Decree 63/2014/ND-CP detailing the Bidding Law regarding contractor selection

DECREE

Detailing a number of articles of the Bidding Law regarding contractor selection^[1]

Pursuant to the December 25, 2001 Law on Organization of the Government;

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

At the proposal of the Minister of Planning and Investment,

The Government promulgates the Decree detailing a number of articles of the Bidding Law regarding contractor selection.

Chapter I

GENERAL PROVISIONS

Section 1

SCOPE OF REGULATION

Article 1. Scope of regulation

1. This Decree details a number of articles of the Bidding Law regarding selection of contractors to perform bidding packages prescribed in Clauses 1 and 2, Article 1 of the Bidding Law.

2. The selection of contractors in the field of petroleum prescribed in Clause 4, Article 1 of the Bidding Law applies to development investment projects prescribed at Points a, b and c, Clause 1, Article 1 of the Bidding Law, except the selection of contractors to conduct activities directly related to petroleum exploration, field development and petroleum exploitation.

3. In case treaties or international agreements provide for the application of contractor selection procedures, the provisions of Clauses 3 and 4, Article 3 of the Bidding Law must be complied with. The submission, appraisal and approval procedures must comply with this Decree. 

4. In case treaties or international agreements do not provide for the application of contractor selection procedures, the selection of contractors must comply with the Bidding Law and this Decree.

Section 2

GUARANTEE OF COMPETITIVENESS IN BIDDING

Article 2. Guarantee of competitiveness in bidding

1. Contractors that submit dossiers of expression of interest or dossiers for participation in prequalification must meet the requirements prescribed in Clauses 1 and 2, Article 6 of the Bidding Law.

2. Contractors that participate in a mixed bidding package must be legally and financially independent from the contractors that have made the feasibility study report, technical design dossier and construction drawing design dossiers for such bidding package, except cases when such work constitutes part of the mixed bidding package.

3. A consultancy contractor may provide one or more than one consultancy service for the same project or bidding package, including: making the pre-feasibility report, feasibility report, technical design dossier or construction drawing design dossier, and providing supervision consultancy.

4. A contractor is regarded as legally and financially independent from other contractors and the consultancy contractor, project owner and bid solicitor as prescribed in Clauses 1, 2 and 3, Article 6 of the Bidding Law when fully meeting the following conditions:

a/ They do not belong to the same agency or are not directly managed by the same organization, for non-business units;

b/ The contractor’ shares or contributed capital portion must not exceed 30% of the total shares or contributed capital of the project owner or bid solicitor and vice versa;

c/ The contractor’s shares or contributed capital portion in another contractor that participates in the same bidding package, if any, must not exceed 20% of the total shares or capital of such contractor, for restricted bidding;

d/ The contractor and consultancy contractor of the same bidding package do not hold shares or contributed capital portions in one another; and the contractor and the consultancy contractor each must not have more than 20% of its shares or contributed capital held by the same organization or individual.  

5. For a state economic group, if products and goods under a bidding package constitute the group’s major production and business lines and are the output of a company and concurrently the input of another company in the group, the group and its affiliated companies may participate in one another’s process of contractor selection. In case a product or goods under a bidding package, which constitutes the output of a company and concurrently the input of another company in the group, is the only one of its kind in the market, the Prime Minister’s regulations shall be complied with.

Section 3

PREFERENCES IN SELECTION OF CONTRACTORS

Article 3. Principles of preferences

1. After all preferences are determined, if two bid dossiers or dossiers of proposals are ranked equal, priority will be given to the contractor proposing higher domestic production costs or employing more local workers  (calculated based on the value of payable salary and remuneration amounts).

2. When determining preferences, a contractor that is entitled to more than one preference may enjoy only the highest preference stated in the bidding dossier or dossier of requirements.

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

Article 4. Preferences in international bidding

1. For bidding packages to provide consultancy services:

a/ In case of applying the lowest bid method, contractors not entitled to preferences will 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 fixed bid method or technique-based method, contractors entitled to preferences will have their technical points added with 7.5% of such points for comparison and ranking;

c/ In case of applying the method of combined techniques and bids, contractors entitled to preferences will have their total points added with 7.5% of such points for comparison and ranking.

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

a/ In case of applying the lowest bid method, contractors not entitled to preferences will 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 evaluation bid method, contractors not entitled to preferences will have their evaluation 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 their bids for comparison and ranking;

c/ In case of applying the method of combined techniques and bids, contractors entitled to preferences will have their total points added with 7.5% of such points for comparison and ranking.

3. For bidding packages for goods procurement, preferences for domestically manufactured goods must comply with Article 5 of this Decree.

Article 5. Preferences for domestically manufactured goods

1. Goods are entitled to preferences only if contractors can prove that the domestic production costs of such goods account for 25% or more of their prices. The ratio (%) of goods’ domestic production costs shall be determined by the following formula:

D (%) = G*/G (%)

In which:

- G* is domestic production costs being the offer price of goods stated in the bid dossier or dossier of proposals minus tax value and import expenses, including also charges and fees;

- G is the offer price of goods stated in the bid dossier or dossier of proposals minus tax value;

- D is the ratio of domestic production costs of goods. If D ≥ 25%, the goods are entitled to preferences under Clause 2 of this Article.

2. Preference determination methods:

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

b/ In case of applying the evaluation bid method, contractors’ evaluation bids will be added with an amount of money equal to 7.5% of their bids for goods not entitled to preferences after error correction and deviation adjustment minus the value of discounts (if any) for comparison and ranking;

c/ In case of applying the method of combined techniques and bids, the total points of goods entitled to preferences will be added with preferential points by the following formula:

Preferential point = 0.075 x (price of goods entitled to preferences/price of the bidding package) x total point

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).

Article 6. Preferences in national bidding

1. For bidding packages to procure goods, preferences for domestically manufactured goods must comply with Article 5 of this Decree.

2. In case bid dossiers and dossiers of proposals of contractors are ranked equal, bid dossiers and dossiers of proposals of contractors with a total number of female employees or employees being war invalids or people with disabilities working under labor contracts of at least 3 months accounting for 25% or more, and of contractors being small-sized enterprises entitled to preferences under Clause 3, Article 14 of the Bidding Law shall be ranked higher than those of contractors not entitled to any preferences.

3. For construction and installation bidding packages with a price not exceeding VND 5 billion, only contractors being small-sized and micro-enterprises as prescribed by the law on enterprises may participate in the bidding.

4. After all preferences are taken into consideration, if bid dossiers or dossiers of proposals are ranked equal, contractors based in the localities where the bidding packages will be executed shall be ranked higher.

Section 4

PROVISION AND PUBLISHING OF INFORMATION; EXPENSES; PRESERVATION OF DOSSIERS IN THE COURSE OF CONTRACTOR SELECTION

Article 7. Provision and publishing of information on bidding

1. Responsibilities to provide information:

a/ Ministries, ministerial-level agencies, government-attached agencies, other central agencies, provincial-level People’s Committees and competent persons shall provide the information mentioned at Point g, Clause 1, Article 8 of the Bidding Law to the national bidding network or the Bidding newspaper.

b/ Ministries, ministerial-level agencies, government-attached agencies, other central agencies and provincial-level People’s Committees shall provide the information mentioned at Point h, Clause 1, Article 8 of the Bidding Law to the national bidding network;

c/ Bid solicitors shall provide the information mentioned at Point a, Clause 1, Article 8 of the Bidding Law to the national bidding network;

d/ Bid solicitors shall provide the information prescribed at Points b, c, d and dd, Clause 1, Article 8 of the Bidding Law and information relating to the change of the time of bid closing (if any) to the national bidding network or the Bidding newspaper;

dd/ Contractors shall themselves publish information on their capacity and experience to the national bidding network and update such information according to Point d, Clause 1, Article 5 and Point k, Clause 1, Article 8 of the Bidding Law; 

e/ Bidding training institutions and lecturers and experts possessing bidding practice certificates shall provide information relating to their training and practice activities to the Ministry of Planning and Investment for publishing in the national bidding network according to Point k, Clause 1, Article 8 of the Bidding Law.

2. Responsibility to publish information:

a/ The Ministry of Planning and Investment shall publish bidding information;

b/ Valid information as prescribed shall be published on the national bidding network and the Bidding newspaper. When detecting invalid information, the Ministry of Planning and Investment shall announce such on the national bidding network and the Bidding newspaper for units that have provided such information to know, correct and complete information for publishing.

3. Information about the online selection of contractors shall be published on the national bidding network by bid solicitors themselves but must be valid as prescribed at Point b, Clause 2 of this Article.

4. For projects and bidding packages belonging to the list of state secrets, the publicization of information must comply with the law on confidentiality of state secrets.

5. The provision to and publishing on the national bidding network and the Bidding newspaper of information on bidding for bidding packages not governed by the Bidding Law are encouraged.

Article 8. Time limits and procedures for provision and publishing of bidding information

1. In case of publishing information on the national bidding network:

a/ Subjects required to provide information under Clause 1, Article 7 of this Decree shall register for participation in the national bidding network according to  Article 87 of this Decree and publish information on the national bidding network by themselves under the guidance of the Ministry of Planning and Investment;

b/ For the information prescribed at Points b and c, Clause 1, Article 8 of the Bidding Law, bid solicitors shall issue dossiers of invitation for expression of interest, dossiers of invitation to prequalification, bidding dossiers or dossiers of requirements within the time limit prescribed in the notice of invitation for expression of interest, notice of invitation to prequalification, notice of invitation for bids or notice of invitation for offer, which, however, must be at least 3 working days after the date such information is published on the national bidding network;

c/ Subjects required to publish the information prescribed at Points a, d, dd, g and h, Clause 1, Article 8 of the Bidding Law shall publish such information no later than 7 working days after the date of issuance of relevant documents.

2. In case of providing information to the Bidding newspaper:

a/ For the information prescribed at Points b and c, Clause 1, Article 8 of the Bidding Law, the time for the Bidding newspaper to receive such information is at least 5 working days before the expected date of issuance of dossiers of invitation for expression of interest, dossiers of invitation to prequalification, bidding dossiers or dossiers of requirements. Such information shall be published on one issue of the Bidding newspaper;

b/ For the information prescribed at Points d, dd and g, Clause 1, Article 8 of the Bidding Law, the time for the Bidding newspaper to receive such information is at most 7 working days after the issuance date of relevant documents. Such information shall be published on one issue of the Bidding newspaper.

3. Within 2 working days after organizations publish by themselves the information prescribed at Points b, c, d, dd and g, Clause 1, Article 8 of the Bidding Law on the national bidding network, the Bidding newspaper shall publish such information on one issue of the newspaper.

4. Within 2 working days after receiving the information prescribed at Points b, c, d, dd and g, Clause 1, Article 8 of the Bidding Law, the Bidding newspaper shall publish such information on the national bidding network and the newspaper.  For the information prescribed at Points b and c, Clause 1, Article 8 of the Bidding Law, bid solicitors shall issue dossiers of invitation for expression of interest, dossiers of invitation to prequalification, bidding dossiers and dossiers of requirements within the time limit prescribed in the notice of invitation for expression of interest, notice of invitation to prequalification, notice of invitation for bids or notice of invitation for offer, which, however, must be at least 3 working days after the date such information is published on the national bidding network or Bidding newspaper;

5. The provision and publishing of information relating to online bidding must comply with Clause 2, Article 88 of this Decree.

Article 9. Expenses arising in the course of contractor selection

1. For national bidding, project owners shall decide on the sale price (inclusive of tax) of bidding dossier and dossier of requirements based on the size and characteristics of bidding packages, which, however, must not respectively exceed VND 2,000,000 and VND 1,000,000. For international bidding, the sale prices must comply with international practices.

2. Expenses for making and appraisal of dossiers of invitation for expression of interest and dossiers of invitation to prequalification:

a/ The expense for making of a dossier of invitation for expression of interest or dossier of invitation to prequalification equals 0.05% of the price of the bidding package but must be between VND 1,000,000 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 0.03% of the price of the bidding package but must be between VND 1,000,000 and VND 30,000,000.

3. Expenses for making and appraisal of bidding dossiers and dossiers of requirements:

a/ The expense for making of a bidding dossier or dossier of requirements equals 0.1% of the price of the bidding package but must be between VND 1,000,000 and VND 50,000,000;

b/ The expense for appraisal of a bidding dossier or dossier of requirements equals 0.05% of the price of the bidding package but must be between VND 1,000,000 and VND 50,000,000.

4. Expenses for evaluation of dossiers of expression of interest, dossiers of participation in prequalification, bid dossiers and dossiers of proposals:

a/ The expense for evaluation of a dossier of expression of interest or dossier of participation in prequalification equals 0.05% of the price of the bidding package but must be between VND 1,000,000 and VND 30,000,000;

b/ The expense for evaluation of a bid dossier or dossier of proposals equals 0.1% of the price of the bidding package but must be between VND 1,000,000 and VND 50,000,000.

