and selection of contractor bidder in accordance with Law on Construction
_______
GOVERNMENT
Pursuant to Law on Government Organization dated 25th Dec 2001;
Pursuant to Law on Procurement No. 61/2005/QH11 dated 29th November 2005, Law on Construction No. 16/2003/QH11 dated 26th November 2003 of National Assembly;
In accordance with proposal by Minister of Planning and Investment, Minister of Construction,
1. This Decree guides the implementation of Law on Procurement No. 61/2005/QH11 dated 29th November 2005 of National Assembly and selection of contractor bidder in accordance with Law on Construction No. 16/2003/QH11 dated 26th November 2003 of National Assembly.
2. The selection of bidder for packages under ODA projects shall be in accordance with paragraph 3 Article 3 of Law on Procurement. Submission, appraisal and approval procedures for procurement plan, bidder selection results for these projects shall be in accordance with this Decree.
In this Decree, the following terms shall be construed as follows:
1. Using State funds stipulated in paragraph 1 Article 1 of Law on Procurement includes the expenditure in the forms of purchasing, leasing and leasing-purchasing. For joint-venture project, business cooperation contract, joint-stock project, State funds accounting for 30% or more is defined in accordance with legal capital, capital share, stock respectively;
2. Requirement documents are all documents used for direct contracting, shoppingin procurement of goods, repeat order, bidder selection in special case, including the requirements applicable to the procurement package. They serve as the legal basis for bidders to prepare their proposals and for the Procuring Entity to evaluate proposals to select the winner bidder satisfying requirement documents; they also provide the basis for finalising and signing contracts. Investment Owner shall decide content of requirement documents;
3. Proposal is the set of documents prepared by bidder in accordance with requirement documents, submitted to Procuring Entity in accordance with provisions of the requirement documents;
4. Bidder selection result includes bidding result in case of open bidding, limited bidding and outcomes in case of other methods of procurement;
5. Violation on legislations on procurement is act of not complying with or not fully implementing regulations on procurement;
6. Participating in bidding refers to bidder taking part in open bidding and limited bidding;
7. Package of selecting general contractor bidder includes selection of general bidder for engineering package (E), construction package (C), engineering and construction package (EC), engineering, procurement and construction package (EPC), project preparation, engineering, procurement and construction package (turnkey contract).
Prime Minister shall regulate in details the appropriate roadmap to ensure the competition in procurement stipulated in Article 11 of Law on Procurement.
1. The preference in international bidding stipulated in Article 14 of Law on Procurement shall be implemented as follows:
a) For the package of consulting services: bid of the consultant bidder eligible for preference shall be added 7.5% of the total point of this bidder to the total point; in case of high-level technical requirement then be added 7.5% of the technical point of this bidder to the technical point.
b) For the civil works package: the bid of bidder ineligible for preference must be added 7.5% of the bid price after error correction and deviation adjustment to the bidder in question;
c) For the goods package: the bid of bidder ineligible for preference must be added a sum equal to import duties and fees according to the applicable laws but not exceeding 15% of the goods price, with the exception of goods for which such duties and fees have already been paid;
d) For package of selecting engineering bidder, preference shall be defined in accordance with point a of this paragraph. For other package of selecting general contractor bidder, preference shall be defined in accordance with point b of this paragraph;
2. In the case bids of foreign bidders are ranked equally, preference shall be reserved to the bidder who has the higher level of domestic costs. In the case bids of domestic bidder and foreign bidders are ranked equally after implementing preference in accordance with paragraph 1 of this Article, preference shall be reserved to domestic bidder.
a) Individuals involved directly in procurement activities shall possess a certificate of attending a course on procurement, except for bidders.
b) Other concerned individuals interested in.
2. Administration of training in procurement
Ministry of Planning and Investment shall be responsible to manage the training activities in accordance with stipulations in paragraph 5 Article 68 Law on Procurement, as followings:
a) Summarizing the status of training on procurement of training organizations through report on procurement implementation of Ministries, branches and local authorizes.
b) Setting up training organization-database based on data provided by training organization.
3. Conditions for training on procurement
a) Having the Certificate business registration or the decision of establishment for organizations without such a certificate in accordance with applicable legislations;
b) Having qualified procurement trainers
4. Conditions for issuing the Certification
a) Certificate of attendance at a procurement training course shall be issued to participants who attend the whole course and pass the exam;
b) Course on procurement with certificate issued shall be at minimum of 3 days.
5. Rights and duties of the training organizations
a) Be responsible for training’s quality; provide training organization-database stipulated in point b of paragraph 2 of this Article with information on its organization;
b) Implement training activities and issuing certificate of attendance at a procurement training course in accordance with applicable regulations;
c) Report annually on its procurement training activities to Ministry of Planning and Investment and other relevant Ministries, branches, local authorizes for monitor and summary.
1. Price of bidding documents, including tax, shall be determined by Investment Owner in accordance with size, nature of the package but not exceeding 1,000,000 VND for domestic procurement; in accordance with international practice for international bidding.
2. Costs for appraising bidder selection result, including the case where no bidder can be selected, shall be 0.01% of estimated price and at 500,000 VND minimum, 30,000,000 VND maximum.
3. Costs for Consulting Council on Complaint Settlement on bidder selection result is 0.01% of bid price of complaining bidder and at 2,000,000 VND minimum, 30,000,000 VND maximum.
The management and use of costs stipulated in paragraph 1 and paragraph 2 of this Article shall be in accordance with current legislations.
1. The posting of procurement information stipulated in Article 5 of Law on Procurement shall be done free of charge for organization, body sent this information.
2. Procurement newspaper and procurement website shall operate as non-profit units.
3. The procurement newspaper shall be daily issued.
4. Provision of procurement information
a) Responsibility to provide information
- Ministries, ministerial-level agencies, other agencies at central level, people committees at all level provide information stipulated in point g, h of paragraph 1 of Article 5 of Law on Procurement.
- Investment Owners, Procuring Entity shall be responsible for provision of information stipulated in points a to e and h of paragraph 1 of Article 5 of Law on Procurement;
b) Time for provision of information
For announcement of pre-qualification and announcement of bid, announcement of request for expression of interest, time for provision is at the latest 15 days before the issuing date of prequalification documents, bidding documents, request for expression of interest. For other information stipulated in paragraph 1 of Article 5 of Law on Procurement, time for provision is at the latest 10 days from the date of signature of the document.
Ministry of Planning and Investment is responsible for detailed guidelines of provision and roadmap for publishing procurement information.
1. Investment decision and documents served as basis for investment decision; Certificate of business registration, Certificate of investment registration. In case of preparation for project then the decision of the head of organization in charge of preparation shall be the basis;
2. International treaties or international agreements for projects that using ODA;
3. Approved design, cost estimate, total cost estimate (if any);
4. Funding sources;
5. Other relating legal documents (if any).
Article 9. Content of each package in the procurement plan
The procurement packaging of the project shall be in accordance with paragraph 4 Article 6 of Law on Procurement and ensure that the size of procurement package not being too small or too large to impede the participation of bidders. Content of each package includes:
1. Name of the package
Name of the package shall manifest nature, content and scope of package in line with contents of the project.
2. Estimated price
Estimated price shall be calculated corresponding to the approved total investment or total cost estimate or cost estimate and relating regulations.
3. Funding sources
Each package shall specify funding sources or financial arrangement to pay the bidder; in case of using ODA, it shall specify funding agencies and funding source division (foreign, domestic).
4. Bidder selection method and bidding procedures
Specify bidder selection method (national, international or prequalification if any) stipulated from Article 18 to Article 24 of Law on Procurement and Article 97 of Law on Construction, bidding procedures as set forth in Article 26 of Law on Procurement.
5. Scheduled time for bidder selection
Specify time for bidder selection to implement the package ensuring the correspondence with scheduled time for the whole project.
6. Form of contract
Based on nature of package, specify contract form(s) for contract of each package as stipulated from Article 49 to Article 53 of Law on Procurement and Article 107 of Law on Construction.
7. Scheduled period for contract implementation
Scheduled period for contract implementation shall ensure the package implementation in line with progress of project implementation.
Article 10. Submission, approval of procurement plan
1. Responsibility of submission and approval of procurement plan
The investment owner shall have responsibility to submit the procurement plan to the person deciding investment for consideration and decision, concurrently send to the appraisal organization, body; in case of submission of procurement plan to Prime Minister, the investment owner shall send also to managing ministry for comments to the Prime Minister for consideration and decision.
2. Component of procurement plan documents to be submitted
a) A statement for approval of procurement plan includes the followings:
- The works already performed include works relating to preparation for the project, specifying corresponding value and basis for implementation.
- The works that cannot apply any of the bidder selection methods stipulated from Article 18 to Article 24 of Law on Procurement and Article 97 of Law on Construction;
- Works in procurement plan include the work that form the packages which shall be done through one of the bidder selection methods stipulated in Article 18 to Article 24 of Law on Procurement and Article 97 of Law on Construction, including bomb and mine sweeping, construction of resettlement quarters, construction insurance, training. Specify the basis for packaging. For every package, all contents stipulated in Article 9 of this Decree shall be included. In case of applying bidder selection methods other than open bidding, reasons shall be clarified.
The total value of the already performed works, works that cannot apply any of bidder selection methods and in-procurement-plan works must not exceed the approved total investment for the project.
In the case of preparation of procurement plan for the number of packages for prior-implementation stipulated in paragraph 2 Article 6 of Law on Procurement, the statement shall include contents set forth in this paragraph.
b) Additional documents enclosed with the statement to be submitted:
On submitting procurement plan, Investment Owner shall enclose copy of documents serving as basis for procurement plan as stipulated in Article 8 of this Decree.
Article 11. Appraisal and approval of procurement plan
1. Appraisal of procurement plan
a) Appraisal of procurement plan is reviewing, evaluating the content of each package in accordance with Article 8, Article 9 and Article 10 of this Decree.
b) Organizations, bodies assigned with appraisal of procurement plan shall prepare appraisal report in accordance with Article 65 of Law on Procurement to submit to person deciding investment for approval.
