
Article 28. The one-phase
method with one dossier bag
1. The one-phase method with one
dossier bag shall apply in the following cases:
a) Open bidding, limited bidding
for bidding package of non-advisory service provision; bidding package of
procurement of goods, construction and installation, mixture content with small
scale;
b) Competitive quotation for
bidding package of non-advisory service provision, goods procurement,
construction and installation;
c) Direct appointment of
contractor for bidding package of the advisory service provision, non-advisory
service provision, goods procurement, construction and installment, mixture
content;
d) Direct procurement for
bidding package of goods procurement;
dd) Direct appointment of
contractor for selection of investor.
2. Tenderers, investors may
submit bid dossiers, dossiers of proposals including technical proposals and
financial proposals at the request of bidding dossiers, dossiers of
requirements.
3. The bid opening shall be
conducted once for all bid dossiers, dossier of proposals.
Article 29. The one-phase
method with two dossier bags
1. The one-phase method with two
dossier bags shall apply in the following cases:
a) Open bidding, limited bidding
for bidding package of provision of advisory services, non-advisory services,
goods procurement, construction and installation, mixture content;
b) Open bidding for selection of
investor.
2. Tenderer or investor may
submit concurrently both dossier of technical proposals and dossier of
financial proposals in a separate form at the request of bidding dossier.
3. Bid opening shall be
conducted twice. Dossiers of technical proposals shall be opened as soon as bid
closure. Tenderers or investors satisfying the technical requirements shall be
opened dossiers of financial proposals for assessment.
Article 30. The two-phase
method with one dossier bag
1. The two-phase method with one
dossier bag shall apply in cases of open bidding, limited bidding for bidding
package of procurement of goods, construction and installation, mixture content
with big scale and complex nature;
2. In the first phase, tenderers
may submit technical proposals and financial plans at the request of bidding
dossiers but not yet had bidding price. On the basis of exchange with each
contractor participating in this phase, dossiers shall be determined for bid
invitation in second phase.
3. In second phase, tenderers
participated in first phase shall be invited for submission of bid dossiers.
Bid dossiers include technical proposals and financial proposals at the request
of bidding dossier for second phase, in which included bidding price and
bidding guarantee.
Article 31. The two-phase
method with two dossier bags
1. The two-phase method with two
dossier bags shall apply in cases of open bidding, limited bidding for bidding
package of goods procurement, construction and installation, mixture content
with new, complex and particular techniques and technologies;
2. In first phase, tenderers
shall submit concurrently both dossier of technical proposals and dossier of
financial proposals in a separate form at the request of bidding dossier.
Dossiers of technical proposals shall be opened as soon as bid closure. On the
basis of assessment on technical proposals of tenderers in this phase, to
determine contents corrected in techniques in comparison with bidding dossier
and list of tenders satisfying requirements and being invited for bidding in
second phase. Dossier of financial proposals shall be opened in second phase.
3. In second phase, tenderers
satisfying requirements in first phase shall be invited for submission of bid
dossiers. Bid dossiers include technical proposals and financial proposals at
the request of bidding dossier for second phase corresponding to content
corrected in techniques. In this phase, dossiers of financial proposals
submitted in first phase shall be opened concurrently with bid dossiers in
second phase for assessment.
Section 3. PROFESSIONAL
BIDDING ORGANIZATION
Article 32. Professional
bidding organization
1. Professional bidding
organization includes bidding agents, non-business units which are established
with function of performing professional tender.
2. The establishment and
operation of bidding agents shall comply with legislations on enterprises.
3. The Government shall detail
this Article.
Chapter 3.
THE
PLAN AND PROCESS OF TENDERER SELECTION
Article 33. Principles of
making the plan on tenderer selection
1. The plan on tenderer
selection shall be formulated for the entire project, estimate of procurement.
In case where there are inadequate conditions to formulate a plan on tenderer
selection for the entire project, estimate of procurement, it shall be
permitted to formulate a plan on tenderer selection for one or a number of
bidding packages to be implemented in advance. 2. A plan on tenderer selection
must set out clearly the number of tender packages and the contents of each
tender package.
3. Division of the project,
estimate of procurement into different tender packages shall be based on the
technical nature and the sequence for its implementation, ensuring unity within
the project, estimate of procurement and an appropriate size of bidding
package.
Article 34. Formulation of
plan on tenderer selection
1. Bases to formulate plan on tenderer
selection for project:
a) Decision on approving project
or certificate of investment and relevant documents. For bidding packages which
must be implemented prior to a decision on approving project, based on decision
of head of investment owner or head of unit assigned task of preparation of
project, in case the investment owner has not yet been identified;
b) Capital sources for project;
c) International treaties,
international agreements for projects used official development assistance
capital, concessional loans;
d) Relevant legal documents.
2. Bases to formulate plan on
tenderer selection for regular procurement:
a) Standards, norms of
equipment, means of working of agencies, organizations, units and cadres, civil
servants, public employees; equipment, means of working existing which need be
replaced, purchased for supplementation, procured new ones to serve for work;
b) The approved decision on
procurement;
c) The approved capital sources
and estimate for regular procurement;
d) Scheme on procurement,
equipping for entire branch which has been approved by the Prime Minister (if
any);
dd) Result of price evaluation
of agencies and organizations with function providing service of price or
quotation evaluation (if any).
3. Plan on contractor selection
may be formulated after decision on approving project, estimate of procurement
or concurrently with process of formulating project, estimate of procurement or
before decision on approving project for bidding package which need be
performed before decision on approving project.
Article 35. Content of plan
on tenderer selection for each bidding package
1. Name of bidding package:
Name of bidding package presents
nature, content and work scope of bidding package, in line with contents stated
in project, estimate of procurement. If bidding package includes many separate
parts, plan on tenderer selection should state the name describing basic
content of each part.
2. Price of bidding package:
a) Price of bidding package is
determined on the basis of total invested capital or estimated budget (if any)
for project; estimate of procurement for regular procurement. Price of bidding
package is included exactly and fully entire expenses for implementation of
bidding package, including reserve expenses, charges, fees and taxes. Price of
bidding package may be updated in time limit of 28 days before day of bid
opening if necessary;
b) For bidding packages of
advisory service provision for formulation of pre-feasible study report,
feasible study report, price of bidding package shall be defined on the basis
of information on average price according to statistics of projects which have
been made in a defined duration; the estimated total invested capital based on
investment ratio norms of projects; preliminary total invested capital;
c) If bidding package include
many separate parts, to clearly indicate the estimated price for each part in
price of bidding package.
3. Capital sources:
For each bidding package, it
must clearly state capital sources or methods of capital arrangement, time of
capital allocation to pay for tenderer; case of using official development
assistance capital, concessional loans, it must clearly state name of donors
and structure of capital sources, including the financed capital, domestic
reciprocal capital.
4. Forms and methods of
selection of contractors:
For each bidding packages, it
must clearly state forms and methods of selection of contractors; selection of
domestic or international contractor.
5. Time beginning of tenderer
selection:
Time beginning of tenderer
selection is calculated as from issuing bidding dossier, dossier of
requirements, and clearly indicated under month or quarter in year. Case of
open bidding with application of short-list selection procedures, time
beginning of tenderer selection is calculated as from issuing dossiers of
invitation for expression of interest, dossiers of invitation for
pre-qualification.
6. Contract type:
Plan on selection of tenderer
must clarify contract type as prescribed in Article 62 of this Law as the basis
for formulation of dossiers of invitation for expression of interest, dossiers
of invitation for pre-qualification, bidding dossiers, dossier of requirements;
and signing contract.
7. Time for contract
performance:
Time for contract performance is
number of days calculated from the effective date of contract until parties
fulfill obligations as prescribed in contract, exclusive of duration of
warranty obligation performance (if any).
Article 36. Submission for
approval of plan on tenderer selection
1. Responsibilities for
submission for approval of plan on tenderer selection:
a) Investment owner for project,
the bid solicitor for regular procurement shall be responsible for submission
of plan on tenderer selection to the competent person for consideration and
approval;
b) For bidding packages which
need be implemented prior to a decision on approving project, in case where the
investment owner is identified, unit of investment owner shall submit the plan
on contractor selection to the head of investment owner for consideration and
approval. In case the investment owner has not yet been identified, unit
assigned task of preparation of project shall submit plan on tender selection
to the head of its unit for consideration and approval.
2. Documents to submit for plan
on tenderer selection include the following contents:
a) The implemented work part,
including content of work related to preparation of project, bidding packages
performed previously with the respective value and legal bases for implementation;
b) The work part which is not
able to apply one of form of tender selection, including: operation of project
management board, organization of compensation and ground clearance,
commencement, inauguration, payment of loan interest and other affairs not able
to apply form of tenderer selection;
c) The work part in plan on
tenderer selection, including content of work and respective value forming
bidding packages which are performed in one of forms of tenderer selection
defined in Articles 20, 21, 22, 23, 24, 25, 26 and 27 of this Law. This part
must clarify bases of division of project, estimate of procurement into bidding
packages. For each bidding package, it must ensure to have full contents
specified in Article 35 of this Law. For bidding package not apply form of open
bidding, document to submit for plan on tender selection must clarify reason of
applying other selection form;
d) The work part which have not
yet adequate conditions for formulating plan on tender selection (if any), in
which clarifying content and value of this work part;
dd) Part of summing up values of
work parts specified in points a, b, c and d this Clause. Total value of this
part does not exceed the approved total invested capital of project or
estimated budget of procurement.
