Decree 111/2006/NĐ-CP: Guiding The Implementation Of The Bidding Law And The Selection Of Construction Contractors Under The Construction Law

Link to law: http://vbpl.vn/tw/Pages/vbpqen-toanvan.aspx?ItemID=4860&Keyword=
Published: 2006

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Effective:
Effective
Effective Date:
04/11/2006
THE GOVERNMENT
Number:
111/2006/NĐ-CP
SOCIALIST REPUBLIC OF VIET NAM
Independence - Freedom -
Happiness
Hà Nội
, September 29, 2006
DECREE
Guiding the implementation of the Bidding Law and the selection of construction contractors under the Construction Law
THE GOVERNMENT
Pursuant to the December 25, 2001 Law on Organization of the Government;
Pursuant to November 29, 2005 Bidding Law No. 61/2005/QH11 and November 26, 2003 Construction Law No. 16/2003/QH11 of the National Assembly;
At the proposal of the Minister of Planning and Investment and the Minister of Construction,
DECREES:
Chapter I
GENERAL PROVISIONS
Article 1.- Governing scope
1. This Decree guides the implementation of November 29, 2005 Bidding Law No. 61/2005/QH11 and the selection of construction contractors under November 26, 2003 Construction Law No. 16/2003/QH11 of the National Assembly.
2. The selection of contractors for bidding packages of ODA projects shall comply with the provisions of Clause 3, Article 3 of the Bidding Law. The procedures for submission, appraisal and approval of contents of bidding plans and results of selection of contractors for those projects shall comply with the provisions of this Decree.
Article 2.- Interpretation of terms
In this Decree, the following terms are construed as follows:
1. Use of state capital according to the provisions of Clause 1, Article 1 of the Bidding Law covers also expenditures in forms of purchase, hire or hire-purchase. If a project is executed in the form of joint venture or business cooperation contract or joint-stock company, the state capital portion of 30% or more shall be determined in proportion to the state capital portion in the legal capital, contributed capital or joint stock capital of that project.
2. Dossier of requirements means the entire documentation used for the appointment of contractors, competitive offers, direct procurement or contractor selection in special cases, including requirements for a bidding package, which serve as legal grounds for contractors to prepare dossiers of proposals and for the bid solicitor to evaluate such proposals in order to select a contractor that satisfies the requirements in the dossier of requirements; and serve as a basis for negotiation, finalization and conclusion of contracts. Investors shall decide on the contents of dossiers of requirements.
3. Dossier of proposals means the entire documentation prepared by a contractor based on the dossier of requirements and submitted to the bid solicitor according to the terms in the dossier of requirements;
4. Contractor-selection results means bidding results for open or restricted bidding or selection results for other selection forms;
5. Violation of bidding law means an act of failing to implement or to fully implement the provisions of bidding law;
6. Bidding participation means the contractors' participation in open or restricted bidding;
7. Bidding package for selection of general construction contractors covers the selection of a general contractor to undertake an engineering bidding package (E); a construction bidding package (C); an engineering and construction bidding package (EC); an engineering, procurement and construction bidding package (EPC); and the formulation of projects, engineering, procurement and construction (turn-key).
Article 3.- Assurance of competition in bidding
The Prime Minister shall specify an appropriate roadmap to assure competition in bidding according to the provisions of Article 11 of the Bidding Law.
Article 4.- Preferences in international bidding
1. Preferences in international bidding provided for in Article 14 of the Bidding Law apply as follows:
a/ For consultancy service bidding packages: Contractors eligible for preferences may have the total points of their bids added with 7.5% of that total; for consultancy service bidding packages with high technical requirements, the contractors’ technical points are added with 7.5% of those points;
b/ For construction and installation bidding packages: Evaluation prices of bids submitted by contractors not eligible for preferences must be added with a sum of money equal to 7.5% of bidding prices after errors or flaws of those contractors are corrected or adjusted respectively;
c/ For procurement bidding packages: Evaluation prices of bids submitted by contractors not eligible for preferences must be added with a sum of money corresponding to the value of import tax, export tax, import-related charges and fees payable under legal provisions, which, however, may not exceed 15% of goods prices, except for goods subject to import tax or import-related charges and fees;
d/ For bidding packages for selection of general engineering contractors, the determination of preferences is based on the provisions of Point a of this Clause. For other bidding packages for selection of general construction contractors, the determination of preferences complies with the provisions of Point b of this Clause.
2. When bids of foreign contractors are ranked equally, the ranking priority is given to the bids proposing higher domestic expenses. When bids of domestic contractors and foreign contractors are ranked equally after the application of preferences according to the provisions of Clause 1 of this Article, the ranking priority is given to the bids of domestic contractors.
Article 5.- Professional training and re-training on bidding
1. Subjects
a/ Except for contractors, individuals directly involved in bidding activities must possess professional bidding training or re-training certificates;
b/ Other individuals who wish to possess such certificates.
2. Management of training and re-training on bidding
The Ministry of Planning and Investment shall organize professional training and re-training on bidding according to the provisions of Clause 5, Article 68 of the Bidding Law, specifically:
a/ Summing up training and re-training activities of training establishments, based on the annual bidding reports of ministries, branches and localities;
b/ Establishing a data system of bidding-training establishments on the basis of information supplied by those establishments.
3. Conditions for establishments to organize training and re-training activities
a/ Having business registration certificates or founding decisions, for establishments having no business registration certificates in accordance with law;
b/ Having a contingent of bidding lecturers.
4. Conditions for the grant of bidding certificates
a/ Certificates are granted to trainees who attend all bidding courses and pass examinations or tests;
b/ A certificate-awarding bidding course must be organized for at least 3 days.
5. Responsibilities and obligations of bidding-training establishments
a/ To be responsible for training quality; to supply information on their own establishments to the data system according to the provisions of Point b, Clause 2 of this Article;
b/ To carry out training and re-training activities and grant training certificates to trainees according to regulations;
c/ To annually report on their training activities to the Ministry of Planning and Investment, concerned ministries, branches or localities for monitoring and sum-up.
Article 6.- Bidding expenses
1. The sale price of a bidding dossier set (tax inclusive) shall be decided by the investor based on the size and nature of the bidding package but may not exceed VND 1,000,000 for domestic bidding; for international bidding, that price shall comply with international bidding practice.
2. The expense for appraisal of contractor-selection results, even when no contractors are selected, is equal to 0.01% of the bidding-package price, but must be VND 500,000 at least or VND 30,000,000 at most.
3. The expense for the Advisory Council to handle a contractor's petition on bidding results is 0.01% of the bidding price offered by that contractor but must be VND 2,000,000 at least or VND 30,000,000 at most.
The management and use of expenses mentioned in Clauses 1 and 2 of this Article shall comply with the current provisions of law.
Article 7.- Bidding newspaper and website
1. The publication of bidding information prescribed in Article 5 of the Bidding Law is free of charge for agencies and organizations that send information for publication.
2. Agencies and units having bidding newspapers and websites operate in the form of non-business units with revenues.
3. A bidding newspaper is published daily.
4. Supply of bidding information
a/ Responsibility to supply information
- Ministries, ministerial-level agencies, other central agencies and People's Committees at all levels shall supply information mentioned at Points g and h, Clause 1, Article 5 of the Bidding Law.
- Investors and bid solicitors shall supply information mentioned at Points a thru f and Point h, Clause 1, Article 5 of the Bidding Law.
b/ Time limit for information supply
With regard to notices of invitation for pre-qualification, for bids or for expression of interest, information must be supplied within 15 days before the distribution of dossiers of invitation for pre-qualification, bidding dossiers or dossiers of invitation for expression of interest; with regard to notices of invitation for competitive offers, information must be supplied within 10 days before the distribution of dossiers of requirements. Other information prescribed in Clause 1, Article 5 of the Bidding Law must be supplied within 10 days after the signing of relevant documents.
The Ministry of Planning and Investment shall specify the supply of information and the schedule for publication of bidding information.
Chapter II
BIDDING PLAN
Article 8.- Bases for elaboration of a bidding plan
1. The investment decision and documents serving as grounds for making that decision; the business registration certificate, the investment certificate; or the decision of the head of the project-preparing agency, for project preparations.
2. International treaties or agreements, for ODA projects.
3. The approved design, cost estimate and total cost estimate (if any).
4. Capital sources for the project.
5. Relevant legal documents (if any).
Article 9.- Contents of each bidding package in a bidding plan
The division of a project into bidding packages shall comply with the provisions of Clause 4, Article 6 of the Bidding Law, ensuring that the size of each bidding package is not too small or too big as this may restrict the participation of contractors. Contents of a bidding package include:
1. Title of the bidding package
The title of the bidding package reflects its nature, contents and scope of work, which are compatible with the contents of the project.
2. Bidding-package price
The bidding-package price is determined on the basis of the approved total investment capital or total cost estimate or cost estimate and relevant regulations.
3. Capital sources
Capital sources or the mode of arranging capital for payment to contractors must be clearly determined for each bidding package; when ODA capital is used, the name of the donor and the capital structure (domestic and foreign) must be identified.
4. Form of selecting contractors and bidding mode
The form of selecting contractors (domestic or international bidding or pre-qualification, if any) as well as the bidding mode must be identified according to the provisions of Articles 18 thru 24 of the Bidding Law, Article 97 of the Construction Law, and the provisions of Article 26 of the Bidding Law, respectively.
5. Time for selection of contractors
The time for organizing the selection of contractors to undertake the bidding package must be determined so as to ensure the progress of that bidding package.
6. Forms of contract
Depending on the nature of the bidding package, the applicable forms of contract must be determined according to the provisions of Articles 49 thru 53 of the Bidding Law and Article 107 of the Construction Law.
7. Time for performance of contracts
The time for performance of contracts must ensure that the execution of the bidding package accords with the project-execution schedule.
Article 10.- Submission for approval of a bidding plan
1. Submission responsibility
The investor shall submit the bidding plan to the investment decider for consideration and approval and concurrently send that plan to the appraising agency or organization; when submitting the bidding plan to the Prime Minister, the investor shall also send it to the branch-managing ministry for written comments to be submitted to the Prime Minister for consideration and approval.
2. Dossier submitted for approval
a/ The document submitted for approval of the bidding plan has the following contents:
- The jobs already done, including those related to project preparation, with their value and legal grounds;
- The jobs to which one of the forms of selecting contractors prescribed in Articles 18 thru 24 of the Bidding Law and Article 97 of the Construction Law cannot be applied;
- The bidding plan, which covers jobs constituting bidding packages to be executed in one of the forms of selecting contractors prescribed in Articles 18 thru 24 of the Bidding Law and Article 97 of the Construction Law, including such jobs as mine sweeping, building of resettlement areas, works insurance and training. Bases for division of the project into bidding packages must also be stated. For each bidding package, all contents prescribed in Article 9 of this Decree are required. When open bidding is not applied, the reasons therefor are required.
The total value of the jobs which have been done, the jobs to which no form of selecting contractors is applied and the jobs falling under the bidding plan must not exceed the total investment amount of the project.
When it is necessary to devise a bidding plan for one or some bidding packages to be executed in advance according to the provisions of Clause 2, Article 6 of the Bidding Law, the document submitted for approval must still have the contents prescribed in this Clause.
b/ Documentation accompanying the document submitted for approval
Upon submitting the bidding plan, the investor shall enclose copies of documentation serving as bases for elaboration of that plan according to the provisions of Article 8 of this Decree.
