Circular No. 01/2004/TT-BKH dated February 02, 2004 of the Ministry of Planning and Investment guiding the implementation of the Decree No. 66/2003/ND-CP dated June 12, 2003 on amendments and supplements to a number of articles of the bidding regulation

CIRCULAR

66/2003/ND-CP OF JUNE 12, 2003 ON AMENDMENTS AND SUPPLEMENTS TO A NUMBER OF ARTICLES OF THE BIDDING REGULATION

Pursuant to Article 4 of the Governments Decree No. 66/2003/ND-CP of June 12, 2003 (hereinafter called Decree 66/CP for short) on amendments and supplements to a number of articles of the Bidding Regulation promulgated together with the Governments Decree No. 88/1999/ND-CP of September 1, 1999 and Decree No. 14/2000/ND-CP of May 5, 2000 (hereinafter called Decree 88/CP and Decree 14/CP for short), and on the basis of the Prime Ministers opinions guiding the implementation of Decree 66/CP (in Document No. 1336/CP-CN of October 2, 2003), the Ministry of Planning and Investment hereby guides the implementation of a number of contents of Decree 66/CP as follows:

Part 1

LEGAL CAPACITY OF CONTRACTORS, FINANCIAL INDEPENDENCE OF CONTRACTORS

(Prescribed at Point 10, Clause 2, Article 1 of Decree 66/CP)

I. CIVIL LEGAL CAPACITY AND CIVIL ACT CAPACITY OF CONTRACTORS

The civil legal capacity and civil act capacity of domestic contractors shall be determined under the provisions of the Civil Code of the Socialist Republic of Vietnam while the civil legal capacity and civil act capacity of foreign contractors shall be determined according to the laws of the countries of their nationalities. Specifically, the following conditions must be met:

1. For contractors being domestic organizations

2. For contractors being foreign organizations

Having lawful operation registration papers, granted by competent bodies of the countries of the contractors nationalities.

3. For contractors being individuals

Vietnam, granted by competent bodies, or lawful passports (for foreign individuals);

II. FINANCIAL INDEPENDENCE OF CONTRACTORS

A contractor shall be considered financially independent if meeting fully the following conditions:

1. Being an independent cost-accounting unit;

2. Sharing no common economic benefits with concerned organizations and individuals:

The contractors lawful representatives have no relatives, who are their spouses, parents, children or blood siblings, participating in the bid solicitors or the teams of experts and/or consultants involved in evaluating bids or evaluating the bidding results of the bidding packages which the contractors participate in.

Part 2

TECHNICAL EVALUATION ACCORDING TO THE CRITERIA "SATISFACTORY" AND "UNSATISFACTORY" APPLICABLE TO GOODS PROCUREMENT OR CONSTRUCTION

(Prescribed in Clause 9, Article 1 of Decree 66/CP)

I. GENERAL PROVISIONS

The evaluation of bids for goods procurement or construction shall comply with the provisions of Article 30 and Article 41 of the Bidding Regulation promulgated together with Decree 88/CP, which are guided in Chapter II and Chapter III, Part Four of Circular No. 04/2000/TT-BKH of May 26, 2000 of the Ministry of Planning and Investment (hereinafter called Circular 04 for short).

The application of the method of technical evaluation according to the criteria "satisfactory" and "unsatisfactory" must be clearly stated in the bidding dossiers and shall be effected in the following cases:

1. Small-sized bidding packages;

2. Bidding packages with clearly and precisely identified requirements on their technical characteristics and parameters.

II. ELABORATION OF TECHNICAL EVALUATION STANDARDS

The elaboration of technical evaluation standards should comply with the provisions of Point 2 of Clause 12 and Point 2 of Clause 15, Article 1 of Decree 66/CP, covering the following contents:

1. Elaboration of general evaluation standards

The determination of the list of general evaluation standards should be based on the nature of bidding packages under the provisions of Point 2, Clause 12, Article 1 of Decree 66/CP (for goods procurement bidding packages) and of Point 2, Clause 15, Article 1 of Decree 66/CP (for construction bidding packages).

For general evaluation standards, only the criteria "satisfactory" and "unsatisfactory" shall be used.

2. Elaboration of detailed evaluation standards

In order to have the bases for evaluating bids according to each of the general evaluation standards, it is necessary to elaborate detailed standards for each of the general evaluation standards.

For detailed evaluation standards, depending on the characteristics of bidding packages, apart from the criteria "satisfactory" and "unsatisfactory" prescribed for the basic requirements of bidding dossiers, the criterion "acceptable" may be applied to non-basic requirements, which, however, must not exceed 30% of the total number of detailed evaluation standards for one general evaluation standard.

3. Setting of the satisfactory level:

- A general evaluation standard shall be considered "satisfactory" when:

+ All of its detailed evaluation standards are evaluated as "satisfactory" or;

+ The detailed evaluation standards for basic requirements must be evaluated as "satisfactory," while those for non-basic requirements may be evaluated as "satisfactory" or "acceptable," depending on each bidding package.

- If any requirement, basic or not, of a detailed evaluation standard is evaluated as "unsatisfactory," then the corresponding general evaluation standard shall be also considered "unsatisfactory."

- A bid which is evaluated as satisfactory" according to general evaluation standards shall be considered technically satisfactory (basically meeting the requirements of the bidding dossiers). When a general evaluation standard is evaluated as "unsatisfactory," the concerned bid shall be considered technically unsatisfactory.

- The detailed evaluation standards which are permitted to apply the criterion "acceptable" must be clearly stated in the process of negotiating and finalizing the contracts so as to guaranty the feasibility as compared with the requirements of bidding dossiers.

