Decree 24/2024/ND-CP detailing the Law on Bidding regarding contractor selection

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Decree No. 24/2024/ND-CP dated February 27,2024 of the Government detailing a number of articles of and measures to implement the Law on Bidding regarding contractor selection
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Official number:24/2024/ND-CPSigner:Tran Hong Ha
Type:DecreeExpiry date:Updating
Issuing date:27/02/2024Effect status:
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Fields:Bidding - Competition
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LuatVietnam.vn is the SOLE distributor of English translations of Official Gazette published by the Vietnam News Agency
Effect status: Known

THE GOVERNMENT

_________

No. 24/2024/ND-CP

THE SOCIALIST REPUBLIC OF VIETNAM

Independence - Freedom - Happiness

__________________________

Hanoi, February 27, 2024

 

DECREE

Detailing a number of articles of and measures to implement the Law on Bidding regarding contractor selection

_____________

 

Pursuant to the Law on Government Organization dated June 19, 2015; Law amending and supplementing a number of articles of the Law on Government Organization and the Law on Organization of Local Government dated November 22, 2019;

Pursuant to the Law on Bidding dated June 23, 2023;

At the proposal of the Minister of Planning and Investment;

The Government promulgates the Decree detailing a number of articles of and measures to implement the Law on Bidding regarding contractor selection.

 

Chapter I
GENERAL PROVISIONS

 

Article 1. Scope of regulation

1. This Decree details a number of articles of the Law on Bidding regarding contractor selection, including:

a) Clause 6, Article 6 on guarantee of competitiveness in bidding;

b) Clause 6, Article 10 on preferences in contractor selection;

c) Clause 3, Article 15 on expenses for contractor selection;

d) Clause 4, Article 19 on capacity and experience of members of expert teams and appraisal teams;

dd) Clause 2, Article 20 on other forms of contractor selection;

e) Clause 7, Article 23 on contractor appointment;

g) Clause 4, Article 29 on contractor selection in special cases;

h) Clause 4, Article 36 on general plans on contractor selection for projects;

 

i) Clause 2, Article 39 on details of a contractor selection plan;

k) Clause 8, Article 43 on process and procedures for contractor selection;

l) Clause 1 and Clause 5, Article 50 on online contractor selection;

m) Clause 7, Article 53 on centralized procurement;

n) Clause 3 and Clause 4, Article 55 on selection of contractors for procurement of medicines, chemicals and supplies for medical tests, and medical equipment;

o) Clause 4, Article 67 on conclusion of contracts with selected contractors;

p) Clause 6, Article 70 on modification of contracts;

q) Clause 2, Article 84 on responsibility for state management of bidding;

r) Clause 4, Article 86 on inspection, examination and supervision of bidding activities;

s) Clause 5, Article 87 on handling of violations;

t) Clause 4, Article 88 on response to arising circumstances in bidding.

2. Measures to implement the Law on Bidding regarding contractor selection, including:

a) Registration on the Vietnam National E-Procurement System;

b) Time of organization of contractor selection;

c) Competence to decide on the procurement, for procurement estimates;

d) Public disclosure of information in bidding;

dd) Management of contractors.

3. Selection of contractors for provision of public products and services in the form of order placement or task assignment shall comply with the Government’s separate regulations.

Article 2. Interpretation of terms

1. Online haggling means a repetitive process in which contractors use electronic means to offer new prices or new values for quantifiable non-price factors according to the evaluation criteria in the bidding dossiers to serve as the basis for ranking or re-ranking of bid dossiers on the Vietnam National E-Procurement System.

2. Sustainable bidding includes 03 important factors, namely environment, social and economy, which are integrated into the contractor selection process: general plan on contractor selection (if any), contractor selection plan, design development, preparation of the bidding dossier and the dossier of requirements, evaluation of bid dossiers and dossiers of proposals, conclusion of the contract and management of contract performance.

3. Winning bid means the bid stated in the decision approving the contractor selection result.

4. Online procurement means the direct procurement of goods and services on the Vietnam National E-Procurement System from the contractor that has won the bidding package for supply of such goods and services through centralized procurement.

Article 3. Guarantee of competitiveness in bidding

1. Contractors that participate in bidding for a construction and installation, goods procurement, non-consultancy, or PC bidding package must be legally and financially independent from the following parties:

a) Contractors providing consultancy services for such bidding package, including: the formulation and verification of technical design, construction drawing design, cost estimates and front-end engineering design (FEED); the evaluation of bids; the management of contract performance, the contractor auditing; the formulation and appraisal of the dossier of invitation to prequalification and the bidding dossier; the evaluation of dossiers of participation in prequalification and bid dossiers; the appraisal of prequalification and contractor selection result; the project and contract management consultancy, and other consultancy services directly related to the bidding package;

b) Project owner or bid solicitor, unless otherwise specified in Clauses 8 and 9 of this Article.

2. Contractors that participate in bidding for a bidding package to provide consultancy services must be legally and financially independent from the following parties:

a) Contractors providing consultancy services for such bidding package, including: the formulation and verification of the dossier of invitation for expression of interest and bidding dossier; the evaluation of dossiers of expression of interest and bid dossiers; the appraisal of results of invitation for expression of interest and contractor selection; project and contract management consultancy, and other consultancy services directly related to the bidding package;

b) Project owner or bid solicitor, unless otherwise specified in Clauses 8 and 9 of this Article;

c) Contractors, in addition to those specified at Points a and b of this Clause, involved in the bidding package to provide consultancy services related to another goods supply, construction and installation or non-consultancy bidding package, including: the formulation and verification of technical design, construction and installation drawing design, cost estimates and FEED; the evaluation of bids; the management of contract performance, the contractor auditing; the formulation and appraisal of the dossier of invitation to prequalification and the bidding dossier; the evaluation of dossiers of participation in prequalification and bid dossiers; the appraisal of prequalification and contractor selection result; the project and contract management consultancy, and other consultancy services directly related to the bidding package.

3. Contractors that participate in bidding for an EPC, EP, or EC bidding package must be legally and financially independent from the following parties:

a) Contractor formulating and verifying FEED;

b) Contractor formulating and verifying the feasibility study report in the case where the FEED is not formulated;

c) Contractor formulating and verifying the technical-economic report in the case where a feasibility study report or the FEED is not formulated in accordance with law regulations on construction;

d) Contractors providing services of project management consultancy, supervision consultancy, contractor auditing consultancy, contract management consultancy for the project owner or bid solicitor or those who are hired by the project owner or bid solicitor;

dd) Contractors providing bid assessment consultancy services; contractors formulating and appraising the dossier of invitation to prequalification and the bidding dossier; consultancy contractors evaluating dossiers of participation in prequalification and bid dossiers; consultancy contractors evaluating the result of evaluating dossiers of participation in prequalification and contractor selection result; other consultancy contractors directly participating in the contractor selection process;

e) Project owner or bid solicitor, unless otherwise specified in Clauses 8 and 9 of this Article;

The design in an EPC, EP, or EC bidding package under a construction investment project specified in this Clause can be FEED or basic design. An EPC, EP, or EC bidding package shall not be formed if a technical design is available or the construction involves two-step design as specified in the law regulations on construction.

4. Contractors that participate in bidding for a turnkey bidding package must be legally and financially independent from the following parties:

a) Contractor formulating and verifying the pre-feasibility study report;

b) Contractors providing services of project management consultancy, supervision consultancy, contractor auditing consultancy, contract management consultancy for the project owner or bid solicitor or those who are hired by the project owner or bid solicitor;

c) Contractors formulating and appraising the dossier of invitation to prequalification and the bidding dossier; consultancy contractors evaluating dossiers of participation in prequalification and bid dossiers; consultancy contractors evaluating contractor selection result; other consultancy contractors directly participating in the contractor selection process;

d) Project owner or bid solicitor, unless otherwise specified in Clauses 8 and 9 of this Article.

5. Other than contractors performing design tasks of an EPC, EP, EC, or turnkey bidding package, which must be legally and financially independent from the consultancy contractors specified at Points a, b, c, d and dd, Clause 3 of this Article and Points a, b and c, Clause 4 of this Article, consultancy contractors may provide one or more consultancy services for the same project or bidding package, including:

a) Formulation and verification of the investment policy proposal report;

b) Formulation and verification of the pre-feasibility study report;

c) Formulation and verification of the feasibility study report;

d) Formulation and verification of technical and economic reports;

dd) Construction surveying;

e) Formulation and verification of design dossiers and estimates;

g) Formulation and appraisal of the general plan on contractor selection, contractor selection plan, dossier of invitation to prequalification, dossier of invitation for expression of interest, bidding dossier, dossier of requirements; evaluation of dossiers of participation in prequalification, dossiers of expression of interest, bid dossiers, and dossiers of proposals; appraisal of the results of evaluating dossiers of participation in prequalification, results of evaluating dossiers of expression of interest, and contractor selection results;

h) Supervision consulting.

For each item specified at Points a, b, c, d, e and g of this Clause, a contractor may only conduct formulation or verification or appraisal thereof.

6. The ratio of shares and capital contributions among the parties shall be determined at the time of bid closing on the basis of the ratio stated in the business registration certificate, the establishment decision, or other documents of equivalent value.

7. In the case where the contractors participate in the bidding as a consortium or the selected consultancy contractor is a consortium, the capital ownership ratio of other organizations and individuals in the consortium shall be determined using the following formula:

Text Box: The capital ownership ratio

Where:

Xi: The capital ownership ratio of other organizations and individuals in the ith consortium member;

Yi: The percentage (%) of the workload of the ith consortium member under the consortium agreement;

n: The quantity of members of the consortium.

8. Parent companies, subsidiaries, and member companies in a State-owned economic group or corporation may participate in each other's bidding packages if the products and services in such bidding packages belong to the group's main production and business lines of such State-owned economic group or corporation. Contractors participating in the bidding must still be legally and financially independent from contractors specified at Points a, b, c, Clause 1 and Clause 2, Article 6 of the Law on Bidding.

9. Public non-business units and enterprises that are directly managed or have their capital contributed by the same authority when participating in each other's bidding packages do not have to meet the requirements for legal and financial independence between contractors and the project owner or bid solicitor.

Article 4. Principles of preferences

1. Contractors participating in the bidding who are eligible for more than one type of preferences in the evaluation of capacity and experience or in the financial evaluation shall, when calculating preferences, only be entitled to the one type of preferences that is most beneficial to such contractors corresponding to each criterion of capacity and experience evaluation or financial evaluation.

2. In the case where all contractors participating in the bidding are entitled to the same preferences or all contractors are not eligible for preferences, there is no need to calculate preferences for comparison and ranking.

3. For mixed bidding packages, preferences shall be determined based on proposals of contractors in all consultancy, goods supply and construction and installation tasks. Contractors are entitled to preferences if their proposed domestic production costs (consultancy, non-consultancy, supply of goods of Vietnamese origin, and construction and installation expenses) account for 25% or more of the value of tasks under the bidding package.

4. A contractor must prove that the contractor as well as goods and services offered by such contractor are eligible for preferences in accordance with Clause 1, Article 10 of the Law on Bidding.

Article 5. Preferences for goods of Vietnamese origin

1. Preferences for goods of Vietnamese origin with a domestic production cost ratio of less than 50% and no item with a domestic production cost of 50% or more shall be determined as follows:

a) In case of applying the lowest bid method, contractors with goods not entitled to preferences shall have their bids, after error correction and deviation adjustment minus the value of discounts (if any), added with an amount of money equal to 7.5% of such bids for comparison and ranking;

b) In case of applying the evaluated price method, contractors with goods not entitled to preferences shall have their evaluated prices added with an amount of money equal to 7.5% of their bids after error correction and deviation adjustment minus the value of discounts (if any) for comparison and ranking;

c) In case of applying the combined technique-and-price method, the total score of goods entitled to preferences shall be added with preferential points by the following formula:

Preferential points = 7.5% x (the price of goods entitled to preferences/the bid for such goods after error correction and deviation adjustment minus the value of discounts (if any)) x the total score

In which, the price of goods entitled to preferences is the bid for such goods after error correction and deviation adjustment minus the value of discounts (if any);

d) In the cases specified at Points a, b and c of this Clause, the contractors offering goods of Vietnamese origin with the domestic production cost ratio of less than 50% produced at its facility that has at least 50% of its employees who are disabled, war invalids, and ethnic minorities signing labor contracts with the term of 03 months or more, which are still valid at the time of bidding closing, shall be entitled to a preferential coefficient of 10% instead of 7.5%.

2. Preferences for goods of Vietnamese origin with a domestic production cost ratio of 50% or more shall be determined as follows:

a) In case of applying the lowest bid method, for goods not entitled to preferences the contractors shall have their bids, after error correction and deviation adjustment minus the value of discounts (if any), added with an amount of money equal to 10% of the bids after error correction and deviation adjustment minus the value of discounts (if any) for comparison and ranking. For goods with the domestic production cost ratio of less than 50% but entitled to preferences, the contractors shall have their bids, after error correction and deviation adjustment minus the value of discounts (if any), added with an amount of money equal to 2.5% of the bids after error correction and deviation adjustment minus the value of discounts (if any) for comparison and ranking. No amount shall be added to the bids of contractors for comparison and ranking if they offer goods of Vietnamese origin with the domestic production cost ratio of less than 50% produced at facilities that have at least 50% of employees who are disabled, war invalids, and ethnic minorities signing labor contracts with the term of 03 months or more, which are still valid at the time of bidding closing;

b) In case of applying the evaluated price method, for goods not entitled to preferences the contractors shall have their evaluated prices added with an amount of money equal to 10% of the bids after error correction and deviation adjustment minus the value of discounts (if any) for comparison and ranking. For goods with the domestic production cost ratio of less than 50% but entitled to preferences, the contractors shall have their evaluated prices added with an amount of money equal to 2.5% of the bids after error correction and deviation adjustment minus the value of discounts (if any) for comparison and ranking. No amount shall be added to the evaluated prices of contractors for comparison and ranking if they offer goods of Vietnamese origin with the domestic production cost ratio of less than 50% produced at facilities that have at least 50% of employees who are disabled, war invalids, and ethnic minorities signing labor contracts with the term of 03 months or more, which are still valid at the time of bidding closing;

c) In case of applying the method of combined techniques and bids, the total score of goods entitled to preferences, of which domestic production costs account for 50% or more, shall be added with preferential points by the following formula:

Preferential points = 10% x (the price of goods entitled to preferences/the bid for such goods after error correction and deviation adjustment minus the value of discounts (if any)) x the total score

In which, the price of goods entitled to preferences, of which domestic production costs account for 50% or more, is the bid for such goods after error correction and deviation adjustment minus the value of discounts (if any).

For goods with the domestic production cost ratio of less than 50% but entitled to preferences, the formula specified at Point c, Clause 1 of this Article shall be applied. In the cases specified at Points a, b and c of this Clause, the contractors offering goods of Vietnamese origin with the domestic production cost ratio of less than 50% produced at its facility that has at least 50% of its employees who are disabled, war invalids, and ethnic minorities signing labor contracts with the term of 03 months or more, which are still valid at the time of bidding closing, shall be entitled to a preferential coefficient of 10%;

d) In the cases specified at Points a, b and c of this Clause, the contractors offering goods of Vietnamese origin with the domestic production cost ratio of 50% or more produced at its facility that has at least 50% of its employees who are disabled, war invalids, and ethnic minorities signing labor contracts with the term of 03 months or more, which are still valid at the time of bidding closing, shall be entitled to a preferential coefficient of 12% instead of 10%.

3. Innovative products that are goods of Vietnamese origin shall be entitled to the following preferences:

a) In case of applying the lowest bid method, for goods not entitled to preferences the contractors shall have their bids, after error correction and deviation adjustment minus the value of discounts (if any), added with an amount of money equal to 15% of the bids after error correction and deviation adjustment minus the value of discounts (if any) for comparison and ranking. For goods with the domestic production cost ratio of less than 50% but entitled to preferences, the contractors shall have their bids, after error correction and deviation adjustment minus the value of discounts (if any), added with an amount of money equal to 7.5% of the bids after error correction and deviation adjustment minus the value of discounts (if any) for comparison and ranking. For goods with the domestic production cost ratio of 50% or more entitled to preferences, the contractors shall have their bids, after error correction and deviation adjustment minus the value of discounts (if any), added with an amount of money equal to 5% of the bids after error correction and deviation adjustment minus the value of discounts (if any) for comparison and ranking;

b) In case of applying the evaluated price method, for goods not entitled to preferences the contractors shall have their evaluated prices added with an amount of money equal to 15% of the bids after error correction and deviation adjustment minus the value of discounts (if any) for comparison and ranking. For goods with the domestic production cost ratio of less than 50% but entitled to preferences, the contractors shall have their evaluated prices added with an amount of money equal to 7.5% of the bids after error correction and deviation adjustment minus the value of discounts (if any) for comparison and ranking. For goods with the domestic production cost ratio of 50% or more entitled to preferences, the contractors shall have their evaluated prices added with an amount of money equal to 5% of the bids after error correction and deviation adjustment minus the value of discounts (if any) for comparison and ranking;

c) In case of applying the combined technique-and-price method, the total score of innovative products of Vietnamese origin shall be added with preferential points by the following formula:

Preferential points = 15% x (the price of goods entitled to preferences/the bid for such goods after error correction and deviation adjustment minus the value of discounts (if any)) x the total score

In which, the price of goods entitled to preferences, which are innovative products of Vietnamese origin, is the bid for such goods after error correction and deviation adjustment minus the value of discounts (if any);

For goods that are not innovative products of Vietnamese origin, in the case where the contractor offers goods of Vietnamese origin with the domestic production cost ratio of less than 50%, when calculating preferences, the preferential coefficient of 15% is replaced by 7.5%. For goods of Vietnamese origin with the domestic production cost ratio of 50% or more, when calculating preferences, the preferential coefficient of 15% is replaced by 10%.

4. Innovative products of Vietnamese origin are entitled to preferences in accordance with Clause 3 of this Article when they meet one of the following conditions:

a) Products on the list of high-tech products of which the investment in development is prioritized or the list of high-tech products of which the development is encouraged under the Prime Minister's decision;

b) Products resulting from scientific and technological research conducted by science and technology enterprises, in accordance with relevant law regulations on science and technology enterprises;

c) Products created based on the contractors’ inventions, semiconductor integrated circuit layouts, plant varieties that are granted protection titles for a term of no more than 05 years from the date of such grant, or the contractors’ computer programs protected for a term of no more 05 years from the date they are granted registered copyright certificates;

d) Semiconductor integrated circuits;

dd) Products that have won the Ho Chi Minh Prize, or the State Prize for Science and Technology in accordance with the law regulations on science and technology awards;

e) New products created from the results of research and development at one of the facilities of the Vietnam National Innovation Center;

g) New products created from the results of scientific research and technological development in accordance with law regulations on technology transfer.

Innovative products specified in this Clause are entitled to preferences for a period of 06 years from the first time they are produced and eligible for marketing.

5. Goods of Vietnamese origin marketed domestically (goods manufactured in Vietnam) are entitled to the following preferences:

a) For information technology software products:

Criteria for determining domestically produced information technology software products eligible for preferences comply with law regulations on information technology, with no requirement on domestic production cost as specified at Point b of this Clause;

b) For goods other than those specified at Point a of this Clause:

Either the following direct or indirect formula can be used to determine whether the goods are manufactured in Vietnam:

Direct formula: D (%) = G*/G x 100%

Indirect formula: D (%) = (G - C)/G x 100%

Where:

G* is the domestic production cost;

G is the offer of goods stated in the bid dossier or the dossier of proposals minus tax value. For contractors that are manufacturers, G is the Ex Works (EXW) price of the goods;

C is the value of import costs, excluding taxes and fees related to import;

D is the ratio of domestic production costs of goods. If D ≥ 30%, such goods shall be entitled to preferences specified in this Article and Articles 6, 7, 8, 9, 10 of this Decree.

Article 6. Preferences in international bidding

1. For consultancy service bidding packages:

a) In case of applying the lowest bid method, contractors not entitled to preferences shall have their bids, after error correction and deviation adjustment minus the value of discounts (if any), added with an amount of money equal to 7.5% of such bids for comparison and ranking;

b) In case of applying the technique-based method, contractors entitled to preferences shall have their technical points added with 7.5% of such points for comparison and ranking;

c) In case of applying the combined technique-and-price method, contractors entitled to preferences shall have their total score added with 7.5% of such score for comparison and ranking.

2. For bidding packages to provide non-consultancy services or for construction and installation bidding packages or mixed bidding packages:

a) In case of applying the lowest bid method, contractors not entitled to preferences shall have their bids, after error correction and deviation adjustment minus the value of discounts (if any), added with an amount of money equal to 7.5% of such bids for comparison and ranking;

b) In case of applying the evaluated price method, contractors not entitled to preferences shall have their evaluated prices added with an amount of money equal to 7.5% of their bids after error correction and deviation adjustment minus the value of discounts (if any) for comparison and ranking;

c) In case of applying the combined technique-and-price method, contractors entitled to preferences shall have their total score added with 7.5% of such score for comparison and ranking.

3. For bidding packages for goods procurement, the application of preferences for goods of Vietnamese origin must comply with Article 5 of this Decree.

4. Preferences for domestic innovative start-up businesses shall comply with Article 8 of this Decree.

5. Preferences for domestic contractors producing goods of Vietnamese origin shall comply with Article 9 of this Decree.

6. Preferences for information technology services shall comply with the law regulations on information technology.

Article 7. Preferences in national bidding

1. For bidding packages for goods procurement, the application of preferences for goods of Vietnamese origin must comply with Article 5 of this Decree.

The competent person may decide whether or not to allow contractors with 50% or more of their employees who are disabled, war invalids, or ethnic minorities signing labor contracts with the term of 03 months or more, which are still valid at the time of bid closing, to participate in the bidding for bidding packages with procurement estimates valued at less than VND 500 million. In the case where the competent person decides to allow but no contractor participating in the bidding or no contractor meeting the requirements, the bidding shall be re-organized and other types of contractors are allowed to participate in the bidding.

2. For construction and installation bidding packages with the bidding package's price of no more than VND 05 billion, preferences for micro-enterprises and small-sized enterprises shall comply with Point dd, Clause 2, Article 10 of the Law on Bidding.

3. Preferences for domestic innovative start-up businesses shall comply with Article 8 of this Decree.

4. Preferences for domestic contractors producing goods of Vietnamese origin shall comply with Article 9 of this Decree.

5. Preferences for information technology services shall comply with the law regulations on information technology.

Article 8. Preferences for domestic innovative start-up businesses

1. When domestic innovative start-up enterprises offer their innovative products for bidding in accordance with Clause 4, Article 5 of this Decree, they may not meet the requirements on revenues and years of operating in the same industry within a period of 06 years from the first time they are produced and eligible for marketing.

2. Innovative products specified in Clause 4, Article 5 of this Decree that are goods of domestic creative start-up enterprises participating in bidding shall be entitled to preferences specified in Clause 3, Article 5 of this Decree.

3. Innovative products specified in Clause 4, Article 5 of this Decree that are services of domestic creative start-up enterprises participating in domestic or international bidding shall be entitled to preferences specified in Clause 1 and Clause 2, Article 6 of this Decree.

Article 9. Preferences for domestic contractors producing goods of Vietnamese origin

1. Domestic contractors to whom technology is transferred to produce goods of Vietnamese origin in conformity with bidding dossiers may:

a) Not meet the requirements on revenues and years of operating in the same industry within a period of 05 years from the first time they are produced and eligible for marketing;

b) Not meet the requirements on confirmation of successful operation and defined period of time during which the products are used and confirmed by users that they meet quality requirements, for transferred technologies on the list of industries entitled to investment preferences in addition to the preferences specified at Point a of this Clause and the list of technologies of which transfer is encouraged in accordance with law regulations. In the case where the technology transferor has a commitment with the project owner to take responsibility for the quality of products manufactured by the contractor at the project owner's request, the contractor receiving the technology transfer may use the technology transferor's documents and test results for the transferred technology demonstrate to demonstrate the verifiability and conformity of the type of goods to be manufactured to the specifications transferred under the technology transfer contract or the technology transfer certificate issued by the competent authority;

c) All requirements for capacity, experience, goods quality, technical requirements, and other requirements of the bidding package, other than those specified at Points a and b of this Clause, shall be specified on the same evaluation basis for all participating contractors. In case of necessity, the project owner may impose additional requirements on contractors entitled to preferences, including: extending the warranty period, enhancing quality control procedures during production and factory acceptance testing, providing operation, maintenance, and other services to ensure the reliability of goods during operation.

2. Domestic contractors producing goods of Vietnamese origin in conformity with bidding dossiers may:

a) Not meet the requirements on revenues and years of operating in the same industry as the bidding package under consideration when the contractors offer goods that are produced by such contractors for the first time and are eligible for marketing within a period of 05 years before the bid closing time. Contractors established no more than 07 years by the time of bid closing shall be entitled to such preferences;

b) Be entitled to preferences as specified at Point b, Clause 1 of this Article for the technology transferred from other units (if any).

3. When offering their innovative products for bidding, individuals or groups of individuals specified in Clause 4, Article 5 of this Decree may not meet the requirements on financial capacity and years of operating in the same industry within a period of 06 years from the first time the products are produced and eligible for marketing.

4. The bases for identifying a domestic contractor who is allowed to transfer technology or one who is allowed to transfer the technology of which transfer is encouraged to produce goods of Vietnamese origin is the certificate of technology transfer registration or the certificate of registration for encouraged transfer of technology as specified in the law regulations on technology and investment.

Article 10. Preferences for products and services certified with eco-labels, energy labels and equivalent

1. Products and services certified with eco-labels, energy labels and equivalent in accordance with law regulations shall be entitled to preferences in accordance with Clause 3, Article 10 of the Law on Bidding.

2. Depending on the characteristics of the bidding package and demand for usage, the project owner may specify the technical requirements for procurement of products and services certified with eco-labels, energy labels and equivalent in the dossier of requirements and the bidding dossier, provided that such requirements are compliant with Point k, Clause 6, Article 16 and Clause 3, Article 44 of the Law on Bidding; give priority to products and services certified with eco-labels, energy labels and equivalent in the formula for determining the evaluated price.

Article 11. Sustainable bidding

Depending on the characteristics of the bidding package, the project owner may specify sustainable bidding requirements in the bidding dossier and the dossier of requirements in one or more of the following ways:

1. Specify technical requirements in bidding dossiers and dossiers of requirements according to scoring method or pass or fail method. Contractors offering solutions, goods and services that meet sustainable bidding requirements shall continue to be considered and evaluated;

2. Regulations in the formula for determining the evaluated price, which quantifies sustainable bidding factors into the formula for determining the evaluated price to compare and rank contractors.

Article 12. Expenses for contractor selection

1. For international bidding, depending on the size and characteristics of the bidding package, the project owner may decide according to international bidding practices the amount of money the contractor must pay to purchase electronic copies of the bidding dossier and the dossier of requirements when they submit their bid dossiers and dossiers of proposals.

For bidding packages using state budget capital, proceeds from the sale of electronic copies of bidding dossiers and dossiers of requirements are submitted by the project owner to the state budget in accordance with the State Budget Law. For a bidding package not funded by State budget, the proceeds from the sale of electronic copies of the bidding dossier and the dossier of requirements shall be deemed the project owner's revenue and managed and used in accordance with the project owner's financial mechanism.

2. Expense for formulation and appraisal during the contractor selection process:

a) In case of hiring a bidding consultant to perform one or several tasks during the contractor selection process, the expense of hiring such consultant shall not be based on the expenses specified in Clauses 3, 4, 5, 6 and 7 of this Article;

b) In the case where the competent person assigns a subordinate authority or unit to formulate and appraise the general plan on contractor selection, the expenses for these tasks shall be included in the expense estimate for contractor selection as specified in Clause 3 of this Article;

c) In the case where the expert team or appraisal team is established under the project owner's decision to formulate and evaluate the dossier of invitation to prequalification, the dossier of invitation for expression of interest, the bidding dossier, and the dossier of requirements; to evaluate dossiers of participation in prequalification, dossiers of expression of interest, bid dossiers, and dossiers of proposals; and to appraise contractor selection results, the expenses for such tasks shall be included in the estimate for contractor selection specified in Clauses 4, 5, 6 and 7 of this Article;

d) Expenses specified in Clauses 3, 4, 5, 6 and 7 of this Article shall be included in the total investment, procurement estimate or investment preparation estimate or recurrent expenditure estimate of the unit;

dd) The management and use of expenses specified in Clauses 3, 4, 5, 6 and 7 of this Article shall comply with the project owner's financial mechanism.

3. The expense for formulation or appraisal of a general plan on contractor selection equals 0.5% of the expense for formulation of a feasibility study report but must be between VND 5,000,000 and VND 40,000,000.

4. Expenses for making and appraisal of dossiers:

a) The expense for making of a dossier of invitation for expression of interest or dossier of invitation to prequalification equals 0.1% of the price of the bidding package but must be between VND 2,000,000 and VND 30,000,000;

b) The expense for appraisal of a dossier of invitation for expression of interest or dossier of invitation to prequalification equals 0.06% of the price of the bidding package but must be between VND 2,000,000 and VND 30,000,000;

c) The expense for making of a bidding dossier or dossier of requirements equals 0.2% of the price of the bidding package but must be between VND 3,000,000 and VND 60,000,000;

d) The expense for appraisal of a bidding dossier or dossier of requirements equals 0.1% of the price of the bidding package but must be between VND 2,000,000 and VND 60,000,000.

5. Expenses for evaluation of dossiers:

a) The expense for evaluation of a dossier of expression of interest or dossier of participation in prequalification equals 0.1% of the price of the bidding package but must be between VND 2,000,000 and VND 30,000,000;

b) The expense for evaluation of a bid dossier or dossier of proposals equals 0.2% of the price of the bidding package but must be between VND 3,000,000 and VND 60,000,000.

6. The expense for appraisal of contractor selection result, including cases of failure to select contractors, equals 0.1% of the price of the bidding package but must be between VND 3,000,000 and VND 60,000,000.

7. For similar bidding packages of the same project, procurement estimates of the same project owner or bidding packages that require reorganization of contractor selection, the expenses for formulation and appraisal of dossier of invitation for expression of interest and dossier of invitation to prequalification; formulation and appraisal of bidding dossiers and dossiers of requirements shall equal at most 50% of the expenses specified in Clause 4 of this Article. In the case where the re-bidding for a part of the bidding package (for a bidding package consisting of many separate parts) is necessitated, the expenses shall equal at most 50% of the expenses calculated on the estimated value of the part subject to re-bidding.

In case of re-organizing the selection of contractors, contractor selection expenses must be calculated and added to the project or procurement cost estimate to suit the bidding package’s actual situation. In case of international bidding, translation expense shall be calculated at market prices, provided that the efficiency of the bidding package.

8. The expense for the appeal settlement consultancy council (hereinafter referred to as the consultancy council) to settle any appeal from a contractor regarding the contractor selection result equals a percentage of the bid of such contractor as follows:

a) For a bid of under VND 50,000,000,000, the percentage is 0.03% but the expense must not be less than VND 5,000,000;

b) For a bid of between VND 50,000,000,000 and less than VND 100,000,000,000, the percentage is 0.025% but the expense must not be less than VND 15,000,000;

c) For a bid of between VND 100,000,000,000 and less than VND 200,000,000,000, the percentage is 0.02% but the expense must not be less than VND 25,000,000;

d) For a bid of VND 200,000,000,000 or more, the percentage is 0.015% but the expense must be between VND 40,000,000 and VND 60,000,000.

For bidding packages applying the single-stage two-envelope method, or the two-stage two-envelope method, in the case where the contractors request not to open their dossiers of financial proposals, the consultancy council shall base the determination of such expenses on the bidding package's prices.

9. Refund of appeal settlement expense:

a) In the case where the contractor's appeal is found to be with merit, relevant organizations and individuals shall pay the appealing contractor an amount equal to the appeal settlement expense incurred by such appealing contractor;

b) In the case where the contractor's appeal is found to be without merit, the contractor shall not be refunded for the incurred appeal settlement expense.

10. For appeals against the contractor selection result, the consultancy council shall pay for members of the consultancy council and its permanent assisting section and other expenses for appeal settlement consultancy.

In the case where the contractor withdraws the appeal during the appeal process, he/she/it shall receive a refund equal to 50% of the incurred expense if the consultancy council has not been established or it has already been established but could not hold a council meeting. In the case where the consultancy council has held a council meeting, the contractor shall not be refunded for the incurred appeal settlement expense. After the contractor is refunded and expenses specified in Article 13 of this Decree are paid, any remaining balance must be remitted to the State budget by the permanent assisting section of the consultancy council within 10 working days from the date the contractor withdraws the appeal.

11. Expenses for contractor selection on Vietnam National E-Procurement System include:

a) The expense for maintaining the name and capacity profile of the contractor on the Vietnam National E-Procurement System is VND 330,000 for 01 year (inclusive of value-added tax). Contractors pay such expense from the second year onwards after the year they register on the Vietnam National E-Procurement System;

b) The expense for submitting a bid dossier for 01 bidding package on the Vietnam National E-Procurement System equals VND 330,000 (inclusive of value-added tax) in case of open bidding, restricted bidding, or online haggling according to normal procedures; or VND 220,000 (inclusive of value-added tax) in case of competitive offer;

c) The bid-winning expense to be paid by the contractor winning a bidding package subject to online open bidding, restricted bidding, competitive offer, and online haggling according to the normal procedures:

For an unsplit bidding package: The expense equals 0.022% of the winning bid but must not exceed VND 2,200,000 (inclusive of value-added tax).

For a bidding package consisting of many separate parts, the total bid-winning expense to be paid by all bid-winning contractors must not exceed VND 2,200,000 (inclusive of value-added tax). In the case where 0.022% multiplied by the total winning bid of the bidding package is lower or equal to VND 2,200,000, the bid-winning expense to be paid by each contractor equals 0.022% of the total winning bid for the parts for which such contractor wins the bidding. In the case where 0.022% multiplied by the total winning bid of the bidding package exceeds VND 2,200,000, the bid-winning expense for each contractor shall be calculated using the following formula:

The bid-winning expense (inclusive of value-added tax) = VND 2,200,000 x (total winning bid for all parts won by the contractor/total winning bid for the entire bidding package);

d) The expense for connecting the electronic bid security function between the Vietnam National E-Procurement System and domestic credit institutions, foreign bank branches established under Vietnamese laws, domestic non-life insurers, branches of foreign non-life insurers established under Vietnamese laws shall be calculated under agreements between the unit operating and supervising the Vietnam National E-Procurement System and the relevant organizations or businesses.

Article 13. Expenses for the consultancy council settling contractors’ appeals against contractor selection results

1. The expenses include: direct remuneration for members of the consultancy council to perform their tasks, per diem, stationery, translation, printing, meeting expenses and other expenses in service of the settlement of the contractor's appeal. The payment of such expenses shall comply with regulations applicable to State regulatory authorities. Supporting documents for such expenses shall be made according to regulations.

The total expense must not exceed the amount paid by the appealing contractor as specified in Clause 8, Article 12 of this Decree.

2. After the case is resolved, the chairperson of the consultancy council shall confirm the expenses actually incurred. The greater difference (if any) between the amount paid and the actual expenses shall be refunded to the appealing contractor.

3. If contractors’ appeals are concluded right, measures, methods and time for remedying consequences (if any) shall be clearly stated; concurrently the permanent assisting section shall report to the competent person for him/her to request responsible individuals and organizations to pay appealing contractors a sum of money equal to the amount they paid to the consultancy council.

4. Payment of remuneration to members of the consultancy council who are civil servants and public employees shall comply with law regulations.

Article 14. Formulation, submission, appraisal and approval of general plans on contractor selection for projects

1. Based on the size and characteristics of the bidding for the project, the project owner (in the case where it has been identified) may submit to the competent person for consideration the policy of formulating a general plan on contractor selection for the project. In the case where the project owner has not been identified, the authority assigned to prepare the project can submit to the competent person for consideration the policy of formulating a general plan on contractor selection for the project.

2. In the case where the competent person agrees to the policy of formulating a general plan on contractor selection, the project owner or the authority assigned to prepare the project in the case where the project owner has not been identified (hereinafter referred to as the project owner) shall formulate such a general plan on contractor selection based on the following documents:

a) Decision on the policy of investment in the program or project;

b) Decision on project approval (if any);

c) International treaties and loan agreements if the project is funded by official development assistance capital and concessional loans of foreign donors (if any);

d) Plan on capital allocation for project performance or capital sources for project performance (if any);

dd) Other relevant legal documents (if any).

The general plan on contractor selection shall contain the details as specified in Article 15 of this Decree. The project owner may hire a consultant to formulate a general plan on contractor selection for the project in the case where the project owner's personnel are not qualified to do so.

3. The project owner shall submit the general plan on contractor selection to the competent person for consideration and approval.

4. Authorities, organizations and units specified in Article 126 of this Decree shall appraise the general plan on contractor selection.

5. Based on the request for approval of the general plan on contractor selection and the appraisal report, the competent person shall approve such general plan on contractor selection after deciding to approve the project to serve as a basis for the project owner to formulate and approve the detailed contractor selection plan. The details of the contractor selection plan must be consistent with the general plan on contractor selection. In the case where the details of the contractor selection plan are different from the general plan on contractor selection, the project owner shall report to the competent person for consideration and decision instead of submitting another general plan on contractor selection for re-approval.

6. The project owner shall upload the general plan on contractor selection on the Vietnam National E-Procurement System no later than 05 working days from the date the plan is issued.

Article 15. General plans on contractor selection for projects

1. Project performance context analysis:

Determining the specific requirements and objectives of the project, analyzing factors in the project performance context that can impact the bidding and the contractor's willingness to participate in the bidding. Such factors include law regulations, economic, social, and technological factors, sustainable bidding and other factors.

2. Evaluation of the project owner's capacity, resources and experience:

The capacity, resources and experience for the bidding to be evaluated include:

a) Capacity to conduct the contractor selection process from the general contractor selection planning step (if any) to contract management step;

b) Project owner's bidding results, evaluated through the following indicators: average cost savings; average quantity of contractors participating in open bidding, restricted bidding, competitive offer, online haggling according to normal procedures, the ratio bidding packages subject to open bidding, restricted bidding, competitive offer and online haggling according to the normal process for which only 01 contractor participates in the bidding to the total bidding packages; the ratio of bidding packages with appeals lodged against the bidding dossiers; the ratio of bidding packages with appeals lodged against other issues during the contractor selection process or against the contractor selection result; the non-responses to requests for clarification of the bidding dossiers, non-responses to contractors’ appeals against the bidding dossiers, other issues during the contractor selection process and the contractor selection result; other indicators (if any);

c) Experience in performing similar projects and in settling appeals in contractor selection, complaints and denunciations;

d) Other factors.

