Circular No. 09/2020/TT-BKHDT bidding documents for procurement of goods under Comprehensive Agreement

CIRCULAR

Providing in detail the making of procurement bidding dossiers for bidding packages regulated by the Comprehensive and Progressive Agreement for Trans-Pacific Partnership^[1]

Pursuant to the November 26, 2013 Bidding Law;

Pursuant to the National Assembly’s Resolution No. 72/2018/QH14 of November 12, 2018, ratifying the Comprehensive and Progressive Agreement for Trans-Pacific Partnership and relevant documents;

Pursuant to the Government’s Decree No. 95/2020/ND-CP of August 24, 2020, guiding the implementation of procurement bidding under the Comprehensive and Progressive Agreement for Trans-Pacific Partnership;

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 prescribing in detail the making of procurement bidding dossiers for bidding packages regulated by the Comprehensive and Progressive Agreement for Trans-Pacific Partnership.

Article 1. Scope of regulation

This Circular provides in detail the making of procurement bidding documents for bidding packages referred to in Article 1 of the Government’s Decree No. 95/2020/ND-CP of August 24, 2020, guiding the implementation of procurement bidding under the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (below referred to as Decree No. 95/2020/ND-CP).

Article 2. Subjects of application

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

Article 3. Application of procurement bidding dossier forms

1. To apply:

a/ Procurement bidding dossier form No. 01 (Form No. 01) to bidding packages subject to open bidding according to the single-stage one-envelope contractor selection method;

b/ Procurement bidding dossier form No. 02 (Form No. 02) to bidding packages subject to open bidding according to the single-stage two-envelope contractor selection method.

2. When making, appraising and approving procurement bidding dossiers, organizations and individuals shall:

a/ Base themselves on scale and nature of each bidding package to set appropriate requirements, ensuring adherence to principles of competition, equality, transparency and economic efficiency;

b/ Base themselves on goods use demand to set technical requirements (technical specifications or parameters, etc.), ensuring satisfaction of requirements on functions and actual use needs and conforming to market conditions;

c/ For intra-region bidding, a bidding dossier must clearly state that only the intra-region contractor that offers goods originating from a member state is allowed to participate in bidding. A member state is a state satisfying the following conditions:

- Concluding the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP Agreement) on March 8, 2018; and,

 - At the time of approving bidding dossiers of bidding packages, the CPTPP Agreement takes effect for that state;

d/ Refrain from setting conditions to limit the participation of contractors or to create advantages for one or several contractor(s) that cause unfair competition, such as stating specific trademarks or origin of goods, including also names of countries, groups of countries and territories causing discrimination, except the case of intra-region bidding specified in Articles 4 and 15 of Decree No. 95/2020/ND-CP and at Point c of this Clause; refrain from regarding the requirement that contractors must be those having previously concluded and performed one or several contract(s) with the procurement authority of a particular country or territory, or that contractors must have experience in providing goods or services in the territory of such country or territory as a criterion for eliminating contractors.

When a goods item cannot be described in detail based on its technical specifications, technological designs or technological standards, a mark or catalog of a specific product of the goods may be used for reference and illustration for technical requirements of the goods, but shall be followed by the words “or equivalent”, and it is also required to clearly state the equivalent connotation of such goods in terms of their technical specification, use functions, technological standards and other contents (if any) but it is not allowed to state the equivalent connotation in terms of origin;

dd/ If modifying the provisions stated in a bidding dossier form, organizations and individuals that make, appraise and approve the bidding dossier must ensure that modified contents are more appropriate, scientific and stringent than those in the bidding dossier form and not contrary to the CPTPP Agreement. A written request for approval of the bidding dossier must clearly state modified contents against provisions in the bidding dossier form and reason(s) for such modification for the project owner’s consideration and decision.

 3. For procurement bidding packages subject to contractor appointment, the relevant bidding dossier forms may be used and modified for application as appropriate.

Article 4. Sale licenses of producers

1. For ordinary and common goods that are available on the market and have been standardized and warranted under producers’ regulations, contractors are not required to submit sale licenses or letters of sale authorization of producers or distribution agents, or certificates of partnership or equivalent documents (below collectively referred to as sale licenses).

2. For particular and complicated goods which require confirmation from producers or providers to ensure feasible provision of goods when contractors win bids and which bind the responsibility of producers in the provision of after-sales services such as installation, maintenance, training and other related services, a bidding dossier may contain a requirement for contractors participating in bidding to provide sale licenses.

In case a contractor fails to enclose the bid dossier with its/his/her sale license as required by the bidding dossier, such bid dossier may still be considered and evaluated for approval of the bid winner. The contractor’s failure to enclose the bid dossier with its/his/her sale license as required by the bidding dossier does not constitute a reason for eliminating the contractor. In case the contractor wins the bid, it/he/she shall produce its/his/her sale license before signing a contract and take responsibility for accuracy of documents and information it/he/she has provided. If the contractor cannot produce such sale license, the next-ranked contractor will be invited for negotiation of contract.