2. Approval of procurement plan
Person deciding investment is responsible to approve the proposed procurement plan in the period not longer than 10 days from the receipt of report of Investment Owner, appraisal report of appraising organization, body, and comments of relevant agencies (if any). For the procurement plan approved by the Prime Minister, the process shall be in accordance with the Regulations on Government working routine.
1. Pre-qualification shall be implemented in accordance with point a of paragraph 1 Article 32 of Law on Procurement.
2. In case there need to apply prequalification for packages other than packages stipulated in paragraph 1 of this Article, person deciding investment shall decide in procurement plan.
Procuring Entity shall prepare the prequalification documents to be submitted to the Investment Owner for consideration and approval. Prequalification includes the instruction for the package and the following requirements to the bidder:
a) Requirements on technical capacity;
b) Requirements on financial capacity;
c) Requirements on experiences;
Evaluation criteria of prequalification applications shall be based on method of “pass”, “fail” and be specified in prequalification documents, including criteria for each requirement on technical capacity, financial capacity, experiences.
For civil works package, package of selection of general contractor bidder except for package of selection of general engineering bidder, evaluation criteria of prequalification applications shall also in accordance with requirements of capacity condition for each type, level of civil works set forth in Law on Construction.
2. Announcement of prequalification
Announcement of prequalification based on form stated in Appendix I attached to this Decree shall be posted on the procurement newspaper with 3 consecutive issues and procurement website; in case of international bidding, the announcement shall be additionally posted on an English newspaper of nationwide circulation. After that, the announcement may also be published on other mass media. Prequalification documents shall be provided free of charge to bidders after 10 days from the first date of announcement till the deadline for submission of prequalification applications.
3. Receive and handle prequalification application
Procuring Entity shall receive and treat prequalification applications submitted by bidders as “confidential”. Applications submitted in accordance with requirements in pre-qualification documents shall be opened publicly right after the deadline for submission of applications. Prequalification applications submitted after the deadline shall not be opened and be returned to the bidder intactly.
4. Evaluate the prequalification applications
Evaluation of prequalification applications shall be carried out by Procuring Entity in accordance with the criteria in the prequalification documents.
5. Submit and approve prequalification result:
Procuring Entity shall be responsible for submission of prequalification result to Investment Owner for consideration and approval.
6. Notify the prequalification result:
After the approval of prequalification result by Investment Owner, Procuring Entity shall notify in writing the result to bidders participating in prequalification in order to invite to participate in bidding.
1. Select the list of consultant bidders for bidding
a) For open bidding:
- Investment Owner approve request for expression of interest with following content so that interested consultant bidder could provide information:
+ Capacity and number of specialists;
+ Financial capacity;
+ Experiences.
Evaluation criteria for expressions of interest shall be established using criteria of “pass”, “fail” and included in the request for expressions of interest with criteria on technical capacity and number of specialists, financial capacity and experiences.
- Announcement for expressions of interest shall be posted in the procurement newspaper and on the procurement website with 3 consecutive issues; in case of international bidding, the announcement shall be additionally posted on an English newspaper of nationwide circulation. After that, the announcement may also be published in other mass media;
- 10 days from the date of posting announcement for expressions of interest, Procuring Entity issue free of charge request for expressions of interest to interested consultant bidders;
- The minimum time for preparation of expressions of interest is 5 days for national bidding and 10 days for international bidding;
- Procuring Entity shall evaluate expressions of interest according to evaluation criteria, submit to the Investment Owner for approval of the list of bidders invited to participate in bidding.
b) For the limited bidding:
Investment Owner shall approve the list of consultant bidders who are deemed to be sufficiently capable and experienced to participate in bidding.
2. Prepare the request for proposals/bidding documents:
a) Basis for preparation of bidding documents:
- Decision of investment and documents that lay ground for investment decision; Certificate of business registration; Certificate of investment registration;
- Approved procurement plan;
- Legislations on procurement and applicable legislations; international treaties or international agreements (if any) for ODA projects;
- The policies of the State on taxes, salaries, domestic preference or other relating regulations.
In case there are some packages to be done prior to approval of investment, the entity responsible for preparing project shall develop based on relating documents and submit bidding documents to leader of that entity for approval.
b) Content of bidding documents:
Bidding documents shall contain the contents as stipulated in paragraph 2, Article 32 of Law on Procurement, including important requirements (prerequisites) to reject bids, as followings:
- Bidder whose name was not in the list of those who bought bidding documents or who did not register to the bidding, except for stipulation in paragraph 2 Article 26 of this Decree;
- Bidder does not meet eligibility requirements as in Article 7, Article 8 of Law on Procurement;
- Bidder does not meet the requirements on capacity according to Law on Construction.
- Without the origin of bid;
- Ineligible bid form;
- Period of validity of bid does not meet requirement of bidding documents;
- Consultant bidder with name in two or more bids as the principal consultant bidder (either independent consultant bidder or a joint-venture member);
- Other important requirements particular to the package.
Consultant bidder who violates one of the prerequisites stated in bidding documents shall be rejected and its bid shall not the considered further.
3. Approval of bidding document
The person deciding investment shall approve or authorize the Investment Owner to approve the bidding documents in accordance with Article 60 of Law on Procurement on the basis of appraisal report by appraising organization or body.
4. Announcement of bid
a) Procuring Entity shall send the letter of invitation for bid to consultant bidders in the list of consultant bidders invited to participate. The content of the letter of invitation shall be prepared in accordance with the form stipulated in Annex II attached to this Decree;
b) Minimum time from sending the letter of invitation to issuing bidding documents is 5 day for national bidding, 10 days for international bidding.
1. For the consultant package, including consultant services in construction stipulated in the Law on Construction, without high-level technical requirement:
a) Technical evaluation criteria: use merit point (100; 1,000...) to evaluate, including:
- Experience and capacity of bidder. Percentage of this content shall be regulated from 10% - 20% total points;
- Solution and methodology to the requirements of package. Percentage of this content shall be regulated from 30% - 40% total points;
- Personnel of consultant bidder to perform the package. Percentage of this content shall be regulated from 50% - 60% total points.
It is required to determine minimum required technical point but not less than 70% of total points. Bid with technical point not lower than the minimum required point is deemed to be technically responsive.
b) Financial evaluation criteria:
Use merit point (100; 1,000 ...) in uniform with technical evaluation criteria. Financial point of each proposal/bid shall be determined as follows:
P Lowest x (100, 1000, …)
Financial Point =
(of the bid in question) P in question
In which: P Lowest: the lowest bid price after error correction and deviation adjustment of the technically responsive bids
P in question : Bid price after error correction and deviation adjustment of the bid in question
c) Content of combined evaluation:
- The combined evaluation criteria is identified on the basis of technical point and financial point, in which the weight of technical point shall not less than 70% total points and the weight of price point shall not exceed 30% total points.
- The combined point of a bid shall be determined according to following formula:
Combine point = Technical point x (K%) + Price point x (G%)
In which:
K%: weight of technical point (stipulated in the combined evaluation criteria).
G%: weight of financial point (stipulated in the combined evaluation criteria).
- Technical point is the point of the bid determined in the stage of technical evaluation according to point a of this paragraph.
- Financial point is the point of the bid determined in the stage of financial evaluation according to point b of this paragraph.
2. For the package, including consultant services stipulated in the Law on Construction with high-level technical requirement:
The technical criteria shall be identified as stipulated in point a paragraph 1 of this Article, where the minimum requirement shall not be lower that 80% of the total technical point.
1. Issuance of request for proposals/bidding documents
a) Procuring entity sell the bidding documents to consultant bidders in the list of bidders invited to participate until the deadline for bid submission at the price as stipulated in paragraph 1 Article 6 of this Decree. For joint-venture bidder, that one member of that joint-venture bought bidding documents is acceptable;
b) Modification and clarification to the bidding documents shall be in accordance to paragraph 1 Article 33 and Article 34 of Law on Procurement.
2. Preparation of bids
Consultant bidders prepare and submit bids in accordance with the bidding documents. In case there is change of the status of consultant bidder (the name) to participate in comparison with that at the time of buying bidding documents, registering to bidding, the consultant bidder shall notify in writing to Procuring Entity. Procuring Entity shall only consider this notification if receive it before the deadline for bid submission.
3. Receipt and handling of bids
Procuring Entity receives and treats the bids submitted as “confidential” document. Bid submitted after the deadline for bid submission is deemed ineligible and returned to the consultant bidder unopened. After the deadline for bid submission, any document of bid amendment, modification sent by consultant bidder after deadline for bid submission shall be considered ineligible.
4. Revision or withdrawal of bids
When revision or withdrawal of the submitted bid is needed, the bidder shall make a request in writing to Procuring Entity and Procuring Entity shall only accept if such a request is received before the deadline of bid submission; the request for withdrawal must be submitted separately to the bid.
5. Opening of technical proposals
a) Opening of technical proposals shall be conducted publicly right after the deadline of bid submission at date, time and place stipulated in bidding documents before the witness of the present persons and not depending on the presence or absence of invited bidders. Procuring Entity may invite representatives of relating agencies to the opening;
b) Procuring Entity shall open the technical proposal of each bidder according to alphabet order, and the following procedure:
- Check the seals of the bid;
- Open the technical proposals read and record the following information:
+ Name of bidder;
+ Number of origins and copies of technical proposal;
+ Validity period of bid;
+ Written adjustment to technical bid (if any);
+ Other relating information.
The opening minutes shall be signed by presented representatives of bidders, Procuring Entity, relating agencies.
After bid opening, Procuring Entity shall sign in each page of all technical proposals and treat them as “confidential” documents. The evaluation shall be made on copies. Bidder shall be responsible for the correctness and consistence as well as seals of the bid.