5. The expense for appraisal of contractor selection results, including cases of failure to select contractors, equals 0.05% of the price of the bidding package but must be between VND 1,000,000 and VND 50,000,000.

6. For bidding packages under the same project or procurement cost estimate, which have similar contents, and bidding packages subject to re-selection of contractors, expenses for making and appraisal of dossiers of invitation for expression of interest and dossiers of invitation to prequalification; for making and appraisal of bidding dossiers and dossiers of requirements must not exceed 50% of the expense levels prescribed in Clauses 2 and 3 of this Article. 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 reality.

7. The expense levels prescribed in Clauses 2, 3, 4, 5 and 6 of this Article apply to cases in which project owners or bid solicitors directly perform such jobs. In case of hiring bidding consultants to perform the jobs prescribed in Clauses 2, 3, 4, 5 and 6 of this Article, expenses shall be determined based on the contents and scope of the jobs, implementation duration, capacity and experience of consultants and other factors.

8. The expense for the Advisory Council to settle a contractor’s petition about contractor selection results equals 0.02% of the bid of such contractor but must be between VND 1,000,000 and VND 50,000,000.

9. Expenses for publishing bidding information, expenses for participation in the national bidding network and the use of revenues collected in the course of contractor selection must comply with the guidance of the Ministry of Planning and Investment and the Ministry of Finance.

Article 10. Preservation of dossiers in the course of contractor selection

1. All dossiers related to contractor selection shall be preserved for at least 3 years after contracts are finalized, except the dossiers prescribed in Clauses 2, 3 and 4 of this Article.

2. Dossiers of financial proposals of contractors that fail the technical evaluation shall be returned in their original state to contractors:

a/ Within 10 days after the date of signing contracts with selected contractors, for bidding packages to provide consultancy services;

b/ Within the time limit for return or release of bid security of contractors that are not selected, for bidding packages to provide non-consultancy services or procure goods, for construction and installation services, or mixed bidding packages subject to single-stage two-envelope bidding.

In case contractors refuse to receive back their dossiers of financial proposals within the time limit prescribed at Point a or b of this Clause, bid solicitors shall consider destroying such dossiers but shall ensure that information stated in such dossiers is not disclosed.

3. In case of bidding cancellation, related dossiers shall be preserved within 12 months after the issuance of the bidding cancellation decision.

4. Finalization dossiers, as-built dossiers and documents related to contractors winning bidding packages shall be preserved according to the law on archives.

Chapter II

PROCESSES OF OPEN BIDDING AND RESTRICTED 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 11. Detailed process

1. Preparing for the contractor selection, including:

a/ Making a bidding dossier;

b/ Appraising and approving the bidding dossier.

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.

4. Conducting negotiation of contracts.

5. Submitting, appraising, approving and publicizing contractor selection results.

6. Finalizing and signing contracts.

Article 12. Making of bidding dossiers

1. Bases for making a bidding dossier:

a/ The project approval decision or investment certificate, for projects, procurement cost estimate approval decision, for regular procurements, and related documents. For a bidding package which needs to be executed before the project approval decision is issued, the decision of the head of the project owner or the head of the unit assigned to prepare the project in case the project owner is not yet identified, may be used as a basis;

b/ The approved contractor selection plan;

c/ Design documents, enclosed with approved cost estimates, for bidding packages for construction and installation; requirements on characteristics and technical properties of goods (if any);

d/ Bidding regulations and relevant laws; treaties and international agreements (if any) for projects funded with official development assistance or concessional loans;

dd/ The State’s policies on taxes, charges and preferences in contractor selection and other relevant regulations.

2. Bidding dossiers must state criteria for evaluation of bid dossiers, including criteria for capacity and experience evaluation; technical evaluation criteria; determination of the lowest bid (in case of applying the lowest bid method) or evaluation bids (in case of applying the evaluation bid method). Bidding dossiers may not state any conditions to restrict the participation of contractors or create advantages for one contractor or some contractors, thus causing unfair competition.

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

a/ Criteria for capacity and experience evaluation

To use the pass-fail system to develop criteria for capacity and experience evaluation, clearly providing the minimum requirements for being evaluated as passing each content on contractors’ capacity and experience, specifically as follows:

- Experience in executing similar bidding packages; experience of operation in major production and business lines relevant to the bidding packages;

- Production and business capacity, technical and physical foundations, qualifications of professional staffs engaged in the execution of the bidding packages;

- Financial capacity: Total assets, total payables, short-term assets, short-term debts, turnover, profit, value of contracts being performed and other necessary norms to evaluate financial capacity of contractors.

The specific degree of requirements for each criterion prescribed in this Article shall be determined based on requirements of each bidding package. Contractors that are evaluated as passing all the items prescribed at this Point shall be regarded as satisfying capacity and experience requirements.

b/ Technical evaluation criteria

To use the pass-fail system or the method of point-rating according to a 100- or 1,000-point scale to develop technical evaluation criteria. In case of using the point-rating method, the minimum and maximum points for each general and specific criterion must be specified. Technical evaluation criteria shall be developed based on contractors’ capacity to meet requirements on the quantity, quality and time of delivery of goods, goods transportation, installation and warranty as well as contractors’ prestige expressed through their performance of similar contracts in the past, and other requirements stated in bidding dossiers. Based on each specific bidding package, when making a bidding dossier, the following items 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;

- Geographical and environmental adaptability;

- Environmental impacts and remedies;

- Financial capacity (if required);

- Factors on commercial conditions, implementation time, training and technology transfer;

- Goods supply schedule;

- Contractors’ prestige through their performance of similar contracts in the past;

- 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 bid prices into a common currency (if necessary);

- Determining the value of preferences (if any);

- Comparing bid dossiers to determine the lowest bid.

d/ Criteria for determining evaluation bids (in case of applying the evaluation bid method):

Formula for determining evaluation bids:

G_DG = G ± ∆_G + ∆_UD

In which:

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

- ∆_G is the value of factors converted to the same plane for the whole life cycle of goods, including:

+ Operation and maintenance expenses;

+ Loan interest expenses (if any);

+ Schedule;

+ Quality (productivity and capacity);

+ Origin;

+ Other factors (if any).

- ∆_UD  is the to-be-added value under Point b, Clause 2, Article 5 of this Decree, for subjects ineligible for any preferences.

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

a/ Criteria for capacity and experience evaluation

To use the pass-fail system to develop criteria for capacity and experience evaluation, clearly specifying the minimum requirements for being evaluated as passing each content on contractors’ capacity and experience, specifically as follows:

- Experience of performing bidding packages of similar size and technical properties under similar geological and geographical conditions in similar locations (if any); experience of operation in the main production and business lines relevant to the bidding packages;

- Technical capacity: Number and qualifications of major professional staffs and technical workers directly engaged in the performance of the bidding packages, quantity of available construction equipment and ability to mobilize construction equipment serving the performance of the bidding packages;

- Financial capacity: Total assets, total payables, short-term assets, short-term debts, turnover, profit, value of contracts being performed and other necessary items to evaluate contractors’ financial capacity;

Specific requirements for each item prescribed at this Point shall be determined based on the requirements of each bidding package. Contractors that are evaluated as passing all the items prescribed at this Point shall be regarded as satisfying requirements on capacity and experience.

b/ Criteria for technical evaluation

To use the pass-fail system or the method of point rating with a 100- or 1,000-point scale to develop technical evaluation criteria. In case of applying the point-rating method, the minimum and maximum points for each general and specific criterion must be specified. Technical evaluation criteria shall be developed based on such items as satisfaction of requirements on design dossiers, bill of quantities, contractors’ prestige through their performance of similar contracts in the past and other requirements stated in the bidding dossier. Based on each specific bidding package, when making a bidding dossier, the following items which serve as bases for technical evaluation must be specified:

- Reasonability and feasibility of technical solutions and construction measures in compatibility with the proposed construction schedule;

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.

- Construction schedule;

- Quality assurance measures;

- Assurance of environmental and hygienic conditions and other conditions such as fire prevention and fighting and labor safety;

- Degree of satisfaction of warranty and maintenance requirements;

- Contractors’ prestige through their performance of similar contracts in the past;

- Other necessary factors.

c/ The determination of the lowest bid (in case of applying the lowest bid method) must comply with Point c, Clause 3 of Article;

d/ Criteria for determining evaluation bids (in case of applying the evaluation bid method):

Formula for determining evaluation bids:

G_DG = G ± ∆_G + ∆_UD

In which:

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

- ∆_G is the value of factors converted to the same plane for the whole life cycle of goods, including:

+ Operation and maintenance expenses;

+ Loan interest expenses (if any);

+ Schedule;

+ Quality;

+ Other factors (if any).

- ∆_UD  is the to-be-added value under Point b, Clause 2, Article 4 of this Decree, for subjects ineligible for any preferences.

5. 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 evaluation bids (in case of applying the evaluation bid methods) shall be developed based on the size and characteristics of bidding packages and pursuant to Clauses 2, 3 and 4 of this Article as appropriate.

6. The evaluation method of combined techniques and bids must not apply to bidding packages for which contractors shall be selected by the method of single-stage single-envelope.

7. Bidding dossiers may not impose requirements on specific brands and origins of goods. For goods which cannot be described according to their technical characteristics, 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 standards and other items (if any) shall be clearly defined so as to facilitate contractors’ preparation of bid dossiers. Contractors shall be required to submit producers’ licenses or written authorization for goods sale or papers proving partnership relations only for specialized and complicated goods that require the specification of producers’ responsibility in providing after-sale services such as warranty, maintenance, repair and supply of accessories and spare parts.

8. Provisions on employment of laborers:

a/ For international bidding, bidding dossiers must state the employment of local laborers, especially manual laborers, for jobs which local laborers can do. Foreign laborers shall only be employed to perform jobs local employees cannot do. Contractors that fail to comply with regulations on employment of laborers in the course of performing contracts shall, depending on the severity of their violations, be banned from participating in bidding in Vietnam according to Clause 4, Article 122 of this Decree;

b/ For bidding packages which need a large number of manual laborers, bidding dossiers must ask contractors to propose plans on the employment of laborers in the localities where the projects or bidding packages will be implemented.

c/ Project owners shall take responsibility before law for the compliance with Point a of this Clause in the course of making bidding dossiers, evaluating bid dossiers, approving contractor selection results and signing and performing contracts;

d/ Bid dossiers of contractors that do not satisfy bidding dossiers’ requirements on labor employment prescribed at Point a of this Clause shall be eliminated.

Article 13. Appraisal and approval of bidding dossiers

1. Bidding dossiers shall be appraised according to Article 105 of this Decree before they are approved.

2. The approval of bidding dossiers shall be made in writing on the basis of reports for approval and reports on appraisal of bidding dossiers.

Article 14. Organization of contractor selection

1. Conducting bid invitation:

Bid solicitors shall publish bid invitation notices according to Point d, Clause 1, Article 7 and Point b, Clause 1 or Point b, Clause 2, Article 8 of this Decree.

2. Distributing, modifying and clarifying bidding dossiers:

a/ Bidding dossiers shall be distributed to contractors participating in open bidding or shortlisted contractors. For contractors in a partnership, only one member of the partnership may purchase or receive the bidding dossier, even in case the partnership is not yet formed at the time of purchasing or receiving bidding dossiers;

b/ In case of modifying bidding dossiers after they are issued, bid solicitors shall send decisions on modification of bidding dossiers, enclosed with modified contents, to all contractors that have purchased or received bidding dossiers;

c/ When considering that a bidding dossier needs to be clarified, a contractor shall send a written request to the bid solicitor at least 3 working days (for national bidding) or 5 working days (for international bidding) before the date of bid closing for consideration and handling. The bid solicitor shall clarify the bidding dossier in any of the following forms:

- Sending a document clarifying the bidding dossier to the contractors that have purchased or received the bidding dossier;

- When necessary, organizing a pre-bidding conference to exchange opinions about unclear contents of the bidding dossier. The bid solicitor shall record contents discussed at the conference and make a document clarifying the bidding dossier and send such document to all contractors that have purchased or received the bidding dossier;

- The contents of the document clarifying the bidding dossier must not be contrary to the contents 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 as requested in bidding dossiers;

b/ Bid solicitors shall receive and manage submitted bid dossiers according to regulations on management of secret documents until contractor selection results are publicized; in all cases, they may not disclose information stated in the bid dossier of one contractor to another contractor, except information to be publicized upon bid opening. Bid dossiers which are sent to bid solicitors after the time of bid closing shall not be opened and be regarded as invalid and eliminated. Any documents sent by contractors to bid solicitors after the time of bid closing to modify  or supplement the submitted bid dossiers shall be regarded as invalid, except documents sent by contractors to clarify bid dossiers at the request of bid solicitors or documents to prove contractors’ eligibility, capacity and experience;

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;

d/ Bid solicitors shall receive bid dossiers of all contractors that submit bid dossiers before the time of bid closing, including also those that have not yet purchased or received bidding dossiers directly from bid solicitors. Contractors that have not yet purchased bidding dossiers shall pay to bid solicitors an amount of money equaling the sale price of bidding dossiers before their bid dossiers are received.

