Circular 21/2022/TT-BKHDT bidding dossiers for bidding packages to provide non-consultancy services regulated by CPTPP

CIRCULAR

Providing in detail the preparation of bidding dossiers for bidding packages to provide non-consultancy services regulated by the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, the Free Trade Agreement between the Socialist Republic of Vietnam and the European Union and the Free Trade Agreement between the Socialist Republic of Vietnam and the United Kingdom of Great Britain and Northern Ireland^[1]

Pursuant to the November 26, 2013 Bidding Law;

Pursuant to the Government’s Decree No. 95/2020/ND-CP of August 24, 2020, guiding the implementation of bidding for procurement under the Comprehensive and Progressive Agreement for Trans-Pacific Partnership;

Pursuant to the Government’s Decree No. 09/2022/ND-CP of January 12, 2022, amending and supplementing a number of articles of the Government’s Decree No. 95/2020/ND-CP of August 24, 2020, guiding the implementation of bidding for procurement under the Comprehensive and Progressive Agreement for Trans-Pacific Partnership,  to guide the implementation of bidding for procurement under the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, the Free Trade Agreement between the Socialist Republic of Vietnam and the European Union and the Free Trade Agreement between the Socialist Republic of Vietnam and the United Kingdom of Great Britain and Northern Ireland (below referred to as Decree No. 09/2022/ND-CP);

Pursuant to the Government’s Decree No. 86/2017/ND-CP of July 25, 2017, defining the functions, tasks, powers and organizational structure of the Ministry of Planning and Investment;

At the proposal of the Director of the Public Procurement Agency;

The Minister of Planning and Investment promulgates the Circular providing in detail the preparation of bidding dossiers for bidding packages to provide non-consultancy services regulated by the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, the Free Trade Agreement between the Socialist Republic of Vietnam and the European Union and the Free Trade Agreement between the Socialist Republic of Vietnam and the United Kingdom of Great Britain and Northern Ireland.

Article 1. Scope of regulation

This Circular provides in detail the preparation of bidding dossiers for bidding packages to provide non-consultancy services regulated by the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (below referred to as the CPTPP), the Free Trade Agreement between the Socialist Republic of Vietnam and the European Union (below referred to as the EVFTA) and the Free Trade Agreement between the Socialist Republic of Vietnam and the United Kingdom of Great Britain and Northern Ireland (below referred to as the UKVFTA), which are eligible for open bidding according to the single-stage one-envelope or single-stage two-envelope contractor selection method.

Article 2. Subjects of application

This Circular applies to organizations and individuals engaged or involved in the selection of contractors for the bidding packages to provide non-consultancy services referred to in Article 1 of this Circular.

Article 3. Application of forms of bidding dossiers for bidding packages to provide non-consultancy services

1. Application of forms of bidding dossiers:

a/ Form of bidding dossier for bidding packages to provide non-consultancy services No. 01 (Form No. 01) shall be applicable to bidding packages subject to open bidding according to the single-stage one-envelope contractor selection method;

b/ Form of bidding dossier for bidding packages to provide non-consultancy services No. 02 (Form No. 02) shall be applicable to bidding packages subject to open bidding according to the single-stage two-envelope contractor selection method.

2. For bidding packages to provide non-consultancy services subject to contractor appointment, it is allowed to apply this Circular to the preparation of dossiers of requirements, ensuring that such application does not contravene the CPTPP, EVFTA and UKVFTA.

Article 4. Preparation of bidding dossiers

1. The preparation, appraisal and approval of bidding dossiers for bidding packages to provide non-consultancy services must meet the following requirements:

a/ Depending on the scale and nature of each bidding package, to set appropriate requirements, ensuring adherence to principles of competition, equality, transparency and economic efficiency;

b/ To refrain from setting conditions to limit the participation of contractors or to create advantages for one or several contractor(s), thus causing unfair competition; to refrain from setting a requirement that contractors must be those having previously concluded and performed one or more than one contract with the procurement authority of a particular country or territory, or that contractors must have experience in providing services in the domain of such country or territory as a criterion for eliminating contractors;

c/ In case of modifying the form of bidding dossier, the organization or individual that prepares, appraises or approves the bidding dossier shall ensure that the modified contents are more appropriate and stringent than those stated in the form of bidding dossier and not contrary to the CPTPP, EVFTA and UKVFTA. A written request for approval of the bidding dossier must clearly state the modified contents against those stated in the form of bidding dossier and reason(s) for such modification for the project owner to make consideration and decision.