Evaluation of bids for the consultant package, including construction consultant services stipulated in the Law on Construction shall be based on evaluation criteria and other requirements in bidding documents but entertain the principles of bid evaluation stipulated in Article 28 of Law on Procurement and bid evaluation process stipulated in Article 35, as followings:
1. Preliminary evaluation
a) Check the eligibility of technical proposals according to requirements in bidding documents:
- Eligibility of bid form. Bid form is filled in full and with the signature of the legitimate representative of consultant bidder according to requirements in bidding documents. For joint-venture the bid form shall be signed by legitimate representative of every joint-venture member, except that the joint-venture agreement state that all joint-venture members authorize the leader of joint-venture to sign bid form;
- Eligibility of the joint-venture agreement. The joint-venture agreement shall make clear of responsibility, power, quantity of work to be implemented and corresponding value of each member of joint-venture, including the leader of joint-venture and responsibility of the joint-venture leader; signature and seal (if any) of members;
- Submission of one of the documents according to bidding documents: Certificate of business registration, Certificate of investment; Decision of establishment or lawful registration of operation; appropriate profession certificate;
- Number of origins, copies of technical proposal;
- The annexes, document attached to technical proposal.
b) Reject the bids irresponsive to important requirements (prerequisites) of bidding documents as stipulated in point b paragraph 2 Article 14 of this Decree.
2. Detailed evaluation
a) Bid evaluation for the consultant package, including construction consultant services stipulated in the Law on Construction, without high-level technical requirement:
- Technical evaluation:
Evaluation in accordance with the technical criteria stipulated in the bidding documents. Investment owner shall approve list of technically responsive consultant bidders for financial evaluation.
- Financial evaluation:
Open the financial proposal of consultant bidders evaluated technically responsive according to procedure stipulated in point b paragraph 5 Article 16 of this Decree. The minutes of opening financial proposal shall contain following main points:
+ Name of bidder;
+ Number of origins, copies of financial proposal;
+ Bid price stated in the bid form;
+ Other relating information.
After bid opening, Procuring Entity shall sign in each page of all financial proposals and treat them “confidential” documents. The evaluation shall be made on copies; bidder shall be responsible for the correctness and consistence between origin and copies as well as seals of the bid. Financial evaluation shall be conducted in accordance with financial evaluation criteria stipulating in bidding documents.
- Combined evaluation:
Combined evaluation on technical and financial in accordance with the combined evaluation criteria stipulated in bidding documents. Bidders with the highest combined point shall be proposed by Procuring Entity to Investment Owner for approval to be ranked the first and invited to negotiate the contract in accordance with Article 18 of this Decree.
b) Bid evaluation for the consultation package, including construction consultant services stipulated in the Law on Construction, with high-level technical requirements:
Technical evaluation in accordance with the criteria stipulated in the bidding documents according to point a paragraph 2 of this Article. Bids with technical point not lower than the minimum required point shall be evaluated technically responsive and this shall be ranked by Procuring Entity for approval of Investment Owner. The first ranked consultant bidder will be invited to witness opening of financial proposal and contract negotiation as stipulated in Article 18 of this Decree.
1. Based on approval of Investment Owner on the ranking of the consultant bidders, Procuring Entity shall invite the first ranked bidder to negotiate the contract.
2. Content of contract negotiation:
a) Tasks and detailed content of work for consultant bidder;
b) Content of technology transfer and training;
c) Working plan and personnel allocation;
d) Schedule;
dd) Resolution for change of personnel (if any);
e) Arrangement of working conditions;
g) Consultant fees;
h) Other (if needed).
In the case of failure to negotiate contract, Procuring Entity shall report to Investment Owner for consideration and approval that the next ranking bidder be invited for negotiation.
1. The submission, appraisal of bidding result of consultant package shall be implemented in accordance with Article 37, 39 of Law on Procurement and Article 58, 59 of this Decree.
2. The approval of bidding result shall be implemented in accordance with regulations in Article 40 of Law on Procurement.
3. The notification of bidding result shall be in accordance with Article 41 of Law on Procurement, in details: right after receipt of the approval of bidding result, Procuring Entity shall notify the bidding result in writing to bidders, and additionally the plan for contract finalization to the winning bidder.
1. Finalization of contract and signing of contract shall be in accordance with Article 42 and Chapter III of Law on Procurement, Section 2 Chapter VI of Law on Construction;
2. In the case of failure to finalize contract, Investment Owner shall report to the person deciding investment to cancel the former bidding result and consider, decide to invite the next ranking consultant bidder to finalize the contract in accordance with Article 18 of this Decree, in this case, there may be the requirement to the bidder to extend the validity of his bid if necessary. The next steps shall be implemented as stipulations of Article 19 and 20 of this Decree.
1. Prequalification shall be implemented according to Chapter III of this Decree.
2. Preparation of bidding documents
a) Basis for preparation of bidding documents:
- Decision on investment and documents that lay ground for investment decision; Certificate on business registration, Certificate on investment;
- Approved procurement plan;
- Documents on design attached with approved total cost estimate, cost estimate (for civil works packages);
- Legislations on procurement and applicable legislations; international treaties or international agreements (if any) for ODA projects;
- The policies of the State on taxes, salaries, domestic preference or other relating regulations.
b) Content of bidding documents:
- Bidding documents shall include the content as stipulated in paragraph 2 Article 32 of Law on Procurement. For the package where prequalification have already been implemented, the bidding documents shall not stipulate the criteria of experience and capacity of bidder but shall state requirement for bidder to reconfirm information on the experience and capacity that the bidder listed in the prequalification application;
- Bidding documents shall not state requirement of concrete trademark, origin of goods according to stipulation in paragraph 5 Article 12 of Law on Procurement. In special cases that need to state the trademark, catalogue of a certain producer, or goods from a certain country for reference, illustration of the technical requirements of the goods then add thereto the words “or equal” after the stated trademark, catalogue or origin and define the concept of “equal” means similar specification, same usage with the mentioned goods. For complex goods, there shall be requirement that bidder submit sales authorization of producer;
- Bidding documents shall include important requirements (prerequisites) to reject bids, details as followings:
+ Bidder whose name was not in the list of those who bought bidding documents or who did not register to the bidding, except for stipulation in paragraph 2 Article 26 of this Decree;
+ Bidder does not meet eligibility requirements as in Article 7, Article 8 of Law on Procurement;
+ Without bid security or with ineligible bid security: lower value, wrong currency compared to the requirement, shorter period of validity, submission at wrong address and time required by the bidding documents, wrong name of bidder, not the origin and without eligible signature (for letter of guarantee by the bank);
+ Without origin of bid;
+ Ineligible bid form;
+ Period of validity of bid does not meet requirement of bidding documents;
+ Bid has unfixed bid price, offers at different unit prices or has conditional prices;
+ Bidder with name in two or more bids as the principal bidder;
+ Does not meet requirement on capacity and experience according to point c paragraph 1 Article 27 of this Decree and Article 7 of Law on Construction;
+ Other important requirements particular to the procurement package.
Bidder who violates one of the prerequisites stated in bidding documents shall be rejected and its bid shall not the considered further.
3. Approval of bidding documents
Implement according to paragraph 3 Article 14 of this Decree.
4. Invitation for bids
a) Bid announcement
For open bidding without prequalification, it is required to post bid announcement on procurement newspaper with 3 consecutive issues and on procurement website; and additionally post on an English newspaper of nationwide circulation for international bidding. After posting according to the above requirement it is allowed to post on other mass media.
Content of bid announcement shall be prepared according to the applicable forms stated in Appendix III, Appendix IV and Appendix V attached to this Decree.
b) Send the letter of invitation for bids:
Apply for limited bidding and in packages where prequalification was already implemented. Procuring Entity send letter of invitation for bids according to applicable forms stated in Appendix III, IV and V attached to this Decree to bidders in the list of those invited to participate in limited bidding or bidders prequalified. Time from the issuance of letter of invitation for bids to the issuance of bidding documents must be at least 5 days for national bidding, 7 days for international bidding.
a) Using maximum scale (100, 1000, …) to establish technical evaluation criteria. Contents of technical evaluation criteria for packages of goods and civil works are stated in paragraph 2 Article 23 and paragraph 2 Article 24 of this Decree. The minimum required point is according to nature of each package but shall be assured not less than 70% of the total technical points; for package of high-level technical requirement not less than 80%;
For package of selection of general civil contractor (except for package of selection of general engineering bidder) there shall be additional minimum required points for each working content and shall be assured not less than 70% of the corresponding total points.
b) For package of goods, civil works, bid shall be deemed technically responsive when it gains the points not lower than minimum required technical points.
For package of selection of general civil contractor (except for package of selection of general engineering bidder), bid shall be deemed technical responsive when each working content is evaluated at a point not lower than the corresponding minimum required points and the total evaluated points of all contents not lower than minimum required technical points of the whole package.
2. Using “pass”, “fail” criteria
a) The evaluation criteria
Contents of technical evaluation criteria for package of goods and civil works are stated in paragraph 2 Article 23 and paragraph 2 Article 24 of this Decree. The level of requirement for each content shall be determined upon nature of each package. For those contents considered basic requirements of bidding documents it is required to use only “pass”, “fail” criteria. For those content considered not basic requirements of bidding documents, besides “pass”, “fail” criteria it is allowed to use “acceptable” but not higher than 30% of total requirements in the criteria.
b) A bid shall be evaluated technically responsive when all basic requirements are evaluated “pass”; the other requirements are evaluated “pass” or “acceptable”.
Evaluation criteria to evaluate the bid for package of goods include evaluation criteria on capacity and experience, evaluation criteria on technical requirement and method to determine cost on the same ground (evaluated price), as followings:
1. Evaluation criteria for capacity and experience of bidder to be applied to package without prequalification, including:
a) Experience of implementing similar packages in Vietnam and in foreign country; experience in the field of main business;
b) Capacity of manufacture and business, technical infrastructure, personnel qualification;
c) Financial capacity: total asset, total payable debt, liquid capital, revenue, profit, value of on-going contracts and other criteria.
Determination of concrete requirement for each criterion stipulated in point a, point b and point c of this paragraph shall depend on requirement of each package.
Criteria stipulated in this paragraph shall be applied criterion type of “pass”, “fail”. Bidder “pass” all 3 contents in point a, point b and point c of this paragraph shall be evaluated responsive in terms of capacity and experience.
