Circular No. 04/2017/TT-BKHDT dated November 15, 2017 of the Ministry of Planning and Investment on prescribing in detail the contractor selection via the National E-Public Procurement system

CIRCULAR

Prescribing in detail the contractor selection via the National E-Public Procurement system[1]

Pursuant to the National Assembly’s November 26, 2013 Bidding Law No. 43/2013/QH13;

Pursuant to the National Assembly’s November 29, 2005 Law No. 51/2005/QH11 on E-Transactions;

Pursuant to 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;

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;

The Minister of Planning and Investment promulgates the Circular prescribes in detail the contractor selection via the National E-Public Procurement system.

Chapter I

GENERAL PROVISIONS

Article 1.Scope of regulation

1. This Circular prescribes in detail the contractor selection through the National E-Public Procurement system (below referred to as online contractor selection) for consultancy or non-consultancy service provision, procurement, or construction and installation bidding packages which are regulated by the Bidding Law and for which open bidding or domestic competitive offer is organized by the single-stage and single- envelope method or single-stage and two-envelope method.

2. This Circular does not apply to multi-component bidding packages. In case online contractor selection needs to be applied to multi-component bidding packages, such components shall be divided into separate bidding packages for contractor selection.

Article 2.Subjects of application

1. Organizations and individuals involved in online contractor selection falling into the scope of regulation stated in Article 1 of this Circular.

2. Organizations and individuals that carry out bidding activities outside the scope of regulation stated in Article 1 of this Circular but choose to apply this Circular.

Article 3.Abbreviations

1. E-NIB stands for a notice of invitation for bids or a notice of invitation for offers for a bidding package for which online contractor selection is chosen.

2. E-BiD stands for a bidding dossier, a dossier of requirements or a request for price quotation for a bidding package for which online contractor selection is chosen.

3. E-BD stands for a bid dossier, a dossier of proposals or a price quotation for a bidding package for which online contractor selection is chosen.

4. E-DTP stands for a dossier of technical proposals for a bidding package for which online contractor selection by the single-stage and two-envelope method is chosen.

5. E-DFP stands for a dossier of financial proposals for a bidding package for which online contractor selection by the single-stage and two-envelope method is chosen.

Article 4.Application of forms of dossier

1. Form No. 01 issued together with this Circular applies to small construction and installation bidding packages for which online open bidding or competitive offer by the single-stage and single-envelope method is organized.

2. Form No. 02 issued together with this Circular applies to small procurement bidding packages for which online open bidding or competitive offer by the single-stage and single-envelope method is organized.

3. Form No. 03 issued together with this Circular applies to small bidding packages to provide non-consultancy services for which online open bidding or competitive offer by the single-stage and single-envelope method is organized.

4. Form No. 04 issued together with this Circular applies to construction and installation bidding packages for which online open bidding by the single-stage and two-envelope method is organized.

5. Form No. 05 issued together with this Circular applies to procurement bidding packages for which online open bidding by the single-stage and two-envelope method is organized.

6. Form No. 06 issued together with this Circular applies to bidding packages to provide consultancy services for which online open bidding is organized.

7. Form No. 07 issued together with this Circular applies to bidding packages for which competitive offer according to simplified procedures is organized.

Article 5.Bid security

1. When participating in online bidding, a contractor shall provide bid security before the time of bid closing in the form of letter of guarantee issued by a bank or credit institution lawfully operating in Vietnam. For banks and credit institutions already connected to the National E-Public Procurement system (below referred to as the system), the contractor shall provide online bid security. For banks and credit institutions not yet connected to the system, the contractor must provide a scanned copy of the bank’s letter of guarantee enclosed with the E-BD submitted. In this case, the contractor shall commit to submitting the original letter of bid guarantee under Clause 3 of this Article.

2. Cases in which a contractor is required to submit the original letter of bid guarantee to the bid solicitor:

a/ The contractor is invited to enter into contract negotiation;

b/ The contractor violates the bidding law, thus becoming ineligible for refund of bid security under Clause 8, Article 11 of the Bidding Law.