3. Market analysis and consultation:

a) Market analysis and consultation includes the evaluation of market risks and opportunities with respect to the form of contractor selection under consideration; the possibility of contractors participating in the bidding; the market of goods and services that may be provided for the project; the market trends during project performance. Depending on the size and characteristics of the bidding package, market analysis and consultation may include information on the availability of goods and services in the bidding package on the market; costs that may arise in the case where it is necessary to apply innovative and creative solutions; warranty terms and contract types commonly applied to procurement packages of similar goods and services from other project owners; law regulations (if any) applicable to goods and services included in the bidding package; the ability to apply sustainable bidding, procurement of environmentally friendly services, information about goods and services that use recycled and energy-saving materials; the ability of potential contractors that are small-sized enterprises and micro-enterprises, creative start-up businesses, and enterprises that employ mostly female workers, war invalids, people with disabilities, and ethnic minorities, to participate in the bidding; supply chain analysis (the ability to provide supplies, materials, goods, and services for the performance of the contract); the ability to select contractors that are allowed to offer only goods of Vietnamese origin in accordance with Point e, Clause 3, Article 10 and Clause 1, Article 56 of the Law on Bidding, and other necessary information;

b) Market consultation may be conducted through one or more of the following methods: reviewing previous market consultation results for similar goods and services; uploading market consultation questionnaires on appropriate media platforms; researching catalogs and product brochures from manufacturers, suppliers, distributors, and agents; consulting with other project owners who have conducted market and contractor selection result consultations for bidding packages for procurement of similar goods and services; organizing open and transparent market consultation conferences with potential contractors; conducting information surveys with internal production and business units; consulting with experts in relevant fields and utilizing resources such as printed newspapers, journals, specialized market analysis publications, and online information sources; and other appropriate methods;

c) The project owner can hire consultants to research and analyze the market, use the advice of experts or independent specialized authorities or businesses in the market in making the general plan on contractor selection, the contractor selection plan, the bidding dossier, the dossier of requirements but must ensure competition, fairness and transparency;

d) In case of not making a general plan on contractor selection, the project owner can conduct market analysis and consultation to formulate the contractor selection plan, the bidding dossier, and the dossier of requirements.

4. Identification and management of risks in bidding:

a) Analyzing main risks related to the operating environment, the market conditions, the capacity of the contractor selection organizer, and the complexity of bidding activities;

b) Evaluating the likelihood and impact of each risk on the bidding for the project;

c) Developing a plan to manage and minimize risks in the bidding for the project by applying appropriate contractor selection forms and methods, technical requirements, evaluation criteria and methods, and contract conditions.

5. Specific targets of bidding activities:

Identifying specific objectives of bidding activities (including specific objectives on sustainable bidding, if applicable) to ensure the general objectives of the project.

6. Plan on the progress of main tasks and the bidding package:

Developing a general schedule for main tasks and bidding packages in line with the project’s investment schedule.

7. Contractor selection management:

a) Division of the project into bidding packages: the division of a project into bidding packages shall depend on the size and characteristics of such project's tasks, its implementation progress and the market analysis and consultation results. The number of bidding packages and the scope of work of each bidding package as well as bidding packages consisting of many separate parts shall be identified;

b) Form and method of contractor selection: Determining the appropriate form and method of contractor selection for each bidding package of the project, clearly stating whether the bidding package applies centralized procurement and shortlisting or not and whether it is domestic or international bidding;

c) Contract type: Determining the appropriate contract type for each bidding package;

d) Noteworthy issues during the process of formulating the bidding dossier and the dossier of requirements, and managing contract performance (if any).

Article 16. Bidding package's price and time of organization of contractor selection

1. The bidding package's price shall be calculated correctly and cover all costs to execute the bidding package, including contingency costs (price slippage and arising volume), fees, charges and taxes. For construction and installation bidding packages under fixed and adjustable unit price contracts, contingency costs include provisional amounts (if any) and are only used when they arise. For bidding packages with a short bidding package execution duration and little possibility of risks or price slippage, the contingency cost for the price slippage factor equals zero. Contingency expenses shall be determined by the project owner depending on the characteristics of each bidding package but must not exceed the maximum limitation specified in law regulations (if any). In the case where the goods are exempt from taxes and fees in accordance with the law regulations, the bidding package's price shall not cover the exempted taxes and fees. When necessary, the bidding package's price shall be updated 28 days before the date of bid opening. In the case where the bidding package consists of many separate parts, the estimated value of each part shall be clearly stated.

2. Bases for determination of the bidding package's price:

The determination of a bidding package's price shall be based on one of the following information:

a) Approved bidding package estimate (if any) in the case where the law regulations require such estimation or guide the norms and unit prices. In the case where the conditions for making an estimate are not met, the bidding package's price shall be based on the following information: the average price based on statistics of projects and bidding packages performed in a specified period of time; total investment or estimated total investment based on investment rate, expected value of procurement estimate; salary norms and workdays of experts; and other relevant information;

b) Tasks and scope of work, quantity of experts, time for performance, capacity and experience of consultants, expert salaries as specified in law regulations (if any) and other factors;

c) Results of the selection of contractors to provide similar goods and services within the maximum period of 12 months before the date the contractor selection plan is submitted, which can be adjusted according to changes in the procurement volume or market price of the goods or services to be procured as a basis for the determination of the bidding package's price. The market price at the time of procurement may be determined through market consultation specified at Point b, Clause 3, Article 15 of this Decree. In the case where within 12 months before the date of submitting the contractor selection plan, there is no contractor selection result for similar goods or services, it can be determined on the basis of the contractor selection result of similar goods and services in preceding years, which can be adjusted in line with changes in procurement volume and market price of goods and services to be procured. When submitting the contractor selection plan, the project owner attaches a list of selection results of similar goods and services extracted from the Vietnam National E-Procurement System (if any);

d) At least 01 quotation for goods and services. It is encouraged to collect more than 01 quotation. In the case where there is more than 01 quotation, they shall be averaged.

For bidding packages to purchase medicines, chemicals and supplies for medical tests, and medical equipment; spare parts, accessories, and replacements for medical equipment: Based on professional requirements, the project owner shall decide on technical criteria and request bid quotations. The project owner shall upload a call for quotations on the Vietnam National E-Procurement System or on the web portal or website of the project owner or on the web portal of the Ministry of Health or the online public service portal on medical equipment management within a minimum period of 10 days from the date the information is successfully uploaded. In the case where there are 02 or more quotations, the project owner can choose the highest quotation in line with its financial ability and professional requirements. The project owner shall collect quotes in a public and transparent manner. Those that send quotations shall provide the prices of goods and services they are capable of providing and must ensure that their quotations comply with law regulations on competition, dumping, and price gouging;

dd) Price appraisal results of the price appraisal council or of an organization with the function of providing price appraisal services for assets, goods, and services that must be appraised in accordance with law regulations on pricing. For types of assets, goods, and services that must be appraised according to the law regulations on prices, the appraisal results shall serve as a mandatory basis for determining the bidding package's price;

e) Listed prices of manufacturers, importers, agents, distributors, suppliers, businesses;

g) Declared prices that are announced or provided by functional or competent authorities and units.

3. The project owner may consider sustainable bidding factors as specified in Article 11 of this Decree and environmentally friendly products and services when calculating the bidding package's price. In this case, the bidding package's price includes the costs necessary to implement sustainable bidding requirements.

4. For contractor selection subject to procurement estimates, the project owner must state the following information in the submission of the contractor selection plan:

a) State budget estimates approved by competent authorities for the current budget year, or estimated budget allocations in case of procurement for the subsequent year or procurement spanning multiple years; expected legal financial resources available in the fiscal year, or expected legal financial resources for the following years in case of procurement for the subsequent year or procurement spanning multiple years;

b) Value of procurement performed in the fiscal year or budget year;

c) Part of the budget not used for procurement;

d) Procurement estimate, determined by the budget specified at Point a of this Clause minus the budget specified at Points b and c of this Clause. The project owner may not appraise or approve the procurement estimate.

In the case where the project owner has available funds for procurement in the budget year or fiscal year and does not use the expected revenue in the year, the procurement estimate as specified in this Clause may not be made. In this case, the procurement estimate is the available funding for procurement in the budget year or fiscal year.

In the case where the duration for contract performance of the bidding package is longer than 01 year or the effective date of the contract and the date of completion of contract obligations are not in the same financial year, the procurement estimate of the budget year or fiscal year, and expected procurement estimates for the following years shall be clearly stated. A competent person or project owner shall allocate sufficient funds for annual contract payment. Payments for each year shall be made after the yearly expense estimate is approved.

5. For procurement estimates, the project owner is allowed to organize the selection of contractors in one year for procurements in the subsequent years to ensure uninterrupted supply of goods, services, and construction and installation. The submission of the contractor selection plan must include procurement estimates for the subsequent years as a basis for setting the bidding package's price.

6. Depending on the size, characteristics, and progress of the project or bidding package, the competent person shall decide the contractor selection timeframe for each bidding package, which represents the number of days from the issuance of the bidding dossier and the dossier of requirements until the contractor selection results are available, including the appraisal period. In the case where shortlisting procedures are applied to the bidding package, the contractor selection timeframe starts from the date of issuance of the dossier of invitation to prequalification and the dossier of invitation for expression of interest until the contractor selection results are available. In case of necessity, the periods for evaluation of the bid dossiers and dossiers of proposals and the appraisal period may be clearly stated.

Article 17. The national databases on contractors and quality of goods used previously

1. The national database of contractors covers:

a) Information about the contractor’s legal status;

b) Information about the contractor's violations;

c) Information about the contractor's capacity and experience, including: financial statements or documents on revenue and net assets; performance of tax declaration and tax payment obligations; financial resources; key personnel; essential machinery and equipment; contracts that have been and are being performed, production capacity, of which contracts within the scope of regulation of the Law on Bidding have their principal details publicized;

d) Information about the contractor's prestige in participating in bidding, including information about violations during the bidding process specified in Clause 1, Article 18 of this Decree;

dd) Information about the contractor's contract performance results, including information specified in Clause 3, Article 18 of this Decree and information about the contract performance process;

e) Other information about the contractor.

2. The national database on quality of goods used previously covers the following information:

a) Name of goods;

b) Origin, manufacturer, code, labeling;

c) Main technical characteristics;

d) The project owner and units using the goods;

dd) Quality of goods specified in Clauses 5, 6 and 7, Article 18 of this Decree;

e) Other information.

3. The national databases on contractors and quality of goods used previously shall be regularly updated to ensure objective and truthful information for contractor selection.

4. The Minister of Planning and Investment shall detail this Article.

Article 18. Information about the contractor's contract performance results and quality of goods used previously

1. Unless the contractor is simultaneously ranked first in multiple bidding packages or due to force majeure, his/her/its prestige in bidding shall be evaluated when such contractor:

a) Fails or refuses to compare documents or participate in contract negotiation (if applicable) during the validity period of his/her/its bid dossier or dossier of proposals after being invited to compare documents or participate in contract negotiation (if applicable);

b) Refuses to sign the negotiation record despite having compared documents or participated in contract negotiation (if applicable), unless otherwise specified in Clause 8, Article 43 of this Decree;

c) Is selected as the bid-winning contractor but then fails or refuses to finalize the contract or framework agreement, or does not sign the contract or framework agreement;

d) Signs the framework agreement but then fails or refuses to finalize or does not sign the subsequent contract.

2. Within 07 working days from the date the contractor commits any act specified in Clause 1 of this Article, the project owner shall upload the list of contractors and relevant documents on the Vietnam National E-Procurement System, stating the date he/she/it commits such act. Contractors whose names are on this list, when participating in bidding, must provide a bid security with the value 03 times greater than the value required for other contractors within 02 years from the last time they commit the acts specified in Clause 1 of this Article. For consultancy service bidding packages, the technical evaluation shall take into account the contractors’ prestige in bidding (if any).

3. Information on the contractor’s contract performance results includes:

a) Contract performance progress;

b) Quality of goods, services, works, including incidents that occur during contract performance (if any) and other relevant factors;

c) Breach of contract, termination of contract and reasons;

d) Other information (if necessary).

4. The project owner or unit with centralized procurement demand shall publicize the contractor’s contract performance results on the Vietnam National E-Procurement System. The uploading of information about contract performance result shall be apply to each contract and based on the scope of work under the contract that the contractor performs. The information shall be uploaded during or after the bidding package execution period, but no later than 06 months from the end date of the bidding package execution period. In the case where the warranty period is longer than 06 months, the project owner or unit with centralized procurement demand must also update the contractor's contract performance results after the warranty obligation (if any) is completed.

Within a maximum period of 20 days from the date the project owner or unit with centralized procurement demand publicizes information about the contractor’s contract performance results, the contractor may send a complaint on the Vietnam National E-Procurement System. If the contractor's complaint is valid, the project owner or the unit with the procurement demand in the centralized procurement must update the information.

5. Information about the quality of goods used previously includes:

a) Actual quality of goods compared to that required in the contract;

b) Severity of the mistakes that arise and the correction of the mistakes that arise or the replacement of new goods (if any);

c) Frequency of damage and problems of goods and quality of warranty, repair and remedial services (if any);

d) Reliability, durability, performance, capacity (if necessary);

dd) Other information (if necessary).

6. Information on the quality of goods being medicines, supplies for medical tests, medical equipment and spare parts and components for repairing medical equipment used previously shall comply with the law regulations on pharmacy and medical equipment.

7. The project owner or unit with centralized procurement demand shall publicize the quality of goods used previously specified in Clause 5 of this Article on the Vietnam National E-Procurement System. The information shall be publicized after the bidding package execution period, but no later than 06 months from the end date of the bidding package execution period. In the case where the warranty period is longer than 06 months, the project owner or unit with centralized procurement demand must also update the quality of goods used previously after the warranty obligation (if any) is completed.

Within a maximum period of 20 days from the date the project owner or unit with centralized procurement demand publicizes information about the quality of goods used previously, the contractor may send a complaint on the Vietnam National E-Procurement System. If the contractor's complaint is valid, the project owner or the unit with the procurement demand in the centralized procurement must update the information.

8. The project owner or the unit with centralized procurement demand shall take accountability before the law for the truthfulness and objectivity of the publicized information on contract performance results and quality of goods used previously.

9. The database on contract performance results and quality of goods used previously as specified in Clauses 3, 5 and 6 of this Article shall be used as a basis for developing technical evaluation criteria and integrated in the formula for determining the evaluated price (if any). If necessary, the project owner may publicize other information in addition to those specified in Clauses 3, 5 and 6 of this Article to serve as a basis for developing technical evaluation criteria and be integrated in the formula for determining the evaluated price (if any). The development of technical evaluation criteria must not violate Point k, Clause 6, Article 16 and Clause 3, Article 44 of the Law on Bidding.

Article 19. Capacity and experience conditions for expert teams and appraisal teams

1. A member of an expert team or appraisal team must:

a) Have a professional certificate in bidding, unless otherwise specified in Clauses 2 and 3 of this Article;

b) Hold a university degree or higher;

c) Have full civil act capacity in accordance with law regulations; not be prosecuted for criminal liability;

d) Have at least 03 years of experience working in one of the fields related to the legal, technical, and financial aspects of the bidding package: have experience or implement technical details in the dossier of invitation for expression of interest, the dossier of invitation to prequalification, the bidding dossier, the dossier of requirements, or financial or legal tasks.

2. Individuals assigned to appraise the general plan on contractor selection and the contractor selection plan (other than bidding consultants) are not required to hold professional bidding certificates.

3. In the case where the opinion of specialized experts is needed, such experts may not have professional certificates in bidding.

4. In the field of healthcare, in the case where the project owner does not have personnel who meet the requirements specified in Clause 1 of this Article, it can select a consultancy contractor to act as an expert team or appraisal team. In the case where a consultancy contractor cannot be selected, the project owner may mobilize and assign personnel such as doctors, pharmacists, managers or invite cadres from the provincial-level Department of Health and the Ministry of Health and medical experts to join the expert team or appraisal team regardless of their satisfaction to the requirements specified at Points a and b, Clause 1 of this Article. The organization of contractor selection must meet the objectives of bidding which are competition, fairness, transparency, economic efficiency and accountability.

Article 20. Publicization of information about contractor selection

1. Information on contractor selection shall be publicly uploaded on the Vietnam National E-Procurement System.

2. The Ministry of Planning and Investment shall detail the uploading, management and utilization of information specified in Clause 1 of this Article.

Article 21. Registration and management of accounts of the Vietnam National E-Procurement System

1. The registration on the Vietnam National E-Procurement System shall be conducted following the process below:

a) An organization or individual fills the registration form generated by the Vietnam National E-Procurement System with his/her/its information;

b) An organization shall submit a registration dossier on the Vietnam National E-Procurement System consisting of the following documents: the registration form specified at Point a of this Clause, which shall be signed and stamped with the organization’s seal (if any) by the organization's legal representative; the power of attorney (if any); the establishment decision or enterprise registration certificate or business household registration certificate or cooperative registration certificate, cooperative union registration certificate, cooperative group registration certificate or another equivalent document in the case where such organization is listed on the National Business Registration Portal;

c) An individual shall submit a registration dossier on the Vietnam National E-Procurement System consisting of the following documents: the registration form specified at Point a of this Clause which shall be signed by the registrant; a copy of his/her passport or equivalent document if the registrant has foreign nationality.

2. The account information of organizations and individuals on the Vietnam National E-Procurement System shall be updated as follows:

a) Information to be updated includes: additions and modifications to registered information; supplements and modifications to the roles in bidding activities; termination, suspension, restoration of status;

b) The request form for update of information sent on the Vietnam National E-Procurement System must be signed and stamped with the seal (if any) by the legal representative of the organization or the individual.

3. Documents of organizations and individuals specified in Clauses 1 and 2 of this Article shall be processed within 02 working days from receipt of the request on the Vietnam National E-Procurement System. The results of processing documents of organizations and individuals shall be announced on the Vietnam National E-Procurement System and sent via e-mail.

4. Organizations and individuals who intentionally upload information specified in Articles 7 and 8 of the Law on Bidding that are not real shall have their accounts locked in a period of 12 months from the date such behavior is detected.

5. In case of hiring a bidding consultant to act as the bid solicitor, the project owner shall be still responsible for uploading the contractor selection plan and contractor selection results on the Vietnam National E-Procurement System as specified in Article 7 and Article 8 of the Law on Bidding. In the case where a bidding consultant, organization or individual uses his/her/its account to upload information on behalf of the project owner, such consultant, organization or individual shall have their account locked in a period of 06 months from the date such behavior is detected.

 

Chapter II

PROCESSES OF OPEN AND RESTRICTED OFFLINE BIDDING FOR BIDDING PACKAGES TO PROVIDE NON-CONSULTANCY SERVICES OR PROCURE GOODS, BIDDING PACKAGES FOR CONSTRUCTION AND INSTALLATION OR MIXED BIDDING PACKAGES BY THE METHOD OF SINGLE STAGE

 

Section 1

METHOD OF SINGLE-STAGE SINGLE-ENVELOPE

 

Article 22. Detailed process

1. Preparing for the contractor selection, including:

a) Shortlisting (when necessary);

b) Making bidding dossiers;

c) Appraising and approving bidding dossiers.

2. Organizing the contractor selection, including:

a) Issuing invitations for bids;

b) Distributing, modifying and clarifying the bidding dossier;

c) Preparing, submitting, receiving, managing, modifying and withdrawing bid dossiers;

d) Opening bids.

3. Evaluating bid dossiers, including:

a) Examining and assessing the validity of bid dossiers;

b) Evaluating in detail bid dossiers;

c) Ranking contractors (if there is more than 01 contractor).

4. Submission, appraisal, approval and publicization of contractor selection result and explanation of the reason(s) for not winning the bid at contractors’ request (if any).

5. Finalization and conclusion of contracts and management of contract performance.

For goods procurement bidding packages, in addition to institutional contractors, individual contractors or groups of individual contractors may offer their own innovative products for bidding, provided that they meet the requirements specified in Clause 4, Article 5 of this Decree.

Article 23. Shortlisting

Depending on the size and characteristics of the bidding package, the competent person may decide to apply the shortlisting procedures. The application of shortlisting procedures shall be stated in the contractor selection plan.

1. For open bidding:

a) Making dossiers of invitation to prequalification:

A dossier of invitation to prequalification shall contain the details: brief information on the project, procurement estimate, or bidding package; instructions on preparation and submission of a dossier for participation in prequalification; criteria for evaluating the validity of a dossier of participation in prequalification; and capacity and experience criteria for contractors.

Criteria for evaluating dossiers of participation in prequalification shall be developed using the “pass” and “fail” criteria. Each criterion shall define the minimum level of capacity and experience required from the contractor to evaluate whether their dossier meets such criterion;

b) Dossiers of invitation to prequalification shall be appraised in accordance with Article 129 of this Decree before they are approved. A dossier of invitation to prequalification shall be approved in writing on the basis of the submission for approval and report on appraisal of the dossier;

c) Notices of invitation to prequalification must comply with Point b, Clause 1, Article 8 of the Law on Bidding;

d) Distribution of dossiers of invitation to prequalification:

The dossier of invitation to prequalification shall be issued for free on Vietnam National E-Procurement System;

dd) Receipt and management of dossiers for participation in prequalification:

The bid solicitor shall receive and manage the submitted dossiers for participation in prequalification under regulations on management of secret dossiers until the prequalification results are publicized;

e) Opening and evaluation of dossiers for participation in prequalification:

Dossiers for participation in prequalification shall be submitted within the time limits and at places specified in the dossier of invitation to prequalification and opened right after the time of bid closing. The opening of dossiers of participation in prequalification shall be recorded in writing sent to the contractors that have submitted dossiers of participation in prequalification and uploaded on the Vietnam National E-Procurement System within 24 hours after the time of bid opening. Dossiers for participation in prequalification submitted after the time of bid closing are invalid, shall not be opened and shall be eliminated. The evaluation of dossiers for participation in prequalification must be conducted using the criteria stated in the dossier of invitation to prequalification. Contractors whose dossiers for participation in prequalification meet all capacity and experience criteria shall be shortlisted.

Some criteria specified in Clause 3, Article 9 of this Decree shall not be applied to individual contractors or groups of individual contractors meeting the requirements specified in Clause 4, Article 5 of this Decree who offer their own innovative products for bidding.

g) Submission, appraisal and approval of prequalification results:

Based on the report on results of evaluation of dossiers for participation in prequalification, the bid solicitor shall send a submission of prequalification results for approval in which its opinion on the evaluation of the expert team shall be clearly stated. Pre-qualification results shall be evaluated in accordance with Clauses 1 and 2, Article 130 of this Decree and approved in writing on the basis of the submission for approval and report on appraisal of prequalification results. In the case where a shortlist can be selected, the written approval of prequalification results must include names of contractors that have passed the prequalification and matters of concern (if any). In the case where a shortlist cannot be selected, the written approval of prequalification results must clearly state the reason.

h) Publicization of a shortlist: A shortlist shall be published in accordance with Point d, Clause 1 and Clause 4, Article 8 of the Law on Bidding and notified to contractors that have submitted dossiers for participation in prequalification.

2. For restricted bidding:

a) A shortlist must include at least 03 contractors that satisfy the bidding package’s capacity and experience requirements and wish to participate in bidding. If fewer than 03 contractors meet the requirements, the situation shall be handled in accordance with Clause 3, Article 131 of this Decree;

b) After approval, the shortlist shall be uploaded in accordance with Point b, Clause 1 and Clause 4, Article 8 of the Law on Bidding.

3. Shortlisted contractors may not join a consortium among themselves in order to participate in bidding. If a consortium includes any contractor not on the shortlist, the project owner's approval must be obtained before the bid closing time.

Article 24. Making of bidding dossiers

1. Bases for making a bidding dossier:

a) The approved general plan on contractor selection (if any);

b) The approved contractor selection plan;

c) Documents on design, drawings, and explanations of the bidding package (if any);

d) Technical requirements of the bidding package, including: characteristics, technical specifications, technology requirements, service levels, inspection, testing, acceptance requirements and other technical requirements ( if any);

dd) Law on bidding and relevant law regulations; international treaties and loan agreements (if any) for projects funded with official development assistance or concessional loans;

e) Law regulations on taxes, fees, preferences in contractor selection;

g) Other relevant bases.

2. A bidding dossier must contain all necessary details for contractors to prepare their bid dossiers and may not state any conditions to limit the participation of contractors or to create advantage for one or some contractor(s), thus causing unfair competition as specified at Point k, Clause 6, Article 16 and Clause 3, Article 44 of the Law Bidding. The Ministry of Planning and Investment shall specify violations against Clause 3, Article 44 of the Law on Bidding, which lead to details of the bidding dossier being considered invalid and not being used as a basis for evaluating bid dossiers.

3. The bidding dossier shall specify the criteria for evaluating the validity of a bid dossier, including:

a) An original copy of such bid dossier is available;

b) It includes a bid application signed and sealed (if any) by the contractor’s legal representative as required in the bidding dossier. The bid application must be signed after the issuance of bidding dossier. Different bids or those which create disadvantageous conditions for the project owner must not be offered. For a consortium of contractors, the bid application shall be signed and sealed (if any) by the legal representative of each consortium member or signed by the assigned consortium member on behalf of the consortium as assigned in the consortium agreement;

c) Its validity satisfies the requirements specified in the bidding dossier;

d) A bid security with value, validity duration, and its beneficiary meeting the requirements of the bidding dossier is made. In the case where it is required to make a bid security by submitting such letter of guarantee or certificate of guarantee insurance must not be in the following cases: its value is lower than the amount specified in the bidding dossier, its validity period is shorter than the period specified in the bidding dossier, the name of the beneficiary is incorrect, it is not duly signed or it is signed before the bidding dossier is issued, it contains disadvantageous conditions for the project owner or the bid solicitor. The letter of guarantee or certificate of guarantee insurance must be signed and stamped with the seal (if any) by a legal representative of a domestic credit institution or foreign bank branch established in accordance with Vietnamese laws, or a domestic non-life insurer, or a foreign non-life insurer’s branch established in accordance with Vietnamese law. Contractors that participate in bidding for an insurance bidding package may not submit certificates of guarantee insurance issued by themselves;

dd) A contractor must not be named in two or more bid dossiers in the capacity as independent contractor or consortium member;

e) A consortium agreement (in case of consortium) was signed and sealed by the legal representative of each consortium member (if any). The consortium agreement must clearly state the specific tasks that each member of the consortium shall perform and estimate the corresponding value. The assignment of tasks within a consortium shall be based on the items listed in the bid quotation or specific tasks involved in producing such listed items. The tasks outside the scope of such items or irrelevant to production of such items shall not be assigned;

g) The contractor is eligible in accordance with Article 5 of the Law on Bidding;

h) Within 03 years before the time of bid closing, the contractor does not have any personnel (who signed a labor contract with such contractor at the time of the violation) convicted by the Court of violating the bidding regulations causing serious consequences as specified in criminal law regulations for the purpose of winning any bidding for such contractor.

4. For bidding packages to procure goods, criteria for evaluation of bid dossiers include:

a) Criteria for capacity and experience evaluation:

Criteria for evaluating the capacity and experience shall be developed using the “pass” and “fail” criteria. Each criterion shall define the minimum level of capacity and experience required from the contractor to evaluate whether their dossier meets such criterion, including: experience in the execution of similar goods supply contracts; goods production capacity; financial capacity, including net asset value and turnover; performance of tax declaration and payment obligations, and other indicators necessary to assess the contractor's financial capacity; technical infrastructure and qualifications of specialized personnel who perform relevant services (if required).

The specific degree of requirements for each criterion specified at this Point shall be determined based on requirements of each bidding package. Contractors that meet all evaluation criteria specified at this Point shall be deemed to satisfy capacity and experience requirements.

For goods procurement bidding packages, some criteria specified in Clause 3, Article 9 of this Decree shall not be applied to individual contractors or groups of individual contractors meeting the requirements specified in Clause 4, Article 5 of this Decree who offer their own innovative products for bidding.

Contractors that are business households may neither submit financial statements nor meet net asset value requirements.

b) Technical evaluation criteria:

Technical evaluation criteria shall be developed using either the “pass” and “fail” criteria or a scoring method.

If the “pass” and “fail” criteria is used, general evaluation criteria can only be met or not met. Basic detailed criteria within a general criterion can only be “passed” or “failed.” Non-basic detailed criteria within a general criterion can be, in addition to “passed” or “failed,” “acceptable,” but no more than 30% of all detailed criteria within such general criterion. A general criterion may be met if all basic detailed criteria are met and all non-basic detailed criteria are either met or acceptable.

If the scoring method is used, the minimum and maximum scores must be specified for each general criterion. Minimum scores can be specified for basic detailed criteria within a general criterion but cannot be specified for non-basic detailed criteria. The minimum required technical point shall not be lower than 70% of the maximum total technical points. For bidding packages subject to hi-tech requirements, the minimum technical point accounts for between 80% and 90% of the total maximum technical points. For bidding packages that need to be considered on the basis of attaching importance to technical and price factors, the project owner can specify the minimum required technical point, which shall not be lower than 80% of the total maximum technical points. Technical evaluation criteria shall be developed based on factors on the ability to meet the requirements of quantity, quality, delivery time, transportation, installation, warranty, and after-sales service (if any), information on the contractor's contract performance results as specified in Articles 17 and 18 of this Decree and other requirements stated in the bidding dossier. Based on each specific bidding package, when making a bidding dossier, the following indicators which serve as bases for technical evaluation must be concretized: characteristics and technical properties of goods, production standards, manufacturing standards and technologies; reasonability and economic efficiency of technical solutions and measures for goods supply and installation; degree of satisfaction of warranty and maintenance requirements; degree of satisfaction of requirements for the supply of spare parts, equipment and other relevant services (if any) throughout the life of goods; geographical and environmental adaptability; environmental impacts and remedies; factors related to commercial terms, delivery time, technology transfer training, provision of after-sales services; goods delivery schedule; environmental friendliness; information about the contractor's contract performance as prescribed in Articles 17 and 18 of this Decree; the quality of similar goods publicized in accordance with Article 18 of this Decree (if any); other necessary factors.

c) Determination of the lowest bid (in case of applying the lowest bid method): determining bids; correcting errors; adjusting deviations; deducting the value of discounts (if any); converting the bid into a common currency (if any); determining value of preferences (if any); comparing bid dossiers to determine the lowest bid;

d) Criteria for determining evaluated prices (in case of applying the evaluated price method):

Formula for determining evaluated prices:

Gđg = G ± Δg + ΔƯĐ

Where:

G = (bid ± value of error correction ± value of deviation correction) - value of discounts (if any).

Δg is the value of the factors converted to a common basis for the entire life cycle of the goods, including: delivery time; payment schedule; costs of materials and spare parts in the early stages; ability to provide materials, spare parts and after-sales services for the goods offered in the bid dossier at the project site; life cycle costs; equipment performance and capacity; sustainable bidding factors (if any); information about the contractor's contract performance as specified in Articles 17 and 18 of this Decree; quality of goods used previously publicized in accordance with Article 18 of this Decree, including consideration of origin; other factors (if any).

ƯĐ is the to-be-added value in accordance with Points b and d, Clause 1, Points b and d, Clause 2 and Point b, Clause 3, Article 5 of this Decree, for subjects ineligible for any preferences.

5. Criteria for evaluation of bid dossiers for construction and installation bidding packages include:

a) Criteria for capacity and experience evaluation:

Criteria for evaluating the capacity and experience shall be developed using the “pass” and “fail” criteria. Each criterion shall define the minimum level of capacity and experience required from the contractor to evaluate whether their dossier meets such criterion, including: quantity and professional qualifications of key personnel, quantity of main construction equipment that can be mobilized to execute the bidding package (if required); financial capacity: net asset value and turnover; performance of tax declaration and payment obligations, and other indicators necessary to assess the contractor's financial capacity.

Specific requirements for each item specified at this Point shall be determined based on the requirements of each bidding package. Contractors that meet all evaluation criteria specified at this Point shall be deemed to satisfy capacity and experience requirements;

b) Technical evaluation criteria:

Technical evaluation criteria shall be developed using either the “pass” and “fail” criteria or a scoring method.

If the “pass” and “fail” criteria is used, general evaluation criteria can only be met or not met. Basic detailed criteria within a general criterion can only be “passed” or “failed.” Non-basic detailed criteria within a general criterion can be, in addition to “passed” or “failed,” “acceptable,” but no more than 30% of all detailed criteria within such general criterion. A general criterion may be met if all basic detailed criteria are met and all non-basic detailed criteria are either met or acceptable.

If the scoring method is used, the minimum and maximum scores must be specified for each general criterion. Minimum scores can be specified for basic detailed criteria within a general criterion but cannot be specified for non-basic detailed criteria.

Technical evaluation criteria shall be developed based on such items as satisfaction of requirements on design dossiers, scope of work, information on the contractor’s contract performance as specified in Articles 17 and 18 of this Decree and other requirements stated in the bidding dossier. Based on each specific bidding package, when making a bidding dossier, the following indicators which serve as bases for technical evaluation must be concretized: reasonability and feasibility of technical solutions and construction measures in compatibility with the proposed construction schedule; construction schedule; project management methods, including: project management organization and site management organization; quality assurance measures; assurance of environmental and hygienic conditions and other conditions such as fire prevention and fighting and occupational safety; degree of satisfaction of warranty and maintenance requirements; environmental friendliness factors (if any), including: use of materials and equipment, construction organization measures, production lines, construction technologies and other factors (if any); information about the contractor's contract performance as specified in Articles 17 and 18 of this Decree; other necessary factors.

Except cases in which, due to characteristics of bidding packages, bidding dossiers require contractors to apply the construction methods stated therein, bidding dossiers must state that contractors may suggest construction methods other than those stated in bidding dossiers;

c) The determination of the lowest bid (in case of applying the lowest bid method) must comply with Point c, Clause 4 of Article;

d) Criteria for determining evaluated prices (in case of applying the evaluated price method):

Formula for determining evaluated prices:

Gđg = G ± Δg + ΔƯĐ

Where:

G = (bid ± value of error correction ± value of deviation correction) - value of discounts (if any).

Δg is the value of the factors converted to a common basis for the entire life cycle of the goods, including: project completion schedule; life cycle costs throughout the entire life of the project; loan interests (if any); sustainable bidding factors (if any); information about the contractor's contract performance as specified in Articles 17 and 18 of this Decree; other factors (if any).

ƯĐ is the to-be-added value in accordance with Point b, Clause 2, Article 6 of this Decree, for subjects ineligible for any preferences.

6. For bidding packages to provide non-consultancy services and mixed bidding packages:

Criteria for capacity and experience evaluation; criteria for technical evaluation; determination of the lowest bid (in case of applying the lowest bid method) or criteria for technical evaluation; determination of evaluated prices (in case of applying the evaluated price methods) shall be developed based on the size and characteristics of bidding packages and pursuant to Clauses 2, 4 and 5 of this Article as appropriate.

7. The combined technique-and-price method must not apply to bidding packages for which contractors shall be selected by the method of single-stage single-envelope. For bidding packages that need to be considered on the basis of attaching importance to technical and price factors, the project owner can specify the minimum required technical point, which shall not be lower than 80% of the total maximum technical points.

8. For a bidding package consisting of many separate parts, the bidding dossier shall clearly specify the bid offer conditions, measures and value of bid security for each part or several parts and the method of evaluation applicable to each part or several parts so that contractors can calculate their bid offers suitable to their capacity.

9. Regulations on trademarks and origin of goods:

a) Unless otherwise specified at Point e, Clause 3, Article 10, Clause 2, Article 44 and Clause 1, Article 56 of the Law on Bidding, bidding dossiers may not impose requirements on specific brands and origins of goods;

b) Regarding Clause 2, Article 44 of the Law on Bidding, in the case where the bidding dossier states the origin by group of countries or territories exclusive of Vietnam, the goods of Vietnamese origin are still taken into consideration and evaluation;

c) For goods which cannot be described according to their technical characteristics, utilities, technological designs or standards, the brand and catalog of a specific product may be stated as reference and illustration for technical requirements for goods but shall be followed by the words “or equivalent.” At the same time, the meaning of words equivalent to such goods in terms of technical characteristics, utilities, technological designs, technological standards and other items (if any) shall be clearly defined.

10. Provisions on employment of laborers:

For international bidding, bidding dossiers must specify the use of domestic workers for tasks that domestic workers, especially unskilled workers, are qualified and capable of doing. Foreign workers can only be employed when domestic workers do not meet the requirements. Bid dossiers of contractors that do not satisfy bidding dossiers’ requirements on labor employment shall be eliminated.

11. Regulations on additional procurement options (if any):

In the case where the contractor selection plan includes additional procurement options, the bidding dossier must specify the maximum volume and quantity of goods and services subject to such additional procurement options under the approved contractor selection plan.

12. The bidding dossier must not require the provision of a sales license or a sales authorization from the manufacturer or distributor, or a partnership certificate or technical support commitment or warranty of the manufacturer or distributor or other document of equivalent value (hereinafter referred to as a sales license). In the case where the goods of the bidding package are specialized and complicated and require manufacturers’ responsibility in providing after-sale services such as warranty, maintenance, repair and supply of accessories and spare parts, technical support services and other relevant services, the bidding dossier may request the contractor to provide a sales license but the request for a sales license must be approved by a competent person.

In the case where the manufacturer or the manufacturer's representative office or agent commits one or more of the following acts without a legitimate reason: failing to provide a sales license; providing a sales license which is then withdrawn; providing sales licenses to only one or a few contractors, thereby limiting competition; committing other anti-competitive practices, the contractors and project owner shall upload such information on the Vietnam National E-Procurement System and at the same time send a document to the Ministry of Planning and Investment and the Ministry of Industry and Trade. Such document must specifically state the acts committed by the manufacturer or its representative office or agent, enclosed with supporting documents. Complaints from the contractor or project owner about the manufacturer or its representative office or agent shall be responded to through the Vietnam National E-Procurement System, and at the same time sent in writing to the Ministry of Planning and Investment for consolidation and monitoring.

Article 25. Appraisal and approval of bidding dossiers

1. Bidding dossiers shall be appraised according to Article 129 of this Decree before they are approved.

2. Bidding dossiers shall be approved on the basis of submissions for approval and reports on appraisal of bidding dossiers.

Article 26. Organization of contractor selection

1. Conducting bid invitation:

a) Notices of invitation for bids apply to cases in which shortlisting procedures are not applied and must comply with Point b, Clause 1, Article 8 of the Law on Bidding;

b) In the case where shortlisting procedures are applied to the bidding package, the invitation to bid shall be sent to shortlisted contractors.