3. Documents enclosed with
report to submit for approval of plan on tenderer selection:
When submitting for approval of
plan on tenderer selection, it must enclose copies of documents as the basis
for formulation of plan on tenderer selection as prescribed in Article 34 of
this Law.
Article 37. Evaluation and
approval of plan on tenderer selection
1. Evaluation of plan on
tenderer selection:
a) Evaluation of plan on
tenderer selection includes examination, assessment of contents as prescribed
in Articles 33, 34, 35 and 36 of this Law;
b) Organization assigned
evaluation of the plan on tenderer selection shall formulate report on
evaluation and submit to the competent person for the approval;
c) Organization assigned
evaluation of the plan on tenderer selection shall make an evaluation report
and submit it to the head of investment owner or the head of unit assigned task
of preparation of project for approving plan on tenderer selection in case
where bidding package needs to be performed prior to decision on approval for
project.
2. The approval for plan on
tenderer selection:
a) Based on the evaluation
report, the competent person shall approve the plan on tenderer selection in
writing in order to do as basis for selection of tenderer after project or estimate
of procurement has been approved or concurrently with decision on approving of
project, estimate of procurement in eligible case;
b) Based on the evaluation
report, the head of investment owner or the head of unit assigned task of
preparation of project shall approve plan on tenderer selection in case where
bidding package needs to be performed prior to decision on approval for
project.
Article 38. The process of
tenderer selection
1. The process of tenderer
selection for open bidding, limited bidding shall be implemented as follows:
a) Prepare for selection of
tenderer;
b) Organize selection of
tenderer;
c) Assess the bid dossiers and
negotiate contract;
d) Submit, evaluate, approve and
publicize result of tenderer selection;
dd) Finalize and sign contract.
2. The process of tenderer
selection for direct appointment of contractor shall be implemented as follows:
a) For direct appointment of
contractor according to the normal process including steps: Prepare for
tenderer selection; organize the tenderer selection; assess dossier of
proposals and negotiate on proposals of tenderers; submit, evaluate, approve
and publicize the result of tenderer selection; finalize and sign contract;
b) For direct appointment of
contractor according to the simplified process including steps: Prepare and
send draft contract to tenderer; negotiate, finalize contract; submit, approve
and publicize the result of tenderer selection; sign contract.
3. The process of tenderer
selection for Competitive quotation shall be implemented as follows:
a) For competitive quotation
according to the normal process including steps: Prepare for tenderer
selection; organize the tenderer selection; assess dossier of proposals and
negotiate contract; submit, evaluate, approve and publicize the result of
tenderer selection; finalize and sign contract;
b) For competitive quotation
according to the simplified process including steps: Prepare and send
requirement for quotation to tenderer; tenderers submit quotation; assess
quotations and negotiate contract; submit, approve and publicize the result of
tenderer selection; finalize and sign contract.
4. The process of tenderer
selection for direct procurement shall be implemented as follows:
a) Prepare for selection of
tenderer;
b) Organize selection of
tenderer;
c) Assess the dossiers of
proposals and negotiate on proposals of tenderers;
d) Submit, evaluate, approve and
publicize result of tenderer selection;
dd) Finalize and sign contract.
5. The process of tenderer
selection for self-implementation shall be implemented as follows:
a) Prepare for plan on
self-implementation and draft contract;
b) Finalize the plan on
self-implementation and negotiate, finalize contract;
c) Sign contract.
6. The process of tenderer
selection for direct appointment of contractor shall be implemented as follows:
a) Prepare and send reference
provisions to the individual advisory tenderers;
b) The individual advisory
tenderers submit dossier of scientific curriculum vitae;
c) Assess dossier of scientific
curriculum vitae of individual advisory tenderers;
d) Negotiate, finalize contract;
dd) Submit, approve and
publicize result of tenderer selection;
e) Sign contract.
7. The process of tenderer
selection for bidding packages with participation of community in performance
shall be implemented as follows:
a) Prepare plan on selecting
population communities, organizations, teams, groups of workers in localities
to carry out bidding package.
b) Organize selection;
c) Approve and publicize the
selection result;
d) Finalize and sign contract.
8. The Government shall detail
this Article.
Chapter 4.
METHODS
TO ASSESS BID DOSSIER, DOSSIER OF PROPOSALS; CONSIDERATION FOR RECOMMENDATION
AS THE WINNING TENDERER
Article 39. Methods to assess
bid dossiers for bidding packages of the non-advisory service provision, goods
procurement, construction and installment, mixture content
1. Method of lowest price:
a) This method applies to simple
bidding packages with small scale in which technical, financial and commercial
proposals are considered as a same ground when satisfy requirements stated in
bidding dossier;
b) Criteria for evaluation of
bid dossier include: Evaluation criteria of capability, experiences and
criteria of bidding package;
c) For the bid dossiers which
have been assessed to satisfy criteria for evaluation as prescribed at point b
this Clause, bidding prices after the errors have been rectified and
discrepancies have been adjusted are basis for comparison and ranking.
Contractors shall be ranked corresponding to the bidding price after the errors
have been rectified and discrepancies have been adjusted, minus value of
discount (if any). The tenderer with lowest price shall be ranked the first.
2. Method of assessment price:
a) This method applies to
bidding packages of which expenses may be converted on a same ground on
technical, financial and commercial elements for entire use life cycle of goods
or works;
b) Criteria for evaluation of
bid dossier include: assessment criteria of capability, experiences in case of
not applying pre-qualification; assessment criteria of technical aspect;
standards for determination of the assessment price.
Elements which are converted on
the same ground to determine the assessment price include: Necessary expenses
for operation, maintenance and other expenses related to origin of goods, loan
interest, progress, quality of goods or construction works of bidding package,
prestige of contractor through the progress and quality during implementation
of previous similar contracts and other elements;
c) For bid dossiers which have
passed step of technical assessment, comparison and ranking are based on the
assessment prices. The tenderer with lowest price shall be ranked the first.
3. Method of combination of
technical aspect and price:
a) This method apply to bidding
packages of information technology, telecommunication or bidding packages of
goods procurement, construction and installation, mixture content when both the
method of lowest price and method of assessment price specified at Clause 1 and
Clause 2 of this Article fail to be able to apply;
b) Criteria for evaluation of
bid dossier include: assessment criteria of capability, experiences in case of
not applying pre-qualification; assessment criteria of technical aspect; and
the overall criteria for evaluation. The overall criteria for evaluation are
formulated on the basis of combination between technical aspect and price;
c) For bid dossiers which have
passed step of technical assessment, comparison and ranking are based on the
overall points score respectively. The tenderer with the highest overall points
score shall be ranked the first.
4. For assessment criteria of
capability, experiences, use criterion of pass or fail; for assessment criteria
of technical aspect, use method of marking a score or criterion of pass or
fail; for method of combination of technical aspect and price specified at
Clause 3 of this Article, use method of marking a score. When using method of
making a score, the score of minimum technical requirement must be stipulated
and not be less than 70% of the total points for technical aspects.
5. The Government shall detail
this Article.
Article 40. Method to assess
bid dossier for bidding packages of advisory service provision
1. For advisory tenderer being
organization, apply one of the following methods:
a) Method of lowest price shall
be applied to the simple advisory bidding packages. Criteria for evaluation of
bid dossier are assessment criteria of technical aspect. For bid dossiers which
have passed step of technical assessment, base on the bidding price after the
errors have been rectified and discrepancies have been adjusted, minus value of
discount (if any). The tenderer with lowest price shall be ranked the first.
b) Method of fixed price shall
be applied to the simple advisory bidding packages, expenses for implementation
of bidding package are determined specifically and fixed in bidding dossier.
Criteria for evaluation of bid dossier are assessment criteria of technical
aspect. For bid dossiers which have passed step of technical assessment, the
bidding price after the errors have been rectified and discrepancies have been
adjusted, minus value of discount (if any) not exceeding expenses for
implementation of bidding package, based on technical points for comparison and
ranking. The tenderer with the highest technical point shall be ranked the
first.
c) Method of combination between
technical aspect and price shall be applied to the advisory bidding packages
that pay attention to quality and expenses for implementation of bidding
package. Criteria for evaluation of bid dossier are assessment criteria of
technical aspect and overall criteria for evaluation. The overall criteria for
evaluation are formulated on the basis of combination between technical aspect
and price; When formulating the overall criteria for evaluation, it must ensure
principle which the points for technical aspects shall account for between 70%
and 80% and the points for price shall account for between 20% and 30% of the
overall points score, percentage of points for technical aspects plus to
percentage of points for price shall be equal to 100%. The tenderer with the
highest overall points score is ranked the first.
d) Method of basing on technical
aspect shall apply to advisory bidding packages with high and particular
technical requirements. Criteria for evaluation of bid dossier are assessment
criteria of technical aspect. When formulating assessment criteria of technical
aspect, the score of minimum technical requirement must be stipulated and not
be less than 80% of the total points for technical aspects. Tenderer has bid
dossier satisfying the minimum technical points as prescribed and obtain the
highest technical points shall be ranked the first and invited to come for
opening dossier of financial proposals as basis for negotiating contract.
2. For assessment criteria of
technical aspect specified at points a, b, c and d Clause 1 of this Article,
use the method of marking a score. When formulating assessment criteria of
technical aspect, the score of minimum technical requirement must be stipulated
and not be less than 70% of the total points for technical aspects, except for
case specified at point d Clause 1 of this Article.
3. For advisory tenderers being
individuals, criteria for evaluation of bid dossiers shall be criteria for
evaluation of dossiers of scientific curriculum vitae and technical proposals
(if any). The tenderer with the best dossier of scientific curriculum vitae,
technical proposals and satisfying requirements of reference provisions shall
be ranked the first.