2. Technical evaluation criteria
Technical evaluation criteria are established according to provisions in Article 22 of this Decree, including content of the capability to meet quantity, quality requirements of the goods stated in the bidding documents, in details:
a) Technical specification of goods, manufacturing standards and other contents;
b) The rationality and efficiency of technical proposal, organization of supplying the goods;
c) Capability to install equipment and qualification of technical personnel;
d) Level of responsiveness of guarantee requirement;
dd) The capability of geographical adaptation;
e) Impact to environment and the solution;
g) Possibility of financial provision (if required so);
h) Other content concerning conditions of commerce, finance, time for implementation, technical transfer (if any).
3. Contents to determine cost on the same ground
Determination of evaluated price means determination of cost on the same technical, financial, commercial grounds and other factors in order to compare, rank the bids. Method for determination of evaluated price shall be stated in evaluation criteria. Determination evaluated price shall be implemented in accordance with the following process:
- Determination of bid price;
- Error correction;
- Deviation adjustment;
Bid price after error correction and deviation adjustment is called proposed winning price.
- Conversion of proposed winning price into single common currency (if any) as a basis for determination of evaluated price;
- Calculation of costs on the same ground to determine evaluated price, include:
+ Technical conditions such as: implementation schedule; machinery and equipment capacity; level of consumption of electricity, fuel and raw materials, costs for operation, maintenance; lifespan of goods and other technical requirements according to certain package;
+ Financial and commercial conditions;
+ Preferences in international bidding (if applicable);
+ Other factors.
Determination of appropriate factors should be according to concrete features of each package. Bid of the lowest evaluated price shall be ranked the first.
Evaluation criteria to evaluate the bid for package of works include evaluation criteria on capacity and experience, evaluation criteria on technical requirement and content to determine evaluated price, as followings:
1. Evaluation criteria on capacity and experience of bidder to be applied to the package without prequalification, including:
a) Experience in other similar projects in Vietnam, in the similar geographic conditions;
b) Technical capacity: quantity and qualification of personnel, technical workers who directly serve the works and equipment available for the package, possibility to mobilize equipment for the works;
c) Financial capacity: total asset, total payable debt, liquid capital, revenue, profit, value of on-going contracts and other criteria.
Determination of concrete requirement for each criterion stipulated in point a, point b and point c of this paragraph shall depend on requirement of each package.
Criteria stipulated in this paragraph shall be applied criterion type of “pass”, “fail”. Bidder “pass” all 3 contents in points a, b, c of this paragraph shall be evaluated responsive in terms of capacity and experience.
2. Technical evaluation criteria
Technical criteria shall be established in accordance with Article 22 of this Decree and include the content of responsive degree to requirement of designing documents and bills of quantity, as followings:
a) The reasonability and feasibility of the technical proposal, the method to implement construction works;
b) Assurance of the sanitary condition and other conditions like fire prevention and labour security;
c) The responsive level of construction equipment (quantity, type, quality and schedule of mobilization), personnel;
d) The level of ensuring maintenance requirements;
dd) The measure of quality assurance;
e) Possibility of financial provision (if required so);
g) Working schedule;
h) Other contents (if any).
3. Content to determine evaluated price:
Determination of evaluated price means determination of cost on the same technical, financial, commercial grounds and other factors in order to compare, rank the bids. Method for determination of evaluated price shall be stated in evaluation criteria. Determination of evaluated price shall be implemented in accordance with the following process:
- Determination of bid price;
- Error correction;
- Deviation adjustment;
Bid price after error correction and deviation adjustment is called proposed winning price.
- Conversion of proposed winning price into single common currency (if any) as the basis for determination of evaluated price;
- Calculation of costs on the same ground to determine evaluated price, including:
+ Technical conditions such as: implementation schedule; cost for administration, operation, maintenance and lifespan of the construction and other technical requirements according to certain package;
+ Financial and commercial conditions
+ Preferences in international bidding (if applicable);
+ Other contents.
Determination of appropriate factors to should be according to concrete features of each package. Bid of the lowest evaluated price shall be ranked the first.
Criteria for evaluation of the bid for package of selection of general civil contractor (except for package of selection of general engineering bidder) include evaluation criteria for each working content stipulated in point a paragraph 1 Article 15, Article 22 and Article 24 of this Decree.
Article 26. Organization of bidding
1. Issuance of the bidding documents
a) Procuring Entity sell the bidding documents until before the deadline for bid submission to bidders in the list of bidders prequalified (in case of prequalification), bidders in list of bidders invited to participate in limited bidding or the interested bidders in open bidding at the price regulated in paragraph 1 Article 6 of this Decree. For joint-venture bidder, that one member of that joint-venture bought bidding documents is acceptable.
b) Adjustment and clarification to bidding documents shall be in accordance to paragraph 1 Article 33 and Article 34 of the Law on Procurement.
2. Prepare, receive, adjust or withdraw the bids
Implement in accordance with paragraph 2, paragraph 3, and paragraph 4 Article 16 of this Decree.
3. Opening of bids
a) Opening of bids shall implemented publicly right after deadline for bid submission at time and place stipulated in bidding documents, to be witnessed by the participants regardless of the presence or absence of invited bidders. Procuring Entity may invite representative of the concerning agencies to participate in opening of bids;
b) Procuring entity shall open in turn the bid of each bidder whose name is in the list of those bought the bidding documents, registered to bidding and submitted bid before the deadline in accordance with the alphabet order. Process of bid opening is as followings:
- Check the seal of bid;
- Open the bids, read and record in the minutes the main information, as followings:
+ Name of bidders;
+ Number of origin, copies of bid;
+ Validity period of bid;
+ Bid price stated in bid form and discount (if any);
+ Value, validity period and form of bid security;
+ The written request to modify bid (if any);
+ Other relating information.
Bid opening minute shall be signed by the present representatives of bidders, procuring entity, managing agencies.
After bid opening, Procuring Entity shall sign in each page of the origin of all bids and treat them “confidential”. Evaluation of bids shall be made on copies. Bidders shall be responsible for the correctness and consistence of the copy and origin as well as seals of the bid.
Evaluation of bids shall be implemented according to evaluation criteria and other requirements stipulated in bidding documents, entertaining principles stipulated in Article 28 of the Law on Procurement and procedure stipulated in Article 35 of Law on Procurement, as followings:
1. Preliminary evaluation
a) Check the eligibility of bids
- Eligibility of bid form. Bid form be fulfilled and signed by legitimate representative of bidder according to requirement of bidding documents. For the joint-venture bidder, bid form shall be signed by the legitimate representative of each member of such joint-venture, except for the case that the joint-venture agreement state that other members authorize the joint-venture leader to sign bid form;
- Eligibility of joint-venture agreement. The joint-venture agreement shall make clear of responsibility, power, quantity of work to be implemented and corresponding value of each member of joint-venture, including the leader of joint-venture and responsibility of the joint-venture leader; signature and seal (if any) of members;
- Submission of one of the documents according to bidding documents: Certificate of business registration, Certificate of investment; Decision of establishment or lawful registration of operation; Sales authorization of producer (if required so)
- The number of origin, copies of bids;
- Eligibility of bid security;
- The annexes, documents attached to the bids;
b) Reject the bids irresponsive to prerequisites stipulated in bidding documents in accordance with point b paragraph 2 Article 21 of this Decree;
c) Evaluate the capacity and experience of bidder in accordance with the evaluation criteria for capacity and experience stipulated in the bidding documents for the package without prequalification.
For the package where prequalification was already implemented, updated information that bidder stated at the time of prequalification in order to reconfirm the possibility to meet requirements of capacity and experience of the bidder.
2. Detailed evaluation of bids
a) Technical evaluation
The technical evaluation shall be in accordance with evaluation criteria in bidding documents. During the evaluation of bids, Procuring Entity has the right to request bidder to explain, clarify the unclear, exceptional contents of bids. Only those bids that the Investment Owner approves as responsive to technical requirements shall be determined evaluated price according to point b of this paragraph.
b) Determination of evaluated price
Determination of evaluated prices of bids shall be implemented according to paragraph 3 Article 23 and paragraph 3 Article 24 of this Decree.
3. Ranking bids shall be made based on the evaluated prices. Bid with the lowest evaluated price shall be ranked the first. In case of complex package, if deemed necessary Procuring Entity report the Investment Owner to allow bidder of the first ranking to preliminarily negotiate contract to facilitate the afterward contract negotiation and finalization upon bidding result.
Error correction is the act to correct the shortcomings in the bids including arithmetic errors, inconsistent errors, and decimal errors and implemented according to following principles:
a) For the arithmetic errors which are due to the incorrect plus, minus, multiply, divide calculations:
- In the case there is inconsistency between unit price and subtotal price, unit price shall be taken as legal basis for correction;
- In case there is inconsistency between the overall price list and the detailed price list, the detailed price list shall be taken as legal basis for correction;
b) For other errors:
- When the subtotal price is filled without responsive unit price, unit price shall be identified by dividing such subtotal to quantity;
- When there is unit price but the subtotal left unfilled, the subtotal price shall be identified by multiply the quantity with unit price;
- If any of the item has unit price and subtotal without the quantity, the quantity shall be identified by dividing the subtotal to unit price correspondingly. In case the quantity specified in this way presents difference to the quantity required by bidding documents, such difference shall be deemed as deviation of scope of supply and adjusted in accordance with paragraph 2 of this Article;
- Decimal error: misuse of “,” instead of “.” and vice versa shall be corrected according to Vietnamese practices.
Arithmetic shall be calculated in accordance with the total absolute value, regardless of the increase or decrease of the bid price after correction.
After making corrections in accordance with the above principles, Procuring Entity shall notify the bidders of such changes. Bidder shall accept such changes in writing. If the bidder does not accept the correction, its bid shall be rejected.