Article 11.- Appraisal and approval of a bidding plan
1. Appraisal of a bidding plan
a/ Appraisal of a bidding plan means examination and assessment of the contents under the provisions of Articles 8, 9 and 10 of this Decree.
b/ The agency or organization appraising the bidding plan shall make a report on appraisal results in compliance with the provisions of Article 65 of the Bidding Law and submit it to the investment decider for approval.
2. Approval of a bidding plan
The investment decider shall approve the bidding plan within 10 days after receiving the investor’s report, the appraisal report of the appraising agency or organization and the opinions of the relevant agencies (if any). The approval of the bidding plan by the Prime Minister shall comply with the working regulation of the Government.
Chapter III
PRE-QUALIFICATION
Article 12.- Application of pre-qualification
1. Pre-qualification shall comply with the provisions of Point a, Clause 1, Article 32 of the Bidding Law.
2. When pre-qualification is required for bidding packages not specified in Clause 1 of this Article, investment deciders shall specify it in bidding plans.
Article 13.- Order of pre-qualification
1. Compilation of a dossier of invitation for pre-qualification
The bid solicitor shall compile a dossier of invitation for pre-qualification and submit it to the investor for approval. The dossier of invitation for pre-qualification contains information guiding the bidding package and the following requirements for contractors:
a/ Requirements on technical capability;
b/ Requirements on financial capability;
c/ Requirements on experience.
Pre-qualification responses are evaluated on the basis of the "pass" or "fail" criterion, which must be stated in the dossier of invitation for pre-qualification and include criteria for each of the requirements on technical capability, financial capability and experience.
Except for bidding packages for selection of general engineering contractors, construction and installation bidding packages and bidding packages for selection of general construction contractors require that criteria for evaluation of pre-qualification responses conform to the capability requirements set for each type and grade of construction work under the provisions of the Construction Law.
2. Notice of invitation for pre-qualification
A notice of invitation for pre-qualification made according to the form provided in Appendix I to this Decree (not printed herein) must be published on a bidding newspaper for three consecutive issues and on the bidding website; for international bidding, it must also be published on an English newspaper widely circulated in the country. After being published on these media, such an invitation may also be published on other mass media. The dossier of invitation for pre-qualification is supplied free of charge to contractors within 10 days after the notice of invitation for pre-qualification is first published, till the expiration of the time limit for submission of pre-qualification responses (closure of pre-qualification).
3. Receipt and management of pre-qualification responses
The bid solicitor shall receive pre-qualification responses from contractors and manage them according to the regulations on management of "secret" dossiers. Pre-qualification responses submitted in strict compliance with the requirements of the dossier of invitation for pre-qualification shall be opened publicly right after the closure of pre-qualification. Pre-qualification responses submitted after the pre-qualification-closing time may not be opened and shall be returned to contractors.
4. Evaluation of pre-qualification responses
The bid solicitor shall evaluate pre-qualification responses according to criteria mentioned in the dossier of invitation for pre-qualification.
5. Submission and approval of pre-qualification results
The bid solicitor shall submit to the investor for approval pre-qualification results.
6. Notification of pre-qualification results
After the investor approves pre-qualification results, the bid solicitor shall notify in writing those results to the contractors who have participated in pre-qualification so as to invite them to bidding.
Chapter IV
OPEN BIDDING AND RESTRICTED BIDDING FOR CONSULTANCY SERVICE BIDDING PACKAGES
Article 14.- Bidding preparation
1. Selection of contractors to be invited for participation in bidding
a/ For open bidding:
- The investor shall approve the dossier of invitation for expression of interest with the following requirements for contractors:
+Requirements on capabilities and number of experts;
+ Requirements on financial capability;
+ Requirements on experience.
The dossiers of expression of interest are evaluated on the basis of the "pass" or "fail" criterion, which must be mentioned in the dossier of invitation for expression of interest, and cover criteria on capabilities and number of experts, financial capability and experience as well.
- The notice of invitation for expression of interest must be published on a bidding newspaper for three consecutive issues and on the bidding website; for international bidding, it must also be concurrently published on an English newspaper widely circulated in the country. After publication according to the above provisions, such an invitation may also be published on other mass media;
- Ten days after the notice of invitation for expression of interest is first published, the bid solicitor shall distribute free of charge the dossier of invitation for expression of interest to contractors that wish to participate in bidding;
- The time limit for contractors to prepare dossiers of expression of interest is five days for domestic bidding and 10 days for international bidding;
- The bid solicitor shall evaluate dossiers of expression of interest submitted by contractors according to the evaluation criteria, and submit to the investor for approval a list of contractors to be invited for participation in bidding.
b/ For restricted bidding:
The investor shall approve the list of contractors that are considered fully capable and experienced to be invited for participation in bidding.
2. Compilation of bidding dossiers
a/ Bases for compilation of a bidding dossier:
- The investment decision and documents serving as grounds for making that decision; the business registration certificate, the investment certificate;
- The approved bidding plan;
- Legal provisions on bidding and relevant provisions of law; international treaties or agreements (if any), for ODA projects;
- State policies on tax, salary and preferences in international bidding or relevant regulations.
When the bidding package needs to be executed before the issuance of an investment decision, the organization assigned to prepare the project shall base itself on the relevant documents to compile a bidding dossier and submit it to the head of the project-preparing agency for approval.
b/ Contents of a bidding dossier:
A bidding dossier must cover the contents prescribed in Clause 2, Article 32 of the Bidding Law, including important requirements (prerequisites) for elimination of bids. Specifically:
- The contractors are neither named in the list of purchasers of bidding dossier sets nor registered for participation in bidding, except for the case specified in Clause 2, Article 16 of this Decree;
- The contractors fail to ensure their lawful capacity according to the provisions of Articles 7 and 8 of the Bidding Law;
- The contractors fail to meet the capability conditions under the provisions of the Construction Law;
- The originals of bids are not available;
- The applications for bidding participation are invalid;
- The bids fail to meet the validity requirements as stated in the bidding dossier;
- The contractors are named in two or more bids as principal contractors (independent or partnership contractors);
- Other peculiar important requirements of the bidding package.
Contractors that fail to satisfy one of the prerequisites stated in the bidding dossier will be eliminated and their bids will not be further considered.
3. Approval of a bidding dossier
Based on the appraisal report of the appraising agency or organization, the investment decider shall approve or authorize the investor to approve the bidding dossier according to the provisions of Article 60 of the Bidding Law.
4. Invitation for bids
a/ The bid solicitor shall send letters of invitation for bids to contractors on the list of contractors to be invited for participation in bidding. A letter of invitation for bids is made according to the form in Appendix II to this Decree (not printed herein);
b/ The duration from the time the letters of invitation for bids are sent to contractors to the time of distribution of the bidding dossiers is at least 5 days for domestic bidding or 7 days for international bidding.
Article 15.- Bid-evaluation criteria
1. For consultancy service bidding packages without high technical requirements, including those for construction consultancy services under the provisions of the Construction Law:
a/ Technical evaluation criteria: To use a point scale (100, 1,000...) for the evaluation of the following contents:
- The experience and capabilities of a contractor. This content requires 10%-20% of the total points;
- The solutions and methodology to be applied to meet the requirements of a bidding package. This content requires 30%-40% of the total points;
- The contractor's personnel for execution of a bidding package. This content requires 50%-60% of the total points.
The required minimum technical points must be determined but not lower than 70% of the total points. A bid whose technical points are not lower than the required minimum points is considered meeting the technical requirements.
b/ Financial evaluation criteria: To use a point scale (100, 1,000...) in conformity with the technical point scale. Financial points required for each bid are determined as follows:
Financial points (of bids in consideration) = {The lowest P x (100, 1,000... : P in consideration}
In which:
The lowest P is the lowest bidding price after the correction of errors and adjustment of flaws, which is offered by the contractor that passes the technical evaluation.
P in consideration means the bidding price after correction of errors and adjustment of flaws of the bids in consideration.
c/ General evaluation criteria
- The general evaluation criteria are formulated on the basis of technical and financial evaluation criteria, of which the technical points must not be lower than 70% of the total points while the financial points must not be higher than 30% of the total points;
- The general points of a bid are determined according to the following formula:
The general points = D technical x (K%) + D financial x (G%)
In which:
- K%: The percentage of technical points (on the general point scale).
- G%: The percentage of financial points (on the general point scale).
- D technical: The number of points of the bid, which is determined at the technical evaluation stage according to the provisions of Point a of this Clause.
- D financial: The number of points of the bid, which is determined at the financial evaluation stage according to the provisions of Point b of this Clause.
2. For consultancy service bidding packages, including those for construction consultancy services under the provisions of the Construction Law, with high technical requirements:
The technical evaluation criteria are formulated according to the provisions of Point a, Clause 1 of this Article whereby the minimum technical points must not be lower than 80% of the total technical points.
Article 16.- Organization of bidding
1. Distribution of bidding dossiers
a/ The bid solicitor shall sell bidding dossiers till the bid closure to contractors on the lists of contractors invited for participation in bidding at the sale prices prescribed in Clause 1, Article 6 of this Decree. For a partnership of contractors, only one partner needs to buy the bidding dossier;
b/ The modification and clarification of bidding dossiers shall comply with the provisions of Clause 1, of Article 33 and Article 34 of the Bidding Law.
2. Preparation of bids
Contractors shall prepare and submit bids as required by the bidding dossiers. When a contractor needs to change its bidding-participation capacity (name) which is different from that it has registered at the time of buying the bidding dossier or registering for bidding participation, it is required to notify that in writing to the bid solicitor. The bid solicitor shall consider it only when such written notice is received before the bid closure.
3. Receipt and management of bids
Bid solicitors shall receive and manage the submitted bids according to the regime of management of "secret" dossiers. Bids sent to bid solicitors after the bid-closing time shall be all considered invalid and returned to contractors in their original state. Any documents sent by contractors after the bid-closing time as amendments or supplements to the submitted bids shall be considered invalid.
4. Modification or withdrawal of bids
If wishing to modify or withdraw their submitted bids, contractors shall make written requests and bid solicitors shall approve the modification only if they receive the requests before the bid-closing time; written requests for the withdrawal of bids must be sent separately from bids.
5. Opening of technical proposal dossiers
a/ Bids shall be opened publicly right after the bid-closing time on the date, at the time and place already stated in the bidding dossier to the witness of all attendants, regardless of the presence or absence of the invited contractors. The bid solicitor may invite representatives of concerned agencies to attend the bid opening;
b/ The bid solicitor shall open the technical proposal dossier of each contractor according to their names in the alphabetical order and the following order:
- Inspecting the seal;
- Opening the dossier, reading and writing in the minutes the following principal contents:
+ The name of the contractor;
+ The number of originals and the number of copies of the dossier;
+ The validity term of the dossier;
+ The written request for dossier modification (if any);
+ Other relevant information.
The bid-opening minutes must be signed for certification by representatives of contractors, the bid solicitor and concerned agencies attending the bid opening.
After opening a bid, the bid solicitor shall sign for certification every page of the original technical proposal dossier and manage it according to the "secret" dossier management regime. The evaluation of technical proposal dossiers shall be conducted using the copies of those dossiers. Contractors shall be responsible for the accuracy and compatibility of the copies with the originals as well as for the seals of their bids.
Article 17.- Evaluation of bids
The evaluation of bids for consultancy service bidding packages, including those for construction services under the provisions of the Construction Law shall be based on the evaluation criteria and other requirements stated in the bidding dossiers, on the evaluation principles prescribed in Article 28 of the Bidding Law and the evaluation order provided for in Article 35 of the Bidding Law. Specifically:
1. Preliminary evaluation
a/ Checking the validity of a technical proposal dossier according to the requirements of a bidding dossier:
- The validity of the application for bidding participation. That application must be completed and signed by the lawful representative of the contractor according to the requirements of the bidding dossier. For a partnership contractor, unless the partnership agreement states that all partners authorize a contractor leading the partnership to sign the application for bidding participation, that application must be signed by the lawful representative of each partner.
