Circular 23/2021/TT-BGTVT criteria for evaluation of bid dossiers for specialized aviation service works

CIRCULAR

Guiding the making, approval and announcement of project lists; and methods and criteria for evaluation of bid dossiers and bidding for selection of investors for specialized aviation service works at airports and aerodromes^[1]

Pursuant to June 29, 2006 Vietnam Civil Aviation Law No. 66/2006/QH11 and the November 21, 2014 Law Amending and Supplementing a Number of Articles of the Vietnam Civil Aviation Law;

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

Pursuant to November 29, 2013 Land Law No. 45/2013/QH13;

Pursuant to June 17, 2020 Law No. 61/2020/QH14 on Investment;

Pursuant to the Government’s Decree No. 12/2017/ND-CP of February 10, 2017, defining the functions, tasks, powers and organizational structure of the Ministry of Transport;

Pursuant to the Government’s Decree No. 25/2020/ND-CP of February 28, 2020, detailing a number of articles of the Bidding Law regarding investor selection;

Pursuant to the Government’s Decree No. 148/2020/ND-CP of December 18, 2020, amending and supplementing a number of the Decrees detailing the implementation of the Land Law;

Pursuant to the Government’s Decree No. 05/2021/ND-CP of January 25, 2021, on management and operation of airports and aerodromes;

Pursuant to the Government’s Decree No. 31/2021/ND-CP of March 26, 2021, detailing and guiding a number of articles of the Law on Investment;

At the proposal of the Director of the Department of Transport Infrastructure and the Director of the Civil Aviation Authority of Vietnam;

The Minister of Transport promulgates the Circular guiding the making, approval and announcement of project lists; and methods and criteria for evaluation of bid dossiers and bidding for selection of investors for specialized aviation service works at airports and aerodromes.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

1. This Circular guides the making, approval and announcement of project lists; and methods and criteria for evaluation of bid dossiers and bidding for selection of investors for specialized aviation service works at airports and aerodromes, including:

a/ Ground service works;

b/ Aircraft repair and maintenance service works;

c/ Aviation instrument and equipment repair and maintenance service works;

d/ Aviation technical service works;

dd/ In-flight catering service works;

e/ Aviation fuel service works;

g/ Non-aviation service works.

2. This Circular does not apply to airports and aerodromes invested and built in the form of public-private partnership.

Article 2. Subjects of application

This Circular applies to organizations and individuals engaged in the selection of investors for specialized aviation service works at airports and aerodromes.

Article 3. Investor selection forms

1. Open international bidding shall apply to a project that fully satisfies the following conditions:

a/ Approved preliminary total expenses for project implementation (excluding expenses for compensation, support and resettlement and land rental) is at least VND 800,000,000,000 (eight hundred billion).

b/ There are two or more investors satisfying the preliminary requirements on capacity and experience specified at Point a, Clause 1, Article 9 of this Circular, at least one of whom is a foreign investor.

c/ The project does not fall into the case specified at Point a or c, Clause 2 of this Article.

2. Open national bidding shall apply to:

a/ A project in the sector or trade in which foreign investors are not permitted for market access in accordance with the law on investment.

b/ A project for which two or more investors satisfy preliminary requirements on capacity and experience, of whom no foreign investor registers for project implementation or satisfies the preliminary requirements on capacity and experience specified at Point a, Clause 1, Article 9 of this Circular.

c/ A project subject to national defense or security assurance requirements that is decided by the Prime Minister at the request of a competent state agency and after obtaining the Ministry of National Defense’s opinions on national defense assurance requirements or the Ministry of Public Security’s opinions on security assurance requirements.

Article 4. General provisions in bidding for investor selection

1. Assurance of competition in bidding: To comply with Article 2 of the Government’s Decree No. 25/2020/ND-CP of February 28, 2020, detailing a number of articles of the Bidding Law regarding investor selection (below referred to as Decree No. 25/2020/ND-CP).

2. Posting of information on bidding: To comply with Article 4 of Decree No. 25/2020/ND-CP.

3. Time limit for posting information on bidding: To comply with Article 5 of Decree No. 25/2020/ND-CP.

4. Time limits applied in the course of investor selection: To comply with Article 6 of Decree No. 25/2020/ND-CP.

5. Expenses for investor selection: To comply with Article 7 of Decree No. 25/2020/ND-CP.

6. Storage of information on bidding: To comply with Article 14 of Decree No. 25/2020/ND-CP.

7. Expert teams: To comply with Article 15 of Decree No. 25/2020/ND-CP.

Chapter II

MAKING, APPROVAL AND ANNOUNCEMENT OF PROJECT LISTS

Article 5. Bases for making a project list

1. A competent authority’s decision approving the master plan on airports and aerodromes.

2. The Minister of Transport’s decision approving the investment plan on development, renovation and expansion of airports and aerodromes.

Article 6. Dossier for submission of the project list

1. The Civil Aviation Authority of Vietnam shall make a project list and submit it to the Ministry of Transport for appraisal and approval.

2. A dossier for submission of the project list must comprise:

a/ A request for appraisal and approval of the project list;

b/ Contents of the project list, including name of each project on the list; investment objectives; investment scale; preliminary total expenses for project implementation (m₁); fund raising plans; investment period and schedule; project operation periods after the investment is completed; information on land use status at the location for project implementation, and estimated land use demand; and preliminary requirements on capacity and experience of investors as specified in Appendix II to this Circular;

c/ Relevant documents (if any).

