Circular No. 07/2016/TT-BKHDT dated June 29, 2016 of the Ministry of Planning and Investment guiding the bidding documents and requests for proposals on online procurement of goods via online procurement network

THE MINISTRY OF PLANNING AND INVESTMENT

Circular No. 07/2016/TT-BKHDT dated June 29, 2016 of the Ministry of Planning and Investment guiding thebidding documents and requests for proposals on online procurement of goods via online procurement network

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

Pursuant to Decree No. 63/2014/ND-CP dated June 6, 2014 of the Government on guidelines for the Law on bidding in terms of selection of bidders;

Pursuant to the Government s Decree No. 116/2008/ND-CP dated November 14, 2008 defining the functions, tasks, entitlements and organizational structure of the Ministry of Planning and Investment;

The Ministry of Planning and Investmentguiding thebidding documents and requests for proposals on online procurement of goods via online procurement network.

Article 1. Scope of adjustment

This Circular provides guidelines for bidding documents and requests for proposals on selection of bidders on the system of national online procurement network at the address http://muasamcong.mpi.gov.vn (hereinafter referred to as the System) as to procurement of goods according to shopping method, or procurement of goods in small value according to national completive bidding and limited bidding applicable to single-stage and one envelope bidding procedure prescribed in Article 1 of the Law on Bidding No. 43/2013/QH13 as follows:

1. Form of bidding documents on procurement of goods via online procurement network (hereinafter referred to as online procurement of goods): Form No.1;

2. Form of requests for proposals of online procurement of goods according to shopping method: Form No.2.

Article 2. Subject of application

1. This Circular applies to organizations and individuals engaging in or involving the selection of bidders for the procurement of goods made on the System prescribed in Article 1 of this Circular.

2. Organizations and individuals conducting bidding activities not subject to scope of Article 1 of this Circular that select to apply regulations on procurement of goods via the System.

Article 3. Rules of preparation of bidding documents and requests for proposals on online procurement of goods

1. Bidding documents and requests for proposals on online procurement of goods shall be prepared according to the scope and nature of specific procurement so as to define appropriate conditions in conformity with the rules of competition, equity, transparency and economic efficiency;

2. No discriminatory condition is set out to limit the participation of any qualified bidder or to create prominent advantages for one or some bidders resulting in unfair competition, namely conditions for specific trademarks and origin of goods, including names of countries, groups of countries, regions as a discriminatory practice; in case where it fails to describe the good specifications according to its technical features, technology design, technology standards, trademark or catalog of a specific food may be defined for reference or illustration for such technical specifications as long as enclose with “or equivalent” right after the trademark or catalog and clearly define the “equivalent” meaning in terms of technical features, performance, technology standards and other conditions (if any). No regulation on origin equivalent is set out.

3. When bidding documents on online procurement of goods are prepared, no amendment is made to the regulations in Chapter I - Instructions to Bidders, Chapter VI - General Conditions of Contract of Form No. 1 issued herewith; when a request for proposals of online procurement of goods according to shopping method is prepared, no amendment is made to the regulations in Chapter I - Instructions to Bidders of Form No. 2 issued herewith. Other regulations may be amended in conformity with the scope and nature of the procurement. In case where there is any amendments to the regulations in the Form, organizations and individuals in charge of preparation, assessment and approval for the bidding documents and the request for proposals must ensure that such amendment makes the Form more appropriately, scientifically and closely and in accordance with regulations in law on bidding. The request for approval the bidding documents or the request for proposals must specify the amendments to the Form and the explanation subject to the investor s consideration.

Article 4. Contents and formats of files of bidding documents on online procurement of goods

1. Contents of bidding documents:

a) Chapter I - Instructions to Bidders;

b) Chapter II - Bid Data Sheet;

c) Chapter III - Evaluation and Qualification Criteria;

d) Chapter IV - Bidding forms and bid forms;

dd) Chapter V - Scope of Supply;

e) Chapter VI - General Conditions of Contract;

g) Chapter VII - Special Conditions of Contract;

h) Chapter VIII - Contract forms.