2. Distributing, modifying and clarifying bidding dossiers:

a) The bidding dossier is issued on Vietnam National E-Procurement System;

b) In the case where the bidding dossier is modified after it is issued, the bid solicitor must upload the decision on modification together with the modified bidding dossiers and the respective modifications to the bidding dossier on the Vietnam National E-Procurement System. The modification of the bidding dossier must be carried out within the time limit specified at Point dd, Clause 1, Article 45 of the Law on Bidding. In the case where the modification cannot be carried out within such time limit, the time of bid closing must be rescheduled;

c) When considering that a bidding dossier needs to be clarified, the organization or individual shall send a written request through the Vietnam National E-Procurement System at least 03 working days (for national bidding) or 05 working days (for international bidding) before the time of bid closing for consideration and handling. The bid solicitor shall upload the document clarifying the bidding dossier on the Vietnam National E-Procurement System at least 02 working days before the time of bid closing. In the document clarifying the bidding dossier, the name of the contractor requesting clarification of the bidding dossier must not be mentioned. When necessary, the bid solicitor may organize a pre-bidding conference to discuss details of the bidding dossier. The notice of organization of the pre-bidding conference shall be uploaded on the Vietnam National E-Procurement System. All interested contractors may attend the pre-bidding conference without prior notification to the bid solicitor. The bid solicitor must make the minutes of the pre-bidding conference and upload it on the Vietnam National E-Procurement System. The minutes of the pre-bidding conference shall be considered a document clarifying the bidding dossier.

The details of the document clarifying the bidding dossier must not be contrary to the details of the approved bidding dossier. After making clarifications, if the bidding dossier needs to be modified, the modification of the bidding dossier must comply with Point b of this Clause;

d) Decisions on the modification of, and documents clarifying, bidding dossiers constitute part of bidding dossiers.

3. Preparing, submitting, receiving, managing, modifying and withdrawing bid dossiers:

a) Contractors shall prepare and submit bid dossiers according to requirements of the bidding dossier.

The bid solicitor shall receive and manage the submitted bid dossiers under regulations on management of secret dossiers until the contractor selection result are publicized. The bid dossiers or any documents sent by the contractor to the bid solicitor after the bid closing time to amend or supplement the submitted bid dossiers are invalid and shall not be considered, except for documents clarifying the bid dossiers at the request of the bid solicitor or written clarifications and additional documents to prove the eligibility, financial statements, tax declaration and payment obligations, documents on specific personnel and equipment proposed in the bid dossiers, similar contracts, the contractor's production capacity;

b) The project owner, the bid solicitor, or the expert team may not disclose information in one contractor's bid dossier to another contractor, except for information disclosed at the bid dossier opening;

c) When wishing to modify or withdraw their submitted bid dossiers, contractors shall send written requests to bid solicitors. Bid solicitors shall only accept the modification or withdrawal of bid dossiers if receiving such written requests before the time of bid closing.

4. Opening bids:

a) The opening of bids shall be carried out publicly within 02 hours after the time of bid closing. The bid solicitor shall only open bid dossiers received before the time of bid closing stated in the bidding dossier to the witness of representatives of contractors participating in the bid-opening ceremony, regardless of whether the contractors are present or not. Bids shall be opened one by one in the alphabetical order of the names of contractors and in the order: Checking the seal; opening the dossier and reading out the name of contractor; whether this is an independent contractor or a consortium; quantities of originals and photocopies of the dossier; bid stated in the bid application; discounts (if any); validity duration of the bid dossier; bidding package execution duration; value and validity of bid security; and other relevant information;

b) Bid-opening records: The information specified at Point a of this Clause must be written in a bid-opening record. A bid-opening record must be signed by representatives of the bid solicitor and contractors participating in the bid-opening ceremony. This record shall be sent to the contractors participating in bidding and uploaded on the Vietnam National E-Procurement System within 24 hours after the time of bid opening;

c) The bid solicitor’s representative shall sign the original bid application and discount offer letter (if any), power of attorney of the contractor’s at-law representative (if any); consortium agreement (if any); bid security; financial proposals and other important documents of each bid dossier.

Article 27. Principles of evaluation of bid dossiers

1. The evaluation of bid dossiers shall be based on evaluation criteria and other requirements stated in bidding dossiers, submitted bid dossiers, and contractors’ documents explaining and clarifying their bid dossiers in order to select fully capable and experienced contractors that have feasible solutions to execute the bidding packages. In the case where a bidding dossier contains details that suppress competition as specified in Clause 2, Article 24 of this Decree, such details shall not be a basis for evaluation of bid dossiers.

2. In the case where the bid dossier submitted by a contractor propose key personnel (except for key engineering (E) personnel in EPC, EP, EC, or turnkey bidding packages) or essential equipment that fails to meet the project requirements, or the contractor cannot prove his/her/its ability to mobilize the proposed personnel (including situations where personnel are already mobilized to another project whose execution duration overlaps that of the said bidding package), the bid solicitor may allow the contractor to supplement or replace them. Contractors may supplement or replace each key personnel and essential equipment only once within an appropriate period of time. In all cases, if the contractor declares key personnel or essential equipment untruthfully, he/she/it may not replace them with other personnel or equipment. The contractor's bid dossier shall be subsequently eliminated and the contractor shall be considered committing frauds as specified in Clause 4, Article 16 of the Law on Bidding and handled in accordance with Point a, Clause 1, Article 125 of this Decree.

3. In the case where a similar contract that a contractor proposes in the bidding dossier does not meet the requirements, the bid solicitor shall request such contractor to supplement or replace it with another similar contract for evaluation within an appropriate period of time.

4. For a bidding package consisting of many separate parts, the evaluation of bid dossiers or dossiers of proposals and consideration and approval of winning bids shall be conducted to ensure that the total proposed winning bid of the bidding package is lowest (for the bidding package subject to the lowest bid method); the total evaluated price of the bidding package is lowest (for the bidding package subject to the evaluated price method) and the proposed winning bid of the whole bidding package does not exceed its approved price without comparing with the estimated cost of each part. For a bidding package to purchase medicines, chemicals and supplies for medical tests, medical equipment, and technical services, guidelines of the Ministry of Health (if any) shall be complied with.

5. The evaluation of bid dossiers shall be conducted based on copies of bid dossiers; contractors shall take responsibility for the consistency between the originals and copies of their bid dossiers. If there are any inconsistencies between the originals and copies of bid dossiers which do not change the rankings of contractors, the originals shall be used for evaluation. If there are any inconsistencies between the originals and copies of bid dossiers, resulting in the difference between the evaluation result based on the originals and the evaluation result based on the copies, thus changing the rankings of contractors, such bid dossiers shall be eliminated and their contractors shall be regarded as cheating and subject to penalties as specified at Point a, Clause 1, Article 125 of this Decree.

6. Inconsistencies, conditional acceptance, omission of details in bid dossiers:

a) Inconsistencies means differences compared to the requirements stated in the bidding dossier. Conditional acceptance means setting out conditions that restrict or outright reject the requirements stated in the bidding dossier. Omission of details means the contractor's failure to provide part or all of the information or documents required in the bidding dossier;

b) Provided that the bid dossiers basically meet the requirements stated in the bidding dossier, the bid solicitor and the expert team can accept mistakes that are not inconsistencies, conditions or major omissions against the bidding dossier;

c) Provided that the bid dossiers basically meet the requirements stated in the bidding dossier, the bid solicitor and the expert team may request the contractors to provide necessary information or documents within a reasonable time limit to remedy non-conformities or non-serious mistakes in their bid dossiers related to documentation requirements. The request for information and documents to remedy such mistakes must not be related to any element of the bid. The contractor's bid dossier shall be rejected if it does not meet this requirement of the bid solicitor;

d) Provided that the bid dossiers basically meet the requirements stated in the bidding dossier, the bid solicitor and the expert team may adjust non-serious and quantifiable mistakes related to the bids. The bids shall be adjusted to reflect the costs of items that are missing or do not meet the requirements. This adjustment is only for the purpose of comparing the bids.

7. In the case where the contractor does not meet one of the eligibility, capacity and experience, technical, and financial evaluation criteria or the bid dossier has inconsistencies, conditions or major omissions resulting in such bid dossier being eliminated, the evaluation shall stop without considering the remaining criteria.

8. The project owner or bid solicitor may not allow the contractor to use subcontractors that provide consultancy services for the bidding package won by such contractor. Such services include: the formulation and verification of technical design, construction drawing design, cost estimates and FEED; the evaluation of bids; the management of contract performance, the contractor auditing; the formulation and appraisal of the dossier of invitation to prequalification and the bidding dossier; the evaluation of dossiers of participation in prequalification and bid dossiers; the appraisal of prequalification and contractor selection result; the project and contract management consultancy, and other consultancy services directly related to the bidding package.

Article 28. Clarification of bid dossiers

1. After bid opening, contractors shall clarify bid dossiers at the request of the bid solicitor. In the case where a contractor’s bid dossier lacks documents on his/her/its eligibility, similar contracts, production capacity, financial statements, tax declaration and payment obligations, human resources, and equipment, the bid solicitor shall request the contractor to clarify and supplement such documents.

2. In the case where the contractors, after the bid closing, find out that their bid dossiers lack documents proving eligibility, similar contracts, production capacity, financial statements, tax declaration and payment obligations, and documents on specific personnel and equipment proposed in their bid dossiers, such documents shall be sent to the bid solicitor in order to clarify the contractors’ eligibility, capacity and experience. The bid solicitor shall receive such documents for consideration and evaluation; such documents constitute part of the bid dossier.

3. Regarding eligibility, the clarification must ensure the principle of not changing the nature of the contractors participating in bidding. For the validity of bid dossiers (other than the eligibility of contractors), and technical and financial proposals, the clarification of bid dossiers must not cause changes to principal details of the submitted bid dossiers and bids.

4. The clarification of bid dossiers shall be conducted between the bid solicitor and the contractors whose bid dossiers require clarification. The clarifications of a bid dossier must be expressed in writing and preserved by the bid solicitor as part of such bid dossier.

5. In the case where the authenticity of the documents provided by a contractor is in doubt, the bid solicitor may verify the documents with the relevant organizations or individuals.

Article 29. Error correction and deviation adjustment

1. Error correction means the correction of mistakes in bid dossiers, including arithmetic errors and other errors, and shall be conducted on the following principles:

a) Arithmetic errors include errors resulting from inaccurate addition, subtraction, multiplication or division in the calculation of a bid. For fixed unit price contracts, adjustable unit price contracts, time-based contracts, cost-plus-fee contracts, outcome-based contracts, percentage-based contracts, in the case where the unit price is not commensurate with the amount, the unit price shall be used as the basis for error correction. If the unit price deviates abnormally from a reasonable value (10, 100 or 1,000 times) due to decimal errors, the amount shall be used as the basis for error correction;

b) In the case where the total value of the items is incorrect due to an error when adding or subtracting the separate values of the items, the values of the items shall be used as bases for error correction;

c) In case of inconsistency between the bid written in numbers and the bid written in words, the former shall prevail for remedying the mistake, unless it has no meaning. In the case where the bid written in words contains arithmetic errors, the bid written in numbers shall prevail for remedying the mistake after it is corrected (if applicable) in accordance with Points a and b of this Clause;

d) If the “amount” column is fully filled in but there is no corresponding unit price, the unit price shall be determined by dividing the amount by the quantity; when the unit price is available but the “amount” column is blank, the value of this column shall be additionally determined by multiplying the quantity by the unit price; if a certain item has the unit price and the amount but no quantity, such quantity shall be determined by dividing the value in the “amount” column by the unit price. In the case where the quantity determined on this principle is different from that stated in the bidding dossier, such difference is the deviation in the scope of supply and shall be adjusted in accordance with Clause 2 of this Article, except for construction and installation bidding packages under lump-sum contracts;

dd) Errors in units of calculation: such errors shall be corrected to meet the requirements of the bidding dossier.

2. Correcting deviations in scope of supply:

a) Deviations in the scope of supply for construction and installation bidding packages:

For construction and installation bidding packages not under lump-sum contracts, contractors shall give unit prices and respective amounts for all tasks listed in the bid quotations. In the case where the contractor lists the items as required in the bidding dossier but does not state the unit price and respective amount for one item(s), such item(s) is not considered the deficient offered value. The unit price(s) of such item(s) is deemed to be allocated to the unit prices of other items in the bid quotation and shall not be paid separately by the project owner.

Items stated in the bidding dossier but not listed in the contractor's bid quotation shall be considered the deficient offered value in the bid dossier and subject to deviation adjustment as specified at Point c of this Clause for comparison and ranking of bid dossiers. Items stated in the bidding dossier, which are listed in the contractor's bid quotation with their respective unit prices but their volume is less or more than that required in the bidding dossier, shall be considered the excessive offered value and subject to deviation adjustment as specified at Point c of this Clause.

Items listed in the contractor's bid quotation that are not within the scope of work stated in the bidding dossier shall be considered excessive offered value and subject to deviation adjustment as specified at Point c of this Clause.

For construction and installation bidding packages under lump-sum contracts, the contractors’ bid dossiers are considered to include all necessary costs for the bidding package execution in accordance with the design and technical requirements stated in the bidding dossier and no adjustments shall be made in the case where the scope of work proposed by the contractors in the bid dossiers is different from the requirements stated in the bidding dossier, unless such different proposals are outside the scope of work required in the bidding dossier (other than the volume to be completed in accordance with the design). In this case, the portion of work outside the scope required in the bidding dossier shall be considered the excessive offered value and subject to adjustment as specified at Point c of this Clause;

b) Deviations in the scope of supply for goods procurement and non-consultancy bidding packages:

In the case where the contractor lists the items as required in the bidding dossier but does not state the unit price and respective amount for one item(s), such item(s) is considered the deficient offered value and subject to deviation adjustment as specified at Point c of this Clause for comparison and ranking of bid dossiers.

In the case where the items stated in the bidding dossier but not listed in the contractor's bid quotation, they shall be considered the deficient offered value in the bid dossier and subject to deviation adjustment as specified at Point c of this Clause for comparison and ranking of bid dossiers. Items stated in the bidding dossier, which are listed in the contractor's bid quotation but their volume is less or more than that required in the bidding dossier, shall be considered the excessive offered value and subject to deviation adjustment as specified at Point c of this Clause.

Items listed in the contractor's bid quotation that are not within the scope of work stated in the bidding dossier shall be considered excessive offered value and subject to deviation adjustment as specified at Point c of this Clause;

c) Correcting excessive or deficient deviations in the scope of supply:

In the case where the contractor’s bid dossier lacks one or more item(s) as specified at Point a and Point b of this Clause and no unit price(s) for such item(s), the highest unit price(s) of such item(s) offered in other bid dossiers which has passed the technical evaluation shall be used for deviation adjustment. In the case where there is no unit price in the bid dossiers of contractors that have passed the technical evaluation, the unit price in the cost estimate of the bidding package shall be used for deviation adjustment. In the case where there is no cost estimate for the bidding package, the unit price forming the bidding package’s price shall be used for deviation adjustment and serve as the basis for contractor comparison and ranking. The adjustment of deficient deviations is only for the purpose of comparing and ranking bid dossiers.

In the case where the contractor's bid dossier offers deficient volume compared to that required in the bidding dossier, the deficient value shall be added at the respective unit price in the bid dossier.

In the case where the contractor's bid dossier offers excessive volume compared to that required in the bidding dossier, the excessive value shall be subtracted at the respective unit price in the bid dossier.

3. For a contractor with a discount offer letter, the error correction and deviation adjustment shall be based on the bid not yet minus the value of discounts. The percentage (%) of deficient deviation shall be determined based on comparison with the bid stated in the bid application.

4. Applying the unit price for the deficient deviation of the first ranked contractor:

In the case where the contractor's bid dossier contains any deficient deviation after the deviation adjustment as specified at Point c, Clause 2 of this Article, the contractor shall still be ranked first. If such contractor’s bid dossier does not state the unit price for the deficient deviation, the proposed winning unit price of such deficient deviation shall be determined in the following order of priority: the lowest unit price of the same among the bid dossiers that pass the technical evaluation, the unit price in the bidding package estimate, the unit price forming the bidding package's price (in the case where there is no bidding package estimate).

5. After error correction and deviation adjustment and application of unit price(s) to the deficient deviation in accordance with Clauses 1, 2, 3, and 4 of this Article, the bid solicitor shall notify in writing the contractor of the error correction and deviation adjustment, and application of unit price(s) to such contractor’s bid dossier. Within 03 working days after receiving the bid solicitor’s notice, the contractor shall give the bid solicitor a written reply on the acceptance of the notified error correction, deviation adjustment, and unit price application results. In the case where the contractor does not agree with the results of error correction or deviation adjustment, or application of unit prices as notified by the bid solicitor, such contractor's bid dossier shall be rejected, unless the error correction and deviation adjustment or application of unit prices by the bid solicitor are inappropriate or inaccurate.

Article 30. Examination and evaluation of bid dossiers

1. Examining the validity of a bid dossier:

a) Examining the components of the bid dossier, including: bid application; consortium agreement (if any); power of attorney from the contractor's at-law representative (if any); bid security; quantities of originals and photocopies of the bid dossier;

b) Examining the consistency between originals and copies of the dossier to serve the detailed evaluation of the bid dossier.

2. Evaluating the validity of a bid dossier:

a) A contractor’s bid dossier shall be evaluated as valid when fully meeting the conditions specified in Clause 3, Article 24 of this Decree;

b) Contractors that have valid bid dossiers may have their capacity and experience evaluated.

3. Evaluation of capacity and experience of contractors:

a) The evaluation of capacity and experience of contractors shall be conducted using the evaluation criteria specified in bidding dossiers;

b) Contractors that have capacity and experience meeting the specified requirements may be considered for technical evaluation.

For goods procurement bidding packages, some criteria specified in Clause 3, Article 9 of this Decree shall not be applied to individual contractors or groups of individual contractors meeting the requirements specified in Clause 4, Article 5 of this Decree who offer their own innovative products for bidding.

4. Technical and financial evaluation:

a) Technical evaluation shall be conducted using the evaluation criteria and methods specified in bidding dossiers;

b) Contractors that meet technical requirements may proceed with financial evaluation subject to the lowest bid method or the evaluated price method. The contractor whose bid after error correction or deviation adjustment (if any) minus the value of discounts (if any) is the lowest (in case of application of the lowest price method) or who has the lowest evaluated price (in case of application of the evaluated price method) shall be ranked first. The discount offer letter that is not disclosed in the bid opening record shall not be considered for evaluation.

In the case where only one contractor meets the technical requirements, the list of ranked contractors shall not be made. The project owner may not approve the list of ranked contractors.

5. The expert team shall make a report on bid dossier evaluation result and send it to the bid solicitor for consideration and submission to the project owner for approval in accordance with Article 31 of this Decree. In the report on bid dossier evaluation results, the following details shall be clearly stated:

a) Result of evaluation of each bid dossier;

b) List of ranked contractors and their rankings;

c) List of disqualified and eliminated contractors; reasons for elimination;

d) Name of the proposed bid-winning contractor, the proposed winning bid, the type of contract, the execution duration of the bidding package, and the contract performance duration;

dd) Remarks of the competitiveness, fairness, transparency and economic efficiency during the contractor selection. If competitiveness, fairness, transparency and economic efficiency cannot be ensured, reasons shall be clearly stated and remedial measures shall be proposed;

e) The bidding dossier’s details that are non-compliant with the law on bidding or might cause misunderstanding or different ways of in accordance withstanding during implementation or might distort the contractor selection result (if any); and remedial measures for them;

g) Matters of concern (if any).

6. Based on the report on bid dossier evaluation result, the bid solicitor shall prepare a submission for approval of the contractor selection result and submit it to the project owner for approval in accordance with Article 31 of this Decree. A submission for approval of the contractor selection result must contain the details as specified in Clause 5 of this Article.

Article 31. Submission, appraisal, approval and publicization of the contractor selection result

1. Based on a report on evaluation results of bid dossiers, the bid solicitor shall send a contractor selection result submission containing all information specified in Clause 5, Article 30 of this Decree, in which its opinions on the evaluation of the expert team shall be clearly stated.

2. The contractor selection result shall be appraised in accordance with Clauses 1 and 4, Article 130 of this Decree before being approved.

3. The contractor selection result shall be approved in writing on the basis of submissions for approval and reports on appraisal of the contractor selection result.

4. In the case where a bid-winning contractor can be selected, the written approval of the contractor selection result shall contain the details:

a) Name of the bid-winning contractor;

b) Winning bid;

c) Type of contract;

d) Execution duration of the bidding package as specified in Clause 7, Article 39 of the Law on Bidding and contract performance duration as specified in civil law regulations;

dd) Matters of concern (if any).

5. In case of bidding cancellation in accordance with Clause 1, Article 17 of the Law on Bidding, the written approval of the contractor selection result or the bidding cancellation decision must clearly state the reason for bidding cancellation and responsibilities of relevant parties upon bidding cancellation. The decision on bidding cancellation shall be uploaded on the Vietnam National E-Procurement System within 05 working days after the decision is signed.

6. After the decision approving the contractor selection result is issued, the project owner shall publish information on the contractor selection result in accordance with Point a, Clause 1 and Clause 4, Article 8 of the Law on Bidding; and send a notice of the contractor selection result to contractors participating in bidding within 05 working days from the date the contractor selection result is approved. This notice of contractor selection result shall contain:

a) Details specified at Points a, b, c and d, Clause 4 of this Article;

b) List of unselected contractors and reason for not selecting each contractor;

c) Plan on contract finalization and conclusion with the selected contractor:

In the case where there is a request for specific explanation for the reason the contractor fails the bidding, such contractor shall send a request to the project owner or meet in person with the project owner. The project owner shall respond to requests of the contractors within 02 working days after receiving such requests from the contractors.

In the case where a contractor lodges an appeal to the project owner or competent person about issues before the announcement of the contractor selection result, or about the contractor selection result, the project owner shall upload the project owner’s or the competent person’s document specifying the settlement of such appeal on the Vietnam National E-Procurement System within 05 working days from the date of issuance of such document.

Article 32. Finalization and conclusion of contracts

1. The project owner and the bid solicitor shall invite the bid-winning contractor to finalize the contract. During contract finalization, the parties shall finalize a draft contract and its specific terms and annexes, including a detailed list of the scope of work, price schedule, and performance schedule (if any). The contract shall be finalized on the basis of:

a) The contract form filled out with specific information of the bidding package;

b) The approved contractor selection result;

c) Requirements stated in the bidding dossier;

d) Details stated in the bid dossier and clarifications of the bid-winning contractor's bid dossier (if any);

dd) Details of the contract that should be finalized.

2. The contract finalization result shall serve as the basis for the project owner and the contractor to conclude the contract. In the case where the contractor voluntarily offers a discount, the contract price is the discounted value.

3. In the case where the bid-winning contractor does not come to finalize or refuses to finalize the contract or does not sign the contract, the bid security shall not be refunded.

Article 33. Management of contract performance

1. Contract performance management includes: performance schedule, quality, costs and other issues related to the contract. The project owner shall manage the contract performance.

2. The project owner must update on the Vietnam National E-Procurement System the actual progress of the contract when each milestone specified in the contract is completed.

3. The project owner shall publicize the contractor's contract performance result on the Vietnam National E-Procurement System in accordance with Clauses 3 and 4, Article 18 of this Decree. For bidding packages involving supply of goods, the project owner must also publicize on the Vietnam National E-Procurement System the quality of goods provided by the contractor in accordance with Clauses 5, 6 and 7, Article 18 of this Decree.

 

Section 2

SINGLE-STAGE TWO-ENVELOPE BIDDING

 

Article 34. Detailed process

1. Preparing for the contractor selection, including:

a) Shortlisting (when necessary);

b) Making bidding dossiers;

c) Appraising and approving bidding dossiers.

2. Organizing the contractor selection, including:

a) Issuing invitations for bids;

b) Distributing, modifying and clarifying the bidding dossier;

c) Preparing, submitting, receiving, managing, modifying and withdrawing bid dossiers;

d) Opening dossiers of technical proposals.

3. Evaluating dossiers of technical proposals, including:

a) Examining and evaluating the validity of dossiers of technical proposals;

b) Conducting detailed evaluation of dossiers of technical proposals;

c) Submitting, appraising and approving a list of contractors that meet technical requirements.

4. Opening and evaluating dossiers of financial proposals, including:

a) Opening dossiers of financial proposals of contractors meeting technical requirements;

b) Examining and evaluating the validity of dossiers of financial proposals;

c) Detailed evaluation of dossiers of financial proposals and ranking of contractors (if there is more than 01 contractor).

5. Conducting negotiation of contracts (if any).

6. Submission, appraisal, approval and publicization of contractor selection result and explanation of the reason(s) for not winning the bid at contractors’ request (if any).

7. Finalization and conclusion of contracts and management of contract performance.

For goods procurement bidding packages, in addition to institutional contractors, individual contractors or groups of individual contractors may offer their own innovative products for bidding, provided that they meet the requirements specified in Clause 4, Article 5 of this Decree.

Article 35. Making of bidding dossiers

1. In the case where shortlisting procedures are applied to the bidding package, Article 23 of this Decree shall prevail.

2. The bases for making a bidding dossier must comply with Clause 1, Article 24 of this Decree.

3. A bidding dossier must contain all necessary details for contractors to prepare their bid dossiers and may not state any conditions to limit the participation of contractors or to create advantage for one or some contractor(s), thus causing unfair competition as specified at Point k, Clause 6, Article 16 and Clause 3, Article 44 of the Law Bidding. The Ministry of Planning and Investment shall specify a list of violations against Clause 3, Article 44 of the Law on Bidding, which lead to details of the bidding dossier being considered invalid and not being used as a basis for evaluating bid dossiers.

4. The bidding dossier shall specify the evaluation of the validity of a dossier of technical proposals and a dossier of financial proposals of a contractor, including:

a) A dossier of technical proposals shall be evaluated as valid if:

An original copy of such dossier of technical proposals is available;

The bid application included in the dossier of technical proposals is signed and sealed (if any) by the contractor’s legal representative as required in the bidding dossier. The bid application must be signed after the issuance of bidding dossier. disadvantageous conditions for the project owner must not be created. For a consortium of contractors, the bid application shall be signed and sealed (if any) by the legal representative of each consortium member or signed by the assigned consortium member on behalf of the consortium as assigned in the consortium agreement;

The validity of the dossier satisfies the requirements stated in the bidding dossier;

A bid security with value, validity duration, and its beneficiary meeting the requirements of the bidding dossier is made. In the case where it is required to make a bid security by submitting such letter of guarantee or certificate of guarantee insurance must not be in the following cases: its value is lower than the amount specified in the bidding dossier, its validity period is shorter than the period specified in the bidding dossier, the name of the beneficiary is incorrect, it is not duly signed or it is signed before the bidding dossier is issued, it contains disadvantageous conditions for the project owner or the bid solicitor. The letter of guarantee or certificate of guarantee insurance must be signed and stamped with the seal (if any) by a legal representative of a domestic credit institution or foreign bank branch established in accordance with Vietnamese laws, or a domestic non-life insurer, or a foreign non-life insurer’s branch established in accordance with Vietnamese law. Contractors that participate in bidding for an insurance bidding package may not submit certificates of guarantee insurance issued by themselves;

The contractor must not be named in two or more dossiers of technical proposals in the capacity as independent contractor or consortium member;

A consortium agreement (in case of consortium) was signed and sealed by the legal representative of each consortium member (if any). The consortium agreement must clearly state the specific tasks that each member of the consortium shall perform and estimate the corresponding value. The assignment of tasks within a consortium shall be based on the items listed in the bid quotation or specific tasks involved in producing such listed items. The tasks outside the scope of such items or irrelevant to production of such items shall not be assigned;

The contractor is eligible in accordance with Article 5 of the Law on Bidding;

Within 03 years before the time of bid closing, the contractor does not have any personnel (who signed a labor contract with such contractor at the time of the violation) convicted by the Court of violating the bidding regulations causing serious consequences as specified in criminal law regulations for the purpose of winning any bidding for such contractor;

b) A dossier of financial proposals shall be evaluated as valid if:

An original copy of such dossier of financial proposals is available;

The bid application included in the dossier of financial proposals is signed and sealed (if any) by the contractor’s legal representative as required in the bidding dossier. The bid application must be signed after the issuance of bidding dossier. The bid application shall not include different bids or disadvantageous conditions for the project owner. For a consortium of contractors, the bid application shall be signed and sealed (if any) by the legal representative of each consortium member or signed by the assigned consortium member on behalf of the consortium as assigned in the consortium agreement;

Its validity satisfies the requirements stated in the bidding dossier.

5. Criteria for evaluating bid dossiers, including:

a) Criteria for capacity and experience evaluation;

b) Technical evaluation criteria;

c) Determination of the lowest bid (in case of applying the lowest bid method);

d) Criteria for determining evaluated prices (in case of applying the evaluated price method);

dd) Criteria for general evaluation (in case of applying the combined technique-and-price method).

For bidding packages for which the prequalification has been held, the bidding dossier does not need to state the capacity and experience criteria for contractors, but should require contractors to update information on their capacity.

6. The criteria for evaluating capacity and experience of contractors and criteria for technical evaluation must comply with Points a and b, Clause 4 and Points a and b, Clause 5, Article 24 of this Decree.

7. The determination of the lowest bid (in case of applying the lowest bid method) must comply with Point c, Clause 4 and Point c, Clause 5, Article 24 of this Decree.

8. The criteria for determining the evaluated price (in case of applying the evaluated price method) must comply with Point d, Clause 4 and Point d, Clause 5, Article 24 of this Decree.

9. The criteria for general evaluation (in case of applying the combined technique-and-price method) must comply with Article 36 of this Decree.

10. Statement of trademarks and origin of goods must comply with Clause 9, Article 24 of this Decree.

11. Employment requirements must comply with Clause 10, Article 24 of this Decree.

12. Additional procurement options must comply with Clause 11, Article 24 of this Decree.

13. For bidding packages to provide non-consultancy services and mixed bidding packages, depending on the size and characteristics of a bidding package and pursuant to this Article, to set criteria for evaluating capacity and experience of contractors; criteria for technical evaluation; determination of the lowest bid (in case of applying the lowest bid method); criteria for determining the evaluated price (in case of applying the evaluated price method); criteria for general evaluation (in case of applying the method of combined techniques and bids) as appropriate.

14. Licenses for sale of goods must comply with Clause 12, Article 24 of this Decree.

Article 36. Criteria for general evaluation

1. The criteria for general evaluation apply to the method of combined techniques and bids based on the determination of the total score.

The total score of the bid shall be determined as follows:

 

Total scoreunder consideration = (

Gminimum

x T +

Technical pointunder consideration

x K) x 100

Gunder consideration

Technical pointmaximum

 

Where:

Technical pointunder consideration is the point determined at the stage of technical evaluation of the bid dossier under consideration;

Technical pointmaximum is the highest technical point among those of bid dossiers meeting the technical requirements;

Gminimum is the bid after error correction or deviation adjustment minus the minimum value of discounts (if any) stated in the bid dossiers meeting technical requirements;

Gunder consideration is the bid after error correction or deviation adjustment minus the value of discounts (if any) stated in the bid dossier under consideration;

K is the ratio of the technical points to the total score;

T is the ratio of price-based points to the total score;

K + T = 100%; the ratio of the technical points (K) and the ratio of the price-based points (T) shall be specified in the bidding dossier.

2. The criteria for general evaluation shall be established based on the combination of techniques and bids. Depending on the size and characteristics of each bidding package, to determine appropriate ratios of technical points and price-based points, ensuring that the sum of the ratio of technical points and the ratio of price-based points equals 100% on the following principle:

b) For construction and installation, goods procurement, non-consultancy, or mixed bidding packages: The ratio of the technical points (K) ranges between 10% and 30% and the ratio of the price-based points (T) ranges between 70% and 90%,

b) For bidding package to procure medicines: The ratio of the technical points (K) ranges between 30% and 40% and the ratio of the price-based points (T) ranges between 60% and 70%.

3. In the case where it is necessary to prioritize technical factors over price factors, the project owner shall submit to the competent person for consider and decision on the ratio of technical points (K) and the ratio of price-based points (T) but ensure that the ratio of technical points shall not exceed 50%.

Article 37. Appraisal and approval of bidding dossiers

1. Bidding dossiers shall be appraised in accordance with Article 129 of this Decree before they are approved.

2. Bidding dossiers shall be approved in writing on the basis of submissions for approval and reports on appraisal of bidding dossiers.

Article 38. Organization of contractor selection

1. Conducting bid invitation:

a) Notices of invitation for bids apply to cases in which shortlisting procedures are not applied and must comply with Point b, Clause 1, Article 8 of the Law on Bidding;

b) The invitation to bid shall be sent to shortlisted contractors.

2. Distributing, modifying and clarifying bidding dossiers:

The distribution, modification and clarification of bidding dossiers must comply with Clause 2, Article 26 of this Decree.

3. Preparing, submitting, receiving, managing, modifying and withdrawing bid dossiers:

The preparation, submission, receipt, management, modification and withdrawal of bid dossiers must comply with Clause 3, Article 26 of this Decree.

4. Opening of dossiers of technical proposals:

a) Dossiers of technical proposals shall be opened publicly within 02 hours after the time of bid closing. The bid solicitor shall only open dossiers of technical proposals received before the time of bid closing stated in the bidding dossier to the witness of representatives of contractors participating in the bid-opening ceremony, regardless of whether the contractors are present or;

b) Bid dossiers shall be opened one by one in the alphabetical order of the names of contractors and in the following order: Checking the seal; opening the dossier and reading out the name of contractor, quantities of originals and photocopies of the dossier, bid application in the dossier, validity duration of the dossier, bidding package execution duration, value and validity of bid security, and other relevant information;

c) Information specified at Point b of this Clause shall be written in the record of the opening of dossiers of technical proposals. This record shall be signed by the bid solicitor’s and contractors’ representatives participating in the dossier-opening ceremony, sent to the contractors participating in bidding, and uploaded on the Vietnam National E-Procurement System within 24 hours after the time of bid opening;

d) The bid solicitor’s representative shall sign the original bid application and power of attorney (if any) of the contractor’s at-law representative; consortium agreement (if any); bid security; and important components of each dossier of technical proposals;

dd) Dossiers of financial proposals of all contractors shall be put in a separate envelope and sealed by the bid solicitor and signed by the bid solicitor’s and contractors’ representatives participating in the dossier-opening ceremony.

Article 39. Principles of evaluation, and clarification of, bid dossiers, error correction and deviation adjustment

1. The evaluation of bid dossiers must follow the principles specified in Clauses 1, 2, 3, 5, 6, 7 and 8, Article 27 of this Decree.

For a bidding package consisting of many separate parts, the evaluation of bid dossiers or dossiers of proposals and consideration and approval of winning bids shall be conducted to ensure that the total proposed winning bid of the bidding package is lowest (for the bidding package subject to the lowest bid method); the total evaluated price of the bidding package is lowest (for the bidding package subject to the evaluated price method), the highest total score (for the bidding package subject to the method of combined techniques and bids) and the proposed winning bid of the whole bidding package does not exceed its approved price without comparing with the estimated cost of each part. For a bidding package to purchase medicines, chemicals and supplies for medical tests, medical equipment, and technical services, guidelines of the Ministry of Health (if any) shall be complied with.

2. The clarification of bid dossiers must comply with Article 28 of this Decree.

3. Error correction and deviation adjustment must comply with Article 29 of this Decree.

Article 40. Examination and evaluation of dossiers of technical proposals

1. The validity of a dossier of technical proposals shall be examined in terms of:

a) Components of the dossier of technical proposals, including: bid application included in the dossier of technical proposals, consortium agreement (if any), power of attorney from the contractor's at-law representative (if any), bid security, quantities of originals and photocopies of the dossier of technical proposals;

b) The consistency between originals and copies of the dossier to serve the detailed evaluation of the dossier.

2. Evaluating the validity of a dossier of technical proposals:

A contractor’s dossier of technical proposals shall be evaluated as valid when fully meeting the conditions specified at Point a, Clause 4, Article 35 of this Decree.

Contractors that have valid dossiers of technical proposals may be considered for capacity and experience evaluation. For a bidding package for which the prequalification round has been organized, contractors’ capacity and experience shall not be evaluated.

3. Evaluation of capacity and experience of contractors:

a) The evaluation of capacity and experience of contractors shall be conducted using the evaluation criteria specified in bidding dossiers;

b) Contractors that meet capacity and experience requirements may have their dossiers of technical proposals evaluated;

c) For bidding packages subject to prequalification, contractors that have passed the prequalification, have valid dossiers of technical proposals and have updated information on their capacity meeting the requirements of the bidding package may have their dossiers of technical proposals evaluated.

For goods procurement bidding packages, some criteria specified in Clause 3, Article 9 of this Decree shall not be applied to individual contractors or groups of individual contractors meeting the requirements specified in Clause 4, Article 5 of this Decree who offer their own innovative products for bidding.

4. Technical evaluation:

a) Technical evaluation shall be conducted using the evaluation criteria stated in bidding dossiers;

b) Contractors that meet technical requirements may have their dossiers of financial proposals opened and evaluated.

5. A list of contractors that meet technical requirements shall be approved in writing by the project owner and based on the submission for approval and report on appraisal of technical evaluation results. The bid solicitor must announce the list of contractors that meet and those that fail to meet the technical requirements, clearly state the reasons for the contractors’ failure as well as invite all participating contractors to the opening of dossiers of financial proposals. The bid solicitor must publish the list of contractors meeting technical requirements on the Vietnam National E-Procurement System within 05 working days from the date of approval of this list.

Article 41. Opening of dossiers of financial proposals

1. The bid solicitor checks the seals of envelopes of dossiers of financial proposals.

2. Dossiers of financial proposals shall be opened as follows:

a) Only the dossiers of financial proposals of the contractors named on the list of contractors that meet technical requirements shall be opened to the witness of the contractors’ representatives participating in the dossier-opening ceremony, regardless of whether or not the contractors are present;

b) Dossiers of financial proposals shall be opened one by one in the alphabetical order of the names of contractors in the list of those meeting the technical requirements and in the order: checking the seal; reading the technical points of bid dossiers meeting technical requirements (in case of using the scoring method); opening the dossier and reading out the name of contractor, quantities of originals and photocopies of the dossier of financial proposals, the bid application included in the dossier of financial proposals, validity duration of the dossier of financial proposals, bid stated in the bid application, discounts (if any), and other relevant information.

3. Record of the opening of dossiers of financial proposals:

a) Information specified in Clauses 1 and 2 of this Article shall be written in the record of the opening of dossiers of financial proposals. This record shall be signed by the bid solicitor’s and the contractors’ representatives participating in the dossier-opening ceremony. This record shall be sent to the contractors meet technical requirements and uploaded on the Vietnam National E-Procurement System within 24 hours after the time of bid opening;

b) The bid solicitor’s representative shall sign all pages of the original dossier of financial proposals.

Article 42. Examination and evaluation of dossiers of financial proposals

1. The validity of a dossier of financial proposals shall be examined in terms of:

a) The quantities of originals and photocopies of the dossier of financial proposals;

b) The composition of the dossier of financial proposals, such as bid application in the dossier; bid quotation; and other components of the dossier of financial proposals;

c) The consistency between originals and copies of the dossier to serve the detailed evaluation of the dossier of financial proposals.

2. Evaluation of the validity of a dossier of financial proposals:

A contractor’s dossier of financial proposals shall be evaluated as valid when fully meeting the conditions specified at Point b, Clause 4, Article 35 of this Decree.

Contractors that have valid dossiers of financial proposals may have their dossiers eligible for detailed evaluation.