Article 41. Methods to assess
dossier of proposals
Method to assess dossier of
proposals in competitive quotation shall comply with the method of lowest price
specified at clause 1 article 39 of this Law.
Article 42. Consideration for
recommendation as the winning tenderer for bidding packages of the advisory
service provision
1. The advisory tenderer being
organization shall be considered for recommendation as the winning tenderer
upon satisfying the following conditions:
a) Having valid bid dossier and
dossier of proposals;
b) Having technical proposals
satisfying requirements;
c) Having the bidding price
after the errors have been rectified and discrepancies have been adjusted,
minus value of discount (if any) being lowest price for method of lowest price;
having the highest technical points for method of fixed price and method of
basing on technical aspect; having the highest overall points for the method of
combination between technical aspect and price;
d) Having the proposed
bid-winning price not exceeding the approved tender package price. If the
approved estimated budget of bidding package is lower than or higher than the
approved bidding package price, this estimate shall replace the bidding package
price as basis for consideration for recommendation as the winning tenderer.
2. The advisory tenderer being
individual shall be considered for recommendation as the winning tenderer upon
satisfying the following conditions:
a) The tenderer has the best
dossier of scientific curriculum vitae, technical proposals (if any) and
satisfying requirements of reference provisions;
b) The tenderer has the proposed
bid-winning price not exceeding the approved bidding package price. If the
approved estimated budget of bidding package is lower than or higher than the
approved bidding package price, this estimate shall replace the bidding package
price as basis for consideration for recommendation as the winning tenderer.
3. For tenderers fail to be
selected, in notice of tenderer-selection result must clearly state the reason
thereof.
Article 43. Consideration for
recommendation as the winning tenderer for bidding the non-advisory service
provision, goods procurement, construction and installation and mixture content
1. The supplier of non-advisory
service, goods, construction and installation, mixture content shall be
considered for recommendation as the winning tenderer upon satisfying the
following conditions:
a) Having valid bid dossier and
dossier of proposals;
b) Having capability and experiences
satisfying requirements;
c) Having technical proposals
satisfying requirements;
d) Having deficient
discrepancies not exceeding 10% of bidding price;
dd) Having the bidding price
after the errors have been rectified and discrepancies have been adjusted,
minus value of discount (if any) being lowest price for method of lowest price;
having the lowest assessment price for method of assessment price; having the
highest overall points for the method of combination between technical aspect
and price;
e) The tenderer has the proposed
bid-winning price not exceeding the approved bidding package price. If the
approved estimated budget of bidding package is lower than or higher than the
approved bidding package price, this estimate shall replace the bidding package
price as basis for consideration for recommendation as the winning tenderer.
2. For tenderers fail to be
selected, in notice of tenderer-selection result must clearly state the reason
thereof.
Chapter 5.
CONCENTRATED
PROCUREMENT, REGUALR PROCUREMENT, PURCHASE OF DRUGS, MEDICAL SUPPLIES;
PROVISION OF PUBLIC PRODUCTS AND SERVICES
SECTION 1. CONCENTRATED
PROCUREMENT
Article 44. General
provisions on concentrated procurement
1. Concentrated procurement
means a way to organize an open bidding in order to select contractor through a
concentrated procurement unit with the aim to reduce expenses, time, and focal
units of bidding organization, strengthen the professionalism
in bidding, and contribute in increasing economic efficiency.
2. Concentrated procurement
shall apply in case where goods and services need to be procured with big
quantity, similar categories at one or many agencies, organizations,
enterprises or investment owners.
3. Concentrated procurement may
be performed in one of the following ways:
a) The concentrated procurement
unit gathers needs of procurement, conduct the selection of contractor,
directly sign contract with the selected contractor for goods or service
provision;
b) The concentrated procurement
unit gathers needs of procurement, conduct the selection of contractor, sign a
written framework agreement with one or many selected contractors as basis for
units which have need of direct procurement to sign contract with the selected
contractors for goods or service provision.
4. The concentrated procurement
unit shall conduct the selection of contractor on the basis of assigned tasks,
or sign contract with units which have need for procurement.
5. The Government shall detail
this Article.
Article 45. Framework
agreement
1. Framework agreement in the
concentrated procurement means a long-term agreement between the concentrated
procurement unit with one or many selected contractors, in which include
standards and conditions as basis for procurement according to each specific
contract.
2. Duration for use of framework
agreements shall be stipulated in plan on contractor selection but not exceed
03 years.
SECTION 2. REGULAR
PROCUREMENT
Article 46. Conditions for
application
State bodies, political
organizations, socio-political organizations, socio-political-occupational
organizations, social organizations, socio-occupational organizations and units
of the People’s armed forces, and public non-business units may apply the
regular procurement of goods and services upon satisfying all the following
conditions:
1. Use the capital sources for
regular procurement;
2. Goods and services under list
of goods and services allowed applying regular procurement to maintain regular
activities of agencies, organizations and units.
Article 47. Organizing
selection of tenderer
1. Selection of tenderer in
regular procurement shall comply with Articles 38, 39, 40, 41, 42 and 43 of
this Law.
2. The Government shall detail
on regular procurement.
SECTION 3. PURCHASE OF DRUGS
AND MEDICAL SUPPLIES
Article 48. The selection of
tenderer for drugs and medical supplies provision
1. Form, method, plan and
process of selection of tenderer and method of assessment of bid dossier,
dossier of proposals for selection of tenderer for drugs and medical supplies
provision shall comply with provisions at chapter II, III and IV of this Law.
2. Selection of tenderer for
drugs provision shall also be performed under form of price negotiation. Form
of negotiation shall be applied to bidding packages for purchase of drugs which
there are only one to two producers; original proprietary medicines, rare
drugs, drugs still in time protected copyright and other particular cases.
3. A tenderer shall be
considered for the advisory tenderer being organization shall be considered for
recommendation as the winning tenderer upon satisfying the following
conditions:
a) Conditions specified at
points a, b, d, dd and e Clause 1 Article 43 of this Law;
b) Tenderer has technical
proposals which are assessed to satisfy requirements on quality, provision,
preservation and time limit for drugs use.
4. The Government shall detail
this Article.
Article 49. Concentrated
purchase of drugs
1. The concentrated purchase of
drugs shall be performed at national level and local level.
2. The Government shall provide
for the concentrated purchase of drugs and roadmap to perform the concentrated
purchase of drugs.
Article 50. Preferential
treatment in purchase of drugs
The preferential treatment in
purchase of drugs shall comply with Article 14 of this Law. For drugs produced
domestically, and the Ministry of Health has announced as satisfaction of such
drugs for the requirements on medical treatment, price of drugs and ability of
provision, in bidding dossiers, dossier of requirements shall stipulate that
tenderers are not permitted to offer the import drugs.
Article 51. Responsibilities
of state management agencies in bidding of drugs and medical supplies
1. The Ministry of Health shall
promulgate list of drugs involving bidding; list of drugs involving concentrated
bidding; and list of drugs allowed applying form of price negotiation.
2. Government shall provide for
responsibilities of Ministries and sectors in bidding of drugs and medical
supplies, and the disclosure of prices of drugs and medical supplies according
to results of tenderer selection.
Article 52. Payment of
expenses for purchase of drugs and medical supplies
If non-public medical
establishments do not select to apply provisions of this Law for purchase of
drugs, medical supplies, such medical establishments shall only be paid from
medical insurance fund according to the drugs items and unit prices of drugs
and medical supplies already won bidding of the public medical establishments
at provincial level in the same localities.
SECTION 4. PROVISION OF
PUBLIC PRODUCTS AND SERVICES
Article 53. Forms of
selection of tenderers
The selection of tenderers for
provision of public products and service shall perform under forms of open
bidding, limited bidding, and direct appointment of contractor, competitive
quotation, direct procurement and self-implementation.
Article 54. The process of
tenderer selection
1. The process of tenderer
selection for provision of public products and services shall be implemented as
follows:
a) Prepare for selection of
tenderer;
b) Organize selection of
tenderer;
c) Assess the bid dossiers,
dossier of proposals and negotiate contract;
d) Submit, evaluate, approve and
publicize result of tenderer selection;
dd) Finalize and sign contract.
2. The Government shall detail
this Article.
Chapter 6.
SELECTION
OF INVESTORS
Article 55. Plan on investor
selection
1. Basis for plan on investor
selection:
a) Decision on approving
project;
b) International treaties,
international agreements for projects used official development assistance capital,
concessional loans;
c) Relevant documents.
2. Content of plan on investor
selection:
a) Name of project;
b) Total invested capital and
total capital of project;
c) Preliminary content of amount
financed by State, financial regime of State to support for implementation of
project (if any);
d) Forms and methods of
selection of investors;
dd) Time beginning of
organization for investor selection;
e) Contract type;
g) Time for contract
performance.
Article 56. The process of
investor selection
1. The process of investor
selection shall be implemented as follows:
a) Prepare for selection of
investor;
b) Organize the selection of
investor;
c) Assess the bid dossiers,
dossiers of proposals;
d) Submit, evaluate, approve and
publicize result of investor selection;
dd) Negotiate, finalize and sign
contract.
2. The Government shall detail
this Article.
Article 57. Submitting,
appraising and approving the plan on selection of investor, dossier of
invitation for pre-qualification, result of pre-qualification, bidding dossier,
dossier of requirements and result of investor selection
1. The bid solicitor shall
submit the plan on selection of investor, dossier of invitation for
pre-qualification, result of pre-qualification, bidding dossier, dossier of
requirements and result of investor selection to the competent persons,
concurrently organize appraisal.
