Circular No. 05/2015/TT-BKHDT dated June 16, 2015 of the Ministry of Planning and Investment detailing the making of goods procurement bidding dossiers

CIRCULAR

Detailing the making of goods procurement bidding dossiers

Pursuant to November 26, 2013 Law No. 43/2013/QH13 on Bidding;

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. 116/2008/ND-CP of November 14, 2008, defining the functions, duties, powers and organizational structure of the Ministry of Planning and Investment;

The Minister of Planning and Investment promulgates the Circular detailing the making of goods procurement bidding dossiers.

Article 1.Scope of regulation

1. This Circular details the making of goods procurement bidding dossiers for bidding packages governed by Article 1 of Bidding Law No. 43/2013/QH13, except for bidding packages of drug purchase prescribed at Point g, Clause 1, Article 1 of Bidding Law No. 43/2013/QH13, specifically as follows:

a/ Goods procurement bidding dossier form No. 1 (form No. 1) shall be used for bidding packages subject to open or restricted domestic bidding applying the single-stage single-envelop method to select contractors;

b/ Goods procurement bidding dossier form No. 2 (form No. 2) shall be used for bidding packages subject to open or restricted domestic bidding applying the single-stage two-envelop method to select contractors.

2. For goods procurement bidding packages under projects funded with official development assistance (ODA) of the Asian Development Bank (ADB) or the World Bank (WB), which are subject to national competitive bidding (NCB), the Vietnamese-language bidding dossier form issued by the ADB or the WB shall be used.

Article 2.Subjects of application

This Circular applies to organizations and individuals participating or involved in the selection of contractors for goods procurement bidding packages specified in Article 1 of this Circular.

Article 3.Use of goods procurement bidding dossier forms

1. Goods procurement bidding dossier forms promulgated together with this Circular are compiled on the basis of the bidding law of Vietnam, with bidding regulations of the ADB and the WB taken into consideration, in order to further facilitate operation of parties participating in contractor selection and further improve the competitiveness, equality, transparency and economic effectiveness of bidding activities.

2. For an ODA-funded goods procurement bidding package, if the donor so agrees, form No. 1 or No. 2 promulgated together with this Circular may be used immediately or may be used after being amended according to bidding regulations in the treaty or international agreement between Vietnam and such donor.

3. For international bidding, organizations and individuals that make bidding dossiers shall, based on the size and characteristic of each bidding package, modify regulations on the price, language, currency, incentives and time in bidding, and other relevant contents so as to ensure conformity with Bidding Law No. 43/2013/QH13 and Decree No. 63/2014/ND-CP.

4. For a small-sized goods procurement bidding package, depending on the characteristics of the bidding package, if considering it necessary to apply the single-stage two-envelop method to select contractors, the project owner shall propose such to competent persons for approval in the contractor selection plan and use form No. 2 promulgated together with this Circular to make the bidding dossier.

5. When making, appraising and approving the bidding dossier for a goods procurement bidding package, organizations and individuals shall:

a/ Use one of the goods procurement bidding dossier forms promulgated together with this Circular and, based on the size and characteristics of the bidding package, set appropriate requirements on the principles of ensuring competitiveness, equality, transparency and economic effectiveness;

b/ Based on goods use demand, set technical requirements (properties, technical parameters, etc.) so as to ensure that goods have proper utilities, meet actual use demand and suit capacity and conditions of the market;

c/ Not impose conditions to restrict the participation of contractors or create advantages for one or several contractors, thus causing unfair competition. For example, it is not allowed to state specific brand names and origin, including also names of countries, groups of countries or territories,  thus creating discrimination. When it is impossible to describe goods in detail by their technical properties, technological designs and standards, organizations and individuals may cite the brand name and catalogue of a specific product as reference and illustration of goods technical requirements but shall add the phrase “or the equivalent” after such brand name and catalogue and concurrently specify that the connotation of “equivalent” is equivalent to such goods in the terms of technical properties, uses, technological standards and other contents (if any), rather than origin.

d/ Not modify the bidding dossier form’s provisions on instructions for contractors and general conditions of contract. Other contents of the dossier form may be modified to suit the size and characteristics of the bidding package. Organizations and individuals that make, appraise and approve the bidding dossier shall ensure modifications to the bidding dossier form, if any, are more appropriate, more scientific and tighter than those stated in the dossier form and not contrary to the bidding law.The written request for approval of the bidding dossier must clearly state modified contents and reasons for modification for consideration and decision by the project owner.

6.For bidding packages to provide non-consultancy services, organizations and individuals may modify the mentioned-above bidding dossier form to suit the size and characteristics of each bidding package.

Article 4.Application of regulations on taxes, charges and fees

1.A contractor’ bid must cover all expenses necessary for execution of the bidding package, including also taxes, charges and fees (if any). Tax, charge and fee rates must comply with regulations effective at the time of 28 days prior to the time of bid closing.