III. EVALUATION ACCORDING TO THE CRITERIA "SATISFACTORY" AND "UNSATISFACTORY"

The evaluation according to the criteria "satisfactory" and "unsatisfactory" must be based on the evaluation standards specified in the bidding dossiers and it is forbidden to omit, add or alter any contents of such evaluation standards,

1. To evaluate only bids which have passed the preliminary evaluation under the guidance in Section I, Chapter II (for goods procurement bidding packages) and Section I, Chapter III (for construction bidding packages), Part Four of Circular 04.

2. The financial and commercial evaluation shall be conducted only for short-listed contractors that have been assessed as technically satisfactory (according to the criteria "satisfactory" and "unsatisfactory") and under the provisions of Clause 2, Section II, Chapter II (for goods procurement bidding packages) and Clause 2, Section II, Chapter III (for construction bidding packages), Part Four of Circular 04.

IV. ILLUSTRATIVE EXAMPLES

Examples to illustrate the elaboration of evaluation standards and the technical evaluation of bids according to the criteria "satisfactory" and "unsatisfactory" are shown in Appendix I to this Circular (not printed herein).

Part 3

PROCESS OF ORGANIZING EPC BIDDING PACKAGES

(Prescribed in Clause 5, Article 1 of Decree 66/CP)

The selection of contractors to perform EPC bidding packages may be conducted in any of the appropriate contractor-selecting forms prescribed in Article 4 of the Bidding Regulation promulgated together with Decree 88/CP on the condition that it must be incorporated in the bidding plans approved by competent persons as the basis for implementation.

In cases where the form of public bidding or restricted bidding is applied to select contractors for EPC bidding packages, the implementation process must comply with the provisions of Article 20, Article 22 and Article 33 of Decree 88/CP and Clause 5, Article 1 of Decree 66/CP, using the 2-step bidding mode defined in Clause 3, Article 5 of Decree 88/CP. Accordingly, the EPC bidding shall be organized in the following process:

I. BIDDING PREPARATION

1. Pre-qualification

The pre-qualification must be organized for EPC bidding packages each valued at VND 300 billion or more. The pre-qualifying process shall comply with the provisions of Article 23 and Article 34 of Decree 88/CP and Chapter II, Part One of Circular 04, with attention being paid to the following:

- The minimum score required for passing the pre-qualification must be set to be equal to 70% or more of the total score.

- The minimum score required for each criterion: experience, technical capability and financial capability, must be set to be equal to 50% or more of the score of such criterion in each of the engineering (E), procurement of equipment and supplies (P) and construction (C) domains.

c/ Pre-qualification invitation notices must be published under the provisions of Clause 2, Section I, Part 4 of this Circular, with the following principal contents:

- The name and address of the bid solicitor;

- General introductions on the bidding package;

- Instructions for inquiry into the pre-qualification invitation dossiers;

- Instructions on the time and place for receiving pre-qualification invitation dossiers.

2. Bidding dossiers

2.1. Bidding dossiers shall be prepared on the following bases:

2.2. Bidding dossiers for stage 1 and stage 2 include the following principal contents:

The elaboration of standards for evaluation of bids shall comply with the provisions of Clause 5, Clause 12 and Clause 15, Article 1 of Decree 66/CP, with reference to the guidance at Point a, Point b and Point c, Clause 3, Section I, Chapter II, Part Three of Circular 04, covering the following specific contents:

The standards for technical evaluation of EPC bidding packages must comply with the provisions of Clause 5, Article 1 of Decree 66/CP, specifically as follows:

- The evaluation standards must cover all three contents, engineering (E), procurement of equipment and supplies (P) and construction (C), including the setting of the minimum technical score required .

- Contractors shall be considered technically satisfactory when they get the evaluation scores not lower than 90% of the total technical scores.

On the basis of the above-said principles, the elaboration of the standards for technical evaluation of EPC bidding packages shall be conducted with either of the following two methods:

Method 1: To set the minimum technical score required (E, P and C) to be equal to 90% of the total technical score. This method shall be applied when each of the contents (E, P and C) of EPC bidding packages is subject to high technical requirements.

Method 2: To set the minimum technical score required for each content (E, P and C), to be not necessarily equal to 90% of the total technical score, which, however, must comply with the provisions on the minimum scores required for bidding packages purely engineering (E), purely supplies and equipment procurement (P) or purely construction (C ). Accordingly, in normal cases, the required minimum score required for one content (E, P or C) must be set not to be lower than 70%; whereas in the cases involving high technical requirements, the required minimum score must be set to be equal to 90% of the total technical score.

Concurrently, the standards for general technical evaluation of all three contents E, P and C shall be also determined. The coefficient of correlation between the contents E, P and C (for example, E accounting for 30%, P, 50% and C, 20% of the total general technical score) shall be determined depending on the characteristics of each specific bidding package, provided that the required minimum score must be equal to 90% of the total general technical score.

This method shall apply when not every content E, P and C is subject to high technical requirements.

The contents of detailed evaluation standards for each of the contents E, P and C should be based on the relevant provisions of Decree 88/CP and Circular 04.

The method of evaluating the bids satisfaction of technical requirements shall be used to compare and classify contractors. In cases where the evaluation standards are determined by method 1, contractors that satisfy technical requirements for EPC bidding packages are those with their bids gaining, after being evaluated according to each of the contents E, P and C, at least 90% of the total technical score . In cases where the evaluation standards are prescribed by method 2, contractors that satisfy technical requirements for EPC bidding packages are those with their bids getting at least 90% of the total general technical score.

The elaboration of standards on a single plane for determining evaluation prices shall comply with the provisions of Point 3, Clause 12 (for goods procurement bidding packages) and Point 3, Clause 15 (for construction bidding packages), Article 1 of Decree 66/CP.