2. Deviation adjustment
Deviation adjustment is the adjustment of contents that are insufficient or redundant in accordance with requirements of bidding documents, as well as adjustment of differences between parts of bid; between technical and financial proposals; between number and writing; between content of bid form and other part of the bid. The adjustment shall be implemented as followings:
a) In case where there is deviation in scope of supply then the insufficient content shall be added, the redundant content shall be deducted in accordance with the principle that if it cannot be separated in the bid price of the bidder in question, then take the highest offering price of that content (in case insufficient offer) and take the lowest offering price of that content (in case of redundant offer) of other bids evaluated technically responsive. In the case where there is only 1 bid evaluated technical responsive, then take the price of this bidder (if any) or other bids or the price in the cost estimate, total cost estimate or in the approved estimated price of the package with the principle of taking the highest offering price (in case insufficient offer) or the lowest offering price (in case of redundant offer) to apply to the above content;
b) In case there is discrepancy between the technical proposal and the financial proposal, the technical proposal shall be legal basis for adjustment
c) In case there is inconsistence between the number and writing, the writing shall be legal basis for adjustment;
d) If there is discrepancy between price in the bid form (exclusive of discount) and price in the general price list, this will be considered deviation and adjustment shall be based on price in the general price list after error correction and deviation adjustment of detailed price list.
1. Submission, appraisal, approval, announcement of bidding result shall be according to Article 38, Article 39 of Law on Procurement and paragraph 2, paragraph 3 Article 19, Article 58, and Article 59 of this Decree.
2. Finalization of contract and signing the contract shall be as follows:
a) Finalization of contract and signing the contract shall be in accordance with Article 42 and Chapter III of Law on Procurement, Section 2 Chapter VI of Law on Construction.
b) In the case where contract finalization does not success, Investment Owner shall report to the person deciding investment or the authorized person to cancel the former bidding result and consider, approve to invite the next ranking bidder to be winning bidder as basis for finalization of the contract; in this case, there shall be the requirement to the bidder to extend the validity of bid and bid security if necessary.
1.Prequalification of bidders shall be implemented as stipulated in Chapter III of this Decree.
2.Preparation of bidding documents for stage 1
a) Basis for establishing the bidding documents shall be as stipulated in point a paragraph 2 Article 21 of this Decree;
b) Content of bidding document for stage 1 shall be as stipulated at point b, paragraph. 2, Article 21 of this Decree but exclude the requirements of bid price and bid security.
3.Approval of bidding documents shall be according to paragraph 3 Article 14 of this Decree.
4. Invitation for bids in stage 1 shall be implemented as stipulated in paragraph 4 Article 21 of this Decree.
a) Procuring Entity sell the bidding documents until before the deadline of bid submission to bidders in the list of prequalified bidders (in case of prequalification), bidders invited to participate in limited bidding or bidders interested in open bidding;
b) Adjustment and clarification of bidding documents shall be implemented as stipulated in paragraph 1 Article 33 and Article 34 of the Law on Procurement.
2. Receipt and handle the bids for stage 1
Procuring Entity shall receive and treat the bids submitted as “confidential” documents.
3. Opening of bids
Opening of bids shall be implemented as paragraph 3 Article 26 of this Decree. Minutes of bid opening shall exclude information of bid price and bid security.
4. Discussion on bids for stage 1
Basing on requirements as stipulated in the bidding documents, Procuring Entity shall discuss with each bidder to correct technical requirements. Content of the discussion shall be recorded in minutes as basis for establishment of bidding documents for stage 2.
Bidding documents for stage 2 shall make clear the detailed technical requirements, financial (including bid price) and commercial requirements as well as requirement of method for bid security.
The approval of the bidding document in stage 2 shall be implemented as stipulated in paragraph 3 Article 14 of this Decree.
2. Organization of bidding
Bidding documents for stage 2 shall be sold to bidders who submitted their bids in stage 1 at the price stipulated in paragraph 1 Article 6 of this Decree. Organization of bidding shall be implemented as stipulated in Article 26 of this Decree.
Submission, appraisal, approval and announcement of bidding result, finalization of contract and signing of contract shall be implemented as stipulated in Article 29 of this Decree.
Application of direct appointment shall be approved in procurement plan in accordance with regulations in Article 20 of the Law on Procurement and Article 101 of the Law on Construction.
The Prime Minister regulates special cases that direct appointment be applied as stipulated at point dd paragraph 1 Article 101 of the Law on Construction.
1. Direct appointment procedure of one procurement package includes:
a) Issuance of requirement documents;
b) Preparation of proposal;
c) Evaluation of proposal;
d) Submission, appraisal, approval of direct appointment result;
dd) Negotiation, finalization and signing of the contract.
2. Requirement documents
a) Procuring Entity shall set up the requirement documents, in which for consulting services it is unnecessary to set up the combined evaluation criteria; for package of goods, civil works and package of selection of general contractor (except for package of selection of general engineering bidder) it is unnecessary to state the factors for determination of evaluated price. The content of requirement documents is similar to bidding documents;
b) Investment Owner shall approve the requirement documents by himself in accordance with paragraph 2 Article 2 of this Decree in order that the Procuring Entity sends it to the proposed appointed bidder for preparation of proposal.
3. Proposal
The proposed appointed bidder prepares the proposal with content similar to bid, including technical proposal and financial, commercial proposal.
4. Evaluation of proposal
a) Procuring Entity shall evaluate the bidder’s proposal in accordance with criteria regulated in the requirement documents.
b) Bidder shall be proposed to be winner if the proposal meets in full following requirements:
- Having adequate capacity and experience in accordance with the requirement documents;
- Having technical proposal evaluated satisfactory to the requirement documents based on evaluation criteria;
- Having the proposed direct appointment price not exceed the cost estimate (estimated price) of package.
5. Submission, appraisal, approval of direct appointment result
a) Based on the report on direct appointment result, appraisal report, person deciding investment shall approve or delegate authority to approve the direct appointment result of consulting services package of estimated price from 500 million VND and over, the packageof goods, works, package of selection of general contractor (except package of selection of designing bidder) of estimated price from 1 billion VND and over; Investment Owner shall approve the direct appointment result of consulting services package of estimated price lower than 500 million VND, the package of goods or works of estimated price lower than 1 billion VND for procurement packages under projects as stipulated at paragraph 1 and paragraph 3 Article 1 of the Law on Procurement;
b) In the case of applying direct appointment for procurement packages under projects regulated at point c paragraph 1 Article 20 of the Law on Procurement, Investment Owner shall submit the report on direct appointment result to the Prime Minister (the case where Prime Minister shall directly approve) or the person authorized by the Prime Minister to approve as stipulated at paragraph 2 Article 41 of this Decree.
6. Negotiation, finalization and signing of the contract
Based on the decision on approval of the direct appointment result, Procuring Entity shall negotiate and finalize the contract with the selected bidder in order that Investment Owner sign contract.
7. In cases of force majeure caused by natural calamities and enemy-inflicted destruction, problems that need repairing immediately as stipulated at point a paragraph 1 Article 20 of the Law on Procurement, direct appointment procedure stipulated from paragraph 1 to paragraph 6 of this Article shall be exempted, but no latter than 15 days from the direct appointment date, Investment Owner or agencies responsible for management of that civil works or asset together with the bidder shall conduct the procedure to determine the quantity and cost of the work in order that two parties sign the contract as the basis for implementation and payment.
8. In case direct appointment is permitted to apply for the procurement package implemented prior to the investment decision, the agency assigned to prepare the project shall set up and approve the cost estimate as stipulated in paragraph 3 Article 20 of Law on Procurement. In this case, the cost estimate is the value equivalent to quantity of work approved by the leader of the agency.
9. In case of consulting services package of estimated price lower than 500 million VND, the package of goods or works of estimated price lower than 1 billion VND under projects of the major reconstruction or repair of state-owned enterprises stipulated at paragraph 3 Article 1 of the Law on Procurement, direct appointment may be applied if necessary but this has to conform with the direct appointment procedure stipulated from paragraph 1 to paragraph 6 of this Article
Application of the repeat order method shall be approved in procurement plan in accordance with regulations in Article 21 of the Law on Procurement for contracts that were signed with bidders selected through open bidding and limited bidding.
Repeat order procedure shall be implemented as follows:
1. Investment Owner shall approve requirement documents as the ground for the selected bidder to prepare the proposal.
2. Evaluation of proposals is carried out according to following contents:
a) Review the technical contents and unit price;
b) Update the bidder’s capability;
c) Evaluate the implementation progress;
d) Other contents (if available).
3. Submission, appraisal, approval of repeat order result
Based on the report on repeat order result, appraisal report, person deciding investment shall approve or delegate authority to approve the repeat order result.
Application of shopping in procurement of goods shall be approved in procurement plan in accordance with regulations in Article 22 of the Law on Procurement.
Procedure of shopping in procurement of goods shall be implemented as follows:
1. Requirement documents
Investment Owner shall approve requirement documents. Requirement documents include technical requirements such as quantity, standards, technical specifications, goods supplying schedule, validity period of the quotation, deadline for quotation submission, requirements of warranty, maintenance, training, transfer and other necessary relevant contents, and exclude the requirement of submitting bid security. Evaluation of technical requirements shall be done based on “pass”, “fail” criteria and shall be shown in the requirement documents.
2. Organization of shopping in procurement of goods
a) Procuring Entity shall announce requests for offer of shopping in procurement of goods on the procurement newspaper with 3 consecutive issues and on procurement website in order that interested bidders register to participate in bidding. Apart from above posting, Procuring Entity could post on other mass media. Time limit from posting to issuing requirement documents is at least 5 days from the date of first advertisement of shopping in procurement of goods;
b) Procuring Entity shall send the requirement documents to the interested bidders in order to get at least 3 quotations of 3 different bidders. Time for bidders to prepare their quotation is at least 3 days;
c) Bidders send quotations to the Procuring Entity by hand, post or fax. A bidder is allowed to send only one quotation;
d) Procuring Entity is responsible for the information security of the quotations. As soon as the deadline for quotation submission, the minutes of receiving quotation shall be recorded by Procuring Entity with the contents include: name of the bidders, the offering price, after-sale conditions, validity period of the quotation, and sent to the bidders who have submitted the quotations.
3. Evaluation of quotations
a) Procuring Entity shall evaluate quotations submitted in accordance with technical requirements of requirement documents. The quotation shall be evaluated technically responsive when all technical requirements are evaluated as “pass”.
b) Procuring Entity shall compare offering prices of all quotations evaluated technically responsive in order to determine the quotation of lowest offering price. The bidder who has the lowest offering price after error correction and deviation adjustment and not exceeding estimated price shall be proposed to select.