3. Within 30 days after receiving a complete and valid dossier, the Ministry of Transport shall appraise and approve the project list (covering preliminary requirements on capacity and experience of investors).

Article 7. Announcement of the project list

1. The Civil Aviation Authority of Vietnam shall post the project list (covering preliminary requirements on capacity and experience of investors) in the Vietnam National E-Procurement System and on the Bidding Newspaper under Points i and l, Clause 1, Article 8 of the Bidding Law for use as a basis for determining the number of investors expressing their interest and submitting dossiers for project implementation registration.

2. Contents of announcement of the project list include:

a/ Name of each project on the list; investment objectives and scale; preliminary total expenses for project implementation; summary of basic requirements of the project; investment period and schedule; project operation period after the investment is completed; location for project implementation; land area for project implementation; actual conditions of the land area; and approved planning criteria;

b/ Preliminary requirements on capacity and experience of investors;

c/ Time limit for investors to submit dossiers for project implementation registration;

d/ Address, telephone number and fax number of the Civil Aviation Authority of Vietnam;

dd/ Other information (if necessary).

Article 8. Preparation and submission of dossiers for project implementation registration

1. Investors shall prepare and submit dossiers for project implementation registration via the Vietnam National E-Procurement System based on the contents specified Clause 2, Article 7 of this Circular. Such a dossier must comprise a written registration for project implementation; documents proving legal status, capacity ad experience of investors; and other relevant documents (if any).

2. Upon the expiration of the time limit for project implementation registration, the Civil Aviation Authority of Vietnam shall carry out preliminary evaluation of capacity and experience of investors that have submitted dossiers in the Vietnam National E-Procurement System.

Article 9. Preliminary evaluation of capacity and experience of investors

1. The Civil Aviation Authority of Vietnam shall report on results of preliminary evaluation of capacity and experience of investors to the Ministry of Transport for the latter to decide on organization of investor selection in either of the following cases:

a/ In case two or more investors satisfy preliminary requirements on capacity and experience, the Ministry of Transport shall issue a decision on application of open bidding under Clause 1 or 2, Article 3 of this Circular, and assign the Civil Aviation Authority of Vietnam to act as the bid solicitor;

b/ In case only one investor registers for project implementation and satisfies preliminary requirements on capacity and experience, or in case more than one investor registers for project implementation but only one of them satisfies preliminary requirements on capacity and experience, the procedures for investor approval specified in Article 10 of this Circular shall be carried out.

2. The Civil Aviation Authority of Vietnam shall post the list of investors satisfying preliminary requirements on capacity and experience in the Vietnam National E-Procurement System or notify termination of procedures for announcement of the project list in case no investor satisfies preliminary requirements on capacity and experience.

Article 10. Approval of investors

1. The Civil Aviation Authority of Vietnam shall guide the preparation of, and approve, dossiers of request for investor approval, made according to the form provided in Appendix III to this Circular, covering determination of expenses for compensation, support and resettlement for projects with uncleared ground areas (m₂), and the minimum level of payment into the state budget (m₃) under Articles 15 and 16 of this Circular.

2. Dossiers of request for investor approval shall be distributed to investors satisfying preliminary requirements on capacity and experience. Investors shall prepare and submit dossiers of proposal for investor approval based on contents of a dossier of request for investor approval.

3. The Civil Aviation Authority of Vietnam shall organize evaluation of dossiers of proposal for investor approval based on the criteria specified in a dossier of request for investor approval. In the course of evaluation, the Civil Aviation Authority of Vietnam may invite investors to show up to clarify or modify necessary contents of dossiers of proposal for investor approval.

4. An investor may be approved when fully satisfying the requirements on contents of a dossier of request for investor approval.

5. The Civil Aviation Authority of Vietnam shall propose the Ministry of Transport to appraise and approve results of approval of investors satisfying the conditions specified at Points b, c, d and dd, Clause 4, Article 33 of the Law on Investment.

Chapter III

INVESTOR SELECTION PLANS

Article 11. Formulation of investor selection plans

1. Bases for formulation of an investor selection plan:

a/ The Minister of Transport’s decision approving the project list;

b/ The Minister of Transport’s decision approving the application of open bidding.

2. The Civil Aviation Authority of Vietnam shall, in pursuance to the bases specified in Clause 1 of this Article, formulate investor selection plans and submit them to the Ministry of Transport for appraisal and approval.

3. A dossier for approval of an investor selection plan must comprise:

a/ A written request for approval of an investor selection plan, briefly providing the implementation schedule and contents of the plan as specified in Article 12 of this Circular;

b/ A table for monitoring the progress of activities involved in the investor selection, made according to the form provided in Appendix I to this Circular;

c/ The documents specified in Clause 1 of this Article.

Article 12. Contents of an investor selection plan

1. Name of the project.

2. Preliminary total expenses for project implementation (m₁).

3. Form and mode of investor selection.

4. Time of commencement of investor selection.

The time of commencement  of investor selection shall be counted from the time of distribution of bidding dossiers and dossiers of requirements and stated by month or quarter in a year.

5. Type of contract.

6. Contract performance period.

The contract performance period is the number of years or months counting from the effective date of the contract to the time the contracting parties fulfill their contractual obligations.

Article 13. Appraisal and approval of investor selection plans

1. Units assigned to appraise investor selection plans shall verify and evaluate the contents specified in Article 12 of this Circular and make and submit appraisal reports to the Ministry of Transport for approval.