3. Within 5 working days after receiving the bid solicitor’s request, if the contractor refuses to submit the original letter of bid guarantee, he/she/it shall be handled according to his/her/its commitment made in the bid application.

Article 6.Requirements on format and capacity of attached files in the system

1. A file posted by the bid solicitor or contractor in the system must:

a/ Have the MS Word, MS Excel, PDF or CAD format and image formats and use the Unicode font. Large files should be compressed in *.zip or *.rar format before being posted in the system;

b/ Be free of any virus and error and have no password.

2. If the attached file in an E-BD is made in a format other than those specified in Clause 1 of this Article, making the bid solicitor unable to open and read it, it shall not be considered and evaluated.

Article 7.Technical handling in case the system encounters an incident

In case the system encounters an incident and suspends operation, the bid closing or opening time of bidding packages during the time the incident occurs shall be extended as follows:

1. If the incident is settled and the system resumes operation between 0:00 hours and 12:00 hours, the new bid closing or opening time is 15:00 hours of the same day, except the case specified in Clause 3 of this Article.

2. If the incident is settled and the system resumes operation between after 12:00 hours and 24:00 hours, the new bid closing or opening time is 9:00 hours of the subsequent day, except the case specified in Clause 3 of this Article.

3. If the incident is settled and the system resumes operation on a weekend or holiday, the new bid closing or opening time is 9:00 hours of the first working day after such weekend or holiday.

4. If the bid closing or opening time has to be extended under Clause 1, 2 or 3 of this Article, an E-BD shall be evaluated based on the bid closing or opening time stated in the E-BiD already posted in the system.

Chapter II

PROCESS OF ONLINE CONTRACTOR SELECTION BY THE SINGLE-STAGE AND SINGLE-ENVELOPE METHOD

Section 1

PROCESS OF CONTRACTOR SELECTION FOR NON-CONSULTANCY SERVICE PROVISION, PROCUREMENT, OR CONSTRUCTION AND INSTALLATION BIDDING PACKAGES FOR WHICH OPEN BIDDING OR COMPETITIVE OFFER ACCORDING TO NORMAL PROCEDURES IS ORGANIZED

Article 8.Detailed process

1. Preparation for contractor selection, covering:

a/ Making an E-BiD;

b/ Appraising and approving the E-BiD.

2. Organization of contractor selection, covering:

a/ Posting an E-NIB and issuing an E-BiD;

b/ Modifying and clarifying the E-BiD;

c/ Submitting an E-BD;

d/ Bid opening.

3. Evaluation of E-BDs and ranking of contractors.

4. Contract negotiation, submission, appraisal, approval and disclosure of the contractor selection result.

5. Contract finalization and signing.

Article 9.Components and file format of E-BiDs

1. An E-BiD must comprise:

a/ An E-NIB;

b/ Chapter I: Instructions to bidders;

c/ Chapter II: Bid data sheet;

d/ Chapter III: Criteria for evaluating an E-BD;

dd/ Chapter IV: Forms of bid invitation and bidding participation;

e/ Chapter V: Technical requirements;

g/ Chapter VI: General conditions of contract;

h/ Chapter VII: Specific conditions of contract;

i/ Chapter VIII: Contract form.

2. Chapters I and VI are PDF files posted in the system for application to all bidding packages. Project owners can skip the contents of these two chapters when appraising and approving E-BiDs.

3. Chapters II and III (including a List of criteria for capacity and experience evaluation) and Chapters IV and VII shall be digitalized as web forms in the system.

4. Chapter III (excluding a List of criteria for capacity and experience evaluation), and Chapters V and VIII are MS Word, MS Excel, PDF or CAD files, image files, compressed files or files in another format as suitable to the relevant bidding packages, which shall be attached and posted in the system by the bid solicitor.

Article 10.Making, appraisal and approval of E-BiDs

1. The bid solicitor shall log in to the system and select the section “Goods” or “Construction and installation” or “Non-consultancy service” to make an E-NIB and fill in other contents of the E-BiD.

2. After making the E-BiD, the bid solicitor shall print it out and submit it to the project owner for appraisal and approval. The bid solicitor shall take responsibility for the consistency between the E-BiD in the system and that approved by the project owner.