2. Chapter I and Chapter VI applies to all kinds of online procurements of goods which are in PDF files and posted on the System. The investor does not need to assess and approve those two Chapters upon the assessment and approval for bidding documents. Those Chapters, however, are integral parts of the bidding documents and used as the legal basis for possible dispute.

3. Chapter II, Chapter III (Table of Evaluation and Qualification Criteria), Chapter IV, Chapter V (Scope and Schedule of supply of goods and related services) and Chapter VII shall be digitized in the web forms on the System.

4. Chapter III (contents excluding Table of Evaluation and Qualification Criteria), Chapter V (contents excluding Scope and Schedule of supply of goods and related services) and Chapter VIII shall consist of files in the form of Ms Word, MS Excel, PDF, CAD, images, compressed files or other formats, which are enclosed and posted on the System by the procuring entity in conformity with the procurement.

Article 5. Contents and formats of files of requests for proposals of online procurement of goods according to shopping method

1. Contents of a request for proposals:

a) Chapter I - Instructions to Bidders;

b) Chapter II - Bid Data Sheet;

c) Chapter III - Evaluation and Qualification Criteria;

d) Chapter IV - Bidding forms and bid forms;

dd) Chapter V - Conditions for procurement;

e) Chapter VI - Draft Contract.

2. Chapter I and Chapter VI applies to all kinds of online procurements of goods according to shopping method which are in PDF files and posted on the System. The investor does not need to assess and approve those two Chapters upon the assessment and approval for the request for proposals. Those Chapters, however, are integral parts of the request for proposals and used as the legal basis for possible dispute.

3. Chapter II, Chapter III (Table of Evaluation and Qualification Criteria), Chapter IV, and Chapter V (Scope and Schedule of supply of goods and related services) shall be digitized in the web forms on the System.

4. Chapter III (contents excluding Table of Evaluation and Qualification Criteria), Chapter V (contents excluding Scope and Schedule of supply of goods and related services) and Chapter VI shall consist of files in the form of Ms Word, MS Excel, PDF, CAD, images, compressed files or other formats, which are enclosed and posted on the System by the procuring entity in conformity with the procurement.

Article 6. Preparing, approving and posting bidding documents and requests for proposals of online procurement of goods

1. Preparing and assessing bidding documents:

Step 1: The procuring entity press the “Log in” button on the homepage and insert the certification password of the procuring entity to log in the System. Then select “Goods” box to fill in the invitation to bid and bidding documents

Step 2: The procuring entity shall fill in the Bid Data Sheet; Evaluation and Qualification Criteria and key employees; Bidding forms; Scope and Schedule of supply of goods and related services; Special Conditions of Contract in the equivalent web forms on the System. The aforesaid web forms shall be subsequently printed to complete the contents of Chapter II - Bid Data Sheet, Chapter III – Table of Evaluation and Qualification criteria, Chapter IV – Bidding forms and bid forms and Chapter V - Scope of Supply (Scope and Schedule of supply of goods and related services).

Step 3: The procuring entity shall prepare Evaluation and Qualification Criteria (contents excluding Table of evaluation and qualification criteria), Scope of Supply (contents excluding scope and schedule of supply of goods and related services), and contract forms using the Form No. 1 enclosed on the System. The above web forms shall be subsequently printed to complete contents of Chapter III - Evaluation and Qualification Criteria, Chapter V - Scope of Supply, and Chapter VIII - Contract Forms.

Step 4: The procuring entity shall request the investor to conduct the assessment and approval of bidding documents. Contents of assessment and approval:

- Chapter II - Bid Data Sheet;

- Chapter III - Evaluation and Qualification Criteria;

- Chapter IV – Bidding forms and bid forms, including the following forms: Form No. 1, Form No. 2, Form No. 3, Form No. 4, Form No. 5;

- Chapter V - Scope of Supply;

- Chapter VII - Special Conditions of Contract;

- Chapter VIII - Contract forms.