2. Organizing the appraisal,
making report on appraisal of the plan on selection of investor, dossier of
invitation for pre-qualification, result of pre-qualification, bidding dossier,
dossier of requirements and result of investor selection to submit to the
competent persons.
3. Based on the submitted
dossier and report on appraisal, the competent persons shall approve the plan
on selection of investor, dossier of invitation for pre-qualification, result
of pre-qualification, bidding dossier, dossier of requirements and result of
investor selection.
4. The Government shall detail
this Article.
Article 58. Methods to assess
the bid dossiers
1. Methods to assess the bid
dossiers include: Method of service price, method of State-contributed capital,
method of social benefits, state benefits and combination method.
2. Criteria for evaluation of
bid dossier include: criteria for evaluation on capability, experiences; criteria
for evaluation on technical aspect; and criteria for evaluation on financial
aspect.
3. The Government shall detail
this Article.
Article 59. Consideration for
recommendation as the selected investor
1. The selected investors must
satisfy all following conditions:
a) Having valid bid dossier and
dossier of proposals;
b) Satisfying requirements on
capability and experiences;
c) Satisfying technical
requirements;
d) Satisfying financial
requirements;
dd) Project obtains highest
efficiency.
2. For investors not be
selected, in notice of result of investor selection must clearly state the
reason thereof.
Chapter 7.
SELECTION
OF TENDERERS AND INVESTORS THOURGH NETWORK
Article 60. Selection of
tenderers and investors through network
1. When selecting tenderers,
investors through network, the following contents and process shall be
performed on the national bidding network system:
a) Publishing information on
bidding as prescribed in Article 8 of this Law;
b) Publishing dossiers of
invitation for expression of interest, dossiers of invitation for
pre-qualification, dossiers of requirements;
c) Submission of bidding
guarantee, guarantee for performance of contract, partnership agreements;
d) Submitting, withdrawing
dossiers of invitation for expression of interest, dossiers of invitation for
pre-qualification, bid dossiers, dossiers of proposals;
dd) Opening bid;
e) Assessing dossiers of
expression of interest, dossiers of pre-qualification participation, bid
dossiers, dossiers of proposals;
g) Sign contract and pay under
contract;
h) Other relevant content.
2. The Government shall detail
selection of tenderers and investors through network and the roadmap for
application
Article 61. Requirements for
the national bidding network system
1. It must publicize, not limit
the access of information.
2. Users may realize the real
time upon accessing the national bidding network system. Time on the national
bidding network system is the real time and standard time in bidding through
the national bidding network system.
3. It must operate continuously,
unified, be stable and safe on information, have ability to identify users,
keep confidential and entire data.
4. It must perform the storage
of information and may retrieve histories of transactions on the national
bidding network system.
5. It must ensure that tenderers
and investors cannot send dossiers of expression of interest, dossiers of
pre-qualification participation, bid dossiers, dossiers of proposals to the bid
solicitor after bid closure.
Chapter 8.
CONTRACT
SECTION 1. CONTRACT WITH
CONTRACTOR
Article 62. Contract type
1. Lump-sum contract:
a) Lump-sum contract means
contract with fixed price during performance for all work contents in contract.
Payment for lump-sum contract shall be performed many times during implementation
or once upon finishing contract. Total amounts paid to contractor until
finishing obligations under contract shall be equal to the price stated in
contract;
b) When applying the lump-sum
contract, prices of bidding packages as the basis for consideration for
recommendation as the winning tenderer must include expenses for risk elements
which may happen during the course of implementation of contract, reserve
expenses for slippage in price. Bidding price must include all expenses for
risk elements and expenses for slippage in price which may happen during the
course of implementation of contract;
c) Lump-sum contract is type of
basic contract. When deciding on application of contract types defined at
Clause 2 and Clause 3 of this Article, the person approving the plan on
tenderer selection must ensure that such contract types are more appropriate
than lump-sum contract. For bidding packages of simple advisory service
provision, and non-advisory service provision; bidding packages for goods procurement,
construction and installation, mixture content with small scale must apply form
of lump-sum contract;
d) For bidding packages of
construction and installation, during the course of negotiating and finalizing
contract, the relevant parties need review the table of work volume under the
approved design; if the tenderer or the bid solicitor detects that the tables
of work quantity and volume are not exact in comparison with design, the bid
solicitor shall report to the investment owner for consideration to decide on
adjustment of the work volume in order to ensure the conformity with design;
dd) When applying the lump-sum
contract, the investment owner for project, the bid solicitor for regular
procurement, the concentrated procurement units or units with need of
procurement for the concentrated procurement shall be responsible for the
accuracy of work quantity and volume In case of using advisory tenderer to make
dossier of design, bidding dossier, dossier of requirements, in contract
between investment owner, bid solicitor, concentrated procurement unit or unit
which has need of procurement with the advisory tenderer must have provisions
on responsibilities of parties in handling or compensation in case of
calculating wrongly the work quantity and volume.
2. Contract based on fixed unit
price:
Contract based on fixed unit
price means contract with unit price not changeable during performance of all
work contents in contract. The contractor will be paid according to the
practical work quantity and volume which are tested for acceptance as
prescribed on the basis of the fixed unit price in contract.
3. Contract based on modifiable
unit price:
Contract based on modifiable
unit price means contract with changeable unit price based on agreements in
contract for all work contents in contract. The contractor will be paid
according to the practical work quantity and volume which are tested for
acceptance as prescribed on the basis of the unit price in contract or the
modified unit price.
4. Time-based contract:
Time-based contract means
contract which is applied to bidding packages providing advisory service. The
contractual price is calculated on the basis of working time according to
month, week, day, hour and costs other than remuneration. The contractor will be
paid according to the practical working time on the basis of remuneration
corresponding to the title and work stated in contract.
Article 63. Dossier of
contract
1. Contractual dossier includes
the following documents:
a) Written contract;
b) Annex of contract including
the detailed list of work scope, price table, and implementation schedule (if
any);
c) Decision on approving the
result of contractor selection.
2. Apart from documents
specified at Clause 1 of this Article, depend on scale, nature of bidding
package, contractual dossier may include one or a number of the following
documents:
a) The written record of
finalizing contract;
b) The written agreement of
parties about contractual conditions, including general conditions and specific
conditions;
c) Bid dossier, dossier of
proposals and documents to clarify these dossiers of the selected contractor;
d) Bidding dossier, dossier of
requirements and documents amending and supplementing these dossiers.
dd) Relevant documents.
3. When having changes of contents
within contract, parties must sign appendices for supplementation to contract.
Article 64. Conditions for
signing contract
1. At time of signing, bid
dossier and dossier of proposals of the selected contractor are still valid.
2. At time of signing, the
selected contractor must ensure to meet requirements on technical and financial
capability for implementation of the bidding package. In necessary case, the
investment owner for a project, the bid solicitor for regular procurement, the
concentrated procurement unit or unit with need of procurement for the
concentrated procurement may conduct verification of information on capability
of tenderer, if the tenderer still satisfies requirements for implementation of
bidding package, parties will sign contract.
3. The investment owner for a
project, the bid solicitor for regular procurement, the concentrated
procurement unit or unit with need of procurement for the concentrated
procurement must ensure conditions on funding for advance payment, payment funding,
ground for implementation and other necessary conditions for carrying out the
bidding package on the schedule.
Article 65. Contract with the
selected contractor
1. After selecting contractor,
the investment owner for a project, the bid solicitor for regular procurement,
the concentrated procurement unit or unit with need of procurement for the
concentrated procurement and the selected contractor must sign contract to
perform the bidding package. For partnership contractor, all members
participating in partnership must directly sign and affix their seal (if any)
on the written contract. The contract signed between parties must comply with
provisions of this Law and other provisions of relevant legislation.
2. A bidding package may be
performed according to one or many contract; in a contract may apply one or
many contract kinds specified at Article 62 of this Law. Case of applying many
contract kinds, it must clarify the contract kind respectively with each
content of specific work.
3. Contract signed between
parties must conform to content in bidding dossier, dossier of requirements,
bid dossier, dossier of proposals, result of contractual negotiation, and
decision on approving result of contractor selection.
4. Contractual price does not
exceed the bid-winning price. Case of supplementing the work volume apart from
bidding dossier, dossier of requirements, leading to the excess of contractual
price in comparison with the bid-winning price, the contractual price must be
ensured to not exceed the approved price of bidding package or estimate; if
project, estimate on procurement include many bidding package, total
contractual price must ensure to not exceed total the invested capital and
estimated budget already been approved.
5. The Government shall provide
for content of contract involving bidding.
Article 66. Guarantee for
contract performance
1. Guarantee for contract
performance shall be applied to the selected contractors, except for
contractors which provide the advisory services, the selected contractors
according to form of self-implementation and participation in implementation of
community.
2. The selected tenderer must
provide a contract performance guarantee prior to the date on which the
contract takes effect.
3. Based on scale, nature of
bidding package, the value of a contract performance guarantee shall be
stipulated in the bid invitation documents, dossiers of requirements at a
definite level of between 2% and 10% of the bid-winning price.
4. The term of validity of a
contract performance guarantee shall be calculated from the effective day of
contract until the date parties finish contractual obligations or until the day
of transfer of warranty obligations in case of having provisions on warranty.
Case of extending the contract performance period, it must require the tenderer
to extend respectively term of validity of contract performance guarantee.
