Directive 47/CT-TTg bidding activities in development investment projects, regular purchase

THE PRIME MINISTER 

Directive No. 47/CT-TTg dated December 27, 2017 of the Prime Minister on on improvement of bidding activities in development investment projects and regular purchase funded by the state budget

Over the years, the promulgation and implementation of Law No. 43/2013/QH13 on bidding (hereinafter referred to as “Law on bidding”) and the Government’s Decree No. 63/2014/ND-CP providing guidelines for certain articles of Law on bidding in terms of selecting contractors and instructional Circulars issued by Ministries have effectively improved the management, instruction, inspection and supervision of bidding activities by regulatory authorities, project owners, procuring entities and bidders, gradually professionalize bidding activities. According to reports submitted by the Ministry of Planning and Investment, bidding activities by ministries and local authorities over the years have been carried out quite well, the average saving rate is quite good in 2016 (7.11%), quantity of contract packages from online bidding increases quickly in each year with high rate of execution and ensure transparence of information. Besides, to intensify, encourage and facilitate development of domestic products for gradually replacing imports, the Prime Minister promulgates the Directive No. 13/CT-TTg dated April 04, 2017 on increasing the use of domestic materials and goods for bidding on development investment projects and regular purchase funded by the state budget.

However, beside achievements, bidding activities by ministries, local authorities and enterprises also have many shortcomings such as the bidding period is prolonged due to subjective reasons, the bidding activities are not effective as expected; parties involved in the bidding (competent persons, project owners, procuring entities, bidding consultants, etc.) fail to fulfill their responsibilities as prescribed by law and let many mistakes and violations occur during the execution of contracts; there is still a situation of shifting responsibility to the Prime Minister for duties assigned in accordance with power; the transparence of information is not ensured as prescribed; violations have not been handled absolutely; transformation with complex and sophisticated expressions such as bid rigging, cover bidding, subdivision of contract packages for direct contracting, stipulation of unreasonable and inappropriate conditions in bidding documents, especially obstruction of the participation by contractors has not been eliminated.

To promptly remedy the abovementioned shortcomings and concurrently improve bidding activities to increase effectiveness of implementation of law on bidding, the Prime Minister issues the Directive which specify that:

I. REGARDING PROJECT OWNERS AND PROCURING ENTITIES

1.Project owners and procuring entities shall fulfill their responsibilities and ensure effective and timely selection of contractors in accordance with regulations of law. To be specific:

Ensure transparence during the issuance of bidding documents/ request for proposals and receipt of bid packages/proposals All actions aiming to obstruct the purchase of bidding documents/ requests for proposals and submission of bid packages/proposals by bidders are prohibited. Grasp and concentrate on direction on immediate improvement of bidding activities, ensuring the principle of competition, fairness, transparency and efficiency with the following main contents:

a) Regularly cooperate with local law enforcement authorities to ensure security and safety during the issuance of bidding documents/ request for proposals, submission of bid packages/proposals and execution of contracts.

b) When detecting violations of law on issuance of bidding documents/request for proposals by an organization or individual or obstruction of submission of bid packages/proposals, verify and deal with these problems within it powers or report them to competent persons, bidding authorities or security authorities for timely solutions.

c) Promptly and thoroughly deal with petitions and problems reported by bidders to ensure their legal rights and interests, prevent prolonged petitions and complaints.

d) Publish bidding documents/requests for proposals on the national bidding network in accordance with regulations of law, encourage ministries and local authorities to publish the bidding documents/requests for proposals on their websites and invite news agencies and the community’s representatives in the area to participate in the bid opening ceremony to increase transparency and community supervision.

dd) When organizing selection of contractors, specify names, phone numbers and addresses of procuring entities and phone numbers of officials in charge of issuance of bidding documents/request for proposals. If bidding consultancy services are used for providing assistance in issuing bidding documents/request for proposals, information on, phone numbers and addresses of bidding consultants will be added. Bidding documents/requests for proposals shall be issued in premises of project owners, procuring entities and bidding consultants (if any). A procuring entity is responsible for cases in which bidders cannot access bidding information, buy bidding documents/request for proposals because there is no seller, bidding documents/request for proposals are not enough so bidders have to take photos thereof or bidders are prevented from submitting bid packages/proposals.

e) Publish the hotline of bidding newspaper with the phone number 0243.768.6611 when issuing bidding documents/request for proposals in order that bidders report violations of law on bidding during the selection of contractors.

All violations, depending on their extent, shall be handled in accordance with regulations from Article 121 to Article 124 of the Decree No. 63/2014/ND-CP and other relevant regulations of law.