- The validity of the partnership agreement. The partnership agreement must clearly define responsibilities, powers, work volume to be performed and the corresponding value of each partner, including the head of the partnership, and responsibilities of the partnership leader, signatures of all partners and their seals (if any);
- The availability of one of the valid papers as required by the bidding dossier: The business registration certificate, the investment certificate, the establishment decision, the lawful registration paper or an appropriate professional certificate;
- The number of originals and the number of copies of the technical proposal dossier;
- The appendixes and documents enclosed with the bid.
b/ Eliminating those bids which fail to meet the important requirements (prerequisites) stated in the bidding dossier according to the provisions of Point b, Clause 2, Article 14 of this Decree.
2. Detailed evaluation
a/ Evaluating the bids for consultancy service bidding packages, including those for construction consultancy under the provisions of the Construction Law, without high technical requirements:
- Technical evaluation:
Conducting the technical evaluation according to the evaluation criteria set in bidding dossiers. Investors shall approve lists of contractors that satisfy technical requirements for financial evaluation.
- Financial evaluation:
Opening the financial proposal dossiers of contractors that satisfy technical requirements in the order prescribed at Point b, Clause 5, Article 16 of this Decree. A minutes on the opening of financial proposal dossiers covers the following major contents:
+ The names of contractors;
+ The number of originals and the number of copies of the dossiers;
+ The bidding prices stated in the applications for bidding participation;
+ Relevant information.
After opening bids, the bid solicitor shall sign for certification every page of the original financial proposal dossier of each bid and manage those dossiers according to the "secret" dossier management regime. The financial evaluation shall be conducted using the copies and contractors shall be responsible for the accuracy and the compatibility of the originals with the copies as well as for the sealing of financial proposal dossiers. The financial evaluation shall be based on the relevant evaluation criteria stated in the bidding dossier.
- General evaluation:
The general technical and financial evaluation shall be conducted under the general evaluation criteria prescribed in bidding dossiers. Contractors that get the highest general points shall be proposed by bid solicitors to investors for being ranked first and invited to negotiate contracts according to the provisions of Article 18 of this Decree.
b/ Evaluation of bids for consultancy service bidding packages, including those for construction consultancy services under the provisions of the Construction Law, with high technical requirements:
Technical proposal dossiers shall be evaluated according to criteria stated in a bidding dossier prescribed at Point a, Clause 2 of this Article. Those bids which get technical points not lower than the required minimum points shall be considered satisfying the technical requirements and ranked by the bid solicitor for submission to the investor for approval. The first-ranking contractor shall be invited to open the financial proposal dossier and to negotiate a contract according to the provisions of Article 18 of this Decree.
Article 18.- Negotiation of contracts
1. Based on the investor's decision, the bid solicitor shall invite the first-ranking contractor to negotiate a contract.
2. Contents of negotiation of a contract
a/ The tasks and scope of specific tasks to be performed by the consultancy contractor;
b/ The transfer of technologies and training;
c/ The working plan and arrangement of personnel;
d/ The schedule;
e/ The handling of changes in personnel (if any);
f/ The arrangement of working conditions;
g/ The consultancy service charges;
h/ Other contents (if necessary).
If the contract negotiation fails, the bid solicitor shall report it to the investor for considering and deciding on the invitation of the next-ranking contractor for negotiation.
Article 19.- Submission for approval, evaluation, approval and notification of bidding results
1. The submission for approval and evaluation of bidding results of consultancy service bidding packages shall comply with the provisions of Articles 37 and 39 of the Bidding law and Articles 58 and 59 of this Decree.
2. The approval of bidding results shall comply with the provisions of Article 40 of the Bidding Law.
3. The notification of bidding results shall comply with the provisions of Article 41 of the Bidding Law, specifically right after receiving a decision approving the bidding results, the bid solicitor shall send a notice of bidding results to all participating contractors; the bid-winning contractor shall also send a plan on contract negotiation and finalization.
Article 20.- Negotiation, finalization and conclusion of contracts
1. The negotiation, finalization and conclusion of contracts shall comply with the provisions of Article 42 and Chapter III of the Bidding Law, and Section 2, Chapter VI of the Construction Law.
2. When the negotiation and finalization of a contract fails, the investor shall report it to the investment decider for cancellation of the earlier decision approving the bidding results and consideration and invitation of the next-ranking contractor to negotiate a contract according to the provisions of Article 18 of this Decree. In this case, the contractors are requested to extend the validity of their bids, if necessary. The subsequent steps shall comply with the provisions of Articles 19 and 20 of this Decree.
Chapter V
OPEN BIDDING AND RESTRICTED BIDDING FOR PROCUREMENT OR CONSTRUCTION AND INSTALLATION BIDDING PACKAGES
Section I. ONE-STAGE BIDDING
Article 21.- Preparation for bidding
1. The pre-qualification shall comply with the provisions of Chapter III of this Decree.
2. Compilation of bidding dossiers
a/ Bases for compilation of bidding dossiers:
- Investment decisions and documents serving as the basis to decide on investment; business registration certificates; investment certificates;
- Approved bidding plans;
- Designing documents enclosed with the approved total cost estimates and cost estimates (for construction and installation bidding packages);
- Provisions of bidding law and relevant provisions of law; international treaties or agreements (if any), for ODA-funded projects;
- State policies on taxes, salaries and preferences for domestic contractors or relevant regulations.
b/ Contents of bidding dossiers
- Bidding dossiers must cover the contents specified in Clause 2, Article 32 of the Bidding Law. For bidding packages having gone through pre-qualification, the bidding dossiers need not to specify criteria for evaluation of experience and capability of contractors but must require contractors to reconfirm information on their capability and experience as declared in their pre-qualification responses.
- Bidding dossiers must not set requirements on specific trademarks or origins of goods according to the provisions of Clause 5, Article 12 of the Bidding Law. In special cases where it is necessary to identify the trademark or catalogue of a producer or the country of origin of goods for reference or illustration of technical requirements for the goods, the phrase "or equivalent" must be clearly put after the indicated trademark or catalogue or origin and the word "equivalent" must be clearly defined as having similar technical properties or utilities as the indicated goods. For complicated goods, contractors are required to submit sale permits issued by producers;
- Bidding dossiers must state important requirements (prerequisites) for elimination of bids. Specifically:
+ The contractors are not named in the list of purchasers of bidding dossier sets or are not registered for participation in bidding, except for the case defined in Clause 2, Article 26 of this Decree;
+ The contractors fail to ensure their valid capacity according to the provisions of Articles 7 and 8 of the Bidding Law;
+ A bid security is absent or invalid that is it is lower in value or uses a currency other than the prescribed one, has a shorter effective term, is submitted not to the address and according to the time set in the bidding dossier, states the wrong name of the contractor, is not the original or contains no valid signature (for bank guarantee letter);
+ The bid originals are unavailable;
+ The applications for bidding participation are invalid;
+ The bid effect fails to meet the requirements set in the bidding dossier;
+ The bids offer unstable bidding prices or different price levels or conditional prices;
+ The contractors are named in two or more bids as principal contractors;
+ The contractors fail to meet the capability and experience requirements according to the provisions of Point c, Clause 1, Article 27 of this Decree and Article 7 of the Construction Law;
+ Other peculiar important requirements of the bidding package.
Contractors that breach one of the prerequisites in the bidding dossier shall be eliminated and their bids shall not be further considered.
3. Approval of bidding dossiers
The approval of bidding dossiers shall comply with the provisions of Clause 3, Article 14 of this Decree.
4. Invitation for bids
a/ Notice of invitation for bids
For open bidding without pre-qualification, a notice of invitation for bids must be published on a bidding newspaper for three consecutive issues and on the bidding website; for international bidding, that notice must also be published on an English newspaper widely circulated in the country. After being published according to the above provisions, that notice may also be published on other mass media.
The contents of a notice of invitation for bids shall comply with the forms provided for in Appendices III, IV and V to this Decree.
b/ Sending of letters of invitation for bids
Letters of invitation for bids shall apply to restricted bidding and bidding packages which have gone through pre-qualification. Bid solicitors shall send letters of invitation for bids made according to the forms set in Appendices III, IV and V to this Decree to contractors on the list of those to be invited for participation in restricted bidding or those having passed pre-qualification. The period from the time those letters are sent to the time the dossiers of invitation for bids are distributed is at least 5 days, for domestic bidding or 7 days, for international bidding.
Article 22.- General provisions on technical evaluation criteria
1. Use of the marking method
a/ A maximum point scale (100; 1,000...) is used for the formulation of technical evaluation criteria. The contents of technical evaluation criteria for procurement or construction and installation bidding packages are mentioned in Clause 2 of Article 23 and Clause 2 of Article 24 of this Decree. The required minimum technical points are set depending on the nature of each bidding package but must not be lower than 70% of the total technical points; or 80% for bidding packages with high technical requirements;
(Except for bidding packages for selection of general engineering contractors), bidding packages for selection of general construction contractors are required to set the minimum points for each offer, which must not be lower than 70% of the corresponding maximum points.
b/ For procurement or construction and installation bidding packages, contractors shall be considered satisfying the technical requirements if the number of points attained is not lower than the required minimum number of technical points.
(Except for bidding packages for selection of general engineering contractors), bidding packages for selection of general construction contractors shall require that bids are considered satisfying the technical requirements when the points given to each offer are not lower than the required corresponding minimum technical points and the total points given to all offers are not lower than the required minimum technical points of the whole bidding package.
2. Use of the "pass" or "fail" criterion
a/ Evaluation criteria
The contents of technical evaluation criteria applicable to procurement or construction and installation bidding packages are mentioned in Clause 2 of Article 23 and Clause 2 of Article 24 of this Decree. The requirements for each content are determined depending on the nature of each bidding package. The "pass" or "fail" criterion is used only for those contents which are considered fundamental requirements of a bidding package. For other non-fundamental contents, in addition to the "pass" or "fail" criterion, the "acceptable" criterion may apply but to not more than 30% of all requirement contents of evaluation criteria.
b/ A bid shall be evaluated as satisfying technical requirements when all of its fundamental requirement contents are evaluated "pass" while non-fundamental requirement contents are evaluated "pass" or "acceptable".
Article 23.- Criteria for evaluation of bids for procurement bidding packages
Criteria for evaluation of bids for procurement bidding packages include criteria for evaluation of contractors' capabilities and experience, criteria for technical evaluation and methods for determination of expenses on the same ground (evaluation prices). Specifically:
1. Criteria for evaluation of contractors' capabilities and experience, applicable to bidding packages not requiring pre-qualification, including:
a/ The experience on execution of similar bidding packages in Vietnam or in foreign countries; the major production or business experience;
b/ The production and business capabilities, material and technical foundations and professional qualifications of personnel;
c/ The financial capability: total assets, total payable debts, working capital, revenues, profits, value of contracts currently performed and other criteria.
The determination of specific requirements for each criterion provided for at Point a, b or c of this Clause shall be based on the requirements of each bidding package.
The "pass" or "fail" criterion may be used for evaluation prescribed in this Clause. Contractors that "pass" all the three contents mentioned at Points a, b and c of this Clause shall be evaluated as meeting the capability and experience requirements.