3. Detailed evaluation of dossiers of financial proposals and ranking of contractors:

a) Detailed evaluation of dossiers of financial proposals and ranking of contractors must be conducted using the evaluation criteria stated in bidding dossiers. The discount offer letter that is not disclosed in the bid opening record shall not be considered for evaluation;

b) After formulating the list of ranked contractors, the expert team shall make and send a report to the bid solicitor for consideration. The report shall include the following details: list of ranked contractors and their rankings; list of disqualified and eliminated contractors; reasons for elimination; remarks of the competitiveness, fairness, transparency and economic efficiency during the contractor selection. If competitiveness, fairness, transparency and economic efficiency cannot be ensured, reasons shall be clearly stated and remedial measures shall be proposed. The bidding dossier’s details that are non-compliant with the law on bidding or might cause misunderstanding or different ways of understanding during implementation or might distort the contractor selection result (if any); and remedial measures for them shall be included.

The project owner may not approve the list of ranked contractors.

Article 43. Negotiation of contracts

1. In the case where the bidding package is subject to contract negotiation, the bid solicitor shall invite the contractor ranked first to negotiate the contract.

2. Bases for contract negotiation:

a) The report on results of evaluation of the bid dossier;

b) The bid dossier and the contractor’s documents clarifying the bid dossier (if any);

c) The bidding dossier shall include general and specific conditions of the contract and documents amending and clarifying the bidding dossier (if any).

3. Contract negotiation principles:

a) Contractors’ proposals meeting the requirements of bidding dossiers shall not be negotiated;

b) Unit prices determined at the financial evaluation step shall not be changed.

4. Issues of a contract to be negotiated:

a) Those which remain unspecific, unclear or inconsistent between the bidding dossier and bid dossier or different details in the bid dossier, which might cause problems or disputes or affect the responsibilities of relevant parties during contract performance;

b) Deviations (if any) already detected and proposed by the contractor in the bid dossier, including changes or alternative technical plans proposed by the contractor if the bidding dossier allows the contractor to offer alternative technical plans;

c) Key personnel:

Contractors are not allowed to change key personnel who have been proposed or replaced once in accordance with Clause 2, Article 27 of this Decree, unless the bid dossier evaluation lasts longer than expected in the contractor selection plan or the key personnel proposed by the contractor cannot engage in performing the contract due to force majeure reasons. In such cases, contractors may substitute other persons but shall ensure that to-be-substituted persons have qualifications, capacity and experience equivalent to or higher than those of the proposed persons, and contractors may not change their bids;

d) Problems (if any) arising in the process of contractor selection in order to finalize the details of a bidding package;

dd) Other necessary issues.

5. During contract negotiation, relevant parties shall finalize a draft contract and its specific terms and annexes, including a detailed list of the scope of work, price schedule, and performance schedule (if any).

6. After completing the contract negotiation, the bid solicitor shall prepare a submission for approval of the contractor selection result and submit it to the project owner for approval in accordance with Article 31 of this Decree. A submission for approval of the contractor selection result must contain the following details:

a) Result of evaluation of each bid dossier;

b) List of ranked contractors and their rankings;

c) Contract negotiation results;

d) List of disqualified and eliminated contractors; reasons for elimination;

dd) Name of the proposed bid-winning contractor, the proposed winning bid, the type of contract, the execution duration of the bidding package, and the contract performance duration;

e) Remarks of the competitiveness, fairness, transparency and economic efficiency during the contractor selection. If competitiveness, fairness, transparency and economic efficiency cannot be ensured, reasons shall be clearly stated and remedial measures shall be proposed;

g) The bidding dossier’s details non-compliant with the law on bidding, which might cause misunderstanding or different ways of understanding during implementation or which might distort the contractor selection result (if any) and remedial measures for them;

h) Matters of concern (if any).

7. In the case where the contractor participates in the negotiation but fails to follow the negotiation principles and negotiate the issues specified in Clauses 3 and 4 of this Article or has completed the negotiation but does not sign the contract negotiation record in order to retract the winning bid or creating disadvantageous conditions for the project owner, the contractor shall be eliminated and shall not be refunded the bid security.

8. The contractor may refuse to negotiate and receive a refund of the bid security in the case where the bid solicitor or project owner does not conduct the negotiation on the principles and regarding the issues specified in Clauses 3 and 4 of this Article.

9. In case the negotiation is unsuccessful, the bid solicitor shall advise the project owner to consider inviting the next ranked contractor to negotiate.

Article 44. Submission, appraisal, approval and publicization of the contractor selection result; finalization, conclusion and performance management of contracts

1. The submission, appraisal, approval and publicization of the contractor selection result must comply with Article 31 of this Decree.

2. The finalization and conclusion of contracts and management of contract performance shall comply with Articles 32 and 33 of this Decree.

 

Chapter III

PROCESS OF OPEN AND RESTRICTED OFFLINE BIDDING FOR GOODS PROCUREMENT, CONSTRUCTION OR MIXED BIDDING PACKAGES BY THE TWO-STAGE BIDDING METHOD

 

Section 1

TWO-STAGE SINGLE-ENVELOP BIDDING METHOD

 

Article 45. Preparation for first-stage bidding

1. Shortlisting procedures for open and restricted bidding shall comply Article 23 of this Decree.

2. Making a first-stage bidding dossier:

a) Bidding dossiers shall be made in accordance with Clauses 1 and 2, Article 24 of this Decree;

b) A first-stage bidding dossier shall contain the following details: brief information on the project or bidding package; instructions on preparation and submission of a first-stage bid dossier; technical requirements of the bidding package based on the approved basic design or technical specifications; criteria for technical evaluation of the bidding package.

A bidding dossier must allow the contractors to propose alternatives to the technical solutions proposed in their bid dossiers, and not require the contractors to propose bids and bid security.

3. Appraisal and approval of bidding dossiers:

a) Bidding dossiers shall be appraised in accordance with Article 129 of this Decree before being approved;

b) Bidding dossiers shall be approved on the basis of submissions for approval and reports on appraisal of bidding dossiers.

Article 46. Organization of first-stage bidding

1. First-stage bid invitation must comply with Clause 1, Article 26 of this Decree.

2. Distributing, modifying and clarifying bidding dossiers:

The distribution, modification and clarification of bidding dossiers must comply with Clause 2, Article 26 of this Decree.

3. Preparing, submitting, receiving, managing, modifying and withdrawing bid dossiers:

The preparation, submission, receipt, management, modification and withdrawal of bid dossiers must comply with Clause 3, Article 26 of this Decree.

4. Opening bids:

Bid opening must comply with Clause 4, Article 26 of this Decree.

The first-stage bid opening record shall not include information about bid security, bids and discounts (if any) of contractors.

Article 47. Evaluation of dossiers of technical proposals, submission, approval, and publicization of the list of contractors meeting requirements of the first-stage bidding dossier

1. The principles of evaluation of bid dossiers must comply with Article 27 of this Decree.

2. The clarification of bid dossiers must comply with Article 28 of this Decree.

3. The submission, approval, and publicization of the list of contractors meeting the requirements of the first-stage bidding dossier shall comply with Article 31 of this Decree. The list of contractors meeting the requirements of the first-stage bidding dossier shall be uploaded on the Vietnam National E-Procurement System no later than 05 working days from the date of approval.

Article 48. Preparation for and organization of second-stage bidding

1. Exchange of opinions on first-stage bid dossiers:

The bid solicitor shall invite each contractor who is on the list of contractors meeting the requirements of the first-stage bidding dossier to clarify such dossiers of technical proposals. The clarification of the technical proposals includes the technical adjustments required compared to the contractor's proposals in the first stage and the contributive comments on the bidding dossier and the contractor's alternative technical solutions. The clarified details shall be recorded in writing by the bid solicitor and each contractor. The bid solicitor shall ensure that information in first-stage bid dossiers of contractors be kept secret.

Based on the clarification of technical proposals with each contractor, the bid solicitor shall consolidate and report to the project owner the details of the first-stage bidding dossier, including contractor instructions, evaluation criteria, technical requirements, contract conditions and others, which should be adjusted and supplemented. The project owner shall review and decide on the details to be adjusted and supplemented at the proposal of the bid solicitor.

2. Making a second-stage bidding dossier:

a) Bases for making the bidding dossier:

In addition to the bases specified in Clauses 1 and 2, Article 24 of this Decree, the second-stage bidding dossier must be based on modifications and additions decided by the project owner to instructions for contractors, evaluation criteria, technical requirements, contract conditions and other details of the first-stage bidding dossier.

b) A bidding dossier shall contain the following details:

A bidding dossier shall contain the following components: instructions for contractors, additional procurement options (if any); bidding datasheet; criteria for evaluation of validity of bid dossiers; capacity and experience of contractors; technical, financial and commercial qualifications; information about the contractors’ contract performance and the quality of similar goods used previously; bidding and bid forms; scope of supply, technical requirements; contract conditions and forms; dossiers, drawing designs and others (if any).

3. Appraisal and approval of bidding dossiers:

a) Bidding dossiers shall be appraised in accordance with Article 129 of this Decree before being approved;

b) Bidding dossiers shall be approved in writing on the basis of submissions for approval and reports on appraisal of bidding dossiers.

4. Organization of bidding:

a) Second-stage bidding dossiers shall be issued to the contractors that meet the requirements of the first-stage bidding dossiers.

The modification and clarification of second-stage bidding dossiers must comply with Clause 2, Article 26 of this Decree;

b) Preparation, submission, receipt, management, modification and withdrawal of bid dossiers:

The preparation, submission, receipt, management, modification and withdrawal of bid dossiers must comply with Clause 3, Article 26 of this Decree.

5. Opening bids:

Bid opening must comply with Clause 4, Article 26 of this Decree.

Article 49. Evaluation of second-stage bid dossiers

1. The principles of evaluation of bid dossiers must comply with Article 27 of this Decree.

2. The clarification of bid dossiers must comply with Article 28 of this Decree.

3. Error correction and deviation adjustment must comply with Article 29 of this Decree.

4. The evaluation of bid dossiers must comply with Article 30 of this Decree.

Article 50. Negotiation of contracts, submission, appraisal, approval and publicization of the contractor selection result; finalization, conclusion and performance management of contracts

1. The bid solicitor shall invite the contractor ranked first to negotiate a contract.

2. The negotiation of contracts must comply with Article 43 of this Decree.

3. The submission, appraisal, approval and publicization of the contractor selection result must comply with Article 31 of this Decree.

4. The finalization and conclusion of contracts and management of contract performance shall comply with Articles 32 and 33 of this Decree.

 

Section 2
TWO-STAGE SINGLE-ENVELOP BIDDING METHOD

 

Article 51. Preparation for first-stage bidding

1. Shortlisting procedures for open and restricted bidding shall comply Article 23 of this Decree.

2. Making a first-stage bidding dossier:

a) Bidding dossiers shall be made in accordance with Clauses 1 and 2, Article 24 of this Decree;

b) A first-stage bidding dossier shall contain the following details: brief information on the project or bidding package; instructions on preparation and submission of a first-stage bid dossier; technical requirements of the bidding package based on the approved basic design or technical specifications; criteria for technical evaluation of the bidding package. A bidding dossier must allow the contractors to propose alternatives to the technical solutions proposed in their bid dossiers, and not require the contractors to propose bids and bid security.

3. Appraisal and approval of bidding dossiers:

a) Bidding dossiers shall be appraised in accordance with Article 129 of this Decree before being approved;

b) Bidding dossiers shall be approved on the basis of submissions for approval and reports on appraisal of bidding dossiers.

Article 52. Organization of first-stage bidding

1. First-stage bid invitation must comply with Clause 1, Article 26 of this Decree.

2. The distribution, modification and clarification of bidding dossiers must comply with Clause 2, Article 26 of this Decree.

3. The preparation, submission, receipt, management, modification and withdrawal of bid dossiers must comply with Clause 3, Article 26 of this Decree.

4. Opening bids:

a) Bid opening must comply with Clause 4, Article 26 of this Decree;

b) The first-stage bid opening record shall not include information about bid security, bids and discounts of contractors.

Article 53. Evaluation of dossiers of technical proposals, submission, appraisal, approval, and publicization of the list of contractors meeting requirements of the first-stage bidding dossier

1. The principles of evaluation of bid dossiers must comply with Article 27 of this Decree.

2. The clarification of bid dossiers must comply with Article 28 of this Decree.

3. The submission, appraisal, approval, and publicization of the list of contractors meeting the requirements of the first-stage bidding dossier shall comply with Article 31 of this Decree. The list of contractors meeting the requirements of the first-stage bidding dossier shall be uploaded on the Vietnam National E-Procurement System no later than 05 working days from the date of approval.

Article 54. Preparation for and organization of second-stage bidding

1. Exchange of opinions on first-stage bid dossiers:

The bid solicitor shall invite each contractor who has his/her/its dossier of technical proposals approved meets the requirements of the first-stage bidding dossier to clarify such dossiers of technical proposals. The clarification of the technical proposals includes the technical adjustments required compared to the contractor's proposals in the first stage and the contributive comments on the bidding dossier and the contractor's alternative technical solutions. The clarified details shall be recorded in writing by the bid solicitor and each contractor. The bid solicitor shall ensure that information in first-stage bid dossiers of contractors be kept secret.

Based on the clarification of technical proposals with each contractor, the bid solicitor shall consolidate and report to the project owner the details of the first-stage bidding dossier, including contractor instructions, evaluation criteria, technical requirements, contract conditions and others, which should be adjusted and supplemented. The project owner shall review and decide on the details to be adjusted and supplemented at the proposal of the bid solicitor.

2. Making a second-stage bidding dossier:

a) Bases for making the bidding dossier:

In addition to the bases specified in Clauses 1 and 2, Article 24 of this Decree, the second-stage bidding dossier must be based on modifications and additions decided by the project owner to instructions for contractors, evaluation criteria, technical requirements, contract conditions and other details of the first-stage bidding dossier;

b) A bidding dossier shall contain the following details:

A bidding dossier shall contain the following components: instructions for contractors, additional procurement options (if any); bidding datasheet; criteria for evaluation of validity of bid dossiers; capacity and experience of contractors; technical, financial and commercial qualifications; information about the contractors’ contract performance and the quality of similar goods used previously; bidding and bid forms; scope of supply, technical requirements; contract conditions and forms; dossiers, drawing designs and others (if any).

3. Appraisal and approval of bidding dossiers:

a) Bidding dossiers shall be appraised in accordance with Article 129 of this Decree before being approved;

b) Bidding dossiers shall be approved in writing on the basis of submissions for approval and reports on appraisal of bidding dossiers.

4. Organization of bidding:

a) Second-stage bidding dossiers shall be issued to the contractors that meet the requirements of the first-stage bidding dossiers.

The modification and clarification of second-stage bidding dossiers must comply with Clause 2, Article 26 of this Decree;

b) Preparation, submission, receipt, management, modification and withdrawal of bid dossiers:

The preparation, submission, receipt, management, modification and withdrawal of bid dossiers must comply with Clause 3, Article 26 of this Decree. Contractors shall submit their bid dossiers, including separate technical proposals and financial proposals according to requirements of the bidding dossier in the second stage which must include their bids and bid security, dossiers of financial proposals must conform to the contractors’ main technical proposals. Dossiers of financial proposals must conform to the contractors’ main technical proposals. In the case where a contractor offers an alternative technical plan, he/she/it shall enclose financial proposals for this alternative plan.

5. Opening of dossiers of technical proposals:

The opening of dossiers of technical proposals must comply with Clause 4, Article 38 of this Decree.

Article 55. Evaluation of dossiers of technical proposals in the second stage

1. The principles of evaluation of bid dossiers must comply with Article 27 of this Decree.

2. The clarification of bid dossiers must comply with Article 28 of this Decree.

Article 56. Submission, appraisal and approval of the list of contractors that meet technical requirements in the second stage

1. The submission, appraisal, and approval of the list meeting the technical requirements of the second stage shall comply with Clause 1 and Clause 3, Article 130 of this Decree.

2. The bid solicitor shall notify and upload a list of contractors that meet technical requirements on the Vietnam National E-Procurement System no later than 05 working days from the date such list is approved and then open dossiers of financial proposals of the contractors that meet technical requirements.

Article 57. Evaluation of dossiers of financial proposals in the second stage

1. The principles of evaluation of bid dossiers must comply with Article 27 of this Decree.

2. The clarification of bid dossiers must comply with Article 28 of this Decree.

3. Error correction and deviation adjustment must comply with Article 29 of this Decree.

4. The evaluation of dossiers of financial proposals must comply with Article 42 of this Decree.

Article 58. Submission, appraisal, approval and publicization of the contractor selection result; finalization, conclusion and performance management of contracts

1. The bid solicitor shall invite the contractor ranked first to negotiate a contract.

2. The negotiation of contracts must comply with Article 43 of this Decree.

3. The submission, appraisal, approval and publicization of the contractor selection result must comply with Article 31 of this Decree.

4. The finalization and conclusion of contracts and management of contract performance shall comply with Articles 32 and 33 of this Decree.

 

Chapter IV

PROCESS OF OPEN AND RESTRICTED OFFLINE BIDDING FOR CONSULTANCY SERVICE BIDDING PACKAGES

 

Section 1
INSTITUTIONAL CONTRACTORS

 

Article 59. Detailed process

1. Preparing for the contractor selection, including:

a) Shortlisting (when necessary);

b) Making bidding dossiers;

c) Appraising and approving bidding dossiers.

2. Organizing the contractor selection, including:

a) Issuing invitations for bids;

b) Distributing, modifying and clarifying the bidding dossier;

c) Preparing, submitting, receiving, managing, modifying and withdrawing bid dossiers;

d) Opening dossiers of technical proposals.

3. Evaluating dossiers of technical proposals, including:

a) Examining and evaluating the validity of dossiers of technical proposals;

b) Conducting detailed evaluation of dossiers of technical proposals;

c) Submitting, appraising and approving a list of contractors that meet technical requirements.

4. Opening and evaluating dossiers of financial proposals, including:

a) Opening dossiers of financial proposals of contractors meeting technical requirements;

b) Examining and evaluating the validity of dossiers of financial proposals;

c) Conducting detailed evaluation of dossiers of financial proposals;

d) Ranking contractors (if there is more than 01 contractor).

5. Conducting negotiation of the contract.

6. Submitting, appraising, approving and publicizing the contractor selection result and explanation of the reason(s) for not winning the bid at contractors’ request (if any).

7. Finalizing and concluding the contract and managing contract performance.

Article 60. Shortlisting

1. Depending on the size and characteristics of the bidding package, the competent person may decide to apply the shortlisting procedures. The application of shortlisting procedures shall be stated in the contractor selection plan.

2. For open bidding:

a) Making a dossier of invitation for expression of interest:

A dossier of invitation for expression of interest shall contain the details: brief information on the project, procurement estimate, or bidding package; instructions on preparation and submission of a dossier of expression of interest; criteria for evaluating the validity of a dossiers of expression of interest; and capacity and experience criteria for contractors; personnel criteria (if any). The scoring method shall be used to develop criteria for evaluating dossiers of expression of interest. A minimum required point shall bet set for each criterion, but it shall not lower than 60% of the total points;

b) Dossiers of invitation for expression of interest shall be appraised in accordance with Article 129 of this Decree before they are approved;

c) A dossier of invitation for expression of interest shall be approved in writing on the basis of the submission for approval and report on appraisal of the dossier of invitation for expression of interest;

d) Notices of invitation for expression of interest must comply with Point b, Clause 1, Article 8 of the Law on Bidding;

dd) The dossier of invitation for expression of interest shall be issued on Vietnam National E-Procurement System;

e) The bid solicitor shall receive and manage the submitted dossiers of expression of interest under regulations on management of secret dossiers till the results of invitation for expression of interest are publicized;

g) Opening and evaluation of dossiers of expression of interest:

Dossiers of expression of interest submitted within the time limits and at places specified in dossiers of invitation for expression of interest shall be opened right after the time of bid closing. The opening of dossiers of expression of interest shall be recorded in writing sent to the contractors that have submitted dossiers of expression of interest, and uploaded on the Vietnam National E-Procurement System within 24 hours after the time of bid opening. Dossiers of expression of interest submitted after the time of bid closing are invalid, shall not be opened and shall be eliminated.

The evaluation of dossiers of expression of interest must be conducted using the evaluation criteria stated in dossiers of invitation for expression of interest. A contractor with a dossier of expression of interest gaining a point not lower than the required minimum point shall be included in a shortlist; a dossier of expression of interest of a contractor that gains the highest point shall be ranked first; in case more than 06 contractors have satisfied the set requirements, only the 06 highest ranked contractors shall be shortlisted;

h) Submission, appraisal and approval of results of invitation for expression of interest:

Based on a report on evaluation results of dossiers of expression of interest, the bid solicitor shall send a submission of the results of invitation for expression of interest for approval, in which its opinions on the expert team’s evaluation shall be clearly stated.

Results of invitation for expression of interest shall be evaluated in accordance with Clauses 1 and 2, Article 130 of this Decree and approved in writing on the basis of the submission for approval and report on appraisal of results of evaluation of the dossier of invitation for expression of interest. In the case where a shortlist can be selected, the written approval of the results of invitation for expression of interest must state the names of the shortlisted contractors and matters of concern (if any). In the case where a shortlist cannot be selected, the written approval of the results of invitation for expression of interest must clearly state the reason;

i) A shortlist shall be published in accordance with Point b, Clause 1, Article 8 of the Law on Bidding and notified to contractors that have submitted dossiers of expression of interest.

3. For restricted bidding:

a) A shortlist must include at least 03 contractors that satisfy the bidding package’s capacity and experience requirements and wish to participate in bidding. If fewer than 03 contractors meet the requirements, the situation shall be handled in accordance with Clause 3, Article 131 of this Decree;

b) After approval, the shortlist shall be uploaded in accordance with Point b, Clause 1, Article 8 of the Law on Bidding.

4. Shortlisted contractors may not join a consortium among themselves in order to participate in bidding. If a consortium includes any contractor not on the shortlist, the project owner's approval must be obtained before the bid closing time.

Article 61. Making of bidding dossiers

1. Bases for making a bidding dossier:

a) The approved general plan on contractor selection (if any);

b) The approved contractor selection plan;

c) The scope and requirements of work; requirements for the consultant’s experience and personnel, and other necessary requirements (if any);

d) Law on bidding and relevant law regulations; international treaties and loan agreements (if any) for projects funded with official development assistance or concessional loans;

dd) Law regulations on taxes, fees, preferences in contractor selection;

e) Other relevant bases.

2. A bidding dossier must contain all necessary details for contractors to prepare their bid dossiers and may not state any conditions to limit the participation of contractors or to create advantage for one or some contractor(s), thus causing unfair competition as specified at Point k, Clause 6, Article 16 and Clause 3, Article 44 of the Law Bidding. The Ministry of Planning and Investment shall specify a list of violations against Clause 3, Article 44 of the Law on Bidding, which lead to details of the bidding dossier being considered invalid and not being used as a basis for evaluating bid dossiers.

3. The bidding dossier shall specify the evaluation of the validity of a dossier of technical proposals and a dossier of financial proposals of a contractor, including:

a) A dossier of technical proposals shall be evaluated as valid when fully meeting the following conditions:

An original copy of such dossier of technical proposals is available;

The bid application included in the dossier of technical proposals is signed and sealed (if any) by the contractor’s legal representative as required in the bidding dossier. The bid application must be signed after the issuance of bidding dossier. Bids which create disadvantageous conditions for the project owner must not be offered. For a consortium of contractors, the bid application shall be signed and sealed (if any) by the legal representative of each consortium member or signed by the assigned consortium member on behalf of the consortium as assigned in the consortium agreement;

Tax declaration and tax payment obligations are fulfilled;

The validity of the dossier satisfies the requirements stated in the bidding dossier;

The contractor must not be named in two or more dossiers of technical proposals in the capacity as independent contractor or consortium member;

A consortium agreement (in case of consortium) was signed and sealed by the legal representative of each consortium member (if any). The consortium agreement must clearly state the specific tasks that each member of the consortium shall perform and estimate the corresponding value. The assignment of tasks within a consortium shall be based on the items listed in the terms of reference and technical requirements. Those outside the scope of such items shall not be assigned;

The contractor is eligible in accordance with Article 5 of the Law on Bidding;

Within 03 years before the time of bid closing, the contractor does not have any personnel (who signed a labor contract with such contractor at the time of the violation) convicted by the Court of violating the bidding regulations causing serious consequences as specified in criminal law regulations for the purpose of winning any bidding for such contractor;

b) A dossier of financial proposals shall be evaluated as valid when fully meeting the following conditions:

An original copy of such dossier of financial proposals is available;

The bid application included in the dossier of financial proposals is signed and sealed (if any) by the contractor’s legal representative as required in the bidding dossier. The bid application must be signed after the issuance of bidding dossier. The bid application shall not include different bids or disadvantageous conditions for the project owner. For a consortium of contractors, the bid application shall be signed and sealed (if any) by the legal representative of each consortium member or signed by the assigned consortium member on behalf of the consortium as assigned in the consortium agreement;

Its validity satisfies the requirements stated in the bidding dossier.

4. Criteria for evaluating a bid dossier include criteria for technical evaluation; determination of the lowest bid (in case of applying the lowest bid method); criteria for general evaluation (in case of applying the method of combined techniques and bids).

5. Technical evaluation criteria: The scoring method shall be used, including:

a) Experience and capacity of contractors: accounting for between 0% and 15% of the total points;

b) Contractor's prestige through their participation in bidding and their contract performance as specified in Articles 17 and 18 of this Decree: accounting for 5% of the total points;

c) Solutions and methodologies for performing a bidding package: accounting for between 30% and 40% of the total points;

d) Personnel for performing the bidding package: accounting for between 50% and 60% of the total points;

dd) Depending on the characteristics of the bidding package, the bidding dossier may require technology transfer which may account for between 0% and 10% of the total points;

e) The sum of all ratios specified at Points a, b, c, d and dd of this Clause must equal 100%.

A dossier of technical proposals meets technical requirements when its technical point is not lower than 70% of the total points (or 80%, as for consultancy service bidding packages with hi-tech and specialized requirements) and the point of each required item regarding solutions and methodology, personnel, and technology transfer (if any) is not lower than 60% of the maximum point for such item (or not lower than 70%, as for consultancy service bidding packages with hi-tech and specialized requirements). For the contractor experience and capacity criterion, the necessity of setting a minimum score for such general criterion shall be determined depending on the characteristics of the bidding package.

6. Depending on the size and characteristics of the bidding package, the bidding dossier may include the financial evaluation method which may be one of the following methods:

a) Lowest price method;

b) Combined technique-and-price method;

c) Technique-based method.

7. The determination of the lowest bid (in case of applying the lowest bid method) must comply with Point c, Clause 4, Article 24 of this Decree.

8. Criteria for general evaluation (in case of applying the combined technique-and-price method):

a) Determining the point of the bid:

A point scale shall be used in conformity with the technical point scale to determine the point of the bid. The price-based points shall be determined as follows:

The price-based pointsunder consideration =

Gminimum  x (technical point scale)

Gunder consideration

 

Where:

The price-based pointsunder consideration is the price-based points stated in the dossier of financial proposals under consideration;

Gminimum is the bid after error correction or deviation adjustment minus the value of discounts (if any) which is the lowest bid among those offered by contractors with dossiers of financial proposals eligible for detailed evaluation;

Gunder consideration is the bid after error correction or deviation adjustment minus the value of discounts (if any) stated in the dossier of financial proposals under consideration.

b) Criteria for general evaluation:

The total score shall be determined according to the following formula:

Total scoreunder consideration = K x Technical pointunder consideration + G x Price-based pointunder consideration

Where:

Technical pointunder consideration is the point determined at the stage of technical evaluation;

Price-based pointunder consideration is the point determined at the stage of bid evaluation;

K is the ratio of the technical points to the total score, which ranges between 70% and 80%;

G is the ratio of price-based points to the total score, which ranges between 20% and 30%;

K + G = 100%.

Article 62. Appraisal and approval of bidding dossiers

1. Bidding dossiers shall be appraised in accordance with Article 129 of this Decree before they are approved.

2. Bidding dossiers shall be approved in writing on the basis of submissions for approval and reports on appraisal of bidding dossiers.

Article 63. Organization of contractor selection

1. Conducting bid invitation:

a) In the case where shortlisting procedures are not applied to the bidding package, notices of invitation for bids as specified at Point b, Clause 1, Article 8 of the Law on Bidding shall apply;

b) In the case where shortlisting procedures are applied to the bidding package, the invitation to bid shall be sent to shortlisted contractors.

2. The distribution, modification and clarification of bidding dossiers must comply with Clause 2, Article 26 of this Decree.

3. The preparation, submission, receipt, management, modification and withdrawal of bid dossiers must comply with Clause 3, Article 26 of this Decree.

4. The opening of dossiers of technical proposals must comply with Clause 4, Article 38 of this Decree but not mention bid security. The bid opening record shall be sent to the contractors participating in bidding and uploaded on the Vietnam National E-Procurement System within 24 hours after the time of bid opening.

Article 64. Principles of evaluation of bid dossiers

1. The evaluation of bid dossiers shall be based on evaluation criteria and other requirements stated in bidding dossiers, submitted bid dossiers, and contractors’ documents explaining and clarifying their bid dossiers in order to select fully capable and experienced contractors that have feasible solutions to execute the bidding packages. In the case where a bidding dossier contains details that suppress competition as specified in Clause 2, Article 61 of this Decree, such details shall not be a basis for evaluation of bid dossiers.

2. In the case where a contract of similar nature that a contractor has performed as stated in the bidding dossier does not meet the requirements of the bidding dossier, the bid solicitor shall request such contractor to supplement or replace it with another contract for evaluation within an appropriate period of time.

3. The evaluation of bid dossiers shall be conducted based on copies of bid dossiers; contractors shall take responsibility for the consistency between the originals and copies of their bid dossiers. If there are any inconsistencies between the originals and copies of bid dossiers which do not change the rankings of contractors, the originals shall be used for evaluation. If there are any inconsistencies between the originals and copies of bid dossiers, resulting in the difference between the evaluation result based on the originals and the evaluation result based on the copies, thus changing the rankings of contractors, such bid dossiers shall be eliminated and their contractors shall be regarded as cheating and subject to penalties as specified at Point a, Clause 1, Article 125 of this Decree.

Article 65. Clarification of bid dossiers

1. After bid opening, contractors shall clarify bid dossiers at the request of the bid solicitor. In the case where the contractors’ bid dossiers lack documents on eligibility, contracts of similar nature, tax declaration and payment obligations, and documents on specific personnel proposed in the contractors’ bid dossiers, the bid solicitor shall request the contractors to make clarifications and send such supplemental documents.

2. In the case where the contractors, after the bid closing, find out that their bid dossiers lack documents proving eligibility, contracts of similar nature, tax declaration and payment obligations, and documents on specific personnel proposed in their bid dossiers, such documents shall be sent to the bid solicitor. The bid solicitor shall receive such documents for consideration and evaluation; such documents constitute part of the bid dossier.

3. Regarding eligibility, the clarification must ensure the principle of not changing the nature of the contractors participating in bidding. For the validity of bid dossiers (other than the eligibility of contractors), and technical and financial proposals, the clarification of bid dossiers must not cause changes to principal details of the submitted bid dossiers and bids.

4. The clarification of bid dossiers shall be conducted between the bid solicitor and the contractors whose bid dossiers require clarification. The clarifications of a bid dossier must be expressed in writing and preserved by the bid solicitor as part of such bid dossier.

5. In the case where the authenticity of the documents provided by a contractor is in doubt, the bid solicitor may verify the documents with the relevant organizations or individuals.

Article 66. Error correction and deviation adjustment

1. For types of contracts specified in Article 64 of the Law on Bidding, in the case where the contractor, in the dossier of financial proposals, does not quote any bid for one or more items stated in the dossier of technical proposals as required in the bidding dossier, the contractor shall be deemed to have quoted bids for such items and the costs shall be allocated to other parts of the bidding package.

2. For time-based contracts:

a) In the case where the total value of the items is incorrect due to an error when adding or subtracting the separate values of the items, the values of the items shall be used as bases for error correction;

b) In the case where there is an error when adding and subtracting values in the “Amount” column to calculate the bid, the values in the “Amount” column shall be used as the basis for error correction;

c) In the case where the unit price is not commensurate with the amount, the unit price shall be used as the basis for error correction. In case of inconsistency between the bid written in numbers and the bid written in words, the former shall prevail for remedying the mistake. In the case where the bid written in words contains arithmetic errors, the bid written in numbers shall prevail for remedying the mistake after it is corrected (if applicable) in accordance with Points a and b of this Clause;

d) In the case where there is a difference between the technical proposal and the financial proposal in terms of the quantity of personnel involved in executing the bidding package, the quantity of workdays, the quantity of non-salary expenses for each item, the quantity of other input factors proposed in the technical proposal and financial proposal, the respective quantity in the technical proposal shall be used as the basis for error correction and deviation adjustment. The deviation adjustment in this case shall be based on the quantity and volume stated in the technical proposal with the unit price stated in the financial proposal.

3. For lump-sum contracts:

In case of a lump-sum contract, the bid minus discounts (if any) proposed by the contractor in the bid application included in the dossier of financial proposals shall be deemed to include all necessary expenses to execute the bidding package within the scope of work stated in the bidding dossier, without error correction and deviation adjustment. In case of inconsistency between the bid written in numbers and the bid written in words in the bid application, the bid written in words shall prevail, unless it has no meaning.

4. For fixed unit price contracts and adjustable unit price contracts:

Error correction and deviation adjustment must comply with Article 29 of this Decree.

5. After error correction and deviation adjustment in accordance with Clauses 1, 2, 3 and 4 of this Article, the bid solicitor shall notify in writing the contractor of the error correction and deviation adjustment of such contractor’s bid dossier. Within 03 working days after receiving the bid solicitor’s notice, the contractor shall give the bid solicitor a written reply on the acceptance of the notified error correction and deviation adjustment results. In the case where the contractor does not accept the results of error correction or deviation adjustment as notified by the bid solicitor, such contractor's bid dossier shall be rejected, unless the error correction and deviation adjustment by the bid solicitor are inappropriate or inaccurate.

Article 67. Examination and evaluation of dossiers of technical proposals

1. Examining the validity of a dossier of technical proposals:

The validity of a dossier of technical proposals shall be examined in accordance with Clause 1, Article 40 of this Decree, except the validity of bid security.

2. Evaluating the validity of a dossier of technical proposals:

A contractor’s dossier of technical proposals shall be evaluated as valid when fully meeting the conditions specified at Point a, Clause 3, Article 61 of this Decree. Contractors that have valid dossiers of technical proposals may be considered for technical evaluation.

3. Technical evaluation:

a) Technical evaluation shall be conducted using the evaluation criteria stated in bidding dossiers;

b) For a key personnel position, the bid dossier, which offers too much or too little compared to the quantity required in the bidding dossier, fails to meet the technical requirements;

c) Contractors that meet technical requirements or gain the highest technical point (in case of applying the technique-based method) may have their dossiers of financial proposals opened and evaluated.

4. A list of contractors that meet technical requirements shall be approved in writing by the project owner and based on the submission for approval and report on appraisal of the list of contractors that meet technical requirements. The bid solicitor must announce the list of contractors that meet and those that fail to meet the technical requirements, clearly state the reasons for such failure, and invite all participating contractors to the opening of dossiers of financial proposals. The bid solicitor must publish the list of contractors meeting technical requirements on the Vietnam National E-Procurement System within 05 working days from the date of approval of this list.

Article 68. Opening, examination, and evaluation of dossiers of financial proposals

1. The opening of dossiers of financial proposals shall comply with Article 41 of this Decree. For a bidding package applying the technique-based method, only the dossier of proposals of the contractor with the highest technical point shall be opened.

2. The evaluation of the validity of dossiers of financial proposals must comply with Point b, Clause 3, Article 61 of this Decree.

Contractors that have valid dossiers of financial proposals may have their dossiers eligible for detailed evaluation.

3. The detailed evaluation of dossiers of financial proposals and the ranking of contractors must comply with Clause 3, Article 42 of this Decree.

Article 69. Negotiation of contracts

1. The bid solicitor shall invite the contractor ranked first to negotiate a contract. The negotiation of contracts must comply with Clause 2, Article 43 of this Decree.

2. Issues of a contract to be negotiated:

a) Those which remain unspecific, unclear or inconsistent between the bidding dossier and bid dossier or different details in the bid dossier, which might cause problems or disputes or affect the responsibilities of relevant parties during contract performance;

b) Deviation (if any) already detected and proposed by the contractor in the bid dossier, including changes or alternative plans proposed by the contractor if the bidding dossier allows the contractor to offer alternative plans;

c) Personnel:

During the negotiation process, the contractor is not allowed to change key personnel who have been proposed in the bid dossier, unless such personnel shall be replaced because the bid dossier evaluation lasts longer than expected in the contractor selection plan or the key personnel proposed by the contractor cannot engage in performing the contract due to force majeure reasons. In such cases, contractors may substitute other persons but shall ensure that to-be-substituted persons have qualifications, capacity and experience equivalent to or higher than those of the proposed persons, and contractors may not change their bids;

d) Problems (if any) arising in the process of contractor selection in order to finalize the details of a bidding package;

dd) Expenses related to consultancy services to meet the requirements of the bidding package and practical conditions;

e) Other necessary issues.

3. During the contract negotiation process, the negotiating parties shall finalize the draft contract and specific conditions of the contract.

4. After completing the contract negotiation, the bid solicitor shall prepare a submission for approval of the contractor selection result and submit it to the project owner for approval in accordance with Article 70 of this Decree. A submission for approval of the contractor selection result must contain the following details:

a) Result of evaluation of each bid dossier;

b) List of ranked contractors and their rankings;

c) Contract negotiation results;

d) List of disqualified and eliminated contractors; reasons for elimination;

dd) Name of the proposed bid-winning contractor, the proposed winning bid, the type of contract, the execution duration of the bidding package, and the contract performance duration;

e) Remarks of the competitiveness, fairness, transparency and economic efficiency during the contractor selection. If competitiveness, fairness, transparency and economic efficiency cannot be ensured, reasons shall be clearly stated and remedial measures shall be proposed;

g) The bidding dossier’s details that are non-compliant with the law on bidding or might cause misunderstanding or different ways of understanding during implementation or might distort the contractor selection result (if any); and remedial measures for them;

h) Matters of concern (if any).

5. In case the negotiation is unsuccessful, the bid solicitor shall advise the project owner to consider inviting the next ranked contractor to negotiate.

Article 70. Submission, appraisal, approval and publicization of the contractor selection result; finalization, conclusion and performance management of contracts

The submission, appraisal, approval and publicization of the contractor selection result, finalization and conclusion of contracts and management of contract performance must comply with Articles 31, 32, 33 of this Decree.

 

Section 2
INDIVIDUAL CONTRACTORS

 

Article 71. Selection of individuals consultants

1. Individual consultant may be a single consultant or a group of consultants. A group of consultants shall appoint a representative to work with the bid solicitor and project owner. For the expert team in case of winning the bid, all of its members must directly sign a contract with the project owner. Individual consultants shall be selected according to the fixed price method depending on their capacity and experience.

