Circular 15/2022/TT-BKHDT bidding dossiers for bidding packages on construction and installation under CPTPP

CIRCULAR

Providing in detail the making of bidding dossiers for bidding packages on construction and installation 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 construction and installation 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 construction and installation regulated by the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP Agreement), 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 construction and installation referred to in Article 1 of this Circular.

Article 3. Application of forms of bidding dossiers on construction and installation

1. Application of forms of bidding dossiers:

a/ Form of bidding dossier on construction and installation 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 construction and installation 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 construction and installation 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 Agreement, EVFTA and UKVFTA.

Article 4. Making of bidding dossiers

1. Making, appraisal and approval of bidding dossiers:

a/ Depending on the scale and nature of each bidding package, the bid solicitor may set appropriate requirements, ensuring adherence to principles of competition, equality, transparency and economic efficiency. A bidding dossier must fully comprise necessary information as a basis for contractors to prepare bid dossiers. In case the bid solicitor publishes a bidding dossier with inadequate or unclear information, causing difficulties for contractors in preparation of their bid dossiers, such bidding dossier shall be regarded as invalid; the bid solicitor shall modify and supplement the bidding dossier as appropriate and re-publish it;

b/ The bid solicitor may not set conditions aiming to limit the participation of contractors or to create advantages for one or several contractor(s), thus causing unfair competition; may not set 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 services in the domain of such country or territory as a criterion for eliminating contractors;

c/ 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 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. Requirements on key personnel and major construction equipment

a/ Requirements on key personnel:

- Depending on the scale and nature of a bidding package and in pursuance to the construction law, the bid solicitor may set out requirements on key personnel in the bidding dossier as appropriate. A bidding dossier must not contain requirements on key personnel for positions for which the construction law does not set criteria, or for persons doing ordinary technical jobs, technical workers and unskilled workers;

- 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 such requirements within a reasonable period. For each unqualified person, the replacement may be made only once. If not having a replacement who meets the requirements stated in the bidding dossier, the contractor shall be eliminated.

b/ Requirements on major construction equipment

- Depending on the scale and nature of a bidding package, the bid solicitor may set out a requirement on major construction equipment as appropriate (quantity, type, specifications, capacity);

- In case the equipment 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 equipment which meets such requirements within a reasonable period. For each item of equipment not satisfying the above requirements, the replacement may be made only once. If not having a replacement which meets the requirements stated in the bidding dossier, the contractor shall be eliminated.

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

d/ In all cases, if declaring untruthful information on personnel and equipment, the contractor may not replace other personnel and equipment as specified at Points a and b 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 of June 26, 2014, detailing a number of articles of the Bidding Law regarding contractor selection.

3. Regulations on commitments and principle contracts

In case the bidding dossier contains a requirement on commitments or principle contracts for rent of equipment, supply of main materials, 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.

4. Contracts

a/ 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 and supplement the contract as appropriate.  In case of necessary, the project owner may apply the forms of construction contracts issued by the International Federation of Consulting Engineers (FIDIC), ensuring that such application does not contravene the domestic law.

 b/ 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. 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, EVFTA and UKVFTA.

3. 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.

4. 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 bidding dossiers shall be modified according to the forms issued together with this Circular.

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

6. The organizations listed in the Appendix to Decree No. 09/2022/ND-CP and related organizations and individuals shall implement this Circular. Any problems 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.