2. Publishing bidding information

Bidding information shall be published in accordance with regulations in Article 8 of Law No. 43/2013/QH13 on bidding; Articles 7 and 8 of the Decree No. 63/2014/ND-CP, directions provided by the Prime Minister and Chairman of the Vietnamese Fatherland Front at the convention of implementation of regulations on cooperation between the Government and the Vietnamese Fatherland Front (specified in the notification No. 138/TB-VPCP dated March 15, 2017 and document No. 3262/VPCP-QHDP dated April 05, 2017 of the Office of the Government) and the Joint Circular No. 07/2015/TTLT-BKHDT-BTC dated September 08, 2015 of the Ministry of Planning and Investment and Ministry of Finance providing guidelines for online provision and publication of bidding information and selection of contractors. To be specific:

a) The following information shall be published on the national bidding network:

-Regarding development investment projects and cost estimates for regular purchase activities, the following information shall be published: Plans for selecting contractors, invitation for EOI request; invitation for prequalification applications; invitation to bid; invitation for offer; Notification of cancellation, extension, adjustment and correction of posted information; short lists; results of contractor selection; results of bid opening in case of online bidding;

-Regarding public-private partnership projects (hereinafter referred to as “PPP project”), projects using land, the following information shall be published: Plans for selecting contractors, invitation for EOI request; invitation for prequalification applications; invitation to bid; invitation for offer; notification of cancellation, extension, adjustment and correction of posted information; short lists; results of investor selection; the list of projects using land and the list of PPP projects;

-Other information to be published includes legislative documents on bidding; bidding information instructors; information on bidding educational institutes; information on individuals issued with bidding practicing certificates; database on bidders/investors; information on foreign contractors or investors that are successful bidders and information on actions against violations of law on bidding.

b) To ensure transparence of bidding information enclosed with responsibilities of procuring entities, requesting that:

-Project owners and procuring entities shall post the information under their management in accordance with regulations of the Joint Circular No. 07/2015/TTLT-BKHDT-BTC on the national bidding network. The information shall be automatically extracted and posted on the bidding newspaper;

-If a procuring entity located in remote and isolated areas has obtained the digital identity but cannot post its information on the national bidding network, it shall send a written explanation which specifies reasons and confirmation of the failure to satisfy requirements for technology and information infrastructure provided by its supervisory authority. The bidding newspaper shall provide assistance in the first posting of information and provide instructions on procedures after receiving the proposal of the procuring entity. The procuring entity shall post its information on the national bidding network for the next time in accordance with regulations of law;

Project owners/procuring entities that fail to comply with regulations on posting bidding information shall face the penalties prescribed in Article 22 of the Government’s Decree No. 50/2016/ND-CP dated June 01, 2016 on penalties for administrative violations of regulations on planning and investment.

3.Online selection of contractors

a) The route map for online selection of contractors shall be followed according to the master plan and route map for online bidding in the period 2016 -2025 that have been approved by the Prime Minister in the Decision No. 1402/QD-TTg dated July 13, 2016 and the Joint Circular No. 07/2015/TTLT-BKHDT-BTC.

b) Project owners and procuring entities shall have plans for assigning officials in charge of bidding to take training courses in online bidding for execution thereof.

4.Control of bidding consultancy

A contract between the project owner, procuring entity and bidding consultant shall specify responsibilities of bidding consultants, handling of cases in which the bidding consultant violates or fails to satisfy the quality requirements and schedule prescribed in the contract. In all cases, project owners and procuring entities shall take responsibilities for selecting unqualified bidding consultants which leads to mistakes made by bidding consultants or violations committed by bidding consultants such as bid rigging, intentionally causing errors in preparation or appraisal of bidding documents/request for proposals, assessment of bid packages/proposals or bid rigging.

5.Preparation of bidding documents/request for proposals and assessment of bid packages/proposals

a) Regarding preparation of bidding documents/request for proposals

In case of technical construction, the project owner shall not impose conditions to obstruct the participation of bidders or to create an advantage for one or multiple bidders causing unfair competition and concurrently shall not impose excessive requirements to increase the quoted bid or to obstruct the participation of bidders or requirements for specific marks or origins of goods, including names of countries, group of countries or territories that cause discrimination.