2. For bidding packages to provide individual consultancy services with a bidding package's price of VND 200 million or less, the contractor selection shall be conducted according to the simplified procedures specified in Article 74 and Article 75 of this Decree. For bidding packages to provide individual consultancy services with a bidding package's price of more than VND 200 million, the contractor selection shall be conducted according to the normal procedures specified in Article 72 and Article 73 of this Decree.

Article 72. Formulation, submission and approval of terms of reference according to normal procedures

1. The bid solicitor shall formulate the terms of reference for individual consultants to be selected and submit it to the project owner for approval. The terms of reference must include:

a) Brief description of the project and procurement estimates;

b) Requirements on the scope, volume, quality and time for executing the bidding package;

c) Requirements on capacity and qualifications of consultants;

d) Conditions for and place of contract performance;

dd) The bidding package's price according to the fixed-price method;

e) Other necessary issues (if any).

2. Based on the documents submitted by the bid solicitor, the project owner shall consider and approve the terms of reference.

Article 73. Uploading of notices of invitation for bids and evaluation of individual consultants' scientific resumes; approval of the contractor selection result; conclusion of the contract; uploading of the individual consultant selection result according to normal procedures

1. After the terms of reference are approved, the bid solicitor shall upload a notice of invitation for bids, enclosed with the terms of reference, on the Vietnam National E-Procurement System, clearly stating the deadline for receiving scientific resumes. The minimum time limit for individual consultants to prepare science resumes is 05 working days.

In the case where it is necessary to clarify the terms of reference, organizations and individuals shall make such clarification on the Vietnam National E-Procurement System at least 03 working days before the time of bid closing for consideration and settlement thereof. The bid solicitor shall respond to the request for clarification on the Vietnam National E-Procurement System at least 02 working days before the time of bid closing.

In case of amending the terms of reference that have been issued, the bid solicitor must upload the decision on such amendment, enclosed with the amended terms of reference and the specific amendments on the Vietnam National E-Procurement System within a minimum period of 03 working days before the time of bid closing.

2. Submission of science resumes:

Individual consultants shall prepare science resumes as required in the terms of reference and technical proposals (if any) and submit them through the Vietnam National E-Procurement System.

3. Evaluation of science resumes:

Based on the terms of reference, the bid solicitor shall evaluate the science resumes of every individual consultant. An individual consultant who is eligible in accordance with Clause 3, Article 5 of the Law on Bidding, has the best resume and technical proposals (if any), and meets the requirements of the terms of reference shall be ranked first.

4. Negotiation of contracts:

The bid solicitor shall invite the first-ranked individual consultant to negotiate the contract in accordance with the approved terms of reference, including the scope of work, performance schedule, work reporting requirements, consultancy expenses, contract price and other necessary issues. The contract negotiation result shall be recorded in writing and signed by the bid solicitor and the individual consultant.

5. The results of selection of individual consultants shall be based on written requests for approval and reports on evaluation results of science resumes of individual consultants and contract negotiation results. A contract signed between relevant parties must conform to the decision approving the results of selection of individual consultants, contract negotiation results, terms of reference, and other relevant documents.

6. The individual consultant selection results shall be uploaded on the Vietnam National E-Procurement System in accordance with Point a, Clause 1 and Clause 4, Article 8 of the Law on Bidding.

Article 74. Formulation, submission and approval of terms of reference, list of individual consultants according to simplified procedures

1. The formulation, submission, and approval of the terms of reference must comply with Article 72 of this Decree.

2. The bid solicitor shall make a list of at least 03 individual consultants to submit to the project owner for approval.

3. Based on the documents submitted by the bid solicitor, the project owner shall consider and approve the terms of reference and list of individual consultants.

Article 75. Sending invitations and evaluation of individual consultants' scientific resumes; approval of the contractor selection result; conclusion of the contract; uploading of the individual consultant selection result according to simplified procedures

1. After the terms of reference and list of individual consultants are approved, the bid solicitor shall send invitation letters and terms of reference to individual consultants on such list, clearly stating the time limits and places for receipt of their science resumes. The minimum time limit for individual consultants to prepare science resumes is 03 working days.

2. Submission of science resumes:

Individual consultants shall prepare science resumes as required in the terms of reference and technical proposals (if any) and submit them to the bid solicitor within the time limits and at the places specified in the invitation letters.

3. Evaluation of individual consultants' scientific resumes; contract negotiation; approval of the contractor selection result; conclusion of the contract; uploading of the individual consultant selection result shall comply with Clauses 3, 4, 5 and 6, Article 73 of this Decree.

 

Chapter V
PROCESSES FOR CONTRACTOR APPOINTMENT, COMPETITIVE OFFER, DIRECT PROCUREMENT AND SELF-EXECUTION, CONTRACTOR SELECTION IN SPECIAL CASES AND SELECTION OF CONTRACTORS FOR BIDDING PACKAGES EXECUTED WITH COMMUNITY PARTICIPATION

 

Section 1
CONTRACTOR APPOINTMENT

 

Article 76. Process of contractor appointment according to normal procedures to be applied in the case where only one contractor is identified to receive the dossier of requirements

1. The contractor appointment shall be approved in the contractor selection plan. The process of contractor appointment according to normal procedures shall be applied to bidding packages specified at Points d, dd, e, g, h, i, k and l, Clause 1, Article 23 of the Law on Bidding. The project owner shall decide to send the dossier of requirements to a contractor.

2. Preparation for contractor selection:

a) Making a dossier of requirements:

The dossier of requirements shall contain the details: brief information on the project, procurement estimate, or bidding package; instructions on preparation and submission of a dossier of proposals; criteria for evaluating the capacity and experience of contractors; contractor appointment price; contract conditions.

Criteria using the “pass” and “fail” criteria shall be used to evaluate both the capacity and experience of contractors and technical aspects. A dossier of requirements may clearly state specific codes, symbols, trademarks and origins of goods, relevant technical and service requirements (if any);

b) Submission, appraisal and approval of dossiers of requirements: A dossier of requirements shall be appraised according to Article 129 of this Decree before being approved. Dossiers of requirements shall be approved in writing on the basis of submissions for approval and reports on appraisal of dossiers of requirements;

c) Identifying contractors expected to be invited to receive dossiers of requirements:

Depending on the size and characteristics of the bidding package and preliminary information about the contractors capable of implementing the bidding package, the project owner shall identify one contractor expected to be invited to receive the dossier of requirements; and may not evaluate the capacity and experience of the contractor expected to be invited to receive the dossier of requirements when identifying such contractor.

A contractor may be expected to be appointed and receive the dossier of requirements when he/she/it is eligible in accordance with Points a, b, c, d, e, g and i, Clause 1, Article 5 of the Law on Bidding or, if the contractor is a business household, when it is eligible in accordance with Points a and b, Clause 2 and Points d and e, Clause 1, Article 5 of the Law on Bidding. For goods procurement bidding packages, individual contractors or groups of individual contractors offering their own innovative products for bidding shall be expected to be appointed to the bidding package and receive the dossiers of requirements if they meet the eligibility requirements specified in Clause 3, Article 5 of the Law on Bidding.

3. Organization of contractor selection:

a) Dossiers of requirements shall be distributed to the contractors to be appointed;

b) Contractors shall prepare and submit dossiers of proposals on the basis of dossiers of requirements.

4. Evaluation of dossiers of proposals and negotiation of contractors’ proposals:

a) The evaluation of dossiers of proposals shall be conducted using the evaluation criteria stated in dossiers of requirements. During evaluation, the bid solicitor shall invite contractors to negotiate (if applicable), clarify or modify and supplement their dossiers of proposals in order to prove their satisfaction of the requirements on capacity and experience, performance schedule, volume, quality, technical solutions and measures to execute the bidding package;

b) A contractor shall be proposed for appointment when fully meeting the conditions: Having a valid dossier of proposals; having capacity and experience and technical proposals satisfying the dossier of requirements; and offering a price not exceeding the approved bidding package's price.

5. Submission, appraisal, approval and publicization of the contractor appointment result

The submission, appraisal, approval and publicization of the contractor appointment result must comply with Article 31 of this Decree.

6. Finalization and conclusion of contracts and management of contract performance:

A contract concluded between relevant parties must conform to the decision approving the contractor appointment result, dossier of proposals, dossier of requirements, and other relevant documents. The finalization and conclusion of contracts and management of contract performance shall comply with Articles 32 and 33 of this Decree.

Article 77. Process of contractor appointment according to normal procedures to be applied in the case where the project owner sends the dossier of requirements to more than one contractor

1. The contractor appointment shall be approved in the contractor selection plan. For bidding packages in the cases specified at Points dd, e, h, k and l, Clause 1, Article 23 of the Law on Bidding, the project owner shall decide to choose one contractor to be appointed and send the dossier of requirements to such contractor according to the process specified in Article 76 of this Decree or determine and approve a list of more than one contractor expected to be invited to receive dossiers of requirements according to the process specified in this Article.

2. Formulation, appraisal and approval of dossiers of requirements:

a) Making a dossier of requirements:

Tho dossier of the requirements shall contain the details: brief information on the project, procurement estimate, or bidding package; instructions on preparation and submission of a dossier of proposals; criteria for evaluating the capacity and experience of contractors, the lowest price; contract conditions.

Criteria using the “pass” and “fail” criteria shall be used to evaluate both the capacity and experience of contractors and technical aspects. A dossier of requirements may clearly state specific codes, symbols, trademarks and origins of goods, relevant technical and service requirements (if any);

b) Submitting, appraising and approving dossiers of requirements:

Dossiers of requirements shall be appraised in accordance with Article 129 of this Decree before being approved. Dossiers of requirements shall be approved in writing on the basis of submissions for approval and reports on appraisal of dossiers of requirements;

c) Making a list of contractors expected to be invited to receive dossiers of requirements:

Depending on the size and characteristics of the bidding package and preliminary information about the contractor capable of implementing the bidding package, the project owner shall identify at least 03 contractors expected to be invited to receive the dossier of requirements; and may not evaluate the capacity and experience of the contractors expected to be invited to receive the dossier of requirements when identifying such contractors.

A contractor may be expected to be invited to receive the dossier of requirements when he/she/it is eligible in accordance with Points a, b, c, d, e, g and i, Clause 1, Article 5 of the Law on Bidding or, if the contractor is a business household, when it is eligible in accordance with Points a and b, Clause 2 and Points d and e, Clause 1, Article 5 of the Law on Bidding. For goods procurement bidding packages, individual contractors or groups of individual contractors offering their own innovative products for bidding shall be expected to be invited to receive the dossier of requirements if they meet the eligibility requirements specified in Clause 3, Article 5 of the Law on Bidding.

3. Organization of contractor selection:

a) The dossier of requirements shall be issued to contractors whose names are on the list of contractors invited to receive the dossiers of requirements;

b) Contractors shall prepare and submit dossiers of proposals on the basis of dossiers of requirements.

4. Evaluation and clarification of dossiers of proposals, error correction and deviation adjustment, and ranking of contractors:

a) Dossiers of proposals shall be evaluated following the principles specified in Article 27 or Article 64 of this Decree;

b) The clarification of dossiers must comply with Article 28 or Article 65 of this Decree;

c) Error correction and deviation adjustment must comply with Article 29 or Article 66 of this Decree;

d) The evaluation of dossiers must comply with Article 30 or Article 67, Article 68 of this Decree;

dd) Contractor ranking shall comply with the dossier of requirements.

5. Negotiation of contracts (if any):

In case of contract negotiation, the bid solicitor shall invite the first ranked contractor to negotiate the contract. During negotiation, the bid solicitor may request the contractors to clarify or modify and supplement their dossiers of proposals in order to prove their satisfaction of the requirements on capacity and experience, performance schedule, volume, quality, technical solutions and measures to execute the bidding package. In case the negotiation is unsuccessful, the bid solicitor shall advise the project owner to consider inviting the next ranked contractor to negotiate.

6. Submission, appraisal, approval and publicization of the contractor appointment result:

The submission, appraisal, approval and publicization of the contractor appointment result must comply with Article 31 of this Decree.

7. Finalization and conclusion of contracts and management of contract performance:

A contract concluded between relevant parties must conform to the decision approving the contractor appointment result, dossier of proposals, dossier of requirements, and other relevant documents. The finalization and conclusion of contracts and management of contract performance shall comply with Articles 32 and 33 of this Decree.

Article 78. Process of contractor appointment according to simplified procedures

1. The contractor appointment according to simplified procedures in the cases specified at Points a, b and c, Clause 1, Article 23 of the Law on Bidding may not be approved in the contractor selection plan.

2. Depending on the size and characteristics of the bidding package and preliminary information about the contractors capable of executing the bidding package, the project owner or the authority directly managing the bidding package shall identify and appoint a capable, experienced contractor to promptly execute the bidding package. Within 15 days from the date of commencement of the execution of a bidding package, involved parties shall complete procedures for contractor appointment, including the following steps:

a) Preparation and sending of the draft contract, which must contain the requirements on scope and description of tasks to be performed, time of performance, required task quality and corresponding value, to the contractor;

b) Finalization of the contract;

c) Submission for approval of the contractor appointment results;

d) Conclusion of the contract with the appointed contractor;

dd) Management of contract performance;

e) Publicization of the contractor appointment results on the Vietnam National E-Procurement System.

3. The contractor appointment for bidding packages subject to contractor appointment limits specified at Point m, Clause 1, Article 23 of the Law on Bidding muse be approved in the contractor selection plan. The process of contractor appointment according to simplified procedures shall be conducted as follows:

a) Preparing and sending the draft contract to the contractor:

The bid solicitor shall base his/her/itself on the approved objectives and scope of work to prepare and send a draft contract to the contractor expected by the project owner to be capable of executing the bidding package. A draft contract must contain the requirements on scope and description of tasks to be performed, time of performance, required task quality and corresponding value and other necessary details;

b) Finalization of the contract, submission, approval and publicization of the contractor selection result:

Based on the draft contract, the bid solicitor and contractor proposed for appointment shall finalize a contract as a basis for submitting the contractor selection result for approval and concluding the contract. The publicization of contractor appointment result must comply with Clause 6, Article 31 of this Decree;

c) Conclusion of contracts and management of contract performance:

A contract concluded between relevant parties must conform to the decision approving the contractor selection result and other relevant documents. The management of contract performance shall comply with Article 33 of this Decree.

In the case where the project owner applies the normal procedures instead of the simplified procedures specified in Clause 2 of this Article, it shall comply with Article 76 or Article 77 of this Decree.

 

Section 2

COMPETITIVE OFFER, DIRECT PROCUREMENT AND SELF-EXECUTION

 

Article 79. Process of competitive offer

1. Preparation for contractor selection:

a) Bidding dossiers shall be made in accordance with Clauses 1 and 2, Article 24 of this Decree. A bidding dossier shall contain the details: summary information about the project, procurement estimate, bidding package; instructions for contractors; bidding datasheet; evaluation criteria for the validity of bid dossiers; capacity and experience evaluation criteria and technical evaluation criteria using “pass” and “fail” criteria; financial evaluation criteria subject to the lowest bid method or the evaluated price method.

For goods procurement bidding packages or construction and installation bidding packages, depending on the size and characteristics of a bidding package, the bidding dossier may include criteria for evaluation of capacity and experience or may not include such criteria, but the contractors participating in the bidding must commit to having enough capacity and experience to execute the bidding package. For bidding packages to provide non-consultancy services, bidding dossiers may not require evaluation criteria of capacity and experience.

For goods procurement bidding packages, some criteria specified in Clause 3, Article 9 of this Decree shall not be applied to individual contractors or groups of individual contractors meeting the requirements specified in Clause 4, Article 5 of this Decree who offer their own innovative products for bidding. In the case where the contractors are business households, they may neither submit financial statements nor meet net asset value requirements;

b) Appraising and approving the bidding dossier:

Bidding dossiers shall be appraised in accordance with Article 129 of this Decree before they are approved. Bidding dossiers shall be approved on the basis of submissions for approval and reports on appraisal of bidding dossiers.

2. Organization of contractor selection:

a) The bid solicitor shall upload the notice of invitation for bids and bidding dossier on the Vietnam National E-Procurement System in accordance with Point b, Clause 1, Article 8 of the Law on Bidding;

b) The modification and clarification of bidding dossiers must comply with Clause 2, Article 26 of this Decree;

c) Contractors shall submit bid dossiers as required by the bidding dossier on the Vietnam National E-Procurement System;

d) The bid solicitor shall open bids on the Vietnam National E-Procurement System within 02 hours after the time of bid closing. The bid dossier opening record shall contain the following details: name of the contractor; bid; value of discounts (if any); validity period of the bid dossier; value and validity period of the bid security; contract performance duration. The bid-opening record shall be uploaded on the Vietnam National E-Procurement System within 24 hours after the time of bid opening.

3. Evaluation of bid dossiers:

a) The principles of evaluation of bid dossiers are specified in Article 27 of this Decree;

b) The clarification of bid dossiers must comply with Article 28 of this Decree;

c) Error correction and deviation adjustment must comply with Article 29 of this Decree;

d) The evaluation of bid dossiers must comply with Article 30 of this Decree;

dd) Contractor ranking shall comply with the bidding dossier. The contractor whose bid after error correction or deviation adjustment (if any) minus the value of discounts (if any) is the lowest in case of application of the lowest price method or who has the lowest evaluated price in case of application of the evaluated price method shall be ranked first.

4. Submission, appraisal, approval and publicization of the contractor selection result:

The submission, appraisal, approval and publicization of the contractor selection result must comply with Article 31 of this Decree.

5. Finalization and conclusion of contracts and management of contract performance:

A contract concluded between relevant parties must conform to the decision approving the contractor selection result, bid dossier, bidding dossier and other relevant documents. The finalization and conclusion of contracts and management of contract performance shall comply with Articles 32 and 33 of this Decree.

Article 80. Direct procurement process

1. The project owner may only apply direct procurement solely once for goods in the bidding package for which direct procurement is expected to be applied during the project performance duration or within a budget year or fiscal year of the procurement estimate. In case of procurement estimate, if the bidding package for which direct procurement is expected to be applied has its execution duration longer than one year, direct procurement may only be applied solely once for the goods in such bidding package in all years of the procurement estimates.

2. Preparation for contractor selection:

a) Making a dossier of requirements:

A dossier of requirements shall contain the details: brief information on the project or bidding package, procurement estimates; requirement for contractors to update information on their eligibility, capacity and experience; requirement on schedule and commitment to supply goods meeting technical specifications and quality requirements of the previous bidding dossier; requirement on unit prices of goods and other necessary details.

In case of direct procurement with other contractors in accordance with Clause 3, Article 25 of the Law on Bidding, the dossier of requirements shall include the criteria for evaluating the eligibility, capacity, and experience and the technical evaluation criteria specified in Article 24 of this Decree;

b) Appraisal and approval of dossiers of requirements:

Dossiers of requirements shall be appraised in accordance with Article 129 of this Decree before being approved. Dossiers of requirements shall be approved on the basis of submissions for approval and reports on appraisal of dossiers of requirements.

3. The dossier of requirements shall be issued to the previously selected contractor. In the case where such contractor is unable to continue performing or does not agree to execute the direct procurement package, the project owner shall select in the following order of priority: ranked contractors on the list of the previous bidding package; other contractors if they meet Clause 3, Article 25 of the Law on Bidding.

4. Contractors shall prepare and submit dossiers of proposals on the basis of dossiers of requirements.

5. Evaluation of dossiers of proposals and negotiation of contractors’ proposals:

a) Evaluating the dossiers of proposals, including: Examining technical issues and unit prices; updating information on the contractor’s capacity; in case of direct procurement with a contractor other than the previous bid-winning contractor, the bid solicitor must evaluate the eligibility, capacity and experience of such contractor in accordance with Article 30 of this Decree; evaluating the implementation schedule, goods supply measures, technical solutions and measures for execution of the bidding package; other details (if any);

b) In the course of evaluation, the bid solicitor shall invite the contractor to discuss and clarify necessary issues related to the dossier of proposals in order to prove the satisfaction of requirements on capacity, schedule, quality, technical solutions and bidding package execution measures.

In the case where a change in the law regulations on value-added tax occurs at the time of applying direct procurement, the unit price of goods (inclusive of value-added tax) in the bidding package subject to direct procurement may not exceed the pre-tax value of the goods in the signed contract plus the value-added tax applicable at the time of direct procurement;

c) A contractor will be considered the bid-winning contractor if he/she/it meets the requirements specified in Article 61 of the Law on Bidding and the goods he/she/it offers are from the same manufacturer, country of origin or have the same code and brand as the previously bid-winning goods. In the case the goods have a newer production version or year compared to what is specified in the contract, how this situation is handled will be determined by Clause 27, Article 131 of this Decree.

6. Submission, appraisal, approval and publicization of direct procurement results:

a) The contractor selection result shall be appraised according to Clauses 1 and 4, Article 130 of this Decree before being approved;

b) The contractor selection result shall be approved on the basis of submissions for approval and reports on appraisal of the contractor selection result;

c) The contractor selection result shall be publicized in accordance with Article 31 of this Decree.

7. Finalization and conclusion of contracts and management of contract performance:

A contract concluded between relevant parties must conform to the decision approving the direct procurement result, dossier of requirements, dossier of proposals and other relevant documents. The finalization of contracts and management of contract performance shall comply with Articles 32 and 33 of this Decree.

Article 81. Self-execution process

1. Preparation of a self-execution plan and job assignment agreement or job assignment document:

A self-execution plan shall contain requirements on scope of work and tasks; value and performance duration; quality of tasks to be performed; acceptance and payment conditions; task assignment agreement or task assignment document for a unit conducting dependent accounting or an affiliate (hereinafter referred to as the unit assigned to execute the bidding package).

Payment of salaries, allowances, management expenses and other expenses shall be agreed upon by the project owner and the unit assigned to execute the bidding package.

2. Finalization of the self-execution plan:

The project owner and the unit assigned to execute the bidding package shall negotiate and finalize incomplete, unclear, irrelevant or inconsistent details of the self-execution plan, the draft job assignment agreement or job assignment document and other necessary details.

3. Approval and publicization of contractor selection result.

4. Conclusion of job assignment agreements; management of bidding package execution:

a) The organization directly managing and using the bidding package shall sign a task assignment agreement with the unit assigned to execute the bidding package or issue a task assignment document;

b) In the case where the law regulations require performance of certain tasks of a bidding package to be supervised, the organization directly managing and using the bidding package shall select, in accordance with the regulations of the Law on Bidding, a supervision consultant that is legally and financially independent from such organization to supervise the execution of the bidding package;

c) In the case where the law regulations do not so require or there is no interested independent supervision consultant or an independent supervision consultant cannot be selected because the bidding package is executed in an area with difficult economic and social conditions, if the bidding package's price is less than VND 01 billion, the organization directly managing and using the bidding package must supervise on its own.

 

Section 3
CONTRACTOR SELECTION IN SPECIAL CASES

 

Article 82. Documents, processes and procedures for contractor selection in special cases specified at Points a, b, c, and i, Clause 1, Article 29 of the Law on Bidding

1. In the cases specified at Points a and b, Clause 1, Article 29 of the Law on Bidding:

a) Authorities and units assigned by the Minister of Health shall formulate dossiers and submit them to the Minister of Health for consideration and decision on contractor selection plans in special cases;

b) The Minister of Health shall assign affiliated authorities and units to evaluate the dossiers before considering and deciding on the plans;

c) A dossier submitted for appraisal and approval of a plan on contractor selection in special cases shall consist of the submission and relevant documents. The submission for approval of the plan on contractor selection in special cases shall contain the details: basic information about the project, procurement estimate, bidding package (name of the project, procurement estimate, bidding package; funding sources and total investment in the project, estimated procurement value, bidding package's price; expected execution duration, and other necessary details); justification for the necessity and the specialized conditions for one or several processes, procedures, criteria for contractor selection, conditions for contract conclusion and performance, and other conditions (if any) resulting in non-compliance with the contractor selection conditions specified in Articles 21, 22, 23, 24, 25, 26, 27 and 28 of the Law on Bidding; draft contractor selection solutions, including the principal details: process and procedures for contractor selection; conditions for contract conclusion and performance, and other relevant details so as to meet the specialized conditions of the bidding package and project, thereby ensuring that a contractor with sufficient capacity, experience and a feasible and effective execution plan shall be selected.

2. In the case specified at Point c, Clause 1, Article 29 of the Law on Bidding:

a) Ministers or heads of ministerial-level authorities, Government-attached authorities, other central authorities (hereinafter referred to as heads of central authorities) or chairpersons of the provincial-level People's Committees shall formulate dossiers and submit them to the Prime Minister and at the same time to the Ministry of Planning and Investment for appraisal;

b) The dossier submitted to the Prime Minister shall consist of the submission and relevant documents. The submission for contractor selection in special cases shall contain the details: basic information about the project, procurement estimate, bidding package (name of the project, procurement estimate, bidding package; funding sources and total investment in the project, estimated procurement value, bidding package's price; expected execution duration); justification for the necessity and the specialized conditions for the national defense, security, diplomatic, and territorial border factors which must be ensure, thereby resulting in non-compliance with the contractor selection conditions specified in Articles 21, 22, 23, 24, 25, 26, 27 and 28 of the Law on Bidding; opinions of the Ministry of National Defense, Ministry of Public Security, and Ministry of Foreign Affairs on the national defense, security, diplomatic, and territorial border factors which must be ensure for the bidding package, project, and procurement estimate; opinions of other relevant authorities (if necessary);

c) Within 05 working days from the date of receiving a valid dossier as specified at Point b of this Clause, the Ministry of Planning and Investment shall send the dossier to relevant ministries and authorities to seek their opinions on the issues within their scope of State-level governance (if necessary). Within 07 working days from the date of receiving the request from the Ministry of Planning and Investment, the consulted authority must send their opinions to the Ministry of Planning and Investment;

d) Within 10 days from the date of receiving valid documents as specified at Point b of this Clause, the Ministry of Planning and Investment shall formulate an appraisal report and draft the Prime Minister's decision on contractor selection in special cases (if qualified) and then submit them to the Prime Minister for consideration and decision. The appraisal report shall evaluate the following issues: the necessity; whether specialized conditions for national defense, security, foreign affairs, and territorial border factors which shall be ensured are met or not; reasons for not being able to meet the conditions for contractor selection specified in Articles 21, 22, 23, 24, 25, 26, 27 and 28 of the Law on Bidding;

dd) The Prime Minister shall consider deciding to apply the form of contractor selection in special based on the dossiers submitted by heads of central authorities or chairpersons of provincial-level People's Committees and the appraisal reports by the Ministry of Planning and Investment;

The Prime Minister's decision on contractor selection in special cases shall contain: the bidding package of the project, procurement estimates subject to contractor selection in special cases; responsibilities of the competent person, project owner, bid solicitor and relevant authorities in the contractor selection process; other requirements during the execution of the bidding package and performance of the project (if any).

e) Based on the decision of the Prime Minister, heads of central authorities or chairpersons of the provincial-level People's Committees shall develop and approve their plans on contractor selection in special cases including the following main details: process and procedures for selecting contractors; conditions for signing and performing contracts and other relevant details to meet the specialized conditions of bidding packages and projects, thereby ensuring that contractors with sufficient capacity, experience and feasible and effective execution plans shall be selected.

3. In the case specified at Point i, Clause 1, Article 29 of the Law on Bidding:

a) Heads of central authorities or chairpersons of the provincial-level People's Committees shall formulate dossiers and submit them to the Government and at the same time to the Ministry of Planning and Investment for appraisal;

b) A dossier submitted for appraisal of the plan on contractor selection in special cases shall contain the details specified at Point c, Clause 1 of this Article;

c) Based on the request of the heads of the central authorities or the chairpersons of the provincial-level People's Committees and the appraisal report of the Ministry of Planning and Investment, the Government shall consider escalating to the Standing Committee of the National Assembly to decide on contractor selection in special cases. The process and procedures for formulating a draft Resolution to be submitted to the National Assembly’s Standing Committee shall comply with the Law on Promulgation of Legal Documents.

Article 83. Documents, processes and procedures for contractor selection in special cases specified at Points d, dd, e, g and h, Clause 1, Article 29 of the Law on Bidding

1. Heads of central authorities and provincial People's Committees shall consider and decide to apply the form of contractor selection in special cases for one or several cases specified at Points d, dd, e, g and h, Clause 1, Article 29 of the Law on Bidding and the respective selection processes as specified in Clauses 3, 4 and 5 of this Article generally to all bidding packages within the scope of management.

2. Based on the decision of the head of the central authority or the provincial-level People's Committee as specified in Clause 1 of this Article, the competent person and the project owner shall conduct contractor selection in accordance with Clauses 3, 4 and 5 of this Article.

3. For bidding packages in the case specified at Point d, Clause 1, Article 29 of the Law on Bidding:

a) An authority in charge of settling a lawsuit shall formulate criteria and terms of reference and a mechanism for controlling the law-practicing organization and lawyer in order to draw up a list of (at least 03) law-practicing organizations and/or lawyers to be hired. Only reputable and experienced law-practicing organizations and/or lawyers shall be listed;

b) An authority in charge of settling a lawsuit shall organize the negotiation for a legal service contract with the most advantageous law-practicing organization or lawyer based on terms of reference and conditions as well as the mechanism for controlling the law-practicing organization or lawyer in the lawsuit;

c) The head of the authority or unit in charge of settling a lawsuit shall approve and notify results of the law-practicing organization or lawyer selection;

d) The authority or unit in charge of settling a lawsuit shall finalize and sign a legal service contract with the selected law-practicing organization or lawyer.

4. In the cases specified at Points dd, e, g and h, Clause 1, Article 29 of the Law on Bidding, except for bidding packages specified in Clause 5 of this Article, the contractor selection process includes the following steps:

a) Formulation, appraisal and approval of contractor selection plans;

b) Negotiation on contracts with contractors with sufficient capacity and experience;

c) Approval and publicization of contractor selection result;

d) Finalization and conclusion of the contract with the contractor:

A contract must contain all requirements on scope and description of tasks to be performed, time of performance, required task quality and contract value;

dd) The uploading of information about contractor selection plans, contractor selection results and other bidding information shall comply with Article 7 and Article 8 of the Law on Bidding.

5. For bidding packages to purchase flight tickets for domestic and international working groups specified at Point dd, Clause 1, Article 29 of the Law on Bidding:

a) For groups on international working trips, based on the approved working plan and flight route, the authority or the unit to which funds are allocated and assigned to buy flight tickets shall take at least 02 price quotes of 02 different flight ticket agents (or quotes of 01 air ticket agent for at least 02 different airlines, including at least 01 official agent of the Vietnam Airlines) with the same flight route for consideration, comparison and selection of the flight ticket provider that meets the requirements that the flight is direct and suitable to the working plan, and the total amount of airfare (inclusive of taxes and surcharge), expenses for travel to/from and waiting at the airport is the lowest. The head of the authority or the unit to which funds are allocated and assigned to buy flight tickets that signs a contract with the service provider shall ensure thrift and efficiency and take responsibility for his/her decision. In case of changing flight routes abroad due to business needs, the head of the authority or the unit to which funds are allocated shall decide to purchase tickets based on the request of the head of the group;

b) For groups on domestic working trips:

The head of the authority or the unit to which funds are allocated and assigned to buy flight tickets that signs a contract with the service provider shall ensure thrift and efficiency and take responsibility for his/her decision;

c) The purchase of flight tickets for domestic and international working groups as specified at Points a and b of this Clause is not subject to the formulation, appraisal and approval of contractor selection plans.

 

Section 4

SELECTION OF CONTRACTORS FOR BIDDING PACKAGES EXECUTED WITH COMMUNITY PARTICIPATION

 

Article 84. Eligibility of residential communities, mass organizations or worker teams

1. Residential communities, mass organizations or worker teams in localities have the valid status to participate in the execution of the bidding packages specified in Article 27 of the Law on Bidding when residents of those communities, members of mass organizations or worker teams live and reside in the localities where the bidding packages are executed and benefit from those bidding packages.

2. The representative of a residential community, mass organization, or worker team must have full civil act capacity, not be examined for penal liability, and be selected by the community, mass organization or worker team to sign the contract on behalf of the latter.

Article 85. Process of selecting contractors being residential communities, mass organizations or worker teams

1. After the contractor selection plan is approved, the project owner shall draft a contract which contains requirements on the scope and description of the tasks to be performed, required quality and progress, contract price, rights and obligations of parties.

2. The project owner shall publicly upload up a notice of invitation for participation in bidding package execution at the office of the commune-level People’s Committee and notify such in commune-level mass media and places of community gathering for residential communities, mass organizations and worker teams to know. This notice should clearly state the time of the meeting to discuss the bidding package execution plan.

3. Interested residential communities, mass organizations and worker teams shall receive draft contracts for study and preparation of dossiers of capability, containing the details: full names, age groups, capacity and experience of members to participate in the bidding package execution relevant to characteristics of the bidding package.

4. The project owner shall consider and select the best residential community, mass organization or worker team and invite its representative to negotiate and sign the contract.

When only one residential community, mass organization or worker team expresses interest, the project owner shall consider appointing that community, organization, team to execute the bidding package. In the case where it is unable to appoint a residential community or mass organization to execute the bidding package or no residential community or mass organization expresses interest, the project owner shall appoint a worker team to execute the bidding package.

5. The period from the time of public notification of invitation for participation in bidding package execution to the time of contract signing is maximum 30 days.

6. The project owner shall publicize the result of selecting the residential community or mass organization or worker team on the Vietnam National E-Procurement System, at the commune-level People's Committees and commune-level communication systems.

Article 86. Advance, payment, supervision and takeover test of bidding packages

1. A residential community, mass organization or worker team may receive from the project owner advances and payments in cash or via bank transfer through its representative.

2. The project owner shall supervise the performance of the bidding package, and the commune-level People’s Committee and mass organizations shall participate in the supervision of the performance of the residential community, mass organization or worker team.

3. The project owner shall conduct a takeover test of the completed bidding package. Participants in a takeover test include:

a) Representative of the project owner;

b) Representative of the residential community, mass organization or worker team performing the bidding package;

c) Representative of the local community that benefits from the products and works of the bidding package;

d) Other participants decided by the project owner.

 

Chapter VI

CENTRALIZED PROCUREMENT, PROCUREMENT SUBJECT TO PROCUREMENT ESTIMATES, PROCUREMENT OF MEDICINES, CHEMICALS AND SUPPLIES FOR MEDICAL TESTS, MEDICAL EQUIPMENT

 

Section 1
CENTRALIZED PROCUREMENT

 

Article 87. Principles of centralized procurement

1. Centralized procurement shall be made through centralized procurement units of ministries, ministerial-level authorities, Government-attached authorities, other central-level authorities, provincial-level People’s Committees or enterprises, unless otherwise specified in Clause 5, Article 53 of the Law on Bidding. In the case where centralized procurement units are unqualified, bidding consultants shall be hired to conduct contractor selection.

2. For goods and services on the list that must apply centralized procurement under framework agreements, the unit with demand to procure goods or services must sign a contract with the contractor selected through centralized procurement. In the case where the framework agreement is still valid and a contract is signed with another contractor not selected through centralized procurement, payment shall not be made, unless otherwise specified in Clauses 22 and 23, Article 131 of this Decree.

Article 88. Responsibilities in centralized procurement

1. The centralized procurement unit shall discharge the responsibilities of the project owner specified in Article 78 of the Law on Bidding.

2. The immediate superior of the centralized procurement unit shall discharge the responsibilities of competent persons specified in Article 77 of the Law on Bidding.

Article 89. Centralized procurement process applying open bidding

1. Centralized procurement process:

Centralized procurement subject to open bidding shall comply with Article 22 and Article 34 of this Decree, including the following steps:

a) Determining the procurement volume:

Determining the volume of centralized procurement shall be based on the list of goods and services on demand sent by the unit with procurement demand to the centralized procurement unit or self-determined by the centralized procurement unit based on the actual volume and usage of the previous procurement period. For procurement of assets under the Law on Management and Use of Public Property, except for medicines, chemicals and supplies for medical tests, and medical equipment, the determination of centralized procurement volume shall be based on the list of goods, services on demand sent by the unit with the procurement demand to the centralized procurement unit in accordance with law regulations on management and use of public assets.

The centralized procurement and price negotiation unit shall consolidate the procurement demands of private medical examination and treatment establishments (if any) and organize the procurement of medicines, chemicals and supplies for medical tests, and medical equipment for private medical examination and treatment establishments in accordance with the same regulations applicable to local public medical examination and treatment establishments;

b) The formulation, appraisal and approval of contractor selection plans shall comply with Articles 37, 38, 39 and 41 of the Law on Bidding;

c) The contractor selection must comply with Article 26 and Article 38 of this Decree.

In the case where it is necessary to select more than 01 bid-winning contractor for 01 part or 01 unsplit bidding package, the bidding dossier must specify bidding conditions, methods for evaluation and ranking of contractors;

d) The evaluation of bid dossiers must comply with Articles 27, 28, 29, and 30 or Articles 39, 40, 41, 42 and 43 of this Decree;

dd) The submission, appraisal, approval and publicization of the contractor selection result, and explanation of the reasons why the contractors are not selected upon request of such contractors must comply with Articles 31 and 44 of this Decree;

e) Finalizing and concluding the framework agreement:

The centralized procurement unit and the bid-winning contractor shall finalize the framework agreement as specified in Article 90 of this Decree to serve as a basis for signing the framework agreement. In the case where a contractor wins multiple parts of a bidding package or wins many different bidding packages, the contractor must submit a commitment to ensure that the contractor has enough capacity and experience to complete the work according to the quality and performance schedule. Such commitment is part of the contract;

g) Finalizing, signing and performing the contract with the bid-winning contractor:

In the case where the centralized procurement unit directly signs a contract with the bid-winning contractor, the signing of a framework agreement in accordance with Point e of this Clause is not required. The contractor that signed the framework agreement shall provide contract performance security to the unit with the procurement demand before or at the time the contract takes effect. The contractor shall take measures to ensure contract performance for each unit with procurement demand or for all parts for which the contractor signs a contract using the form specified in the bidding dossier or another form approved by the project owner.

The unit with procurement demand shall notify the centralized procurement unit in the case where the contractor fails to sign the contract. The contractor has signed a framework agreement and has been requested by the unit with procurement demand to sign a contract, but does not sign the contract and does not take measures to ensure contract performance, unless such failure is due to force majeure, his/her/its account on the Vietnam National E-Procurement System shall be locked in a period of 06 months from the date the Ministry of Planning and Investment receives the written request from the centralized procurement unit;

h) Finalizing and liquidating the contract.

2. Depending on its size and characteristics, a bidding package may be divided into different parts for holding bidding to select one or more than one bid-winning contractor.