3. If wishing to modify the E-BiD, the bid solicitor shall log in to and modify it right in the system after having the modifications approved by the project owner.

4. In case of any inconsistency between information in the file attached to the E-BiD issued by the bid solicitor in the system and information in the web form, the latter shall be used for making and evaluating the E-BD.

Article 11.Posting of E-NIBs and issuance of E-BiDs

1. The posting of E-NIBs and issuance of E-BiDs must comply with instructions in the system.

2. An E-BiD shall be issued free of charge from the time an E-NIB is posted in the system. The time for preparing an E-BD is at least 10 days for bidding packages to which open bidding is applied, or 5 working days for bidding packages to which competitive offer is applied according to normal procedures, counting from the date the E-NIB is posted for the first time.

Article 12.Modification and clarification of E-BiDs

1. If wishing to modify an E-BiD, the bid solicitor shall post the decision modifying the E-BiD (enclosed with modifications) and the modified E-BiD (in the web form or attached file). The modification shall be made at least 3 working days before the time of bid closing, ensuring that the contractor has enough time for completing the E-BD; otherwise, the time of bid closing shall be extended.

2. If needing clarification of an E-BiD, at least 3 working days before the date of bid closing, the contractor shall send a request for clarification to the bid solicitor via the system. The bid solicitor shall post clarifications of the E-BiD in the system. If the clarification leads to modification of the E-BiD, such modification must comply with Clause 1 of this Article.

3. The system will send a notice of modification of the E-BiD and clarifications of the E-BiD to the email of the contractor that has clicked the “Theo doi” (Follow-up” button in the interface of E-NIBs in the system. The contractor should regularly update the modification and clarification of E-BiDs in the system to facilitate the proper preparation of E-BDs according to requirements of an E-BiD.

Article 13.Submission of E-BDs

1. A contractor shall submit only one set of E-BD for one E-NIB when participating in online contractor selection. In case of partnership, the chief (or representative) of or a partner assigned by the partnership shall submit the E-BD.

2. Process of submitting an E-BD:

a/ The contractor selects a serial number of an E-NIB;

b/ The contractor inputs information as required by the E-BiD and attaches files to form a complete set of E-BD. For the contents related to his/her/its eligibility, capacity and experience, the contractor shall fill them in the web form without having to attach scanned files of relevant papers and documents;

c/ The contractor checks information in the E-BD, click the “Cam ket” (commitment) button in the interface of the bid application and send an E-BD to the system.

3. The system will notify the contractor of the status of E-BD submission (successful or unsuccessful). The system will record the following information on the contractor’s submission of the E-BD: sender, recipient, time of sending, status of sending, and number of attached files in the system, as a basis for settlement of any claims or disputes.

4. Withdrawal of E-BDs:

The contractor may withdraw his/her/its E-BD before the time of bid closing. The system will notify the contractor of the status of E-BD withdrawal (successful or unsuccessful), and record the time of withdrawal.

5. Re-submission of E-BDs:

After withdrawing an E-BD under Clause 4 of this Article, the contractor may re-submit another according to the process prescribed in Clause 2 of this Article. If the contractor submits an E-BD before the bid solicitor modifies an E-BiD under Article 12 of this Circular, he/she/it shall re-submit another E-BD according to the modified E-BiD.

Article 14.Bid opening

1. When the time of bid opening comes, the bid solicitor shall log in to the system and select the bidding package to be opened based on the serial number of the E-NIB. Then the bid solicitor shall decode the E-BDs of the contractors participating in the bidding.

2. A record of bid opening shall be posted in the system, containing the following principal contents:

a/ Information on the bidding package:

- Serial number of the E-NIB;

- Name of the bidding package;

- Name of the bid solicitor;

- Form of contractor selection;

- Type of contract;

- Time of completing the bid opening;

- Total number of contractors participating in the bidding.

b/ Information on contractors participating in the bidding:

- Name of contractors;

- Bid;

- Value and effect of bid security;

- Contract performance duration;

- Other relevant information (if any).