4. Opening bids:

a/ The opening of bids shall be carried out publicly within 1 hour after the time of bid closing. Only bid dossiers which are received by bid solicitors before the time of bid closing stated in the bidding dossier shall be opened to the witness of representatives of contractors participating in the bid-opening ceremony, regardless of whether the contractors are present or not;

b/ Bid dossiers shall be opened in the alphabetical order of the names of contractors and in the following order:

- Requesting the representative of each contractor participating in the bid-opening ceremony to determine whether or not his/her bid dossier is accompanied by a discount offer letter;

- Checking the seal;

- Opening the dossier and clearly reading out the name of the contractor; number of originals and copies in the dossier; bid stated in the bid application; value of discounts (if any); validity duration of the bid dossier; contract performance duration; value and validity of bid security; and other relevant information;

c/ Bid-opening records: The information stated at Point b 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. Such record shall be sent to all contractors participating in bidding;

d/ 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); partnership agreement (if any); bid security; financial proposals and other important documents of each bid dossier.

Article 15. 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 performing the bidding packages.

2. The evaluation 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.

3. 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, these bid dossiers shall be eliminated.

Article 16. Clarification of bid dossiers

1. After bid opening, contractors shall clarify bid dossiers at the request of the bid solicitor. In case a contractor’s bid dossier lacks documents proving his/her/its eligibility, capacity and experience, the bid solicitor shall request the contractor to clarify and supplement such documents. For technical and financial proposals stated in contractors’ bid dossiers, the clarification of bid dossiers must not cause changes to basic contents of the submitted bid dossiers and bids.

2. After bid closing, if a contractor detects that the bid dossier lacks documents proving his/her/its eligibility, capacity and experience, he/she/it may send these documents to the bid solicitor for clarifying his/her/its eligibility, capacity and experience. The bid solicitor shall receive these documents for consideration and evaluation; these documents shall be regarded part of the bid dossier.

3. The clarification of a bid dossier shall only be conducted between the bid solicitor and contractor that has his/her/its bid dossier to be clarified, ensuring that such clarification does not change the substance of the contractor participating in bidding. The clarified contents must be expressed in writing and preserved by the bid solicitor as part of the bid dossier.

Article 17. 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. In case a bidding dossier requires a detailed analysis of unit prices, data in the table of detailed analysis of unit prices shall be used to correct arithmetic errors. If there are any inconsistencies between the unit price and the sum, the unit price shall be used for error correction; if detecting any abnormal inconsistencies in the unit price as a result of mistakes in the decimal system (10, 100 or 1,000 times), the sum shall be used for error correction;

b/ Other errors:

- If the “sum” column is fully filled in but there is no corresponding unit price, the unit price shall be additionally determined by dividing the sum by the quantity; when the unit price is available but the “sum” 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 sum but no quantity, such quantity shall be additionally determined by dividing the value in the “sum” column by the unit price. In case the additionally determined quantity is different from that stated in the bid dossier, such difference is the deviation in the scope of provision and shall be adjusted under Clause 2 of this Article;

- Errors in units of calculation: These errors shall be corrected to meet the requirements of the bidding dossier;

- If there are any inconsistencies between the contents in technical proposals and financial proposals, the contents in technical proposals shall be used for error correction.

2. Deviation adjustment:

a/ In case of deviation in the scope of provision, the deficient offered value shall be added while the surplus offered value shall be subtracted based on corresponding unit prices in the contractor’s bid dossier containing deviation;

In case there is no unit price in the contractor’s bid dossier containing deviation, the highest offered unit price of a certain item in other bid dossiers which have passed the technical evaluation shall be used for deviation adjustment; in case there is no unit price in the bid dossiers of contractors that have passed the technical evaluation, the unit price in the cost estimate shall be used for deviation adjustment; in case there is no cost estimate for a bidding package, the unit price forming the bidding package’s price shall be used for deviation adjustment;

In case only one contractor has passed the technical evaluation, deviation adjustment shall be based on the corresponding unit price in the bid dossier of this contractor; in case there is no unit price in the contractor’s bid dossier, the unit price in the bidding package’s cost estimate shall be used for deviation adjustment; in case there is no cost estimate for the bidding package, the unit price forming the bidding package’s price shall be used for deviation adjustment;

b/ In case a contractor offers payable taxes, charges or fees which are deficient as compared with the requirements in the bidding dossier, the bid solicitor shall include such taxes, charges or fees in the bid. Such taxes, charges or fees may not be included in deficient deviation under Point d, Clause 1, Article 43 of the Bidding Law;

c/ For a contractor with a discount 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;

d/ In case the first ranked contractor with his/her/its bid dossier subject to deviation adjustment is invited to negotiate a contract, the lowest offered unit price among those in other bid dossiers which have passed the technical evaluation shall be based on to conduct negotiation on deficient deviation.

3. After error correction and deviation adjustment under Clauses 1 and 2 of this Article, the bid solicitor shall notify in writing the contractor of the error correction and deviation adjustment of the contractor’s bid dossier. Within 3 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. If the contractor does not accept such results, his/her/its bid dossier shall be eliminated.

Article 18. Evaluation of bid dossiers

1. Examining the validity of a bid dossier, covering:

a/ Checking the quantities of originals and copies of the dossier;

b/ Checking the composition of the dossier, such as bid application, partnership agreement (if any), power of attorney (if any) for signing the bid application; bid security; documents proving eligibility of contractors; documents proving capacity and experience of contractors; technical proposals; financial proposals; and other contents of the dossier;

c/ Checking the consistency between originals and copies of the dossier to serve the detailed evaluation of the dossier.

2. Evaluating the validity of a bid dossier:

A contractor’s bid dossier shall be evaluated as valid when fully meeting the following conditions:

a/ Being original;

b/ Having the bid application signed and sealed (if any) by the contractor’s at-law representative as required in the bidding dossier; the bidding package execution duration stated in the bid application must conform to technical proposals; the bid stated in the bid application must be specific and fixed in figures and words and must conform to the total bid stated in the general price table; different bids or bids enclosed with disadvantageous conditions for the project owner or bid solicitor must not be offered. For contractors to a partnership, a bid application shall be signed and sealed (if any) by the at-law representative of each partner or signed by the leading partner on behalf of the partnership as assigned in the partnership agreement;

c/ Its validity satisfies the requirements prescribed in the bidding dossier;

d/ Having bid security with value and validity duration meeting the requirements of the bidding dossier. In case bid security is provided in the form of a letter of guarantee, this letter of guarantee shall be signed by the at-law representative of a credit institution or foreign bank branch established under Vietnamese law, with value, validity duration and beneficiary meeting the requirements of the bidding dossier;

dd/ A contractor must not be named in two or more bid dossiers in the capacity as principal contractor (independent contractor or partner);

e/ Having a partnership agreement signed and sealed (if any) by the at-law representative of each partner;

g/ The contractor is not currently banned from participating in bidding activities under the bidding law;

h/ The contractor is eligible under Clause 1, Article 5 of the Bidding Law.

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 prescribed in bidding dossiers;

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

4. Evaluation of techniques and bids:

a/ Technical evaluation shall be conducted using the evaluation criteria and methods prescribed in bidding dossiers;

b/ Contractors that meet technical requirements may be considered for determination of the lowest bid (in case of applying the lowest bid method) or evaluation bid (in case of applying the evaluation bid method).

5. After a list of ranked contractors is selected, the expert team shall make and send a report to the bid solicitor for consideration. This report must clearly state the following:

a/ List of ranked contractors and their rankings;

b/ List of disqualified and eliminated contractors; and reason for elimination;

c/ Remarks on the competitiveness, fairness, transparency and economic efficiency during the contractor selection. If competitiveness, fairness, transparency and economic efficiency cannot be ensured, to clearly state the reasons and propose handling measures;

d/ The bidding dossier’s contents incompliant with the bidding law, which results in misunderstanding or different ways of understanding during implementation or which might distort the contractor selection result; and handling measures.

Article 19. Negotiation of contracts

1. The first ranked contractor shall be invited to negotiate a contract. If this contractor does not come or refuses to negotiate a contract, he/she/it may not receive back bid security.

2. The negotiation of a contract must be based on:

a/ The evaluation report of the bid dossier;

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

c/ The bidding dossier.

3. Contract negotiation principles:

a/ The contents already proposed by contractors and meeting the requirements of bidding dossiers shall not be negotiated;

b/ The negotiation of a contract must not change the unit price offered by the contractor after error correction and deviation adjustment minus the value of discounts (if any). During the evaluation of the bid dossier and contract negotiation, if detecting that the bidding volume stated in the bill of quantities is smaller than that stated in the design dossier, the bid solicitor shall request the contractor to supplement the deficient volume based on the offered unit price; if there is no unit price in the bid dossier, the bid solicitor shall report such to the project owner for consideration and decision to apply the unit price stated in the approved cost estimate for the deficient volume or the unit price of another contractor that has passed the technical evaluation if this unit price is lower than that approved in the bidding package’s cost estimate;

c/ The negotiation on deficient deviation must comply with Point d, Clause 2, Article 17 of this Decree.

4. Contract negotiation contents:

a/ The contents which remain unspecific, unclear or inconsistent between the bidding dossier and bid dossier or different contents in the bid dossier, which might cause problems or disputes or affect the responsibilities of related 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, for construction and installation or mixed bidding packages:

During negotiation, contractors may not substitute key persons they have proposed in bid dossiers to hold the positions of design manager, survey manager (for construction and installation or mixed bidding packages requiring contractors to take one designing step or two designing steps before construction), and chief commander of the construction site, except when the duration for evaluation of bid dossiers is longer than prescribed or when persons proposed by contractors for key positions are unable to participate in contract performance due to force majeure events. In these 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 detailed contents of a bidding package;

dd/ Other necessary contents.

5. During contract negotiation, related parties shall finalize a draft contract and its specific terms and annexes, including a detailed list of the scope of jobs, prices, and implementation schedule (if any).

6. If negotiation fails, the bid solicitor shall report such to the project owner for consideration and decision to invite the next lower-ranked contractor to enter into negotiation. If negotiation with the next lower-ranked contractor also fails, the bid solicitor shall report such to the project owner for consideration and decision to cancel bidding under Clause 1, Article 17 of the Bidding Law.

Article 20. 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 submit the contractor selection result, clearly stating his/her/its opinions on the evaluation contents of the expert team.

2. The contractor selection result shall be appraised under Clauses 1 and 4, Article 106 of this Decree before being approved.

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

4. In case a winning contractor can be selected, the written approval of the contractor selection result must comprise:

a/ Name of the winning contractor;

b/ Winning bid;

c/ Type of contract;

d/ Contract performance duration;

dd/ Matters of concern (if any).

5. In case of bidding cancellation under Clause 1, Article 17 of the Bidding Law, the written approval of the contractor selection result or the bidding cancellation decision must clearly state the reason for bidding cancellation and responsibilities of related parties upon bidding cancellation.

6. After the decision approving the contractor selection result is issued, the bid solicitor shall publish information on the contractor selection result under Point d, Clause 1, Article 7 and Point c, Clause 1 or Point b, Clause 2, Article 8 of this Decree; and send a notice of the contractor selection result to contractors participating in bidding within the time limit prescribed at Point n, Clause 1, Article 12 of the Bidding Law. This notice must comprise:

a/ Information 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 signing with the selected contractor.

Section 2

SINGLE-STAGE TWO-ENVELOPE BIDDING

Article 21. Detailed process

1. Preparation for contractor selection, covering:

a/ Selecting a short list (when necessary);

b/ Making bidding dossiers;

c/ Appraising and approving bidding dossiers.

2. Organization of contractor selection, covering:

a/ Inviting bids;

b/ Distributing, modifying and clarifying bidding dossiers;

c/ Preparing, submitting, receiving, managing, modifying and withdrawing bids;

d/ Opening dossiers of technical proposals.

3. Evaluation of dossiers of technical proposals, covering:

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

b/ Conducting detailed evaluation of dossiers of technical proposals;

c/ Approving a list of contractors that meet technical requirements.

4. Opening and evaluation of dossiers of financial proposals, covering:

a/ Opening dossiers of financial proposals of contractors on the approved list;

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

c/ Conducting detailed evaluation of dossiers of financial proposals;

d/ Ranking contractors.

5. Negotiation of contracts.

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

7. Finalization and signing of contracts.

Article 22. Selection of short lists

Depending on the size and characteristics of a bidding package, short list selection procedures may be applied to select fully capable and experienced contractors that meet the requirements of the bidding package to participate in bidding. The application of short list selection procedures shall be decided by a competent person and clearly stated in the contractor selection plan.