2. Based on appraisal reports, the Ministry of Transport shall issue decisions approving investor selection plans and tables for monitoring progress of activities involved in the investor selection for use as a basis for carrying out investor selection.

Chapter IV

OPEN BIDDING FOR INVESTOR SELECTION

Section 1

DETAILED PROCESS

Article 14. Detailed process

The detailed process of carrying out open bidding for investor selection is similar to the process of carrying out open bidding for selection of investors to implement land-using investment projects specified in Article 46 of Decree No. 25/2020/ND-CP.

Section 2

PREPARATION FOR INVESTOR SELECTION

Article 15. Determination of preliminary expenses for compensation, support and resettlement (m₂) for projects with uncleared ground areas

1. The authority of the airport or aerodrome where a project is to be implemented shall work with the competent People’s Committee to determine preliminary expenses for compensation, support and resettlement (m₂), for projects with uncleared ground areas in accordance with the land law.

2. Preliminary expenses for compensation, support and resettlement (m₂) for ground areas to be cleared shall be determined under Point i, Clause 2, Article 47 of Decree No. 25/2020/ND-CP.

Article 16. Formulation of the minimum level of payment into the state budget (m₃)

1. The authority of the airport or aerodrome where a project is to be implemented shall work with the competent People’s Committee to formulate the minimum level of payment into the state budget (m₃).

2. The minimum level of payment into the state budget (m₃) shall be determined according to the following formula:

m₃ = n x (m : 49)

Of which:

- n is the project operation period after the investment is completed as specified at Point a, Clause 2, Article 7 of this Circular.

- m is the minimum level of payment into the state budget , for projects with a land rent term of 49 years, which shall be calculated according to the formula specified at Point k, Clause 2, Article 47 of Decree No. 25/2020/ND-CP and Appendix V to the Ministry of Planning and Investment’s Circular No. 06/2020/TT-BKHDT of September 18, 2020, guiding the implementation of Decree No. 25/2020/ND-CP.

The value of m is relative, serving as a basis for investors to propose amounts to be paid into the state budget, and dependent from land rental amounts payable by investors in accordance with the land law.

Article 17. Preparation of bidding dossiers

1. Bases for preparing a bidding dossier:

a/ A project list announced under regulations;

b/ A decision approving the investor selection plan;

c/ Current regulations on aviation, land, investment, and construction, and relevant regulations.

2. The Civil Aviation Authority of Vietnam shall guide the preparation of, and appraise and approve, bidding dossiers.

3. Bidding dossiers shall be made according to the form provided in Appendix IV to this Circular. A bidding dossier must not include any condition that aims to restrict the participation of investors or aims to create advantages for one or more than one investor, thus causing unfair competition. Such dossier must fully have information for investors to prepare a bid dossier, including the following basic contents:

a/ General information on the project, including its name; its investment objectives and scale; preliminary total expenses for its implementation; summary of its basic requirements; investment period and schedule; its operation period after the investment is completed; project implementation location; land area for project implementation; status of the land area; and approved planning criteria;

b/ Instructions to investors, including bidding procedures and bid data sheet;

c/ Requirements on project implementation and operation: requirements on project implementation and operation in compliance with the approved master plan; quality requirements under the regulations on construction investment and relevant regulations; technical requirements to meet investment objectives; investment scale; requirement on capital for project implementation; requirement on project implementation progress (covering period for construction of works and project operation period after the investment is completed); requirements on satisfaction of conditions for commercial provision of specialized aviation services at airports and aerodromes in accordance with the aviation law; requirements on operation, management, maintenance and servicing of project works; environmental protection requirements in accordance with the law on environmental protection; requirements on connection of transport and technical infrastructure facilities at airports and aerodromes; requirements on assurance of security and safety at airports and aerodromes; requirements on responsibility for coordinating with aviation authorities and airport/aerodrome operators in the course of provision of specialized aviation services by investors; and other requirements related to sectors and fields covered by the project as well as specific conditions of the project;

d/ Criteria for evaluation of bid dossiers, including criteria for evaluation of capacity and experience on investors, and criteria for technical and financial-commercial evaluation, and evaluation method;

dd/ Bidding participation forms, including bidding participation application, document on technical proposals, document on financial-commercial proposals, document on bid security, commitment of financial institutions (if any), and other forms;

e/ Land lease term;

g/ Project operation period after the investment is completed;

h/ Preliminary total expenses for project implementation (m₁) approved in the project list;

i/ Preliminary expenses for compensation, support and resettlement for projects with uncleared ground areas (m₂);

k/ The minimum level of payment into the state budget (m₃);

l/ A draft contract, covering requirements on project implementation; requirements on commercial provision of aviation services; project contract performance period, land lease term, and project operation period after the investment is completed; land area for project implementation; applicable regulations; rewards and fines under the contract; force majeure events; revision of the contract during project operation, and other contents.

Article 18. Criteria for and method of evaluation of bid dossiers

The method of evaluation of a bid dossier shall be expressed through evaluation criteria stated in the bidding dossier, including:

1. Approved preliminary requirements on capacity and experience as provided in Appendix II to this Circular, and updated and added criteria for and method of evaluation of capacity and experience (when necessary). In case of a joint-name entity, capacity and experience of investors shall be determined as total capacity and experience of members of the joint-name entity; to lead the joint-name entity, an investor must hold at least 30% of capital while each member of the joint-name entity must hold at least 15% of capital of the joint-name entity.