3. The bid opening shall be completed within 2 hours from the time of bid closing.

4. If there are fewer than 3 contractors submitting E-BDs, the bid solicitor may immediately open the bids without having to deal with situations under Clause 4, Article 117 of Decree No. 63/2014/ND-CP.

Article 15.Evaluation of E-BDs

1. The bid solicitor shall log in to the system and download the E-BDs of contractors for evaluation. The evaluation must comply with the Bidding Law, Decree No. 63/2014/ND-CP and evaluation criteria stated in the E-BiD.

2. The E-BiD, records of bid opening, and E-BDs, enclosed with documents clarifying the E-BiD and E-BDs, serve as legal bases for evaluating E-BDs of contractors.

3. In case of any inconsistency between information on bid security or partnership agreement declared by the contractor in the system and information in the scanned file of the letter of guarantee or partnership agreement, the latter shall be used for evaluation.

4. In case of any inconsistency between information in the file attached to the E-BD sent by the contractor to the system and information declared in the web form, the latter shall be used for evaluation, except the case specified in Clause 3 of this Article.

5. With regard to the contents on capacity and experience, evaluation of an E-BD shall be carried out based on the information declared by the contractor in the E-BD without requiring the contractor to attach proving files. If the contractor is detected to make untruthful declaration, he/she/it shall be regarded as committing fraud under Clause 4, Article 89 of the Bidding Law and banned from participating in bidding activities for between 3 years and 5 years under Clause 1, Article 122 of Decree No. 63/2014/ND-CP. The contractor invited to enter into contract negotiation shall submit documents proving his/her/its eligibility, capacity and experience, and technical capacity to the bid solicitor for comparison with information declared in his/her/its E-BD.

6. Process of evaluating E-BDs:

Based on the contractors’ E-BDs sent to the system and method of evaluating E-BDs stated in the E-BiD, the bid solicitor shall select either of the following processes of evaluating E-BDs as appropriate:

a/ Process 01: applicable to the “evaluation bid” method and “lowest bid” method:

- Step 1: Evaluating the validity of an E-BD;

- Step 2: Evaluating capacity and experience;

- Step 3: Evaluating technical capacity;

- Step 4: Ranking contractors.

b/ Process 02: applicable to bidding packages to which the single-stage and single-envelope method is applied, E-BDs subject to evaluation by the “lowest bid” method, and when no incentive is granted for E-BDs:

- Step 1: Ranking contractors by the lowest bid (without having to approve the ranking list of contractors under Article 16 of this Circular);

- Step 2: Evaluating the validity of the E-BD of the first-ranked contractor;

- Step 3: Evaluating capacity and experience of the first-ranked contractor;

- Step 4: Evaluating technical capacity of the first-ranked contractor.

If the first-ranked contractor is disqualified, the above steps shall be carried out for the subsequent-ranked contractor.

7. Clarification of E-BDs: The bid solicitor and contractor shall clarify E-BDs right in the system.

8. The experts’ team shall use the form of evaluation report (Form No. 1) issued together with the Ministry of Planning and Investment’s Circular No. 23/2015/TT-BKHDT of December 21, 2015, for making a report evaluating an E-BD.

Article 16.Approval of ranking list of contractors

For Process 01 specified at Point a, Clause 6, Article 15 of this Circular, based on the result of evaluation of E-BDs by the experts’ team, the bid solicitor shall submit to the project owner for approval a ranking list of contractors, made according to the form in Appendix 5A to Circular No. 23/2015/TT-BKHDT.

Article 17.Contract negotiation; submission, appraisal and approval of contractor selection result

1. The contract negotiation must comply with Article 19 of Decree No. 63/2014/ND-CP.

2. The submission, appraisal and approval of the contractor selection result must comply with Article 20 of Decree No. 63/2014/ND-CP.

Article 18.Disclosure of contractor selection result, contract finalization and signing

1. After the contractor selection result is approved, the bid solicitor shall post information thereon in the system, containing the following principal details:

a/ Information on the bidding package:

- Serial number of the E-NIB;

- Name of the bidding package;

- Approved price of the bidding package or cost estimate (if any);

- Name of the bid solicitor;

- Form of contractor selection;

- Time of completing the posting of the contractor selection result.

b/ Information on the winning contractor:

- Name of the contractor;

- Bid;

- Winning bid;

- Contract performance duration.

c/ For a procurement bidding package, the bid solicitor shall post information on each type of goods and equipment in this package, including:

- Names of goods;

- Capacity;

- Properties and technical specifications;

- Origin;

- Unit price of winning bid.

d/ Decision approving the contractor selection result.