- The reference articles on designing consultancy, management, operation and transfer;

- Capacity, efficiency, technology requirements and requests to identify the origins of goods and technologies;

- Quality,

- Environmental requirements;

- Other requirements (if any).

- Bidding application form;

- Bid form;

- Bidding guaranty form;

- Contract performance guaranty form;

- Advance guaranty form;

- Form of declaration of partners and/or sub-contractors;

- Form of financial status report;

- Form of

- Other forms (if any).

3. Bid invitation

Bid invitation shall be made in the form of bid invitation notices for bidding packages subject to public bidding without pre-qualification or bid invitation letters sent to contractors participating in restricted bidding or to pre-qualified contractors (in cases where pre-qualification has been organized). Bid invitation notices shall comply with the provisions of Clause 3, Section I, Part 4 of this Circular. Bid invitation letters must be sent at least 7 days before the issuance of bidding dossiers.

II. ORGANIZATION OF BIDDING AND BID CONSIDERATION

1. Stage 1:

Bid solicitors shall issue stage-1 bidding dossiers either with some charge or free of charge to contractors participating in the biddings or to pre-qualified contractors.

After issuing the stage-1 bidding dossiers, bid solicitors shall have to clarify their contents at the requests of contractors or at pre-bidding meetings held by themselves. Stage-1 bidding dossiers may be clarified through direct or indirect exchanges provided that such exchanges must be recorded in writing and be sent to all contractors participating in the biddings.

After receiving the stage-1 bidding dossiers, contractors shall prepare their bids (without price offers) properly in terms of content and form as required by the stage-1 bidding dossiers and submit them within the time limits prescribed in the stage-1 bidding dossiers.

Bid solicitors shall receive and manage the submitted bids strictly according to the regulations in the stage-1 bidding dossiers and manage them according to law provisions on confidentiality.

Immediately after the closing of the bidding, bid solicitors must organize the public opening of bids under the provisions of Clause 9, Article 1 of Decree 66/CP and Section VI, Chapter III, Part One of Circular 04.

Basing themselves on the requirements stated in the stage-1 bidding dossiers, bid solicitors shall meet with contractors to reach agreement on the technical requirements and standards so that the bid solicitors prepare stage-2 bidding dossiers.

2. Stage 2:

2.1. The stage-2 steps of from issuing bidding dossiers to opening bids shall be the same as from step a/ to step e/ of stage 1. Stage-2 bidding dossiers should be precise in their technical, financial and commercial requirements so that the contractors having participated in stage 1 can prepare official bids.

2.2. Evaluation of stage-2 bids

Basing themselves on the evaluation standards set in the stage-2 bidding dossiers, bid solicitors shall evaluate bids in the following order and on the following principles: Bids shall be examined and evaluated at the subsequent step only after they have been evaluated as satisfactory at the preceding step. The evaluation of bids shall unfold in the following order:

To check the bids legal and administrative validity, the contractors experience and capability, their satisfaction of the prerequisites stated in the bidding dossiers,

Step 1: Technical evaluation to select contractors that basically satisfy the requirements of the bidding dossiers. The technical evaluation shall be conducted on the basis of a score scale. In the process of evaluation, the bid solicitors may request contractors to explain unclear and unreasonable contents in their bids, such as those related to quantities, unit prices and other contents. Such explanations must be recorded in writing and signed for certification by the two parties. The short list of contractors that satisfy technical requirements must be considered and officially approved in writing by the project owners.

Step 2: Financial and commercial evaluation to determine evaluation prices: The financial and commercial evaluation shall comply with the provisions of Clause 2, Section II, Chapter II, and Clause 2, Section II, Chapter III, Part Four of Circular 04, with attention being paid to the following:

- When conducting the evaluation, the detailed unit price of each job of engineering, equipment and supplies procurement and construction should be analyzed to determine the rationality of the bid prices.

- For irrational unit prices (or costs) constituting bid prices which are too low compared with the approved prices of the bidding packages, the contractors must clearly justify them with plausible grounds.

- The standards put to a single plane for determining the evaluation prices should cover the following principal contents:

+ The useful life;

+ The designed capacity;

+ The quality standards of products;

+ The quality of equipment and supplies to be used for construction and installation;

+ Operation and maintenance costs;

+ The origins of equipment and supplies;

+ Financial and commercial conditions;

+ Contractual terms;

+ Other contents.

The number of contents to be selected and put to a single plane shall depend on each bidding package.

III. SUBMISSION FOR APPROVAL, EVALUATION, APPROVAL AND PUBLICIZATION OF BIDDING RESULTS, NEGOTIATION AND FINALIZATION OF CONTRACTS

The submission for approval, evaluation, approval, publicization of bidding results, negotiation and finalization of contracts shall comply with the provisions in Part Five of Circular 04.

Bid-winning contractors shall have to properly perform the signed contracts, including also the use of sub-contractors as stated in their bids. Where sub-contractors must be changed due to objective reasons, the approval of the project owners shall be required.

Part 4

BIDDING BULLETINS AND WEBSITES

(Prescribed in Clause 18, Article 1 of Decree 66/CP)

This Part guides the publication of bidding information on the States bidding bulletin and website. Apart from the scope and subjects specified in this Part, the ministries, branches and localities may, depending on their specific conditions, decide on the publication of bulletins and the building of websites on their respective biddings as well as the contents to be published therein.

I. CONTENTS OF INFORMATION TO BE PUBLISHED

The to be-published contents stated in this Section shall apply to important national projects, group-A and group-B projects under the Construction and Investment Management Regulation, joint-venture projects and business cooperation contracts (as prescribed at Point b, Clause 2, Article 2 of Decree 88/CP), which have been granted investment licenses by the Ministry of Planning and Investment, including:

1. Bidding plans: The registration of notification of bidding plans shall be effected according to Form 1, Appendix II to this Circular (not printed herein).