4. Approve result of shopping in procurement of goods and sign the contract
a) Based on the report on result of shopping in procurement of goods submitted by the Procuring Entity, appraisal report, person deciding investment shall approve the result of shopping in procurement of goods for packages of estimated price from 1 billion VND and over; Investment Owner shall approve the result of shopping in procurement of goods for packages of estimated price lower than 1 billion VND;
b) Procuring Entity shall notify the result of shopping in procurement of goods to all bidders who submitted their quotations and negotiate, finalize contract with the selected bidder in order that Investment Owner and the selected bidder sign the contract.
Application of force account method shall be approved in procurement plan in accordance with regulations in Article 23 of the Law on Procurement and point a of paragraph 1 of Articles 41, 50, 57, 75, 89 and point b paragraph 2 Article 45 of the Law on Construction.
Force account procedures are carried out ensuring the following conditions:
1. Investment Owner shall select based on the Law on Procurement a supervising consultant that is organizational and financial independent to the Investment Owner in accordance with applicable legislations. Investment Owner shall provide the necessary documents in order that the supervising bidder implements his tasks regulated at paragraph 2 of this Article.
2. Supervising bidder shall do the following tasks:
a) Supervise the implementation of procurement package of the Investment Owner in accordance with project, implementation solutions defined by the Investment Owner;
b) Check all goods, materials, equipment used for procurement package;
c) Acceptance of quantity of work implemented by the Investment Owner to lay the ground for payment.
Selection of consultant in package of architectural design for construction of works through a competition stipulated at paragraph 3 Article 97 of the Law on Construction shall be implemented in accordance with regulations in Article 102 of the Law on Construction.
1. Based on nature of packages that cannot apply the methods of bidder selection stipulated from Article 18 to Article 23 of the Law on Procurement and Article 97 of the Law on Construction, the Investment Owner shall submit the Prime Minister a proposal for bidder selection, ensuring competition and economic efficiency, and concurrently shall send it to Ministry of Planning and Investment, the line ministry of concerning field to have their comments and submit to the Prime Minister for consideration and decision.
2. In cases of specific issues of bidding regulated in other laws, the performance shall be in accordance with decrees guiding the implementation of those laws.
Chapter VII
DECENTRALIZATION OF RESPONSIBILITIES
OF APPRAISAL AND APPROVAL IN PROCUREMENT
1. For projects that the Prime Minister directly decided investment:
a) Approve the procurement plan;
b) Approve or delegate authority to approve the bidder selection result;
c) Approve or delegate authority to approve settlement of exceptional cases in procurement, settlement of procurement complaints and dealing with violations of legislations on procurement.
2. Approve or delegate authority to approve procurement plan, direct appointment result of procurement packages of projects involving national secrets; urgent projects for national interests, energy balance and security specified in point c paragraph 1 Article 20 of the Law on Procurement.
3. Approve or delegate authority to approve the proposal of bidder selection in special cases specified in Article 24 of the Law on Procurement.
1. For projects, packages directly approved by the Prime Minister:
a) Comment in writing on procurement plan, bidder selection results of procurement packages of related projects that the Prime Minister directly approved;
b) Be responsible for approval of bidding documents;
c). Be responsible for approval of other contents relating to procurement according to delegation of the Prime Minister.
2. For projects that the investment was decided by themselves:
a) Approve procurement plan;
b) Approve or delegate authority to approve bidding documents, bidder selection results of packages of projects, excluding direct appointment results of procurement packages directly approved by the Prime Minister specified in paragraph 2 Article 41 of this Decree.
1. Be responsible for approval of contents relating to procurement according to delegation;
2. Be responsible for approval of procurement plan, approve or delegate authority to approve bidding documents, bidder selection results of procurement packages of projects that the investment was decided by themselves.
1. For projects that the investment was decided by the Prime Minister and they are Investment Owners:
a) Approve bidding documents of procurement package that its bidder selection result would be directly approved by the Prime Minister;
b) Be responsible to approve contents relating to procurement according to delegation of the Prime Minister.
2. For projects that the investment was decided by themselves:
a) Approve procurement plan;
b) Approve or delegate authority to approve bidding documents, bidder selection results of procurement packages of projects, excluding direct appointment results of packages directly approved by the Prime Minister specified in paragraph 2 Article 41 of this Decree.
1. Approve procurement plan and bidder selection results of packages of projects that the investment decided by themselves based on the written agreement specified in paragraph 3 of Article 44 of this Decree.
2. Approve or delegate authority to approve bidding documents.
1. Ministry of Planning and Investment shall be responsible for appraisal of following contents:
a) Procurement plan of projects within the Prime Minister’s approval authority;
b) Bidder selection results of packages directly approved by the Prime Minister;
c) The proposal on bidder selection in special cases directly approved by the Prime Minister;
2. The Planning and Investment Departments shall be responsible for appraisal of following contents:
a) Procurement plan and bidder selection results of packages of projects directly approved by the Chairmen of the Province-level People Committees;
b) Bidding documents of packages that the Prime Minister assigns Chairmen of the Provincial People Committees to approve and of packages within the approval authority of Chairmen of the Province-level People Committees, the Planning and Investment Departments or Specialised Departments shall lead the appraisal;
c) Bidder selection results of packages that the Prime Minister assigns Chairmen of the Province-level People Committees to approve.
3. Responsibilities for the appraisal of bodies, organisations assigned by Ministers, Heads of ministerial-level agencies, Heads of other central agencies, boards of directors or directors of enterprises include:
a) Procurement plan, bidding documents and bidder selection results of all procurement packages of projects that the investment is within approval authority of Ministers, Heads of ministerial-level agencies, Heads of other central agencies, boards of directors or directors of enterprises;
b) Bidding documents, bidder selection results of procurement packages which the Prime Minister assigns Ministers, Heads of ministerial-level agencies, Heads of other central agencies, boards of directors or directors of enterprisesto approve.
4. For projects that investment is within the approval authority of Chairmen of the People Committees of cities under provincial, district government, its planning and investment division shall be responsible for appraisal of contents in bidding process.
5. For projects within the Chairman of the Commune-level People Committees, Heads of other local agencies, Boards of directors of joint-ventures, joint-stock companies, representatives of parties to a business cooperation contract, the relevant assisting division shall be responsible for appraisal of contents in bidding process.
6. For procurement packages that person deciding investment delegates authority to approve, authorized person is responsible for designating the division to appraise bidding documents and bidder selection results.
2. Complaints must be signed by the undersigned in the bid form, or a lawful representative of the bidder, and sealed (if any)
3. The person responsible to resolve complaints receive complaints within the time stipulated in paragraph 3 Article 72 of the Law on Procurement.
4. Complaints have not yet been lodged to the court.
5. With regard to complaints about bidder selection results, when lodging complaint to the person deciding investment, the bidders shall have to pay a fee in accordance with paragraph 3 of Article 6 of this Decree to the standing assistant panel of the Consulting Council as stated in the bidding documents; in case the complaint is concluded to be true, the fee shall be compensated by concerning individuals or agencies.
1. The period of resolving complaints stipulated in Article 73 of the Law on Procurement is counted from the date the administrative unit of the responsible person receives complaints.
a) The Chairman of the Consulting Council at Central level is the competent representative of the Ministry of Planning and Investment. Central Consulting Council is responsible to provide advice on resolution of complaints concerning the procurement package either approved or requested by the Prime Minister.
b) The Chairman of the Consulting Council at ministerial level, ministerial level agencies, governmental agencies and other central agencies (hereinafter referred to as Consulting Council at ministerial level) is the legitimate representative of the units that are entrusted with the function of procurement management. The Consulting Council at ministerial level is responsible to provide advice on resolution of complaints concerning the procurement packages of a project approved by the ministerial level or managed by sectoral level, exclusive of procurement packages stipulated in point a of this paragraph.
c) The Chairman of the Consulting Council at local level is the legitimate representative of the Planning and Investment Departments. The Consulting Council at local level is responsible to provide advice on resolution of complaints concerning procurement packages of a project approved or manage by that locality, exclusive of procurement packages stipulated in point a of this paragraph.
2. Members of the Consulting Council
Depending on the nature of each procurement package and in case of emergency, apart from members stated in paragraph 2 of Article 73 of the Law on Procurement, the Chairman of the Consulting Council may invite individuals to participate in as members of the Consulting Council. Members of the Consulting Council shall not be relatives (natural parents, parents-in-law, spouse, natural child, adopted child, son or daughter-in-law or sibling) of the person who is the undersigned of the complaint, individual participating in the evaluation of bids as a Procuring Entity, Investment Owner, individuals reviewing bidder selection results, and person making approval of bidder selection results.
3. Performance of the Consulting Council
a) The Chairman of the Consulting Council shall decide the establishment of the council within the maximum of 5 days from the receipt of complaints of bidders. The Consulting Council shall be ad-hoc.
b) The Consulting Council shall operate on the principles of collective leadership, decision making by a majority of votes, making and submission of work reports to the person deciding investment for consideration and decision; each member shall have the right to reserve his/her opinion and be responsible for his/her opinion before the law.
4. The standing assistant panel of the Consulting Council
a) The standing assistant panel is agency or organization that is entrusted with the task of procurement evaluation. It shall not include individual participating directly in the review of the procurement packages that are complained by the bidders.
b) The standing assistant panel shall perform the administrative tasks delegated by the Consulting Council; collect and manage fee paid by the bidders who lodge their complaints in accordance with paragraph 5 Article 47 of this Decree.
Chapter IX DEALING WITH VIOLATIONS OF PROCUREMENT LEGISLATIONS
2. The principles, procedures of settlement of violations and procedures to implement the decision of settlement of violations shall be subject to legislative regulations.
3. The decision of settlement of violations shall be forwarded to organizations or individuals being the settlers, Ministry of Planning and Investment, relevant agencies and organizations.
4. The decision of settlement of violations implemented in any locality, sector shall be of full force nationwide and in all sectors.
1. The person deciding investment shall be responsible to deal with the violation of the procurement legislations with regard to the project he/she approved in accordance with Article 60 of Law on Procurement. In case such person violates the procurement legislations, he/she shall be subject to the settlement in accordance with legislative regulations.