2. Contract finalization and signing must comply with the Bidding Law, Decree No. 63/2014/ND-CP and relevant regulations.

Section 2

COMPETITIVE OFFER ACCORDING TO SIMPLIFIED PROCEDURES

Article 19.Components and file format of an E-BiD

1. Components of an E-BiD:

a/ Chapter I - Request for submission of price quotations;

b/ Chapter II - Forms used for bid invitation and bidding participation;

c/ Chapter III - Contract form.

2. Chapter I, which applies to each type of bidding package (procurement, construction and installation, or non-consultancy service), is a PDF file posted in the system. The project owner can skip this Chapter when approving an E-BiD.

3. Chapter II, including forms used for bid invitation and bidding participation, shall be digitalized in a web form in the system.

4. Chapter III, in MS Word file, shall be attached by the bid solicitor in the system.

Article 20.Making and approval of E-BiDs

The process of making and approving E-BiDs must comply with Article 10 of this Circular. The project owner is not required to appraise an E-BiD when approving it.

Article 21.Issuance of NIBs and E-BiDs

The issuance of NIBs and E-BiDs must comply with Article 11 of this Circular. The time for preparing an E-BD is at least 3 working days from the date of issuing an E-NIB in the system for the first time.

Article 22.Modification and clarification of E-BiDs, submission of E-BDs and bid opening

1. The modification and clarification of E-BiDs must comply with Article 12 of this Circular.

2. The submission of E-BDs and bid opening must comply with Articles 13 and 14 of this Circular.

Article 23.Evaluation of E-BDs, contract negotiation, appraisal and approval of contractor selection result, contract finalization and signing

The evaluation of E-BDs, contract negotiation, and appraisal and approval of the bidding result must comply with Article 59 of Decree No. 63/2014/ND-CP.

Chapter III

PROCESS OF ONLINE CONTRACTOR SELECTION FOR CONSULTANCY OR NON-CONSULTANCY SERVICE PROVISION, PROCUREMENT, OR CONSTRUCTION AND INSTALLATION BIDDING PACKAGES FOR WHICH OPEN BIDDING BY THE SINGLE-STAGE  AND TWO-ENVELOPE METHOD IS ORGANIZED

Article 24.Detailed process

1. Preparation for contractor selection, covering:

a/ Making an E-BiD;

b/ Appraising and approving the E-BiD.

2. Organization of contractor selection, covering:

a/ Issuing a NIB and an E-BiD;

b/ Modifying and clarifying the E-BiD;

c/ Submitting an E-BD;

d/ Opening an E-DTP.

3. Evaluation of E-DTPs, and submission, appraisal and approval of the list of contractors that satisfy technical requirements.

4. Opening of an E-DFP.

5. Evaluation of the E-DFP and ranking of contractors.

6. Contract negotiation, and submission, appraisal, approval and disclosure of the contractor selection result.

7. Contract finalization and signing.

Article 25.Preparation, appraisal and approval of E-BiDs

The process of preparing, appraising and approving an E-BiD must comply with Article 10 of this Circular.

Article 26.Issuance of NIBs and E-BiDs

The issuance of NIBs and E-BiDs must comply with Article 11 of this Circular. The time for preparing an E-BD is at least 20 days from the date of issuance of an E-NIB in the system for the first time.

Article 27.Modification and clarification of E-BiDs, submission of E-BDs

The modification and clarification of E-BiDs, and submission of E-BDs must comply with Articles 12 and 13 of this Circular.

Article 28.Opening of E-DTPs

1. When the time of bid opening comes, the bid solicitor shall log in to the system and select the bidding package to be opened based on the serial number of the E-NIB then decode the E-DTPs of the contractors participating in bidding.