Bidders are not required to submit sale licenses of producers or certificates of partnership or other equivalent documents regarding goods that are common, popular and available on the market, goods that have been standardized and maintained in accordance with regulations issued by their producers. Regarding particular and complicated goods require post-sale services such as maintenance, repair, provision of accessories and materials for replacement, etc, bidding documents/request for proposals may require sale licenses of producers, certificates of partnership or equivalent documents During the assessment of bid packages/proposals, bidders that fail to provide licenses of producers, certificates of partnership or other equivalent documents in their bid packages/proposals shall explain, provide additional documents and only receive contracts after providing the abovementioned documents.

Requirements aiming to obstruct the participation of bidders such as people involved in execution of contract packages must participate in social insurance or register their contracts signed with bidders; construction equipment must be owned by bidders and must not be leased or used for executing similar contracts in a specific area or requested capacity or experience of bidders is higher than those required in the contract packages, etc shall not be imposed.

Bidding documents/requests for proposals shall be prepared scientifically, objectively and in accordance with the specific requirements of each contract package, ensuring compliance with regulations, without orientation, creating advantages or obstructing the participation of one or some contractors.

b) Regarding assessment of bid packages/proposals

Assessment of bid packages/proposals shall be carried out in accordance with regulations of law on bidding and according to requirements specified in bidding documents/request for proposals, contents of bid packages/proposals and documents clarifying bid packages/proposals (if any) and ensure objectiveness, justice and transparency. If there is a bidder’s information required to be clarified, this bidder shall provide additional documents without any change in main contents of the submitted bid package/proposal and the quoted bid.

Organizations and individuals committing violations of regulations on preparing bidding documents/request for proposals or assessing bid packages/proposals, depending on their extent of violations, shall face penalties in accordance with regulations of Article 121 and Article 124 of the Decree No. 63/2014/ND-CP and relevant regulations of law.

II.REGARDING APPRAISING ORGANIZATIONS

Appraising organizations shall work independently when carrying out appraisals and ensure objectiveness, truthfulness and justice. Appraising organizations are entitled to request project owners and procuring entities to provide sufficient relevant documents.

Appraising organizations are entitled to reserve their opinions and shall take responsibility for appraisal reports. The appraisal shall have its quality, time limit and contents ensured as prescribed in the Circular No. Circular 19/2015/TT-BKHDT dated November 27, 2015 of the Ministry of Planning and Investment on making appraisal reports during contractor selection process.

When appraising plans for selecting contractors, an appraising organization shall comply with regulations of the Joint Circular No. 07/2015/TTLT-BKHDT-BTC and propose online bidding regarding eligible contract packages; pursuant to Law No.43/2013/QH13 on bidding and the Decree No. 63/2014/ND-CP, refuse to allow direct contracting regarding contract packages that fails to satisfy all of the conditions prescribed in Article 22 of Law No. 43/2013/QH13 on bidding, concurrently propose methods for selecting contractors that are more competitive regarding contract packages to which only direct contracting is applied but the application of other methods for selecting contractors is more effective.

III.REGARDING COMPETENT PERSONS

A competent person shall:

1.Direct the project owner, the procuring entities and assessing authority to comply with regulations of law on bidding. Hasten the selection of contractors (focus on period of assessment of bid packages/proposals, appraisal and approval) and execution of contracts.

2.Prohibit competent persons from abusing their positions and powers to make illegally intervention in the process of contractor selection by the project owner/ procuring entity which leads to untrue results of contractor selection.

3.Make decisions and take responsibility for the contractor selection within his/her power. Not request the Prime Minister to consider and decide method for selecting contractors in the special cases prescribed in Article 26 of Law No. 43/2013/QH13 on bidding if contract packages are eligible for applying the methods for selecting contractors prescribed from Article 20 to Article 25 of Law No. 43/2013/QH13 on bidding.

4.Solve problems arising during the contractor selection within his/her powers, not shift responsibility for solving the problems under their responsibilities such as handling of cases and petitions during the bidding period.

5.Impose penalties for and issue decisions on prohibiting organizations and individuals committing violations within his/her powers and in accordance with regulations in Clause 3 Article 90 of Law on bidding, promptly and absolutely eliminate shortcomings in bidding activities within his/her management.

IV.REGARDING AUTHORITIES AND ORGANIZATIONS MANAGING BIDDING ACTIVITIES AFFILIATED TO MINISTRIES AND LOCAL AUTHORITIES, STATE GROUPS AND CORPORATIONS

An authority or organization managing bidding activities (hereinafter referred to as “supervisory organization”) shall inspect, supervise and ensure quality of bidding activities, promptly detect and propose actions against violations. Contents of the inspection and supervision shall comply with regulations of the Circular No.10/2016/TT-BKHDT dated July 22, 2016 of the Ministry of Planning and Investment providing detailed guidelines for supervision and inspection of bidding activities and include supervising the compliance with regulations of law on bidding during the selection of contractors and investors; inspecting the promulgation of guiding and directive documents on bidding, assignment of responsibilities in bidding activities; inspecting the training in bidding; inspecting the formulation and approval for plans for selecting contractors or investors; inspecting the selection of contractors or investor (including the online selection); conclusion of contracts; inspecting reports on bidding activities; inspecting supervision and inspection activities associated with bidding and inspecting other activities related to bidding.