3. In the case where it is necessary to select more than one bid-winning contractor for one part or one unsplit bidding package, the bidding dossier may specify one of the following ways to select the contractors:

a) Selecting contractors based on supply ability:

Contractors are allowed to offer based on their ability to provide goods and services. They are not required to offer the full quantity or volume in the bidding dossier. Depending on the ability to provide goods and services of each contractor that has offered, the project owner shall evaluate and select a combination of contractors in the descending order of their rankings according to the evaluation criteria stated in the bidding dossier. The list of bid-winning contractors shall ensure that the total quantity of goods offered by the bid-winning contractors is equal to the quantity of goods stated in the bidding dossier as well as ensure that the total proposed winning bid of the bidding package is the lowest (for the bidding package subject to the lowest bid method); the total evaluated price of the bidding package is the lowest (for the bidding package subject to the evaluated price method), the total score of the bidding package is the highest (for the bidding package subject to the method of combined techniques and bids) and the proposed winning bid of the whole bidding package does not exceed its approved price.

The unit with procurement demand or the centralized procurement unit shall sign the contract with a contractor following the order of priority in the list of ranked contractors. In the case where the higher ranked contractor does not agree to sign the contract, the unit with procurement demand or the centralized procurement unit may sign a contract with the adjacent ranked contractor.

In the case where a higher ranked contractor refuses to provide goods or services without a legitimate or force majeure reason, or breaches the framework agreement or the contract, such breach of contract shall be handled in accordance with the framework agreement or the contract. The contractor that breaches the contract shall be fined in accordance with the contract, shall not be refunded the contract performance guarantee, and shall have information about the results of contract performance publicized and uploaded on the Vietnam National E-Procurement System;

b) Selecting contractors based on bidding volume:

The contractor selection shall be based on the evaluation criteria stated in the bidding dossier as specified in Articles 24 and 35 of this Decree. Contractors may offer for the volume and quantity required in the bidding dossier. The list of approved bid-winning contractors shall include the main contractor (first ranked contractor) and contingency contractors (second ranked contractor onwards). In the case where the main contractor breaches the contract and cannot provide the goods or services with the quantity and volume as specified in the signed framework agreement or contract, the centralized procurement unit or the unit with procurement demand shall terminate the contract with such contractor and invite the second-ranked contractor (contingency contractor) to finalize and sign a framework agreement or a contract and require the contractor to reinstate his/her/its bid dossier and bid security as a basis for signing the new agreement or contract. In the case where the second-ranked contractor refuses to finalize and sign the contract, how this situation is handled will be determined by Clause 16, Article 131 of this Decree. The former bid-winning contractor that breaches the contract shall be fined in accordance with the contract, shall not be refunded the contract performance guarantee, and shall have information about the results of contract performance publicized and uploaded on the Vietnam National E-Procurement.

Article 90. Details of a framework agreement

1. Depending on the size and characteristics of a bidding package, a centralized procurement unit shall specify details of the framework agreement in the bidding dossier as appropriate, which must cover the principal details specified in Clause 2 of this Article.

2. Principal details of a framework agreement:

a) Scope of supply of goods and provision of services;

b) Tentative time and place of goods delivery or service provision;

c) Conditions for goods or service delivery; advance, payment and contract liquidation;

d) Price of each type of goods or service;

dd) Warranty and maintenance conditions; training and instructions for use of goods or services;

e) Responsibilities of contractors providing goods and services, including responsibility for signing and performing the contract and taking measures to ensure contract performance with the unit with the procurement demand;

g) Responsibilities of the unit with the procurement demand for signing the contract and using goods and services;

h) Responsibilities of the centralized procurement unit;

i) Effective time of the framework agreement;

k) Penalties and compensation due to breach of contract;

l) Other relevant details.

 

Section 2
PROCUREMENT SUBJECT TO PROCUREMENT ESTIMATES

 

Article 91. Procurement decision-making competence

1. Competence to decide on asset procurement:

a) The decision-making competence for procurement of public property in authorities and units shall comply with law regulations on management and use of public property;

b) Heads of central authorities shall decide or specify the competence to decide on the procurement of assets belonging to science and technology tasks funded by the State budget;

c) The provincial-level People's Councils shall decide or specify the competence to decide on the procurement of assets belonging to science and technology tasks funded by the State budget with respect to the funding sources under local management.

2. Competence to decide on the procurement of goods and services other than those specified in Clause 1 of this Article:

a) Heads of central authorities shall decide by themselves or specify the competence to decide on the procurement funded by science and technology funding sources under central management (including procurement at the authorities and units under central management and other authorities, organizations, units and individuals performing scientific and technological tasks not under central management);

b) Provincial-level People's Councils shall decide by themselves or specify the competence to decide on the procurement funded by science and technology funding sources under local management (including procurement at the authorities and units under local management and other authorities, organizations, units and individuals performing scientific and technological tasks not under local management);

c) Heads of estimating units at all levels shall decide on procurement for bidding packages and procurement items whose value falls within the scope decided, or for which the decision-making competence is specified, by competent authorities and may decide on procurement for bidding packages and procurement items with the value of not more than VND 200 million;

d) Heads of central authorities and provincial-level People's Councils shall decide by themselves or specify the competence to decide on procurement to serve the operations of public non-business units under their management.

Article 92. Procurement process

1. The contractor selection subject to the procurement estimate shall comply with the procedures specified in Chapters I, II, III, IV, V, VI and VII of this Decree, without the need to submit the procurement decision for approval.

2. For goods on the list for which the Government or the Prime Minister sets standards and norms or decides on the decentralization of competence to set standards and norms, the condition for the winning bid to be approved is that the proposed winning bid of the contractor for each type of goods does not exceed the price of such type of goods according to the standards and norms issued by competent authority.

 

Section 3
PROCUREMENT OF MEDICINES, CHEMICALS AND SUPPLIES FOR MEDICAL TESTS AND MEDICAL EQUIPMENT

 

 

Article 93. Selection of contractors based on quantity of technical services

1. The selection of contractors to provide a complete package of medical equipment, chemicals, supplies for medical tests, and accompanying services (excluding operating personnel) shall be carried out in accordance with Point b, Clause 1, Article 55 of the Law on Bidding. A bidding dossier consists of the following documents:

a) Technical requirements for equipment; Requirements for software to operate and calibrate equipment;

b) Requirements on shelf life of chemicals and supplies for medical tests;

c) A list of all chemicals, supplies for medical tests and accompanying supplies needed to perform each technical service; packaging specifications for these goods;

d) The bid price sheet that is formulated based on the expected quantity of technical services and the unit price quoted by contractors for each technical service. This unit price is the total cost to carry out the bidding package for each technical service, including costs for medical equipment, chemicals, supplies for medical tests; component warranty, maintenance, and replacement services; installation, training, instructions for use; chemicals, supplies for medical tests, and necessary accompanying supplies for testing the quality of technical services and calibrating equipment; backup equipment (if any); chemicals and supplies for sample tests, and other relevant costs for implementing the bidding package. The project owners shall not have to bear any costs other than the package cost determined based on the quantity of technical services and unit price in contracts;

dd) Requirements for contractors on warehousing and storage of chemicals and supplies for medical tests to ensure that technical services are performed continuously and without interruption;

e) Requirements for installation and testing of quality and parameters of technical services;

g) Warranty and maintenance requirements, including periodic equipment maintenance;

h) Requirements for backup equipment and arrangement of backup equipment at medical establishments (if any);

i) Other necessary contents.

2. Contractors must allocate all costs of implementing the bidding package specified at Point d, Clause 1 of this Article into the unit price for each technical service and must not pay for any costs other than the costs determined based on the quantity of technical services and unit price in contracts.

3. A bidding package may be divided into parts corresponding to one or several types of technical services. Health examination and treatment establishments may consolidate the needs of other health examination and treatment establishments to make a bidding package.

4. The contract performance duration must not exceed 60 months. In the case where the two parties agree to apply additional procurement options, the project owner shall report to the competent person to consider and decide on amending the contract to correspondingly extend the contract performance duration for additional work volume but not exceeding 18 months.

5. In the case where the contract performance duration expires but the quantity of technical services stated in the contract has not been performed, the project owner may report to the competent person to consider and decide on extension of the contract performance duration but not exceeding 12 months.

6. In all cases, the extension of the contract performance duration specified in Clauses 4 and 5 of this Article must ensure that the total contract extension duration does not exceed 18 months.

Article 94. Procurement of medicines, chemicals and supplies for medical tests, and medical equipment

1. The contractor appointment for bidding packages specified at Point c, Clause 1, Article 23 of the Law on Bidding shall be carried out in the following cases:

a) Emergency bidding packages that need to be immediately executed in order to serve epidemic prevention and control:

Bidding packages for consultancy service and non-consultancy services, or bidding packages for procurement of medicines (including vaccines and biological products), chemicals, supplies for medical tests, medical equipment (including vaccination supplies), components, spare parts, means, and construction that need to be immediately executed to serve epidemic prevention and control under written directives of competent authorities (competent state management agencies in health or administrations at all levels), or under decisions on epidemic declaration for an infectious disease, or at a locality’s requests to declare an group-A infectious disease in accordance with the law regulations;

Bidding packages for consultancy service and non-consultancy services, or bidding packages for procurement of medicines, chemicals, supplies for medical tests, medical equipment, components, spare parts, means, and construction for establishing, renovating, and building treatment areas and field hospitals that need to be executed to serve epidemic prevention and control but medical examination and treatment establishments do not have adequate medicines, chemicals, supplies for medical tests, medical equipment, components, spare parts and means;

Bidding packages for consultancy service and non-consultancy services, or bidding packages for procurement of medicines, chemicals, supplies for medical tests, medical equipment, components, spare parts, means and construction for serving diplomatic corps and supporting countries in epidemic prevention and control that need to be immediately executed to meet practical requirements and at the request of competent authorities;

b) Emergency bidding packages that need to be immediately executed in order to maintain the operation of medical examination and treatment establishments, including bidding packages for consultancy service and non-consultancy services, or bidding packages for procurement of medicines, chemicals, supplies for medical tests, medical equipment, components, spare parts, means and construction, in which the failure to immediately execute such packages may cause harms to the people’s life and health;

c) In case of giving first aid to patients in emergency situations in accordance with the Law on Medical Examination and Treatment (if any) including bidding packages for consultancy service and non-consultancy services, or bidding packages for procurement of medicines, chemicals, supplies for medical tests, medical equipment, components, spare parts, means and construction that need to be executed in case of unexpected needs or no replacement items, or in order to prevent harms to the patients’ life and health;

d) Other cases as guided by the Ministry of Health (if any).

2. In the case where medicines, medical equipment, and supplies for medical tests are on lists of centralized procurement in contractor selection plans approved by competent authorities but the contractor selection results are not available or the winning contractor cannot be selected or when the framework agreement of centralized procurement bidding package expires, medical examination and treatment establishments may procure according to the notice of units assigned to centralized procurement to meet usage needs but not exceeding 12 months in one of the following forms of contractor selection: open bidding, restricted bidding, contractor appointment, direct procurement, online quotation, online procurement, competitive offer in accordance with the Law on Bidding and this Decree, and may be paid by the health insurance fund at the contract price; In the case where the winning results of centralized procurement are available, the project owner may continue to procure under the contract signed with the contractor.

3. The Ministry of Health shall organize the centralized procurement of medicines at the national level, and assume the prime responsibility for and coordinate with the Ministry of Finance and Vietnam Social Security in price negotiation. In the case where price negotiation is applied, the contractor invited to negotiate must satisfy the eligibility requirements specified at Points a, b, c, d, e, g and i, Clause 1, Article 5 of the Law on Bidding.

4. Regarding the selection of contractors for procurement of medicines, Vietnam Social Security shall assume the following responsibilities:

a) Participating in the appraisal process of contractor selection plans for centralized procurement and price negotiation;

b) Publicizing the price of each selected medicine covered the health insurance fund of each hospital, locality, and the Ministry of Health on the website of Vietnam Social Security.

Article 95. Payment for procurement of medicines, chemicals, supplies for medical tests and medical equipment for private medical examination and treatment establishments

1. A private medical examination and treatment establishment may summarize and send its needs for procurement of medicines, chemicals, supplies for medical tests and medical equipment to a centralized procurement unit in the locality where the establishment is headquartered for centralized procurement (national and local level) and price negotiation. When summarizing its centralized procurement needs, the private medical examination and treatment establishment shall develop a local plan on use of medicines, chemicals, supplies for medical tests and medical equipment in compliance with regulations on bidding for centralized procurement of medicines, chemicals, supplies for medical tests, and medical equipment as those applicable to public medical examination and treatment establishments in the locality.

In the case where a private medical examination and treatment establishment wishes to procure medicines, chemicals, supplies for medical tests, or medical equipment through a centralized procurement unit, the establishment shall sign a contract with the centralized procurement unit.

2. Private medical examination and treatment establishments that do not summarize their needs for centralized procurement and price negotiation in accordance with Clause 1 of this Article shall organize their own contractor selection for procurement of medicines, chemicals, supplies for medical tests and medical equipment. Payment for medicines, chemicals, supplies for medical tests, and medical equipment on the lists covered by the health insurance fund shall be made in accordance with Clauses 3, 4, 5 and 6 of this Article.

3. Private medical examination and treatment establishments that use medicines on the list of medicines covered by the health insurance fund to serve medical examination and treatment shall be paid by the health insurance fund at the medicine procurement price but not exceed the bid-winning unit price of central or provincial-level public medical examination and treatment establishments or medical examination and treatment establishments at the same technical and professional level in the same locality for medicines of the same trade name, manufacturer, origin, concentration, content, route of administration, group of technical criteria, dosage form, and measurement unit.

In the case where there is no winning unit price in the same locality mentioned above, the determination of the unit price for payment shall be based on the bid-winning unit price of medicines with the same trade name, manufacturer, origin, concentration, content, route of administration, group of technical criteria, dosage form, and measurement unit in the following order of priority:

a) Results of national centralized procurement, and results of price negotiation;

b) Results of centralized procurement in the area;

c) Bidding results of central and provincial-level public medical examination and treatment establishments or medical examination and treatment establishments at the same technical and professional level in neighboring localities;

d) Bidding results of central and provincial-level public medical examination and treatment establishments or medical examination and treatment establishments at the same technical and professional level in Hanoi and Ho Chi Minh city.

4. Regarding chemicals, supplies for medical tests and medical equipment, private medical examination and treatment establishments may make payment according to the procurement price of chemicals, supplies for medical tests, medical equipment, or based on their manufacturer, origin and technical criteria but not exceeding the bid-winning unit price of provincial- or central-level public medical examination and treatment establishments or medical examination and treatment establishments at the same technical and professional level in the same locality for the same medicals, supplies for medical tests, and medical equipment.

In the case where there is no winning unit price in the same locality mentioned above, the determination of the unit price for payment shall be based on the bid-winning unit price of chemicals, supplies for medical tests, and medical equipment of the same manufacturer, origin, technical criteria in the following order of priority:

a) Results of national centralized procurement, and results of price negotiation;

b) Results of centralized procurement in the area;

c) Bidding results of provincial and central-level public medical examination and treatment establishments or medical examination and treatment establishments at the same technical and professional level in neighboring localities;

d) Bidding results of provincial and central-level public medical examination and treatment establishments or medical examination and treatment establishments at the same technical and professional level in Hanoi city and Ho Chi Minh city.

5. In the case where a private medical establishment chooses to apply the Law on Bidding in organizing the contractor selection for procurement of medicines, the payment shall be based on the results of contractor selection but not exceed the bid-winning unit price in the same locality, or centralized procurement results, or price negotiation results, or bidding results in neighboring localities, Hanoi city and Ho Chi Minh city according to the principles specified in Clause 3 of this Article.

6. In the case where a private medical establishment chooses to apply the Law on Bidding in organizing the contractor selection for procurement of chemicals, supplies for medical tests, and medical equipment, the payment shall be based on the results of contractor selection but not exceed the bid-winning unit price in the same locality, or centralized procurement results, or price negotiation results, or bidding results in neighboring localities, Hanoi city and Ho Chi Minh city according to the principles specified in Clause 4 of this Article.

 

Chapter VII

ONLINE SELECTION OF CONTRACTORS

 

Section 1

ONLINE BIDDING

 

Article 96. Connecting the Vietnam National E-Procurement System with other systems

1. Connecting with the National Information System for registration of enterprises, cooperatives, and business households:

a) The Vietnam National E-Procurement System receives information on registration of enterprises, cooperatives, and business households to serve the registration of participation and operations of contractors on the Vietnam National E-Procurement System;

b) The Vietnam National E-Procurement System uses information on the legal status, financial statements, and other information of enterprises, cooperatives and business households in the National Information System for registration of enterprises, cooperatives, and business households to evaluate dossiers for participation in prequalification, dossiers of expression of interest and bid dossiers, and consider and approve bid winners. Data shared between the National Information System for registration of enterprises, cooperatives, and business households and the Vietnam National E-Procurement System shall be updated on a regular and continuous basis;

c) The Ministry of Planning and Investment shall develop, manage, and guide the implementation of connection among the Systems specified at Points a and b of this Clause.

2. Connecting with the Tax Administration Information System:

a) The Vietnam National E-Procurement System uses information on tax payment obligations and financial statements of organizations, enterprises, and business households in the National Information System for registration of enterprises, cooperatives, and business households to evaluate dossiers of expression of interest, dossiers for participation in prequalification, and bid dossiers, and consider and approve bid winners;

b) Information on tax payment obligations and financial statements of organizations, enterprises, and business households shall be updated on a regular and continuous basis;

c) The Ministry of Finance and the Ministry of Planning and Investment shall organize the connection of the Tax Administration Information System with the Vietnam National E-Procurement System via the National Information System for registration of enterprises, cooperatives, and business households; and manage received information in accordance with the law on management, connection and sharing of digital data of state authorities.

3. Connecting with the Budget and Treasury Management Information System:

a) The Vietnam National E-Procurement System shares information on contracts, implementation progress, chart showing completed quantities, and payment progress of contracts to serve the management of contract execution, contract payment, management of capacity and experience of contractors, and contract performance results of contractors;

b) The Ministry of Finance and the Ministry of Planning and Investment organize the connection of the Budget and Treasury Management Information System with the Vietnam National E-Procurement System; and manage received information in accordance with the law regulations on management, connection and sharing of digital data of state authorities.

4. The Vietnam National E-Procurement System is connected to Vietnam Social Security, portals and other systems to simplify the bidding process, contract management, and contract payment.

Article 97. Process of online selection of contractors

1. The formulation, appraisal, and approval of a dossier of invitation to pre-qualification, dossier of invitation for expression of interest, or bidding dossier shall comply with Articles 23, 24, 25, 35, 36, 37, 60, 61 and 62 of this Decree.

a) Regarding the required contents in the datasheet, criteria for evaluation of validity of the dossier, capacity and experience in the dossier of invitation to pre-qualification or bidding dossier of bidding packages for goods procurement, construction, and non-consultancy services, the project owner and the bid solicitor may not attach request files other than the contents that have been digitized in webforms on the Vietnam National E-Procurement System;

b) Regarding the required contents in the datasheet, criteria for evaluation of validity of the dossier, capacity and experience in the dossier of invitation for expression of interest or bidding dossier of bidding packages for consultancy services, the project owner and the bid solicitor may not attach request files other than the contents that have been digitized in webforms on the Vietnam National E-Procurement System.

2. The criteria for evaluation of a dossier of invitation to pre-qualification, dossier of invitation for expression of interest, or bidding dossier shall comply with Articles 23, 24, 35, 36, 60 and 61 of this Decree.

3. The principles for evaluation of a bidding dossier shall comply with Clauses 1, 2, 3, 4, 6, 7 and 8, Article 27, Clause 1, Article 39 and Clauses 1 and 2, Article 64 of this Decree.

Regarding a bidding dossier of bidding packages for procurement of goods and non-consultancy services according to the single-stage single-envelope method using the lowest price method, and bidding dossiers without any incentives, the Vietnam National E-Procurement System automatically ranks contractors according to bid prices; The evaluation of the bidding dossier may be carried out against the first ranked contractor. In the case where the first ranked contractor is not qualified, the next lower-ranked contractor may be evaluated.

4. The clarification of a bidding dossier shall be carried out through the Vietnam National E-Procurement System in accordance with Clauses 1, 3, 4, 5, Article 28 and Clauses 1, 3, 4, 5, Article 65 of this Decree.

5. The error correction and deviation correction shall be carried out in accordance with Articles 29 and 66 of this Decree.

6. Dossiers of invitation for expression of interest, dossiers of invitation to prequalification, bidding dossiers, shortlists and contractor selection results shall be approved on the Vietnam National E-Procurement System according to the roadmap specified at Point d, Clause 8 of this Article.

7. Contractors shall be responsible for monitoring and updating information on the Vietnam National E-Procurement System for bidding packages that the contractors are interested in or participate in. In case of errors due to failure to monitor and update information on the Vietnam National E-Procurement System, causing disadvantages for the contractors during the bidding process, including: changing or modifying dossiers of invitation for expression of interests, dossiers of invitation to prequalification, bidding dossiers, bid closing time, contract negotiation time and other contents, the contractors must assume the responsibility and bear disadvantages during the bidding process.

8. Online selection of contractors from the effective date of this Decree until December 31, 2024 shall be carried out according to the following roadmap:

a) Organizing the online selection of contractors for all (100%) bidding packages of investment projects applying open bidding, restricted bidding, and domestic competitive offer in the field of goods, construction, non-consultancy services, consultancy services with a bidding package price not exceeding VND 500 billion, except for mixed bidding packages or bidding packages applying the two-stage single-envelope method, two-stage two-envelope method, or international bidding;

b) The organization of online selection of contractors during the year must ensure that the total number of bidding packages applying the online selection of contractors reaches at least 95% of the number of bidding packages, and at least 90% of the total value of bidding packages applying open bidding, restricted, domestic competitive offer, except for mixed bidding packages or bidding packages applying the two-stage single-envelope method, two-stage two-envelope method, or international bidding;

c) Organizing the online selection of contractors for all (100%) bidding packages included in the procurement estimates applying open bidding, restricted bidding, and domestic competitive offer, except for mixed bidding packages or bidding packages applying the two-stage single-envelope method, two-stage two-envelope method, or international bidding;

d) Regarding bidding packages applying the online selection of contractors, dossiers of invitation for expression of interest, dossiers of invitation to prequalification, bidding dossiers, shortlists and contractor selection results shall be approved on the Vietnam National E-Procurement System from December 1, 2024.

9. Cases in which bidding is not carried out on the Vietnam National E-Procurement System as specified in Clause 5, Article 50 of the Law on Bidding:

a) Bidding packages apply the two-stage single-envelope method, two-stage two-envelope method, or international bidding;

b) Bidding packages apply the forms of contractor appointment, direct procurement, self-implementation, price negotiation, contractor selection in special cases, or bidding packages are executed with community participation and selection of individual consultants according to the fast-track procedures. For such forms of contractor selection, the e-contract signing shall be carried out on a basis consistent with the features and development of the Vietnam National E-Procurement System;

c) Projects, procurement estimates, bidding packages contain confidential contents, in which the publicization of information on the Vietnam National E-Procurement System may affect community interests or cause harms to social order and safety, national defense and security, foreign affairs, and territorial borders.

In case of publicizing information on projects, procurement estimates, bidding packages, contractor selection plans, dossiers of invitation for expression of interests, dossiers of invitation to prequalification, bidding dossiers, and contractor selection results in accordance with Article 8 of the Law on Bidding that may lead to the consequences specified in this Point, project owners shall report to competent persons to consider and approve to not organize online bidding in the contractor selection plans.

In the case where some information on projects, procurement estimates, bidding packages, dossiers of invitation for expression of interests, dossiers ò invitation to prequalification, bidding dossiers need to be kept confidential and the remaining information may be publicizing, project owners shall report to competent persons on the information provision methods. Confidential information shall not be publicized on the Vietnam National E-Procurement System; other information may be publicized for the online selection of contractors;

d) Bidding packages exceed the technical infrastructure capacity of the Vietnam National E-Procurement System;

dd) Other bidding packages as specified by the law regulations.

 

Section 2

ONLINE QUOTATIONS

 

Article 98. Conditions for applying online quotations

1. Online quotations include online quotation according to the normal procedures and online quotation according to the fast-track procedures.

2. Online quotation according to the normal procedures shall apply to:

a) Ordinary and simple non-consultancy service bidding packages;

b) Bidding packages for procurement of ordinary goods that are available in the market with standardized technical properties and of equivalent quality; or goods that are competitive regarding suppliers; or goods for which the most important evaluation standard is price, with no or little impact of life cycle costs;

c) Groups of goods and services that may apply online quotations include: raw materials, fuel, basic construction materials (iron ore, road aggregate, building materials, copper pipes and other raw materials); standardized information technology equipment including computers, ink cartridges, modems and other equipment; printing paper, photocopy paper, simple supplies, light bulbs; purchase of commercial software use rights; energy, coal or gas; chemicals; shipping services; cleaning service; maintenance service; other goods and services that meet the provisions of Points a and b of this Clause.

3. Online quotation according to the fast-track procedures may apply to:

a) Bidding packages for procurement of goods and provision of non-consultancy services with a price not exceeding VND 300 million for procurement estimates;

b) Bidding packages under investment projects of state-owned enterprises, enterprises with 100% charter capital held by state-owned enterprises and investment projects in accordance with the Law on Public Investment, including: bidding packages for procurement of goods, and provision of non-consultancy services with a price not exceeding VND 01 billion;

c) Bidding packages for procurement of goods and provision of non-consultancy services that must be procured from a specific manufacturer to ensure compatibility in technology and copyright with available equipment, machinery, software, services or due to the manufacturer's warranty conditions, such bidding packages cannot be procured from another manufacturer, and such bidding packages have many capable contractors.

Article 99. Principles of online quotations

1. Contractors may continuously change prices and non-price determinants (if any) during the online quotation period. The prices and non-price determinants (if any) offered by contractors shall be publicized on the Vietnam National E-Procurement System during the quotation process, except the contractors’ names. The Vietnam National E-Procurement System shall automatically rank and publicize the ranking order of the contractor corresponding to the prices and non-price determinants (if any) during the online quotation period; and remaining time of the online quotation process.

2. In the case where the bid price is the only factor that may be re-offered, and the bidding package is evaluated according to the lowest price method but there are multiple contractors offering the lowest price, the first contractor with the lowest price shall win the bid.

3. In the case where the lowest price method is not applied and the Vietnam National E-Procurement System automatically ranks the contractor according to the criteria evaluation in the bidding dossier and there are multiple contractors ranked first, the first contractor ranked first shall win the bid.

4. Online quotations must be ended during business hours.

5. The offered bid must not be higher than the bidding package price and the lowest offered price if the bid is the only factor being re-offered. In the case where the bid price after discount (if any) of all contractors that meet the technical requirements exceeds the bidding package price and no contractor participates in online quotation according to the normal procedures, project owners shall respond to arising eventuality in accordance with Point b or Point c or Point d, Clause 8, Article 131 of this Decree.

Article 100. Online quotations according to the normal procedures

1. On the basis of the approved contractor selection plan, the organization of online quotations according to the normal procedures shall be carried out at the financial evaluation step, as a basis for comparing bid dossiers and ranking contractors.

2. Preparation for contractor selection:

The preparation, appraisal and approval of bidding dossiers must comply with Articles 24 and 25 of this Decree. For bidding packages with a price of less than VND 05 billion, the time period for preparing bid dossiers is at least 05 working days, counted from the first date of distribution of the bidding dossier to the date of bid closing.

3. In addition to the contents specified in Article 24 of this Decree, bidding dossiers must also comprise at least the following information related to the online bidding process:

a) Notification of application of online quotation in the contractor selection process;

b) Non-price determinants that contractors may change (if any) and conversion formula to compare and rank contractors.

4. Organization of contractor selection:

The organization of contractor selection shall be carried out in accordance with Article 26 of this Decree.

5. Evaluation of bid dossiers and organization of online quotations:

a) Bid dossiers shall be evaluated in accordance with Article 97 of this Decree;

b) List of technically eligible contractors shall be appraised and approved. Based on the list of contractors that meet technical requirements, the bid solicitor shall send a notification of invitation for participation in online quotation on the Vietnam National E-Procurement System to contractors on the list within a minimum period of 03 working days before the starting date of online quotation. A notification of invitation for participation in online quotation includes the following contents: online quotation starting time; principles for ranking contractors, including mathematical formula used in the online quotation process (if any) to automatically rank contractors on the basis of the bid price along with other factors in the online quotation session; price step (the minimum difference of the next quotation compared to the previous quotation); online quotation ending time; other relevant information (if any);

c) Contractors shall decide on participation in online quotation according to the bid solicitor’s notification. In the case where contractors are invited to participate in online quotation but they do not participate, their bid dossiers are continued to be financially evaluated based on the bid dossiers submitted before the bid closing time.

6. Recording of online quotation results:

a) Contractors participate in online quotation on the Vietnam National E-Procurement System. The minimum online bidding duration is 03 hours, counted from the starting time of online quotation;

b) The Vietnam National E-Procurement System records the final quotation of each contractor at the ending time of the online quotation, and the contractor ranking list;

c) Consideration and approval of bid winners shall be carried out in accordance with Article 61 of the Law on Bidding based on the first-ranked contractor’s bid price and non-price determinants (if any) at the ending time of the online quotation.

7. Submission, appraisal, approval and publicization of the contractor selection result:

The submission, appraisal, approval and publicization of the contractor selection result must comply with Article 31 of this Decree.

8. Finalization and conclusion of contracts and management of contract performance:

The contract concluded between relevant parties must conform to the decision approving the contractor selection result, bidding dossiers, bid dossiers and other relevant documents. The finalization and conclusion of contracts and management of contract performance shall comply with Articles 32 and 33 of this Decree.

Article 101. Online quotations according to the fast-track procedures

1. Preparation of a notification of invitation for bids based on the approved contractor selection plan:

A notification of invitation for bids includes the following information:

a) Specific requirements on origin, marking, brand, manufacturer, technical specifications of goods, delivery time, warranty and other necessary contents (if any) for bidding packages for goods procurement; scope of work, technical requirements, execution duration, service completion time and other necessary contents (if any) for bidding packages for non-consultancy services;

b) Starting time of online quotation, principles for ranking contractors, price step, ending time of online quotation and other relevant information (if any);

c) Requirements for bidding guarantee shall not be stated.

2. After the project owner approves the notification of invitation for bids, the bidding solicitor shall post the notification of invitation for bids on the Vietnam National E-Procurement System at least 03 working days before the starting date of online quotation. The minimum online quotation duration is 24 hours, counted from the starting of online quotation.

3. Contractors shall directly participate in online quotation on the Vietnam National E-Procurement System to bid for the contents identified in the notification of invitation for bids and may make quotation within the time limit specified in the notification of invitation for bids.

4. To participate in online quotation, contractors must commit in their bid application to satisfying the requirements in the notification of invitation for bids. In the case where the bid winners fail to comply with their commitments, they shall be handled according to such commitments (having their names publicized on the Vietnam National E-Procurement System and having their accounts locked within 06 months from the date on which the Ministry of Planning and Investment receives the project owner's written request), excluding force majeure.

5. Recording of online quotation results:

a) The Vietnam National E-Procurement System shall record the final quotation of each contractor at the ending time of the online quotation, and the contractor ranking list;

b) Consideration and approval of bid winners shall be carried out in accordance with Article 61 of the Law on Bidding based on the first-ranked contractor’s bid price at the ending time of the online quotation.

6. Submission, appraisal, approval and publicization of the contractor selection result:

The submission, appraisal, approval and publicization of the contractor selection result must comply with Article 31 of this Decree.

7. Finalization and conclusion of contracts and management of contract performance:

The contract concluded between relevant parties must conform to the decision approving the contractor selection result, bidding dossiers, bid dossiers and other relevant documents. The finalization and conclusion of contracts and management of contract performance shall comply with Articles 32 and 33 of this Decree.

 

Section 3

ONLINE PROCUREMENT

 

Article 102. Forms of online procurement

1. Online procurement must be approved in the contractor selection plan and applied to goods and services of bidding packages included in the procurement estimate, with a price not exceeding VND 100 million; bidding packages for procurement of goods and services under investment projects of state-owned enterprises, enterprises with 100% charter capital held by state-owned enterprises and investment projects under the Law on Public Investment, with a price not exceeding VND 01 billion.

2. The application duration of online procurement for items in the list of goods and services for centralized procurement is the contract performance duration if a framework agreement is not concluded, but not exceeding 12 months from the effective date of the contract or the framework agreement.

Article 103. Online procurement process

1. The Vietnam National E-Procurement System automatically extracts information about the contractor selection result for centralized procurement on the list of goods and services applying online procurement.

2. Based on the list of goods and services specified in Clause 1 of this Article, the project owner and the bid solicitor having the demand for online procurement may order goods and services directly on the Vietnam National E-Procurement System. An order for each good and service consists of the contents as follows: quantity, volume; transportation method and unit price (if any); unit price of goods and services; payment methods; delivery place or performance place; other necessary information.

3. For each order request, the Vietnam National E-Procurement System automatically sends a notification to the contractors who have won the bidding packages for centralized procurement. The contractors shall confirm the order or refuse the order on the Vietnam National E-Procurement System within 03 days from the date of receiving the order request.

4. The Vietnam National E-Procurement System displays a notification of order confirmation or rejection by the contractors, and sends this notification to the unit placing the order.

5. The online procurement result is publicized.

6. The finalization and conclusion of contracts and management of contract performance shall comply with Articles 32 and 33 of this Decree. The contractors shall be responsible for managing confirmed orders, and providing goods and services as requested, ensuring quality and schedule.

Article 104. Information on goods and services subject to online procurement

In case of reducing the price of goods or services compared to the provisions in the concluded framework agreement or contract, the contractors shall notify the unit engaged in centralized procurement and the Vietnam National E-Procurement System at least 05 days before making such modification.

 

Chapter VIII

CONTRACTS

 

Article 105. Contracts for selected contractors

1. A contract concluded between the project owner (or authorized unit) and the contractor is a civil contract, and is agreed in writing. The legal representative or person authorized by the legal representative (hereinafter referred to as legal representative) of the contractor shall be responsible for concluding the contract; For a consortium of contractors, the legal representatives of consortium members shall be responsible for concluding the contract in accordance with Clause 3, Article 67 of the Law on Bidding. A contract which has been signed by parties, has taken effect and complies with law is the ultimate legal basis binding the responsibilities and obligations of the parties during the contract performance and to resolve relevant disputes (if any).

A contract shall be made according to the form provided in the bidding dossier or dossier of requirements, and concurrently must conform with the contract negotiation result (if any), contract completion result, and the contractor selection result on the basis of the requirements of the bidding package and guidance of the specialized state management agency.

2. When concluding a contract, the contract document must ensure compliance with the following contents:

a) General and specific conditions of the contract in the bidding dossier, dossier of requirements and corrections, supplements and clarifications during the contractor selection process;

b) The contractor's proposals in the bidding dossier and dossier of proposals approved by the project owner, and the contents agreed between the two parties during the contract negotiation (if any), or contract finalization;

c) Decision to approve the contractor selection result;

d) Law regulations.

3. Quality management of goods and services; currency and forms of contract payment; advance payment; contract payment; payment and contract liquidation principles shall comply with Articles 108, 109, 110, 111, 112 and 113 of this Decree.

Article 106. Modification of contracts

1. Modification of a contract means that the project owner and the contractor agree to amend or supplement one or several content(s) compared to the provisions in the signed contract. Modification of a contract may only be made during the contract's validity period; Modification of the contents regarding schedule, volume, and price shall be carried out in accordance with Clause 2, Article 70 of the Law on Bidding. Modification of a contract may apply to all types of contracts specified in Article 64 of the Law on Bidding and must be conducted via a document on modification of the contract.

2. The parties may agree in the contract on the process and procedures for modification of the contract in accordance with Point a, Clause 1, Article 70 of the Law on Bidding in the following cases:

a) There is a change in policies or laws, which directly affects the contract performance;

b) Force majeure event;

c) There is a change in method of transportation, place of delivery, and relevant services for bidding packages for goods procurement;

d) There is an additional volume and quantity of work under the additional procurement option in addition to the volume and quantity stated in the contract. In this case, the document on contract amendment must clearly provide the volume, value, delivery time or service completion time for additional work and other necessary contents. Delivery time or service completion time for additional work may be beyond the original contract execution duration but must be authorized by the competent person. The project owner may apply the additional procurement option for multiple times but not exceeding the maximum limit stated in the contractor selection plan.

In the case where there is a change in value-added tax policy at the time of applying the additional procurement option, the unit price of goods and services (including value-added tax) under the additional procurement option must not exceed the pre-tax value of goods and services in the signed contract plus value-added tax at the time of applying the additional procurement option;

dd) There is a change in the approved design;

e) One party or several parties propose(s) initiatives or innovations that bring higher benefits to the project owner;

g) There is a change in the contract schedule in accordance with Clause 3, Article 70 of the Law on Bidding;

h) Other cases as specified by law and agreement between the parties, including volume, price and other contents.

3. When the price index and other factors fluctuate according to the guidance of the Ministry of Construction, the project owner and the contractor may consider amending the contract for bidding packages that are governed by the Law on Construction, ensuring compliance with regulations on contract modification due to fundamental changes in the circumstances of contract performance as specified in civil law.

4. For bidding packages for procurement of goods and provision of non-consultancy services under the procurement estimate under fixed unit price contracts or adjustable unit price contracts, if the contract performance duration expires but the work volume specified in the original contract has not been completed, the project owner may report to the competent person to consider and decide on extending the contract performance duration but not exceeding 06 months, except for the cases specified in Clause 5, Article 93 of this Decree.

5. In case of changing the contract price, volume and other contents stated in the contract, the parties are not required to modify the contract or sign the document on modification of the contract as specified in Clause 5, Article 70 of the Law on Bidding in the following cases:

a) Modifying the contract price due to inflation and deflation for adjustable unit price contracts, time-based contracts, outcome-based contracts (if any) as specified in Clauses 2 and 3 of Article 107 of this Decree;

b) Increasing or decreasing the volume for fixed unit price contracts or adjustable unit price contracts; or for bidding packages for procurement of goods and non-consultancy services under fixed unit price contracts or adjustable unit price contracts, and addition of volume under the additional procurement option that requires the modification of the contract in accordance with Point d, Clause 2 of this Article;

c) Increasing or decreasing in time for time-based contracts; increasing or decreasing in direct execution costs for cost-plus-fee contracts; increasing or decreasing in the base value to determine the cost percentage for percentage-based contracts; increasing or decreasing in payment deduction levels and payment value increase levels for outcome-based contracts;

d) Other cases as specified by law and agreement between the parties.

In the case where the changes to the contents specified in this Clause lead to failure to meet one or several of the condition(s) specified in Clause 5, Article 70 of the Law on Bidding, the parties must report such changes to the competent person for modification of the contract.

Article 107. Modification of contract price due to inflation and deflation

1. Modification of the contract price due to inflation and deflation (hereinafter referred to as modification of contract price slippage) for fixed unit price contracts shall be carried out in accordance with Clauses 2 and 3 of this Article. For time-based contracts and outcome-based contracts, modification of contract price slippage may be applied to contracts with the long performance duration or in market situations with considerable price fluctuations.