2. For domestic bidding, bids shall be evaluated with all expenses for payment of taxes, charges and fees (if any) taken into consideration.

3. For international bidding, expenses for payment of taxes, charges and fees (if any) shall not be taken into consideration when evaluating bids for comparison and ranking of contractors. The specific amount of expenses for payment of taxes, charges and fees (if any) shall be determined during contract negotiation with the first ranked contractor. The proposed bid-winning price and contract price must include taxes, charges and fees (if any).

Article 5.Contract

1. The main contract type to be applied to goods procurement bidding packages is lump-sum contract. For a complicated large-sized bidding package involving special goods, which requires a period of over 18 months for contract performance, the adjustable unit price contract may apply. In this case, the bidding dossier must clearly provide the formula for price adjustment; during the process of contract performance, if the unit price changes, resulting in a need  to adjust the contract price, the contractor shall prove all factors leading to the change of the unit price.

2. A bidding dossier must comprise the contract form and detailed provisions on articles and clauses of the contract to serve as a basis for contractors to offer bids and parties to negotiate, finalize and sign contracts.

3. A contract signed between a project owner or bid solicitor and contractor must comply with the contract form and contractual conditions provided in the bidding dossier, and modifications and supplements proposed by the contractor and approved by the project owner during contract negotiation and finalization which, however, must not be contrary with the bidding law and other related laws.

Article 6.Goods sale licenses of manufacturers

1. For ordinary and common goods which are available on the market, have been standardized and are supplied under warranty conditions provided by of the  manufacturers, contractors are not required to submit goods sale licenses of manufacturers, certificates of partnership or other equivalent documents.

2. For particular and complicated goods that require manufacturers to be held responsible for provision of after-sale services such as warranty, maintenance, repair, supply of spare parts and other relevant services, contractors may be required to provide goods sale licenses of manufacturers, certificates of partnership or other equivalent documents. Contractors that fail to enclose any of the above-mentioned documents in their bid dossiers shall clarify and submit these documents later during the process of bid dossier evaluation. Bid solicitors shall receive additional documents of contractors for evaluation. Contractors may be awarded contracts only after having submitted goods sale licenses of manufacturers, certificates of partnership or other equivalent documents.

3. In case the contents of the goods sale license, certificate of partnership or other equivalent documents included in the bid dossier of a contractor still fails to satisfy the conditions provided in the bidding dossier, the bid solicitor shall not immediately disqualify the contractor’s bid dossier but request the contractor to clarify such contents so as to obtain information for evaluation of the bid dossier.

4. In case manufacturers, agents or distributors refuse to provide goods sale licenses of manufacturers, certificates of partnership or other equivalent documents to a contractor without any reasonable reasons in contravention of the laws on commerce and competition, thus creating advantages or monopoly for another contractor, the contractor should promptly report such to the Ministry of Planning and Investment and the Ministry of Industry and Trade for timely handling.

Article 7.Organization of implementation

1. This Circular takes effect on August 1, 2015, and replaces the Ministry of Planning and Investment’s Circular No. 05/2010/TT-BKH of February 10, 2010, detailing the making of bidding dossiers for goods procurement bidding packages.

2. 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. Any problems arising in the course of implementation should be reported to the Ministry of Planning and Investment for timely guidance.-

Minister of Planning and Investment

BUI QUANG VINH

BIDDING DOSSIER FORM APPLICABLE TO GOODS PROCUREMENT BIDDING PACKAGES APPLYING THE SINGLE-STAGE SINGLE-ENVELOP METHOD

(Form No. 1)

(Promulgated together with the Ministry of Planning and Investment’s Circular No. 05/2015/TT-BKHDT of June 16, 2015, detailing the making of goods procurement bidding dossiers)

BIDDING DOSSIER

Bidding package No.:                                 ________________

Bidding package name:________________

Project name:________________

[To write the bidding package number, bidding package name and project name according to the contractor selection plan]

Date of issuance:________________

[To write the date of commencement of issuance of the bidding dossier to contractors]

Promulgated together with Decision No.:________________

[To write the number and date of issuance of the decision approving the bidding dossier]

Bidding dossier making consultant                                            Bid solicitor

(if any)[full name and seal]

[full name and seal]

TABLE OF CONTENTS

Brief description

Abbreviation of terms

Part 1. BIDDING PROCEDURES

ChapterI.Instructions for contractors

Chapter II. Bid data sheet

Chapter III. Criteria for evaluation of bid dossiers

Chapter IV. Bid dossier form

Part 2. REQUIREMENTS ON SCOPE OF SUPPLY

Chapter V. Scope of supply

Part 3. CONTRACTUAL REQUIREMENTS AND FORMS

Chapter VI. General contractual terms

Chapter VII. Specific contractual terms

Chapter VIII. Contract form

Part 4. APPENDIX