2. Pre-qualification invitation and pre-qualification results: The registration of notification of pre-qualification invitation and pre-qualification results shall be effected according to Form 2, Appendix II and Form 4, Appendix II to this Circular (not printed herein).

The publication of pre-qualification invitation notices shall apply to bidding packages with pre-qualification, which belong to the projects stated in Section I of this Part.

3. Bid invitation: The registration of bid invitation notices shall be effected according to Form 3, Appendix II to this Circular (not printed herein).

4. The list of contractors participating in restricted biddings: The registration of notification of the list of contractors participating in restricted biddings shall be effected according to Form 4, Appendix II to this Circular (not printed herein).

5. The short list of contractors participating in consultancy biddings: The registration of notification of the short list of contractors participating in consultancy biddings shall be effected according to Form 4, Appendix II to this Circular (not printed herein).

6. The results of selection of contractors: Information on the results of selection of contractors, covering bidding results, contractor appointment results, direct procurement and self-execution, shall be published according to Form 5, Appendix II to this Circular (not printed herein).

Particularly for information stated in Clauses 3, 4, 5 and 6, Section I of this Part, for the immediate future, only information on consultancy bidding packages valued at VND 5 billion or more and on goods procurement and construction bidding packages valued at VND 20 billion or more, which belong to the projects stated in Clause 1, Section I of this Part, shall be published.

7. Information on individuals and organizations belonging to project owners, bid solicitors, contractors, managing agencies or other subjects, that have committed violations of the Bidding Regulation; information on contractors banned from participating in biddings and information on the handling of violations of the Bidding Regulation (regardless of projects) shall be published according to Form 6, Appendix II to this Circular (not printed herein).

8. Legal documents on bidding, which are currently effective, newly promulgated or being drafted, including:

a/ Legal documents on bidding, promulgated by the National Assembly, the National Assembly Standing Committee, the Government or the Prime Minister;

9. The Investment and Planning Ministrys reports on review of the bidding work nationwide: To be made according to Forms 7 and 8, Appendix II to this Circular (not printed herein).

10. The ministries, branches and localities reports on review of the bidding work: To be made according to Forms 7 and 8, Appendix II to this Circular (not printed herein).

11. Local bidding activities, including bidding activities of the ministries, branches and localities, with the following principal contents:

12. The databases on contractors, consisting of the list of contractors and essential information on contractors, which have been registered, modified or added on the database.

13. Other related contents.

II. PERIODS OF PUBLICATION OF BIDDING INFORMATION

1. The bidding bulletin

- Pre-qualification invitation notices;

- Bid invitation notices.

- The list of individuals and organizations violating the Bidding Regulation;

- The list of contractors banned from participating in biddings;

- Information on the handling of violations of the Bidding Regulation.

- Bidding plans;

- Pre-qualification results;

- The list of contractors participating in restricted biddings;

- The short list of contractors participating in consultancy biddings;

- The results of selection of contractors;

- Newly promulgated legal documents on bidding;

- Reports on review of the bidding work;

- Local bidding activities;

- Information on contractors newly registered on the database on contractors.

In case of necessity, some kinds of bidding information may be published in one or many issues.

2. The bidding website

- Pre-qualification invitation notices;

- Bid invitation notices.

- Bidding plans;

- Pre-qualification results;

- The list of contractors participating in restricted biddings;

- The short list of contractors participating in consultancy biddings;

- The results of selection of contractors;

- Information on the handling of violations of the Bidding Regulation;

- Legal documents on bidding, which are being drafted;

- Reports on review of the bidding work;

- The list of individuals and organizations violating the Bidding Regulation;

- The list of contractors banned from participating in biddings;

- Legal documents on bidding, which are currently in force;

- The database on contractors;

- Other contents (if necessary).

In case of necessity, some kinds of bidding information may be published for a number of days or constantly.

III. INFORMATION-SUPPLYING AGENCIES

The agencies which supply information for the States bidding bulletin and website must ensure the time schedule prescribed in Section V of this Part and must bear responsibility before law for the truthfulness and accuracy of the data they supply.

Where the information-supplying agencies fail to comply with the following regulations, the violating organizations and individuals shall be handled under the provisions of Clause 26, Article 1 of Decree 66/CP.

The information-supplying agencies include:

1. The Ministry of Planning and Investment:

Information supplied by the Ministry of Planning and Investment for the States bidding bulletin and website shall cover the contents specified at Point a of Clause 8, Clause 9 and Clause 13, Section I of this Part.

2. The ministries, branches, ministerial-level agencies, Government-attached agencies as well as the Peoples Committees of the provinces and centrally-run cities (hereinafter referred collectively to as the ministries, branches and localities):

Information supplied by the ministries, branches and localities for the States bidding bulletin and website shall cover the contents specified in Clause 7, at Point b of Clause 8, in Clause 10 and Clause 11, Section I of this Part.

3. The owners of important national projects, group-A and group-B projects under the Construction and Investment Management Regulation, the managing boards of joint-venture companies, lawful representatives of the parties to business cooperation contracts (hereinafter referred collectively to as project owners):

Information supplied by the project owners for the States bidding bulletin and website shall cover the contents specified in Clauses 1, 2, 3, 4, 5, 6 and 7, Section I of this Part.

4. Contractors:

Contractors shall supply information through their registration under the provisions in Part 5 "Database on contractors" of this Circular.

IV. FORMS OF INFORMATION SUPPLY

The supply of bidding information to the Ministry of Planning and Investment for publication in the States bidding bulletin and website shall be as follows:

1. Compulsory form: To send the original papers directly or by post to the Ministry of Planning and Investment (at No. 2 Hoang Van Thu street, Hanoi).