1. For open bidding:

a/ Making dossiers of invitation to prequalification:

- A dossier of invitation to prequalification must comprise brief information on the project or bidding package; instructions on preparation and submission of a dossier for participation in prequalification; and capacity and experience criteria for contractors;

- The pass and fail criteria shall be used to evaluate dossiers for participation in prequalification. The criteria for evaluating dossiers for participation in prequalification must specify the minimum level for every content on capacity and experience of contractors to be evaluated as pass;

b/ A dossier of invitation to prequalification shall be approved in writing on the basis of the report for approval and report on appraisal of the dossier;

c/ A notice of invitation to prequalification must comply with Point d, Clause 1, Article 7 and Point b, Clause 1 or Point a, Clause 2, Article 8, of this Decree;

d/ Distribution of dossiers of invitation to prequalification:

Dossiers of invitation to prequalification shall be distributed free of charge to contractors until before the time of bid closing;

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 submitted within the time limits and at places specified in the dossier of invitation to prequalification shall be opened right after the time of bid closing. A record shall be made on the opening of dossiers for participation in prequalification and sent to contractors that have submitted these dossiers. Dossiers for participation in prequalification submitted after the time of bid closing shall not be opened and shall be regarded as invalid and eliminated;

- The evaluation of dossiers for participation in prequalification must be conducted using the criteria stated in the dossier of invitation to prequalification. Contractors with dossiers for participation in prequalification evaluated as passing all contents on capacity and experience shall be included in a short list.

g/ Submission, appraisal and approval of prequalification results:

- Based on the report on evaluation results of dossiers for participation in prequalification, the bid solicitor shall submit prequalification results for approval, clearly stating his/her/its opinion on the evaluation contents of the expert team;

- Prequalification results shall be appraised under Clauses 1 and 2, Article 106 of this Decree before being approved;

- Prequalification results shall be approved in writing on the basis of the report for approval and report on appraisal of prequalification results;

- In case a short list 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 case a short list cannot be selected, the written approval of prequalification results must clearly state the reason.

h/ Publicization of a short list: A short list shall be published under Point d, Clause 1, Article 7 and Point c, Clause 1 or Point b, Clause 2, Article 8, of this Decree and notified to contractors that have submitted dossiers for participation in prequalification.

2. For restricted bidding:

a/ Determination and approval of a short list: A short list must include at least 3 contractors that satisfy the bidding package’s capacity and experience requirements and wish to participate in bidding;

b/ Publicization of a short list: After being approved, a short list shall be published under Point d, Clause 1, Article 7 and Point c, Clause 1 or Point b, Clause 2, Article 8, of this Decree.

3. Short-listed contractors may not form partnerships among themselves in order to participate in bidding.

Article 23. Making a bidding dossier

1. The bases for making a bidding dossier must comply with Clause 1, Article 12 of this Decree.

2. Criteria for evaluation of a bid dossier include 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 evaluation bid (in case of applying the evaluation bid method); determination of the point of the bid; and criteria for general evaluation (in case of applying the method of combined techniques and bids). 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. The bidding dossier must not establish any conditions aiming to restrict the participation of contractors or create advantages for one contractor or several contractors, thus causing unfair competition.

3. The criteria for evaluating capacity and experience of contractors and criteria for technical evaluation must comply with Points a and b, Clause 3 and Points a and b, Clause 4, Article 12 of this Decree.

4. The determination of the lowest bid (in case of applying the lowest bid method) must comply with Point c, Clause 3, Article 12 of this Decree.

5. The criteria for determining the evaluation bid (in case of applying the evaluation bid method) must comply with Point d, Clause 3 and Point d, Clause 4, Article 12 of this Decree.

6. The criteria for general evaluation (in case of applying the method of combined techniques and bids) must comply with Article 24 of this Decree.

7. Trademarks and origin of goods must comply with Clause 7, Article 12 of this Decree.

8. Employment must comply with Clause 8, Article 12 of this Decree.

9. 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 Clauses 2 thru 8 of 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 evaluation bid (in case of applying the evaluation bid method); determination of the point of the bid; and criteria for general evaluation (in case of applying the method of combined techniques and bids) as appropriate.

Article 24. Criteria for general evaluation

The criteria for general evaluation apply to the method of combined techniques and bids, specifically as follows:

1. Determination of the point of the bid:

A 100-point or 1,000-point scale shall be used in conformity with the technical point scale to determine the point of the bid. The point of the bid shall be determined as follows:

Of which:

- The point of the bid_{under consideration} is the point of the bid stated in the dossier of financial proposals under consideration;

- G_minimum is the bid after error correction and deviation adjustment minus the value of discounts (if any), which is the lowest bid among those offered by contractors eligible for detailed financial evaluation;

- G_{under consideration} is the bid after error correction and deviation adjustment minus the value of discounts (if any), stated in the dossier of financial proposals under consideration.

2. Criteria for general evaluation:

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 point and point of the bid, ensuring that the total of the technical point and point of the bid is 100%, specifically as follows:

a/ For construction and installation bidding packages: The ratio of the technical point (K) is 10%-15% and the ratio of the point of the bid (G), 85-90%;

b/ For goods procurement bidding packages: The ratio of the technical point (K) is 10%-30% and the ratio of the point of the bid (G), 70-90%;

c/ For medicine purchase bidding packages: The ratio of the technical point (K) is 20%-30% and the ratio of the point of the bid (G), 70-80%;

d/ Determination of the general point

General point_{under consideration} = K x Technical point_{under consideration} + G x Point of the bid_{under consideration}

Of which:

- Technical point_{under consideration} is the point determined at the stage of technical evaluation;

- Point of the bid_{under consideration} is the point determined at the stage of bid evaluation;

- K is the ratio of the technical point in the general point scale;

- G is the ratio of the point of the bid in the general point scale;

- K + G = 100%. The ratio of the technical point (K) and the ratio of the point of the bid (G) shall be specified in the bidding dossier.

Article 25. Appraisal and approval of bidding dossiers

1. Bidding dossiers shall be appraised under Article 105 of this Decree before being approved.

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

Article 26. Organization of contractor selection

1. Bid invitation:

a/ Bid invitation notice applies to cases in which short list selection procedures are not carried out and must comply with Point d, Clause 1, Article 7 and Point b, Clause 1 or Point a, Clause 2, Article 8, of this Decree;

b/ Bid invitation letters shall be sent to short-listed contractors.

2. Distribution, modification and clarification of bidding dossiers:

The distribution, modification and clarification of bidding dossiers must comply with Clause 2, Article 14 of this Decree.

3. 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 14 of this Decree.

4. Opening of dossiers of technical proposals:

a/ Opening of dossiers of technical proposals: Dossiers of technical proposals shall be opened publicly within 1 hour after the time of bid closing. Only the dossiers of technical proposals received by the bid solicitor before the time of bid closing and meeting the requirements of bidding dossiers shall be opened to the witness of contractors’ representatives participating in the bid-opening ceremony, regardless of whether or not the contractors are present;

b/ Bid dossiers shall be opened 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 copies of the dossier; bidding application in the dossier; validity duration of the dossier; contract performance duration; value and validity of bid security; and other relevant information;

c/ Bid opening record: Information stated at Point b of this Clause shall be written in the bid opening record. This record shall be signed by the bid solicitor’s and contractors’ representatives participating in the bid-opening ceremony and sent to the contractors participating in bidding;

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; partnership agreement (if any); bid security; and important contents 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 bid-opening ceremony.

Article 27. Principles of evaluation, and clarification of, bid dossiers, error correction and deviation adjustment

1. The principles of evaluation of bid dossiers are prescribed in Article 15 of this Decree;

2. The clarification of bid dossiers must comply with Article 16 of this Decree.

3. Error correction and deviation adjustment must comply with Article 17 of this Decree.

Article 28. Evaluation of dossiers of technical proposals

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

a/ Checking the quantities of originals and copies of the dossier;

b/ Checking the composition of the dossier, such as bid application in the dossier, partnership agreement (if any), power of attorney (if any) for signing the bid application; bid security; documents proving eligibility of contractors; documents proving capacity and experience of contractors; technical proposals; and other contents of the dossier;

c/ Checking 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 following conditions:

a/ Being original;

b/ Having the bid application signed and sealed (if any) by the contractor’s at-law representative as required in the bidding dossier; the contractor clearly states in the bid application the schedule for performing the bidding package in conformity with technical proposals. For contractors to a partnership, a bid application shall be signed and sealed (if any) by the at-law representative of each partner or signed by the leading partner on behalf of the partnership as assigned in the partnership agreement;

c/ Its validity satisfying the requirements stated in the bidding dossier;

d/ Having the bid security meeting the requirements of the bidding dossier on value and validity duration. In case the bid security is required to be provided in the form of a letter of guarantee, this letter of guarantee shall be signed by the at-law representative of a credit institution or foreign bank branch established under Vietnamese law, meeting the requirements on value, validity duration and beneficiary as stated in the bidding dossier;

dd/ The contractor must not be named in two or more dossiers of technical proposals in the capacity as principal contractor (independent contractor or partner);

e/ Having a partnership agreement signed and sealed (if any) by the at-law representative of each partner;

g/ The contractor is currently not banned from participating in bidding activities under the bidding law;

h/ The contractor is eligible under Clause 1, Article 5 of the Bidding Law.

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 stated in bidding dossiers;

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

c/ 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.

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 evaluated.

5. A list of contractors that meet technical requirements shall be approved in writing and based on the report for approval and report on appraisal of technical evaluation results. The bid solicitor shall notify the list of contractors that meet technical requirements to all contractors participating in bidding and invite contractors that meet technical requirements to open dossiers of financial proposals.

Article 29. Opening of dossiers of financial proposals

1. Checking the seals of envelopes of dossiers of financial proposals.

2. Opening dossiers of financial proposals:

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/ Each contractor’s representative participating in the dossier-opening ceremony shall be asked to certify the availability or non-availability of a discount letter enclosed with his/her dossier of financial proposals;

c/ Each dossier of financial proposals shall be opened in the alphabetical order of the names of contractors on the list of contractors that meet technical requirements and in the following order:

- Checking the seal;

- Opening the dossier and clearly reading out the name of contractor; quantities of originals and copies of the dossier; bid application in the dossier; validity duration of the dossier; bid written in the bid application; value of discounts (if any); technical points of the bid dossier evaluated as meeting technical requirements; 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 and sent to the contractors that meet technical requirements;

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

Article 30. Evaluation of dossiers of financial proposals

1. Examining the validity of a dossier of financial proposals, including:

a/ Checking the quantities of originals and copies of the dossier;

b/ Checking the composition of the dossier, such as bid application in the dossier; general price list and detailed price list; table of detailed analysis of unit prices (if any); and other components of the dossier;

c/ Checking the consistency between originals and copies of the dossier to serve the detailed evaluation of the dossier.

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 following conditions:

a/ Being original;

b/ Having the bid application signed and sealed (if any) by the contractor’s at-law representative as required in the bidding dossier; the bid written in the bid application must be specific and fixed in figures and words and conformable with the total bid written in the general price list; different bids or bids enclosed with conditions causing disadvantages to the project owner or bid solicitor must not be offered. For contractors to a partnership, a bid application shall be signed and sealed (if any) by the at-law representative of each partner or signed by the leading partner on behalf of the partnership as assigned in the partnership agreement;

c/ Its validity satisfies the requirements stated in the bidding dossier.

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;

b/ After selecting the list of ranked contractors, the expert team shall make and send a report to the bid solicitor for consideration. This report must clearly state the following:

- 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, the report must clearly state the reasons and propose handling measures;

- The bidding dossier’s contents incompliant with the bidding law, which might cause misunderstanding or different ways of understanding during implementation or which might distort the contractor selection result (if any); and handling measures.

Article 31. Negotiation of contracts; submission, appraisal, approval and publicization of the contractor selection result

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

2. The negotiation of contracts must comply with Article 19 of this Decree.

3. The submission, appraisal, approval and publicization of the contractor selection result must comply with Article 20 of this Decree.

Chapter III

PROCESS OF OPEN BIDDING AND RESTRICTED BIDDING FOR BIDDING PACKAGES TO PROVIDE CONSULTANCY SERVICES

Section 1

FOR INSTITUTIONAL CONTRACTORS

Article 32. Detailed process

1. Preparation for contractor selection, covering:

a/ Selecting short lists (when necessary);

b/ Making bidding dossiers;

c/ Appraising and approving bidding dossiers.

2. Organization of contractor selection, covering:

a/ Inviting bids;

b/ Distributing, modifying and clarifying bidding dossiers;

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

d/ Opening dossiers of technical proposals.

3. Evaluation of dossiers of technical proposals, covering:

a/ Examining and evaluating the validity of the dossiers;

b/ Conducting detailed evaluation of the dossiers;

c/ Approving a list of contractors that meet technical requirements.

4. Opening and evaluation of dossiers of financial proposals, covering:

a/ Opening dossiers of financial proposals of the contractors on the approved list;

b/ Examining and evaluating the validity of the dossiers;

c/ Conducting detailed evaluation of the dossiers;

d/ Ranking contractors.