5. The contractor shall not be
entitled to the return of the contract performance guarantee in the following
cases:
a) The contractor refuses to
perform the contract after the date the contract takes effect;
b) The contractor violates
agreements in contract.
c) The contractor performs
contract later than the progress due to the contractor’s fault but refuse to
extend the validity of contract performance guarantee.
Article 67. Principles of
adjustment to contract
1. Adjustment to contracts must
be specified specifically in the written contract, written agreement on
contractual conditions (if any).
2. Adjustment to contracts shall
only apply within term of validity of contract.
3. Adjustment to contract price
shall only apply contract based on fixed unit price, contract based on
modifiable unit price and time-based contract.
4. The adjusted contract sum
shall not exceed the bidding package price or estimated budget already been
approved. Case of projects, estimates on procurement including many bidding
packages, the adjusted contract sum shall not exceed the total invested
capital, the estimated budget for procurement already been approved.
5. For contracts based on
modifiable unit price, the adjustment of unit price shall be performed as from
time of arising the elements causing changes of price and only be applied for
the performed volume in accordance with the progress stated in contract or the
adjusted progress as prescribed in Clause 6 and Clause 7 of this Article.
6. The contract implementation
schedule shall be only adjusted in the following case:
a) Case of force majeure, not
relating to any violation or mistake of parties in contract;
b) Changes of the work scope,
design, measures for construction due to objective requirements affect to the
contract implementation schedule;
c) Handing over of ground
inconsistently with agreements in contract affect to the contract
implementation schedule but cause is not fault of contractor.
7. Cases of adjustment to the
contract implementation schedule which do not prolong the progress of finishing
project, contractual parties may agree and unify such adjustments. Case of
adjustment to the contract implementation schedule which prolong the progress
of finishing project, it must report to the competent person for consideration
and decision.
SECTION 2. CONTRACT WITH
INVESTOR
Article 68. Contract type
Contracts in selection of
investor include: Building-Operation-Transfer (BOT) contract,
building-transfer-operation (BTO) contract, building- owning-operation (BOO)
contract, building-transfer (BT) contract and other contractual kinds as
prescribed by law on investment.
Article 69. Contractual
dossier
1. Contractual dossier includes
the following documents:
a) Written contract;
b) Appendices of contract (if
any);
c) The written record of
contractual negotiation;
d) Decision on approving the
result of investor selection;
dd) The written agreement of
parties about contractual conditions, including general conditions and specific
conditions;
e) Bid dossier, dossier of
proposals and documents to clarify these dossiers of the selected investor;
g) Bidding dossier, dossier of
requirements and documents amending and supplementing these dossiers;
h) Relevant documents.
2. When having changes of
contents within contract, parties must sign appendices for supplementation to
contract.
Article 70. Conditions for
signing contract
1. At time of signing, bid
dossier and dossier of proposals of the selected investor are still valid.
2. At time of signing, the
selected investor must ensure to meet requirements on technical and financial
capability for implementation of the project. In necessary case, the competent
person may conduct verification of information on capability of investor, if
the investor still satisfies requirements for implementation of project,
parties will sign contract.
3. The competent state agencies
must ensure conditions on capital financed by state, ground for implementation
and other necessary conditions for carrying out the project on the schedule.
Article 71. Contract with the
selected investor
1. After selecting investor, the
competent state agencies shall sign contract with the selected investor or the
selected investor and project management enterprise. For partnership investor,
all members participating in partnership must directly sign and affix their
seal (if any) on the written contract. The contract signed between parties must
comply with provisions of this Law and other provisions of relevant
legislation.
2. Contract signed between
parties must conform to content in bidding dossier, dossier of requirements,
bid dossier, dossier of proposals, result of contractual negotiation, and
decision on approving result of investor selection and written agreement on
investment.
Article 72. Contract
performance guarantee
1. The selected investor must
provide a contract performance guarantee prior to the date on which the
contract takes effect.
2. Based on scale, nature of
project, the value of a contract performance guarantee shall be stipulated in
the bid invitation documents, dossiers of requirements at a definite level of
between 1% and 3% of total invested capital of project.
3. The term of validity of a
contract performance guarantee shall be calculated from the day of officially
signing contract until the date works is completed and tested for acceptance or
until the date conditions of service provision guarantee are completed as
prescribed in contract. Case of extending the contract performance period, it
must require the investor to extend respectively term of validity of contract
performance guarantee.
4. The investor shall not be
entitled to the return of the contract performance guarantee in the following
cases:
a) The investor refuses to
perform the contract after the date the contract takes effect;
b) The investor violates
agreements in contract;
c) The investor performs
contract later than the progress due to the investor’s fault but refuse to
extend the validity of contract performance guarantee.
Chapter 9.
RESPONSIBILITIES
OF PARTIES IN SELECTION OF TENDERERS, INVESTORS
Article 73. Responsibilities
of the competent person
1. To approve the plan on
selection of tenderer, investor, except for case defined at point a Clause 1
Article 74 of this Law.
2. To resolve protests during
selection of tenderer, investor.
3. To deal with breaches of
bidding in accordance with this Law and other relevant laws.
4. To cancel bid as prescribed
at Clauses 2, 3 and 4 Article 17 of this Law.
5. To suspend bid, to refuse
recognition of result of selecting tenderer, investor, or to declare invalidity
to decisions of the investment owner, the bid solicitor when detecting
violations of bidding or other provisions of relevant law.
6. To inspect, supervise,
monitor the work of bidding and contract performance.
7. For the selected contractor,
apart from provisions at Clauses 1, 2, 3, 4, 5 and 6 of this Article, the
competent person shall have the following responsibilities:
a) To adjust tasks and
competence of investor in case of failing to meet legislation on bidding and
requirements of project, bidding package;
b) To require the investment
owner, the bid solicitor to supply dossiers, documents in order to serve the
inspection, supervision, monitoring, settlement of protests, handling of
violations on bidding and works defined at Clause 4 and clause 5 of this
article;
c) To give opinions on handling
of complex circumstances at the proposal of the investment owner defined at
point a clause 2 Article 86 of this Law.
8. For the selected investor,
apart from provisions at Clauses 1, 2, 3, 4, 5 and 6 of this Article, the
competent person shall have the following responsibilities:
a) To decide on selection of the
bid solicitor;
b) To approve dossier of
invitation for pre-qualification, result of pre-qualification, bidding dossier,
dossier of requirements, result of investor selection;
c) To make a decision dealing
with any exceptional situation;
d) To sign and manage the
contract performance;
dd) To cancel bid as prescribed
at Clause 1 Article 17 of this Law.
e) To require the bid solicitor
to supply dossiers, documents in order to serve the inspection, supervision,
monitoring, settlement of protests, handling of violations on bidding and works
defined at Clause 4 and clause 5 of this article;
9. To decide on establishment of
the bid solicitor with personnel satisfying the conditions as prescribed by
this Law in case of investor selection for regular procurement: If the
personnel fails to satisfy, the competent person must conduct selection of a
professional bidding organization to act as the bid solicitor or to perform
some of tasks of the bid solicitor.
10. To pay compensation for loss
and damage to relevant parties pursuant to this Law if such loss and damage was
caused by the competent person’s fault
11. To make explanations for
observance with provisions in this article at the request of superior agencies,
inspection agencies, state management agencies on bidding activities.
12. To perform other tasks as
prescribed in this Law.
Article 74. Responsibilities
of the investment owner
1. To approve contents during
tenderer selection including:
a) Plan on selection of
tenderers in case where the bidding package is performed prior to decision on approving
the project;
b) Dossier of invitation for
expression of interest, dossier of invitation for pre-qualification, short
list;
c) Bidding dossier, dossier of
requirements;
d) List of ranked contractors;
dd) Result of selection of
tenderers.
2. To sign or authorize for
signing and manage the contract performance with contractor.
3. To decide on establishment of
the bid solicitor with personnel satisfying conditions as prescribed in this
Law. If the personnel fail to satisfy, it must conduct selection of a
professional bidding organization to act as the bid solicitor or to perform
some of tasks of the bid solicitor.
4. To make a decision dealing
with any exceptional situation.
5. To resolve protests during
selection of tenderers.
6. To maintain confidentiality
of relevant documents during selection of tenderers.
7. To archive relevant
information during selection of tenderers as prescribed by law on archival and
regulations of Government.
8. To report the annual bidding
work.
9. To pay compensation for loss
and damage to relevant parties pursuant to this Law if such loss and damage was
caused by the competent person’s fault.
10. To cancel bid as prescribed
at Clause 1 Article 17 of this Law.
11. To be legally liable before
law and competent person for the process of selection of contractor.
12. To provide information,
relevant documents and make explanations on observance with provisions in this
Article at the request of superior agencies, inspection agencies, state
management agencies on bidding activities.
13. If the investment owner
currently being the bid solicitor, the investment owner must take
responsibilities specified in Article 75 of this Law.
14. To perform other tasks as
prescribed in this Law.
Article 75. Responsibilities
of the bid solicitor
1. For tenderer selection to
perform bidding packages of project:
a) To conduct preparations for
tender selection; to organize tender selection, and to assess dossiers of
expression of interest, dossiers of pre-qualification participation, bid
dossiers, dossiers of proposals;
b) To decide on establishment of
expert group;
c) To request tenderers to
clarify their dossiers of expression of interest, dossiers of pre-qualification
participation, bid dossiers and dossiers of proposals during the process of
dossier assessment;
d) To submit for approval of the
result of short list selection and result of tenderer selection;
dd) To negotiate and finalize
contract with tenderer;
e) To pay compensation for loss
and damage to relevant parties pursuant to this Law if such loss and damage was
caused by the bid solicitor’s fault.
d) To maintain confidentiality
of relevant documents during selection of tenderers.
h) To ensure honesty,
objectivity and impartiality throughout the process of tenderer selection.
i) To provide information to the
bidding newspaper and to the national bidding website; to provide information
and relevant documents and make explanations on observance with provisions in
this Clause at the request of competent person, investment owner, inspection agencies,
state management agencies on bidding activities;
k) To be legally liable before
law and investment owner for the process of selection of contractor.