2. Technical evaluation criteria
Technical evaluation criteria are formulated according to the provisions of Article 22 of this Decree and cover contents on capabilities to meet quantitative and qualitative requirements for goods mentioned in a bidding dossier. Specifically:
a/ The characteristics and technical parameters of goods, production standards and other contents;
b/ The rationality and economic efficiency of technical solutions, measures for organization of goods supply;
c/ The equipment installation capability and qualifications of technical personnel;
d/ The extent of satisfaction of warranty requirements;
e/ The geographical adaptability;
f/ The environmental impacts and remedies;
g/ The financial capability (if required);
h/ Other factors regarding commercial and financial conditions, time for execution, training and technology transfer (if any).
3. Contents of determination of evaluation prices
Determination of evaluation prices means the determination of expenses on the same technical, financial and commercial grounds and other elements in order to compare and rank bids. Methods for determination of evaluation prices must be mentioned in the evaluation criteria. Evaluation prices are determined in the following order:
- Determining bidding prices;
- Correcting errors;
- Adjusting flaws;
Post-correction and -adjustment bidding prices are called the proposed requested bid-winning prices.
- Converting the proposed bid-wining prices to a common currency (if any) so as to have a basis for determination of evaluation prices;
- Calculating expenses on the same grounds for determination of evaluation prices, including:
+ Technical conditions such as the implementation schedule; the capacity and performance of machinery and equipment; the consumption of power, fuels and materials; the costs of operation and maintenance, the useful life of works and other technical elements, depending on specific requirements of each bidding package.
+ Financial and commercial conditions;
+ Preferences in international bidding (if any);
+ Other factors.
Factors for determination of evaluation prices shall be specified depending on the nature of each bidding package. Bids with the lowest evaluation prices shall be ranked first.
Article 24.- Evaluation criteria applicable to bids for construction and installation bidding packages
Evaluation criteria applicable to bids for construction and installation bidding packages include criteria for evaluation of capabilities and experience of contractors, criteria for technical evaluation and contents of determination of evaluation prices. Specifically:
1. Criteria for evaluation of capabilities and experience of contractors, applicable to bidding packages not requiring pre-qualification, including:
a/ Experience on execution of similar bidding packages in Vietnam, in similar geographical areas and sites;
b/ Technical capability: the number and qualifications of staff and technical workers directly involved in the execution of bidding packages and the number of available construction equipment, the capability of mobilizing construction equipment for execution of bidding packages;
c/ Financial capability: total assets, total payable debts, working capital, revenues, profits, value of contracts currently performed and other criteria.
The determination of specific requirements for each criterion prescribed at Point a, b or c of this Clause must be based on the requirements of each bidding package.
Evaluation criteria prescribed in this Clause are used according to the "pass" or "fail" criterion. Contractors that "pass" all the three contents mentioned at Points a, b and c of this Clause shall be evaluated as meeting the capability and experience requirements.
2. Technical evaluation criteria
Technical evaluation criteria are formulated according to the provisions of Article 22 of this Decree and cover contents on the extent of satisfaction of requirements for technical designing dossiers and accompanied estimates. Specifically:
a/ The rationality and feasibility of technical solutions and measures for organization of the construction;
b/ The satisfaction of environmental hygiene conditions and other conditions on fire prevention and fighting and labor safety;
c/ The extent of satisfaction of demands for construction equipment (quantity, categories, quality and mobilization schedule), materials and manpower for construction;
d/ The extent of satisfaction of warranty requirements;
e/ The measures to guarantee quality;
f/ The financial supply capability (if required);
g/ The construction schedule;
h/ Other contents (if any).
3. Contents of determination of evaluation prices
Determination of evaluation prices means the determination of expenses on the same technical, financial and commercial grounds and other elements in order to compare and rank bids. Methods for determination of evaluation prices must be stated in the evaluation criteria. The determination of evaluation prices is conducted in the following order:
- Determining the bid prices;
- Correcting errors;
- Adjusting flaws;
Post-correction and -adjustment bidding prices are called the proposed bid-winning prices.
- Converting the proposed bid-wining prices to a common currency (if any) so as to have a basis for determination of evaluation prices;
- Calculating expenses on the same grounds for determination of evaluation prices, including:
+ Technical conditions such as the implementation schedule; the management, operation and maintenance expenses; the useful life of works and other technical factors, as required by each specific bidding package;
+ Financial and commercial conditions;
+ Preferences in international bidding (if any);
+ Other elements.
Elements for determination of appropriate evaluation prices shall be determined depending on the nature of each bidding package. Bids with the lowest evaluation prices shall be ranked first.
Article 25.- Criteria for evaluation of bids for bidding packages for selection of general construction contractors (except for bidding packages for selection of general engineering contractors)
Criteria for evaluation of bids for bidding packages for selection of general construction contractors (except for bidding packages for selection of general engineering contractors) include criteria for evaluation of each content specified at Point a, Clause 1 of Article 15, Articles 22, 23 and 24 of this Decree.
Article 26.- Organization of bidding
1. Distribution of bidding dossiers
a/ The bid solicitor shall sell bidding dossier sets until the bid-closing time to contractors on the list of those having passed pre-qualification (in case of pre-qualification), to contractors invited for participation in restricted bidding or to contractors that wish to participate in open bidding at the sale prices prescribed in Clause 1, Article 6 of this Decree. For a partnership contractor, only one partner is required to buy the bidding dossier;
b/ The modification and clarification of bidding dossiers shall comply with the provisions of Clause 1 of Article 33 and Article 34 of the Bidding Law.
2. Preparation, reception, modification or withdrawal of bids
The preparation, reception, modification or withdrawal of bids shall comply with the provisions of Clauses 2, 3 and 4, Article 16 of this Decree.
3. Bid opening
a/ Bids shall be opened publicly right after the bid-closing time on the date and at the time and place specified in the bidding dossiers to the witness of all present people, regardless of the presence or absence of the invited contractors. The bid solicitor may invite representatives of concerned agencies to attend bid opening;
b/ The bid solicitor shall open, one after another, bids of contractors named in the list of those who have bought the bidding dossier sets, registered for participation in bidding and submitted bids before the bid-closing time according to the contractors' names in the alphabetical order. The bid-opening order is as follows:
- Checking the seal of a bid;
- Opening, reading and recording into a minutes the following principal contents:
+ The name of the contractor;
+ The number of originals and copies of the bid;
+ The valid term of the bid;
+ The bidding price stated in the application for bidding participation and discount (if any);
+ The value and valid term of the bid security;
+ The written request for modification of the bid (if any);
+ Other relevant information.
The bid-opening minutes must be signed for certification by representatives of the bid solicitor, contractors and concerned agencies.
After opening bids, the bid solicitor shall sign for certification every original page of all bids and manage them according to the regime of management of "secret" dossiers. Bids shall be evaluated based on their copies. Contractors are responsible for the accuracy and consistency between the copies and the originals as well as the seals of their bids.
Article 27.- Evaluation of bids
Bids shall be evaluated on the basis of the bid-evaluation criteria and other requirements mentioned in bidding dossiers, on the evaluation principles specified in Article 28 of the Bidding Law and in the order prescribed in Article 35 of the Bidding Law. Specifically:
1. Preliminary evaluation
a/ Checking the validity of a bid:
- The validity of the application for bidding participation: The application must be completed and signed by the lawful representative of the contractor according to the requirements of the bidding dossier. For a partnership contractor, unless the partnership agreement states that all partners authorize the partnership leader to sign the application for bidding participation, that application must be signed by each partner's representative;
- The validity of the partnership agreement: The partnership agreement must specify the responsibilities, powers, work volumes to be performed and the corresponding values of each partner, including the partnership leader as well as the responsibilities of the partnership leader; and contain signatures of all partners and their seals (if any);
- The availability of one of the papers required by the bidding dossier: The business registration certificate, the investment certificate, the establishment decision or the lawful operation registration certificate, the permit for sale of goods under the copyright of the producer (if required);
- The number of originals and the number of copies of bids;
- The validity of the bid security;
- The appendices and documents enclosed with the bids.
b/ Eliminating those bids which fail to satisfy prerequisites prescribed in the bidding dossier according to the provisions of Point b, Clause 2, Article 21 of this Decree;
c/ Evaluating the capabilities and experience of contractors according to the relevant criteria mentioned in the bidding dossier, for bidding packages not requiring pre-qualification.
For bidding packages having gone through pre-qualification, information declared by contractors at the time of pre-qualification must be updated for proper evaluation of the contractors' ability to meet the requirements on capabilities and experience.
2. Detailed evaluation of bids
a/ Technical evaluation
Technical evaluation according to the set criteria is prescribed in the bidding dossier. In the course of evaluation, the bid solicitor may request contractors to explain and clarify unclear or abnormal contents in their bids. Evaluation prices are determined according to the provisions of Point b of this Clause only for those bids which are approved by the investor as satisfying the technical requirements.
b/ Determination of evaluation prices
The determination of evaluation prices shall comply with the provisions of Clause 3 of Article 23 and Clause 3 of Article 24 of this Decree.
3. Ranking of bids according to evaluation prices: The bid with the lowest evaluation price shall be ranked first. For a complicated bidding package, if it is necessary, the bid solicitor may propose the investor to permit the contractor with the first-ranking bid to enter into preliminary negotiations on a contract, thereby facilitating the negotiation and finalization of the contract after obtaining the bid-winning results.
Article 28.- Correction of errors and adjustment of flaws
1. Correction of errors
Correction of errors means the correction of errors in bids, including arithmetical errors, other errors and decimal errors, which is conducted on the following principles:
a/ For arithmetical errors, including errors made due to wrong addition, subtraction, multiplication or division:
- When the unit price is inconsistent with the total sum, the unit price shall be used as a legal basis for error correction;
- When the general price table is inconsistent with the detailed price table, the latter shall be used as a legal basis for error correction.
b/ For other errors:
- When the total sum column is filled in without a corresponding unit price, the unit price shall be determined by dividing that total sum by the quantity;
- When the unit price is available but the total sum column is left blank, the total sum shall be determined by multiplying the quantity by the unit price;
- For a specific item, when both unit price and total sum are available but the quantity column is left blank, that quantity shall be determined by dividing the total sum by the unit price of that item. When the determined quantity varies with that mentioned in the bidding dossier, it shall be considered a flaw in terms of the scope of supply and be adjusted according to the provisions of Clause 2 of this Article;
- Decimal errors: Errors related to the use of comma (,) instead of full stop (.) or vice versa are corrected appropriately according to the Vietnamese writing style.
Arithmetical errors are corrected based on the total absolute value, regardless of the increase or decrease of bidding prices after correction.
After correcting errors according to the above principles, the bid solicitor shall notify the concerned contractors in writing. The contractors shall notify in writing the bid solicitor of their acceptance to correct the errors. If the contractors refuse to correct errors, their bids shall be eliminated.
2. Adjustment of flaws
Adjusting flaws means adjusting incomplete or redundant contents of bids based on the requirements of the bidding dossier and adjusting differences between different parts of a bid; between technical proposals and financial proposals; between numerals and letters; and between the application for bidding participation and other documents of a bid. The adjustment of flaws is conducted as follows:
a/ If flaws are related to the scope of supply, the deficient offer shall be added while the redundant one be removed on the principle that if the prices of those offers cannot be separated from the bidding price offered by the error-correcting contractor, the highest bidding price (in case of a deficient offer) or the lowest bidding price (in case of a redundant offer) offered for the same content by other bids which pass technical evaluation shall apply. When only one contractor passes the technical evaluation, the flaws shall be adjusted according to the price (if any) offered by that contractor or other bids, the price in the cost estimate or total cost estimate or the price in the approved bidding package on the principle of applying the highest price (in case of a deficient offer) or the lowest price (in case of a redundant offer) to the said content;
b/ In case of flaws between technical proposals and financial proposals, the technical proposals shall be used as a legal basis for the adjustment of those flaws;
c/ In case of inconsistency between numerals and letters, letters shall be used as a legal basis for the adjustment of that flaw;
d/ In case of a difference between prices (excluding discount) stated in the application for bidding participation and those in the general price table, that difference is considered a flaw and is adjusted according to prices in the general price table after that table is adjusted and corrected according to the detailed price table.
