Circular 68/2022/TT-BTC amend Circular 58/2016/TT-BTC on use of State capital for procurement

CIRCULAR

Amending and supplementing a number of articles of the Circular No. 58/2016/TT-BTC dated March 29, 2016 detailing regulations on use of State capital for the procurement for the purpose of maintaining routine operations of State agencies, units affiliated to People's armed force, public non-business units, political organizations, socio-political organizations, socio-politico-professional organizations, social organizations,
socio-professional organizations

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Pursuant to the Law No. 83/2015/QH13 on the State Budget dated June 25, 2015;

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

Pursuant to the Law No. 15/2017/QH14 on Management and Use of Public Property dated June 21, 2017;

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

Pursuant to the Government’s Decree No. 151/2017/ND-CP dated December 26, 2017, on detailing a number of articles of the Law on Management and Use of Public Property;

Pursuant to the Government’s Decree No. 165/2017/ND-CP dated December 31, 2017 prescribing the management and use of properties at the Communist Party of Vietnam;

Pursuant to the Government’s Decree No. 87/2017/ND-CP dated July 26, 2017, defining the functions, tasks, powers and organizational structure of the Ministry of Finance;

At the proposal of the Director of the Department of Public Expenditure;

The Minister of Finance promulgates the Circular amending and supplementing a number of articles of the Circular No. 58/2016/TT-BTC dated March 29, 2016 detailing regulations on use of State capital for the procurement for the purpose of maintaining routine operations of State agencies, units affiliated to People's armed force, public non-business units, political organizations, socio-political organizations, socio-politico-professional organizations, social organizations, socio-professional organizations.

Article 1. Amending and supplementing a number of articles of the Circular No. 58/2016/TT-BTC dated March 29, 2016 detailing regulations on use of State capital for the procurement for the purpose of maintaining routine operations of State agencies, units affiliated to People's armed force, public non-business units, political organizations, socio-political organizations, socio-politico-professional organizations, social organizations, socio-professional organizations

1. To amend and supplement Article 1 as follows:

“Article 1. Subjects of application

State agencies, political organizations, socio-political organizations, socio-politico-professional organizations, socio-professional organizations, social organizations, other organizations established under law regulations on associations, units affiliated to People's armed force, public non-business units (hereinafter referred to as agencies, units) and other organizations and individuals related to the use of State capital specified in Clause 2 Article 2 of this Circular for the procurement of properties, goods and services for the purpose of maintaining routine operations.  ”

2. To amend and supplement Article 2 as follows:

a) To amend and supplement Point d Clause 1 Article 2 as follows:

“d. Procurement of raw materials, fuels, chemicals, in-vitro diagnostic reagents, materials, consumables, tools and devices for ensuring routine operations;”

b) To amend and supplement Points d, dd, g and h Clause 2 Article 2 as follows:

“d) Official Development Assistance (ODA), including non-refundable loans and grants that are balanced in current expenditure from State budget; non-refundable aids from foreign non-governmental organizations, and those from domestic and foreign individuals and organizations which are State budget (unless otherwise defined in treaties on ODA to which the Socialist Republic of Vietnam is a party);

dd) Revenues from the charges that are permitted to be deducted or retained in accordance with law regulations on charges;

g) Funding from the Health Insurance Fund; funding for management of social insurance, health insurance, unemployment insurance;

h) Other lawful financial sources that are used in accordance with law regulations”

c) To amend and supplement Point d Clause 3 Article 2 as follows:

“d) The centralized procurement (including centralized procurement at national level and centralized procurement at ministerial, sectoral and local levels) specified in Clause 3 Article 31 of the Law on Management and Use of Public Property, the Government’s Decree No. 151/2017/ND-CP dated December 26, 2017, on detailing a number of articles of the Law on Management and Use of Public Property shall comply with the Law on Bidding, the Government’s Decree No. 63/2014/ND-CP dated June 26, 2014, detailing a number of articles of the Bidding Law regarding contractor selection (hereinafter referred to as the Decree No. 63/2014/ND-CP) and their guiding documents.”

d) To add Points dd, e, g, h and i to Clause 3 Article 2 as follows:

“dd) The procurement of medicines shall comply with the Law No. 105/2016/QH13 on Pharmacy dated April 06, 2016 and its guiding documents;

e) Other regulations on procurement of medical devices are defined in the Government’s Decree No. 98/2021/ND-CP dated November 08, 2021 on the management of medical devices and the Ministry of Health’s guiding documents;

g) The procurement of properties, goods and services under projects funded by the official development assistance (ODA) that arises from treaties or international agreements shall comply with the Law on Bidding, Decree No. 63/2014/ND-CP and their guiding documents;

h) The procurement of properties for implementation of scientific and technological tasks shall be in accordance with the Government’s Decree No. 70/2018/ND-CP dated May 15, 2018 on defining the management and use of properties being the results of performance of scientific and technological tasks funded by the State capital;

i) For the fields with specialized law regulations on procurement of properties, goods and services, such specialized law regulations shall be applied. ”

e) To add Clause 4 to Article 2 as follows:

“4. The online selection of contractors shall comply with Chapter VII of Law on Bidding, Decree No. 63/2014/ND-CP and the Ministry of Planning and Investment’s guiding documents.”

3. To amend and supplement Clause 2 Article 3 as follows:

“2. The heads of agencies, units shall, based on annual budget expenditure estimates (including additional budget estimates in the year), other lawful financial sources of agencies and units and Decision on procurement of properties, goods and services issued by the competent authorities as prescribed in Article 5 of this Circular, apply an appropriate form of contractor selection to organize their procurement of properties, goods and services in accordance with regulations.”