2. Other forms (to be used temporarily for publicization preparation):

The information-receiving agencies shall not bear responsibility for any congestion, loss or other reasons in the information-transmitting process. They shall publish information according to regulations.

V. TIME LIMITS FOR SUPPLY OF INFORMATION

1.

2.

VI. OTHER PROVISIONS

1. Distribution of the bulletin:

The States bidding bulletin, managed by the Ministry of Planning and Investment, shall be distributed nationwide according to law provisions. All organizations and individuals that wish to have the bulletin may buy it at paper distribution points of the post service or through direct subscription with the Ministry of Planning and Investment.

2. Access to information on the bidding website:

All organizations and individuals may search and access information on the States bidding website (managed by the Ministry of Planning and Investment) in service of their professional work, The States bidding website can be accessed at the Planning and Investment Ministrys website address: http://www.mpi.gov.vn (the bidding section).

3. Information publication costs:

Bidding information specified in Section I of this Part shall be published free of charge in the States bidding bulletin and website.

The expenses for information preparation, processing, publication, circulation, storage and management and other expenses shall be covered with the non-business and administration funding source belonging to the general budgets of the agencies which manage the States bidding bulletin and website. The management and use of the funding for the operation of the States bidding bulletin and website shall comply with the current financial regime.

Part 5

DATABASE ON CONTRACTORS

(Prescribed in Clause 7, Clause 18 and Clause 22, Article 1 of Decree 66/CP)

I. RESPONSIBILITIES OF THE INVOLVED PARTIES FOR THE DATABASE ON CONTRACTORS

1. The Ministry of Planning and Investment

The Ministry of Planning and Investment is the agency that publishes and manages the general database on contractors nationwide, receives and processes the registration dossiers of contractors managed by, established under decisions of, or licensed for investment or operation by, the ministries or branches, and foreign contractors wishing to participate in bidding activities in Vietnam. The Ministry of Planning and Investment shall have to build the infrastructure for the wide-area network, compile the applied softwares and provide technical guidance to ensure the smooth operation of the database on contractors.

2. The provincial/municipal Planning and Investment Services

The Planning and Investment Services of the provinces and centrally run cities shall have to receive and process the registration dossiers of contractors established under decisions of, or licensed for investment or operation by, local competent agencies, then transmit appropriate information onto the database on contractors under the guidance of the Ministry of Planning and Investment.

3. Contractors

Contractors who participate in the contractor-selecting process must be those named in the Planning and Investment Ministry-managed database on contractors (under the provisions of Clause 7, Article 1 of Decree 66/CP). For contractors that are banned from participating in biddings forever (under the provisions of Point 2(h) of Clause 26, Article 1 of Decree 66/CP), their names shall be deleted from the database on contractors.

II. PROCEDURES FOR REGISTRATION INTO THE DATABASE ON CONTRACTORS

1. Dossiers of first-time registration

- The paper of registration of information for the database on contractors (according to Form 1a, Appendix III to this Circular, not printed herein);

- A notarized copy of the establishment decision (for units having no business registration), the investment license, the business registration certificate or another legal document of equivalent value.

- The paper of registration of information for the database on contractors (according to Form 2a, Appendix III to this Circular (not printed herein));

- A notarized copy of the

A foreign

- The paper of registration of information for the database on contractors (according to Form 1a, Appendix III to this Circular (not printed herein));

- A notarized copy of the

Contractors who are foreign individuals shall make their registration dossiers in two sets, one in Vietnamese and the other in English, of equal legality.

2. Dossiers of registration of modification and/or addition

- The form of registration of modified and/or added information for the database on contractors (to use Form 1b, Form 2b or Form 3b, Appendix III to this Circular as appropriate, not printed herein);

- A legal document as evidence of the modified or added information on the contractor.

3. Forms of registration

The registration for entry into the database on contractors shall take the following forms:

- Sending dossiers:

+ By post the original sets of the registration dossiers to the receiving agencies defined in Clause 1 and Clause 2, Section I, Part 5 of this Circular; or

+ By submitting the original sets of the registration dossiers directly to the receiving agencies defined in Clause 1 and Clause 2, Section I, Part 5 of this Circular.

- Addresses for receiving dossiers:

+ The address of the Ministry of Planning and Investment, No. 2, Hoang Van Thu street, Hanoi.

+ The addresses of the provincial/municipal Planning and Investment Services: To be specified by each provincial/municipal Investment and Planning Service.

- Submitting dossiers:

+ Sending by fax, or

+ Sending by e-mail, or,

+ Sending in the information-receiving section in the bidding website.

- Addresses for receiving dossiers:

+ The receiving address of the Ministry of Planning and Investment:

* The fax number: 84-4-8230452 (the fax number of the Public Procurement Department, the Ministry of Planning and Investment).

* The e-mail address: [email protected] (the e-mail address of the Public Procurement Department, the Ministry of Planning and Investment).

* The information-receiving section in the website of the Ministry of Planning and Investment: http://www.mpi.gov.vn (the bidding section).

+ The receiving addresses of the provincial/municipal Planning and Investment Services: To be specified by each provincial/municipal Planning and Investment Service.

4. Process of registration for entry into the database on contractors

a/ Contractors shall compile and submit their dossiers in the registration forms as prescribed in Clause 1 and Clause 3, Section II, Part 5 of this Circular.

b/ Where dossiers are submitted in the compulsory form and determined to be valid, within 5 days after receiving complete dossiers (excluding holidays as prescribed by law), the receiving agencies shall fill in the certificates of registration of data on contractors (select and fill in Form 1c, Form 2c or Form 3c, Appendix III to this Circular (not printed herein), as appropriate), then send them by post to the contractors according to their registered addresses, and at the same time transmit the data already properly registered by the contractors for publication on the database on contractors under the guidance of the Ministry of Planning and Investment.

