Circular No. 06/2020/TT-BKHDT guiding Decree No. 25/2020/ND-CP on investor selection

CIRCULAR

Guiding the implementation of the Government’s Decree No. 25/2020/ND-CP of February 28, 2020, detailing a number of articles of the Bidding Law regarding investor selection^[1]

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

Pursuant to the Government’s Decree No. 63/2018/ND-CP of May 4, 2018, on investment in the form of public-private partnership;

Pursuant to the Government’s Decree No. 25/2020/ND-CP of February 28, 2020, detailing a number of articles of the Bidding Law regarding investor 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;

At the proposal of the Director of the Public Procurement Agency,

The Minister of Planning and Investment promulgates the Circular guiding the implementation of the Government’s Decree No. 25/2020/ND-CP of February 28, 2020, detailing a number of articles of the Bidding Law regarding investor selection.

Article 1. Scope of regulation

This Circular guides the implementation of a number of provisions of the Government’s Decree No. 25/2020/ND-CP of February 28, 2020, detailing a number of articles of the Bidding Law regarding investor selection (below referred to as Decree No. 25/2020/ND-CP), including:

1. Making of dossiers of invitation to prequalification, bidding dossiers, and dossiers of requirements for investment projects in the form of public-private partnership (below referred to as PPP projects); preliminary requirements on capacity and experience, bidding dossiers and dossiers of requirements for land-using investment projects.

2. Provisions on the implementation of land-using investment projects, covering:

a/ Identification of land-using investment projects specified in Clause 1, Article 12 of Decree No. 25/2020/ND-CP;

b/ Preliminary evaluation of capacity and experience of investors specified in Article 13 of Decree No. 25/2020/ND-CP;

c/ Appraisal of contents in bidding activities specified in Articles 75, 76 and 79 of Decree No. 25/2020/ND-CP;

d/ Order and procedures for land allocation or lease for bid-winning investors.

3. Posting of information and selection of investors in the Vietnam National E-Procurement System (below referred to as the System).

Article 2.Subjects of application

This Circular applies to agencies, organizations and individuals involved in or related to involved the selection of investors for implementation of the projects specified in Clause 1, Article 1 of Decree No. 25/2020/ND-CP.

Article 3.Making of dossiers of invitation to prequalification, bidding dossiers and dossiers of requirements for PPP projects

1. A dossier of invitation to prequalification shall be made according to the form provided in Appendix I to this Circular.

2. A bidding dossier shall be made according to the form provided in Appendix II to this Circular.

3. For projects not subject to prequalification specified in Clause 3, Article 18 and Clause 2, Article 80 of Decree No. 25/2020/ND-CP, bidding dossiers shall be made on the basis of modifying the model dossier provided in Appendix II to this Circular, of which contents on evaluation of capacity and experience of investors shall be supplemented based on Appendix I to this Circular, and which must state that the issuance, modification and clarification of bidding dossiers shall be carried out in the System.

4. For projects eligible for contractor appointment specified at Point a, Clause 3, Article 9 of Decree No. 25/2020/ND-CP, dossiers of requirements shall be made on the basis of modifying the model dossier provided in Appendix II to this Circular without including contents on comparison and ranking of investors.

5. For projects eligible for contractor appointment specified at Point b or c, Clause 3, Article 9 of Decree No. 25/2020/ND-CP, dossiers of requirements shall be made on the basis of modifying the model dossier provided in Appendix II to this Circular, of which contents on evaluation of capacity and experience of investors shall be supplemented based on Appendix I to this Circular without including contents on comparison and ranking of investors.

Article 4.Making of preliminary requirements on capacity and experience, bidding dossiers and dossiers of requirements for land-using investment projects

1. A notice of invitation for expression of interest and document on preliminary requirements on capacity and experience shall be made according to the forms provided in Appendix III to this Circular.