5. Negotiation of contracts.

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

7. Finalization and signing of contracts.

Article 33. Selection of a short list

Depending on the size and characteristics of a bidding package, short list selection procedures may be applied to select fully capable and experienced contractors that meet the requirements of the bidding package to participate in bidding. The application of short list selection procedures shall be decided by a competent person and shall be clearly stated in the contractor selection plan.

1. For open bidding:

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

- A dossier of invitation for expression of interest comprises brief information on the project or bidding package; instructions on preparation and submission of the dossier; and capacity and experience criteria of contractors, covering the requirements on quantity, qualifications and experience of experts;

- The point-rating method with a 100-point scale shall be used to establish criteria for evaluating a dossier of expression of interest, requiring the minimum point to be least 60% of the total points and the point given to each content on capacity, experience and personnel to be at least 50% of the maximum point of such content.

b/ A dossier of invitation for expression of interest shall be approved in writing on the basis of the report for approval and report on appraisal of this dossier;

c/ A notice of invitation for expression of interest must comply with Point d, Clause 1, Article 7 and Point b, Clause 1 or Point a, Clause 2, Article 8, of this Decree;

d/ Distribution of dossiers of invitation for expression of interest:

Dossiers of invitation for expression of interest shall be distributed free of charge to contractors till before the time of bid closing;

dd/ Receipt and management of dossiers of expression of interest:

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;

e/ 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. A record shall be made on the opening of dossiers of expression of interest and sent to the contractors that have submitted these dossiers. Dossiers of expression of interest submitted after the time of bid closing shall not be opened and shall be regarded as invalid and 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 short list; a dossier of expression of interest of a contractor that gains the highest point shall be ranked first; in case more than 6 contractors have satisfied the set­ requirements, only the 6 highest ranked contractors shall be short-listed;

g/ 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 submit the results of invitation for expression of interest for approval, clearly stating his/her/its opinions on the expert team’s evaluation contents;

- The results of invitation for expression of interest shall be appraised under Clauses 1 and 2, Article 106 of this Decree before being approved;

- The results of invitation for expression of interest shall be approved in writing on the basis of reports for approval and reports on appraisal of the results of invitation for expression of interest;

- In case a short list can be selected, the written approval of the results of invitation for expression of interest must state the names of the short-listed contractors and matters of concern (if any). In case a short list cannot be selected, the written approval of the results of invitation for expression of interest must clearly state the reason;

h/ Publicization of short lists:  Short lists shall be published under Point d, Clause 1, Article 7 and Point c, Clause 1 or Point b, Clause 2, Article 8, of this Decree, and notified to contractors that have submitted dossiers of interest.

2. For restricted bidding:

a/ Determination and approval of a short list: A short list must include at least 3 fully capable and experienced contractors that meet the requirements of the bidding package and wish to participate in bidding;

b/ Publicization of a short list: After being approved, a short list shall be published under Point d, Clause 1, Article 7 and Point c, Clause 1 or Point b, Clause 2, Article 8, of this Decree.

3. Short-listed contractors may not form partnerships among themselves in order  to participate in bidding.

Article 34. Making a bidding dossier

1. The bases for making a bidding dossier must comply with Clause 1, Article 12 of this Decree.

2. 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 determining a fixed bid (in case of applying the fixed bid method); determination of the point of the bid; and criteria for general evaluation (in case of applying the method of combined techniques and bids). A bidding dossier may not state any conditions aiming to restrict the participation of contractors or create advantages for one contractor or several contractors, thus causing unfair competition.

3. Criteria for technical evaluation: The scoring method with a 100-point or 1,000-point scale shall be used for evaluation, specifically as follows:

a/ Experience and capacity of contractors: 10-20% of the total points;

b/ Solutions and methodologies for performing a bidding package: 30-40% of the total points;

c/ Personnel for performing the bidding package: 50-60% of the bidding package;

d/ The total of the ratios of points specified at Points a, b and c of this Clause must be 100%;

dd/ A dossier of technical proposals shall be evaluated as meeting technical requirements when it has a technical point not below 70% (80%, for consultancy bidding packages subject to hi-tech and specific requirements) of the total points and the point for each criterion on experience and capacity of contractors, solutions and methodologies or personnel must equal at least 60% (70%, for consultancy bidding packages subject to hi-tech and specific requirements) of the maximum point for such criterion.

4. The determination of the lowest bid (in case of applying the lowest bid method) must comply with Point c, Clause 3, Article 12 of this Decree.

5. Determination of a fixed bid (in case of applying the fixed bid method):

a/ Determining the bid;

b/ Correcting errors;

c/ Adjusting deviation;

d/ Subtracting the value of discounts (if any);

dd/ Converting the bid into a common currency (if any);

e/ Identifying the winning bid which must not exceed the bidding package’s price already specified and fixed in the bidding dossier.

6. Criteria for general evaluation (in case of applying the method of combined techniques and bids):

a/ Determining the point of the bid:

A 100-point or 1,000-point scale shall be used in conformity with the technical point scale. The point of the bid shall be determined as follows:

Of which:

- The point of the bid_{under consideration} is the point of the bid stated in the dossier of financial proposals under consideration;

- G_minimum 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;

- G_{under 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 general point shall be determined according to the following formula:

General point_{under consideration} = K x Technical point_{under consideration} + G x Point of the bid_{under consideration}

Of which:

- Technical point_{under consideration} is the point determined at the stage of technical evaluation;

- Point of the bid _{under consideration} is the point determined at the stage of bid evaluation;

- K is the ratio of the technical point to the general point, which is 70-80%;

- G is the ratio of the point of the bid to the general point, which is 20-30%;

- K + G = 100%.

Article 35. Appraisal and approval of bidding dossiers

1. Bidding dossiers shall be appraised under Article 105 of this Decree before being approved.

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

Article 36. Organization of contractor selection

1. Bid invitation:

a/ Bid invitation notices apply to cases in which short list selection procedures are not carried out and must comply with Point d, Clause 1, Article 7 and Point b, Clause 1 or Point a, Clause 2, Article 8, of this Decree;

b/ Bid invitation letters shall be sent to short-listed contractors.

2. Distribution, modification and clarification of bidding dossiers:

The distribution, modification and clarification of bidding dossiers must comply with Clause 2, Article 14 of this Decree.

3. 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 14 of this Decree.

4. Opening of dossiers of technical proposals:

The opening of dossiers of technical proposals must comply with Clause 4, Article 26 of this Decree, not covering the content on bid security.

Article 37. Principles of evaluation of bid dossiers, clarification of bid dossiers; error correction and deviation adjustment

1. The evaluation of bid dossiers must adhere to the principles prescribed in Article 15 of this Decree.

2. The clarification of bid dossiers must comply with Article 16 of this Decree.

3. Error correction and deviation adjustment must comply with Article 17 of this Decree.

Article 38. Evaluation of dossiers of technical proposals

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

a/ The validity of a dossier of technical proposals shall be examined and evaluated under Clauses 1 and 2, Article 28 of this Decree, except the validity of bid security;

b/ Contractors that have valid dossiers of technical proposals are eligible for detailed evaluation.

2. Detailed evaluation of dossiers of technical proposals:

a/ Detailed evaluation of dossiers of technical proposals shall be conducted using evaluation criteria stated in bidding dossiers;

b/ 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 evaluated;

c/ A list of contractors that meet technical requirements or gain the highest technical point (in case of applying the technique-based method) shall be approved in writing on the basis of the report for approval and report on appraisal of the list of contractors that meet technical requirements. The bid solicitor shall notify the list of contractors that meet technical requirements or contractors that gain the highest technical point (in case of applying the technique-based method) to all contractors participating in bidding and invite these contractors to open dossiers of financial proposals.

Article 39. Opening and evaluation of dossiers of financial proposals

1. The opening of dossiers of financial proposals must comply with Clause 2, Article 29 of this Decree.

2. The evaluation of dossiers of financial proposals must comply with Article 30 of this Decree.

Article 40. Negotiation of contracts

1. The negotiation of contracts shall be conducted on the bases prescribed in Clauses 1 and 2, Article 19 of this Decree.

2. Contract negotiation principle:

The contents already proposed by contractors and meeting the requirements of bidding dossiers shall not be negotiated.

3. Contract negotiation contents:

a/ Contents which remain unspecific, unclear or inconsistent between the bidding dossier and bid dossier or inconsistent contents in the bid dossier which might cause problems and disputes or affect the responsibilities of related parties during contract performance;

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

c/ Personnel:

During negotiation, contractors may not substitute personnel they have proposed in their bid dossiers, except when the duration for evaluation of bid dossiers is longer than prescribed or when persons proposed by contractors for key positions are unable to participate in contract performance due to force majeure events. In these cases, contractors 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  improve the detailed contents of the bidding package;

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

e/ Other necessary contents.

4. During contract negotiation, related parties shall finalize a draft contract and its  specific terms and annexes, including a detailed list of the scope of work, prices, and implementation schedule (if any).

5. If negotiation fails, the bid solicitor shall report such to the project owner for consideration and decision to invite the next lower-ranked contractor to negotiation. If negotiation with the next lower-ranked contractor also fails, the bid solicitor shall report such to the project owner for consideration and decision to cancel the bidding under Clause 1, Article 17 of the Bidding Law.

Article 41. 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 20 of this Decree.

Section 2

FOR INDIVIDUAL CONTRACTORS

Article 42. Formulation, submission and approval of terms of reference, list of individual consultants

1. The bid solicitor shall formulate the terms of reference and draft contracts for individual consultants to be selected and determine a list of between 3 and 5 individual consultants and submit it to the project owner for approval. If only one individual consultant meets the requirements of contract performance, the bid solicitor shall report such to the project owner for consideration and decision. The terms of reference must include:

a/ Brief description of the project;

b/ Requirements on the scope, volume, quality and performance time of the contract;

c/ Requirements on capacity and qualifications of consultants;

d/ Conditions for and place of contract performance;

dd/ Other necessary contents (if any).

2. 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.

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

Article 43. Sending of invitation letters and evaluation of resumes of individual consultants; approval and signing of contracts

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 resumes.

2. Submission of  resumes:

Individual consultants shall prepare 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 resumes:

Based on the terms of reference, the bid solicitor shall evaluate the resumes of every individual consultant. An individual consultant who is eligible under Clause 2, Article 5 of the Bidding Law, has the best resume and technical proposals (if any), and meets the requirements of the terms of reference shall be invited by the bid solicitor to negotiate and finalize a contract.

4. Negotiation and finalization of contracts.

5. The results of selection of individual consultants shall be approved in writing on the basis of reports for approval and reports on evaluation results of resumes of individual consultants and contract negotiation results. A contract signed between related parties must conform to the decision approving the results of selection of individual consultants, contract negotiation results and terms of reference.

Chapter IV

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

Section 1

TWO-STAGE ONE-ENVELOPE BIDDING METHOD

Article 44. Preparation for first-stage bidding

1. Depending on the size and characteristics of a bidding package, short list selection procedures may be applied to select fully capable and experienced contractors that meet the requirements of the bidding package to participate in bidding. The application of short list selection procedures shall be decided by a competent person and clearly written in the contractor selection plan; if applying such procedures, the selection of short lists must comply with Article 22 of this Decree.

2. Making a first-stage bidding dossier:

a/ The bases for making a bidding dossier must comply with Clause 1, Article 12 of this Decree;

b/ A first-stage bidding dossier must comprise brief information on the project or bidding package; instructions on preparation and submission of a first-stage bid dossier; requirements on the technical plan of the bidding package; requirements on financial and commercial plans for contractors to make proposals on technical, financial and commercial plans as a basis for the bid solicitor to consider and finalize the second-stage bidding dossier; contractors are not required to propose bids and apply a bid security measure.

A bidding dossier must not state any conditions aiming to restrict the participation of contractors or create advantages for one contractor or several contractors, thus causing unfair competition.

3. Appraisal and approval of bidding dossiers:

a/ Bidding dossiers shall be appraised under Article 105 of this Decree before being approved;

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

Article 45. Organization of first-stage bidding

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

2. Distribution, modification and clarification of bidding dossiers:

The distribution, modification and clarification of bidding dossiers must comply with Clause 2, Article 14 of this Decree.

3. 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 14 of this Decree.

4. Bid opening:

a/ Bid opening shall be conducted publicly within 1 hour after the time of bid closing. Only bid dossiers received by the bid solicitor before the time of bid closing and meeting the requirements of bidding dossiers shall be opened to the witness of contractors’ representatives participating in the bid-opening ceremony, regardless of whether or not the contractors are present;

b/ Each bid dossier shall be opened in the alphabetical order of the names of contractors and in the following order:

- Checking the seal;

- Opening the dossier and clearly reading out the name of contractor; quantity of originals and copies of the dossier; major details written in the bid application; validity duration of the dossier; and other relevant information.

c/ Bid opening record: Information specified at Point b of this Clause shall be written in the bid opening record. This record shall be signed by the bid solicitor’s and contractors’ representatives participating in the bid-opening ceremony and sent to the contractors participating in bidding;

d/ The bid solicitor’s representative shall sign the original of the bid application, power of attorney of the contractors’ at-law representative (if any), and partnership agreement (if any).