4. To amend and supplement Article 5 as follows:

“Article 5. Competence, order, procedures for deciding the procurement of properties, goods and services, contents of decisions on procurement of properties, goods and services

1. Competence, order, procedures for deciding the procurement of public properties, contents of decisions on procurement of public properties at agencies and units shall be in accordance with Article 3, Article 37 of the Government’s Decree No. 151/2017/ND-CP dated December 26, 2017, on detailing a number of articles of the Law on Management and Use of Public Property; Article 13 of the Government’s Decree No. 165/2017/ND-CP dated December 31, 2017 prescribing the management and use of properties at the Communist Party of Vietnam;

2. Competence, order, procedures and contents of procurement of other properties, goods and services (other than public properties) specified in Clause 1 Article 2 of this Circular shall comply with regulations on procurement of public properties.”

5. To amend and supplement Article 8 as follows:

a) To amend Point a Clause 1 Article 8 as follows:

“a. For bidding packages for procurement of properties, goods and services subject to the approval of Chairpersons of provincial-level People's Committees, the Chairperson of the provincial-level People's Committee shall direct the provincial-level Department of Finance or a specialized agency under the People's Committee as prescribed in Clause 2 Article 20 and Clause 1 Article 22 of the Law on Organization of Local Administration to assume the prime responsibility for appraising contractor selection plans; particularly for bidding packages for procurement of medical supplies subject to the competence of Chairpersons of provincial-level People's Committees, the provincial-level Department of Health shall assume the prime responsibility for appraising contractor selection plans in accordance with Clause 3 Article 104 of Decree No. 63/2014/ND-CP.”

b) To add Clause 3, Clause 4 to Article 8 as follows:

“3. The responsibility of appraising the contractor selection plans applicable to bidding packages for procurement of properties, goods and services subject to the approval of Chairpersons of district-level People's Committees shall comply with Clause 5 Article 104 of Decree No. 63/2014/ND-CP.

4. For the fields with specialized law regulations on responsibility of appraising contractor selection plans applicable to bidding packages for procurement of properties, goods and services, such specialized law regulations shall be applied.”

6. To amend and supplement Article 10 as follows:

a) To amend and supplement Clause 2 Article 10 as follows:

“2. Decision on the procurement of properties, goods and services by competent authorities (as prescribed in Article 5 of this Circular).”

b) To amend and supplement Clause 5 Article 10 as follows:

“5. Current procurement estimates approved by competent agencies within the lawful financial sources permitted to be used of the agency or unit.”

7. To amend and supplement Clause 2 Article 11 as follows:

“2. Bidding-package price.

a) On the basis of the approved procurement estimate, the bidding-package price shall be determined based on at least one of the following documents, ensuring that it is according to the market price:

- The market price that is consulted from at least 03 quotations of different suppliers in the locality at the latest time, up to 90 days before the date of submission to the agency appraising the contractor selection plan; in cases it is impossible to get quotations from three local suppliers, the quotation provided by suppliers in other areas or the information sources announced by competent agencies, organizations with legal person status established in accordance with the Vietnamese law may be referred to;

- The results of valuation provided by a State agency competent to perform the valuation or a valuation enterprise, for properties, goods and services subject to the valuation in accordance with the Law on Prices;

- The winning bid of the bidding package for procurement of similar goods within the latest period, but not exceeding 90 days;

In case the bidding package consists of many separate parts, the estimated value of each part in the bidding-package price must be clearly specified.

b) If there is a ground to determine that there is a fluctuation in the market price, compared to the approved price (based on the reference of quotations, valuation results, winning bids of bidding packages for procurement of similar goods), the person competent to approve the contractor selection plan shall decide to update the bidding-package price within 28 days before the date of bid opening, if necessary.

c) For cases where regulations on determination of bidding-package price are defined in specialized laws, such specialized law regulations shall be applied.

8. To amend and supplement Article 24 as follows:

“Article 24. Conditions for applying the contractor selection in special cases

In cases bidding packages for procurement of properties, goods and services have particularities to which the forms of contractor selection specified in Articles 20, 21, 22, 23, 24 and 25 of the Law on Bidding cannot be applied, competent persons shall propose contractor selection plans to the Prime Minister for consideration and decision, except for cases specified in the Prime Minister’s Decision No. 17/2019/QD-TTg dated April 08, 2019 on a number of bidding packages and procurement contents to maintain routine operations, which are subject to contractor selection in special cases specified in Article 26 of the Bidding Law.”

9. To amend and supplement Clause 1 Article 25 as follows:

“1. The competent person shall clarify particularities of the bidding package which are used as the basis for proposing the contractor selection plan in special cases, and send it to Ministry of Planning and Investment for the appraisal as specified Point b Clause 1 Article 104 of the Decree No. 63/2014/ND-CP.”

Article 2. Transitional provisions

For procurement contents already approved and allocated the funding by competent authorities before the effective date of this Circular, law regulations on management and use of the funding sources that are used as a basis for the approval shall continue to be applied until finalization of procurement contents.

Article 3. Implementation provisions

1. This Circular takes effect on November 14, 2022.

2. In case legal documents mentioned herein are amended, supplemented or replaced during the implementation of this Circular, these amending, supplementing or replacing documents shall be applied.

3. Any difficulty or problem arising in the course of implementation should be promptly reported to the Ministry of Finance for amendment and supplementation./.

For the Minister
The Deputy Minister
Vo Thanh Hung