Luật Đấu thầu - văn bản tiếng Anh: Law on Bidding of Vietnam.
- Tải về toàn văn Luật Đấu thầu tiếng Anh: Law on Bidding TẠI ĐÂY
- Đối chiếu: Toàn văn Luật đấu thầu 2013 (tiếng Việt)
THE NATIONAL ASSEMBLY
No. 43/2013/QH13 Hanoi, November 26, 2013
LAW ON BIDDING
Pursuant to
the Constitution of the Socialist Republic of Vietnam;
The 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 VND 500 billion in total invested
capital of project.
d) Procurement
financed by state aiming to maintain regular activities of State agencies,
political organizations, socio-political organizations,
socio-political-occupational organizations, social organizations,
socio-occupational organizations and units of the People’s armed forces, and
public non-business units;
dd) Procurement
financed by state aiming to supply products and services in serve of public
purpose;
e) Purchase of
national reserve goods financed by the 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 VND 500 billion 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 l
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, bidding dossiers,
dossiers of requirements; assessment of dossiers of expression of interest,
dossiers of prequalification participation, bidding 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 bid invitation 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 bid invitation dossier, dossier of proposals on the basis of
requirements stated in bid invitation 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, bid
invitation 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, bidding dossiers,
dossier of proposals.
42. The
validity duration of bidding dossiers, dossier of proposals means number of
days stipulated in bid invitation dossier, dossier of requirements and
calculated from the time of bid closure to the end effect day as prescribed in
bid invitation 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, bidding
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 bid invitation dossiers, dossier of
requirements; assessment of bidding 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 bid solicitor.
5. The
Government shall detail this Article.
Article 7.
Conditions for issuing the bid invitation dossiers, dossier of requirements
1. The bid
invitation 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
bid invitation 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. Bid
invitation 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
bid invitation 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) Bid
invitation dossiers, dossier of requirements must state the currency for
bidding in bidding 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 bid invitation dossiers, dossier of requirements stipulate that tenderers
may have bid quotation in two or three currencies when assessing bidding
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. Bid invitation 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 must have a bid quotation
in Vietnam dong;
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 bidding 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 bid
invitation 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 bid
invitation 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 bid invitation dossier, dossier
of requirements equal to the term of validity of the bidding dossiers, dossier
of proposals plus thirty (30) days.
5. Case of
extending the period of validity of bidding 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 bidding dossiers, dossiers of proposals. If any tenderer or
investor refuses to extend the period of validity, his bidding 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 bid invitation 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 bid invitation 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 bidding dossier, dossier of proposals after time of bid
closure when the bidding 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, bid invitation 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 bidding dossiers shall be at least 20 days for domestic bidding
and 40 days for international bidding, from the first day when bid invitation
dossiers are issued until day of bid closure time. Tenderers must submit the
bidding 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 bidding 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 bidding 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
bidding 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, bid invitation 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, bid invitation
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, bid invitation
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 bidding 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 bidding 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 bidding dossier, dossier of proposals, and must ensure progress of project;
m) Time for
sending a document to modify a bid invitation dossier to tenderers already
received bid invitation 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,
bid invitation 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, bidding 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) Bid
invitation 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, bidding 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, bid invitation 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 bidding dossiers,
dossiers of proposals in order to compare, rank the bidding 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, bid invitation
dossiers, dossiers of requirements; assessment of dossiers of expression of
interest, dossiers of pre-qualification participation, bidding 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 bidding
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 bid
invitation 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 bidding dossiers, dossiers of proposals including
technical proposals and financial proposals at the request of bid invitation
dossiers, dossiers of requirements.
3. The bid
opening shall be conducted once for all bidding 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 bid
invitation 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 bid invitation 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
bidding dossiers. Bidding dossiers include technical proposals and financial
proposals at the request of bid invitation 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 bid
invitation 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
bid invitation 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 bidding dossiers. Bidding dossiers include technical proposals
and financial proposals at the request of bid invitation 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 bidding 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 bid invitation 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, bid invitation
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
bidding 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 BIDDING DOSSIER, DOSSIER OF PROPOSALS; CONSIDERATION FOR
RECOMMENDATION AS THE WINNING TENDERER
Article 39.
Methods to assess bidding 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 bid invitation dossier;
b) Criteria for
evaluation of bidding dossier include: Evaluation criteria of capability,
experiences and criteria of bidding package;
c) For the
bidding 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 bidding 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 bidding
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 bidding 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 bidding
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 bidding 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 bidding dossier are assessment criteria of technical aspect.
For bidding 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
bid invitation dossier. Criteria for evaluation of bidding dossier are
assessment criteria of technical aspect. For bidding 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 bidding 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 bidding
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 bidding 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 bidding 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
bidding 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
bidding 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
bidding 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 bid invitation 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
bidding 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
bidding 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, bid
invitation 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, bid invitation 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, bid
invitation 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, bid invitation dossier, dossier of requirements
and result of investor selection.
4. The
Government shall detail this Article.
Article 58.
Methods to assess the bidding dossiers
1. Methods to
assess the bidding 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 bidding 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
bidding 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, bidding dossiers, dossiers of proposals;
dd) Opening
bid;
e) Assessing
dossiers of expression of interest, dossiers of pre-qualification
participation, bidding 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, bidding 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, bid invitation 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) Bidding
dossier, dossier of proposals and documents to clarify these dossiers of the
selected contractor;
d) Bid
invitation 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, bidding 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 bid invitation dossier,
dossier of requirements, bidding 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 bid invitation 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) Bidding
dossier, dossier of proposals and documents to clarify these dossiers of the
selected investor;
g) Bid
invitation 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, bidding 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 bid invitation dossier,
dossier of requirements, bidding 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, bid
invitation 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) Bid
invitation 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, bidding 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, bidding 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 bid invitation 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, bidding 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, bidding
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, bid invitation 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, bidding 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, bidding 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, bid invitation 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, bid invitation dossiers, dossier of requirements, dossiers
of expression of interest, dossiers of pre-qualification participation, bidding
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 bidding 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, bidding 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, bidding 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, bid invitation dossier,
dossier of requirements for a same bidding package, project;
c) To evaluate
bidding 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, bidding 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 bidding dossiers, dossiers of proposals made by the bid
solicitor and responses of tenderers, investors during the process of
assessment of bidding 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 VND 50 billion (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 in 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
Ý KIẾN