2. For selection of tenders in
regular procurement, apart from provisions at points a, b, c, d, dd, e, g, h
and i Clause 1 this Article, the bid solicitor must take the following
responsibilities:
a) To approve the bidding
dossier, dossier of requirements;
b) To approve the result of
tenderer selection;
c) To sign and manage the
contract performance with contractor;
d) To make a decision dealing
with any exceptional situation;
dd) To resolve protests during
selection of tenderers.
e) To cancel bid as prescribed
at Clause 1 Article 17 of this Law;
g) To be legally liable before
law and competent person for the process of selection of contractor;
h) To archive relevant
information during selection of tenderers as prescribed by law on archival and
regulations of Government;
i) To provide information to the
bidding newspaper and to the national bidding website; to provide information
and relevant documents and make explanations on observance with provisions in
this Clause at the request of competent person, investment owner, inspection
agencies, state management agencies on bidding activities;
k) To report the annual bidding
work.
3. For selection of investors
a) To conduct preparations for
investor selection; to organize investor selection; to assess dossiers of
pre-qualification participation, bid dossiers, dossiers of proposals in
accordance with this Law;
b) To decide on establishment of
expert group;
c) To request investors to
clarify their dossiers of pre-qualification participation, bid dossiers and
dossiers of proposals during the process of dossier assessment;
d) To submit for approval of
dossier of invitation for pre-qualification, result of pre-qualification,
bidding dossier, dossier of requirements, result of investor selection;
dd) To negotiate contract with
investor;
e) To pay compensation for loss
and damage to relevant parties pursuant to this Law if such loss and damage was
caused by the bid solicitor’s fault;
g) To maintain confidentiality
of relevant documents during selection of investors;
h) To archive relevant
information during selection of investors as prescribed by law on archival and
regulations of Government;
i) To resolve protests during
selection of investor;
k) To ensure honesty,
objectivity and impartiality throughout the process of investor selection;
l) To provide information to the
bidding newspaper and to the national bidding website; to provide information
and relevant documents and make explanations on observance with provisions in
this Clause at the request of competent person, inspection agencies, state
management agencies on bidding activities;
4. To perform other tasks as
prescribed in this Law.
Article 76. Responsibilities
of the expert groups
1. To be honest, objective and
impartial throughout the process of implementation of tasks.
2. To conduct assessments of
dossiers of expression of interest, dossiers of pre-qualification
participation, bid dossiers, dossiers of proposals correctly in accordance with
the requirements.
3. To report the bid solicitor
about result of assessing dossiers of expression of interest, dossiers of
pre-qualification participation, bid dossiers, dossiers of proposals and list
of the ranked tenderers, investors.
4. To maintain confidentiality
of relevant documents during selection of tenderers, investors.
5. To reserve their own
opinions.
6. To pay compensation for loss
and damage to relevant parties pursuant to this Law if such loss and damage was
caused by the expert group’s fault.
7. To provide information,
relevant documents and make explanations on observance with provisions in this
Article at the request of competent person, the bid solicitor, inspection
agencies, state management agencies on bidding activities.
8. To perform other tasks as
prescribed in this Law.
Article 77. Responsibilities
of the tenderers and investors
1. To request the bid solicitor
to clarify dossier of invitation for expression of interest, dossier of
invitation for pre-qualification, bidding dossier, dossier of requirements.
2. To fulfill the contractual
undertakings provided to the sub-contractors (if any).
3. To lodge protests, to make
complaints and denunciations regarding bidding.
4. To comply with the provisions
of the law on bidding.
5. To be honest and accurate
during the process of participation in bidding and while lodging protests or
making complaints and denunciations.
6. To pay compensation for loss
and damage to relevant parties pursuant to this Law if such loss and damage was
caused by the expert group’s fault.
7. To provide information,
relevant documents and make explanations on observance with provisions in this
Article at the request of competent person, the bid solicitor, inspection
agencies, state management agencies on bidding activities.
8. To perform other duties in
accordance with this Law and other relevant laws.
Article 78. Responsibilities
of the evaluating organizations
1. To act independently and to
comply with the provisions of this Law and other relevant laws when conducting
evaluations.
2. To request the investment
owner and the bid solicitor to provide all relevant documents and data.
3. To maintain confidentiality
of documents and data throughout the process of evaluation.
4. To be honest, objective and
impartial throughout the process of evaluation.
5. To reserve their own opinion
and to bear liability for their evaluation report.
6. To pay compensation for loss
and damage to relevant parties pursuant to this Law if such loss and damage was
caused by their fault.
7. To provide information,
relevant documents and make explanations on observance with provisions in this
Article at the request of competent person, the investment owner, the bid solicitor
for regular procurement, concentrated procurement, inspection agencies, state
management agencies on bidding activities.
8. To perform other tasks as
prescribed in this Law.
Article 79. Responsibilities
of the bid solicitor in participation in the national bidding network system
In addition to responsibilities
defined in Article 75 of this Law, the bid solicitor participating in the
national bidding network system shall have the following responsibilities:
1. To equip an information
technology infrastructure which meets requirements of bidding through network;
2. To manage and not disclose
secret key of the granted digital certificate. In case where a bid solicitor
lost digital certificate or detect the illegal use of digital certificate, it
must notify immediately to the provider of digital signature certification
service for cancelation and grant of new digital certificate; to expand the
term of validity of digital certificate to ensure the digital certificate to be
valid during the process of bidding;
3. To be legally liable before
law for accuracy and honesty of information registered or published on the
national bidding network system when sign in by their digital signature;
4. To check and certify the
publishing of their information entered in the national bidding network system;
5. To comply with provisions of
this Law and other provisions of relevant legislation.
Article 80. Responsibilities
of the tenderers and investors participating in the national bidding network
system
In addition to responsibilities
defined in Article 77 of this Law, the tenderers and investors participating in
the national bidding network system also have the following responsibilities:
1. To equip an information
technology infrastructure when participating in bidding through network;
2. To manage and not disclose
secret key of the granted digital certificate. If users of tenderers or
investors lost or detect the third party’s use of their digital certificate,
they must change the secret key of digital certificate, cancel digital
certificate under guide of the provider of digital signature certification
service; extend the validity term of the digital certificate to ensure the
digital certificate to be invalid during the process of participation in
bidding;
3. To be legally liable before
law for accuracy and honesty of information registered or published on the
national bidding network system when sign in by their digital certificate;
4. To be responsible for result
when participating in bidding through network in case of having incident due to
the network system at the side of tenderers or investors which make documents
to be not able to be open or not readable;
5. To comply with provisions of
this Law and other provisions of relevant legislation.
Chapter 10.
STATE
MANAGEMENT ON BIDDING ACTIVITIES
Article 81. Content of state
management on bidding activities
1. Promulgating, disseminating,
propagating, guiding and organizing implementation of legal documents and
policies on bidding.
2. Granting certificates of
practicing in bidding operation.
3. Managing the work of training
and capacity building on bidding.
4. Summarizing, assessing and
reporting on the status of implementation of bidding activities.
5. Administering on a nationwide
basis the tendering information system.
6. Monitoring, supervising,
checking, inspecting, resolving protests, complaints and denunciations
regarding tendering, and dealing with breaches of the law on bidding in
accordance with this Law and other relevant laws.
7. Conducting international
cooperation on bidding.
Article 82. Responsibilities
of Government and the Prime Minister
1. The Government shall exercise
unified administration of bidding throughout the country.
2. The Prime Minister shall
discharge the following responsibilities:
a) Make decisions on the bidding
issues stipulated in article 73 of this Law for projects under his competence;
b) Approve plan on selection of
tenderers, investors in special cases;
c) Direct the work of conducting
inspections and of resolving complaints, denunciation and dealing with breaches
of the law on In cases where a minister, head of a ministerial equivalent body
or chairman of a people's committee at any level is concurrently the authorized
person, then such minister, head or chairman must also discharge the responsibilities
stipulated in article 60 of this Law bidding in accordance with this Law and
the other relevant law;
d) Discharge other
responsibilities in accordance with this Law and other relevant laws.
Article 83. Responsibilities
of the Ministry of Planning and Investment
1. To be responsible before the
Government for the exercise of unified state administration of bidding
activities nationwide as prescribed in Article 81 of this Law.
2. In addition to provision at
Clause 1 this Article, the Ministry of Planning and Investment shall have the
following responsibilities:
a) To evaluate plans on
selection of contractor, investor in projects under the consideration and
decision competence of the Prime Minister;
b) To build up, manage, guide
use of the national bidding website and bidding newspaper;
c) To perform other tasks on
bidding as assigned by Government and the Prime Minister.