Contractors who have their names officially published on the Planning and Investment Ministry-managed database on contractors shall be eligible (under the provisions of Point c, Clause 7, Article 1 of Decree 66/CP) for participating in the contractor-selecting process in biddings held nationwide in the domains which they have registered.

c/ Where dossiers are submitted in the compulsory form but their contents are invalid (failing to comprise all papers as prescribed in Clause 1, Section II, Part 5 of this Circular, or having some contents declared insufficiently or some contradictory information), within 3 days as from the date of receiving the dossiers (excluding holidays as prescribed by law), the dossier-receiving agencies must issue written requests for verification and supplementation of dossiers (according to Form 4, Appendix III to this Circular, not printed herein), and send them by post to contractors according to their registered addresses.

d/ Where dossiers are submitted in the temporary forms, within 2 days as from the date of receiving the dossiers (excluding holidays as prescribed by law), the dossier-receiving agencies shall transmit the information already registered by the contractors for publication by the Ministry of Planning and Investment in the temporary data section of the database on contractors.

The Ministry of Planning and Investment shall have a separate guidance on the process of coordination in handling and publishing information on contractors between the Ministry of Planning and Investment and the provincial/municipal Planning and Investment Services.

5. Modification and addition of the contractors already registered data

When they need to modify and/or add their registered data, contractors should compile and submit dossiers in the registration forms and process as provided for in Clause 2, Clause 3 and Clause 4, Section II, Part 5 of this Circular.

Within 2 days, the receiving agencies shall fill in the forms of registration of modification and/or addition of the contractors registered data (select and fill in Form 1d, Form 2d or Form 3 d, Appendix III to this Circular (not printed herein) as appropriate), then enter the contractors modified and/or added information into the database on contractors under the guidance of the Ministry of Planning and Investment (if the dossiers of registration of modification and/or addition are sent in the compulsory form and determined to be valid).

The contractors modified and added information, after being published on the Planning and Investment Ministrys database on contractors, shall be new legal information on contractors.

III. FUNDING FOR PUBLICATION OF INFORMATION ON THE DATABASE ON CONTRACTORS

All information on contractors shall be published free of charge on the Planning and Investment Ministrys database on contractors.

The expenses for processing, transmitting, publishing, storing and managing information on contractors shall be covered with the non-business and administration funding source and be incorporated in the general budget estimates of the agencies in charge of managing the database on contractors. The management and use of the funding for the operation of the database on contractors shall comply with current financial regulations.

Part 6

EXAMINATION OF PERFORMANCE OF THE BIDDING WORK

(Prescribed in Clause 24, Article 1 of Decree 66/CP)

Examination of the performance of the bidding work shall be conducted with respect to organizations and individuals involved in the contractor-selecting process of bidding packages belonging to projects subject to the application of the Bidding Regulation (hereinafter called the examined subjects for short).

I. DECENTRALIZATION OF EXAMINATION OF THE PERFORMANCE OF THE BIDDING WORK

1. The Ministry of Planning and Investment:

b/ To examine the performance of the bidding work of the projects with investment therein being decided by the Prime Minister and group-A projects with investment therein being permitted by the Prime Minister, joint-venture projects and business cooperation contracts (specified at Point b, Clause 2, Article 2 of Decree 88/CP) to which the Ministry has granted investment licenses;

2. The ministries (other than the Ministry of Planning and Investment), the ministerial-level agencies, the Government-attached agencies, and the Peoples Committees at all levels (hereinafter called the ministries, branches and localities for short):

a/ To decide on, and organize, the examination of the performance of the bidding work by units under their respective management and by projects executed under their decisions (including projects assigned and authorized to their subordinate levels), joint-venture projects and business cooperation contracts (specified at Point b, Clause 2, Article 2 of Decree 88/CP) which they and the authorized industrial park- and export-processing zone-managing boards have granted investment licenses, projects of joint-stock companies (specified at Point b, Clause 2, Article 2 of Decree No. 88/CP) under their management;

II. FORMS OF EXAMINATION OF THE PERFORMANCE OF THE BIDDING WORK

The examination of the performance of the bidding work shall be conducted in the following two forms:

1. Regular examinations:

Regular examinations mean planned examinations decided by competent persons of the examining agencies on a quarterly, biannual or annual basis of bidding activities carried out by the subjects falling under the scope of examination.

In order to be proactive in their examining work, the examining agencies should work out annual examination plans covering the following contents:

2. Irregular examinations:

Irregular examinations mean examinations of specific matters when bidding packages face problems (complaints, denunciations, signs of violation of the bidding legislation or other problems) at the requests of the Prime Minister or competent persons of the examining agencies.

III. CONTENTS OF EXAMINATION OF THE PERFORMANCE OF THE BIDDING WORK

1.

b/ Examining the formulation of bidding plans and the contractor-selecting process (including the approved bidding plans, the bidding process, legal grounds for implementation, reasons for non-application of public bidding, bid-winning results, the value of the signed contracts, the situation of the contract performance and other related results);

2.

Depending on the specific conditions, the irregular examination of the bidding work shall focus on the following contents:

- Legal grounds for organizing the selection of contractors: Legal documents such as investment decisions (or investment licenses); decisions to approve the bidding plans, bidding dossiers, designs and total cost estimates or cost estimates (for construction bidding), the list of contractors participating in restricted bidding, and other related contents;

- The valid status of the bid solicitors, the groups of bidding experts and consultants; decisions on their establishment, functions and tasks;

- The valid status of contractors: Having their names registered in the database on contractors, their civil legal capacity and civil act capacity.