2. The application of slippage modification must be specified in the bidding dossier and dossier of requirements, and be finalized during the contract negotiation (if any) and contract finalization. The contract must provide the principles and time for determining modification; input database for determining modification; time for determining the price index or original price as a basis for determining the difference due to price slippage for each contract payment. The contract price must include a provisional price slippage value calculated on the basis of estimated price slippage and law regulations on cost management as a basis for payment. The management and payment of price slippage value shall comply with the provisions in the contract without requiring a document on modification of the contract; In the case where the payment of subsequent installments, due to price fluctuations, leads to the contract price exceeding the bidding package price, the project owner must report to the competent person for consideration and approval. If approved by the competent person, the parties shall sign a document on modification of the contract before making payment.

3. Contract price slippage may be determined according to the following methods:

a) Direct compensation method;

b) Modification method using calculation formulas based on application of the price index. The price index used as a basis for calculating price slippage is determined according to the provisions in the bidding dossier or dossier of requirements, and contents of contract negotiation (if any) and contract finalization. The index source may be applied according to the price index announced by the General Statistics Office of Vietnam or the construction price index announced by the Ministry of Construction and provincial-level People's Committee. Regarding costs for calculating modification of price slippage originating from abroad, the price index published by an independent statistical agency where the overseas costs arise may be applied. The determination of methods and formulas for calculating price modification must be based on a scientific basis, consistent with the nature of the bidding package and specific regulations on price slippage risk management in the contract. The project owner may apply calculation formulas which are widely applied in the world market such as those of the International Federation of Consulting Engineers (FIDIC), the World Bank (WB) and the Asian Development Bank (ADB), and other formulas;

c) Modification methods other than those specified at Points a and b of this Clause in accordance with the law regulations.

Article 108. Quality management of goods and services

1. Requirements for the quality of goods and services must be specified by criteria, parameters, specifications, and quality control procedures stated in the technical requirements and specific conditions of the contract and other contents in the bidding dossier or dossier of requirements. Based on the contractor's proposals in the bid dossier, clarified and additional contents during the evaluation of the bid dossier, dossier of proposals, contract negotiation contents (if any), and contract finalization contents, requirements for the quality of goods and services shall be supplemented and completed to sign contracts as a basis for implementation.

2. The contract must provide the processes and procedures to control quality indicators of goods and services; and control the origin of goods.

Article 109. Currency and form of contract payment

1. The currency used for contract payment shall be specified in the contract and meet requirements of the bidding dossier or dossier of requirements and must not be contrary to law.

2. Expenses at home shall be paid in Vietnam dong; expenses outside the territory of Vietnam may be paid in foreign currencies or Vietnam dong according to the contract’s terms.

3. Payment may be made in cash, through bank transfer or in other forms as agreed upon by parties in accordance with law and stated in the contract.

Article 110. Contract advance

1. Contract advance is the amount of money advanced to the contractor to carry out the work under the contract.

2. Depending on the size and characteristics of the bidding package, an appropriate advance amount shall be determined (if any). The contract must clearly state the amount, time, guarantee and withdrawal of advance; parties’ responsibilities for managing and using the advance amount; and collection of the advance guarantee value in case of improper use of the advance amount.

3. The contractor shall manage the efficient use of the advance amount for proper purpose and proper subjects. Requesting advance for no use or improper use is prohibited.

Article 111. Contract payment

1. The contract price and specific terms on payment stated in the contract serve as the basis for payment to the contractor.

2. Payment shall not be based on cost estimates as well as the State’s current regulations and guidance on cost norms and unit prices; or on unit prices stated in financial invoices for the contractor’s input elements such as supplies, machinery and equipment and other input elements.

3. For a contract under which there are different types of contracts, payment shall be made according to payment principles applicable to each type of contract as specified in Article 112 of this Decree.

Article 112. Payment principles applicable to types of contracts

1. With regard to lump-sum contracts:

The payment shall be made according to the percentage of the contract price or the price of works, work items and work volume corresponding to the payment period as agreed upon by parties in the contract. The certification of the completed volume in detail is not required when the payment is made.

2. With regard to fixed unit price contracts:

The payment value shall be determined on the basis of the fixed unit price stated in the contract multiplied by the actually tested and accepted work quantity or volume corresponding to the completion milestones and provisions in the contract.

3. With regard to adjustable unit price contracts:

The payment value shall be determined on the basis of the unit price or adjusted unit price in the contract multiplied by the actually tested and accepted work quantity or volume corresponding to the completion milestones and provisions in the contract. In the case where the contract does not adjust the unit price but adjusts price slippage, the payment value shall be determined according to the contract price adjusted for price slippage under the provisions of the contract.

4. With regard to time-based contracts:

a) The level of remuneration for an expert shall be calculated and determined on the basis of the expert's salary and salary-relevant expenses such as social insurance, health insurance, unemployment insurance, holiday payments, Tet holiday payments, and management costs (if any) of the contractor and other costs stated in the contract or adjusted according to regulations multiplied by the actual working time (on a monthly, weekly, daily or hourly basis) corresponding to the completion milestones and provisions in the contract;

b) For tasks other than those specified at Point a of this Clause, the time-based unit price shall be applied, the payment shall be based on the unit price multiplied by the working time and actual use duration corresponding to the completion milestones and provisions in the contract;

c) Relevant expenses (other than the salary expenses for experts and expenses for other tasks applying the time-based unit price specified at Points a and b of this Clause), including expenses for travel, survey, office lease, communication and other expenses shall be paid according to the method stated in the contract. For each of these expenses, the contract should clearly state the method of payment such as payment for actual costs in valid invoices and documents produced by the contractor or payment based on the unit price agreed under the contract.

5. With regard to percentage-based contracts:

The payment value shall be determined on the basis of the percentage stated in the contract multiplied by the value of the accepted work and in accordance with the work insurance period stated in the contract.

6. With regard to outcome-based contracts:

The payment value shall be determined on the basis of the value of actually accepted tasks corresponding to the payment period agreed upon by the parties in the contract, plus or minus the increase in payment value and the level of payment deduction as specified in the contract based on the outcome results.

7. With regard to cost-plus-fee contracts:

The payment shall be based on the actual costs the contractor has spent to perform the contract, plus an appropriate profit level for the contractor based on the provisions of the contract.

8. The processing of payment dossiers shall be carried out within 14 days from the date the contractor submits sufficient documents and payment dossiers to the project owner.

Article 113. Contract liquidation

1. A contract shall be liquidated in the following cases:

a) Parties have fulfilled their obligations under the signed contract;

b) The contract is terminated (cancelled) as specified by the law regulations.

2. The parties may agree on the automatic expiration of the contract after the parties have completed their obligations under the signed contract or the parties sign a contract liquidation record. The contract liquidation record may be made separately or as part of the final takeover test record or the written agreement on contract termination with contents suitable to the parties’ responsibilities stated in the contract. A contract shall be regarded as liquidated within 45 days after the contractual parties have fulfilled their obligations stated in the signed contract or within 45 days after the contract is terminated (cancelled) in accordance with the law regulations; for big and complex contracts, their liquidation shall be made within 90 days.

 

Chapter IX

EXAMINATION AND SUPERVISION OF BIDDING ACTIVITIES AND HANDLING OF VIOLATIONS IN BIDDING

 

Section 1

EXAMINATION OF BIDDING ACTIVITIES

 

Article 114. Responsibilities for examining bidding activities

1. The Ministry of Planning and Investment:

a) Assuming the prime responsibilities for organizing examination of bidding activities at ministries, ministerial-level agencies, governmental agencies, and other central and local agencies according to periodic examination plans approved by the Minister of Planning and Investment;

b) Assuming the prime responsibilities for organizing examination of bidding activities in accordance with Clause 2 of this Article;

c) Agencies and units with functions and tasks of managing bidding activities under the Ministry of Planning and Investment shall assist the Minister of Planning and Investment in examining bidding activities in accordance with Point a of this Clause.

2. Ministries, ministerial-level agencies, governmental agencies, and other central agencies shall assume the prime responsibilities for organizing examination of bidding activities for projects in which investment is decided by the head of central agencies, and other units under their management.

3. Provincial-level People's Committees:

a) Assuming the prime responsibilities for organizing examination of bidding activities by units under their management and projects for which investment is decided by chairpersons of provincial-level People's Committees;

b) Provincial-level Departments of Planning and Investment shall assist provincial-level People's Committees in accordance with Point a of this Clause.

4. Competent persons of state-owned enterprises shall organize examination of bidding activities for investment projects in which they decide to invest, or investment projects of enterprises in which they hold 100% of the charter capital.

Article 115. Responsibilities of examination teams and members of examination teams

1. Responsibilities of examination teams:

a) Carrying out examination of bidding activities under the examination decision;

b) Requesting examined units, relevant organizations and individuals to provide information and documents in service of examination at the request of examination teams;

c) Developing draft examination reports and notifying the draft examination reports to organizations and individuals of examined units;

d) Developing draft inspection conclusions.

2. Responsibilities of heads of examination teams:

a) Organizing the development and approval of detailed examination plans;

b) Assigning tasks to members of examination teams when performing examination.

3. Responsibilities of members of examination teams:

a) Carrying out examination in accordance with regulations and as assigned by heads of examination teams;

b) Making reports on individual examination results as assigned;

c) Reporting to heads of examination teams on the results of examination activities that he/she has carried out;

d) Having the right to reserve opinions and being responsible before the law for their opinions.

Article 116. Responsibilities of organizations and individuals under units subject to examination, and relevant organizations and individuals

1. Responsibilities of organizations and individuals under units subject to examination:

a) Coordinating and creating conditions for examination teams during the examination process;

b) Making reports in a truthful manner, providing information and documents in a timely and sufficient manner, and taking responsibility before law for provided contents;

c) Explaining the contents in draft examination reports (if any);

d) Implementing the examination conclusions of examination agencies;

dd) Sending feedback reports on the implementation of examination conclusions to examination agencies as specified in Clause 4, Article 121 of this Decree.

2. Responsibilities of relevant organizations and individuals:

a) Making reports in a truthful manner, providing information and documents in a timely and sufficient manner at the request of examination teams, and taking responsibility before law for provided contents;

b) Explaining the contents in the draft examination reports (if any).

Article 117. Principles for organizing examination

1. Complying with the law regulations, ensuring accuracy, objectivity, openness, transparency and timeliness.

2. Being fair, objective, and not causing difficulties for units subject to examination; complying with regulations on anti-corruption.

3. Conducting independently in coordination and clear division of competence among competent examination agencies.

4. No overlap or duplication in scope, units subject to examination, examination contents and time among competent examination agencies.

5. In the case where there is overlap in units subject to examination, priority shall be given to examination by specialized management agencies or superior agencies.

Article 118. Forms of examination

1. Regular examination:

a) Regular examination shall be carried out under the annual regular plan approved by heads of agencies competent to carry out examination;

b) Based on the implementation of bidding activities in each year, units in charge of examination shall make a regular examination plan for the following year and submit it to heads of competent agencies for approval. The regular examination plan consists of the following contents: list of units subject to examination; to-be-examined projects and procurement estimates; time of examination; scope and contents of examination; units coordinating in examination (if any);

c) In the case where it is necessary to adjust the approved regular examination plan, units in charge of examination shall make an adjustment plan and submit it to heads of agencies competent to carry out examination for approval;

d) The approved regular examination plan and adjustment plan (if any) shall be the basis for heads of competent examination agencies to approve the examination decision and organize the examination;

dd) The regular examination plan and adjustment plan (if any) shall be sent to units subject to examination within a maximum of 10 days from the date of approval but must ensure that they receive such plans at least 15 days before the examination date.

2. Extraordinary examination:

a) Extraordinary examination shall be decided by heads of agencies competent to carry out examination;

b) Extraordinary examination shall be carried out for each case at the request of the Prime Minister, heads of central agencies, chairpersons of provincial-level People's Committee, and heads of agencies competent to carry out examination.

Article 119. Examination methods

1. An examination may be conducted according to a method or a combination of methods specified in Clauses 2 and 3 of this Article.

2. Direct examination is the main method that is carried out directly at the facility of units subject to examination.

3. Written report is the method by which the examination team requests units subject to examination to make written reports on to-be-examined contents.

Article 120. Time and funding for examination of bidding activities

1. Time for examination of bidding activities:

a) The maximum time for direct examination at the facility is 07 working days from the date of announcement of the examination decision, except for the cases specified at Point b of this Clause. Within a maximum period of 30 days from the date of completing the direct examination, the examination team must have an examination report. The head of the agency competent to carry out the examination shall approve the examination conclusion within a maximum period of 20 days from the date on which the examination team submits the draft examination conclusion;

b) In the case where the examination has complex contents and involves multiple units, the maximum time for direct examination at the facility is 15 days from the date of announcement of the examination decision. Within a maximum period of 40 days from the date of completing the direct examination, the examination team must have an examination report. The head of the agency competent to carry out the examination shall approve the examination conclusion within a maximum period of 30 days from the date on which the examination team submits the draft examination conclusion.

2. Funding for examination:

a) Funding for examination shall be allocated in the annual regular expenditure estimates of the unit in charge of examining bidding activities under ministries, ministerial-level agencies, governmental agencies, other central agencies, and provincial-level Departments of Planning and Investment in accordance with the law regulations on State Budget and guiding documents;

b) State-owned enterprises shall arrange their own funds to carry out examination.

Article 121. Examination process by direct examination method

1. Preparation for examination:

Based on the regular examination plan or request for extraordinary examination, the unit in charge of examination shall carry out the following tasks:

a) Collecting information and documents related to the examination; In case of extraordinary examination, the collection of information and documents shall be carried out before or after the examination decision is issued;

b) Determining the examination team’s composition and the coordinating unit’s participants (if any);

c) Submitting to the head of the competent examination agency for approval of the examination decision;

d) The head of the examination team shall approve the detailed examination plan after the examination decision is approved; In the case where the examination has complex contents, involves multiple examined units, or is carried out at the request of extraordinary examination, the head of the examination team shall consider and submit the detailed examination plan to the head of the competent examination agency for approval;

dd) Developing a report outline as a basis for the examined unit to prepare a report on bidding activities subject to examination;

e) Notifying in writing with a detailed examination plan and report outline to the examined unit, its superior management agency (if any) and relevant units (if any). The written notification shall be sent to the examined unit at least 10 days before the examination date.

2. Organization of examination:

a) The head of the examination team shall announce the examination decision when starting the direct examination at the facility of the examined unit, and prepare a record on announcement of the examination decision;

b) The examination team shall collect, research, analyze and evaluate information and documents related to bidding activities subject to examination, including the information specified in Clause 1, Article 124 of this Decree for the examined unit; create an evaluation and comment schedule for each relevant content; examine and verify information and documents (if necessary); and inspect the performance results to serve as a basis for concluding the examination contents. During the examination, the examination team may discuss with the examined unit and conduct field inspections when necessary. Depending on the scale and nature of the examination, the head of the examination team shall decide to make a record confirming the examination contents;

c) The examination team shall notify the examined unit in writing about the end of the direct examination at the facility and hand over documents and equipment used (if any) during the examination process;

d) After completing the direct examination at the facility, the examination team shall develop a draft examination report and submit it to the head of the examination team for review and decision before sending it to the examined unit for collecting opinions. The draft examination report shall be sent to the examined unit in writing or simultaneously by text, fax and email;

dd) Based on the draft examination report, opinions and explanations of the examined unit, the examination team shall complete the examination report.

3. Conclusion of examination:

a) Based on the examination report, the examination team shall formulate a draft examination conclusion, and submit it to the head of the competent examination agency for review and approval. The examination conclusion must provide handling measures for violations against the law on bidding;

b) The examination conclusion shall be sent to the examined unit, its superior management agency (if any) and relevant units (if necessary).

4. Supervision of the implementation of examination conclusions:

a) The head of the examined unit shall organize and report on the implementation of inspection conclusion to the competent examination agency within the time limit specified in the inspection conclusion. The report consists of the following contents: remedial measures for limitations and errors stated in the examination conclusion; remedial measures for bidding activities; handling of relevant organizations and individuals according to the recommendations of the examination team (if any);

b) Supervision of implementation of the inspection conclusion shall be carried out through the report as specified at Point a of this Clause. Organizations and individuals of the examined unit, and relevant organizations and individuals, which are responsible for implementing the examination conclusion but fail to do so or to do so fully and promptly, depending on the nature and extent of the violation, shall be handled in accordance with the law regulations.

Article 122. Examination process by written report method

1. Preparation of examination:

The competent examination agency or the examination team established by the competent examination agency shall request the examined unit to report on the implementation of its management responsibilities for bidding or the implementation of bidding activities, including the following contents:

a) Purposes and requirements of the report;

b) Scope and contents of the report;

c) Report outline;

d) Deadline for submitting reports;

dd) Responsibilities of the examined unit;

e) Other relevant contents.

2. Organization of examination:

a) Based on the report of the examined unit, the unit in charge of examination shall collect, research, analyze and evaluate information, including the information specified in Clause 1, Article 124 of this Decree for the examined unit, and documents related to the contents of reporting requirements; verify information and documents when necessary; During the examination, the unit in charge of the examination may discuss with the examined unit (if necessary);

b) The unit in charge of examination shall organize the development of the draft examination report that proposes handling measures for problems discovered during the examination process.

3. Examination conclusions and supervision of the implementation hereof shall be carried out in accordance with Clauses 3 and 4, Article 121 of this Decree.

 

Section 2

SUPERVISION OF BIDDING ACTIVITIES

 

Article 123. Supervision of bidding activities by competent persons

1. Competence to supervise bidding activities:

a) For a project in which the Prime Minister is the competent person, based on the scale and nature of the project and bidding package, the Prime Minister shall decide on the agency or unit that assumes the prime responsibility for organizing supervision when necessary;

b) Competent persons shall assign individuals or affiliated units with expertise in bidding that are independent of the project owner, bid solicitor, and expert group to supervise bidding activities for bidding packages under the projects and procurement estimates within their scope of management when necessary.

2. Order and procedures for supervision of bidding activities by competent persons:

a) Preparation for supervision: determining bidding packages subject to supervision in the contractor selection plan; notifying the project owner about individuals and units performing supervision and supervision contents of bidding activities. Individuals or units performing supervision must be disclosed in the bidding dossier and dossier of requirements;

b) Implementation of supervision: individuals or units performing supervision shall directly communicate and make working minutes or request relevant organizations and individuals to report in writing on the supervision contents. The project owner, bid solicitor and relevant organizations and individuals shall be responsible for providing dossiers and documents at the request of individuals or units performing supervision;

c) Reporting of the supervision result: individuals or units performing supervision shall promptly report in writing to competent persons when detecting behaviors or contents inconsistent with law on bidding to take proper handling measures, ensuring the effectiveness of the contractor selection process.

3. Responsibilities of individuals or units that supervise bidding activities:

a) Being honest and objective; refraining from causing troubles to the project owner and bid solicitor during the supervision process;

b) Requesting the project owner and bid solicitor to provide relevant dossiers and documents serving the supervision process;

c) Receiving information from the contractor and organizations and individuals related to the contractor selection process of bidding packages being supervised;

d) Keeping information confidential in accordance with the law regulations;

dd) Taking responsibility for their supervision results;

e) Assuming other responsibilities in accordance with the law on bidding and other relevant laws.

Article 124. Regular supervision for bidding activities of state management agencies in charge of bidding under ministries, sectors, and localities

1. State management agencies in charge of bidding under ministries, sectors and localities shall regularly supervise bidding activities when detecting signs of not ensuring the competitiveness, fairness, transparency and economic efficiency in bidding activities according to information on the Vietnam National E-Procurement System or according to recommendations and feedbacks from relevant organizations and individuals, including:

a) The project owner does not respond to requests for clarification of the bidding dossier, or does not respond to recommendations about the bidding dossier and the contractor selection results of contractors;

b) The project owner violates regulations on time for publicizing the contractor selection plans, contractor selection results and other information;

c) The project owner has a low average quantity of contractors participating in open bidding, restricted bidding, competitive offer, and online quotation according to the normal procedures;

d) The project owner has many bidding packages that have recommendations on bidding dossiers and contractor selection results;

dd) The bidding dossier is reported to contain regulations that restrict competitiveness;

e) Other relevant information.

2. Based on the results of synthesizing the contents and information specified in Clause 1 of this Article, state management agencies in charge of bidding under ministries, sectors and localities shall promptly implement the following measures:

a) Re-organizing bidding activities in the localities and fields under their management;

b) Requesting the project owner and competent persons to consider and handle organizations and individuals that commit violations (if any).

 

Section 3

HANDLING OF VIOLATIONS

 

Article 125. Handling of violations in bidding activities

1. The period of being ban from participation in bidding activities for organizations and individuals that commit violations, including individuals of the project owner and bid solicitor:

a) Ban from participation in bidding activities for a period of between 03 years and 05 years for one of violations of Clauses 1, 2, 4 and Point a, Clause 3, Article 16 of the Law on Bidding;

b) Ban from participation in bidding activities for a period of between 01 year and 03 years for one of violations of Points b and c, Clause 3; Clause 5; Points g, h, i, k, l, Clause 6; Clause 8; and Clause 9, Article 16 of the Law on Bidding;

c) Ban from participation in bidding activities for a period of between 06 months and 01 year for one of violations of Points a, b, c, d, dd, e, Clause 6 and Clause 7, Article 16 of the Law on Bidding;

For a consortium of contractors, ban from participation in bidding activities shall be imposed on all consortium members when one consortium member or several consortium members violate(s) the provisions of Article 16 of the Law on Bidding, except for the case where a consortium member violates the provisions of Point c Clause 3, Clause 4, Points b, c, d and dd Clause 5, Points a, b, c, d, dd, e and g Clause 6, Clause 7, Points a and b Clause 8 of Article 16 of the Law on Bidding, ban from participation in bidding activities shall only be imposed on such consortium member while remaining consortium members are not ban from participation in bidding activities.

2. In the case where an organization or individual commits 02 or more violations under the same management scope of a competent person but has not been banned from participation in bidding activities for such violations, the competent person shall issue a decision to ban the participation in bidding activities within the period equal to the total ban period for such violations but not exceeding 05 years.

3. The statute of limitations for applying the measure of banning the participation in bidding activities specified in Clause 1 of this Article is 10 years from the date of committing the violation.

4. The competent person shall consider and issue a decision to ban the participation in bidding activities under his/her management scope within 15 days from the date of receiving one of the following documents:

a) A written request from the project owner, accompanied by documents proving the violation;

b) Recommendations on the inspection conclusions of inspection agencies, the examination conclusions of examination teams, and the audit results of state audit agencies;

c) Petition settlement results from the petition settlement consultancy council;

d) Other documents of competent state agencies that identify the violation.

5. Depending on the nature and severity of the violation, the competent person shall ban the participation in bidding activities as specified in Clause 4 of this Article or request the head of the central agency or the chairperson of the provincial-level People's Committee to consider and issue a decision to ban the participation in bidding activities within the management scope of ministries, sectors and localities. The head of the central agency and the chairperson of the provincial-level People's Committee shall consider and issue a decision to ban the participation in bidding activities within 15 days from the date of receiving the competent person’s written request for ban from participation in bidding activities.

6. Based on the decision to ban the participation in bidding activities publicized on the Vietnam National E-Procurement, the Minister of Planning and Investment shall issue a decision to ban the participation in bidding activities nationwide within a period of 5 years for organizations and individuals that are currently banned from participation in bidding activities in 03 different decisions of the head of the central agency and the chairperson of the provincial-level People's Committee.

7. A decision to ban the participation in bidding activities consists of the following contents:

a) Names of the competent person;

b) Names of the violator;

c) The ban period, including ban period for the violation (violating contents and legal basis for handling the violation); ban period for subsequent violations (if any); total ban period;

d) Scope of ban;

dd) Effect: effective date and cessation date.

8. In the case where an organization or individual banned from participation in bidding activities does not agree with the decision to ban participation in bidding activities, such organization or individual may initiate a lawsuit at court in accordance with the law regulations on civil procedure.

9. Members of expert groups or appraisal groups who violate the provisions of Article 16 of the Law on Bidding shall be handled in accordance with Clause 1 of this Article and their professional certificates in bidding shall be revoked.

 

Chapter X

CONTENTS AND RESPONSIBILITIES OF APPRAISAL

IN CONTRACTOR SELECTION

 

Article 126. Responsibilities of appraisal units

1. The Ministry of Planning and Investment shall appraise the following contents:

a) General contractor selection plans and contractor selection plans to be approved by the Prime Minister;

b) Contractor selection plans in special cases considered and decided by the Prime Minister in accordance with Point c, Clause 1, Article 29 of the Law on Bidding and in other cases requested by the Prime Minister.

2. For investment projects, the responsibilities for appraising general contractor selection plans or contractor selection plans in the case where the general contractor selection plans are not applied are specified as follows:

a) Provincial-level Departments of Planning and Investment shall appraise general contractor selection plans, or contractor selection plans for investment projects decided by chairpersons of provincial-level People's Committees, except for bidding packages specified at Point a, Clause 1, Article 78 of the Law on Bidding;

b) Agencies and organizations assigned by heads of central agencies, competent persons of state-owned enterprises, or enterprises with 100% charter capital held by a state-owned enterprise shall appraise general contractor selection plans, or contractor selection plans for projects under their decision-making competence;

c) Specialized agencies under district-level People's Committees in accordance with the law regulations on organization of local administration shall appraise general contractor selection plans, and contractor selection plans for investment projects decided by chairpersons of district-level People's Committees;

d) Relevant assisting units shall appraise general contractor selection plans and contractor selection plans for investment projects decided by chairpersons of commune-level People's Committees and heads of other local agencies;

dd) Project owners, or heads of the units assigned to prepare projects if the project owners are not identified yet, shall assign organizations or individuals in their agencies to appraise contractor selection plans of bidding packages in advance as specified in Article 42 of the Law on Bidding, or bidding packages that need to be executed before project approval decisions are issued.

3. For investment projects, in the case where general contractor selection plans are applied, project owners shall assign organizations or individuals in their agencies to appraise the contractor selection plans.

4. For procurement estimates, the responsibilities for appraising contractor selection plans are specified as follows:

a) Regarding bidding packages for procurement of assets and goods (including drugs, chemicals, supplies for medical tests, medical equipment), and services in which heads of central agencies are the competent persons, the heads of central agencies shall decide on the selection of agencies, organizations, and departments responsible for appraising the contractor selection plans;

b) Regarding bidding packages for procurement of medicines, chemicals, supplies for medical tests, medical equipment in which chairpersons of provincial-level People's Committees are the competent persons, provincial-level Departments of Health shall assume the prime responsibility for appraising the contractor selection plans;

c) Regarding bidding packages other than those for procurement of medicines, chemicals, supplies for medical tests, medical equipment in which chairpersons of provincial-level People's Committees are the competent persons, the chairpersons of provincial-level People's Committees shall direct provincial-level Departments of Finance or a specialized agency under the provincial-level People's Committees in accordance with the law regulations on organization of local administration to assume the prime responsibility for appraising the contractor selection plans;

d) Regarding bidding packages for procurement of assets, goods, and services (including medicines, chemicals, supplies for medical tests, medical equipment) in which heads of agencies and units directly using the procurement estimates decide on the procurement in accordance with Article 91 of this Decree, the heads of the agencies or units shall decide on the selection of agencies, organizations or departments responsible for appraising the contractor selection plans.

5. In the case of heads of central agencies, chairpersons of People's Committees at all levels, competent persons of state-owned enterprises, enterprises with 100% charter capital held by state-owned enterprises, other competent persons authorized to approve general contractor selection plans, contractor selection plans, the authorized persons shall organize the appraisal of the general contractor selection plans or contractor selection plans.

6. Project owners shall organize the appraisal of the following contents: Dossiers of invitation for expression of interest, dossiers of invitation to prequalification, bidding dossiers, dossiers of requirements, evaluation results for dossiers of expression of interest and dossiers for participation in prequalification, list of technically eligible contractors (for bidding packages applying the single-stage two-envelope method or two-stage two-envelope method), and contractor selection results.

Article 127. Appraisal of general contractor selection plans

1. A dossier submitted for appraisal and approval shall comprise:

a) A submittal requesting approval of the general contractor selection plan;

b) The draft general contractor selection plan;

c) Documents serving as the basis for making the general contractor selection plan;

d) Other relevant documents.

2. The appraisal covers:

a) Examination of conformity of contents included in the general contractor selection plan specified in Article 15 of this Decree;

b) Other relevant contents.

3. An appraisal report includes the following contents:

a) Overview of the principal contents of the general contractor selection plan, and legal bases for making the general contractor selection plan;

b) The appraisal unit’s comments and opinions regarding the contents of the general contractor selection plan;

c) The appraisal unit’s proposals and recommendations on the general contractor selection plan. For the contents that the appraisal unit does not agree with, the appraisal unit must give specific reasons, propose solutions, and submit them to the competent person for consideration and decision;

d) Other opinions (if any).

4. Before signing the appraisal report, the appraisal unit may hold a meeting for parties to solve existing problems if necessary.

Article 128. Appraisal of contractor selection plans

1. A dossier submitted for appraisal and approval shall comprise:

a) A submittal requesting approval of the contractor selection plan;

b) The draft contractor selection plan;

c) Documents serving as the basis for making the contractor selection plan;

d) Other relevant documents.

2. The appraisal covers:

The appraisal of the contractor selection plan means examining, evaluating and giving opinions based on the law on bidding and relevant law regulations on the following contents:

a) Legal bases for making the contractor selection plan:

Examination of conformity and completeness of the legal bases for making the contractor selection plan and matters of concern (if any).

For bidding packages apply bidding in advance, the contractor selection plan shall be made before signing international treaties, agreements on ODA capital and concessional loans of foreign donors in accordance with Article 42 of the Law on Bidding;

b) Division of projects and procurement estimates into bidding packages:

Examination of conformity of division of projects and procurement estimates into bidding packages; The division of projects and procurement estimates into bidding packages must be based on technical characteristics, execution sequence, project synchronization, procurement estimates and scale compatibility of bidding packages;

c) A submittal requesting approval of the contractor selection plan includes the following contents: Examination of conformity of contents in the contractor selection plan, and compliance or conformity with the law on bidding, other relevant laws as well as project requirements, procurement estimates and other matters of concern (if any) for tasks in the contractor selection plan; Examination of conformity of the total value of tasks performed, tasks unable to apply one of the contractor selection forms, tasks included in the contractor selection plan, and tasks ineligible for making the contractor selection plan (if any) compared to the total investment of projects and procurement estimates. For procurement estimates, if a bidding package has the implementation duration is more than 01 year, the appraisal unit shall examine the conformity of the total value of tasks compared with procurement estimates of the current budgetary year and fiscal year, and expected procurement estimates of subsequent budgetary years and fiscal years.

3. An appraisal report includes the following contents:

a) Overview of principal contents of the project and procurement estimate;

b) The appraisal unit’s comments and opinions about legal bases and compliance with the law on bidding and other relevant laws; unanimous or divergent opinions about contents of the draft contractor selection plan;

c) The appraisal unit’s proposals and recommendations on approval of the contractor selection plan. For the contents in the draft contractor selection plan that the appraisal unit does not agree with, the appraisal unit must give specific reasons, propose solutions, and submit them to the person responsible for approving the contractor selection plan for consideration and decision;

d) Other opinions (if any).

Article 129. Appraisal of dossiers of invitation for expression of interest, dossiers of invitation to prequalification, bidding dossiers and dossiers of requirements

1. A dossier submitted for appraisal and approval must comprise:

a) The bid solicitor’s submittal requesting approval of the dossier of invitation for expression of interest, dossier of invitation to prequalification, bidding dossier or dossier of requirements;

b) The draft dossier of invitation for expression of interest, dossier of invitation to prequalification, bidding dossier or dossier of requirements;

c) The decision on project approval (if any), and decision on approval of the contractor selection plan;

d) Other relevant documents.

2. The appraisal covers:

a) Examination of documents serving as the basis for making the dossier of invitation for expression of interest, dossier of invitation to prequalification, bidding dossier or dossier of requirements;

b) Examination of conformity of contents of the dossier of invitation for expression of interest, dossier of invitation to prequalification, bidding dossier and dossier of requirements with the size, objectives, scope of work and implementation time of the project, procurement estimate and bidding package; with the design dossier, bidding package cost estimate, requirements on properties and technical specifications of goods (if any); with the record exchanged between the bid solicitor and contractors participating in bidding in the first stage (for bidding packages applying the two-stage method); and with the law on bidding and other relevant laws;

c) Consideration of divergent opinions (if any) between organizations and individuals participating in the compilation of the dossier of invitation for expression of interest, dossier of invitation to prequalification, bidding dossier or dossier of requirements;

d) Other relevant contents.

3. An appraisal report includes the following contents:

a) Overview of principal contents of the project, procurement estimate and bidding package; legal bases for making the dossier of invitation for expression of interest, dossier of invitation to prequalification, bidding dossier or dossier of requirements;

b) The appraisal unit’s comments and opinions about legal bases and compliance with the law on bidding and other relevant laws; unanimous or divergent opinions about contents of the draft dossier of invitation for expression of interest, dossier of invitation to prequalification, bidding dossier or dossier of requirements;

c) The appraisal unit’s proposals and recommendations on approval of the dossier of invitation for expression of interest, dossier of invitation to prequalification, bidding dossier or dossier of requirements; on handling measures in case of detecting such dossier not complying with the law on bidding and other relevant laws; and on settlement measures for cases in which there are not enough grounds for approving such dossier;

d) Other opinions (if any).

4. Before signing the appraisal report, the appraisal unit may hold a meeting for parties to solve existing problems if necessary.

Article 130. Appraisal of results of evaluation of dossiers of expression of interest and dossiers for participation in prequalification, lists of technically eligible contractors and contractor selection results

1. General principles

a) Results of evaluation of dossiers of expression of interest and dossiers for participation in prequalification and contractor selection results shall be appraised before being approved;

b) For bidding packages applying the single-stage, single-envelope method, the contractor selection results shall be appraised without requiring the appraisal of the list of technically eligible contractors;

c) For bidding packages for consultancy services, goods, construction, non-consultancy services, and mixed services that apply the single-stage, two-envelope method, or bidding packages applying online quotation according to the normal procedures, the list of technically eligible contractors must be appraised before being approved;

d) For bidding packages applying the two-stage single-envelope method, the appraisal shall not be conducted in the first stage. The appraisal in the second stage shall be conducted as for bidding packages applying the single-stage single-envelope method;

d) For bidding packages applying the two-stage two-envelope method, in the first stage, only the list of technically eligible contractors shall be appraised. The appraisal in the second stage shall be conducted as for bidding packages applying the single-stage two-envelope method, in which the list of technically eligible contractors in the second stage shall be appraised corresponding to the technical contents of the bidding dossier in the second stage that have been adjusted compared to the first stage;

e) Before signing the appraisal report, the appraisal unit may hold a meeting for parties to solve existing problems if necessary;

g) The contractor ranking list shall not be appraised.

2. Appraisal of evaluation results of dossiers of expression of interest and dossiers for participation in prequalification:

a) A dossier submitted for appraisal and approval shall comprise:

The bid solicitor’s submittal requesting approval of evaluation results of dossiers of expression of interests or dossiers for participation in prequalification, which must clearly state the bid solicitor’s opinions about suggestions and recommendations of the expert team;

The expert team’s report on evaluation results of dossiers of expression of interests or dossiers for participation in prequalification;

Dossiers and documents: dossier of invitation for expression of interest, dossier of invitation to prequalification, bid opening records, dossiers of expression of interests or dossiers for participation in prequalification of contractors and other relevant documents.

b) The appraisal covers:

Examination of documents serving as the basis for invitation for expression of interest and organization of prequalification;

Examination of the observance of regulations on time limits in invitation for expression of interest and organization of prequalification;

Examination of the evaluation of dossiers of expression of interest and dossiers for participation in prequalification; and the observance of law on bidding and other relevant laws in the evaluation of dossiers of expression of interest and dossiers for participation in prequalification;

Consideration of divergent opinions (if any) between the bid solicitor and the expert team; or between members of the expert team;

Other relevant contents.

c) An appraisal report includes the following contents:

Overview of principal contents of the project, procurement estimate or bidding package; legal bases for invitation for expression of interest and organization of prequalification;

Summary of the process of invitation for expression of interest and organization of prequalification and the bid solicitor’s proposal on evaluation results of dossiers of expression of interest or dossiers for participation in prequalification;

The appraisal unit’s comments and opinions about legal bases and compliance with the law on bidding and other relevant laws; assurance of competitiveness, fairness and transparency in the process of invitation for expression of interest and organization of prequalification; unanimous or divergent opinions about evaluation results of dossiers of expression of interest or dossiers for participation in prequalification;

The appraisal unit’s proposals and recommendations about evaluation results of dossiers of expression of interest or dossiers for participation in prequalification; about handling measures in case of detecting non-compliance with the law on bidding and other relevant laws in the process of invitation for expression of interest and organization of prequalification; and settlement measures for cases in which there are not enough grounds for concluding evaluation results of dossiers of expression of interest or dossiers for participation in prequalification;

Other opinions (if any).

3. Appraisal of lists of technically eligible contractors for bidding packages of consultancy services, non-consultancy services, goods procurement, and construction with two dossier envelopes:

a) A dossier submitted for appraisal and approval shall comprise:

The bid solicitor’s submittal requesting approval of the list of technically eligible contractors, which must clearly state the bid solicitor’s opinions about suggestions and recommendations of the expert team;

The expert team’s report on evaluation results of dossiers of technical proposals;

Dossiers and documents: bidding dossier or dossier of requirements, bid opening, dossiers of technical proposals of contractors and other relevant documents.

b) The appraisal covers:

Examination of the evaluation of dossiers of technical proposals; compliance with the law on bidding and other relevant laws in the evaluation of dossiers of technical proposals;

Consideration of divergent opinions (if any) between the bid solicitor and the expert team; or between members of the expert team;

Other relevant contents.

c) An appraisal report includes the following contents:

Overview of the contractor selection process (from the publication of notices of invitation to bidding to the submission for appraisal of the list of technically eligible contractors) and the bid solicitor’s proposal on the list of technically eligible contractors;

The appraisal unit’s comments and opinions about legal bases and compliance with the law on bidding and relevant law regulations; assurance of competitiveness, fairness and transparency in the selection of technically eligible contractors; unanimous or divergent opinions about the results of selection of technically eligible contractors; and proposals on handling measures in case of detecting non-compliance with the law on bidding and other relevant laws in the process of evaluating dossiers of technical proposals; and on settlement measures for cases in which there are not enough grounds for concluding results of selection of technically eligible contractors;

Other opinions (if any).