2. A bidding dossier shall be made according to the form provided in Appendix IV to this Circular, of which the floor level of state budget remittance (m₃) shall be determined under Point k, Clause 2, Article 47 of Decree No. 25/2020/ND-CP. In the course of implementation, competent persons and bid solicitors may determine input parameters for calculating the value of m₃or shall comply with the guidance provided in Appendix V to this Circular, ensuring fairness, transparency, objectivity, scientificity, feasibility and land use efficiency, causing no disadvantage to involved parties and avoiding loss of state budget revenues.

3. For projects eligible for contractor appointment specified in Clause 3, Article 10 of Decree No. 25/2020/ND-CP, dossiers of requirements shall be made on the basis of modifying the model dossier provided in Appendix IV to this Circular without including contents on comparison and ranking of investors. The determination of the value of m₃must comply with Clause 2 of this Article.

Article 5.Principles of application and modification of model dossiers

1. In Appendices I, II, III and IV to this Circular,italicizedwords are for instructive and illustrative purposes which shall be specified depending on the size, characteristics, field and particularities (if any) of each project.

2. The modification of model dossiers specified in Clauses 3, 4 and 5, Article 3 and Clause 3, Article 4 of this Circular must comply with the Bidding Law, the Government’s Decree No. 63/2018/ND-CP of May 4, 2018, on investment in the form of public-private partnership, Decree No. 25/2020/ND-CP, and other regulations relating to the implementation of projects.

3. In addition to the criteria for evaluation of capacity and experience of investors provided in Appendices I, II, III and IV to this Circular, competent persons, provincial-level Departments of Planning and Investment and bid solicitors may add other appropriate criteria for evaluation which:

a/ Must be suitable to the size, characteristics, field and particularities (if any) of each project;

b/ Must not be contrary to law; and neither restrict the participation of investors nor aim to create advantages for one or more than one investor, thus causing unfair competition.

In case of addition of criteria for evaluation of capacity and experience, a request for approval of a dossier of invitation to prequalification, preliminary requirements on capacity and experience, bidding dossier or dossier of requirements must have detailed explanations about to-be-added contents and reasons for a competent person to make consideration and decision.

Article 6.Contents relating to the implementation of land-using investment projects

1. Identification of land-using investment projects specified in Clause 1, Article 12 of Decree No. 25/2020/ND-CP

Investment projects using land for construction of commercial houses; trade and service works; or multi-function works and complexes for commercial purposes and fully satisfying the conditions specified in Article 11 of Decree No. 25/2020/ND-CP (except those specified in Article 26 of the Bidding Law or Clause 3, Article 10 of this Decree) shall be included in the lists of land-using investment projects, of which:

a/Commercial housesshall be identified under Clause 4, Article 3 of Housing Law No. 65/2014/QH13 of November 25, 2014;

b/Trade and service worksshall be identified under Point e, Section I.2, Appendix I (Classification of construction works) to the Government’s Decree No. 46/2015/ND-CP of May 12, 2015, on quality management and maintenance of construction works;

c/Multi-function works and complexes, whichare multi-function works of trade and service works specified at Point b of this Clause, shall be identified under Clause 1, Article 1 of the Minister of Construction’s Circular No. 07/2019/TT-BXD of November 7, 2019, amending, supplementing or replacing a number of provisions of the Minister of Construction’s Circular No. 03/2016/TT-BXD of March 10, 2016, on the grading of construction works and guiding the application of construction work grades in the management of construction investment activities.

2. Preliminary evaluation of capacity and experience of investors specified in Article 13 of Decree No. 25/2020/ND-CP

a/ The preliminary evaluation of capacity and experience of an investor shall be carried out based on the preliminary requirements on capacity and experience, dossier of project implementation registration of the investor and documents clarifying such dossier (if any).

b/ Based on evaluation results, the provincial-level Department of Planning and Investment shall propose the chairperson of the provincial-level People’s Committee to decide on organization of implementation of the project under Clause 3, Article 13 of Decree No. 25/2020/ND-CP.