2. Criteria for and method of technical evaluation:

a/ Criteria for technical evaluation: the investor’s proposal on plan and method for project implementation; the investor’s proposal on plan to organize the operation, management and provision of specialized aviation services at airports and aerodromes.

The investor’s proposal on plan and method for project implementation must have the following contents: documents proving the investor’s knowledge of the actual conditions; output growth forecast; the project’s objectives under the approved master plan; project scale and design plan; technical and technological plans of the project; project implementation plan and schedule and construction period; and plan to mitigate environmental impacts; for a project with uncleared ground areas, the investor is required to formulate a plan on coordination with the authority of the airport or aerodrome where the project is to be implemented in working with the competent People’s Committee to complete ground clearance and for the People’s Committee to grant a land use rights certificate for the land plot where the project is to be constructed to the airport/aerodrome authority; a plan on connection of the project’s transport and technical infrastructure systems (water drainage system and environmental protection system) with the general infrastructure system of the airport or aerodrome; a general site plan of a 1:500 scale within the project’s boundaries using the investor’s funds; a plan on fire prevention and fighting and security and safety at the airport or aerodrome; solutions, measures and equipment for fire and explosion prevention and fighting; apparatus for management of fire and explosion prevention and fighting systems under regulations; and project operation period after the investment is completed.

The investor’s proposal on plan to organize operation, management and provision of specialized aviation services at the airport or aerodrome must have the following contents: a plan showing the investor’s satisfaction of conditions for commercial provision of specialized aviation services at the airport or aerodrome in accordance with the aviation law; the investor’s plan to organize operation, management and provision of specialized aviation services in line with the objectives and relevant strategy, master plan or plan on development of airports and aerodromes; a plan on the investor’s coordination with the aviation authority and airport/aerodrome operator in the course of providing specialized aviation services, ensuring security and safety at the airport or aerodrome; and a supervision plan to ensure stable and uninterrupted provision of specialized aviation services up to quality requirements.

b/ Method of technical evaluation:

The scoring method using a 100-point or 1,000-point scale shall be applied to formulate criteria for technical evaluation, which must set the minimum score and maximum score for each general criterion and detailed criterion. When formulating criteria for technical evaluation, it is required to set the minimum score an investor must achieve in order to be evaluated as qualified which, however, must not be lower than 70% of the total technical score, and the score for each requirement on project implementation plan and method or plan to organize operation, management and provision of specialized aviation services at the airport or aerodrome must not be lower than 60% of the maximum score of such requirement, depending on the scale and characteristics of each project.

The structure of score proportion for each of the contents specified at Point a of this Clause must suit each project, provided the total proportion of scores is 100%.

3. Criteria for and method of financial-commercial evaluation:

a/ Criteria for financial-commercial evaluation include a criterion on total expenses for project implementation (M₁), criterion on value of compensation, support and resettlement for a project with uncleared ground areas (M₂), and criterion on investment efficiency (M₃).

Of which:

- M₁ is total expenses for project implementation as proposed by the investor in the bid dossier based on the content m₁ in the bidding dossier;

- M₂ is value of compensation, support and resettlement for a project with uncleared ground areas as proposed by the investor in the bid dossier based on the content m₂ in the bidding dossier.

In case the value of compensation, support and resettlement under the compensation, support and resettlement plan approved by a competent People’s Committee is smaller than M₂, the difference shall be paid into the state budget; in case such value is larger than M₂, the investor shall offset the deficit and include it in the project’s investment capital.

The investor may have the value of compensation, support and resettlement under the approved plan cleared by the competent People’s Committee against the land rental amount, provided the cleared amount does not exceed the payable land rental amount in accordance with the land law. The remaining amount of compensation and ground clearance (if any) under the approved plan that has not been cleared against the payable land rental amount shall be included in the project’s investment capital.

- M₃ is the monetary amount paid into the state budget as proposed by the investor in the bid dossier in addition to the investor’s obligations toward the state budget in accordance with current laws.

b/ Method of financial-commercial evaluation:

The method of financial-commercial evaluation is based on social interests or state interests. For bid dossiers evaluated as satisfying technical requirements, comparison and ranking shall be based on the proposal on investment efficiency. Investment efficiency shall be evaluated through a criterion on the investor’s proposal on monetary payment into the state budget in addition to the investor’s obligations toward the state budget in accordance with current laws (M₃).

The investor proposing total expenses for project implementation (M₁) not lower than m₁ (M₁ ≥ m₁); value of compensation, support and resettlement (M₂) not lower than m₂ (M₂ ≥ m₂), for projects with uncleared ground areas; and value of monetary payment into the state budget in addition to the investor’s obligations toward the state budget in accordance with current law (M₃) not lower than m₃ and being the highest shall be ranked first and considered for being proposed to be the bid winner.

Section 3

ORGANIZATION OF INVESTOR SELECTION 

Article 19. Conditions for distribution of bidding dossiers

Bidding dossiers may only be distributed for investor selection when the conditions specified in Clause 2, Article 7 of the Bidding Law are fully satisfied.

Article 20. Invitation to bid, distribution, modification and clarification of bidding dossiers; extension of time limits for submission of bid dossiers

1. Notices of invitation to bid shall be posted under Clauses 2 and 3, Article 4 of this Circular.

2. Bidding dossiers shall be widely distributed to investors participating in bidding. Bid solicitors shall fully post free of charge files of bidding dossiers on the Vietnam National E-Procurement System.

3. In case of modification of bidding dossiers after distribution thereof, bid solicitors shall post modification decisions enclosed with modified contents of such dossiers on the Vietnam National E-Procurement System.

