Circular 12/2022/TT-BKHDT bidding dossiers for bidding packages on procurement under CPTPP

CIRCULAR

Providing in detail the making of bidding dossiers for bidding packages on procurement regulated by the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, the Free Trade Agreement between the Socialist Republic of Vietnam and the European Union and the Free Trade Agreement between the Socialist Republic of Vietnam and the United Kingdom of Great Britain and Northern Ireland^[1]

Pursuant to the November 26, 2013 Bidding Law;

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

Pursuant to the Government’s Decree No. 09/2022/ND-CP of January 12, 2022, amending and supplementing a number of articles of the Government’s Decree No. 95/2020/ND-CP of August 24, 2020, guiding the implementation of bidding for procurement under the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (below referred to as Decree No. 09/2022/ND-CP), to guide the implementation of bidding for procurement under the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, the Free Trade Agreement between the Socialist Republic of Vietnam and the European Union and the Free Trade Agreement between the Socialist Republic of Vietnam and the United Kingdom of Great Britain and Northern Ireland;

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 providing in detail the making of bidding dossiers for bidding packages on procurement regulated by the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, the Free Trade Agreement between the Socialist Republic of Vietnam and the European Union and the Free Trade Agreement between the Socialist Republic of Vietnam and the United Kingdom of Great Britain and Northern Ireland.

Article 1. Scope of regulation

This Circular provides in detail the making of bidding dossiers for bidding packages on procurement regulated by the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), the Free Trade Agreement between the Socialist Republic of Vietnam and the European Union (EVFTA) and the Free Trade Agreement between the Socialist Republic of Vietnam and the United Kingdom of Great Britain and Northern Ireland (UKVFTA), which are eligible for open bidding according to the single-stage one-envelope or single-stage two-envelope contractor selection method.

Article 2. Subjects of application

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

Article 3. Application of forms of bidding dossiers on procurement

1. Application of forms of bidding dossiers:

a/ Form of bidding dossier on procurement No. 01 (Form No. 01) shall be applicable to bidding packages subject to open bidding according to the single-stage one-envelope contractor selection method;

b/ Form of bidding dossier on procurement No. 02 (Form No. 02) shall be applicable to bidding packages subject to open bidding according to the single-stage two-envelope contractor selection method.

2. For bidding packages on procurement subject to contractor appointment, it is allowed to apply this Circular to the making of dossiers of requirements, ensuring that such application does not contravene the CPTPP, EVFTA and UKVFTA.

Article 4. Making of bidding dossiers

1. The making, appraisal and approval of bidding dossiers for bidding packages on procurement must meet the following requirements:

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

b/ Depending on goods use demand, to set technical requirements, ensuring satisfaction of requirements on functions and suitability to actual use needs and market conditions;

c/ To refrain from setting conditions to limit the participation of contractors or to create advantages for one or several contractor(s), thus causing unfair competition (such as stating trademarks or specific origin of goods, even stating names of countries, groups of countries and territories practicing discrimination, except the case of intra-region bidding specified in Article 15 of Decree No. 95/2020/ND-CP); to refrain from setting a 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 domain of such country or territory as a criterion for eliminating contractors.

In case it is impossible to describe a goods item in detail based on its technical specifications, technological designs or technological standards, it is allowed to use the mark or catalog of a specific product for reference and illustration for technical requirements of the goods, provided that such mark or catalog shall be followed by the words “or equivalent”; at the same time, it is required to clearly state the connotation of equivalence with such goods in terms of their technical specifications, use functions, technological standards and other contents (if any) but not the equivalence in terms of origin;

d/ In case of modifying the form of bidding dossier, an organization or individual that makes, appraises or approves the bidding dossier shall ensure that the modified contents are appropriate and more stringent than those stated in the form of bidding dossier and not contrary to the CPTPP, EVFTA and UKVFTA. A written request for approval of the bidding dossier must clearly state the modified contents against those stated in the form of bidding dossier and reason(s) for such modification for the project owner to make consideration and decision.

 2. Sales licenses

a/ In case goods of a bidding package are ordinary and common goods that are available on the market, have been standardized and are eligible for warranty under producers’ regulations, the bidding dossier may not contain a requirement for contractors to submit producers’ sales licenses or certificates of partnership or equivalent documents;

b/ In case goods of a bidding package are particular and complicated goods which require binding the producers’ responsibility for the provision of after-sales services such as warranty, maintenance, repair, and provision of substitute parts, technical assistance services and other related services, the bidding dossier may contain a requirement for contractors participating in bidding to provide producers’ sales licenses.

In case a bidding dossier sets a specific requirement on producers’ sales licenses or written commitments on technical assistance and warranty or other equivalent documents, contractors shall only produce one of the following documents before signing a contract: sales license of the producer or authorized sales agent, or certificate of partnership, or producer’s written commitment on technical assistance and warranty, or an equivalent document;

c/ The contractor’s failure to produce one of the above-mentioned documents may not be used as a reason for eliminating  the contractor. The contractor is still eligible for evaluation and consideration whether to win the bid. If winning the bid, the contractor shall produce one of these documents before signing a contract.