3. In case only one investor meets preliminary requirements on capacity and experience, the chairperson of the provincial-level People’s Committee shall, based on the implementation schedule, investment attraction targets and other specific conditions of the project, consider and decide on either of the following plans:

a/ Plan 1: To notify and guide the investor in submitting a dossier of request for investment policy decision under the investment law and other relevant laws in accordance with Point b, Clause 3, Article 13 of Decree No. 25/2020/ND-CP if the process of implementation organization ensures publicity, transparency and competition and the project needs to be accelerated;

b/ Plan 2: To extend the time limit for project implementation registration. The extension period shall be decided by the chairperson of the provincial-level People’s Committee which must be long enough for other potential investors to access information and submit dossiers of project implementation registration in order to increase competition. Investors who satisfy the requirements are not required to re-submit the dossier of project implementation registration.

After the extension, if more investors satisfy preliminary requirements on capacity and experience, Point a, Clause 3, Article 13 of Decree No. 25/2020/ND-CP shall be applied. If no more investor satisfies preliminary requirements on capacity and experience, Point b, Clause 3, Article 13 of Decree No. 25/2020/ND-CP shall be applied.

4. Appraisal of contents in bidding activities specified Articles 75, 76 and 79 of Decree No. 25/2020/ND-CP

a/ Provincial-level Departments of Planning and Investment shall assume the prime responsibility for appraising bidding dossiers, dossiers of requirements, lists of investors satisfying technical requirements, and investor selection results, in case such dossiers, lists and results are to be approved by chairpersons of provincial-level People’s Committees.

b/ Planning and finance sections of specialized agencies of provincial-level People’s Committees shall assume the prime responsibility for appraising bidding dossiers, dossiers of requirements, lists of investors satisfying technical requirements, and investor selection results, in case such dossiers, lists and results are to be approved by heads of specialized agencies as authorized by chairpersons of provincial-level People’s Committees.

c/ Planning and finance sections of district-level People’s Committees shall assume the prime responsibility for appraising bidding dossiers, dossiers of requirements, lists of investors satisfying technical requirements, and investor selection results, in case such dossiers, lists and results are to be approved by chairpersons of district-level People’s Committees as authorized by chairpersons of provincial-level People’s Committees.

5. For land-using investment projects specified in the Government’s Decree No. 30/2015/ND-CP of March 17, 2015, detailing a number of articles of the Bidding Law regarding investor selection, from the effective date of Decree No. 25/2020/ND-CP (April 20, 2020), after payment of compensation, provision of support and resettlement are completed in accordance with the land law, the allocation or lease of land to investors must comply with Clause 2, Article 60 of Decree No. 25/2020/ND-CP.

Article 7.Posting of information and issuance of preliminary requirements on capacity and experience, dossiers of invitation to prequalification and bidding dossiers in the System

1. Posting of information in the System

a/ Responsibilities and time limits for information posting

- Provincial-level Departments of Planning and Investment shall post lists of land-using investment projects and notices of invitation for expression of interest in the System within 7 working days after such lists are approved.

- Bid solicitors shall post notices of invitation to prequalification for PPP projects, notices of invitation for bids for PPP projects not subject to prequalification and notices of invitation for bids for land-using investment projects in the System according to the progress of investor selection.

b/ When posting the information specified at Point a of this Clause, the following accompanying documents shall also be posted:

- Decisions approving lists of land-using investment projects, including preliminary requirements on capacity and experience;

- Decision approving dossiers of invitation to prequalification for PPP projects;

- Decision approving bidding dossiers for PPP projects not subject to prequalification and land-using investment projects.

c/ The posting of other information during the process of investor selection in the System must comply with the Minister of Planning and Investment’s Circular No. 11/2019/TT-BKHDT of December 16, 2019, stipulating in detail the provision and posting of information on bidding, roadmap for organization of online selection of contractors, and management and use of non-refundable bid security and contract performance security amounts (below referred to as Circular No. 11/2019/TT-BKHDT).