Supervisory organizations shall focus on inspecting large and complicated contract packages, contract packages exceeding limits but subject to direct contracting and contract packages having multiple petitions, complaints and denunciations. During the inspection and supervision, published information on bidding shall be inspected in accordance with regulations of law on bidding.

Supervisory organizations shall carry out regular and advanced inspections of bidding activities. Inspections shall satisfy requirements, have their quality ensured and facilitate the early and sufficient detection of violations for timely solutions. Concurrently, inspection and supervision of compliance with inspecting conclusions, especially actions against violations shall be intensified.

Supervisory organizations shall regularly collect information, feedbacks and petitions on negative acts and violations in bidding activities for timely verification and handling. In case of necessity or detecting serious violations, supervisory organizations shall propose surprise inspections. According to extent of violations, supervisory organizations shall request competent persons to cancel, suspend the bidding or invalidate results of contractor selection or decisions in accordance with regulations in Article 123 of the Decree No. 63/2014/ND-CP.

V. MINISTRIES, MINISTERIAL AGENCIES, PEOPLE’S COMMITTEES AND STATE ECONOMIC GROUPS AND STATE CORPORATIONS.

Ministries, ministerial agencies, People’s Committees, state economic groups and state corporations shall take full responsibility for effectiveness of bidding management; Direct their affiliated entities to promptly deal with petitions in accordance with regulations in Article 91 and the procedures prescribed in Article 92 of Law on bidding, regularly collect information and carry out inspections and supervisions to promptly detect and take actions against violations; Consolidate and submit regular reports on bidding activities in accordance with regulations and law, sufficiently and seriously fulfill responsibilities of competent persons or project owners prescribed in Law on bidding.

Ministers, Chairmen/Chairwomen of People’s Committees, heads of state economic groups and state corporations shall be accountable to the Prime Minister for violations under their management.

VI.IMPLEMENTATION

1.Ministries, ministerial agencies, People’s Committees, state economic groups and state corporations shall:

a) Thoroughly and comprehensively provide the contents of this Directive for project owners, procuring entities, appraising organizations, competent persons of projects or cost estimates and their affiliated supervisory organizations in the regions and domains under their management;

b) Seriously impose penalties to organizations and individuals that commit violations of law on bidding and fail to comply with this Directive and be accountable to the Prime Ministers for violations (if any);

c) Direct project owners and procuring entities to comply with this Directive and take responsibility for results of implementation of this Directive, especially the publication of information and online bidding according to route maps approved by the Prime Minister in the Decision No.1402/QD-TTg dated July 13, 2016, the Joint Circular No. 07/2015/TTLT-BKHDT-BTC and requirements in Section 2 Part I of this Directive, make performance results of these tasks become one of the criteria on assessing level of task fulfillment. If there are serious violations during the contractor selection such as bid rigging, obstruction of participation of bidders, etc. according the extent of violations, they shall face penalties in accordance with regulations of law.

d) Comply with regulations of the Government’s Resolution No. 60/NQ-CP dated July 8, 2016, not distribute or transfer capital to other projects in case of projects whose project owners or procuring entities determined to commit violations of law on bidding, which leads to prolonged petitions, complaints and denunciations by bidders and affects the progress of projects and contract packages.

2.The Ministry of Planning and Investment shall:

a) Take charge and cooperate with Ministries, ministerial agencies and People Committees in inspecting and supervising bidding activities in the whole country, especially contract packages having multiple feedbacks and complaints about negative acts;

b) Provide project owners and procuring entities with assistance in and instructions on registering digital identity and posting information in accordance with regulations of law.

c) Consolidate and submit annual reports on bidding activities which contain appraisals of contractor selection results, posting of information, actions against violations and results of implementation of other contents of this Directive to the Prime Ministry and post them on the national bidding network via the link http://muasamcong.mpi.gov.vn.

3.Ministries, ministerial agencies, People Committees, project owners, procuring entities and affiliated bidding authorities, appraising authorities and relevant organizations and individuals shall implement this Directive and other relevant regulations.

The Prime Minister

Nguyen Xuan Phuc