3. Samples

A bidding dossier must not contain a requirement on samples. In case it is necessary to set a requirement on samples for conducting technical evaluation, the project owner shall send a written request to a competent person for consideration and decision in the process of approval of the bidding dossier. The request must clearly state reason(s) for setting the requirement on samples and detailed criteria for technical evaluation of the samples. The project owner and bid solicitor shall ensure that the requirement on provision of samples does neither increase the cost of the bidding package or limit the participation of contractors nor aim at creating advantages for one or several contractor(s), thus causing unfair competition. In case the bidding dossier contains a requirement on provision of samples, the concerned contractor may additionally provide samples within 5 working days after the time of bid closing.

4. Requirement on key personnel

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

b/ 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;

c/ In case related services involve particular and complicated jobs which require qualified, 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 neither limit the participation of contractors nor aim at creating advantages for one or several contractor(s), thus causing unfair competition;

d/ For the bidding packages mentioned at Points a, b and c of this Clause that set out the requirement on key personnel, in case the key personnel proposed in the bid dossier by the contractor does not meet the requirements stated in the bidding dossier, the bid solicitor shall allow the contractor to give explanations and replace or add key personnel who meets the requirements within a reasonable period. For each unqualified person, the replacement may be made only once. In case the contractor does not have a replacement who meets the requirements stated in the bidding dossier, the bid dossier shall be eliminated;

dd/ If winning the bid and signing a contract, the contractor shall mobilize personnel as initially proposed or propose replacements as specified at Point d of this Clause. In case of failure to mobilize personnel, the contractor shall be fined for breach of contract and subject to credit rating when participating in other bidding packages;

e/ In all cases, if declaring untruthful information on personnel, the contractor may not replace other personnel as specified at Point c of this Clause; the contractor’s bid dossier shall be eliminated and the contractor shall be regarded as committing frauds as specified in Clause 4, Article 89 of the Bidding Law and be handled according to Clause 1, Article 122 of Decree No. 63/2014/ ND-CP.

5. Regulations on commitments and principle contracts

In case the bidding dossier contains a requirement on commitment or principle contract for warranty, maintenance and repair but the bid dossier is not attached with these documents, the bid solicitor may request the contractor to clarify the bid dossier and supplement the documents within a reasonable period to serve as a basis for evaluation of the bid dossier.

6. Contracts

a/ Lump-sum contract is a type of contract mainly applicable to bidding packages on procurement. For particular, complicated or large-scale goods with a high probability of price fluctuations, a contract with adjustable unit price may be applied; when this type of contract is applied, a bidding dossier must clearly state the price adjustment formula; in the course of contract performance, if there is a change in unit price which requires the adjustment of the contract price, the concerned contractor shall demonstrate the factors that lead to such change;

b/ A bidding dossier must comprise a contract form and detailed terms and clauses as a basis for contractors to offer bids and for related parties to negotiate, finalize and conclude the contract. A contract must comprise general conditions, specific conditions and the contract form. Depending on the scale and nature of each bidding package, the project owner may decide to modify the contract as appropriate;

 c/ The arbitrary termination of a contract stated in Section 29.3 on General conditions of a contract in the form of bidding dossier issued together with this Circular may only be carried out if being permitted by a competent person for plausible reason(s);

d/ A contract to be signed between the project owner and a contractor must comply with the contract form, contract conditions specified in the bidding dossier, and modifications or supplementations 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, EVFTA, UKVFTA and other relevant laws.

Article 5. Organization of implementation

1. This Circular takes effect on August 25, 2022.

2. The Minister of Planning and Investment’s Circular No. 09/2020/TT-BKHDT of November 27, 2020, providing in detail the making of bidding dossiers for bidding packages on procurement regulated by the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, ceases to be effective on the effective date of this Circular.

3. For bidding packages regulated by the CPTPP, EVFTA and UKVFTA 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 contents stated in the bidding dossiers but must not contravene the CPTPP Agreement, EVFTA and UKVFTA.

4. For bidding packages regulated by the CPTPP, EVFTA and UKVFTA 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 which is not due, if there are some contents inconsistent with or contrary to those stated in the forms of bidding dossier issued together with this Circular, such contents shall be modified as appropriate. In case a bidding dossier is modified after it is issued, the project owner or bid solicitor shall give contractors a reasonable period of time to prepare bid dossiers.

5. For bidding packages regulated by the CPTPP, EVFTA and UKVFTA with bidding dossiers approved before the effective date of this Circular but not yet issued, such dossiers shall be modified according to the forms issued together with  this Circular.

6. In case the legal documents referred to in this Circular are amended or supplemented, the amending or supplementing documents shall prevail.

7. The organizations listed in the Appendix to Decree No. 09/2022/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 forms issued together with this Circular are not translated.