Step 5: If there is any contents provided in the Step 2 of this Clause need to be amended during the assessment and approval process, the procuring entity shall log in the System and make direct amendments. If there is any of other contents need to be amended, the procuring entity shall make amendments in the drafts in Step 3 of this Clause so as to complete and submit the documents to the investor for approval.

2. Preparing and assessing a request for proposals:

Step 1: The procuring entity press the “Log in” button on the homepage and insert the certification password of the procuring entity to log in the System. Then select “Goods” box to fill in the offer and request for proposals.

Step 2: The procuring entity shall fill in the Bid Data Sheet; Evaluation and Qualification Criteria and key employees; Bidding forms; Scope and Schedule of supply of goods and related services; Special Conditions of Contract in the equivalent web forms on the System. The aforesaid web forms shall be subsequently printed to complete the contents of Chapter II - Bid Data Sheet, Chapter III – Evaluation criteria, Chapter IV – Bidding forms and bid forms and Chapter V - Conditions for procurement (Scope and Schedule of supply of goods and related services).

Step 3: The procuring entity shall prepare Evaluation and Qualification Criteria (contents excluding Table of evaluation and qualification criteria); Conditions for procurement (contents excluding scope and schedule of supply of goods and related services), and Draft contract using the Form No. 2 enclosed on the System. The above web forms shall be subsequently printed to complete contents of Chapter III - Evaluation and Qualification Criteria, Chapter V – Conditions for procurement, and Chapter VIII - Contract Forms.

Step 4: The procuring entity shall request the investor to conduct the assessment and approval of the request for proposals. Contents of assessment and approval:

- Chapter II - Bid Data Sheet;

- Chapter III - Evaluation and Qualification Criteria;

- Chapter IV – Bidding forms and bid forms, including the following forms: Form No. 1, Form No. 2, Form No. 3, Form No. 4, Form No. 5;

- Chapter V – Conditions for procurement;

- Chapter VI – Draft contract.

Step 5: If there is any contents provided in the Step 2 of this Clause need to be amended during the assessment and approval process, the procuring entity shall log in the System and make direct amendments. If there is any of other contents need to be amended, the procuring entity shall make amendments in the drafts in Step 3 of this Clause so as to complete and submit the documents to the investor for approval.

3. Approving bidding documents or request for proposals:

Bidding documents or request for proposals shall be approved in writing according to the request for approval and assessment report.

The investor shall only approve the contents in the documents submitted by the procuring entity for assessment in Step 4 of Clause 1, and Step 4 Clause 2 of this Article.

4. Posting bidding documents or request for proposals:

After the bidding documents or the request for proposals is approved by the investor, the procuring entity shall log in the System, then click to post invitation to bid or offer and enclose the files prepared in Step 3 of Clause 1, Step 3 and Step 5 of Clause 2 of this Article and the scan of the approval for the bidding documents or request for proposals granted by the investor into the invitation to bid or offer, and then publish them on the System.

5. Specific procedures are provided in theGuidein the homepage of the System and by the System operating organization.

Article 7. Validity of bidding documents, requests for proposals, bids, and proposals on online procurement of goods

1. All contents and enclosed files of the bidding documents or the request for proposals, once are posted successfully on the System according to the verification number of the procuring entity, shall be treated legally valid. The procuring entity shall be responsible for the accuracy between the bidding documents or the request for proposals posted on the System and approved by the investor.

2. The bidder shall fill in the following forms: (i) Bid submission form, (ii) Bidding forms on the System and (iii) Power of attorney, (iv) Joint venture agreement (if any), (v) Bid security, and concurrently post other information at the request of the bidding documents or the request for proposals upon its participation in the process of bidding. The bidding documents or the request for proposals, once are posted successfully on the System according to the verification number of the procuring entity, shall be treated legally valid.