Article 29.- Submission for approval, appraisal, approval and notification of bidding results; negotiation, finalization and conclusion of contracts
1. The submission for approval, appraisal, approval and notification of bidding results comply with the provisions of Articles 38 and 39 of the Bidding law and Clauses 2 and 3 of Article 19, Articles 58 and 59 of this Decree.
2. Negotiation, finalization and conclusion of contracts
a/ The negotiation, finalization and conclusion of contracts comply with the provisions of Article 42 and Chapter III of the Bidding Law, and Section 2, Chapter VI of the Construction Law.
b/ When the negotiation or finalization of a contract fails, the investor reports thereon to the investment decider or the authorized person for deciding on the annulment of the bidding results and considering and selecting the next-ranking contractor as the bid winner who will be invited to negotiate and finalize the contract. In that case, if necessary, the concerned contractor is required to extent the valid term of the bid and the bid security.
Section II. TWO-STAGE BIDDING
Article 30.- Preparation for stage-1 bidding
1. The pre-qualification of contractors shall comply with the provisions of Chapter III of this Decree.
2. Compilation of stage-1 bidding dossiers
a/ Bases for compilation of stage-1 bidding dossiers are provided for at Point a, Clause 2, Article 21 of this Decree;
b/ Stage-1 bidding dossiers cover the contents prescribed at Point b, Clause 2, Article 21 of this Decree but do not require the contractors to offer bidding prices and to take measures to guarantee their participation in bidding.
3. The approval of bidding dossiers shall comply with the provisions of Clause 3, Article 14 of this Decree.
4. The invitation for participation in stage-1 bidding shall comply with the provisions of Clause 4, Article 21 of this Decree.
Article 31.- Organization of stage-1 bidding
1. Distribution of bidding dossiers
a/ The bid solicitor shall sell bidding dossier sets until the bid-closing time to contractors on the list of contractors having passed pre-qualification (in case of pre-qualification), to contractors invited to restricted bidding or to contractors wishing to participate in open bidding at the sale prices specified in Clause 1, Article 6 of this Decree. For a partnership contractor, only one partner is required to buy the bidding dossier;
b/ The modification and clarification of the bidding dossier shall comply with the provisions of Clause 1, Article 33 and Article 34 of the Bidding Law.
2. Reception and management of stage-1 bidding dossiers
The bid solicitor shall receive and manage bids according to the regime of management of "secret" dossiers.
3. Bid opening
Bids shall be opened according to the provisions of Clause 3, Article 26 of this Decree. Bid-opening minutes do not cover information on bidding prices and bid security.
4. Exchange of opinions on stage-1 bids
Based on the requirements of the bidding dossier, the bid solicitor shall exchange opinions with each contractor to clarify technical requirements of the bidding package. Exchanged opinions must be recorded in a minutes which serves as a basis for compilation of the stage-2 bidding dossier.
Article 32.- Preparation for, organization of, stage-2 bidding
1. Compilation of stage-2 bidding dossiers
Stage-2 bidding dossiers must identify technical, financial (including bidding prices) and commercial requirements as well as requirements on measures to secure bidding participation.
The approval of stage-2 bidding dossiers shall comply with the provisions of Clause 3, Article 14 of this Decree.
2. Organization of bidding
Stage-2 bidding dossiers are sold to contractors that have submitted stage-1 bids at the sale prices specified in Clause 1, Article 6 of this Decree. The organization of bidding complies with the provisions of Article 26 of this Decree.
Article 33.- Evaluation of stage-2 bids
The evaluation of stage-2 bids shall comply with the provisions of Article 27 of this Decree.
Article 34.- Submission for approval, appraisal, approval and notification of bidding results; negotiation, finalization and conclusion of contracts
The submission for approval, appraisal, approval and notification of bidding results as well as the negotiation, finalization and conclusion of contracts shall comply with the provisions of Article 29 of this Decree.
Chapter VI
OTHER FORMS OF SELECTING CONTRACTORS
Article 35.- Appointment of contractors
The application of the form of contractor appointment of contractors must be approved together with bidding plans in compliance with the provisions of Article 20 of the Bidding Law and Article 101 of the Construction Law.
The Prime Minister shall specify special cases where contractors may be appointed according to the provisions of Point e, Clause 1, Article 101 of the Construction Law.
1. The process of appointing contractors for a bidding package includes:
a/ Distributing dossiers of requirements;
b/ Preparing dossiers of proposals;
c/ Evaluating dossiers of proposals;
d/ Submitting for approval, appraisal and approval of the contractor-appointment results;
e/ Negotiating, finalizing and concluding contracts.
2. Dossier of requirements
a/ The bid solicitor shall compile the dossier of requirements; for consultancy service bidding packages, the specification of general evaluation criteria is not required; (except for bidding packages for selection of general engineering contractors) procurement, construction and installation bidding packages as well as bidding packages for selection of general construction contractors need not to state elements for determination of evaluation prices. A dossier of requirements has contents similar to those of a bidding dossier;
b/ The investor shall approve the dossier of requirements according to the provisions of Clause 2, Article 2 of this Decree for the bid solicitor to send it to contractors proposed to be appointed so that the latter may prepare dossiers of proposals.
3. Dossier of proposals
Contractors proposed to be appointed shall prepare dossiers of proposals with contents similar to those of bids, including technical, financial and commercial proposals.
4. Evaluation of dossiers of proposals
a/ The bid solicitor shall evaluate dossiers of proposals of contractors according to the evaluation criteria mentioned in the dossier of requirements;
b/ Contractors may be appointed when their dossiers of proposals satisfy all the following conditions:
- Having full capabilities and experience as required by the dossier of requirements;
- Having technical proposals evaluated as meeting the requirements of the dossier of requirements, based on the evaluation criteria;
- Offering appointment prices not exceeding the estimated prices (bidding-package prices), which have been approved for the bidding package.
5. Submission for approval, appraisal and approval of contractor-appointment results
a/ Based on the report on contractor-appointment results and evaluation reports, investment deciders shall approve or authorize the approval of contractor- appointment results for consultancy service bidding packages valued at VND 500 million or more each or for construction and installation bidding packages or bidding packages for selection of general construction contractors (except those for selection of general engineering contractors) which are valued at VND 1 billion or more each; investors shall approve contractor-appointment results for consultancy service bidding packages valued at under VND 500 million each and construction and installation bidding packages valued at under VND 1 billion under projects defined in Clauses 1 and 3, Article 1 of the Bidding Law;
b/ For bidding packages subject to contractor appointment under projects defined at Point c, Clause 1, Article 20 of the Bidding Law, investors shall submit reports on contractor-appointment results to the Prime Minister (if the Prime Minister directly approves those reports) or to the persons authorized by the Prime Minister to approve those reports according to the provisions of Clause 2, Article 41 of this Decree.
6. Negotiation, finalization and conclusion of contracts
Based on decisions approving contractor-appointment results, bid solicitors shall negotiate and finalize contracts with appointed contractors for investors to conclude those contracts.
7. For bidding packages falling in such force majeure circumstances as natural calamities, enemy sabotages or incidents which need to be remedied immediately according to the provisions of Point a, Clause 1, Article 20 of the Bidding Law, the appointment of contractors is not required to comply with the provisions of Clauses 1 thru 6 of this Article but within 15 days after the appointment of contractors, investors or agencies in charge of managing works or assets and contractors shall carry out procedures to determine work volumes and their values so that the two parties conclude contracts which serve as a basis for execution and payment.
8. When the appointment of contractors is permitted for a bidding package which is executed before the issuance of the investment decision, the organization assigned to prepare the project must formulate and approve the cost estimates according to the provisions of Clause 3, Article 20 of the Bidding Law. In this case, the cost estimates must correspond to the value of work volumes approved by the head of the project-preparing body.
9. For consultancy service bidding packages valued at under VND 500 million each and construction and installation bidding packages valued at under VND 1 billion each under renovation or overhaul projects of state enterprises defined in Clause 3, Article 1 of the Bidding Law, the appointment of contractors may apply when necessary, which, however, must comply with the contractor-appointment process prescribed in Clauses 1 thru 6 of this Article.
Article 36.- Direct procurement
The application of the form of direct procurement must be approved together with bidding plans in compliance with the provisions of Article 21 of the Bidding Law with regard to contracts already signed with contractors after public bidding or restricted bidding.
The process of direct procurement is as follows:
1. The investor shall approve the dossier of requirements, which serves as a basis for contractors to prepare dossiers of proposals.
2. The evaluation of dossiers of proposals shall comply with the following contents:
a/ Checking technical contents and unit prices;
b/ Updating the contractors' capabilities;
c/ Evaluating the implementation schedule;
d/ Other contents (if any).
3. Submission for approval, appraisal and approval of direct procurement results
Based on the report on direct procurement results and the appraisal report, the investment decider shall approve or authorize others to approve the direct procurement results.
Article 37.- Competitive offers in procurement
The application of the form of competitive offers in procurement must be approved together with bidding plans in compliance with the provisions of Article 22 of the Bidding Law.
The process of application of competitive offers in procurement is as follows:
1. Dossier of requirements for competitive offers
The investor shall approve the dossier of requirements for competitive offers. A dossier of requirements for competitive offers has such technical requirements as those on quantity, standards, technical properties, time limit for goods supply, validity term of a price notice, time for submission of price notices, warranty, maintenance, training, technology transfer and other necessary contents, but has no requirements on bid security. Technical requirements are evaluated according to the "pass" or "fail" criterion as stated in the dossier of requirements for competitive offers.
2. Organization of competitive offers
a/ The bid solicitor shall publish the invitation for competitive offers on a bidding newspaper for three consecutive issues and on the bidding website for interested contractors to register for participation in bidding. After making announcement according to the above provisions, the bid solicitor may also publish the invitation on other mass media. The duration from the release of the first announcement of invitation for competitive offers to the distribution of the dossier of requirements must be at least 5 days;
b/ The bid solicitor shall send sets of dossier of requirements to interested contractors in order to receive at least three price notices from three different contractors. The time limit for contractors to prepare price notices is at least three days;
c/ Contractors shall send price notices to the bid solicitor in person, by post or fax. Each contractor may send only one price notice;
d/ The bid solicitor shall keep secret information in the price notice of each contractor. Right after the expiration of the time limit for submission of price notices, the bid solicitor shall make a minutes on reception of price notices with such contents as the names of contractors, the offered prices, the after-sale conditions, the validity terms of price notices and send copies of that minutes to the contractors that have submitted price notices.
3. Evaluation of price notices
a/ The bid solicitor shall evaluate the submitted price notices based on the technical requirements of the dossier of requirements. A price notice shall be considered as passing the technical evaluation if all of its technical offers are evaluated "pass";
b/ The bid solicitor shall compare the offered prices of price notices which satisfy technical requirements in order to determine the notice with the lowest price. If after correcting errors and adjusting flaws, the lowest price offered by a contractor does not exceed the bidding -package price, that contractor shall be proposed for selection.