4. Appraisal of contractor selection results:

a) A dossier submitted for appraisal and approval shall comprise:

The bid solicitor’s submittal requesting approval of the contractor selection result, which must clearly state the bid solicitor’s opinions about suggestions and recommendations of the expert team;

The expert team’s report on evaluation results of bid dossiers and dossiers of proposals;

Contract negotiation record (if any);

Copies of dossiers and documents: the bidding dossier or dossier of requirements, bid opening records, bid dossiers or dossiers of proposals of contractors and other relevant documents. In case the list of technically eligible contractors has been appraised, only the record of opening of dossiers of financial proposals and copies of dossiers of financial proposals of technically eligible contractors are required.

b) The appraisal covers:

Examination of dossiers serving as a basis for organizing the contractor selection;

Examination of the compliance with regulations on time limits in the contractor selection;

Examination of the evaluation of bid dossiers and dossiers of proposals for bidding packages applying the single-stage single-envelope, two-stage single-envelope or two-stage two-envelope method; and compliance with the law on bidding and other relevant laws in the evaluation of bid dossiers and dossiers of proposals;

Examination of the evaluation of dossiers of financial proposals for bidding packages applying the single-stage two-envelope method; and compliance with the law on bidding and other relevant laws in the evaluation of dossiers of financial proposals;

Examination of the compliance with the law on bidding and other relevant laws in the contract negotiation (if any); and consistency between the contract negotiation result and contractor selection result (if any), ranking list of contractors, bidding dossier or dossier of requirements and bid dossier or dossier of proposals of the contractor;

Consideration of divergent opinions (if any) between the bid solicitor and the expert team; or between members of the expert team;

Other relevant contents.

c) An appraisal report includes the following contents:

Overview of principal contents of the project, procurement estimate and bidding package, legal bases for organizing the contractor selection;

Summary of the contractor selection process from shortlisting (if any) to submission for appraisal of the contractor selection result together with dossiers and documents already reported in accordance with Clauses 2 and 3 of this Article;

Summary of the bid solicitor’s proposals and recommendations on the contractor selection result;

The appraisal unit’s comments and opinions about legal bases and compliance with the law on bidding and relevant law regulations; assurance of competitiveness, fairness and transparency in the selection of contractors; unanimous or divergent opinions about the contractor selection result; and proposals on handling measures in case of detecting non-compliance with the law on bidding and other relevant laws in the contractor selection; and on settlement measures for cases in which there are not enough grounds for concluding the contractor selection result;

Other opinions (if any).

 

Chapter XI

OTHER ISSUES

 

Article 131. Response to arising eventualities in online and offline bidding activities

1. In case there are reasons to adjust prices or contents of bidding packages, contractor selection plans shall be adjusted in accordance with law before the time of bid closing, except for cases specified in Clauses 2 and 8 of this Article.

2. In the case where approved cost estimates of bidding packages are higher or lower than these bidding packages’ prices stated in approved contractor selection plans, such cost estimates shall replace the bidding packages’ prices in contractor selection plans on the following principles:

a) If the approved cost estimate is higher than the bidding package’s price in the contractor selection plan but the higher value does not increase the total investment capital of the project or procurement cost estimate already approved, the contractor selection plan does not need to be adjusted. If the higher value increases the total investment capital of the project or procurement cost estimate already approved, the contractor selection plan must be adjusted. If the contractor selection form in the approved contractor selection plan is no longer suitable, such form must be changed;

b) If the approved cost estimate is lower than the bidding package’s price in the contractor selection plan without changing the contractor selection form in the approved contractor selection plan, such plan does not need to be adjusted. In case of necessity to change the contractor selection form in line with the bidding package’s new value under the approved cost estimate, the contractor selection plan shall be adjusted.

The cost estimate approved after the contractor selection plan is approved under this Clause must be publicized on the Vietnam National E-Procurement System at least 05 days before the bid closing date.

3. In the case where after selecting a shortlist, if fewer than 03 contractors are qualified, the project owner shall, depending on the practical conditions of the bidding package, respond to arising eventuality in either of the following ways:

a) Conducting additional selection of contractors to be included in the shortlist;

b) Permitting the immediate distribution of bidding dossiers to short-listed contractors.

4. In the case where at the time of bid closing, there is no contractor participating in the bid, the project owners shall decide to respond to arising eventuality in one of the following ways:

a) Cancelling the notice of invitation for expression of interest, notice of invitation to prequalification, and notice of invitation to bids for re-invitation. In this case, before re-inviting bids, the dossier of invitation for expression of interest, dossier of invitation to prequalification, and bidding dossier shall be reviewed and modified (if necessary) to ensure that there are no conditions in the dossier restricting the participation of contractors or creating an advantage for one contractor or several contractors, causing unfair competition;

b) Extending the time of bid closing to at least 05 days for bidding packages that are currently inviting expression of interest, inviting pre-qualification, bidding packages for construction, mixed bidding packages with a price not exceeding VND 20 billion, bidding packages for procurement of goods and non-consultancy services with a price not exceeding VND 10 billion; Extending the time of bid closing time for at least 10 days for other bidding packages.

5. If, by the time of bid closing, for bidding packages subject to open bidding, restricted bidding, competitive offer or online quotation according to the normal procedures, only one contractor or two contractors have submitted dossiers of expression of interest, dossiers for participation in prequalification, and bidding dossiers, the project owner shall consider and settle it within 04 hours after the time of bid closing in either of the following ways:

a) Permitting the extension of the time of bid closing in order to allow more contractors to submit dossiers of expression of interest, dossiers for participation in prequalification, and bidding dossiers. In this case, the new time of bid closing and corresponding deadlines shall be clearly specified for contractors to modify or supplement their submitted dossiers of expression of interest, dossiers for participation in prequalification, and bidding dossiers according to new requirements;

b) Permitting the immediate opening of bids for evaluation.

6. In case of response to arising eventualities as specified in Clause 4 of this Article and cases of bid cancellation as specified in Clause 1, Article 17 of the Law on Bidding, the starting time for contractor selection in the contractor selection plan is not required to be adjusted.

7. If the bid price of the first ranked contractor exceeds the bidding package price after error correction and deviation adjustment minus the value of discounts (if any) and the bid price of at least one ranked contractor, after error correction and deviation adjustment minus the value of discounts (if any), is lower than the bidding package price, the first ranked contractor may be invited to price negotiation while ensuring that the post-negotiation price does not exceed the approved bidding package price. In case of unsuccessful negotiation, the next lower-ranked contractor shall be invited to negotiation.

8. If, after error correction and deviation adjustment minus the value of discounts (if any), the bid price of contractors that satisfy technical requirements and are on the ranking list all exceed the approved bidding package price, the project owner shall consider and decide to respond to arising eventuality in one or a combination of the following ways:

a) Permitting these contractors to offer new bid prices if the bidding package price already comprises elements constituting the performance cost of the bidding package;

b) Permitting these contractors to offer new prices, and reconsider the bidding package price and contents of the approved bidding dossier at the same time, if necessary.

If permitting contractors to offer new bid prices, it is necessary to specify the time limit for preparation and submission of new bid offering dossiers, which must not exceed 10 days after the bid solicitor sends a written request for offering of new bid prices, as well as the opening of new bid offering dossiers according to the bid-opening procedures specified in Article 26 of this Decree or offering of new bid prices on the Vietnam National E-Procurement System.

In case of necessity to adjust the bidding package price in the approved contractor selection plan, the competent person shall approve the adjustments within 10 days from the date of receiving the adjustment requests but ensuring that the adjustments are made before the deadline for submission of new bid offering dossiers;

c) Inviting these contractors to participate in online bidding according to the fast-track procedures. In case of necessity to adjust the bidding package price in the approved contractor selection plan, the competent person shall approve the adjustment before the starting of online bidding;

d) Permitting the invitation of the first ranked contractor to price negotiation while ensuring that the post-negotiation price does not exceed the bid price after error correction and deviation adjustment minus the value of discounts (if any). In case of necessity to adjust the bidding package price in the approved contractor selection plan, the competent person shall approve the adjustment within a maximum period of 10 days from the date of receiving the adjustment request. In case of unsuccessful negotiation, the next lower-ranked contractor shall be invited to negotiation. This method shall only be applied to bidding packages subject to open bidding and project owners shall take responsibility for competitiveness, fairness, transparency and economic efficiency of their projects, procurement estimates or bidding packages.

If only one contractor passes the technical evaluation step, handling the case in accordance with Point a or b of this Clause, or permitting the invitation of the contractor to price negotiation but ensuring that the post-negotiation price does not exceed the bidding package price.

9. Regarding bidding packages for goods procurement as specified in Clause 2, Article 92 of this Decree, if the first-ranked contractor has a bid unit price of one or several item(s) exceeding the standards and norms issued by competent authorities and the proposed winning bid price does not exceed the approved bidding package price, this case may be considered and handled in the following ways:

a) Inviting the first-ranked contractor to negotiation for items whose bid unit prices exceed procurement standards and norms issued by competent authorities;

b) Permitting all contractors who pass the technical evaluation step to offer their new bid prices.

10. Regarding bidding packages consisting of many separate parts:

a) If a bidding package has one part or several parts for which there is no contractor participating in bidding or satisfying the requirements, he project owner shall report it to a competent person to permit the separation of such part(s) into different bidding packages to organize the contractor selection according to regulations;

b) If one contractor wins all of its parts, the bidding package shall have one contract. In the case where multiple bidders win bids for different parts, the bidding package shall have many contracts corresponding to one or several parts for which each bidder wins the bid;

c) If, after error correction and deviation adjustment minus the value of discounts (if any), the bid price of all contractors that pass the technical evaluation step of a part exceeds the estimated value of the part in the bidding package price, which causes the total proposed bid-winning price to exceed the bidding package price, or after error correction and deviation adjustment minus the value of discounts (if any), the bid price of contractors ranked first in one or several part(s) exceeds the estimated value of such part(s) in the bidding package price, which causes the total proposed bid-winning price to exceed the bidding package price, the project owner shall respond to arising eventuality for these parts in accordance with Clauses 7 and 8 of this Article.

11. If, after error correction and deviation adjustment minus the value of discounts (if any), the bid price of a bidding package is abnormally low, affecting the bidding package quality, or the bid price of a construction bidding package is lower than 70% of the bidding package price, the project owner shall respond to arising eventuality as follows:

a) Requesting contractors to give explanations and clarifications about the feasibility of these abnormal bid prices and the costs constituting the bid prices. The contractors must demonstrate the compatibility between the bid prices and the scope of work, implementation solutions proposed by the contractor, implementation schedule and other requirements of the bidding dossier. If the contractors’ explanations are unclear and unpersuasive, these bid prices shall not be accepted, and items with abnormal prices leading to abnormal bid prices shall be considered deviations that must be adjusted in accordance with Clause 2, Article 29 of this Decree. Deviation adjustment is only for the purpose of comparing and ranking contractors. If after adjusting the deviations, the contractor still ranks first, the proposed bid-winning prices do not include the deviation adjustment value specified at this Point;

b) For risk prevention, the project owner may set a value of contract performance security over 10%, but not exceeding 30% of the contract price and shall get a competent person’ written approval thereof.

12. For construction and mixed bidding packages applying international bidding, if the first-ranked contractors have an unbalanced bid dossier: the offered unit price significantly exceeds the corresponding unit price in the bidding package estimate for tasks with simple or easy-to-implement technical requirements, or tasks that are likely to generate volumes beyond those in the bid quotation, and the offered unit price is significantly lower than the corresponding unit price in the bidding package estimate for tasks that are complex and difficult to implement, the bidding solicitor may request contractors to give clarifications about the costs constituting the bid prices. The contractors must demonstrate the compatibility between the bid prices and the scope of work, construction methods proposed by the contractors, implementation schedule and other requirements of the bidding dossier. If the contractors’ explanations are unclear and unpersuasive, their bid dossiers shall be refused. For risk prevention, the project owner may set a value of contract performance security over 10%, but not exceeding 30% of the contract price and shall get a competent person’ written approval thereof.

13. If bidding dossiers stipulate that contractors may propose construction methods other than those stated in the bidding dossiers, the difference between the workload according to the construction methods stated in the bidding dossiers and the workload according to the construction methods proposed by the contractors shall not be adjusted for deviations as specified in Clause 2, Article 29 of this Decree. This difference shall not be considered deviations.

14. If contractors are merged while they are in the process of participating in the bidding, the contractors after the merger may continue participating in the bidding and inheriting the capacity and experience in bidding of the merged contractors.

15. If branches, enterprises, or representative offices are separated from a legal entity under the law regulations on civil, the contractors that receive or are formed from such branches, enterprises, or representative offices may inherit the capacity and experience in bidding that branches, enterprises and representative offices have implemented.

16. For bidding packages applying contract negotiation as specified in Clause 1, Article 43 of the Law on Bidding, if the first-ranked contractor do not conduct negotiations or do not sign the negotiation record, or the negotiation is unsuccessful, the project owner may consider and decide to invite the next lower-ranked contractor (if any) to negotiation. The negotiation contents shall be based on the bid dossier and the bid price after error correction and deviation adjustment minus the value of discounts (if any) of the contractor invited to negotiation. In case of unsuccessful negotiation, the bidding solicitor shall report to the project owner to consider and decide to invite the next lower-ranked contractor (if any) to negotiation; The negotiation contents shall be based on the bid dossier and the bid price after error correction, deviation adjustment, minus the discount (if any) of the contractor invited to negotiation. In the case where the contractors are invited to negotiation but they do not conduct negotiations or do not sign the negotiation record, or the negotiation is unsuccessful, the project owner shall consider and decide to cancel the bid in accordance with Clause 1, Article 17 of the Law on Bidding.

If the next lower-ranked contractor is invited to negotiation under this Point during the validity period of the bid but does not negotiate or negotiates but does not sign the negotiation record, the contractor shall not be refunded the bid guarantee value. If the bid dossier of the next lower-ranked contractor expires, the bid solicitor must request such contractor to extend the validity of the bid dossier and bid guarantee before negotiating the contract.

17. When the proposed bid-winning price is lower than 50% of the approved bidding package price, the project owner shall request the contractor to clarify elements constituting the bid offering costs and consider relevant evidence as follows:

a) Economic elements related to construction methods, manufacturing or service provision process;

b) Applied economic solutions or the contractor’s special advantages that create price advantages;

c) The origin of goods, services and personnel that are supplied for the bidding package, which must ensure compliance with regulations;

If satisfying the conditions specified at Points a, b and c of this Clause, the bid dossier or dossier of proposals of the contractor shall still be approved to win the bid. For risk prevention, the project owner may set a value of contract performance security over 10%, but not exceeding 30% of the price contract and shall get a competent person’ written approval thereof. Bid dossiers or dossiers of proposals of contractors who receive subsidies from any organization or individual to create unfair competition shall be eliminated.

18. If multiple contractors are evaluated as the best and equal after evaluation, then the following order of priority shall be applied to respond to arising eventuality until the winning contractor is selected:

a) Awarding the contract to small and medium-sized enterprises owned by women in accordance with the law regulations on supporting small and medium-sized enterprises (if any);

b) Awarding the contract to the contractor with higher technical points or a lower number of acceptable technical evaluation criteria for the bidding package subject to the lowest bid method; awarding the contract to the contractor with a lower bid price after error or deviation adjustment, minus the discount (if any) for the bidding package subject to the evaluated bid method or method of combined techniques and prices;

c) Awarding the contract to the contractor headquartered in the locality where the bidding package is deployed;

d) Awarding the contract to the contractor that employs 25% or more of workers who are war invalids or people with disabilities, in which the labor contract duration is at least 3 months or still remains valid at the time of bid closing;

dd) Awarding the contract to the contractor that employs 25% or more of workers from ethnic minorities, in which the labor contract duration is at least 3 months or still remains valid at the time of bid closing;

e) Awarding the contract to the contractor that employs 25% or more of female workers, in which the labor contract duration is at least 3 months or still remains valid at the time of bid closing;

g) Permitting such contractors to offer new bid prices to select the contractor with the lowest new bid price. Contractors are not permitted to offer a price higher than the offered bid prices after error correction and deviation adjustment minus the value of discounts (if any). The offering of new bid prices shall comply with Point a, Clause 8 of this Article;

h) Inviting such contractors to participate in online bidding according to the fast-track procedures. Contractors are not permitted to offer a price higher than the offered bid prices after error correction and deviation adjustment minus the value of discounts (if any).

19. If the winning contractor does not complete and conclude the contract or at the time of contract conclusion, the winning contractor does not satisfy requirements on technical and financial capacity as specified in Clause 2 of Article 66 of the Law on Bidding, the project owner shall consider and decide to respond to arising eventuality according to the following order:

a) Inviting the second-ranked contractor (if any) to complete the contract, and at the same time requesting this contractor to extend or restore the validity of the bid dossier and bid security measures (if the validity period expires) with a new validity period of at least 30 days from the expected date of commencement of contract completion.

If the second-ranked contractor does not agree to complete the contract or does not extend or restore the validity of the bid dossier or bid security measures as required, the project owner shall consider and decide to respond to arising eventuality according to either of the two plans specified at Point b or c of this Clause.

The contract shall be completed in accordance with Article 32 of this Decree. The contents of contract completion must be based on the bid dossier and bid price after error correction and deviation adjustment minus the value of discounts (if any) of the second-ranked contractor. After completing the contract with the second-ranked contractor, the project owner shall cancel the decision on approval of the previous contractor selection results and issues the winning decision to the second-ranked contractor before concluding the contract with the contractor.

If the second-ranked contractor disagrees with the contract completion results and does not sign a contract with the project owner, the contractor shall not be refunded the bid guarantee value, except for cases of force majeure or other cases. The project owner does not comply with the principle of completing the contract. In this case, the project owner shall consider and decide to respond to arising eventuality according to either of the two plans specified at Point b or c of this Clause;

b) Inviting the third-ranked contractor (if any) to complete the draft contract. In the case where the third-ranked contractor disagrees to complete the contract or does not extend or restore the validity of the bid dossier or bid guarantee measures as required, the project owner shall consider and decide to invite the next lower-ranked contractor (if any) to complete the contract or cancel the bidding in accordance with Clause 1, Article 17 of the Law on Bidding.

The contractor invited to complete the contract must extend or restore the validity of the bid dossier and bid guarantee measures (if the validity period expires) with a new validity period of at least 30 days from the expected date of commencement of contract completion.

The contract shall be completed in accordance with Article 32 of this Decree. The contents of contract completion must be based on the bid dossier and bid price after error correction and deviation adjustment minus the value of discounts (if any) of the contractor invited to complete the contract. After completing the contract with such contractor, the project owner shall cancel the decision on approval of the previous contractor selection results and issues the winning decision to the contractor that has completed the contract before concluding the contract with such contractor.

If the contractor invited to complete the contract disagrees with the contract completion results and does not sign a contract with the project owner, the contractor shall not be refunded the bid guarantee value, and the project owner shall consider and decide to cancel the bidding in accordance with Clause 1, Article 17 of the Law on Bidding;

c) Cancelling the bidding in accordance with Clause 1, Article 17 of the Law on Bidding.

20. If, during the contract execution process, the competent person decides not to recognize the contractor selection results when there is evidence that the bid-winning contractor has committed the violations specified in Article 16 of the Law on Bidding, or committed the violations against relevant law regulations, leading to failure to ensure competitiveness, fairness, transparency and economic efficiency, or falsified the contractor selection results, the project owner shall respond to arising eventuality as follows:

a) Confiscating the value of contract performance security and recovering advance payments (if any);

b) Paying the contractor for tasks that the contractor has performed and has been accepted under the contract;

c) Terminating the contract with the contractor; For a consortium of contractors where only one consortium member violates and is banned from participation in bidding activities as specified in Clause 1, Article 125 of this Decree, the remaining consortium members shall not be considered to have failed to complete the contract due to the contractor's fault;

d) Publicizing information about the violating contractor on the Vietnam National E-Procurement System within 05 working days from the date of issuing the decision to terminate the contract with the violating contractor, and at the same time sending such decision and other documents regarding handling of violations (if any) to the Ministry of Planning and Investment for summarization and supervision;

dd) After terminating the contract with the previous bid-winning contractor, the uncompleted tasks shall be assigned to the second-ranked contractor in the ranking list. In the case where the second-ranked contractor does not accept to sign the contract, the project owner shall appoint another contractor or separate the uncompleted tasks into new bidding packages and organize the contractor selection in accordance with the law regulations. If necessary, the bidding package price may be re-considered and re-approved for the uncompleted tasks in order to organize the bidding. In case of contractor appointment, the value of the uncompleted tasks shall be calculated as the value stated in the contract minus the value of the previously completed tasks.

21. If, during the contract execution process, the competent person decides not to recognize the contractor selection results when there is evidence that the project owner, bid solicitor, expert team, or appraisal team has committed the violations specified in Article 16 of the Law on Bidding, or committed the violations against relevant law regulations, leading to failure to ensure competitiveness, fairness, transparency and economic efficiency, or falsified the contractor selection results without the bid-winning contractor's fault, the competent person shall decide to respond to arising eventuality as follows:

a) Requesting the project owner to recover advance payments (if any) and terminate the contract with the contractor. The contractor may be refunded the value of the contract execution security and compensated for costs related to contract termination due to the project owner's fault according to the agreement stated in the contract. The project owner shall compensate damages to the contractor under the contract;

b) The uncompleted tasks shall be separated into new bidding packages to organize the contractor selection according to regulations. If necessary, the bidding package price may be re-considered and re-approved;

c) In the case where the bidding package has been executed and completed more than 70% of the work volume of the contract, and the handling of situations as specified at Points a and b of this Clause does not bring economic efficiency, the competent person shall decide whether to continue maintaining the contract with the bid-winning bidder.

22. In the case where one consortium member or several consortium members breach the contract, are incapable of continuing to perform the contract, thus seriously affecting the schedule, quality and efficiency of the bidding package, it shall be handled as follows:

a) Imposing contract fines as specified in the contract for all consortium members;

b) Confiscating the value of contract execution security of all consortium members;

c) Terminating the contract with one consortium member or several consortium members breaching the contract; In this case, only such consortium member(s) shall be considered to have failed to complete the contract and publicized on the Vietnam National E-Procurement System; The remaining members may continue performing the contract corresponding to the work items undertaken in the consortium of contractors. Within 05 working days from the date of issuing the decision to terminate the contract with one consortium member or several consortium members, the project owner must publicize information about those violating the contract on the Vietnam National E-Procurement System; in which the notice must clearly state the reasons for the violation leading to the termination of the contract, and send the decision to the Ministry of Planning and Investment for summarization and supervision;

d) The violating member's work items shall be assigned to the remaining members to perform if these members are competent and experienced. In this case, the remaining members must take measures to ensure the performance of the new contract corresponding to the value of the uncompleted tasks of the bidding package;

dd) In the case where the remaining members refuse to perform or do not satisfy requirements for capacity or experience, the project owner shall report to the competent person to permit the separation of the violating members’ work items into separate bidding packages for contractor appointment in accordance with Point dd, Clause 20 of this Article or organize the contractor selection according to regulations.

23. In the case where the contractor executing the bidding package breaches the contract and is incapable of continuing to perform the contract, thus seriously affecting the schedule, quality and efficiency of the bidding package, the project owner shall consider and report to the competent person for permission to terminate the contract with such contractor; Such contractors shall be considered to have failed to complete the contract.

The uncompleted tasks may be subject to the form of contractor appointment for other contractors, with the value calculated by the value stated in the contract minus the value of the work items that have already been performed and accepted.

The project owner must ensure that that the appointed contractor is capable and experienced to meet the requirements for performing the remaining work items of the bidding package. If the form of contractor appointment is not applied, new bidding packages may be established to organize the contractor selection. If necessary, the bidding package price may be re-considered for the remaining work items before organizing the contractor selection in accordance with the law regulations. If the contract performance is behind schedule not due to the fault of the contractor, the termination of the contract to replace another contractor shall not be permitted. If the contract with the violating contractor must be terminated to replace a new contractor, within 05 working days from the date of issuing the decision to terminate the contract with the violating contractor, the project owner shall publicize information about such contractor and replacement contractor on the Vietnam National E-Procurement System, and at the same time send the decision to terminate the contract and other documents on handling of contract violations (if any) to the Ministry of Planning and Investment for summarization and monitoring. The notice must clearly state the reasons for the contractor's breach of contract leading to the termination of the contract, and methods of selecting the replacement contractor, and the name of the appointed contractor in case of contractor appointment.

24. For a consortium of contractors, if during the contract execution process, it is necessary to speed up the implementation progress compared to the signed contract (the contract is required to be amended), the project owner must report to the competent person for permitting the project owner and contractor to agree and adjust the scope of work between consortium members in accordance with the shortened schedule. In this case, the competent person and the project owner must ensure that the members undertaking the additional work items are capable and experienced to meet the requirements for performing such work items, and the scope of work between consortium members is changed not for the purpose of bid transfer.

25. If, during the contract execution process, the contractor's personnel (signing a labor contract with the contractor at the time of committing the violation) are convicted by a court of committing a violation against regulations on bidding that leads to serious consequences according to criminal law, in order for the contractor to win the bidding, the project owner must terminate the contract with such contractor and confiscate the value of the contractor execution security; the contractor may be only paid for the performed and accepted work items under the contract. The contractor shall be considered to have failed to complete the contract and publicized on the Vietnam National E-Procurement System. The notice must clearly state the reasons for the violation leading to the termination of the contract. For the uncompleted tasks, the project owner shall appoint contractors in accordance with Point dd, Clause 20 of this Article or separate such work items into new bidding packages and organize the contractor selection in accordance with the law regulations.

26. If the contractor's personnel (signed a labor contract with the contractor at the time of committing the violation) are concluded by an investigation agency to commit a violation against regulations on bidding that leads to serious consequences according to the criminal law, in order for the contractor to win the bidding but the contractor's personnel have not been convicted by a court or the contractor has not been banned from participation in bidding activities by a competent person, the contractor may continue participating in the bidding.

27. During the contract execution process, if the contractor requests to replace the goods stated in the contract with those that have a newer production version and production year, the project owner may, based on usage needs, approve the contractor’s proposals if the following conditions are fully satisfied:

a) The contractor sends a written notice to the project owner;

b) The replacement goods have the same manufacturer and origin as the goods stated in the contract;

c) The replacement goods have technical features, configuration, parameters and other technical requirements that are equivalent or better than the goods stated in the contract;

d) Being suitable for usage needs;

dd) The unit price of goods does not exceed the unit price stated in the contract.

28. In the case where a problem arises, which prevents the Vietnam National E-Procurement System from operating and troubleshooting is expected to take a long time, the Ministry of Planning and Investment shall notify on the Vietnam National E-Procurement System on methods to organize the contractor selection during the period of response to such arising eventuality, including organization of offline contractor selection.

29. In addition to the cases specified in Clauses 1 to 28 of this Article, when an eventuality arises, the project owner shall consider and decide to respond to such arising eventuality on the basis of ensuring competitiveness, fairness, transparency and economic efficiency and accountability.

Article 132. Management of contractors

1. Responsibilities of contractors

a) Registering on the Vietnam National E-Procurement System as specified at Point d Clause 1 Article 5 Law on Bidding before the contractor selection results are approved;

b) Regularly updating and taking responsibility for the accuracy and truthfulness of information about their capacity and experience on the Vietnam National E-Procurement System;

c) In addition to the responsibilities specified at Points a and b of this Clause, foreign contractors must also take the following responsibilities:

After being selected for execution of bidding packages in the Vietnamese territory, foreign contractors shall comply with the provisions of Vietnamese law on entry and exit; import and export of goods; temporary residence and absence registration; accounting regulations, taxes and relevant provisions of Vietnamese law, unless otherwise provided by a treaty to which the Socialist Republic of Vietnam is a contracting party or loan agreements.

Within 15 days after contracts signed with foreign contractors take effect, the project owner shall publicize the list of bid-winning contractors on the Vietnam National E-Procurement System, and send reports on information of bid-winning contractors to the Ministry of Planning and Investment and concurrently to concerned line ministries and to provincial-level Planning and Investment Departments in localities where projects are carried out for summarization and supervision;

d) Foreign contractors selected in accordance with the Law on Bidding are not required to apply for bidding licenses.

2. Management of subcontractors:

a) Contractors may sign contracts with subcontractors on the list of subcontractors mentioned in their bid dossiers or dossiers of proposals, or subcontractors approved by the project owner to participate in construction work; consultancy services; non-consultancy services; relevant services of goods supply package; and tasks under mixed bidding packages. The employment of subcontractors shall not change the obligations of contractors. Contractors shall take responsibility for volume, quality and schedule and other responsibilities for tasks carried out by subcontractors;

b) The replacement or supplementation of subcontractors specified at Point a of this Clause or changes in subcontractor contents stated in bid dossiers or dossiers of proposals shall only be carried out upon the approval of project owners and supervision consultants, and not exceeding the maximum value of tasks for subcontractors stated in the contract. The employment of subcontractors must be consistent with the needs of contractors in implementing contracts; subcontractors must satisfy the capacity and experience requirements of contractors;

c) Contractors shall take responsibility for selecting and employing capable and experienced subcontractors to perform assigned tasks. If special subcontractors are employed to perform significant tasks of bidding packages according to the requirements of bidding dossiers, the evaluation of their capacity and experience must comply with bidding dossiers. In case of employing special subcontractors, contractors are not required to satisfy the capacity and experience requirements for the tasks assigned to such special subcontractors;

d) Contractors shall take responsibility for full payment on schedule to subcontractors as agreed upon between contractors and subcontractors.

 

Chapter XII

IMPLEMENTATION PROVISIONS

 

Article 133. Transitional provisions

1. For bidding packages for which contractor selection plans have been approved, but by the effective date of this Decree, dossiers of invitation for expression of interest, dossiers of invitation to prequalification, bidding dossiers, and dossiers of requirements have not been issued and such plans include contents inconsistent with the Law on Bidding No. 22/2023/QH15 and this Decree, the contractor selection plans, dossiers of invitation for expression of interest, dossiers of invitation to prequalification, bidding dossiers, and dossiers of requirements shall be adjusted in accordance with the Law on Bidding No. 22/2023/QH15 and this Decree.

If bidding packages do not apply online contractor selection and have issued dossiers of invitation for expression of interest, dossiers of invitation to prequalification, bidding dossiers, and dossiers of requirements, but by the effective date of this Decree, the bidding has not been closed yet, the dossiers of invitation to prequalification, bidding dossiers, and dossiers of requirements must be adjusted in accordance with the Law on Bidding No. 22/2023/QH15 and this Decree. The amendment and extension of the bid closing time shall comply with Point b Clause 2 Article 26, Clause 2 Article 38 and Clause 2 Article 63 of this Decree.

For bidding packages that apply contractor appointment according to the fast-track procedures, direct procurement, self-implementation, contractor selection in special cases, contractor selection to implement bidding packages with community participation in implementation, if the contractor selection plans have been approved but by the effective date of this Decree, the contractor selection results have not been approved and the contractor selection plans include contents inconsistent with the Law on Bidding No. 22/2023/QH15 and this Decree, the modification of contractor selection plans shall be approved.

2. Dossiers of invitation for expression of interest, dossiers of invitation to prequalification, bidding dossiers, and dossiers of requirements issued before January 1, 2024 may continue to be implemented in accordance with the Law on Bidding No. 43/2013/QH13; the Government’s Decree No. 63/2014/ND-CP dated June 26, 2014 detailing the implementation of a number of articles of the Law on Bidding regarding contractor selection; the Government’s Decree No. 32/2019/ND-CP dated April 10, 2019, providing the assignment of tasks, ordering or bidding for provision of public products and services using the state budget from regular expenditures (hereinafter referred to as Decree No. 32/2019/ND-CP); the Prime Minister’s Decision No. 17/2019/QD-TTg dated April 8, 2019 providing a number of bidding packages and procurement contents for maintaining regular operations, the form of contractor selection in special cases may be applied in accordance with Article 26 of the Law on Bidding and Circulars guiding the implementation of the Decree.

3. While the Government has not amended, supplemented or replaced Decree No. 32/2019/ND-CP, the ordering and assignment of tasks to provide public products and services using the state budget from regular expenditures may continue to be implemented in accordance with Decree No. 32/2019/ND-CP but must not be contrary to the Law on Bidding No. 22/2023/QH15.

4. While the Government has not amended, supplemented or replaced Decree No. 15/2021/ND-CP dated March 3, 2021, detailing a number of contents on management of construction investment projects; Decree No. 29/2021/ND-CP dated March 26, 2021 providing the order and procedures for appraisal of projects of national significance, and supervision and assessment of investment, "construction investment project using non-public investment state capital" means a construction investment project using state budget capital, state loans, government bonds, municipal bonds, official development assistance capital, concessional loans from donors, capital from the career development fund, state development investment credit capital, credit capital guaranteed by the Government, loans secured by state assets, development investment capital of state-owned enterprises, land use rights value, but not including public investment capital in accordance with the law regulations on public investment.

5. In the case where an investment project is separated into component projects that operate and exploit independently, or compensation, support and resettlement are separated into separate sub-projects in accordance with the law regulations, the selection of contractors to implement component projects and sub-projects shall apply the provisions as specified for independent projects. For compensation, support and resettlement sub-projects, persons competent to decide on investment in component projects and chairpersons of People's Committees at all levels shall exercise the authority and responsibilities of competent persons in organization of the contractor selection in accordance with the Law on Bidding and this Decree.

6. During the period from January 1, 2024 to the effective date of this Decree, the costs of contractor selection on the Vietnam National E-Procurement System shall be applied according to build – operate – transfer (BOT) contracts signed between the Ministry of Planning and Investment and project owners for projects of "e-commerce application in government procurement". The Ministry of Planning and Investment shall guide the management and use of costs in selecting contractors and project owners on the Vietnam National E-Procurement System.

7. During the period from January 1, 2024 to the effective date of this Decree, the contractor selection shall be carried out in accordance with the Law on Bidding No. 22/2023/QH15, Decree No. 63/2014/ND-CP, and relevant guiding documents consistent with the Law on Bidding No. 22/2023/QH15. The Ministry of Planning and Investment shall guide or report to competent authorities to consider and handle issues that arise during the implementation of provisions in this Clause.

Article 134. Effect

1. This Decree takes effect from the date of signing.

From the effective date of this Decree, the Government's Decrees, the Prime Minister's Decisions and the following provisions shall cease to be effective:

a) The Government’s Decree No. 63/2014/ND-CP of June 26, 2014, detailing the implementation of a number of articles of the Law on Bidding regarding contractor selection;

b) Articles 69, 70, 71, 72, 73, 75, 76, 77 and 78 of the Government’s Decree No. 151/2017/ND-CP dated December 26, 2017, detailing a number of articles of the Law management and use of public assets;

c) Points b and c Clause 2 and Points b and c Clause 3, Article 5 of the Government’s Decree No. 70/2018/ND-CP dated May 15, 2018, providing the management and use of assets formed through the implementation of scientific and technological tasks using state capital;

d) The Prime Minister’s Decision No. 17/2019/QD-TTg dated April 8, 2019, providing a number of bidding packages and procurement contents to maintain regular operations, which are subject to contractor selection in special cases specified in Article 26 of the Law on Bidding.

2. Goods of Vietnamese origin as specified in Clause 1 Article 10 of the Law on Bidding shall be determined in accordance with the commercial law on methods to identify goods manufactured in Vietnam and the law on information technology for information technology software products. The provisions at Point b, Clause 5, Article 5 of this Decree are effective until the commercial law regulations on methods to identify goods manufactured in Vietnam are available.

3. For the procurement of goods and services to perform scientific and technological tasks within the assigned budget of scientific and technological tasks using the state budget (including both partial payment tasks and final product payment tasks), organizations or individuals responsible for carrying out the procurement are not required to apply the Law on Bidding and this Decree but must ensure compliance with regulations on sufficient invoices and documents in accordance with the law regulations.

4. For procurement activities that do not use state budget capital to carry out scientific and technological tasks by individuals and organizations participating in scientific and technological tasks that are not state agencies or public non-business units, such individuals or organizations may decide on their own procurement without requiring application of the Law on Bidding and this Decree but must ensuring sufficient documents and invoices.

5. For procurement of goods and services to carry out scientific and technological tasks in the fields of agriculture, forestry and fishery through direct procurement from households and individuals, organizations or individuals in charge of scientific and technological tasks may directly procure goods and services from households and individuals without requiring application of the processes and procedures specified in the Law on Bidding and this Decree.

6. Publicization of information about the contract execution results of contractors and the quality of goods used in accordance with Articles 17 and 18 of this Decree shall be carried out for bidding packages subject to the contractor selection in accordance with the Law on Bidding No. 22/2023/QH15.

7. Determination of lists, utilities and technical requirements of bidding packages for procurement of medical equipment and supplies for medical tests in service of making contractor selection plans and organization of contractor selection shall comply with the law regulations. In the case where the relevant law regulations are not available, project owners shall decide to establish a council or assign an affiliated unit to select the lists, utilities and technical requirements that satisfy professional requirements.

Article 135. Responsibility for implementation

1. The Ministry of Planning and Investment shall:

a) Detail and guide the implementation of assigned articles and clauses in accordance with the Law on Bidding, this Decree and other necessary contents to meet state management requirements on bidding;

b) Summarize and manage databases of contractors; quality of used goods; lists of contractors committing violations against the law on bidding; lists of winning foreign contractors;

c) Guide the management and use of costs in selecting contractors and project owners on the Vietnam National E-Procurement System; reduce the costs of selecting online contractors based on the development of online bidding in each period;

d) Promulgate forms of bidding-relevant dossiers, including the form of general contractor selection plan; form of contractor selection plan; form of dossier of invitation for expression of interest, form of dossier of invitation to pre-qualification; form of bidding dossier; form of dossier of requirements; form of dossier for online procurement and quotation; form of evaluation report; form of appraisal report; form of bidding examination, form of report on implementation of bidding activities and other forms in bidding;

dd) Modify webforms on the Vietnam National E-Procurement System to create more favorable conditions for parties participating in online contractor selection activities, reduce administrative procedures, and intensify competitiveness, fairness, transparency and economic efficiency in bidding, ensuring effective state management of bidding.

2. The Ministry of Health shall:

a) Provide guidance on contractor selection and measures to implement the Law on Bidding No. 22/2023/QH15 and this Decree within the scope of management;

b) Promulgate the form of contractor selection dossier for medicines;

c) Provide guidance on principles, criteria, and summarization of needs to create a list of medicines for centralized procurement; time limit for summarizing the list and time for promulgating the list; expected time to organize contractor selection and to publicize information on framework agreements and contracts in centralized procurement;

d) Research and provide guidance on grouping medical equipment according to technical and quality standards.

3. On an annual basis, ministries, ministerial agencies, governmental agencies, other central agencies, provincial-level People's Committees, state-owned enterprises and other agencies and organizations as specified in Article 2 of the Law on Bidding shall make a report on the implementation of bidding activities and send it to the Ministry of Planning and Investment for summarizing and reporting to the Prime Minister.

4. Heads of central agencies and chairpersons of People's Committees of provinces and centrally run cities shall guide and implement this Decree within their scope of functions and tasks./.

 

On behalf of the Government

For the Prime Minister

The Deputy Prime Minister

TRAN HONG HA

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