Circular 05/2020/TT-BKHDT amending Circular 04/2017/TT-BKHDT

CIRCULAR

On amending and supplementing a number of articles of the 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

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Pursuant to the Law on Bidding dated November 26, 2013;

Pursuant to the Law on E-Transaction dated November 29, 2005;

Pursuant to the Government’s Decree No. 63/2014/ND-CP dated June 26, 2014 on detailing a number of articles of the Bidding Law regarding contractor selection;

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

Pursuant to the 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;

At the proposal of the Director of Public Procurement Agency;

The Minister of Planning and Investment hereby promulgates the Circular on amending and supplementing a number of articles of the 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.

Article 1. To amend and supplement some contents of the 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 as follows:

1. To add Clause 8 to Article 4 as follows:

“Form No. 08: Form of bid dossier applicable to bidding packages to provide non-consultancy services for which online open bidding by the single-stage and two-envelope method is organized.” Form No. 08 attached to this Circular’s Appendix.

2. To amend and supplement Clause 8, Article 15 as follows:

“For process 01 specified in Point a, Clause 6, Article 15 of this Circular, the experts’ team shall use Form No. 01A issued together with the Circular No. 05/2018/TT-BKHDT dated December 10, 2018 of the Ministry of Planning and Investment for making a report evaluating an E-BD.  For process 02 specified in Point b, Clause 6, Article 15 of this Circular, the experts’ team shall use Form No. 01B issued together with the Circular No. 05/2018/TT-BKHDT dated December 10, 2018 of the Ministry of Planning and Investment for making a report evaluating an E-BD.”

3. To add the Clause 9 to Article 15 as follow:

“For a construction and installation bidding package, the contractor may attach a construction capacity certificate for such works or not in the E-BD, even when such certificate is required in the E-BiD. The contractor s failure to attach a certificate of construction capacity shall not be a reason for eliminating such contractor. The contractor shall continue to be considered, evaluated and selected. If the contractor is selected, the winning contractor must submit the construction capacity certificate of such works before being awarded a contract”.

4. To amend and supplement Article 16 as follows:

“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 2A issued together with the Circular No. 05/2018/TT-BKHDT dated December 10, 2018 of the Ministry of Planning and Investment.”

5. To amend and supplement Clause 2, Article 29 as follows:

“a) For non-consultancy service provision, procurement, or construction and installation bidding packages, the experts’ team shall use Part I of the Form No. 02 issued together with the Circular No. 05/2018/TT-BKHDT dated December 10, 2018 of the Ministry of Planning and Investment for making a report evaluating an E-DTP.

b) For consultancy service provision bidding packages, the experts’ team shall use Part I of the Form No. 03 issued together with the Circular No. 05/2018/TT-BKHDT dated December 10, 2018 of the Ministry of Planning and Investment for making a report evaluating an E-DTP.

c) Based on the report evaluating an E-DTP by the experts’ team, the bid solicitor shall submit to the project owner for approval a list of contractors that satisfy technical requirements, made according to Forms provided in Appendices 1A and 1B issued together with the Circular No. 05/2018/TT-BKHDT dated December 10, 2018 of the Ministry of Planning and Investment.”

6. To amend and supplement Clause 2, Article 32 as follows:

“a) For non-consultancy service provision, procurement, or construction and installation bidding packages, the experts’ team shall use Part II of the Form No. 02 issued together with the Circular No. 05/2018/TT-BKHDT dated December 10, 2018 of the Ministry of Planning and Investment for making a report evaluating an E-DFP.

b) For consultancy service provision bidding packages, the experts’ team shall use Part II of the Form No. 03 issued together with the Circular No. 05/2018/TT-BKHDT dated December 10, 2018 of the Ministry of Planning and Investment for making a report evaluating an E-DFP.

c) The project owner shall approve a ranking list of contractors, made according to the form provided in Appendix 2B issued together with the Circular No. 05/2018/TT-BKHDT dated December 10, 2018 of the Ministry of Planning and Investment.”

7. To annul Section 2.4, Chapter I Form of online construction and installation bidding dossier applying one-stage single-envelope method, Form of online procurement bidding dossier applying one-stage single-envelope method, Form of online non-consultancy service provision bidding dossier applying one-stage single-envelope method, Form of online construction and installation bidding dossier applying single-stage two-envelope method, Form of online procurement bidding dossier applying single-stage two-envelope method, Form of online consultancy service provision bidding dossier applying single-stage two-envelope method issued together with the Circular No. 04/2017/TT-BKHDT.