4. In case of necessity to clarify a bidding dossier, an investor shall send a written request for clarification to the bid solicitor at least 7 working days (for national bidding) or 15 days (for international bidding) before the date of bid closing for consideration and handling. The bid solicitor shall carry out clarification of the bidding dossier in one or several of the following forms:

a/ Posting of clarification documents on the Vietnam National E-Procurement System;

b/ In case of necessity, organization of a pre-bid meeting for exchange of opinions on contents of the bidding dossier that remain unclear to investors. Exchanged opinions shall be recorded by the bid solicitor in a minutes to be included in a bidding dossier clarification document. Such clarification document shall be posted on the Vietnam National E-Procurement System;

Clarified contents of a bidding dossier must not contravene approved contents of such dossier. In case the clarification of the bidding dossier requires its modification, such modification must comply with Clause 3 of this Article.

5. Bidding dossier modification decisions and clarification documents constitute part of bidding dossiers.

6. Extension of time limits for submission of bid dossiers

a/ Bid solicitors shall post notices of time limit extension enclosed with time limit extension approval decisions on the Vietnam National E-Procurement System;

b/ A notice of time limit extension must state reason(s) for the extension and new time of bid closing.

Article 21. Preparation, submission, receipt, management, modification, replacement and withdrawal of bid dossiers

1. Investors shall prepare and submit their bid dossiers as requested in bidding dossiers.

2. A bid solicitor shall receive bid dossiers submitted by all investors before the bid closing time and manage such bid dossiers under the regime of management of secret files until the publicization of investor selection results. In any circumstances, information in the bid dossier of an investor may not be disclosed to other investors, except information eligible for publicization upon bid opening.

3. When wishing to modify, replace or withdraw their submitted bid dossiers, investors shall send written requests to the bid solicitor. The bid solicitor may only accept requests of investors for modification, replacement or withdrawal of their bid dossiers if receiving such requests before the bid closing time.

4. Bid dossiers or documents sent by investors to the bid solicitor after the bid closing time will not be opened for they are considered invalid and shall be eliminated, except bid dossier clarification documents as requested by the bid solicitor or clarification or additional documents to prove eligibility, capacity and experience of investors.

Article 22. Opening of dossiers of technical proposals

1. The opening of dossiers of technical proposals shall be carried out publicly and within 1 hour from the bid closing time. Bid opening minutes shall be sent to investors participating in bidding.

2. The representative of the bid solicitor shall sign for certification on original applications for bidding participation and power of attorney of at-law representatives of investors (if any); joint-name agreement (if any); bid security; and important contents of each dossier of technical proposals.

3. Dossiers of financial-commercial proposals of all investors shall be put by the bid solicitor in sealed separate envelopes bearing signatures of the representative of the bid solicitor and investors participating in the ceremony of opening of dossiers of technical proposals.

Article 23. Principles of evaluation of bid dossiers

1. The evaluation of bid dossiers must be based on criteria for evaluation of bid dossiers and other requirements specified in the bidding dossier and carried out on the basis of submitted bid dossiers and documents explaining and clarifying bid dossiers of investors in order to ensure selection of capable and experienced investors with feasible technical and financial-commercial plans for project implementation.

2. The evaluation shall be carried out based on photocopies and investors shall take responsibility for consistency of originals and photocopies. In case of a minor discrepancy between originals and photocopies which does not change the investor ranking, the evaluation shall be carried out based on originals. In case of a major discrepancy between originals and photocopies leading to a difference between evaluation results based on originals and those based on photocopies and a change in the ranking of an investor, the bid dossier of such investor shall be eliminated.

3. Upon the evaluation of a bid dossier, the bid solicitor shall examine technical and financial-commercial contents of the dossier in order to determine whether it contains any discrepancies, condition impositions or omissions of principal contents, in which:

a/ Discrepancy means differences from requirements stated in the bidding dossier;

b/ Imposition of conditions means investors’ imposition of conditions aimed at restricting, or showing their entire non-acceptance of, requirements stated in the bidding dossier;

c/ Omission of contents means failure of investors to provide part or the whole of information or documents as required in the bidding dossier.

4. Provided that bid dossiers satisfy basic requirements stated in the bidding dossier, the bid solicitor may tolerate errors other than discrepancies, condition impositions or omissions of basic contents of bid dossiers. Specifically, discrepancies, condition impositions or omissions of basic contents are those that, once approved or modified, supplemented or replaced by investors themselves when permitted, may:

a/ Significantly affect the scope and technical, technological and quality requirements of works and infrastructure systems;                     

b/ Cause significant restrictions and inconsistencies with the bidding dossier regarding powers of the bid solicitor and competent agencies or obligations of investors in contracts;

c/ Cause unfair impacts on the competitive position of other investors that have bid dossiers basically satisfying requirements stated in the bidding dossier;

5. Bid dossiers that fail to basically satisfy requirements stated in the bidding dossier shall be eliminated. It is not allowed to modify discrepancies, condition impositions or omissions of basic contents in bid dossiers in order to make the dossiers basically satisfy requirements.

Article 24. Principles of clarification of bid dossiers

1. After the bid opening, investors shall clarify their bid dossiers upon request of the bid solicitor.

2. After the bid closing, the bid solicitor shall receive clarification documents or added documents to prove eligibility, capacity and experience of investors when such investors find that their bid dossiers lack information and documents on their capacity and experience which are available but have not yet been submitted together with their bid dossiers. Such documents shall be considered part of bid dossiers.