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

During evaluation of first-stage bid dossiers, based on the requirements specified in bidding dossiers and contractors’ proposals in first-stage bid dossiers, the bid solicitor shall exchange opinions with every contractor to confirm technical and financial requirements of the bidding packages to serve the finalization of second-stage bidding dossiers. The bid solicitor shall ensure that information in first-stage bid dossiers of contractors be kept secret.

Article 46. Preparation for and organization of second-stage bidding

1. Making a second-stage bidding dossier:

a/ Bases for dossier making:

In addition to the bases specified in Clause 1, Article 12 of this Decree, proposals of contractors participating in the first-stage bidding must be taken into consideration for  making the second-stage bidding dossier;

b/ Contents of a bidding dossier:

A bidding dossier must state criteria for evaluating bid dossiers, including criteria for evaluating capacity and experience of contractors (for bidding packages for  which the prequalification round has been organized, the bidding dossier does not need to set these criteria but must request contractors to provide updated information on their capacity); criteria for technical evaluation; criteria for determining the evaluation bid (in case of applying the evaluation bid method), determination of the point of the bid; and criteria for general evaluation (in case of applying the method of combined techniques and bids), and other relevant contents as prescribed in Clauses 2, 3, 4, 5, 7 and 8, Article 12, and Article 24 of this Decree. A bidding dossier must not state any conditions aiming to restrict the participation of contractors or create advantages for one contractor or several contractors, thus causing unfair competition.

2. Appraisal and approval of bidding dossiers:

a/ Bidding dossiers shall be appraised under Article 105 of this Decree before being approved;

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

3. Organization of bidding:

a/ The bid solicitor shall invite contractors that have submitted first-stage bid dossiers to receive second-stage bidding dossiers. The distribution, modification and clarification of second-stage bidding dossiers must comply with Clause 2, Article 14 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 14 of this Decree.

4. Bid opening:

Bid opening must comply with Clause 4, Article 14 of this Decree.

Article 47. Evaluation of bid dossiers and negotiation of contracts in the second stage

1. Principles of evaluation of bid dossiers must comply with Article 15 of this Decree.

2. The clarification of bid dossiers must comply with Article 16 of this Decree.

3. Error correction and deviation adjustment must comply with Article 17 of this Decree.

4. Evaluation of bids and negotiation of contracts in the second stage must comply with Articles 18 and 19 of this Decree.

Article 48. Submission, appraisal, approval and publicization of the contractor selection result; finalization and signing of contracts

1. The submission, appraisal, approval and publicization of the contractor selection result must comply with Article 20 of this Decree.

2. Finalization and signing of contracts:

A contract concluded between related parties must conform to the decision approving the contractor selection result, contract negotiation record, bid dossier, bidding dossier and other relevant documents.

Section 2

TWO-STAGE TWO-ENVELOPE BIDDING METHOD

Article 49. Preparation for first-stage bidding

1. Depending on the size and characteristics of a bidding package, short list selection procedures may be applied to select fully capable and experienced contractors that meet the requirements of the bidding package to participate in bidding. The application of short list selection procedures shall be decided by a competent person and shall be clearly stated in the contractor selection plan; if applying such procedures, the selection of short lists must comply with Article 22 of this Decree.

2. Making a first-stage bidding dossier:

a/ The bases for making a bidding dossier must comply with Clause 1, Article 12 of this Decree;

b/ Contents of a bidding dossier:

A bidding dossier must state criteria for evaluating a bid dossier, including criteria for evaluating capacity and experience of contractors (for bidding packages for which the prequalification round has been organized, the bidding dossier does not need to establish these criteria but must request contractors to provide updated information on their capacity); criteria for technical evaluation; requirement for contractors to give financial proposals, and other relevant contents as prescribed in Clauses 2, 3, 4, 5, 7 and 8, Article 12, and Article 24 of this Decree. A bidding dossier must not state any conditions aiming to restrict the participation of contractors or create advantages for one contractor or several contractors, thus causing unfair competition.

3. Appraisal and approval of bidding dossiers:

a/ Bidding dossiers shall be appraised under Article 105 of this Decree before being approved;

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

Article 50. Organization of first-stage bidding

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

2. Distribution, modification and clarification of bidding dossiers:

The distribution, modification and clarification of bidding dossiers must comply with Clause 2, Article 14 of this Decree.

3. 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 14 of this Decree.

4. Opening of dossiers of technical proposals:

The opening of dossiers of technical proposals must comply with Clause 4, Article 26 of this Decree. Dossiers of financial proposals shall be opened in the second stage.

5. Evaluation of dossiers of technical proposals:

a/ The evaluation of dossiers of technical proposals must comply with Article 28 of this Decree.

b/ During evaluation of a dossier of technical proposals, based on the requirements in the bidding dossier and the contractor’s proposals in the dossier of technical proposals, the bid solicitor shall exchange opinions with every contractor to identify technical adjustments compared with the bidding dossier.

6. A list of contractors that meet technical requirements in the first stage shall be approved in writing on the basis of the report for approval and report on appraisal of the result of technical evaluation. The bid solicitor shall notify the list of contractors that meet technical requirements to all contractors participating in the first-stage bidding and invite contractors that meet technical requirements in the first stage to participate in the second-stage bidding.

Article 51. Preparation for and organization of second-stage bidding

1. Making a second-stage bidding dossier:

a/ Bases for dossier making:

In addition to the bases specified in Clause 1, Article 12 of this Decree, a second-stage bidding dossier shall be based on the record of exchange of opinions between the bid solicitor and contractors participating in the first-stage bidding;

b/ Contents of a bidding dossier:

A second-stage bidding dossier shall be made on the basis of the first-stage bidding dossier with the technical adjustments already exchanged with contractors.

2. Appraisal and approval of bidding dossiers:

a/ Bidding dossiers shall be appraised under Article 105 of this Decree before being approved; only the contents related to technical adjustments compared with first-stage bidding dossiers shall be appraised;

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

3. Distribution, modification and clarification of bidding dossiers:

The bid solicitor shall invite contractors that meet technical requirements in the first stage to receive second-stage bidding dossiers. The distribution, modification and clarification of second-stage bidding dossiers must comply with Clause 2, Article 14 of this Decree.

4. 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 14 of this Decree. A bid dossier must comprise technical proposals and financial proposals as required by the second-stage bidding dossier corresponding to technical adjustments.

5. Bid opening:

a/ Bids shall be opened publicly within 1 hour after the time of bid closing. Only bid dossiers received by the bid solicitor before the time of bid closing and meeting the requirements of the bidding dossier shall be opened to the witness of contractors’ representatives participating in the bid-opening ceremony, regardless of whether or not the contractors are present;

b/ Each bid dossier shall be opened in the alphabetical order of the names of contractors and in the following order:

- Requesting every contractor’s representative participating in the bid-opening ceremony to certify the availability or non-availability of a discount letter enclosed with his/her/its first-stage dossier of financial proposals and second-stage bid dossier;

- Checking the seals of the envelopes of the first-stage dossiers of financial proposals, first-stage dossiers of financial proposals of contractors participating in the second-stage bidding, and bid dossiers of contractors participating in the second-stage bidding;

- Opening dossiers of first-stage dossiers of financial proposals of contractors participating in the second-stage bidding and opening second-stage bid dossiers including technical proposals and financial proposals as required by second-stage bidding dossiers corresponding to the technical adjustments;

c/ Bid opening record: Information specified at Point b of this Clause shall be written in a bid opening record. This record shall be signed by the bid solicitor’s and contractors’ representatives participating in the bid-opening ceremony and sent to the contractors participating in the second-stage bidding;

d/ The bid solicitor’s representative shall sign the originals of bid dossiers, discount letter (if any), power of attorney of the contractor’s at-law representative (if any), bid security, financial proposals, and other important contents of each bid dossier.

Article 52. Evaluation of bid dossiers and negotiation of contracts in the second stage

1. Evaluation of bid dossiers and negotiation of contracts in the second stage must comply with Articles 18 and 19 of this Decree; technical contents already agreed in the first stage shall not be re-evaluated.

2. Contractors that meet technical requirements in the second stage may have their dossiers of financial proposals evaluated. Financial evaluation shall be based on financial proposals of contractors in the first stage and financial proposals in the second stage; and based on technical proposals of contractors in the first stage and proposed technical adjustments of contractors in the second stage.

Article 53. Submission, appraisal, approval and publicization of the contractor selection result; finalization and signing of contracts

1. The submission, appraisal, approval and publicization of the contractor selection result must comply with Article 20 of this Decree.

2. Finalization and signing of contracts:

A contract concluded between related parties must conform to the decision approving the contractor selection result, contract negotiation record, bid dossier, bidding dossier and other relevant documents.

Chapter V

CONTRACTOR APPOINTMENT, COMPETITIVE OFFER, DIRECT PROCUREMENT AND SELF-EXECUTION

Section 1

CONTRACTOR APPOINTMENT

Article 54. Contractor appointment quota

A bidding package of within-quota value is eligible for contractor appointment under Point e, Clause 1, Article 22 of the Bidding Law, specifically:

1. Not exceeding VND 500 million, for bidding packages to provide consultancy services, non-consultancy services or public services; or not exceeding VND 1 billion, for goods procurement, construction and installation or mixed bidding packages or bidding packages to purchase medicines, medical supplies or public products;

2. Not exceeding VND 100 million, for bidding packages within regular procurement cost estimates.

Article 55. Process of contractor appointment according to normal procedures

1. Preparation for contractor selection:

a/ Making a dossier of requirements:

A dossier of requirements shall be made under Clause 1, Article 12 of this Decree and must comprise brief information on the project or bidding package; instructions on preparation and submission of a dossier of proposals; criteria for evaluating capacity and experience of contractors; criteria for technical evaluation and determination of the contractor appointment price. The pass and fail criteria shall be used for evaluating capacity and experience of contractors and for technical evaluation;

b/ Appraisal and approval of dossiers of requirements and identification of contractors proposed for appointment:

- Dossiers of requirements shall be appraised under Article 105 of this Decree before being approved;

- Dossiers of requirements shall be approved in writing on the basis of reports for approval and reports on appraisal of dossiers of requirements;

- Contractors identified to receive dossiers of requirements are those being eligible under Points a, b, c, d, e and h, Clause 1, Article 5 of the Bidding Law and fully capable and experienced to perform the bidding packages.

2. Organization of contractor selection:

a/ Dossiers of requirements shall be distributed to the identified contractors;

b/ Contractors shall prepare and submit dossiers of proposals according to dossiers of requirements.

3. 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, clarify or modify and supplement necessary information in their dossiers of proposals in order to prove the contractors’ satisfaction of the requirements on capacity and experience, implementation schedule, volume, quality, technical solutions and measures to execute the bidding package;

b/ A contractor shall be proposed for appointment when fully meeting the following 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 cost estimate of the approved bidding package.

4. The submission, appraisal, approval and publicization of the contractor selection result must comply with Article 20 of this Decree.

5. Finalization and signing of contracts:

A contract concluded between related parties must conform to the decision approving the contractor appointment result, contract negotiation record, dossier of proposals, dossier of requirements, and other relevant documents.

Article 56. Process of contractor appointment according to simplified procedures

1. For bidding packages specified at Point a, Clause 1, Article 22 of the Bidding Law, except bidding packages which need to be executed to ensure state secrets:

Project owners or agencies directly responsible for managing the bidding packages shall identify and assign capable and experienced contractors to immediately execute the bidding packages. Within 15 days after the assignment, related parties shall complete contractor appointment procedures, including preparation and sending of a draft contract to contractors which states the requirements on the scope and contents of jobs to be performed, time of performance, required job quality, and corresponding value for contract negotiation and finalization. Based on the contract negotiation results, these project owners or agencies shall approve contractor appointment results and sign contracts with the appointed contractors. The publicization of contractor appointment results must comply with Point d, Clause 1, Article 7 and Point c, Clause 1 or Point b, Clause 2, Article 8 of this Decree.

2. For a within-quota bidding package specified in Article 54 of this Decree:

a/ The bid solicitor shall base his/her/itself on the approved objectives, scope of jobs and cost estimate to prepare and send a draft contract to the contractor that has been identified by the project owner as being fully capable and experienced for the bidding package. A draft contract must contain the requirements on scope and contents of jobs to be performed, time of performance, required job quality and corresponding value and other necessary contents;

b/ Based on the draft contract, the bid solicitor and contractor proposed for appointment shall negotiate and finalize a contract as a basis for approving the contractor selection result and signing the contract;

c/ Signing of the contract:

The contract concluded between related parties must conform to the decision approving the contractor selection result, contract negotiation record and other relevant documents.