2. A record of opening E-DTPs shall be published in the system, containing the following principal contents:

a/ Information on the bidding package:

- Serial number of the E-NIB;

- Name of the bidding package;

- Name of the bid solicitor;

- Form contractor selection;

- Type of contract;

- Time of completing the bid opening;

- Total number of contractors participating in bidding.

b/ Information on contractors participating in bidding:

- Names of contractors;

- Contract performance duration;

- Value and effect of bid security (not required for bidding packages to provide consultancy services);

- Other relevant information (if any).

3. The opening of E-DTPs shall be completed within 2 hours from the time of bid closing.

Article 29.Evaluation of E-DTPs

1. The evaluation of E-DTPs must comply with Clauses 1 thru 5, Article 15 of this Circular.

2. The experts’ team shall use the form of evaluation report (Form No. 02) issued together with Circular No. 23/2015/TT-BKHDT to make a report evaluating an E-DTP. Based on this report, the bid solicitor shall submit to the project owner for approval a list of contractors that satisfy technical requirements, made according to Appendix 3A or 3B to Circular No. 23/2015/TT-BKHDT.

3. Clarification of E-BDs: The bid solicitor and contractor shall clarify E-BDs right in the system.

Article 30.Disclosure of the list of contractors that satisfy technical requirements

After obtaining a decision approving the list of contractors that satisfy technical requirements, the bid solicitor shall post this list in the system in the following order:

1. Logging in to the system and selecting the bidding package to be posted based on the serial number of the E-NIB.

2. Selecting the Section of posting the list of contractors that satisfy technical requirements for inputting information and attaching a scanned file of the decision approving the list, then posting it in the system. If the posting is successful, the system will send a notice to the contractors named in the list.

Article 31.Opening of E-DFPs

1. The bid solicitor shall log in to the system and select the bidding package to be opened based on the serial number of the E-NIB then decode the E-DFPs of the contractors named in the list of contractors that satisfy technical requirements.

2. A record of opening an E-DFP shall be posted in the system, containing the following principal contents:

a/ Information on the bidding package:

- Serial number of the E-NIB;

- Name of the bidding package;

- Name of the bid solicitor;

- Form of contractor selection;

- Type of contract;

- Time of completing the bid opening.

b/ Information on contractors with qualified DFPs:

- Names of contractors;

- Bids offered by contractors.

Article 32.Evaluation of DFPs and approval of the ranking list of contractors

1. The evaluation of DFPs and ranking of contractors shall be carried out directly and must comply with the Bidding Law and Decree No. 63/2014/ND-CP.

2. The experts’ team shall use the form of evaluation report (Form No. 02) issued together with Circular No. 23/2015/TT-BKHDT to make a report evaluating an E-DFP. The project owner shall approve a ranking list of contractors, made according to the form in Appendix 5B to Circular No. 23/2015/TT-BKHDT.

Article 33.Contract negotiation, submission, appraisal and approval of contractor selection result

The process of contract negotiation, submission, appraisal and approval of the contractor selection result, contract finalization and signing, and disclosure of the contractor selection result must comply with Articles 17 and 18 of this Circular.

Chapter IV

ORGANIZATION OF IMPLEMENTATION

Article 34.Effect

1. This Circular takes effect on March 1, 2018. This Circular replaces the Ministry of Planning and Investment’s Circular No. 07/2016/TT-BKHDT of June 28, 2016, and Chapter III of Joint Circular No. 07/2015/TTLT-BKHDT-BTC of September 8, 2015, of the Ministry of Planning and Investment and Ministry of Finance.

2. Based on reality, the Public Procurement Agency of the Ministry of Planning and Investment may modify web forms in the system to facilitate online contractor selection, simplify administrative procedures and increase competition, equality, transparency and economic efficiency in bidding activities, while ensuring the effectiveness of the state management of bidding.

3. Ministries, ministerial-level agencies, government-attached agencies, other central agencies, People’s Committees at all levels, and related organizations and individuals shall implement this Circular and report any problems arising in the course of implementation to the Ministry of Planning and Investment for timely guidance.-

Minister of Planning and Investment
NGUYEN CHI DUNG

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