- Experiences and capabilities of the selected contractors (especially for bidding packages with their bid-winning prices too low as compared with the prices of the bidding packages, bidding packages for which contractors are appointed);

- The selected bids satisfaction of the technical requirements;

- On the bid-winning prices (particularly for the bid-winning prices which are too low as compared with the prices of the bidding packages), the prices of the signed contracts, types of contracts and other related contents;

- Specific problems, inquiries of bid-soliciting individuals or collectives, of contractors (if any), and solutions thereto;

IV. PROCESS OF EXAMINING THE PERFORMANCE OF THE BIDDING WORK

The examination-organizing agencies shall conduct examinations in the following order:

1. Examination preparation:

2. Examination:

The examination teams shall conduct examinations for no more than 30 days according to the approved detailed examination plans. When conducting examinations, the examination teams shall collect and study materials and meet with the examined subjects before making reports on examination results.

Before submitting the reports on examination results to the examining agencies for consideration, the examination teams should consult the examined subjects.

3. Handling of examination results:

Competent persons of the examining agencies should make conclusions on the examination

The examining agencies shall have to oversee the overcoming of problems pointed out in the conclusions on the examination result reports.

V. RESPONSIBILITIES AND POWERS OF EXAMINATION-ORGANIZING AGENCIES

1. To organize the examination of the performance of the bidding work under the provisions in Sections III and IV of this Part.

2. To monitor, sum up and report to the Prime Minister on the situation of regular and unexpected examinations of specific cases as requested by the Prime Minister. For the ministries, branches and localities, they shall, apart from submitting the examination reports to the Prime Minister, concurrently send them to the Ministry of Planning and Investment for monitoring and sum-up.

3. To consider and decide on the forms of handling violations according to their competence on the basis of the proposals of the examination teams or transfer such proposals to the functional agencies for handling according to law provisions.

VI. RESPONSIBILITIES AND POWERS OF EXAMINATION TEAMS

1. To conduct examinations according to the contents of the approved detailed plans and Clause 2, Section IV of this Part;

2. To make examination them for approval;

3. To take responsibility before law for their opinions presented in the examination result reports;

4. Individual members of the examination teams shall be entitled to reserve their opinions and take responsibility for their opinions in the examination result reports.

VII. RESPONSIBILITIES AND POWERS OF THE EXAMINED SUBJECTS

1. To comply with the requests included in the detailed examination plans, such as preparing reports, supplying materials, arranging meetings to work with the examination teams.

2. To give comments on the related contents in the draft reports made by the examination teams;

3. To be entitled to reserve their opinions in writing and send them to the examination teams and the examining agencies.

VIII. OTHER CONTENTS

1.

- The examination teams shall complete the examination result reports immediately after the examination termination but within 10 days for submission to the examination-deciding agencies for consideration and decision.

- The ministries, branches and localities shall submit to the Prime Minister the reports on the results of irregular examinations within 15 days after concluding the examinations (for cases requested by the Prime Minister).

- The ministries, branches and localities shall make review reports and submit them to the Prime Minister (concurrently send them to the Ministry of Planning and Investment) every six months (by the end of July of the same year at the latest) and every year (by the end of January of the subsequent year at the latest) on the situation of the examination work.

- The Ministry of Planning and Investment shall make review reports and submit them to the Prime Minister every year (by the end of February of the subsequent year at the latest) on the situation of the examination work.

2. Examination expenses

The expenses for activities of examining the performance of the bidding work include necessary expenses in service of the examination work, such as:

- Travel expenses and working-trip expenses of examination team members;

- Expenses for printing materials;

- Other expenses (for specialists, meetings and other activities).

The expenses for the examination of the performance of the bidding work shall be covered with the non-business and administration funding sources, incorporated in the general budget estimates of the agencies which examine the performance of the related bidding work.

The management and use of the funding for examining activities shall comply with the current financial regime.

Part 7

HANDLING OF VIOLATIONS OF BIDDING LEGISLATION

(Prescribed in Article 60 of Decree 88/CP and Clause 26, Article 1 of Decree 66/CP)

The handling of organizations and individuals that commit violations of the bidding legislation shall be organized as follows:

I. FOR CONTRACTORS

1. The persons with competence to approve the results of selection of contractors shall have the competence to issue, and take responsibility for, violation-handling documents, clearly stating the names of the violating organizations or individuals, the violations, the violation-handling forms and levels (excluding the cases involving criminal components, which shall be handled by functional bodies according to law provisions). Violation-handling documents must be sent to the involved parties and their superior managing agencies, the bid solicitors, the project owners and their superior agencies, the Ministry of Planning and Investment (the agency that manages the States bidding bulletin and website), and other concerned administrative and law agencies.

2. For contractors that violate the bidding legislation, have their violations published in the States bidding bulletin and website for many times, the Ministry of Planning and Investment shall base itself on the provisions of Point 2(h), Clause 26, Article 1 of Decree 66/CP to issue notices in the bidding bulletin or website on the ban of such contractors from participating in biddings for 1 year, 2 years, 3 years, or for ever.

3. The sums of money used as bidding guaranty which are forfeited from the contractors that have violated the Bidding Regulation shall be remitted into the State budget according to law provisions.

II. FOR BID SOLICITORS, CONCERNED ORGANIZATIONS AS WELL AS INDIVIDUALS

Competent persons shall issue violation-handling documents, clearly stating the names of the violating organizations or individuals, the violations, and the violation-handling forms and levels. Violation-handling documents shall be sent to the involved parties and their superior managing agencies, the Ministry of Planning and Investment (the agency that manages the States bidding bulletin and website), and other concerned administrative and law agencies.