Article 8. Bid price

1. The bid price of the bidder shall include total expenses to perform the contract, including taxes, fees and charges (if any). The taxes, fees and charges at 28 days prior to the bid’s closing date shall apply. The bid price shall be evaluated with expenses incurred from taxes, fees and charges (if any) that are taken into account.

2. The bidder must be responsible for determining and offering sufficient types of taxes, fees and charges (if any) in the bid price. In case where the bid does not mention taxes, fees and charges, its bid price shall be treated as the price including sufficient types of taxes, fees and charges; in this case, if the bidder is successful and awarded the contract, such bidder shall take all responsibility and make full payments of taxes, fees and charges (if any) to the State in accordance with regulations of law on taxation.

3. Discounts do not apply in the online procurement. When a bidder submit the bid or the proposal online, the System shall automatically transfer the bid price from the bidding forms to the bid submission form.

Article 9. Bid Security

1. Bid security via the online procurement network shall be made in the form of a bank guarantee from a credit institution lawfully operating in Vietnam.

2. With regard to credit institutions that are connected with the System, the bidder shall furnish a bid security online.

3. With regard to credit institutions that are not connected with the System, the bidder shall scan the bank guarantee and enclosed it in the bid submitted online. Each bidder is invited to negotiate and complete the contract must furnish the original of the bank guarantee to the procuring entity.

Article 10. Contract

1. All-inclusive contract shall apply to online procurement of goods.

2. Bidding documents and request for proposals shall include model contracts and specific regulations on terms and conditions of the contract serving as the basis for the investor to make offer and contracting parties to negotiate, complete, conclude and execute the contract.

3. Any contract concluded by the investor, the procuring entity and the contractor shall comply with the model contract, terms and conditions of contract in the bidding documents or the request for proposals and proposed amendments with the consent of the investor in the process of negotiation and completion of the contract in accordance with law on bidding and other relevant law provisions.

Article 11. Sale permits of producers

1. Regarding common and available-on-market goods which are standardized and under warranty as recommended by the producer, the bidder is not required to submit a sale permit issued by the producer or a certification of joint venture relationship or any other equivalent documents.

2. Regarding complex goods for which the producer have liability in terms of provision of after-sale services such as warranty, maintenance, repair, provision of spare parts, and other related services, the bidder may be required to submit a sale permit issued by the producer or a certification of joint venture relationship or any other equivalent documents as mentioned in the bidding documents. If the bidder fails to enclose a scan of sale permit issued by the producer or a certification of joint venture relationship or any other equivalent documents together with the bid, the bidder shall be responsible for clarifying and supplementing them during the bid evaluation. The procuring entity must receipt supplementing documents submitted by the bidder for evaluation. The bidder is only awarded the contract when the investor received a sale permit issued by the producer or a certification of joint venture relationship or any other equivalent documents.

3. If the sale permit issued by the producer or the certification of joint venture relationship or any other equivalent documents does not fully satisfy conditions required by the bidding documents, the procuring entity must request the bidder to clarify during the bid evaluation without immediate rejection of the bid.

4. If a producer, agent, or distributor intentionally does not provide the bidder with the sale permit or certification of joint venture relationship or other equivalent documents without valid reasons, does not comply with law on trade and competition resulting in the advantages or monopoly position of other bidders, the bidder must promptly notify the Ministry of Planning and Investment and the Ministry of Industry and Trade for handling.

Article 12. Implementation

1. This Circular takes effect on August 15, 2016.

2. Subject to actual condition, Public Procurement Agency of the Ministry of Planning and Investment may make necessary amendments to web forms on the System to enable entities to select bidders online so as to simplify administrative procedure, satisfy requirements of sponsors, promote the competition, equity, transparency and economic efficiency in procurement, and ensure the effectiveness of the roles of regulatory agencies in procurement.

3. Ministries, ministerial-level agencies, Governmental agencies, other agencies in central government, People’s Committees and relevant organizations and individuals shall implement this Circular. Difficulties that arise during the implementation of this Circular should be reported to the Ministry of Planning and Investment for consideration./.

The Minister

Nguyen Chi Dung