Circular 11/2016/TT-BKHDT guidance on making of bidding dossiers for EPC

CIRCULAR

Providing guidance on making of bidding dossiers for engineering, procurement and construction (EPC)

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

Pursuant to Law on Construction No. 50/2014/QH13 dated June 18, 2014;

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

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

The Minister of Planning and Investment hereby promulgates the Circular providing guidance on making of bidding dossiers for engineering, procurement and construction (EPC).

Article 1. Scope of regulation

1. This Circular provides guidance on making of bidding dossiers for engineering, procurement and construction (EPC) applicable to bidding packages of projects that are specified in Article 2 of the Bidding Law No. 43/2013/QH13 and in conformity to apply the EPC form according to Clause 1, Article 3 of this Circular. The bidding dossier forms promulgated together with this Circular shall be used for bidding packages subject to open bidding or international restricted bidding applying the single-stage and two-envelope method.

2. For an ODA-funded EPC bidding package, if the donor so agrees, bidding dossier forms 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.

Article 2. Subjects of application

1. Organizations and individuals participating or involved in the selection of contractors for EPC bidding packages specified in Article 1 of this Circular.

2. Organizations and individuals that have contractor selection activities that are not regulated by the Bidding Law No. 43/2013/QH13 but choose to apply this Circular.

Article 3. Application of the forms for EPC bidding dossier

1. EPC shall be applied to complicated projects with high technical and technological requirements and must strictly adhere to the uniformity and consistency from design to equipment supply, construction, training and transfer of technology, warranty and long-term maintenance. EPC is suitable for mechanical, electrical, petroleum, chemical, cement, mining, water supply and drainage, wastewater, and waste treatment works where the design and manufacture of equipment cannot be separated due to the high requirement of synchronization.

The EPC form shall not be applied in case a bidding package can be split into separate bidding packages, such as engineering (E), procurement (P) and construction (C) or separated into an engineering and procurement (EP) bidding package, construction (C) bidding package to create favorable conditions for domestic enterprises to participate in bidding and perform the bidding package.

2. The forms for an EPC bidding dossier promulgated together with this Circular comprise:

The form of notice of updating the bidding dossier contents

Part 1. Bidding procedures

Chapter I. Instructions to bidders

Chapter II. Bid data sheet

Chapter III. Criteria for evaluating a bid dossier

Chapter IV. Bid forms

Part 2. Requirements for a bidding package

Chapter V. Project and bidding package introduction

Chapter VI. Requirement for schedule

Chapter VII. Technical requirements and technical instruction requirements

Chapter VIII. Drawings

Part 3. Contractual conditions

Chapter IX. General conditions of contract

Chapter X. Specific conditions of contract

Appendix 1. Examples for specific conditions of contract

Chapter XI. Contract forms

Appendix 2. Examples and guidance on drafting a bidding dossier.

3. Upon making, appraising and approving a bidding dossier for EPC bidding package subject to open bidding or international restricted bidding applying the single-stage and two-envelope method as prescribed in this Circular, an organization or individual must use the forms of EPC bidding dossier attached to this Circular.

When applying these bidding dossier forms for a specific EPC bidding package, the project owner and bid solicitor must amend, supplement and complete relevant contents in Chapters of the bidding dossier forms according to each bidding package's characteristics, size and time of bid. Requirements in the bidding dossier must be given on the principle of ensuring competitiveness, fairness, transparency and economic efficiency. Bidding dossiers may not state any conditions to restrict the participation of contractors or create advantages for one contractor or some contractors, thus causing unfair competition.

- Chapter I. This Chapter includes instructions to contractors when participating in bidding, which are developed on the basis of provisions of the Bidding Law, documents guiding the implementation of the Bidding Law and relevant laws in force in Vietnam. Provisions specified in this Chapter require a reference to the BDS means that this item needs to be provided with additional information in conformity with the bidding package.

- Chapter II. Items in Chapter I that mention the BDS must be specified in the corresponding items in Chapter II when being applied to a specific bidding package.

- Chapter III. This Chapter includes regulations and instructions to formulate criteria for evaluation of bid dossiers and procedures for evaluation of bid dossiers. Criteria for evaluation must be specified to each bidding package. This Chapter provides some examples for application when formulating criteria for evaluation.

- Chapter IV. This Chapter provides forms to be completed by the contractor upon making a bid dossier.

- Chapters V, VI, VII, VIII and X. These Chapters provides instructions, forms and examples for a specific bidding package. Instructions and examples provided in these Chapters are those that are updated and used most commonly at the time of promulgating these bidding dossier forms and shall be chosen to apply according to each bidding package’s size and characteristics.

- Chapter IX. General conditions of contract promulgated by the FIDIC applicable to EPC bidding packages prescribed in Clause 3, Article 5 of this Circular are recommended for use.

- Chapter XI. Similar to Chapter IV, this Chapter includes contract forms which shall be completed by the contractor after contract award. Depending on the bidding package's size and nature, such forms may be amended according to the bidding law and relevant laws.

- Notice of updating the bidding dossier contents: This notice is an integral part of the bidding dossier and is updated in accordance with the provisions of the bidding dossier prior to issuance.

4. For EPC bidding packages applying open bidding or restricted bidding method or method of appointment of investors, depending on the bidding package's size and nature, these bidding dossier forms shall be adjusted according to the Bidding Law No. 43/2013/QH13 and the Decree No. 63/2014/ND-CP.

5. For a mixed bidding package covering engineering and procurement (EP), engineering and construction (EC), procurement and construction (PC), formulation of project, engineering, procurement and construction (turnkey), depending on the bidding package's size and nature, these bidding dossier forms or forms of bidding dossier for consultancy, procurement and construction may be adjusted according to the bidding law.

6. For a mixed bidding package applying two-stage method, the project owner may adjust these bidding dossier forms for use in accordance with the bidding law.

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

1. A contractor’s 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. 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. A bidding dossier must comprise the contract negotiation form and provisions on articles and clauses of the contract to serve as a basis for contractors to offer bids and parties to negotiate, finalize, sign and perform contracts.

2. A contract signed between a project owner and contractor must comply with the contract negotiation 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.

3. For general conditions of contract provided in the bidding dossier, it is recommended to use the set of general conditions of contract issued by the International Federation of Consulting Engineers (FIDIC) applicable to the type of EPC/turnkey contract, version 1999. In this case, it is recommended to refer to the example of specific conditions of contract posted on the website muasamcong.mpi.gov.vn.

In case of applying the set of general conditions of contract issued by the FIDIC for a specific bidding package or project, it is recommended to purchase the copyright in accordance with FIDIC’s regulations and the law on intellectual property.

Article 6. Organization of implementation

1. This Circular takes effect on October 01, 2016.

2. 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.