Depending on the nature and seriousness of the violation, organizations or individuals commit a violation of the procurement legislation in accordance with point b paragraph 1 Article 75 of the Law on Procurement shall be dealt with the following forms:
1. To be fined from VND 5 million to VND 20 million with regard to one of the conduct in violation:
a) The preparation, approval of bidding documents, requirement documents incompliant to the procurement legislations, resulting in the cancellation of bidding;
b) The evaluation of bids, proposals, evaluation, approval of bidder selection result without basis of requirements of bidding documents, requirement documents as well as the attached evaluation criteria, thus deviating the bidder selection result or leading to the cancellation of bidding;
c) The signing of contract incompliant to legislative regulations causing loss and damage to the interests of the State;
d) The conduct of violation that leads to the reorganization of bidding such as organization of bidding when there has yet been approved procurement plan, bidding documents, requirement documents.
2. To be fined from VND 20 million to 50 million with regard to one of the conduct in violation:
a) Arrangement, collusion between all bidders, bidder and Investment Owner, Procuring Entity, procurement specialist team, consultant formulating bidding documents, appraisal agency and organization, and person who approves the bidder selection result lead to the deviation in bidder selection result, resulting in the cancellation of bidding or selection of incapable bidders in accordance with paragraph 3 Article 10 of the Law on Construction;
b) The bidders contracted to implement construction works, supply of goods collude with the supervising consultant, check-and-accept organization to miscalculate the quality, quantity of the goods and works.
3. Apart from causing loss and damage to the interest of relevant parties prescribed in paragraph 1 and paragraph 2 of this Article, other losses and damages caused by the above mentioned conduct or other conduct of violation, the fine penalty shall be subject to relevant laws.
Prohibition from participation in bidding shall be imposed subject to the nature and seriousness of the violation, specifically as follows:
1. Prohibition from participation in bidding from six months to one year with regards to the following conduct in violation:
a) Violation of the provisions in paragraph 4 Article 12 of the Law on Procurement;
b) Violation of provisions in paragraph 5 Article 12 of the Law on Procurement, specifically:
Organizations, individuals prepare, review, approve the bidding documents of the goods and works packages, packages of selection of general contractor, in which designate requirements of a specific brand name, origin of goods.
c) Individuals belonging to the Investment Owner, Procuring Entity, bidding consultant, appraisal organization violate the procurement legislations prescribed in paragraph 9 Article 12 of the Law on Procurement;
d) Violation of the provisions in paragraph 6 Article 12 of the Law on Procurement;
dd) Violation of the provisions in paragraph 7 Article 12 of the Law on Procurement, specifically:
The person deciding investment allows to divide the project into procurement packages contrary to the provisions in paragraph 4 Article 6 of the Law on Procurement to implement direct appointment or create opportunities for few bidders to participate.
e) Violation of the provisions in paragraph 8 Article 12 of the Law on Procurement, as follows:
Investment Owner, Procuring Entity accept and propose winning bid with regards to bidders participating in bidding for goods, works of packages, which such bidders previously contracted to provide consulting services, exclusive of the case of EPC package, package of selection general engineering bidder, general contractor bidder, and general turnkey bidders.
g) Violation of the provisions in paragraph 10 Article 12 of the Law on Procurement, as follows:
Individuals directly participating in the organization of bidding, evaluation of bids, of the Investment Owners, the Procuring Entity, members of the procurement specialist team, consultant team, individuals participating directly in the appraisal of bidder selection result of appraisal agency, organization and the person who sign the bidder selection result do not withdraw from their assigned task when the person has signed the bidding form is their relatives (natural parent, parent-in-law, spouse, natural child, adopted child, son or daughter-in-law or sibling);
h) Violation of the provisions in paragraph 11 Article 12 of the Law on Procurement, as follows:
Organizations, individuals belonging to the Procuring Entity, Investment Owner, State treasury, financial management agencies, banks, check and acceptance agency put up difficulties for the issuance, payment and finalisation of contract signed between the Investment Owner and the bidder;
i) Violation of the provisions in paragraph 13 Article 12 of the Law on Procurement, as follows:
- Provision of one’s name as a bidder for procurement packages belonging to a project of an organization or agency for which such person worked within a period of one year from the date on which such person ceased from work for such agency and organization;
- Decision of bid winning for bidder which the undersigned of bid form is the person who has resigned within 1 year from the agency, organization managing the project and package in question;
k) Violation of the provisions in paragraph 12 Article 12 of the Law on Procurement, as follows:
The approval of the bidder selection method in the procurement plan other than open bidding when the conditions stipulated in Article 19 to Article 24 of the Law on Procurement and Article 100 and Article 101 of the Law on Construction have not been satisfied;
l) Violation of the provisions in paragraph 17 Article 12 of the Law on Procurement, as follows:
- The person deciding investment approves the procurement plan when the financial source for the procurement package has not yet been determined;
- The person deciding investment approves the bidder selection result when a financial commitment has not yet been made in case the procurement plan allow such financial source to be arranged by the bidders.
2. Prohibition from participation in procurement activities from one year to three years due to the following conduct in violation:
a) Violation of the provisions in paragraph 2 Article 12 of the Law on Procurement, as follows:
- Individuals using personal influence to force Investment Owner, Procuring Entity, procurement consultants, consultant specialist teams, agency, organization appraising the bidder selection result to propose the winning bidder irresponsive to the requirements of the bidding documents and evaluation criteria prescribed in the bidding documents;
- Individuals responsible to evaluate bids, approve the bidder selection result deliberately make a wrong report or act dishonestly to distort the bidder selection result, signing and execution of the contract;
- Bidders deliberately provide inaccurate information of bids to distort the bidder selection result, signing and execution of the contract;
b) Violation of the provisions in paragraph 14 of Article 12 of the Law on Procurement, as follows:
- Bidders use their name, signature and stamp to legalize their bids engage in artificial bidding, aiming to let another bidder win bid;
- Bidders permit other bidders to use their names, signature and stamp; bidders use other bidders’ names, signature and stamp to form a joint venture participating in bidding; upon winning bid they fail to act in accordance with the joint venture agreement; exclusive of the contract governing other stipulations;
- Bidders transfer up to 10% of the contracted work (after deducting the work undertaken by subcontractor) to other bidders; exclusive the event of giving reasonable reason and being approved by the Investment Owner;
- The Investment Owner, supervising consultant allow the bidder to transfer the contracted work without the permission of the person making investment decision, except the assigned task undertaken by subcontractor listed in the contract;
c) In violation of the provisions in paragraph 15 Article 12 of the Law on Procurement.
3. Prohibition from three to five years with regard to one of the following conduct of violation:
a) Violation of the provision in paragraph 1 Article 12 of the Law on Procurement;
b) Violation of the provisions in paragraph 3 Article 12 of the Law on Procurement;
c) Violation of the provisions in paragraph 12 Article 12 of the Law on Procurement.
4. Organizations, individuals are subject to warnings successive 5 times shall be prohibited from participation in bidding for 6 months. In case such organizations, individuals continue to commit a violation of the procurement legislation shall be prohibited from participation in bidding for one year, two years, three years for extra two conducts in violation correspondingly.
1.Standard procurement documents include: prequalification documents for goods, civil works; bidding documents and standard report on bid evaluation for consulting services, goods, civil works, and selection of general contractor;
2. The Ministry of Planning and Investment shall be responsible for issuing standard procurement documents.
1. Bidder shall be responsible for maintenance of works in the case where contract between Investment Owner and bidder has the content of works, be responsible for maintenance of goods the case where contract between investment owner and bidder has the content of goods in accordance with applicable laws.
2. Contents of maintenance, time of maintenance, relating costs and responsibilities of the parties (between Investment Owner and bidder) are stipulated in the contract.
Professional procuring agencies stipulated in paragraph 3 Article 9 of the Law on Procurement are organizations be established and operate in accordance with legislation on enterprises, legislation on procurement and other related laws.
1. In case of having reasons that need revising estimated price or package contents, Investment Owner shall carry out procedures of revising procurement plan pursuant to the legislations before the bid opening, except for stipulation of paragraph 6 of this Article.
2. In case approved cost estimate is lower than approved estimated price, approved cost estimate shall supersede estimated price to be the basis for consideration of bidder selection result; if approved cost estimate is higher than approved estimated price, Investment Owner shall report in writing to person deciding investment to consider adjustment of estimated price in procurement plan in order to ensure legal foundation of consideration of bidder selection result.
3. In case there are less than 3 bidders who submitted their bid at the deadline for bid submission, Procuring Entity shall immediately report to person deciding investment or authorized person for consideration and settlement within 2 hours so that either extension of deadline for bid submission to increase number of bids or opening of submitted bids for evaluation is accepted. In case procurement packages under the Prime Minister’s approval authority, relating Ministers, Heads of a Ministerial-level agency, Head of other central agencies, the Chairmen of Province-level People’s Committees or Boards of directors of enterprises which are directly established by decision of Prime Minister are responsible for settlement of exceptional procurement cases.
4. In case bidding documents allow bidder to make offer to one or separate parts of a package, bid evaluation and recommendation for contract award shall be carried out for separate parts, ensuring that total proposed winning price of all parts does not exceed the approved estimated price.
5. In case the bid has abnormal low unit price which put Procuring Entity at a disadvantage, Procuring Entity shall request the bidder to explain and clarify in written on those abnormal unit prices. If the bidder’s explanation is inadequately clear, those unusual unit prices shall be considered deviations and counted for in determination of evaluated price according to regulations as contents redundant or insufficient offer of bidder as compared with bidding document requirements as stipulated in Article 28 of this Decree.
6. In case the proposed winning price of bidders exceed approved estimated price, Procuring Entity shall report in writing to person deciding investment or authorized person for his consideration and decision on permitting the bidder re-offer price, or permitting the bidder re-offers price and concurrently reviews the approved estimated price and content of bidding documents if necessary.
7. In case only one bid evaluated technically responsive (for package of goods, civil work, selection of general contractor, except for selection of general engineering bidder), evaluated price shall not be determined, only the proposed winning price shall be determined as basis for consideration bidder selection result.