3. In case a sale license has contents not fully satisfying the conditions specified in the bidding dossier, the bid solicitor shall request the concerned contractor to clarify such contents in order to have sufficient information to serve the contract handover, including the permission for the contractor to replace or add information on the sale license.

4. In case producers and distribution agents within the territory of Vietnam deliberately fail to provide a contractor with sale licenses without plausible reasons, or fail to comply with the laws on commerce and competition, thus creating advantages or monopoly for other contractors, the contractor shall report such to the Ministry of Industry and Trade for prompt settlement.

Article 5. Requirements for provision of samples

1. For ordinary and common goods that are available on the market and have been standardized, contractors are not required to provide samples.

2. In case goods of a bidding package are particular or complicated, making the project owner or bid solicitor unable to determine their specific shapes and designs and such goods need to be manufactured or produced singly or separately, the concerned contractor should be required to provide samples to demonstrate technical specifications of the goods. In this case, the written request for approval of the bidding dossier must clearly state reason(s) for the project owners to make consideration and decision. The project owner and bid solicitor shall ensure that the requirement for provision of samples does not increase the cost of the bidding package, limit the participation of contractors or create advantages for one or several contractor(s), thus causing unfair competition.

3. In case a bidding dossier contains the requirement on provision of samples, the concerned contractor may additionally provide samples after the time of bid closing.

Article 6. Requirement on mobilization of personnel to execute bidding packages

1. For the job of provision of goods, a bidding dossier must not contain the requirement on mobilization of key personnel.

2. For common goods that are available on the market and do not require highly qualified personnel to provide related services, the requirement on key personnel is not set out. In case related services involve particular and complicated jobs which must be performed by knowledgeable and experienced personnel, the requirement on mobilization of key personnel may be set out for performance of such jobs. In this case, the written request for approval of the bidding dossier must clearly state reason(s) for the project owner to make consideration and decision. The project owner and bid solicitor shall ensure that the requirement on mobilization of key personnel does not limit the participation of contractors or create advantages to one or several contractor(s), thus causing unfair competition.

3. If a bidding dossier contains the requirement on mobilization of key personnel, in the bid dossier, the concerned contractor must demonstrate its/his/her capacity to readily mobilize the proposed key personnel to participate in the execution of the bidding package meeting requirements stated in the bidding dossier. Key personnel may be on the contractor’s payroll or mobilized by the contractor. In case key personnel proposed by the contractor do not meet the requirements stated in the bidding dossier, the experts’ team and bid solicitor should request the contractor to replace other personnel who meet requirements for a suitable period to continue considering and evaluating the contractor’s bid dossier instead of immediately eliminating it. In all cases, the contractor must ensure the truthfulness of declared information on background and experience of key personnel.

Article 7. Contracts

1. Lump-sum contract is a contract mainly applicable to procurement bidding packages. For particular, complicated or large-scale goods requiring the duration of contract performance of over 18 months, a contract with adjustable unit prices may be applied. When applying a contract with adjustable unit prices, a bidding dossier must clearly state the price adjustment formula; in the course of contract performance, if the change in unit price requires the adjustment of the contract price, the concerned contractor shall demonstrate factors that lead to such change.

2. A bidding dossier must comprise a contract form and detailed terms and clauses as a basis for the contractor to offer bids and for related parties to negotiate, finalize and conclude the contract.

3. The arbitrary termination of a contract specified in Section 29.3 of General conditions of contract in the bidding dossier forms provided in the appendices to this Circular may only be carried out if being permitted by a competent person with plausible reason(s).

4. A contract signed between the project owner and a contractor must comply with the contract form, contract conditions specified in the bidding dossier and modifications proposed by the contractor and approved by the project owner in the process of contract negotiation and finalization, but must not contravene the bidding law, the CPTPP Agreement and other relevant laws.

Article 8. Organization of implementation

1. This Circular takes effect on January 15, 2021.

2. For bidding packages regulated by the CPTPP Agreement with the time of bid opening taking place before the effective date of this Circular, the evaluation of bid dossiers and approval of bid winners must comply with the provisions stated in the bidding dossiers but must not contravene the CPTPP Agreement.

3. For bidding packages regulated by the CPTPP Agreement with bidding dossiers approved and issued before the effective date of this Circular but with the time of bid closing taking place after the effective date of this Circular and the time of bid closing not due, if their contents are inconsistent with or contrary to those specified in the bidding dossier forms provided in the appendices to this Circular, they shall be modified as appropriate. In case a bidding dossier is modified after it is issued, the project owner or bid solicitor shall give the concerned contractor a reasonable period of time for preparation of the bid dossier.

4. For bidding packages regulated by the CPTPP Agreement with bidding dossiers approved before the effective date of this Circular but not yet issued, they shall be modified according to the bidding dossier forms provided in the appendices to this Circular.

5. The organizations listed in the Appendix to Decree No. 95/2020/ND-CP and related organizations and individuals shall implement this Circular. Any problem arising in the course of implementation of this Circular should be reported to the Ministry of Planning and Investment for prompt guidance.-

Minister of Planning and Investment
NGUYEN CHI DUNG

* The appendices to this Circular are not translated.