8. To amend and supplement Section 5.5, Chapter I Form of online construction and installation bidding dossier applying one-stage single-envelope method, Form of online procurement bidding dossier applying one-stage single-envelope method, Form of online non-consultancy service provision bidding dossier applying one-stage single-envelope method, Form of online construction and installation bidding dossier applying single-stage two-envelope method, Form of online procurement bidding dossier applying single-stage two-envelope method, Form of online consultancy service provision bidding dossier applying single-stage two-envelope method issued together with the Circular No. 04/2017/TT-BKHDT as follows:

“5.5. Registered on the System and not in the state of suspension of participation in the System as prescribed in Clause 3, Article 21 of the Circular No. 11/2019/TT-BKHDT dated December 16, 2019 of the Ministry of Planning and Investment due to the contractor has not paid the maintenance fee of the contractor s name and capacity dossier as prescribed in Point b, Clause 2, Article 24 of the Circular No. 11/2019/TT-BKHDT dated December 16, 2019 of the Ministry of Planning and Investment.

For a joint venture contractor, all member in the joint venture must satisfy above-mentioned contents”.

9. To amend and supplement Section 8, Chapter I Form of online construction and installation bidding dossier applying one-stage single-envelope method, Form of online procurement bidding dossier applying one-stage single-envelope method, Form of online non-consultancy service provision bidding dossier applying one-stage single-envelope method issued together with the Circular No. 04/2017/TT-BKHDT as follows:

“E-BiDs shall be issued without any charge on the System immediately after the bid solicitor successfully uploads an E-NIB on the System. The contractor must pay all costs related to the E-BD preparation. Expenses for submitting an E-BD with open bidding shall be VND 330,000 (including tax) and VND 220,000 (including tax) for competitive offer. In any case, the bid solicitor shall not take responsibility for costs concerning the bidding participation of the contractor.”

10. To amend and supplement Section 20.1, Chapter I Form of online construction and installation bidding dossier applying one-stage single-envelope method, Form of online procurement bidding dossier applying one-stage single-envelope method, Form of online non-consultancy service provision bidding dossier applying one-stage single-envelope method issued together with the Circular No. 04/2017/TT-BKHDT as follows:

“The bid solicitor shall carry out the bid opening on the System right after the bid opening time. If there are fewer than 03 contractors submitting E-BDs, the bid solicitor may immediately open the bid without having to deal with situations under Clause 4, Article 117 of the Decree No. 63/2014/ND-CP. If no one submits an E-BD, the bid solicitor shall consider the extension of the bid closing time or re-organize the online contractor selection”.

11. To amend and supplement Section 20.1, Chapter I Form of online construction and installation bidding dossier applying single-stage two-envelope method, Form of online procurement bidding dossier applying single-stage two-envelope method and Section 19.1, Chapter I Form of online consultancy service provision bidding dossier issued together with the Circular No. 04/2017/TT-BKHDT as follows:

“The bid solicitor shall open E-DTPs on the System right after the bid opening time. If there are fewer than 03 contractors submitting E-BDs, the bid solicitor may immediately open the bid without having to deal with situations under Clause 4, Article 117 of the Decree No. 63/2014/ND-CP. If no one submits an E-BD, the bid solicitor shall consider the extension of the bid closing time or re-organize the online contractor selection”.

12. To amend and supplement Section 4.3, Chapter III Form of online procurement bidding dossier applying single-stage two-envelope method issued together with the Circular No. 04/2017/TT-BKHDT as follows:

The phrase “of which, the ratio of the technical point (K) is 10% - 15%, the ratio of the point of the bid (G) is 85% - 90%” shall be changed to “ of which, the ratio of the technical point (K) is 10% - 30%, the ratio of the point of the bid (G) is 70% - 90%”.

13. To amend and supplement Points (i) and (ii), Section 03, Chapter III Form of online construction and installation bidding dossier applying one-stage single-envelope method, Form of online procurement bidding dossier applying one-stage single-envelope method, Form of online non-consultancy service provision bidding dossier applying one-stage single-envelope method, Form of online construction and installation bidding dossier applying single-stage two-envelope method, Form of online procurement bidding dossier applying single-stage two-envelope method issued together with the Circular No. 04/2017/TT-BKHDT as follows:

“The quantity of contracts shall equal to N or not, but at least there is 01 contract with the minimum value of V and total value of all contracts shall equal or more than X. Of which, X= N x V”.

14. To amend and supplement Point b, Note No. 7, Form No. 3 (web form on the System), Chapter III Form of online construction and installation bidding dossier applying one-stage single-envelope method, Form of online construction and installation bidding dossier applying single-stage two-envelope method, Point b, Note No. 6, Form No. 3 (web form on the System), Chapter IV Form of online non-consultancy service provision bidding dossier applying one-stage single-envelope method and Point b, Note No. 8, Form No. 3 (web form on the System), Chapter IV Form of online procurement bidding dossier applying one-stage single-envelope method,  Form of online procurement bidding dossier applying single-stage two-envelope method issued together with the Circular No. 04/2017/TT-BKHDT as follows:

The phrase “In case the contractor attaches the scan of the credit commitment of the credit institution legally operating in Vietnam in an E-BD, of which there is a commitment of credit extension for the contractor to implement the package under consideration with the minimum limit equal to the required value specified in the evaluation criteria 2.3, Form No. 03 of Chapter IV during the contract period, the contractor shall be evaluated to meet the financial requirement for the bidding package and shall not be required to make the information declaration in accordance with Forms No. 14 and 15” shall be changed to “In case the contractor attaches the scan of the credit commitment of the credit institution legally operating in Vietnam in an E-BD, of which there is a commitment of credit extension for the contractor to implement the package under consideration with the minimum limit equal to the required value specified in the evaluation criteria 2.3, Form No. 03 of Chapter IV during the contract period, the contractor must make the information declaration according to Form No. 14 and information declaration under Form No. 15 of this Chapter shall not be required. If there is any different information between the declaration form and attached credit commitment, the credit commitment attached to an E-BD shall be used as a basis for evaluation.”.

15. To amend and supplement Note No. 8, Form No. 03, Chapter III Form of online non-consultancy service provision bidding dossier applying one-stage single-envelope method issued together with the Circular No. 04/2017/TT-BKHDT as follows:

“(8) Mostly completing largely means completing at least 80% of the contract workload. For a non-consultancy service provision bidding package whose work is repetitive and cycle-based over years, leading to prolonged contract performance, the determination of the almost completion of a contract shall be based on each cycle (each year) and calculated by the workload in a cycle (one year) of such contract but not the total value of the contract over the years”.

16. To amend and supplement Note No. 2, Form No. 05, Chapter IV Form of online construction and installation bidding dossier applying one-stage single-envelope method, Form of online procurement bidding dossier applying one-stage single-envelope method, Form of online non-consultancy service provision bidding dossier applying one-stage single-envelope method, Form of online construction and installation bidding dossier applying single-stage two-envelope method, Form of online procurement bidding dossier applying single-stage two-envelope method and Note No. 2, Form No. 01, Chapter IV, Form of online consultancy service provision bidding dossier issued together with the Circular No. 04/2017/TT-BKHDT as follows:

“Authorization scope includes one or more of above-mentioned tasks. If the contractor’s legal representative authorize a director of a branch, a dependent accounting subsidiary company or a factory, etc., the bidding participation on the System must be carried out by the contractor’s digital certificate but not the digital certificate of its branch, subsidiary company or factory, etc. In case of using the digital certificate of the branch or subsidiary companies (dependent accounting), the contractor shall be considered not to meet the eligibility as prescribed in Section 5, Chapter I”.

17. To amend and supplement Note No. 1, Form No. 14 (web form on the System), Chapter IV in the Form of online construction and installation bidding dossier applying one-stage single-envelope method, Form of online procurement bidding dossier applying one-stage single-envelope method, Form of online non-consultancy service provision bidding dossier applying one-stage single-envelope method, Form of online construction and installation bidding dossier applying single-stage two-envelope method, Form of online procurement bidding dossier applying single-stage two-envelope method issued together with the Circular No. 04/2017/TT-BKHDT as follows:

The phrase “In case the contractor attaches the credit commitment issued by the credit institution legally operating in Vietnam in an E-BD, of which there is a commitment of credit extension for the contractor to implement the package under consideration with the minimum limit equal to the required value specified in the evaluation criteria 2.3, Form No. 03 of Chapter IV during the contract period, the contractor shall be evaluated to meet the financial requirement for the bidding package and shall not be required to make the information declaration in accordance with this Form and Form No. 15” shall be changed to “In case the contractor attaches the credit commitment of the credit institution legally operating in Vietnam in an E-BD, the contractor must make the information declaration according to this Form. If there is any different information between the declaration form and attached credit commitment, the credit commitment attached to an E-BD shall be used as a basis for evaluation.”

Article 2. Effect

1. This Circular takes effect on September 01, 2020.

2. For bidding packages whose E-BiDs posted on the National E-Public Procurement system before the effective date of this Circular, the contractor selection shall comply with issued E-BiDs.

3. From the effective date of this Circular, bidding packages whose E-BiDs approved in accordance with the Circular No. 04/2017/TT-BKHDT dated November 15, 2017 of the Ministry of Planning and Investment but not yet posted on the National E-Public Procurement system, such E-BiDs must be modified to be conform to this Circular.

4. From the effective date of this Circular, if a single-stage two-envelope non-consultancy service provision bidding package falls within the limit that must be bid online under Article 29 of the Circular No. 11/2019/TT-BKHDT dated December 16, 2019 of the Ministry of Planning and Investment, and does not apply online bidding according to the approve contractor selection plan, and its bidding dossiers have not been issued yet, then the contractor selection plan must be modified to conform to the online bidding roadmap.

5. 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.

6. Ministries, ministerial-level agencies, government-attached agencies, other central agencies, People’s Committees at all levels, and related organizations and individuals shall be responsible for implementing this Circular. Any problems arising in the course of implementation should be reported to the Ministry of Planning and Investment for timely guidance./.

* All Appendices are not translated herein.