4. Approval of results of competitive offers and conclusion of contracts
a/ Based on the report on the results of competitive offers submitted by the bid solicitor and the appraisal report, the investment decider shall approve the results of competitive offers for bidding packages valued at VND 1 billion or more each; the investor shall approve the results of competitive offers for bidding packages valued at under VND 1 billion each;
b/ The bid solicitor shall notify the results of competitive offers to all contractors that have submitted price notices and negotiate and finalize a contract with the selected contractor so that the investor concludes that contract.
Article 38.- Self-execution
The application of the form of self-execution must be approved together with bidding plans in compliance with the provisions of Article 23 of the Bidding Law and Point a, Clause 1 of Articles 41, 50, 57, 75 and 89 and Point b, Clause 2, Article 45 of the Construction Law.
The process of application of the self-execution form must ensure the following conditions:
1. The investor selects under the provisions of the Bidding Law a supervision consultancy contractor that is organizationally and financially independent from the investor as required by law. The investor shall supply necessary dossiers for the supervision consultancy contractor to perform the tasks defined in Clause 2 of this Article.
2. The supervision consultancy contractor has the following tasks:
a/ To supervise the execution of the bidding package of the investor strictly according to the plan and solutions set by the latter;
b/ To inspect goods, supplies and equipment used for the bidding package;
c/ To accept after test the work volume performed by the investor in order to have grounds for payment.
Article 39.- Selection of contractors for construction work architecture designing
Contractors for construction work architecture designing shall be selected through contests according to the provisions of Clause 3, Article 97 of the Construction Law and in compliance with the provisions of Article 102 of the Construction Law.
Article 40.- Selection of contractors in special cases
1. Based on the peculiarity of a bidding package to which the forms of selecting contractors specified in Articles 18 thru 23 of the Bidding Law and Article 97 of the Construction Law cannot apply, the investor shall submit to the Prime Minister a plan on selection of contractors, ensuring competition and economic efficiency, and concurrently send that plan to the Ministry of Planning and Investment and the branch-managing ministry for comments before submission to the Prime Minister for consideration and decision.
2. When bidding peculiarities are provided for in another law, the provisions of the decree guiding the implementation of that law shall apply.
Chapter VII
DECENTRALIZATION OF APPRAISAL AND APPROVAL IN BIDDING
Article 41.- The Prime Minister
1. For investment projects decided directly by the Prime Minister:
a/ To approve bidding plans;
b/ To approve or authorize others to approve contractor-selection results;
c/ To approve or authorize others to approve the handling of bidding circumstances, settlement of petitions in bidding and handling of violations of the bidding law.
2. To approve or authorize others to approve bidding plans and contractor-appointment results for bidding packages classified as national secrets or urgent projects for national interests or energy safety and security according to the provisions of Point c, Clause 1, Article 20 of the Bidding Law.
3. To approve or authorize others to approve options on the selection of contractors in special cases according to the provisions of Article 24 of the Bidding Law.
Article 42.- Ministers, heads of ministerial-level agencies, heads of other central agencies and presidents of provincial/municipal People's Committees
1. For projects and bidding packages directly approved by the Prime Minister:
a/ To give written comments on bidding plans and contractor-selection results for bidding packages under relevant projects which are directly approved by the Prime Minister;
b/ To approve bidding dossiers;
c/ To approve other bidding contents under the Prime Minister's authorization.
2. For investment projects they decide:
a/ To approve bidding plans;
b/ To approve or authorize others to approve bidding dossiers and contractor-selection results for bidding packages under those projects, except for contract-appointment results of bidding packages directly approved by the Prime Minister according to the provisions of Clause 2, Article 41 of this Decree.
Article 43.- Presidents of the People's Committees of provincial cities, urban districts, rural districts, towns, townships, wards or communes and heads of other local agencies
1. To approve bidding contents under authorization;
2. To approve bidding plans, approve or authorize others to approve bidding dossiers and contractor-selection results of bidding packages under investment projects they decide.
Article 44.- Managing Boards or directors of enterprises
1. For investment projects decided by the Prime Minister of which they are investors
a/ To approve bidding dossiers for bidding packages with contractor-selection results directly approved by the Prime Minister;
b/ To approve other bidding contents under the Prime Minister's authorization.
2. For investment projects they decide:
a/ To approve bidding plans;
b/ To approve or authorize others to approve bidding dossiers and contractor-selection results for bidding packages under those projects, except for contractor-appointment results of bidding packages directly approved by the Prime Minister according to the provisions of Clause 2, Article 41 of this Decree.
3. To make written agreements on bidding plans and contractor-selection results for bidding packages valued at VND 50 billion or more each for consultancy services, or VND 150 billion or more each for construction and installation or procurement under joint venture projects, business cooperation contracts or joint-stock projects in which the Vietnamese party contributes a state capital portion of 30% or more to the legal capital, charter capital or stock capital. Past 20 days after receiving dossiers of request for agreement, if the managing boards or directors of enterprises send no written agreements, they shall be considered having agreed on the bidding plans and contractor-selection results with the joint-venture enterprises, the other parties to business cooperation contracts or joint-stock enterprises.
Article 45.- Managing boards of joint-venture enterprises, joint-stock companies and lawful representatives of parties to business cooperation contracts
1. To approve bidding plans and contractor-selection results of bidding packages under projects they invest in, on the basis of written agreements prescribed in Clause 3, Article 44 of this Decree.
2. To approve or authorize others to approve bidding dossiers.
Article 46.- Appraising agencies and organizations
1. The Ministry of Planning and Investment shall appraise the following contents:
a/ Bidding plans which fall under the approving competence of the Prime Minister;
b/ Contractor-selection results of bidding packages which are directly approved by the Prime Minister;
c/ Contractor-selection plans in special cases which are approved directly by the Prime Minister.
2. Provincial/municipal Planning and Investment Services shall appraise the following contents:
a/ Bidding plans and contractor-selection results for bidding packages under projects approved directly by presidents of provincial/municipal People's Committees;
b/ Bidding dossiers for bidding packages approved by presidents of provincial/municipal People’s Committees as authorized by the Prime Minister and bidding packages falling under the approving competence of presidents of provincial/municipal People's Committees, Planning and Investment Services or relevant specialized Services;
c/ Contractor-selection results for bidding packages approved by presidents of provincial/municipal People's Committees under the Prime Minister's authorization.
3. Agencies and organizations assigned the appraising task by ministers, heads of ministerial-level agencies, heads of other central agencies, the managing boards or directors of enterprises shall appraise:
a/ Bidding plans, bidding dossiers and contractor-selection results for all bidding packages under projects which fall under the investment-deciding competence of ministers, heads of ministerial-level agencies, heads of other central agencies, managing boards or directors of enterprises;
b/ Bidding dossiers, contractor-selection results for bidding packages approved by ministers, heads of ministerial-level agencies, heads of other central agencies, managing boards or directors of enterprises under the Prime Minister's authorization.
4. For projects falling under the investment-deciding competence of presidents of People's Committees of provincial cities, urban districts, rural districts or towns, the planning and investment sections shall appraise contents of the bidding process.
5. For projects falling under the investment-deciding competence of presidents of People's Committees of townships, wards or communes, heads of other local agencies, managing boards of joint-venture enterprises, joint-stock companies or lawful representatives of parties to business cooperation contracts, the relevant assisting sections shall appraise contents of the bidding process.
6. For bidding packages of which contractor-selection results are approved by persons authorized by investment deciders, the authorized persons shall appoint units to appraise bidding dossiers and contractor-selection results.
Chapter VIII
SETTLEMENT OF BIDDING PETITIONS
Article 47.- Conditions for consideration and settlement of petitions
1. Petitions must be made by contractors participating in bidding.
2. Petitions must be signed by persons who sign applications for bidding participation or are lawful representatives of contractors and must be affixed with stamps (if any).
3. Persons responsible for settlement of petitions receive petitions within the time limit prescribed in Clause 3, Article 72 of the Bidding Law.
4. Contents of petitions have not yet brought to court by the contractors.
5. With regard to petitions on contractor-selection results, when sending them to investment deciders, contractors shall pay some expenses prescribed in Clause 3, Article 6 of this Decree to the permanent assisting sections of the Advisory Councils mentioned in the bidding dossiers; when contractors' petitions are concluded right, the involved responsible individuals or organizations shall refund these expenses to the contractors.
Article 48.- Settlement of petitions
1. The time limit for settling a petition prescribed in Article 73 of the Bidding Law is counted from the time the administrative section of the person responsible for petition settlement receives the petition.
2. The persons responsible for petition settlement shall notify the contractors in writing of the non-consideration and non-settlement of petitions if those petitions fail to meet the conditions prescribed in Article 47 of this Decree.
3. Contractors are entitled to withdraw their petitions in the course of settlement but must make written requests therefor.
Article 49.- Advisory councils
1. Chairmen of advisory councils
a/ The chairman of the central-level advisory council is the competent representative of the Ministry of Planning and Investment. The central-level advisory council shall advise on petitions related to bidding packages directly approved by the Prime Minister or at the request of the Prime Minister.
b/ The chairmen of advisory councils of ministries, ministerial-level agencies, government-attached agencies or other central agencies (hereinafter called ministerial-level advisory councils) are competent representatives of the units under these agencies which are assigned to manage bidding. Except for bidding packages prescribed at Point a of this Clause, the ministerial-level advisory councils shall advise on petitions related to all bidding packages under investment projects decided or managed by ministries.
c/ The chairmen of local advisory councils are competent representatives of provincial/municipal Planning and Investment Services. Except for bidding packages prescribed at Point a of this Clause, local advisory councils shall advise on petitions related to all bidding packages under investment projects decided or managed by localities.
2. Membership of an advisory council
Depending on the nature of each bidding package and when necessary, in addition to the members defined in Clause 2, Article 73 of the Bidding Law, the chairman of an advisory council may invite other individuals to participate in the advisory council. Members of the advisory council must not be relatives (biological parents, parents in law, wives or husbands, biological children, adopted children, daughters or sons in law or siblings) of the persons who sign petitions or of individuals who are directly involved in the evaluation of bids under assignment by contractors or investors, of individuals directly involved in the appraisal of contractor-selection results and of the persons who sign for approval contractor-selection results.
3. Activities of an advisory council
a/ The chairman of an advisory council shall issue a decision to set up the council within 5 days after receiving petitions from contractors. The advisory council shall work on a case-by-case basis.
b/ The advisory council shall work on the collective principle, vote by majority and submit reports on its working results to the investment decider for consideration and decision; each member is entitled to reserve his/her opinions and be accountable before law for his/her opinions.
4. Permanent assisting sections of an advisory council
a/ Permanent assisting sections mean agencies or organizations which are assigned the appraising task in bidding, but do not comprise individuals directly involved in the appraisal of bidding packages subject to petitions.
b/ Permanent assisting sections perform administrative tasks assigned by the chairman of the advisory council; receive and manage expenses paid by contractors that have petitions according to the provisions of Clause 5, Article 47 of this Decree.
Chapter IX
HANDLING OF VIOLATIONS OF BIDDING LAW
Article 50.- Principles for handling violations
1. Organizations or individuals that commit acts in violation of the bidding law shall, depending on the severity of their violations, be sanctioned in one of the following forms: caution, fine or ban from participation in bidding activities. Cadres and civil servants who commit acts in violation of the bidding law shall be handled in accordance with the provisions of law on cadres and civil servants.
2. Principles and procedures for handling violations and procedures for execution of sanctioning decisions shall comply with the provisions of law.
3. Sanctioning decisions must be sent to sanctioned organizations and individuals, to the Ministry of Planning and Investment and concerned agencies and organizations.
4. Sanctioning decisions executed in any localities or branches are effective for execution nationwide and in all branches.
5. Organizations and individuals sanctioned for violations of the bidding law are entitled to initiate lawsuits at a court.