2. Issuance of preliminary requirements on capacity and experience, dossiers of invitation to prequalification and bidding dossiers in the System

a/ The following dossiers shall be issued in the System together with notices of invitation for expression of interest, notices of invitation to prequalification and notices of invitation for bids:

- Preliminary requirements on capacity and experience of investors implementing land-using investment projects;

- Dossiers of invitation to prequalification for PPP projects;

- Bidding dossiers for PPP projects not subject to prequalification and bidding dossiers for land-using investment projects.

Investors shall download a dossier file in the System for use as as a basis to make dossiers of land-using investment project implementation registration, dossiers of participation in prequalification for PPP projects and bids.

b/ In case a dossier of invitation to prequalification or bidding dossier is sold under Clause 1, Article 7 of Decree No. 25/2020/ND-CP, the investor shall pay to the bid solicitor an amount equal to the selling price of such dossier when submitting a dossier of participation in prequalification or a bid.

c/ Bidding dossiers for PPP projects subject to prequalification shall be issued directly to investors on the shortlist. The modification and clarification of bidding dossiers must comply with Article 32 of Decree No. 25/2020/ND-CP.

3. Checking of information stated in notices of invitation for expression of interest, notices of invitation to prequalification and notices of invitation for bids

a/ The Bidding Newspaper shall check information stated in notices of invitation for expression of interest, notices of invitation to prequalification and notices of invitation for bids posted by provincial-level Departments of Planning and Investment and bid solicitors.

b/ If detecting invalid information, the Bidding Newspaper shall send a notice to the concerned provincial-level Department of Planning and Investment and bid solicitor within 2 working days after such information is posted in the System. The notification shall be sent in the System, via email, mobile applications and other information channels.

c/ Within 3 working days after receiving the notice specified at Point b of this Clause, the provincial-level Department of Planning and Investment and bid solicitor shall modify posted contents.

d/ Past the time limit specified at Point c of this Clause, if the invalid information has not been modified yet, the System shall publicize such invalid information. The information-posting units shall take responsibility before law for the posted information.

4. Posting of information on the Bidding Newspaper

a/ Notices of invitation for expression of interest, notices of invitation to prequalification and notices of invitation for bids specified at Point a, Clause 1 of this Article shall be extracted and posted on the Bidding Newspaper on 1 issue within 2 working days after they are posted in the System and proved to be valid.

b/ Charges for posting information are specified in Clause 1, Article 24 of  Circular No. 11/2019/TT-BKHDT.

Article 8.Modification and clarification of preliminary requirements on capacity and experience, dossiers of invitation to prequalification or bidding dossiers issued in the System

1. Modification and clarification of preliminary requirements on capacity and experience for land-using investment projects

a/ Modification of preliminary requirements on capacity and experience

In case of modification of preliminary requirements on capacity and experience, a provincial-level Department of Planning and Investment shall post in the System a modification decision together with modified contents at least 10 days before the deadline for submission of a dossier of project implementation registration.

b/ Clarification of preliminary requirements on capacity and experience

- If wishing to have preliminary requirements on capacity and experience clarified, an investor shall send a clarification request to a provincial-level Department of Planning and Investment in written form or via the System at least 5 working days before the deadline for submission of a dossier of project implementation registration for consideration and processing.

- The provincial-level Department of Planning and Investment shall clarify preliminary requirements on capacity and experience at the investor’s request and post the written clarification in the System at least 2 working days before the deadline for submission of a dossier of project implementation registration.

- Clarified contents must not be contrary to approved contents. In case the clarification leads to the modification of preliminary requirements on capacity and experience, Point a of this Clause shall be applied.

2. Modification and clarification of dossiers of invitation to prequalification or bidding dossiers

a/ Modification of dossiers of invitation to prequalification or bidding dossiers

In case of modification of a dossier of invitation to prequalification or a bidding dossier,  a bid solicitor shall post a modification decision together with modified contents in the System at least 10 days, for prequalification, 15 days, for national bidding, or 25 days, for  international bidding, before the bid closing date.