Part 8

OTHER CONTENTS

On the basis of the Prime Ministers opinions in Document No. 1336/CP-CN of October 2, 2003, a number of contents of the bidding work shall be performed as follows:

I. IMPLEMENTATION OF THE CONTRACTOR-APPOINTING FORM

The contractor-appointing process shall be implemented similarly to the process of bidding for a bidding package. This is one of the contractor-selecting forms meeting the requirements of the bid solicitors. Bidding packages for which contractors are appointed must be approved by competent persons in the bidding plans. For appointment of contractors, the project owners must set requirements on the bidding packages (similarly to bidding dossiers) while the units proposed to act as contractors shall base themselves on such requirements to prepare implementation measures and put forward financial and commercial proposals (similar to bids) for evaluation by the project owners according to evaluation standards. If the units are evaluated as eligible, competent persons shall consider and decide on the results of appointment of contractors for bidding packages valued at VND 1 billion or more (for goods procurement and construction) or valued at VND 500 million or more (for consultancy), the project owners shall decide on the results of appointment of contractors for other bidding packages belonging to all projects. Then, the project owners shall negotiate and sign contracts with the appointed contractors.

II. OWNERS REPRESENTATIVES

Under the provisions of Point 5, Clause 19, Article 1 of Decree No. 66/CP, the responsibility to reach agreement on the related contents on the biddings for joint-venture projects, business cooperation contracts or joint-stock projects prescribed at Point b, Clause 2, Article 2 of Decree 88/CP shall rest with the owners representatives as provided for by law.

At present, pending the issuance of documents clearly defining owners representatives, the agencies with responsibility to reach agreement on the contents specified at Point 5, Clause 19, Article 1 of Decree 66/CP are the managing boards of the State corporations or the owners of the State enterprises participating in the joint-venture or joint-stock projects, in compliance with the decentralization provided for in the Investment and Construction Management Regulation, and the opinions of the Prime Minister in Document No. 1336/CP-CN of October 2, 2003.

The time limit for reaching agreement on the bidding plans and the results of selection of contractors shall not exceed 20 days as from the date of receipt of complete dossiers.

III. PUBLICIZATION OF EVALUATION STANDARDS

1. Under the provisions of Clause 12 and Clause 15, Article 1 of Decree 66/CP, the evaluation standards for goods procurement or construction bidding packages must be stated in the bidding dossiers. This provision shall also apply to consultant selection bidding packages. Pre-qualification invitation dossiers (containing the pre-qualification evaluation standards) shall be compiled and approved by the project owners.

2. Pre-qualification invitation dossiers (containing the pre-qualification evaluation standards) shall be compiled and approved by the project owners.

IV. APPROVAL OF CONTRACTS

The approval of contracts shall rest with the project owners under the provisions of Point 2, Clause 10,

V. EVALUATION WORK

Under the provisions of Point 3(c), Clause 19, Article 1 of Decree 66/CP, the presidents of the Peoples Committees of the provinces or centrally-run cities shall have competence to approve the bidding plans, approve, or authorize the approval of, bidding dossiers, and approve the results of selection of contractors for all bidding packages of State budget-funded projects falling under their investment-deciding competence. To ensure compliance with Point 2(b), Clause 20, Article 1 of Decree 66/CP, the provincial/municipal Planning and Investment Services shall assist the provincial/municipal Peoples Committee presidents in evaluating the bidding plans and the results of selection of contractors for bidding packages under the

For the evaluation of bidding plans, bidding dossiers and the results of selection of contractors belonging to the ministries or branches, the evaluating units may be the Planning and Investment Departments or assigned units under the competence of the ministers, the heads of the ministerial-level agencies or Government-attached agencies.

VI. RELATIONSHIPS BETWEEN THE DECREES AS WELL AS THIS CIRCULAR AND
CIRCULAR 04

Where there are contradictory contents in Decree 88/CP, 14/CP and 66/CP, the contents of Decree 66/CP shall apply.

In the course of implementation, if Circular 04 contains contents contradictory to those of Decree 66/CP and this Circular, the provisions of Decree 66/CP and this Circular shall apply.

VII. TIME LIMITS FOR PUBLICIZATION OF INFORMATION IN THE BIDDING BULLETIN AND WEBSITE AND THE DATABASE ON CONTRACTORS

The publicization of bid invitation notices and the registration of data on contractors in the Planning and Investment Ministry-managed bidding bulletin and website and database on contractors as a basis for bidding shall take implementation effect as from the time to be officially announced later by the Ministry of Planning and Investment. Prior to this time, the notification of invitation for pre-qualification and for bids as well as the setting of the bidding participation conditions shall be implemented as currently implemented.

VIII. BIDDING INSPECTION

The bidding inspection shall comply with Clause 25, Article 1 of Decree 66/CP. Bidding inspection shall constitute part of the inspection work performed by the Ministry of Planning and Investment according to its functions specified in the Governments Decree No. 61/2003/ND-CP of June 6, 2003 on the functions, tasks, powers and organizational structure of the Ministry of Planning and Investment. The bidding inspection work shall be guided by the Ministry of Planning and Investment in a separate circular.

IX. FORMS OF BIDDING DOSSIERS

The forms of bidding dossiers prescribed in Article 4 of Decree 66/CP shall be issued by the Ministry of Planning and Investment in a separate document. Pending the issuance of such document, the forms of bidding dossiers to be used shall be the forms guided in Appendices I, II and III to Circular No. 04/2000/TT-BKH of May 26, 2000 of the Ministry of Planning and Investment.

Part 9

IMPLEMENTATION EFFECT

This Circular takes effect 15 days after its publication in the Official Gazette. Should any problems arise in the course of implementation, the ministries, branches and localities as well as concerned units are requested to send their opinions thereon to the Ministry of Planning and Investment for timely consideration, supplementation and perfection as appropriate.