Article 51.- Competence to handle violations of bidding law
1. Investment deciders shall handle violations of the bidding law in relation to investment projects they decide according to the provisions of Article 60 of the Bidding Law. When investment deciders breach the bidding law, they must be handled in accordance with law.
2. The Ministry of Planning and Investment shall monitor the handling of violations of the bidding law and decide on the ban from participation in bidding activities on organizations or individuals that are subject to caution for five consecutive times under the provisions of Clause 4, Article 53 of this Decree.
Article 52.- Fine
Depending on the severity of their violations, organizations or individuals violating the bidding law defined at Point b, Clause 1, Article 75 of the Bidding Law shall be fined at the following levels:
1. A fine of between VND 5,000,000 and VND 20,000,000 is imposed for one of the following violations:
a/ Compiling, appraising or approving bidding dossiers or dossiers of requirements in contravention of the bidding law, which leads to the cancellation of bidding;
b/ Evaluating bids or dossiers of proposals, appraising or approving contractor-selection results without basing on the requirements of bidding dossiers, dossiers of requirements as well as the set evaluation criteria, which distorts the contractor-selection results or leads to the cancellation of bidding;
c/ Concluding contracts at variance with law, causing damage to the State's interests;
d/ Other violations which lead to the re-organization of bidding such as organizing bidding when bidding plans, bidding dossiers or dossiers of requirements have not yet been approved,
2. A fine of between VND 20,000,000 and VND 50,000,000 is imposed for one of the following acts:
a/ Making arrangement or collusion between contractors, between contractors and investors, bid solicitors, consultants for compilation of bidding dossiers, appraising agencies or organizations or approvers of contractor-selection results in order to distort the contractor-selection results, which leads to the cancellation of bidding or the selection of unqualified contractors as prescribed in Clause 3, Article 10 of the Construction Law;
b/ Construction and installation or procurement contractors connive with supervision consultancy contractors or testing agencies or organizations to make wrong certification of the quality and volume of works or goods.
3. Apart from violations which cause damage to the interests of the concerned parties mentioned in Clauses 1 and 2 of this Article or other consequences, fines may be imposed for other violations in accordance with relevant laws.
Article 53.- Ban from participation in bidding activities
Depending on the severity of violations, a ban from participation in bidding activities may be imposed. Specifically:
1. A ban from participation in bidding activities for between 6 months and 1 year is imposed for one of the following violations:
a/ Violation of the provisions of Clause 4, Article 12 of the Bidding Law;
b/ Violation of the provisions of Clause 5, Article 12 of the Bidding Law. Specifically:
Compilation, appraisal or approval by organizations or individuals of bidding dossiers for procurement, construction and installation bidding packages or bidding packages for selection of general construction contractors which state specific requirements on goods' trademarks or origins.
c/ Violation of the provisions of Clause 9, Article 12 of the Bidding Law by individuals on the side of investors, bid solicitors, teams of bidding experts, bidding consultants or appraising agencies or organizations involved in bidding;
d/ Violation of the provisions of Clause 6, Article 12 of the Bidding Law;
e/ Violation of the provisions of Clause 7, Article 12 of the Bidding Law, specifically:
Permission by investment deciders for the division of projects into bidding packages in contravention of the provisions of Clause 4, Article 6 of the Bidding Law for appointment of contractors or creation of opportunities for a small number of contractors to participate in bidding;
f/ Violation of the provisions of Clause 8, Article 12 of the Bidding Law, specifically:
Acceptance and offer by investors and bid solicitors of bid-wining requests to contractors participating in goods procurement or construction and installation for bidding packages under projects for which those contractors have earlier provided consultancy services, except for EPC bidding packages, bidding packages for selection of general engineering and construction contractors or general turn-key contractors;
g/ Violation of the provisions of Clause 10, Article 12 of the Bidding Law, specifically:
Failure to withdraw from assigned tasks by individuals who directly participate in organizing bidding or evaluating bids under assignment by investors, bid solicitors, members of teams of bidding experts, bidding consultants; individuals directly involved in the appraisal of contractor-selection results under assignment by appraising agencies or organizations and signers of decisions on contractor-selection results when the signees of applications for bidding participation are their relatives (biological parents, parents in law, wives or husbands, biological children, adopted children, daughters or sons in law or siblings);
h/ Violation of the provisions of Clause 11, Article 12 of the Bidding Law, specifically:
Causing of difficulties by organizations or individuals on the side of bid solicitors, investors, state treasuries, financial management agencies, banks or before-acceptance testing bodies in the procedures of payment and settlement under contracts signed between investors and contractors;
i/ Violation of the provisions of Clause 13, Article 12 of the Bidding Law, specifically:
- Signing of the bidding-participation application for a bidding package under a project of an agency or organization by an individual within 1 year after he/she stops working for that agency or organization;
- Decision to select the bid-wining contractor with the person who signs the bidding-participation application for a project of the agency or organization at which that person has stopped working under a decision for less than one year;
j/ Violation of provisions of Clause 16, Article 12 of the Bidding Law, specifically:
Approval of a non-open bidding form of selecting contractors in a bidding plan without sufficient conditions under the provisions of Articles 19 thru 24 of the Bidding Law and Articles 100 and 101 of the Construction Law;
k/ Violation of the provisions of Clause 17, Article 12 of the Bidding Law, specifically:
- Approval by investment deciders of bidding plans to permit the selection of contractors when sources of capital for execution of bidding packages have not yet been identified;
- Approval by investment deciders of contractor-selection results without credit commitments though it is permitted in bidding plans that capital sources for bidding packages are arranged by contractors.
2. A ban from participation in bidding activities for between 1 and 3 years is imposed for one of the following violations:
a/ Violation of the provisions of Clause 2, Article 12 of the Bidding Law, specifically:
- Abuse by individuals of their powers or influence to force investors, bid solicitors, teams of bidding experts, bidding consultants, agencies or organizations appraising contractor-selection results to propose bid-wining contractors at variance with the requirements of bidding dossiers and evaluation criteria already mentioned in bidding dossiers;
- Intentional reporting by individuals directly evaluating bids or appraising contractor-selection results of wrong or untruthful information which distorts contractor-selection results, the conclusion and performance of contracts;
- Intentional supply by contractors of untruthful information in their bids, which distorts contractor-selection results, the conclusion and performance of contracts.
b/ Violation of the provisions of Clause 14, Article 12 of the Bidding Law, specifically:
- Use by contractors of their names, signatures or seals to legalize their bids for procedural participation in bidding in order to win bids for other contractors;
- Permission by contractors for others to use their names, signatures or seals; use by contractors of the names, signatures or seals of other contractors to create a partnership for participation in bidding and, after winning bids, failure to comply with the written partnership agreements, except where it is otherwise provided for by contracts;
- Transfer by contractors to others of 10% or more of the value of work volume they have to perform (excluding the work volumes undertaken by subcontractors) under signed contracts, except for cases of justifiable reasons permitted by investment deciders;
- Agreement by investors or supervision consultants for contractors to transfer certain work volumes without permission of investment deciders, except for those volumes which fall under responsibilities of subcontractors as stated in contracts.
c/ Violation of the provisions of Clause 15, Article 12 of the Bidding Law.
3. A ban from participation in bidding activities for between 3 and 5 years is imposed for one of the following violations:
a/ Violation of the provisions of Clause 1, Article 12 of the Bidding Law;
b/ Violation of the provisions of Clause 3, Article 12 of the Bidding Law;
c/ Violation of the provisions of Clause 12, Article 12 of the Bidding Law.
4. Organizations or individuals subject to caution for 5 consecutive times shall be banned from participation in bidding activities for 6 months. When they continue commit violations of bidding law, they shall, for every two times more of violation, be banned from participation in bidding activities for 1, 2 or 3 years correspondingly.
Chapter X
OTHER ISSUES
Article 54.- Forms of bidding document
1. Forms of bidding document include the form of dossier of invitation for pre-qualification for procurement or construction and installation bidding packages; the form of bidding dossier and the form of report on evaluation of bids for consultancy service, procurement or construction and installation bidding packages and bidding packages for selection of general construction contractors.
2. The Ministry of Planning and Investment shall issue forms of bidding document.
Article 55.- Warranty
1. Contractors shall provide work warranty if contracts between them and investors cover the construction or provide goods warranty if contracts between them and investors cover the goods procurement under the provisions of law.
2. The contents of warranty, warranty time limit, relevant expenses and responsibilities of concerned parties (investors and contractors) must be stated in contracts.
Article 56.- Professional bidding organizations
Professional bidding organizations defined in Clause 3, Article 9 of the Bidding Law mean organizations established and operating under the enterprise law, the bidding law or relevant laws.
Article 57.- Handling of bidding circumstances
The bidding circumstances prescribed in Article 70 of the Bidding Law are handled as follows:
1. When it is necessary to adjust bidding package prices or contents, except for cases prescribed in Clause 6 of this Article, investors shall carry out procedures to adjust bidding plans according to the provisions of law before bid-opening time.
2. When cost estimates of bidding packages are lower than their approved prices, those cost estimates will substitute bidding-package prices to serve as a basis for consideration of contractor-selection results; when cost estimates of bidding packages are higher than their approved prices, investors shall report thereon in writing to investment deciders for consideration and decision of adjustment of bidding-package prices within the bidding plans in order to ensure legal grounds for consideration of contractor-selection results.
3. When by the bid-closing time less than 3 contractors have submitted bids, bid solicitors shall immediately report on the bidding process to investment deciders or the authorized persons for consideration and handling within no more than 2 hours so that the latter may permit the extension of bid-closing time to increase the number of bids or permit the opening and evaluation of submitted bids. When bids fall under the approving competence of the Prime Minister, these circumstances shall be handled by ministers, heads of ministerial-level agencies, heads of Government-attached agencies or heads of other central agencies, presidents of provincial-level People's Committees or chairmen of the managing boards of enterprises set up under decisions of the Prime Minister in relation to projects.
4. When bidding dossiers permit contractors to make offers for one or different parts of a bidding package, the evaluation of bids and consideration for approval of bid winners shall be conducted part by part but must ensure that the bid-winning prices of bidding packages does not exceed the approved prices of those bidding packages.
5. When bidding dossiers contain abnormal unit prices, which are unfavorable to bid solicitors, bid solicitors may request contractors to make written explanations and clarifications. If contractors' explanations are not clear enough, the abnormalities shall be considered flaws and must be adjusted under regulations as for redundant or deficient offers of bids, in line with the requirements of bidding dossiers according to the provisions of Article 28 of this Decree.
6. When the proposed bid-winning prices of contractors exceed the approved bidding-package prices, investors shall report them in writing to investment deciders or the authorized persons for consideration and decision to permit these contractors to offer other prices or together with the offer of new prices to reconsider the approved bidding-package prices and contents of bidding dossiers if necessary.
7. When only one bid passes the technical evaluation (for procurement, construction and installation bidding packages and bidding packages for selection of general construction contractors, except for those for selection of general engineering contractors), the determination of evaluation prices is not required but the proposed bid-winning prices must be determined to serve as a basis for consideration of bid-winning results.
8. When two bids gain the best evaluation results and are equal (in terms of points or evaluation prices), except for preferential cases prescribed in Clause 2, Article 4 of this Decree, the contractor that requests the lower bid-winning price shall be considered to win bidding.
9. When the proposed contract-conclusion prices exceed the approved bid-winning prices, investors shall report them in writing to investment deciders or authorized persons for consideration and decision.