Article 84. Responsibilities
of ministries, ministerial equivalent bodies, and all level people's committees
Ministries, ministerial
equivalent bodies, and all level people's committees shall, within their tasks
and powers, have the following responsibilities:
1. To exercise administration of
bidding work;
2. Summarizing, assessing and
reporting on the status of implementation of bidding activities;
3. To resolve protests regarding
bidding;
4. To conduct checks and
inspections, resolve complaints, denunciation, and with breaches of the law on
bidding;
5. To organize the capacity
building of bidding knowledge for cadres, civil servants and public employees
engaged in bidding work;
6. In cases where a minister,
head of a ministerial equivalent body or chairman of a people's committee at
any level is concurrently the authorized person, then such minister, head or
chairman must also discharge the responsibilities stipulated in article 73 of
this Law; if being investment owner, he must also discharge the
responsibilities stipulated in article 74 of this Law.
Article 85. Responsibilities
of the organization operating the national bidding network system
1. To manage and operate the
national bidding network system.
2. To maintain confidentiality
of documents and data throughout the process of bidding through net work in
accordance with regulations.
3. To supply services to guide
investment owners, the bid solicitor, tenderers, investors in bidding through
network, and registering, publishing information on the national bidding
network system.
4. To save information in serve
of searching, monitoring, supervising, checking, inspecting and auditing.
5. To publicize conditions on
information technology infrastructure of users when participating in bidding
through network.
Article 86. Dealing with
exceptional situations
1. Dealing with exceptional
situations means settlement of cases arising in bidding which have not yet been
stipulated specifically clearly in law on bidding. The person making a decision
on dealing with any exceptional situation in tendering shall be responsible
before the law for his decision on the basis of ensuring the following
principles:
a) Ensuring competitiveness,
fairness, transparency and economic efficiency;
b) Acting on the basis of the
approved plan on selection of tenderer, investor, dossiers of invitation for
expression of interest, dossiers of invitation for pre-qualification, bidding
dossiers, dossier of requirements, dossiers of expression of interest, dossiers
of pre-qualification participation, bid dossiers, dossiers of proposals; result
of selection of tenderer, investor; the contract signed with selected tenderer,
investor; practical situation of implementation of bidding packages and
projects.
2. Competencies for dealing with
exceptional situations in bidding:
a) For tenderer selection to
perform bidding packages of project, the person making decision to deal with
exceptional situations is investment owner. In complex cases, the investment
owner may make decision on dealing with exceptional situations after consulting
the competent person;
b) For selection of tenders in
regular procurement, concentrated procurement, the person making decision to
deal with exceptional situations is the bid solicitor;
c) For investor selection, the
person making decision to deal with exceptional situations is competent person.
3. The Government shall detail
this Article.
Article 87. Inspection,
examination and supervision of bidding activities
1. Inspection of bidding
activities:
a) Bidding inspections shall be
carried out and applied to organizations and individuals who are involved in
bidding activities specified in this Law;
b) The bidding Inspectorate
shall be the specialized inspectorate for the tendering sector. The
organization and operations of the bidding Inspectorate shall be implemented in
accordance with the law on inspections.
2. Checks of bidding activities:
a) Checks of bidding activities
include:
checks of promulgation of
documents guiding on bidding of Ministries, sectors, localities and
enterprises; checks of training on bidding, checks of formulation and approval
of plan on selection of tenderer, investor; checks of selection of tenderer,
investor; conclusion in contracts and other activities involving bidding;
b) Checks of bidding shall be
conducted regularly or irregularly under decisions on the heads of agencies
competent to check.
3. Supervision of bidding
activities:
Supervision of bidding
activities is regular work of the competent person aiming to ensure the
observance of process of selection of contractor and investor with this Law.
4. The Government shall detail
this Article.
Article 88. Complaints and
denunciation
The making of complaints and
denunciations and the resolution of such complaints and denunciations on
bidding shall be implemented in accordance with the law on complaints and
denunciations.
Chapter 11.
BANNED
ACTS AND DEALING WITH BREACHES OF BIDDING
Article 89. Banned acts in
bidding
1. The handing, taking,
brokerage of bribes.
2. Taking advantage of
positions, powers aiming to interfere illegally in bidding activities.
3. Conclusion with each other in
bidding, including the following acts:
a) Agreeing on bidding
withdrawal or withdrawal of bidding application already been submitted
previously so that one party or parties in agreement win bid;
b) Agreeing to let one or many
parties to prepare bid dossier for parties of bidding so that one party may win
bid;
c) Agreeing on refusal for goods
provision, refusal for signing contract of sub-contractor, or forms which cause
other difficulties to parties which refuse to participate in agreement.
4. Fraudulence including the
following acts:
a) Providing a wrong
presentation intentionally or falsifying information, dossier or documents of a
party in bidding with the aim to obtain financial benefits or other benefits or
with the aim to avoid any obligation;
b) Individuals who directly
assess dossiers of expression of interest, dossiers of pre-qualification
participation, bid dossiers, dossiers of proposals, evaluate result of
selection of short list, result of selection of investor, tenderer,
intentionally providing wrong report or untrue information falsifying the
result of selection of tenderers, investors.
c) Tenderers, investors
intentionally provide dishonest information in dossiers of expression of
interest, dossiers of prequalification participation, bid dossiers, dossiers of
proposals falsifying the result of selection of tenderers, investors.
5. Interference including the
following acts:
a) Destroying, cheating,
changing, hiding proof or reporting contrary to the truth; threatening,
disturbing or suggesting with any party with the aim to prevent the
clarification of acts of handing, taking, brokerage of bribes, fraudulence or
conclusion with functional agencies, authorized agencies in conducting
supervisions, checks, inspections and audit;
b) Acts that impede tenderers,
investors, competent agencies involving supervision, check, inspection and
audit.
6. Failing to ensure the
fairness, transparency, including the following acts:
a) Participation in the capacity
of a tenderer, investor in a bidding package, project for which such
participant is also the bid solicitor, investment owner or person executing
tasks of the bid solicitor, investment owner;
b) To formulate, concurrently
evaluate dossier of invitation for expression of interest, dossier of
invitation for pre-qualification, bidding dossier, dossier of requirements for
a same bidding package, project;
c) To evaluate bid dossiers,
dossier of proposals, concurrently evaluate result of selection of tenderer,
investor for a same bidding package, project;
d) To be an individual of the
bid solicitor, investment owner but directly participate in the process of
selection of tenderer, investor or participate in expert groups, evaluation
groups for result of selection of tenderer, investor or be the head of
competent state agency, investment owner, the bid solicitor for bidding
packages, projects in which his or her natural parent, parent-in-law, spouse,
natural child, adopted child, son or daughter-in-law or sibling participates
give their name in bidding or are representatives in law of tenderers, investors
participating in bid;
dd) Participation by a tenderer
in bidding for goods procurement, construction and installation in a bidding
package for which such participant previously has provided consultancy
services;
e) Provision of one's name as
the tenderer for a bidding package belonging to a project of an organization or
body for which such person worked, within a period of 12 months from the date
on which such person ceased to work for such body or organization;
g) To be advisory tenderer for
supervision concurrently provide the verification advisory for the bidding
package which is under supervision of tenderer;
h) Application of a form of
selection of contractor, investor other than open tendering when the conditions
stipulated in this Law have not been satisfied;
i) Imposition of specific
requirements regarding brand names and country of origin of goods in bid
invitation documents applicable to bidding package for procurement of goods,
for construction and installation and mixture bidding packages when applying
forms of open bidding, limited bidding;
k) Division of a project,
estimate for procurement into bidding packages contrary to the provisions in
this Law with the aim to apply direct appointment of contractor or limit
participation of tenderers.
7. Disclosure, receipt of the
following data and information regarding selection of tenderer, investor,
except for cases defined at point b clause 7 and point e clause 8 article 73,
clause 12 Article 74, point i Clause 1 Article 75, Clause 7 Article 76, Clause
7 Article 78, point d Clause 2 and point d clause 4 Article 92 of this Law:
a) Contents of dossiers of
invitation for expression of interest, dossiers of invitation for
pre-qualification, bid invitation documents prior to the stipulated date for
issuance of such documents;
b) Contents of dossiers of
expression of interest, dossiers of pre-qualification participation, bid
dossiers, dossiers of proposals, notebooks and minutes of tender consideration
meetings, comments and assessments regarding each dossier of expression of
interest, dossier of pre-qualification participation, dossier of proposals
prior to the announcement of the short list, results of selection of
contractor, investor;
c) Requests for clarification of
bid dossiers, dossiers of proposals made by the bid solicitor and responses of
tenderers, investors during the process of assessment of bid dossiers, dossiers
of proposals prior to announcement of the results of selection of contractor,
investor;
d) Reports by the bid solicitor,
by the expert group, evaluation report, report of advisory tenderer, report of
relevant specialized agencies during the process of selection of contractor,
investor prior to announcement of the results of selection of contractor,
investor;
dd) Result of selection of contractor,
investor prior to the stipulated time for announcement;
e) Other documents during the
process of selection of contractor, investor which are stamped
"confidential" as prescribed by law.
8. Bid transfer including the
following acts:
a) Contractor transfer to other
contractor a part of work under bidding package at value of 10% or more of less
than 10% but over 50 billion VND (after deducting part of work under
responsibilities of sub-contractors calculated on the signed contractual price;
b) The investment owner or
supervision advisory accepts for contractor to transfer work under duty of
contractor, deducted part of work under duty of sub-contractors as stated in
contract.
9. Holding selection of
contractor when the financing source for the bidding package has not yet been
determined, resulting in insolvency of the contractor.
Article 90. Dealing with
violations
1. Any organization or
individual who breaches the law on bidding and other relevant law shall,
depending on the nature and seriousness of violation, be disciplined,
sanctioned administratively or liable to criminal prosecution; in case where
violation of law on bidding causes damages to benefits of state, the lawful
rights and benefits of organizations and individuals, the offender must pay
compensation as prescribed by law.