3. The clarification of contents on eligibility, capacity and experience must not alter the nature of eligibility, capacity and experience of investors participating in bidding. The clarification of contents on technical and financial-commercial proposals stated in bid dossiers of investors must not change basic contents of submitted bid dossiers.

4. The clarification may only be carried out between the bid solicitor and investors whose bid dossiers need to be clarified. Clarified contents of bid dossiers shall be expressed in writing and preserved by the bid solicitor as part of bid dossiers.

Section 4

EVALUATION OF DOSSIERS OF TECHNICAL PROPOSALS

Article 25. Evaluation of dossiers of technical proposals

1. Checking of validity of a dossier of technical proposals, covering:

a/ Checking of the number of originals and photocopies of the dossier;

b/ Checking of components of the dossier, including: A bidding participation application for technical proposals, joint-name agreement (if any), power of attorney for signing the bidding participation application (if any); bid security; document proving the eligibility of the person signing the bidding participation application (if any); documents proving the eligibility, capacity and experience of the investor; technical proposals; and other components of the dossier;

c/ Checking of consistency of contents of originals and photocopies to serve the process of detailed evaluation of the dossier.

2. Evaluation of validity of a dossier of technical proposals

A dossier of technical proposals of an investor shall be evaluated valid if fully satisfying the following conditions:

a/ There are originals of documents included in the dossier;

b/ There is a valid bidding participation application for technical proposals;

c/ The dossier’s validity satisfies requirements stated in the bidding dossier;

d/ There is a valid bid security;

dd/ The investor is not named in two or more dossiers of technical proposals in the capacity as an independent investor or a member of a joint-name entity;

e/ There is a valid joint-name agreement, in case of a joint-name entity;

g/ The investor is not being banned from participating in bidding activities in accordance with the bidding law;

h/ The investor guarantees its/his/her eligibility under Article 5 of the Bidding Law.

3. Evaluation of capacity and experience

The evaluation of capacity and experience shall be carried out by methods and according to criteria for capacity and experience evaluation stated in bidding dossiers.

4. Investors having valid dossiers of technical proposals satisfying capacity and experience requirements will be eligible for consideration for technical detailed evaluation.

5. Detailed evaluation of dossiers of technical proposals

The detailed evaluation of dossiers of technical proposals shall be carried out by methods and according to technical evaluation criteria stated in bidding dossiers.

Article 26. Appraisal and approval of lists of investors satisfying technical requirements

1. Bid solicitors shall appraise and approve lists of investors satisfying technical requirements.

2. A bid solicitor shall notify the list of investors satisfying technical requirements to all investors participating in bidding and invite the latter to the ceremony for opening of dossiers of financial-commercial proposals, clearly stating the time and venue of such ceremony.

Section 5

OPENING AND EVALUATION OF DOSSIERS OF FINANCIAL-COMMERCIAL PROPOSALS

Article 27. Opening of dossiers of financial-commercial proposals

1. Dossiers of financial-commercial proposals of investors on a list of investors satisfying technical requirements shall be publicly opened at the time and venue stated in the notice of such list. Bid-opening minutes shall be sent to investors participating in bidding.

2. The representative of the bid solicitor shall sign for certification on originals of bidding participation applications, power of attorney of at-law representative of the investor (if any); joint-name agreement (if any); bid security; and important contents of each dossier of financial-commercial proposals.

Article 28. Evaluation of dossiers of financial-commercial proposals

1. Checking of validity of a dossier of financial-commercial proposals, covering:

a/ Checking of the number of originals and photocopies of the dossier;

b/ Checking of components of the dossier, including a bidding participation application included in the dossier; and other components of the dossier;

c/ Checking of consistency of contents of originals and photocopies to serve the detailed evaluation of the dossier.

2. Evaluation of validity of a dossier of financial-commercial proposals:

A dossier of financial-commercial proposals of an investor shall be evaluated valid if fully satisfying the following conditions:

a/ There are originals of documents included in the dossier;

b/ There is a valid bidding participation application for financial-commercial proposals;

c/ The value stated in the bidding participation application is specific and fixed in numbers and letters and appropriate and logical; it is not allowed to propose different values for the same content or impose additional conditions unfavorable to competent state agencies and the bid solicitor (including total expenses for project implementation proposed by the investor (M1); compensation, support and resettlement value proposed by the investor (M2), for projects with uncleared ground areas; proposed value of monetary payment into the state budget in addition to the investor’s obligations toward the state budget in accordance with current law (M3); and proposed increase in value of monetary payment into the state budget in addition to the investor’s obligations toward the state budget in accordance with current law, if any);

d/ The validity of the dossier satisfies requirements of the bidding dossier.

3. Investors with valid dossiers of financial-commercial proposals will be eligible for financial-commercial detailed evaluation. The detailed evaluation of dossiers of financial-commercial proposals and ranking of investors shall be carried out by methods and according to evaluation criteria stated in the bidding dossier.

4. After evaluating bid dossiers, the expert team shall make and send a report to the bid solicitor for consideration and approval. Such report must clearly state:

a/ The investor ranking list;

b/ The list of investors that fail to satisfy requirements and have been eliminated; reasons for investor elimination;

c/ Comments on competitiveness, fairness, transparency and economic efficiency in the course of investor selection. In case competitiveness, fairness, transparency and economic efficiency are not ensured, the report must clearly state reasons and propose solutions.