10. When the bid-winning prices proposed by investors or appraising agencies are abnormally low or below fifty per cent (50%) of the approved bidding-package prices or cost estimates, before approving the bidding results, investment deciders or authorized persons may put forth appropriate measures such as setting up inter-branch appraising teams for more thorough appraisal of bids of contractors or other appropriate measures in contracts to ensure the feasible performance of those contracts.
In addition to the above-mentioned cases, when new circumstances arise, bid solicitors and investors shall report them to investment deciders or authorized persons for consideration and decision.
Article 58.- Dossiers submitted for approval of contractor-selection results
By considering reports on contractor-selection results and dossiers submitted by bid solicitors for approval, investors shall make reports and submit them to investment deciders or authorized persons for consideration and decision. Dossiers submitted by investors for approval of contractor-selection results comprise reports on contractor-selection results and relevant documents.
1. A report on contractor-selection results covers:
a/ Legal grounds of the selection of contractors;
b/ Contents of the bidding package;
c/ The process of selecting and evaluating bids or dossiers of proposals of contractors;
d/ The request on contractor-selection results, including:
- The name of the contractor requested for selection (including the names of subcontractors if necessary). When the contractor is a partnership, the names of all partners must be stated;
- The proposed bid-winning price or the price proposed for execution of the bidding package (inclusive of taxes, reserves and price slippage, if any);
- The form of the contract;
- The time for performance of the contract.
When a contractor cannot be selected, a subsequent handling solution is required.
2. Relevant documents include:
a/ Copies of the investment decision and documents serving as grounds for making that decision; the business registration certificate, the investment certificate or the establishment decision, the international treaty or agreement (if any); the bidding plan;
b/ The bidding dossier, the dossier of requirements;
c/ The decision on setting up of the bidding expert team, the contract on hiring of bidding consultants or a professional bidding organization;
d/ The list of contractors who have submitted bids, dossiers of proposals and the bid-opening minutes;
e/ The bids, dossiers of proposals and relevant documents for clarification, amendment or supplementation;
f/ The reports on evaluation of bids and dossiers of proposals made by the bidding expert team, bidding consultant or professional bidding organization;
g/ The document approving the contents of the process of selecting contractors according to regulations;
h/ The minutes on negotiation of the contract, for a consultancy service bidding package;
i/ The foreign donor's opinions on the contractor-selection results (if any);
j/ The other relevant documents.
Article 59.- Appraisal of contractor-selection results
1. Appraisal contents:
a/ Checking documents which serve as grounds for the selection of contractors;
b/ Checking the process and time related to the selection of contractors according to regulations: time for publication of bidding information, distribution of bidding dossiers and dossiers of requirements; time for preparation of bids and dossiers of proposals, bid-closing time, bid-opening time, time for evaluation of bids and dossiers of proposals;
c/ Checking contents of evaluation of bids and dossiers of proposals: the minutes of evaluation and comments of each expert, the sum-up report of the bidding expert team, the evaluation by biding consultants and professional bidding organization (if any), the evaluation of bids and dossiers of proposals according to the requirements of the approved bidding dossier, the dossier of requirements and the evaluation criteria, the accuracy of evaluation;
d/ Finding out unclear contents in the dossiers submitted for approval of contractor-selection results;
e/ The opinions (if any) which remain different between members of the bidding expert team, the bidding consultants, the professional bidding organization and the contractors.
2. An appraisal report has the following main contents:
a/ An overview of the project and concerned bidding package: the major contents of the project and the bidding package, legal grounds for selection of contractors;
b/ A summary of the process of organizing the execution and proposals of the submitting agency on the contractor-selection results;
c/ Comments on the legal aspect, the implementation process and proposals of the submitting agency;
d/ Opinions on the contractor-selection results or measures for handling the cases where grounds are not sufficient to make conclusions on contractor-selection results.
3. Appraisal reports shall be submitted to investment deciders stated in Clause 2 of this Article and concurrently to investors and bid solicitors.
Article 60.- Management of foreign contractors
1. After being selected for execution of bidding packages in the Vietnamese territory, foreign contractors must comply with the provisions of Vietnamese law on entry, exit, import and export of goods, temporary residence registration, accounting regime, taxes and relevant provisions of Vietnamese law, unless otherwise provided for by a treaty to which the Socialist Republic of Vietnam is a contracting party or by an international agreement which the competent agency or organization of the Socialist Republic of Vietnam has signed.
2. When performing contracts signed with investors in the Vietnamese territory, foreign contractors shall register their operations with the state agencies according to the provisions of this Article in order to be granted operation registration certificates.
3. A foreign contractor's dossier of registration for operation in Vietnam comprises:
a/ The operation registration paper made by the foreign contractor or a representative of the foreign contractor according to the form issued by the Ministry of Planning and Investment;
b/ A notarized copy of the written notice of contractor-selection results;
c/ A notarized copy of the passport of the contractor who is an individual; a notarized copy of the operation registration granted by the competent agency of the country or territory of which the contractor being an organization bears nationality (enclosed with a notarized Vietnamese or English translation of that registration).
4. The operation registration certificate, for foreign contractors granted such certificates free of charge.
5. The Planning and Investment Service of the province or centrally run city where the foreign contractor is based (hereinafter called the operation registering agency) shall receive and consider that contractor's dossier of registration for operation in Vietnam. Within 5 working days after receiving the complete and valid dossier prescribed in Clause 3 of this Article, the operation-registering agency shall grant operation registration certificate (made according to the form issued by the Ministry of Planning and Investment) to the foreign contractor. It shall concurrently notify the Planning and Investment Services of other localities of the operation registration by that contractor if the bidding package is to be executed in those localities.
When the operation-registering agency refuses to grant the certificate, it shall notify the concerned foreign contractor thereof in writing and state the reasons therefor.
6. An operation registration certificate becomes invalid in the following cases:
a/ The operation term indicated in that certificate expires;
b/ The foreign contractor is suspended from operation, dissolved or bankrupt under the provisions of Vietnamese law or the law of the country or territory of which that contractor bears nationality.
7. When the foreign contractor undertakes different bidding packages in the same duration, that contractor shall make only one dossier of registration for operation in Vietnam whereby the operation term lasts from the commencement of execution of the first bidding package till the accomplishment of the last bidding package.
8. When the foreign contractor has been granted by the operation-registering agency an operation registration certificate which remains valid, if that contractor continues to execute another bidding package in the same locality, that contractor is only required to supply updated information to the operation-registering agency in order to be granted an additional operation registration certificate (according to the form issued by the Ministry of Planning and Investment).
9. Foreign contractors winning bids in construction activities in Vietnam shall comply with the provisions of Clause 4, Article 7 of the Construction Law and the Prime Minister's Decision No. 87/2004/QD-TTg of May 19, 2004, promulgating the Regulation on management of operation of foreign contractors in construction in Vietnam without having to abide by the provisions of Clauses 1 thru 8 of this Article.
Article 61.- Bidding inspection
1. The Ministry of Planning and Investment shall assume the prime responsibility for, and organizes bidding inspection throughout the country. Ministries, ministerial-level agencies, government-attached agencies, other central and local agencies and People's Committees at all levels shall conduct bidding inspection at the units under their management and for investment projects they decide.
2. Bidding inspection is conducted regularly under plans or extraordinarily (in case of problems or requests) under decisions of competent persons of inspection agencies.
3. Contents of bidding inspection include:
a/ Inspecting bidding training and re-training certificates, certificates of professional qualifications of bidding cadres and experts and legal documents related to contractor selection.
b/ Inspecting the elaboration of bidding plans according to the following contents:
- Legal grounds;
- Contents of bidding plans, rationality of the division of bidding packages and forms of selecting contractors applicable to bidding packages;
- Schedules for execution of bidding packages under the approved bidding plans. The adjustment of bidding plans (if any) and reasons therefor;
- The submission for approval and approval of bidding plans.
c/ Inspecting the selection of contractors for execution of bidding packages according to the following contents:
- Compliance with the approved legal grounds such as bidding plans, bidding dossiers and dossiers of requirements;
- The execution order and time.
d/ Detecting shortcomings in the bidding work and proposing remedies.
4. After the end of an inspection, an inspection report must be made. The inspecting agency shall monitor the remedy of shortcomings listed in the conclusions of the inspection report.
5. Contents of an inspection report include:
a/ Legal grounds;
b/ Inspection results;
c/ Comments;
d/ Proposals.
Article 62.- Supervision of bidding activities by the community
The supervision of bidding activities by the community complies with the provisions of law on supervision of investment by the community.
Chapter XI
IMPLEMENTATION PROVISIONS
Article 63.- Implementation guidance
1. For bidding packages for which bidding dossiers have been distributed before the effective date of the Bidding Law (April 1, 2006), the provisions of Decree No. 88/1999/ND-CP, Decree No. 14/2000/ND-CP, Decree No. 66/2003/ND-CP and the relevant guiding circulars apply.
2. For bidding packages for which bidding dossiers are distributed after the effective date of the Bidding Law (April 1, 2006), the provisions of the Bidding Law apply. Specifically:
a/ From April 1, 2006, to before the effective date of this Decree, the provisions of the Bidding Law and the guidance in the Ministry of Planning and Investment's Official Letter No. 2820/BKH-QLDT of April 21, 2006, apply;
b/ After this Decree takes effect, the provisions of the Bidding Law and this Decree apply.
3. Bidding information continues to be published in the Bidding Bulletin managed by the Ministry of Planning and Investment until a bidding newspaper comes to the public under the specific guidance of the Ministry of Planning and Investment.
4. The provisions on publication of information on the bidding website, online bidding, certificates of participation in bidding courses, forms of bidding document, forms of operation registration certificates of foreign contractors shall comply with the guidance of the Ministry of Planning and Investment. Dossiers of invitation for pre-qualification and bidding dossiers comply with the provisions of Appendices to this Decree (not printed herein) till detailed forms are issued.
5. The Finance Ministry shall guide the provisions of Clause 2, Article 1 of the Bidding Law regarding projects funded with state capital for asset procurement to maintain regular activities of state agencies, political organizations, socio-political organizations, socio-political-professional organizations, social organizations, socio-professional organizations and people's armed force units.
6. The Ministry of Trade shall guide procedures for import and export of goods by bid-winning contractors.
7. The Ministry of Construction shall, within the ambit of its management, guide the necessary contents on selection of contractors in construction activities in compliance with the provisions of this Decree.
8. Ministries, ministerial-level agencies, government-attached agencies, other central agencies and provincial-level People's Committees shall, within their management scope, provide detailed guidance on a number of contents of this Decree (if necessary) in compliance with the provisions of this Decree.
9. Ministers, heads of ministerial-level agencies, heads of other central agencies and presidents of People's Committees shall each nominate one of their deputies to take charge of the bidding work within the management scope of their respective branches or localities. In the course of implementation of this Decree, if any problems or obstacles arise, they must be reported to the Prime Minister for consideration and decision. Annually, ministries, ministerial-level agencies, government-attached agencies, other central agencies, provincial-level People's Committees and enterprises set up under decisions of the Prime Minister shall make and send reports on the bidding situation to the Ministry of Planning and Investment for sum-up and reporting to the Prime Minister.
Article 64.- Implementation effect
This Decree takes effect 15 days after its publication in "CONG BAO." As from the effective date of this Decree, the Government's Decree No. 88/1999/ND-CP of September 1, 1999, Decree No. 14/2000/ND-CP of May 5, 2000, and Decree No. 66/2003/ND-CP of June 12, 2003, cease to be effective. All previous regulations of the Government, ministries, ministerial-level agencies and localities which are contrary to the provisions of the Bidding Law, the Construction Law and this Decree are annulled.
Thủ tướng
(Signed)
 
Nguyen Tan Dung
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