Section 2

COMPETITIVE OFFER

Article 57. Scope of application of competitive offer

1. Competitive offer according to normal procedures applies to bidding packages prescribed in Clause 1, Article 23 of the Bidding Law with a value not exceeding VND 5 billion.

2. Competitive offer according to simplified procedures applies to bidding packages prescribed at Point a, Clause 1, Article 23 of the Bidding Law with a value not exceeding VND 500 million, bidding packages prescribed at Points b and c, Clause 1, Article 23 of the Bidding Law with a value not exceeding VND 1 billion, and regular procurement bidding packages with a value not exceeding VND 200 million.

Article 58. Process of competitive offer according to normal procedures

1. Preparation for contractor selection:

a/ Making a dossier of requirements:

A dossier of requirements shall be made under Clause 1, Article 12 of this Decree and must comprise brief information on the project or bidding package; instructions on preparation and submission of a dossier of proposals; criteria for evaluating capacity and experience of contractors; criteria for technical evaluation and determination of the lowest bid. The pass and fail criteria shall be used for evaluating capacity and experience of contractors and for technical evaluation;

b/ Appraisal and approval of dossiers of requirements:

- Dossiers of requirements shall be appraised under Article 105 of this Decree before being approved;

- Dossiers of requirements shall be approved in writing on the basis of reports for approval and reports on appraisal of dossiers of requirements.

2. Organization of contractor selection:

a/ The bid solicitor shall publish the notice of invitation of offer under Point d, Clause 1, Article 7 and Point b, Clause 1 or Point a, Clause 2, Article 8, of this Decree;

Dossiers of requirements shall be distributed to contractors that wish to participate in bidding within the time limit specified in the notice of invitation of offer, which is 3 working days counting from the first day such notice is published on the national bidding network or Bidding Newspaper;

b/ The modification and clarification of dossiers of requirements must comply with Clause 2, Article 14 of this Decree;

c/ Contractors shall submit dossiers of proposals directly or send them by post to the bid solicitor. A contractor may submit only one dossier of proposals;

d/ The bid solicitor shall ensure confidentiality of information in the dossier of proposals of each contractor. Right after the time of bid closing, the bid solicitor shall open dossiers of proposals and make a bid opening record which must specify the names of contractors; offered bids; validity duration of the dossiers; value and validity duration of bid security; and contract performance duration, and send this record to contractors that have submitted dossiers of proposals.

3. Evaluation of dossiers of proposals and negotiation of contracts:

a/ The bid solicitor shall evaluate submitted dossiers of proposals according to the dossier of requirements. A contractor will be evaluated as meeting requirements when having a valid dossier; satisfying the capacity and experience criteria; and passing all technical requirements;

b/ The bid solicitor shall compare the bids offered in dossiers of proposals that meet technical requirements for determining a dossier of proposals with the lowest offered bid. The contractor offering the lowest bid after error correction and deviation adjustment minus the value of discounts (if any) which does not exceed the price of the bidding package shall be invited to negotiate a contract;

c/ The negotiation of contracts must comply with Article 19 of this Decree.

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 20 of this Decree.

5. Finalization and signing of contracts:

A contract concluded between related parties must conform to the decision approving the competitive offer result, contract negotiation record, dossier of proposals, dossier of requirements and other relevant documents.

6. Time limits of competitive offer according to normal procedures:

a/ The time for preparing a dossier of proposals is at least 5 working days from the first date of distribution of the dossier of requirements;

b/ When it is necessary to modify the dossier of requirements, the bid solicitor shall notify such to contractors at least 3 working days before the time of bid closing for them to have sufficient time for preparing dossiers of proposals;

c/ The time limit for evaluating a dossier of proposals is 20 working days from the date of bid opening to the time the bid solicitor submits a report for approval of the contractor selection result enclosed with a report on results of evaluation of the dossier of proposals;

d/ The time limit for appraising the contractor selection result is 7 working days from the date of receipt of a dossier submitted for appraisal;

dd/ The time limit for approving the contractor selection result is 5 working days from the date of receipt of the bid solicitor’s report for approval of the contractor selection result and the appraising unit’s appraisal report;

e/ Other time limits must comply with Clause 1, Article 12 of the Bidding Law.

Article 59. Process of competitive offer according to simplified procedures

1. Preparation and sending of a written request for price quotation:

a/ A written request for price quotation must state the scope of jobs, technical requirements, validity duration of price quotations, time of submission of the price quotation, requirements on warranty, maintenance, training, transfer, draft contract, and time limit for preparing and submitting a price quotation (3 working days from the first date of distribution of the request), and other necessary contents; and must not require bid security;

b/ After the written request for price quotation is approved, the bid solicitor shall publish a notice of invitation of offer in a widely distributed newspaper of the sector or province or on the national bidding network; or send such request directly to at least 3 contractors capable to execute the bidding package. In case of directly sending the request, if, before the time of bid closing, any contractor wishes to participate in the offer, the bid solicitor shall send the written request for price quotation to this contractor. Written requests for price quotation shall be distributed free of charge directly or sent by post, email or fax.

2. Submission and receipt of price quotations:

a/ Contractors shall prepare and submit directly or send by post, email or fax a price quotation according to the written request for price quotation;

b/ The bid solicitor shall ensure confidentiality of information in the price quotation of each contractor. Right after the deadline for submitting a price quotation, the bid solicitor shall make a written receipt of price quotations submitted before the time of bid closing, comprising such details as name of contractor, offered bid and validity duration of the price quotation, and send this receipt to contractors that have submitted price quotations.

3. Evaluation of price quotations:

a/ The bid solicitor shall compare price quotations based on the written request for price quotation. A price quotation fully meeting the requirements in such request and having the lowest offered bid after error correction and deviation adjustment minus the value of discounts (if any) which does not exceed the price of the bidding package, shall be proposed to be selected;

b/ During evaluation, when necessary, the bid solicitor shall invite the contractor offering the lowest bid after error correction and deviation adjustment minus the value of discounts (if any) to negotiate a contract.

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 20 of this Decree.

5. Finalization and signing of contracts:

A contract concluded between related parties must conform to the decision approving the competitive offer result, contract negotiation record and other relevant documents.

6. Time limits in competitive offer according to simplified procedures:

a/ The time limit for evaluating price quotations is 10 days from the deadline for submission of price quotations to the time the bid solicitor makes a report for approval of the contractor selection result enclosed with a report on evaluation of price quotations;

b/ The time limit for appraising the contractor selection result is 4 working days from the date of receipt of a dossier submitted for appraisal;

c/ The time limit for approving the contractor selection result is 3 working days from the date of receipt of the bid solicitor’s report for approval of the contractor selection result and the appraising unit’s appraisal report.

Section 3

DIRECT PROCUREMENT

Article 60. Direct procurement process

1. Preparation for contractor selection:

a/ Making of dossiers of requirements:

The making of a dossier of requirements must comply with Clause 1, Article 12 of this Decree. A dossier of requirements must comprise brief information on the project or bidding package; requirement for contractors to update information on their capacity; requirement on schedule and commitment to supply goods meeting technical and quality requirements of the previous bidding dossier; and requirement on unit prices of goods. In case goods of the bidding package applying direct procurement are one of those under a similar bidding package for which a contract was signed, the quantity of the goods applying direct procurement must be smaller than 130% of the quantity of those of the same type under the similar bidding package for which a contract was signed;

b/ A dossier of requirements shall be appraised according to Article 105 of this Decree before being approved;

c/ A dossier of requirements shall be approved in writing on the basis of the report for approval and report on appraisal of the dossier of requirements.

2. The dossier of requirements shall be issued to the previously selected contractor. In case this contractor is unable to continue executing the direct procurement bidding package, the dossier of requirements shall be issued to another contractor that meets the requirements prescribed in Clause 3, Article 24 of the Bidding Law.

3. Contractors shall prepare and submit dossiers of proposals according to requirements of the dossier of requirements.

4. Evaluation of dossiers of proposals and negotiation on proposals of the contractor:

a/ Evaluation of the dossier of proposals:

- Checking technical contents and unit prices;

- Updating information on the contractor’s capacity;

- Evaluating the implementation schedule, goods supply measures, technical solutions and measures for execution of the bidding package;

- Other contents (if any).

b/ In the course of evaluation, the bid solicitor shall invite the contractor to discuss and clarify necessary contents of the dossier of proposals in order to prove the contractor’s satisfaction of requirements on capacity, schedule, quality, technical solutions and bidding package execution measures;

c/ The bid solicitor shall ensure the unit prices of jobs under the bidding package applying direct procurement not higher than those of similar jobs under a similar bidding package for which a contract was signed, and concurrently suitable to the market prices at the time of contract negotiation.

5. Submission, appraisal, approval and publicization of direct procurement results:

a/ The contractor selection result shall be appraised according to Clauses 1 and 4, Article 106 of this Decree before being approved;

b/ The contractor selection result shall be approved in writing on the basis of the report for approval and report on appraisal of the contractor selection result;

c/ The contractor selection result shall be notified in writing to all contractors having submitted dossiers of proposals and publicized according to Point d, Clause 1, Article 7; and Point c, Clause 1 or Point b, Clause 2, Article 8 of this Decree.

6. Finalization and signing of contracts:

A contract concluded between related parties must conform to the decision approving the direct procurement result, contract negotiation record, dossier of requirements, dossier of proposals and other relevant documents.

Section 4

SELF-EXECUTION

Article 61. Conditions for application

The application of the form of self-execution shall be approved under the contractor selection plan in accordance with Article 25 of the Bidding Law and must fully satisfy the following conditions:

1. Having the functions, tasks, operation fields and business lines relevant to requirements of the bidding package;

2. Proving and showing in the self-execution plan the capacity to mobilize personnel, machinery and equipment to meet requirements on execution of the bidding package on schedule.

3. The unit appointed to execute the bidding package may not transfer a work volume valued at 10% of the bidding package price or higher, or valued at less than 10% of the bidding package price but over VND 50 billion.

Article 62. Self-execution process

1. Preparation of a self-execution plan and draft contract or job assignment agreement:

A self-execution plan dossier must include requirements on the scope and contents, value, implementation time and quality of jobs to be performed and a draft contract or job assignment agreement. In case the bidding package is executed by a dependent cost-account unit, the execution plan must include a draft contract. In case the organization directly managing and using the bidding package has no dependent cost-accounting unit, the execution plan must include a draft agreement on job assignment to a unit of this organization.

2. Finalization of the self-execution plan and negotiation and finalization of the contract or job assignment agreement:

To negotiate incomplete, unclear, irrelevant or inconsistent contents of the self-execution plan, the draft contract or job assignment agreement and other necessary contents.

3. Signing of the contract or job assignment agreement:

The organization directly managing and using the bidding package shall  sign a contract with a dependent cost-accounting unit or a job assignment agreement with a unit assigned to execute the bidding package.

4. In case the jobs under a bidding package shall be supervised in the course of execution as prescribed by a specialized law, the organization directly managing and using that bidding package shall select in accordance with the Bidding Law a legally and financially independent consultant for supervision of the bidding package execution. In case the specialized law does not require supervision, or there is no interested independent supervision consultant or it is unable to select an independent supervision consultant as the bidding package is executed in a deep-lying or remote area or the bidding package is valued at under VND 1 billion, the organization directly managing and using the bidding package shall supervise the execution itself.

Chapter VI

SELECTION OF CONTRACTORS FOR SMALL-SIZED BIDDING PACKAGES AND BIDDING PACKAGES EXECUTED WITH COMMUNITY PARTICIPATION

Section 1

SELECTION OF CONTRACTORS FOR SMALL-SIZED BIDDING PACKAGES

Article 63. Limit of small-sized bidding packages

A small-sized bidding package is the one for provision of non-consultancy services or goods procurement with a value not exceeding VND 10 billion; or a construction and installation or mixed bidding package with a value not exceeding VND 20 billion.

Article 64. Selection of contractors for small-sized bidding packages

1. The process of selecting contractors for small-sized bidding packages must comply with Section 1 of Chapter II and Chapter V of this Decree.

2. Time limits in the contractor selection process:

a/ The bidding dossier shall be distributed according to the time stated in the notice of invitation for bids but not fewer than 3 working days counting from the first day such information is successfully published on the national bidding network or the Bidding newspaper;

b/ The time for preparing bids is at least 10 days, counting from the first day of distributing the bidding dossier;

c/ When modification of the bidding dossier is required, the bid solicitor shall notify such modification to contractors at least 3 working days before the time of bid closing for the latter to have sufficient time to prepare their bids;

d/ The time limit for evaluating bids is 25 days, counting from the date of bid opening to the time the bid solicitor submits a report for approval of the contractor selection result enclosed with the report on the contractor selection result;

dd/ The time limit for appraising the contractor selection result is 10 days, counting from the date of receiving the dossier for appraisal;

e/ The time limit for approving the contractor selection result is 5 working days, counting from the date of receiving the bid solicitor’s report for approval of the contractor selection result and the appraisal unit’s appraisal report;

g/ Other time limits must comply with Clause 1, Article 12 of the Bidding Law.