Article 29. Principles of consideration and approval of winning bids

An investor may be proposed to be selected when fully satisfying the following conditions:

1. Having a valid bid dossier.

2. Satisfying capacity and experience requirements.

3. Having technical proposals satisfying requirements.

4. Having a proposed winning-bid value with components satisfying the following requirements:

a/ Proposed total expenses for project implementation (M₁) are not smaller than m₁ approved in the bidding dossier;

b/ Proposed compensation, support and resettlement value, for projects with uncleared ground areas (M₂) is not smaller than m₂ approved in the bidding dossier;

c/ Proposed value of monetary payment into the state budget in addition to the investor’s obligations toward the state budget under current law (M₃) is not smaller than m₃ and is the highest.

Section 6

SUBMISSION, APPRAISAL, APPROVAL AND PUBLICIZATION OF INVESTOR SELECTION RESULTS; NEGOTIATION, FINALIZATION AND SIGNING OF CONTRACTS

Article 30. Submission, appraisal, approval and publicization of investor selection results

1. The submission, appraisal and approval of investor selection results shall be carried out as follows:

a/ Based on a report on results of the evaluation of bid dossiers, the bid solicitor shall submit investor selection results to the Ministry of Transport for appraisal and approval, clearly stating its opinions on contents evaluated by the expert team;

b/ Investor selection results shall be approved in writing based on the written request for approval and report on appraisal of investor selection results.

2. In case a bid-winning investor has been selected, a written approval of the investor selection result must have the following contents:

a/ Name, objectives and investment scale of the project;

b/ Name of the bid-winning investor;

c/ Project implementation schedule;

d/ Project implementation location, and land area and land rent term;

dd/ Project operation period after the investment is completed;

e/ Total expenses for project implementation (excluding expenses for compensation, support and resettlement, and land rental);

g/ The investor’s total amount proposed for payment into the state budget;

h/ Other contents (if any).

3. In case of bidding cancellation specified in Clause 1, Article 17 of the Bidding Law, the written approval of investor selection results or decision on bidding cancellation must clearly state the reason for bidding cancellation and responsibilities of related parties upon bidding cancellation.

4. After obtaining the written approval of investor selection results, the bid solicitor shall post information on investor selection results under Clauses 2 and 3, Article 4 of this Circular, and send a notice of investor selection results to investors participating in bidding within the time limit specified in Clause 3, Article 4 of this Circular. Contents of such notice include:           

a/ Information specified in Clause 2 of this Article;

b/ A list of unselected investors and summary of reason(s) for each investor not to be selected;

c/ A plan on negotiation, finalization and signing of contracts with selected investors.

5. After obtaining a decision on approval of investor selection results, a selected investor shall decide to establish a project enterprise to implement the project or shall directly implement the project. The organization of management, operation and dissolution of a project enterprise must comply with the law on enterprises, law on investment, and project contract.

Article 31. Negotiation and finalization of contracts  

1. Based on investor selection results, the bid solicitor shall invite the first-ranked investor to participate in the contract negotiation and finalization. In case the invited investor does not show up or refuses to participate in the contract negotiation and finalization, such investor may not receive back its/his/her bid security.

2. The contract negotiation and finalization must be based on the following grounds:

a/ A report on evaluation of the bid dossier;

b/ The bid dossier and documents clarifying or modifying the bid dossier (if any) of the investor;

c/ The bidding dossier.

3. Principles of contract negotiation and finalization:

a/ Contract negotiation and finalization may not be carried out for contents for which investors have offered bids according to requirements of the bidding dossier;

b/ Contract negotiation and finalization must not change basic contents of bid dossiers.

4. Contents of contract negotiation and finalization:

a/ Negotiation on and finalization of contents that are not specific enough, remain unclear or inappropriate or inconsistent between the bidding dossier and bid dossiers or between different contents of bid dossiers which may cause problems or disputes or affect responsibilities of contracting parties in the course of contract performance;

b/ Negotiation on problems arising in the course of investor selection (if any) for the purpose of finalizing detailed contents of the project;

c/ Negotiation on a schedule of handover of construction grounds; and a schedule for the investor’s transfer of compensation, support and resettlement value, for projects with uncleared ground areas, and value of monetary payment into the state budget;

d/ Negotiation on a plan for satisfaction of conditions for commercial provision of specialized aviation services in accordance with the aviation law;

dd/ Negotiation on responsibilities of contracting parties in the course of performance of the project contract and commercial provision of specialized aviation services at airports and aerodromes;

e/ Negotiation on other necessary contents.

5. In the course of contract negotiation and finalization, participating parties shall finalize a draft contract. Investors may not change, withdraw or refuse to implement basic contents proposed in their bid dossiers already evaluated by the bid solicitor as satisfying requirements of the bidding dossier, except changes proposed by investors in order to bring higher efficiency for the project.

6. In case of contract negotiation and finalization failure, the bid solicitor shall report such to the Ministry of Transport for consideration and decision on cancellation of investor selection results and invite next-ranked investors to contract negotiation and finalization. In case of failure of contract negotiation and finalization with next-ranked investors, the bid solicitor shall report such to the Ministry of Transport for consideration and decision on bidding cancellation under Article 1, Article 17 of the Bidding Law.