For a PPP project of group C, the bid solicitor must post in the System a modification decision together with modified contents of the dossier of invitation to prequalification or bidding dossier at least 3 working days before the bid closing date.

b/ Clarification of dossiers of invitation to prequalification or bidding dossiers

- If wishing to have a dossier of invitation to prequalification or a bidding dossier clarified, an investor shall send a clarification request to the bid solicitor in written form or via the System at least 5 working days (for prequalification), 7 working days (for national bidding) or 15 days (for international bidding) before the bid closing date for consideration and processing.

- The bid solicitor shall clarify the dossier of invitation to prequalification or the bidding dossier at the investor’s request and post the written clarification in the System at least 2 working days before the bid closing date.

- The clarified contents must not be contrary to the approved contents. In case the clarification leads to the modification of dossiers of invitation to prequalification or bidding dossiers, Point a of this Clause shall be applied.

Article 9. Extension of time limits for submission of registration dossiers for implementation of land-using investment projects and extension of the bid closing time in the System

In case of extension of time limits for submission of registration dossiers for implementation of land-using investment projects or extension of the bid closing time in the System, provincial-level Departments of Planning and Investment and bid solicitors shall post in the System an extension notice together with an extension decision, which must specify:

1. Reason for extension;

2. Deadline for submission of a dossier of project implementation registration, or the bid closing date after the extension;

3. Name of the investor who satisfies preliminary requirements on capacity and experience or passes prequalification in case of extension under Point b, Clause 3, Article 6 of this Circular or Clauses 3 and 4, Article 23 of Decree No. 25/2020/ND-CP.

Article 10.Submission and clarification of registration dossiers for implementation of land-using investment projects in the System

1. Investors shall submit registration dossiers for implementation of land-using investment projects in the System. Past the deadline for submission of dossiers of project implementation registration, a provincial-level Department of Planning and Investment shall access the System and evaluate the dossiers of project implementation registration submitted by the investors.

2. The clarification of dossiers of project implementation registration (if any) shall be conducted in the System by provincial-level Departments of Planning and Investment and investors.

Article 11.Extension of time limits for submission of registration dossiers for implementation of land-using investment projects in case the System encounters an incident

When the System encounters an incident and therefore has to suspended service provision, land-using investment projects with their deadlines for submission of dossiers of project implementation registration falling in the period of the incident occurrence shall be extended as follows:

1. In case the incident has been dealt with and the System resumes its operation between 0:00 hour and 12:00 hours, the new deadline is 15:00 hours of the same day, except the case specified in Clause 3 of this Article.

2. In case the incident has been dealt with and the System resumes its operation between after 12:00 hours and 24:00 hours, the new deadline is 9:00 hours of the next day, except the case specified in Clause 3 of this Article.

3. In case the incident has been dealt with and the System resumes its operation on Saturday, Sunday or a public holiday, the new deadline is 9:00 hours of the first working day following the weekend or holiday.

Article 12.Announcement of the list of projects subject to bidding according to specialized laws and the law on socialization activities in the System

1. Within 7 working days after being approved, the list of projects subject to bidding according to specialized laws and the law on mobilization of social resources shall be posted in the System.

2. Information to be posted includes:

a/ Information on a project: Name of the project; investment objectives and scale; fundamental requirements of the project; investment duration and schedule; project location; and other information (if any).

b/ Time limit for registration of interest in project implementation;

c/ Information for investors to make contacts and register their interest in project implementation.

3. The information specified in Clause 1 of this Article shall be posted together with a decision on approval of the list of projects.

4. The formulation, approval and announcement of the list of projects; model bidding dossier, and other contents (if any) for projects subject to bidding according to specialized laws and the law on mobilization of social resources must comply with the guidance of ministries, ministerial-level agencies or government-attached agencies as specified in Clause 3, Article 16 of Decree No. 25/2020/ND-CP. Pending the issuance of detailed regulations by ministries, ministerial-level agencies or government-attached agencies, bidding dossiers shall be formulated on the basis of modifying the model dossier provided in Appendix III or IV to this Circular.