2. In addition to being dealt
with pursuant to the provisions in clause 1 of this article, depending on the
nature and seriousness of violation, organizations and individuals breaching
law on bidding shall be also banned participation in bidding activities and put
into list of infringing contractors on the national bidding network system.
3. Competence of banning
participation in bidding activities is prescribed as follows:
a) The competent persons shall
issue decisions on banning participation in bidding activities for projects,
estimate of procurement under their management; case of serious violation, they
may suggest the Ministers, Heads of ministerial-level agencies, chairpersons of
the provincial/municipal People’s Committees to issue decision on banning
participation in bidding activities within management of Ministries, sectors
and localities or suggest the Minister of Planning and Investment to issue
decisions on banning participation in bidding activities nationwide;
b) The Ministers, Heads of
ministerial-level agencies, chairpersons of provincial/municipal People’s
Committees shall issue decisions on banning participation in bidding activities
within management of their Ministries, sectors and localities for cases
suggested by the competent persons as prescribed at point a this Clause;
c) The Minister of Planning and
Investment shall issue decisions on banning participation in bidding activities
nationwide for cases suggested by the competent persons as prescribed at point
a this Clause.
4. Disclosure of dealing with
violations:
a) Decisions on dealing with
violations must be sent to the dealt organizations and individuals, the
relevant agencies and organizations, concurrently be sent to the Ministry of
Planning and Investment for monitoring and summing up;
b) Decisions on dealing with
violations must be published on bidding newspaper, the national bidding network
system.
5. The Government shall detail
this Article.
Chapter 12.
RESOLUTION
OF PROTESTS AND DISPUTES IN BIDDING
SECTION 1. RESOLUTION OF
PROTESTS REGARDING BIDDING
Article 91. Resolution of
protests regarding bidding
1. When consider that lawful
rights and benefits are severely affected, the contractors and investors have
rights:
a) To make protests to the bid
solicitor, investment owner, competent person about matters during selection of
contractor, investor; result of selection of contractor, investor according to
the process of resolution of protests specified in Article 92 of this Law;
b) To institute court
proceedings at any time, including time of resolution of protests or after
having result of resolution of protests.
2. In case where contractors,
investors instituted court proceedings, they are not entitled to send protest
to the bid solicitor, investment owner, or the competent person. If in the
process of resolution of protests, contractors, investors instituted court
proceedings, the resolution of protests shall be terminated immediately.
Article 92. The process of
resolution of protests
1. The process of resolution of
protests regarding matters during selection of tenderers shall be implemented
as follows:
a) A contractor may send a
written protest to the investment owner for project; the bid solicitor for
regular procurement, concentrated procurement since happening matters and prior
to having notice of result of contractor selection;
b) The investment owner, the bid
solicitor shall be responsible to have a document to resolve a protest made by
a tenderer within a time-limit of a maximum 07 working days from the date of
receipt of the written protest of the tenderer;
c) If the investment owner, the
bid solicitor has no document to resolve the protest or if the tenderer
disagrees with the result of resolution of protest, the tenderer shall have the
right to lodge the protest with the authorized person within 05 working days,
as from the expired day of replying or day of receiving document of resolution
of protest made by investment owner, the bid solicitor;
d) The authorized person shall
be responsible to resolve a protest made by a tenderer within a time-limit of a
maximum 15 working days from the date of receipt of the written protest of the
tenderer.
2. The process of resolution of
protests regarding result of selection of tenderers shall be implemented as
follows:
a) A tenderer may send a written
protest to the investment owner for project; the bid solicitor for regular
procurement, concentrated procurement in period of 10 days after having notice
of result of contractor selection;
b) The investment owner, the bid
solicitor shall be responsible to have a document to resolve a protest made by
a tenderer within a time-limit of a maximum 07 working days from the date of
receipt of the written protest of the tenderer;
c) If the investment owner, the bid
solicitor has no document to resolve the protest or if the tenderer disagrees
with the result of resolution of protest, the tenderer shall have the right to
lodge the protest with the authorized person and the Consulting Council for
resolution of protests within 05 working days, as from the expired day of
replying or day of receiving document of resolution of protest made by
investment owner, the bid solicitor. The Minister of Planning and Investment
shall establish a Consulting Council for Resolution of Protests at central
level; the Ministers, Deputy Ministers of Ministerial agencies shall establish
the Councils at ministerial level; the heads of state management agencies on
bidding at localities shall establish the Councils at local level;
d) When receiving written
protest, the Consulting Councils for Resolution of Protests shall be entitled
to request the tenderers, investment owners, the bid solicitor and relevant
agencies for information provision in order to consider and have written report
to the competent person about the plan and content or replying protest within
20 days, after receiving the written protest made by the tenderer;
dd) In necessary case, the
Consulting Councils for Resolution of Protests shall, based on the written
protest made by the tenderer, suggest the competent person to consider for
temporary suspension of the bid. If accepting, within 05 working days, after
receiving the document of the Consulting Council for Resolution of Protests,
the competent person shall issue a written notice about temporary suspension of
the bid. The document of temporary suspension of the bid must be sent to the
investment owner, the bid solicitor, tenderer within 03 working days after
issuing the written notice about temporary suspension of the bid. Duration of
temporary suspension of the bid shall be calculated from the date the
investment owner, the bid solicitor receive the notice of temporary suspension
until the competent person issues a document to resolve protest;
e) The competent person shall issue
decision on resolution of protest regarding result of selection of tenderer
within 05 working days, after receiving the written opinion of the Consulting
Council for Resolution of Protests.
3. The process of resolution of
protests regarding matters during selection of investors shall be implemented
as follows:
a) The investor may send a
written protest to the bid solicitor as from happening events and prior to
having notice of result of selection of investor;
b) The bid solicitor shall be
responsible to have a document to resolve a protest made by an investor within
a time-limit of a maximum 15 days from the date of receipt of the written
protest of the investor;
c) If the bid solicitor has no
document to resolve the protest or if the investor disagrees with the result of
resolution of protest, the investor shall have the right to lodge the protest
with the authorized person within 05 working days, as from the expired day of
replying or day of receiving document of resolution of protest made by the bid
solicitor;
d) The authorized person shall
be responsible to resolve a protest made by an investor within a time-limit of
a maximum 05 working days from the date of receipt of the written protest of
the investor.
4. The process of resolution of
protests regarding result of selection of investor shall be implemented as
follows:
a) An investor may send a
written protest to the bid solicitor in period of 10 days after having notice
of result of investor selection;
b) The bid solicitor shall be
responsible to have a document to resolve a protest made by an investor within
a time-limit of a maximum 15 days from the date of receipt of the written
protest of the investor;
c) If the bid solicitor has no
document to resolve the protest or if the investor disagrees with the result of
resolution of protest, the investor shall have the right to lodge the protest
with the authorized person and the Consulting Council for resolution of
protests within 05 working days, as from the expired day of replying or day of
receiving document of resolution of protest made by the bid solicitor;
d) When receiving written
protest, the Consulting Councils for Resolution of Protests shall be entitled
to request the investors, the bid solicitor and relevant agencies for
information provision in order to consider and have written report to the
competent person about the plan and content or replying protest within 30 days,
after receiving the written protest made by the investor;
dd) In necessary case, the
Consulting Councils for Resolution of Protests shall, based on the written
protest made by the investor, suggest the competent person to consider for
temporary suspension of the bid. If accepting, within 10 days, after receiving
the document of the Consulting Council for Resolution of Protests, the
competent person shall issue a written notice about temporary suspension of the
bid. The document of temporary suspension of the bid must be sent to the bid
solicitor, investor within 05 working days after issuing the written notice
about temporary suspension of the bid. Duration of temporary suspension of the
bid shall be calculated from the date the bid solicitor receives the notice of
temporary suspension until the competent person issues a document to resolve
protest;
e) The competent person shall issue
decision on resolution of protest regarding result of selection of investor
within 10 days, after receiving the written opinion of the Consulting Council
for Resolution of Protests.
5. If a tenderer or investor
sends a written protest directly to the competent person without observance
with the processes of resolution of protests specified in this Article, such
written protest shall not be considered for settlement.
6. The Government shall detail
this Article.
SECTION 2. RESOLUTION OF
DISPUTES IN BIDDING BY COURTS
Article 93. The principles of
resolution
Resolution of disputes in
bidding by courts shall comply with law on civil procedures.
Article 94. The right to
request Court for application of temporary emergency measures
When instituting, parties have
the right to request the Court for immediate temporary suspension of bid
disclosure; approval of short list; approval of result of selection of
tenderer, investor; conclusion in a contract; performance of contract, and
other temporary emergency measures as prescribed by law.
Chapter 13.
IMPLEMENTATION
PRVISIONS
Article 95. Effect
1. This Law takes effect on July
01, 2014.
2. The bidding Law No.
61/2005/QH11 shall cease to be effective on the effective date of this Law.
3. To annul section 1 Chapter VI
of the Construction Law No. 16/2003/QH11 and Article 2 of the Law amending and
supplementing a number of articles of the laws concerning capital construction
investment No. 38/2009/QH12.
Article 96. The detailed
provision
The Government shall detail
Articles, Clauses as assigned in this Law.
This Law was passed by
Legislature XIII of the National Assembly of the Socialist Republic of Vietnam
at its 6th Session on 26 November 2013.
THE CHAIRMAN OF
THE NATIONAL ASSEMBLY
Nguyen Sinh Hung |