Article 32. Signing of, and publicization of information on, project contracts

1. Contract signing principles:

a/ The value of proposed winning bid (money amount to be paid into the state budget as proposed by the bid-winning investor in its/his/her bid dossier) shall be the value for contract signing;

b/ Project implementation expenses; expenses for compensation, support and resettlement, for projects with uncleared ground areas proposed by the bid-winning investor in its/his/her bid dossier shall be stated in the contract;

c/ Payable land rental determined in accordance with the land law plus money amount to be paid into the state budget as proposed by the bid-winning investor shall be recognized as those calculated at market prices at the time of land lease stated in the contract;

2. Contract signing shall be carried out under Articles 69 thru 73 of the Bidding Law.

3. Within 7 working days from the date of signing of the project contract, the bid solicitor shall publicize information on the project contract on the Vietnam National E-Procurement System. Preliminary information contents to be publicized include:

a/ Name of the project; identification number and signing time of the contract;

b/ Name and address of the competent state agency;

c/ Name and address of the investor;

d/ Objectives and scale of the project;

dd/ Project implementation schedule;

e/ Project implementation location and land area and land rent term;

g/ Total project implementation expenses (excluding expenses for compensation, support and resettlement, and land rental);

h/ Project operation period after the investment is completed;

i/ Other contents (if any).

Article 33. Organization of project implementation 

1. After a contract is signed between the competent state agency and the bid-winning investor (or the project enterprise established by the bid-winning investor to implement the project), the authority of the airport or aerodrome where the project is to be implemented and the bid-winning investor (or the project enterprise established by the bid-winning investor to implement the project) shall coordinate with the local land management agency in proposing the competent People’s Committee to decide on land recovery or decide to approve a compensation, support and resettlement plan in accordance with the land law, for projects with uncleared ground areas. Based on the implementation schedule agreed in the contract, the bid-winning investor (or the project enterprise established by the bid-winning investor to implement the project) shall pay the compensation, support and resettlement value (M₂), for projects with uncleared ground areas, to the local land management agency and value of monetary payment into the state budget (M₃) proposed in the bid dossier to the central State Treasury office. No loan interests shall be imposed for expenses for compensation, support and resettlement.

2. Procedures for land lease; determination of land rental for the bid-winning investor (or the project enterprise established by the bid-winning investor to implement the project):

a/ After completing the compensation, support and resettlement for the project implementation land plot, for projects with uncleared ground areas, the lease of land to the bid-winning investor (or the project enterprise established by the bid-winning investor to implement the project) shall be carried out according to procedures for land allocation or land lease specified in Clause 29, Article 1 of the Government’s Decree No. 148/2020/ND-CP of December 18, 2020, amending and supplementing a number of decrees detailing the implementation of the Land Law, and revising or replacing documents (if any);

b/ The authority of the airport or aerodrome where the project is to be implemented shall coordinate with the local land management agency in proposing the competent People’s Committee to approve land rental for the bid-winning investor (or the project enterprise established by the bid-winning investor to implement the project) payable at the time when such authority decides on land lease in accordance with the land law.

3. The bid-winning investor (or the project enterprise established by the bid-winning investor to implement the project) shall organize the project implementation under the contract, the aviation, investment, construction, land and planning laws, and other relevant laws.

Chapter V

CONTENTS OF APPRAISAL AND DELEGATION OF POWERS FOR APPRAISAL AND APPROVAL IN INVESTOR SELECTION

Article 34. Appraisal of bidding dossiers

Dossiers for and contents of appraisal of bidding dossiers are similar to those for appraisal of bidding dossiers for selection of investors for implementation of land-using investment projects as specified in Clause 2, Article 75 of Decree No. 25/2020/ND-CP.

Article 35. Appraisal of lists of investors satisfying technical requirements and investor selection results

Dossiers for and contents of appraisal of lists of investors satisfying technical requirements and investor selection results are similar to those for appraisal of lists of investors satisfying technical requirements and investor selection results for implementation of land-using investment projects as specified in Clauses 3 and 4, Article 76 of Decree No. 25/2020/ND-CP.

Article 36. Responsibilities of the Civil Aviation Authority of Vietnam and airport/aerodrome authorities in investor selection

1. The Civil Aviation Authority of Vietnam shall:

a/ Approve bidding dossiers, lists of investors satisfying technical requirements and investor ranking lists;

b/ Perform jobs falling under responsibility of the bid solicitor under Article 75 of the Bidding Law.

2. Airport/aerodrome authorities shall:

a/ Work with competent People’s Committees in preliminarily determining compensation, support and resettlement expenses (m₂), for projects with uncleared ground areas, in accordance with the land law;

b/ Work with competent People’s Committees in setting the minimum level of payment into the state budget (m₃).

Chapter VI

HANDLING OF EVENTUALITIES AND RESPONSE TO RECOMMENDATIONS IN INVESTOR SELECTION

Article 37. Handling of eventualities and response to recommendations in investor selection

The handling of eventualities and response to recommendations in investor selection must comply with Articles 80, 81, 82 and 83 of Decree No. 25/2020/ND-CP.

Chapter VII

IMPLEMENTATION PROVISIONS

Article 38. Organization of implementation

The Chief of the Office, Chief Inspector and directors of the Departments, the Director of the Transport Engineering Construction and Quality Management Bureau, the Director of the Civil Aviation Authority of Vietnam, and heads of related agencies and organizations, and related individuals shall implement this Circular.

Article 39. Effect

1. This Circular takes effect on December 25, 2021.

2. In the course of implementation of this Circular, if the documents referred to in this Circular are revised or replaced, the revising or replacing documents will prevail.

For the Minister of Transport
Deputy Minister
LE ANH TUAN