In all cases, investor selection under specialized laws and the law on mobilization of social resources must ensure attainment of objectives of competition, fairness, transparency and economic efficiency; and comply with the bidding law, relevant specialized laws, and the law on mobilization of social resources.

Article 13.Instructions on the use of the System and format of attached files to be sent to the System

1. The posting of information; issuance, modification and clarification of preliminary requirements on capacity and experience, dossiers of invitation to prequalification or bidding dossiers; extension of time limits for submission of dossiers of project implementation registration and extension of the bid closing time in the System must comply with use instructions posted in the System.

2. Files to be posted in the System must:

a/ Be in MS Word, MS Excel, PDF or CAD format or image formats; and be in Unicode font. Large files must be in *.zip, or *.rar format before being posted in the System;

b/ Be free from viral infection, error or failure and require no password.

Article 14.Transitional provisions

1. For the list of land-using investment projects (including also preliminary requirements on capacity and experience of investors) announced between the effective date of Decree No. 25/2020/ND-CP (April 20, 2020) and before the effective date of this Circular which is compliant with the Bidding Law and Decree No. 25/2020/ND-CP, procedures for announcement are not required to be conducted again.

2. For dossiers of invitation to prequalification, bidding dossiers or dossiers of requirements issued between the effective date of Decree No. 25/2020/ND-CP and before the effective date of this Circular which are compliant with the Bidding Law and Decree No. 25/2020/ND-CP, they are not required to be modified or re-issued under this Circular. Bid solicitors shall evaluate dossiers of participation in prequalification, bids or proposals, and approve bid-winning results based on contents of the issued dossiers of invitation to prequalification, bidding dossiers or dossiers of requirements, which include the requirement on state budget remittance (m₃).

3. If dossiers of invitation to prequalification are issued before the effective date of Decree No. 25/2020/ND-CP under Clause 3, Article 90 of Decree No. 25/2020/ND-CP, investor selection shall be conducted as follows:

a/ If two or more investors pass prequalification for a project, open bidding may apply to the project under Clauses 1 and 2, Article 9 of Decree No. 30/2015/ND-CP. Procedures for selecting next-ranked investors must comply with Chapters III, IV and V of Decree No. 30/2015/ND-CP. Bidding dossiers shall be issued to investors on the shortlist under Clause 1, Article 30, Article 49 and Article 61 of Decree No. 30/2015/ND-CP.

b/ If one investor passes prequalification for a project, contractor appointment may apply to the project under Point a, Clause 3, Article 9 of Decree No. 30/2015/ND-CP. Procedures for selecting next-ranked investors must comply with Chapter VI of Decree No. 30/2015/ND-CP.

c/ Contents of bidding dossiers and dossiers of requirements shall be formulated in accordance with Decree No. 30/2015/ND-CP, guiding circulars and relevant laws effective at the time of approval of such dossiers.

d/ Bid-winning investors shall implement projects according to provisions of contracts, the laws on investment, construction, land,  and planning, and other relevant laws.

Article 15.Organization of implementation

1. In the course of implementation of this Circular, if the legal documents referred to in this Circular are amended, supplemented or replaced, the amending, supplementing or replacing legal documents shall prevail.

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 and report any problems arising in the course of implementation of this Circular to the Ministry of Planning and Investment for guidance.

Article 16.Effect

1. This Circular takes effect on November 5, 2020.

2. This Circular replaces the Minister of Planning and Investment’s Circular No. 15/2016/TT-BKHDT of September 29, 2016, guiding the making of dossiers of invitation to prequalification and bidding dossiers for selection of investors to implement investment projects in the form of public-private partnership, and the Minister of Planning and Investment’s Circular No. 16/2016/TT-BKHDT of December 16, 2016, guiding the making of dossiers of invitation to prequalification and bidding dossiers for selection of investors to implement land-using investment projects, except the case specified in Clause 3, Article 14 of this Circular.-

Minister of Planning and Investment
NGUYEN CHI DUNG

* The appendices to this Circular are not translated.