2. Requirements on key personnel and major equipment

a/ Requirements on key personnel:

- For a bidding package to provide non-consultancy services that does not require highly qualified personnel, the bidding dossier must not contain requirements on key personnel. In case non-consultancy services involve particular and complicated jobs which require knowledgeable and experienced personnel, the requirement on mobilization of key personnel may be set out for performance of such jobs. In this case, a written request for approval of the bidding dossier must clearly state reason(s) for the project owner to make consideration and decision. The project owner and the bid solicitor shall ensure that the requirement on mobilization of key personnel does neither limit the participation of contractors nor aim at creating advantages for one or several contractor(s), thus causing unfair competition. The bidding dossier must not set out personnel requirements on technical workers and unskilled labor;

- In case the key persons proposed in the bid dossier by the contractor do not meet the requirements stated in the bidding dossier, the bid solicitor may allow the contractor to give explanations and replace or add key persons who meet such requirements within a reasonable period. For each unqualified person, the replacement may be made only once. If the contractor has no replacement who meets the requirements stated in the bidding dossier, the bid dossier shall be eliminated.

b/ Requirements on major equipment (if any)

- Depending on the scale and nature of a bidding package, the project owner and the bid solicitor may set out a requirement on major equipment as appropriate (quantity, type, specifications, capacity);

- In case the equipment proposed in the bid dossier by the contractor does not meet the requirements stated in the bidding dossier, the bid solicitor may allow the contractor to give explanations and replace or add equipment which meets such requirements within a reasonable period. For each item of equipment not satisfying the above requirements, the replacement may be made only once. If having no replacement which meets the requirements stated in the bidding dossier, the contractor shall be eliminated.

c/ If winning the bid and signing a contract, the contractor shall be obliged to mobilize personnel and equipment as initially proposed or propose replacements under Points a and b of this Clause. In case of failure to mobilize personnel and equipment, the contractor shall be fined for breach of contract and subject to credit rating when registering to participate in other bidding packages;

d/ In all cases, if declaring untruthful information on personnel and equipment, the contractor may not replace other personnel and equipment under Points a and b of this Clause; the contractor’s bid dossier shall be eliminated and the contractor shall be regarded as committing frauds as specified in Clause 4, Article 89 of the Bidding Law and be handled under Clause 1, Article 122 of the Government’s Decree No. 63/2014/ ND-CP of June 26, 2014, detailing a number of articles of the Bidding Law regarding contractor selection (below referred to as Decree No. 63/2014/ ND-CP).

3. A bidding dossier must comprise a contract form and detailed terms and clauses of the contract as a basis for contractors to offer bids and for related parties to negotiate, finalize and conclude the contract. A contract must comprise general conditions, detailed conditions and the contract form. Depending on the scale and nature of each bidding package, the project owner may decide to modify the contract as appropriate, ensuring that such modification does not contravene the bidding law, the CPTPP, EVFTA, UKVFTA and relevant regulations.

Article 5. Organization of implementation

1. This Circular takes effect on November 20, 2022.

2. For bidding packages regulated by the CPTPP, EVFTA and UKVFTA with the date of bid opening taking place before the effective date of this Circular, the evaluation of bid dossiers and approval of bid winners must comply with the contents stated in the bidding dossiers but must not contravene the CPTPP, EVFTA and UKVFTA.

3. For bidding packages regulated by the CPTPP, EVFTA and UKVFTA with bidding dossiers issued before the effective date of this Circular but with the date of bid closing taking place after the effective date of this Circular and not becoming due, if there are some contents inconsistent with or contrary to those stated in the forms of bidding dossier issued together with this Circular, such contents shall be modified as appropriate. In case a bidding dossier is modified after it is issued, the project owner or the bid solicitor shall give contractors a reasonable period to prepare bid dossiers.

4. For bidding packages regulated by the CPTPP, EVFTA and UKVFTA with bidding dossiers approved before the effective date of this Circular but not yet issued, such dossiers shall be modified according to the forms of bidding dossier issued together with this Circular.

5. In case the legal documents referred to in this Circular are amended, supplemented or replaced, the amending, supplementing or replacing documents shall prevail.

6. To amend Clause 3, Article 31 of, and Clause 2.c, Table No. 01, Chapter II, Appendix 4 to, the Minister of Planning and Investment’s Circular No. 10/2022/TT-BKHDT of June 15, 2022, providing in detail the provision and publication of information and selection of investors on the Vietnam National E-Procurement System, as follows: To replace the word “investor” with the word “partner”.

7. The Minister of Planning and Investment’s Circular No. 11/2015/TT-BKHDT of October 27, 2015, providing in detail the preparation of dossiers of requirements for contractor appointment and competitive offer, ceases to be effective on the date this Circular takes effect. When preparing a dossier of requirements for a bidding package subject to contractor appointment, the project owner and the bid solicitor may apply the forms of bidding dossiers issued together with the Minister of Planning and Investment’s No. 08/2022/TT-BKHDT of May 31, 2022, providing in detail the provision and publication of information on bidding and investor selection on the Vietnam National E-Public Procurement System, ensuring that such application does not contravene the Bidding Law and Decree No. 63/2014/ND-CP.

8. The organizations listed in the Appendix to Decree No. 09/2022/ND-CP and related organizations and individuals shall report any problems arising in the course of implementation of this Circular to the Ministry of Planning and Investment for prompt consideration and guidance.-

Minister of Planning and Investment
NGUYEN CHI DUNG

* The forms issued together with this Circular are not translated.