8. In case two bids pass technical evaluation and their marks or evaluated prices are the same, bidder who has lower proposed winning price shall be prioritised in rank, except for the cases of domestic preference stipulated in paragraph 2 Article 4 of this Decree.
9. In case the proposed contract signing price exceeds approved bid award price, Investment Owner shall report in writing to person deciding investment or authorized person for his consideration and decision.
10. In case the proposed winning price rendered by Investment Owner, appraisal body is abnormal or less than 50% of estimated price or approved cost estimated, then before approval of the bidder selection result, the person deciding investment or authorized person may use appropriate methods such as establishment of multi-sector appraising organization/body to appraise carefully for bidder’s bids or decide appropriate methods to be specified in the contract in order to assure the feasibility for the implementation process.
Besides the above stipulations, when there raises any cases, Procuring Entity, Investment Owner shall report to person deciding investment or authorized person for his consideration and decision.
Based on a report on bidder selection result by Procuring Entity, Investment Owner shall prepare report for submission to person deciding investment for approval and decision. Submission documents for approval of Investment Owner on bidder selection result include a report on bidder selection result and related documents.
1. Report on bidder selection result includes contents, as follows:
a)Legal foundation of bidder selection;
b)Content of procurement package;
c)Process of selection and evaluation of bids or proposals, or bidders’ offers.
d)Proposal on bidder selection result includes:
- Name of proposed winning bidder (including sub-contractors if necessary). In case of a joint-venture, all members’ names of the joint venture shall be specified;
- Proposed winning price or proposed bid award price (including taxes, contingencies, inflation, if necessary);
- Form of contract;
- Period of contract performance;
In case of no successful bidder, following settling solutions shall be recommended.
2. Related documents include:
a)Copies of investment decision and all documents for issuing investment decision; Certificate of business registration; Certificate of investment or decision of establishment, international treaties or agreement (if any); procurement plan;
b)Bidding documents, requirement documents;
c)Decision on establishment of procurement specialist team, contract with procurement consultants or with professional procuring agencies;
d)List of bidders who submitted their bids, proposals, bid opening minutes;
dd) Bids, proposals and related document on clarification, modification, and supplement;
e) Bids, proposals evaluation report of procurement specialist team, procurement consultants, professional procuring agency;
g) Documents on approval of fundamental contents of bidder selection process in accordance with regulations;
h)Contract negotiation minutes in case of package of consulting services;
i) Preliminary comments on bidder selection result of the foreign donors (if necessary);
1. Appraisal contents of bidder selection result include:
a) Review legal foundation of bidder selection organization;
b) Review procedures and time-limits relating to bidder selection according to regulations: time of notification of procurement information, issuance of bidding documents or requirement documents, time for preparation of bids or proposals, deadline for bid submission, bid opening time, time for evaluation of bids or proposals;
c) Review contents of evaluation of bids or proposals: evaluation minutes and comments on evaluation of each specialist, consolidation report of procurement specialist team, evaluation of procurement consultants or professional procuring agencies (if any), compliance of bid/proposal evaluation with requirements of approved bidding documents, requirement documents, evaluation criteria, accuracy level of evaluation;
d) Review un-clarified contents in submission documents for approval of bidder selection result;
dd) Different opinions (if any) between members of procurement specialist team, procurement consultants, professional procuring agency and procuring entity.
2. The appraisal report includes main contents as follows:
a) Overview of the project and package: main contents of the project and package, legal foundation of implementation of bidder selection.
b) Summary of implementation and proposal of the submitting agency on bidder selection result;
c) Comments on legal foundation, procurement implementation process, and proposal of submitting agency;
d) Recommendations on bidder selection result or solution to case that there presents inadequate basis to propose the bidder selection result.
3. The appraisal report submitted to person deciding investment as regulated in paragraph 2 of this Article shall be concurrently sent to Investment Owner and Procuring Entity.
3. The registration document of foreign bidder includes:
a) Operating registration form prepared by foreign bidder or representative of foreign bidder shall be in accordance with form issued by Ministry of Planning and Investment;
b) Notarized copy document of bidder selection result notification;
c) Notarized copy of passport for individual bidder; notarized copy of operating registration issued by competent agency of the country or territory of its nationality (enclosing translated notarized copy in English or Vietnamese) for organizational bidder.
4. Operating registration certificate will be issued free of charge to foreign bidder who operate in Vietnam;
5. Departments of Planning and Investment of the provinces and cities under the central Government where the foreign bidder located (hereinafter called the authority of issuing certificate of operating registration) shall be responsible to receive and consider the operating registration document of foreign bidder. Within 5 working days since the date of receiving adequate document according to paragraph 3 of this Article, foreign bidder will be issued the certificate by the authority of issuing certificate of operating registration (according to form issued by Ministry of Planning and Investment). At the same time, the Departments shall be responsible for notification in writing to other provincial Departments of Planning and Investment on operating registration of the foreign bidder in case the procurement package is implemented in those provinces.
In case of refusal to issue the certificate, the authority of issuing certificate of operating registration shall inform in writing the bidder about the reasons.
6. Operating registration certificate shall expire in following cases:
a) Expiration of the certificate as stated in the certificate;
b) Foreign bidder is suspended operation, dissolved, bankrupted according to legislation of Vietnam or of the country or territory of the bidder’s nationality.
7. In case the foreign bidder implements a number of packages that the implementation time of those packages are overlapped, bidder shall only prepare one document for operation registration in Vietnam for the period from implementation of first package till the end of last package.
8. In case the foreign bidder already got the operating registration certificate and such certificate is still valid, when the foreign bidder implement other packages in the region, the foreign bidder shall update information and notify the authority of issuing the certificate for issuance of additional certificate (according to form was issued by Ministry of Planning and Investment).
9. Foreign bidding winner in construction activities in Vietnam shall comply to paragraph 4 Article 7 of Law on Construction and Decision No. 87/2004/QD-TTg dated May 19th, 2004 of the Prime Minister on Regulations on management foreign bidder’s activities, and are exempted from stipulations from paragraph 1 to paragraph 8 of this Article.
1.The Ministry of Planning and Investment shall preside; organize oversight of procurement activities throughout the country. Ministries, Ministerial-level agencies, other agencies at central and provincial level, People’s Committees at all local levels shall oversee procurement activities of units under their respective management and units that implement projects that they decide the investment.
2.Oversight of procurement activities shall be implement regularly as plans or random checks (when there are complaints) according to decision of competent person of organization with oversight function.
3.Contents of procurement oversight include:
a)Oversight of the procurement training certificates, certificates relating to qualification of procurement staffs, specialists and legal foundation relating to bidder selection process;
b)Oversight of preparation of procurement plan according to following contents:
- Legal foundation;
- Contents of procurement plan, logicality of packaging and methods of bidder selection applied to packages;
- Implementation progress of packages according to approved procurement plan; Adjustment of procurement plan (if any) and reasons of adjustment;
- Submission and approval of procurement plan.
c)Check of bidder selection process for implementation of package according to following contents:
-Conformation to approved legal foundation such as procurement plan, bidding documents, requirement documents;
-Implementing procedures and schedules.
d)Identification of problems in procurement and recommendations to overcome.
4. After completion of oversight, there shall be report on oversight result. Responsible organization shall keep track of the problem solving stated in the oversight report.
2. For the package with bidding documents issued after the effective date of Law on Procurement (April 1st, 2006), implementation shall be according to Law on Procurement, as follows
a) From April 1st, 2006 till the effective date of this Decree, implementation shall be according to Law on Procurement and guiding document by Ministry of Planning and Investment No. 2820/BKH-QLDT dated April 21st, 2006;
b) From effective date of this Decree, implementation shall be according to Law on Procurement and this Decree.
3. Posting procurement information on the Public Procurement Bulletin issued and managed by Ministry of Planning and Investment shall be continuously implemented until the procurement newspaper issued under the guidance of Ministry of Planning and Investment.
4. Regulations on posting information on the procurement website, e-procurement, procurement training certificate and standard procurement documents, operating registration certificate of foreign bidder shall be implemented as per guidance by Ministry of Planning and Investment. For standard prequalification documents, standard bidding documents, implementation shall be according to appendixes attached to this Decree until detailed standard documents be issued.
5. Ministry of Finance shall be responsible for guidance of paragraph 2 Article 1 of the Law on Procurement for projects using State funds for procurement to maintain the regular operations of State agencies, political organizations, politico-social organizations, politico-social-professional organizations, social organizations, social-professional organizations or units of the national armed forces.
6. Ministry of Trade shall be responsible for guidance of import/export of goods procedures of foreign bidding winner.
7. Ministry of Construction within their scope of management shall be responsible for guiding necessary contents on bidder selection in construction activities, assuring conformation to the regulations of this Decree.
8. Ministries, Ministerial-level agencies, agencies belonging to the Government and other agencies at central and provincial level, People’s Committees at provincial levels are responsible for implementing guidance of some contents of this Decree within their scope of management (if necessary), assuring conformation to the regulations of this Decree.
9. Ministers, Heads of Ministerial agencies, Heads of agencies belonging to the Government and of other agencies at central level, the Chairmen of People’s Committee at different levels shall assign deputy to take direct responsibility for procurement activities within the scope their management. During implementation of this Decree, problems if arise must be reported to the Prime Minister for his consideration and decision. Ministries, Ministerial-level agencies, agencies belonging to the Government and other agencies at central level, People’s Committees at provincial levels, enterprises established by the Prime Minister must provide their annual report on the implementation of procurement activities to Ministry of Planning and Investment for consolidation and report to the Prime Minister.
This Decree shall come into effect 15 days after it is published on the Official Gazette. From the date of effectiveness of this Decree, Decree No. 88/1999/ND-CP dated September 1st, 1999, Decree No. 14/2000/ND-CP dated May 5th, 2000, and Decree No. 66/20003/ND-CP dated June 12th, 2003 shall become null and void. Former regulations of the Government, ministries, ministerial-level agencies, and provinces contrary to the Law on Procurement, Law on Construction and this Decree shall be abrogated.
Decree by Government No. 111/2006/ND-CP dated 29th September 2006 on Guiding implementation of Law on Procurement and selection of contractor bidder in accordance with Law on Construction