3. The bid security must equal between 1% and 1.5% of the bidding package price; the contract performance security must equal between 2% and 3% of the contract price.

Section 2

SELECTION OF CONTRACTORS FOR BIDDING PACKAGES EXECUTED WITH COMMUNITY PARTICIPATION

Article 65. Valid status of residential communities, mass organizations and worker teams and groups in localities in the execution of bidding packages with community participation

1. Residential communities, mass organizations or worker teams or groups in localities are regarded as having the valid status to participate in the execution of the bidding packages specified in Article 27 of the Bidding Law when residents of those communities or members of mass organizations or worker teams or groups 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 or group must have full civil act capacity, not be examined for penal liability, and be selected by the community, mass organization or worker team or group to sign the contract on behalf of the latter.

Article 66. Process of selecting contractors being residential communities, mass organizations or worker teams or groups

1. The project owner shall draft a contract which specifies requirements on the scope and contents of the jobs to be performed, required quality and execution time, contract price and rights and obligations of parties.

2. The project owner shall publicly post 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 and groups 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 and groups shall receive draft contracts for study and preparation of dossiers of capability, covering 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, evaluate and select the best residential community, mass organization or worker team or group and invite its representative to negotiate and sign the contract.

When only one residential community, mass organization or worker team or group expresses interest, the project owner shall consider appointing that community, organization, team or group to execute the bidding package. In case 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 or group 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.

Article 67. Advance, payment, supervision and takeover test of works

1. A residential community, mass organization or worker team or group may receive from the project owner advances and payments in cash or via bank transfer through its representative according to the Ministry of Finance’s guidance.

2. The project owner shall organize supervision of construction activities, and the commune-level People’s Committee and mass organizations shall participate in the supervision of construction activities of the residential community, mass organization or worker team or group.

3. The project owner shall conduct a takeover test of the completed work. Participants in a takeover test include:

a/ Representative of the project owner;

b/ Representative of the residential community, mass organization or worker team or group;

c/ Representatives of communities benefiting from the work;

d/ Other participants decided by the project owner.

Chapter VII

CENTRALIZED PROCUREMENT, REGULAR PROCUREMENT, PROCUREMENT OF MEDICINES AND MEDICIAL SUPPLIES, PROVISION OF PUBLIC PRODUCTS AND SERVICES

Section 1

CENTRALIZED PROCUREMENT

Article 68. Principles of centralized procurement

1. Centralized procurement shall be made through centralized procurement units of ministries, ministerial-level agencies, government-attached agencies, other central agencies, provincial-level People’s Committees or enterprises. In case centralized procurement units are unqualified, they shall hire professional bidding organizations to select contractors.

2. For goods and services on the list of those subject to centralized procurement, a unit having the demand to procure goods or services shall recognize the contractor selection result and contents of the framework agreement and sign a contract with the contractor selected through centralized procurement on the basis of the framework agreement. In case it signs a contract with a contractor not selected through centralized procurement, it may not have the contract paid.

3. The application of online bidding to centralized procurement must follow the roadmap adopted by the Prime Minister.

4. In case of selecting contractors to execute bidding packages of similar contents under the competence of different persons, competent persons of these bidding packages shall reach agreement to authorize a person to perform the responsibilities specified in Article 73 of the Bidding Law. In this case, the competent person shall assign a capable and experienced attached unit to organize the selection of contractors and perform other responsibilities specified in Article 69 of this Decree.

Article 69. Responsibilities in centralized procurement

1. A centralized procurement unit shall perform the responsibilities specified in Articles 74 and 75 of the Bidding Law, particularly for Clause 2, Article 74, and Point c, Clause 2, Article 75 of the Bidding Law, either of the following options may be applied:

a/ Directly signing a contract with the selected contractor according to Point a, Clause 3, Article 44 of the Bidding Law;

b/ Signing a framework agreement according to Point b, Clause 3, Article 44 of the Bidding Law.

2. The immediate superior agency of the centralized procurement unit shall discharge the responsibilities of competent persons specified in Article 73 of the Bidding Law.

Article 70. General centralized procurement process

1. General centralized procurement process:

a/ Summarizing demands;

b/ Making, appraising and approving the contractor selection plan;

c/ Preparing for the contractor selection;

d/ Organizing the contractor selection;

dd/ Evaluating bids and negotiating contracts;

e/ Appraising, approving and publicizing the contractor selection result;

g/ Finalizing and signing the framework agreement;

h/ Finalizing, signing and performing the contract with the winning contractor. In case the centralized procurement unit directly signs a contract with the winning contractor, the signing of a framework agreement under Point g of this Clause is not required;

i/ Finalizing and liquidating the contract.

2. Depending on the size and characteristics of a bidding package applying centralized procurement, this bidding package may be divided into different parts for holding bidding to select one or more than one contractor.

Article 71. List of goods and services subject to centralized procurement

1. Goods and services may be included in the list of centralized procurement when they meet one of the following conditions:

a/ They are procured in large quantity or their types are used widely at many agencies, organizations and units;

b/ They need to be synchronous and modern.

2. Responsibility for promulgating lists of goods and services subject to centralized procurement:

a/ The Ministry of Finance shall promulgate the list of goods and services subject to centralized procurement at the national level. Particularly, the Ministry of Health shall promulgate the list of medicines subject to centralized procurement;

b/ Ministries, sectors, localities and enterprises shall promulgate lists of goods and services subject to centralized procurement under their management.

Article 72. Framework agreement contents

Based on the size and characteristics of a bidding package, a centralized procurement unit shall specify detailed contents of the framework agreement in the bidding dossier as appropriate, which must cover the following major contents:

1. Scope of supply of goods or services; statement of quantity of goods or services;

2. Tentative time and place of goods delivery or service provision;

3. Conditions for goods or service delivery; advance, payment and contract liquidation;

4. Price cap applicable to each type of goods or service;

5. Warranty and maintenance conditions; training and instructions for use of goods or services;

6. Responsibilities of the goods or service supplier;

7. Responsibilities of the unit directly signing the contract on procurement and use of goods or services;

8. Responsibilities of the centralized procurement unit;

9. Effective time of the framework agreement;

10. Sanctions for contractual breaches;

11. Other related contents.

Section 2

REGULAR PROCUREMENT

Article 73. Regular procurement contents

Regular procurement (other than procurement of supplies and equipment under projects; and specialized equipment and means for national defense and security) covers:

1. Procurement of working equipment and means according to the Government’s regulations on standards and norms of working equipment and means of state agencies, cadres, civil servants and public employees;

2. Procurement of supplies, tools and devices for regular activities;

3. Procurement of machinery and equipment for professional work, labor safety and fire prevention and fighting;

4. Sewing and procurement of professional outfits (including procurement of materials and sewing remuneration);

5. Procurement of information technology products which comprise machinery, equipment, accessories, software and other information technology products and services, including installation, trial operation, warranty (if any) under information technology projects using non-business funds according to the Government’s regulations on management of state-funded investment in information technology application;

6. Procurement of automobiles, motorbikes, ships, boats and other vehicles (if any);

7. Printed products, documents, forms, publications, printed papers, stamps; cultural products, books, documents, films, pictures and products and services for public information and for professional operations;

8. Hiring of services for repair and maintenance of working machinery, equipment and means, means of transport; office lease and other goods; lease of transmission lines; insurance; and supply of electricity, water and fixed telephone and other services;

9. Consultancy services, including consultancy for selection of technology, for analysis and evaluation of bids and other procurement consultancy services;

10. Industrial property or intellectual property copyright (if any);

11. Other goods and services procured for regular operations of agencies and units.

Article 74. Regular procurement process

The selection of contractors in regular procurement must comply with provisions on selection of contractors for execution of bidding packages under projects of Chapters II and III of the Bidding Law.

Section 3

PROCUREMENT OF MEDICINES AND MEDICAL SUPPLIES

Article 75. General principles of procurement of medicines and medical supplies

1. Procurement of medicines in the forms of contractor selection under the Bidding Law must adhere to the following general principles:

a/ Bid-winning medicines must have reasonable prices corresponding to their quality and delivery, medicine preservation and other related conditions;

b/ The winning contractor shall ensure supply of medicines strictly according to the signed contract’s terms;

c/ The winning contractor shall ensure medicines’ satisfaction of quality requirements in all stages of contract performance from materials, production, packing, transportation, preservation to delivery of medicines;

d/ Centralized procurement must apply to domestically unavailable medicines, except those on the list of medicines entitled to price negotiation;

dd/ For small-sized bidding packages for procurement of medicines which need to be selected on the basis of combining quality and price, the single-stage two-envelope method may be applied to select contractors.

2. The selection of contractors for supply of medical supplies shall be conducted as for bidding packages for goods procurement.

Article 76. Competence in medicine procurement

1. Competence to approve contractor selection plans:

a/ Ministers, heads of ministerial-level agencies, government-attached agencies and other central agencies; and chairpersons of provincial-level People’s Committees shall approve contractor selection plans for supply of medicines for public heath establishments under their management;

b/ At-law representatives of non-public health establishments shall approve contractor selection plans for supply of medicines for their establishments in case of signing contracts with social security agencies to provide medical examination and treatment covered by health insurance.

2. Competence to approve bidding dossiers, dossiers of requirements and contractor selection results:

a/ Heads of public health establishments shall approve bidding dossiers, dossiers of requirements and contractor selection results for supply of medicines for their establishments;

b/ For centralized procurement of medicines under Section 1 of this Chapter, chairpersons of provincial-level People’s Committees shall assign directors of provincial-level Health Departments to approve bidding dossiers and contractor selection results for supply of medicines for units under their management according to Clause 1, Article 69 of this Decree;

c/ At-law representatives of non-public health establishments shall approve bidding dossiers, dossiers of requirements and contractor selection results for supply of medicines for their establishments in case of signing contracts with social security agencies to provide medical examination and treatment covered by health insurance.

Article 77. Responsibilities of agencies in procurement of medicines

1. The Ministry of Health shall:

a/ Promulgate the list of medicines subject to bidding, the list of medicines subject to centralized procurement and the list of medicines entitled to price negotiation at the proposal of the National Advisory Council for Medicine Bidding;

b/ Organize centralized procurement of medicines at the national level, assume the prime responsibility for price negotiation;

c/ Develop a roadmap for and provide guidance on centralized procurement of medicines at national and local levels, ensuring nationwide implementation from 2016;

d/ Based on basic norms such as announced registration serial numbers and medicine prices registered with competent agencies by domestic manufacturers, minimum quantity of registration serial numbers for medicines in the forms of preparation and compound and other necessary norms for promulgation of lists of home-made medicines meeting requirements for treatment, medicine price and supply capacity;

dd/ Annually, conduct prequalification to select medicine manufacturers and suppliers meeting requirements on capacity, experience and prestige for invitation to participate in restricted bidding.

2. The National Advisory Council for Medicine Bidding shall be established under the decision of the Minister of Health, comprising representatives of the Ministry of Health, the Ministry of Finance, Vietnam Social Security, Association of Pharmaceutical Enterprises and other related organizations. The Council shall advise the Ministry of Health in the following matters:

a/ Studying and proposing lists of medicines subject to bidding, lists of medicines subject to centralized procurement and lists of medicines entitled to price negotiation;

b/ Providing consultancy on the selection of contractors for medicine supply, for centralized procurement of medicines at the national level;

c/ Providing consultancy on the selection of contractors for medicine supply, for price negotiation at the national level.

3. Vietnam Social Security shall:

a/ Participate in the selection of medicine supply contractors from planning the contractor selection to obtaining the contractor selection result;

b/ Publish on its website the winning bid price of each medicine and the average winning bid prices of medicines covered by the health insurance fund of each hospital and locality and the Ministry of Health.

Article 78. Medicine price negotiation process

1.  Invitations for negotiation shall be sent to medicine supply contractors (manufacturers and suppliers) which clearly state the place, time and type of medicine for price negotiation.

2. Based on invitations for negotiation, medicine supply contractors shall make dossiers of medicine price offer, which must clearly state pharmaceutical properties, origin, quantity, offered price, delivery conditions and other related matters.

3. The negotiation council shall negotiate prices with each contractor to identify the contractor meeting requirements on quality, quantity, preservation and delivery conditions and other technical and quality requirements and determine the contractor’s offered price.

4. In case there are two or more contractors participating in price negotiation, based on negotiation results, the negotiation council shall request medicine supply contractors to offer prices again. The written request for price re-offer must clearly state the time and place of receiving price re-offer dossiers, and the time of opening price re-offer dossiers, and concurrently invite contractors to the opening of price re-offer dossiers. Contractors may not offer prices higher than the previously negotiated ones. The contractor re-offering the lowest price shall be recognized as the successful bidder.

5. Health establishments directly using medicines shall sign contracts with the medicine supply contractor recognized to be the successful bidder through price negotiation.

Article 79. Appointment of contractors according to simplified procedures

Appointment of contractors according to simplified procedures applies to medicine procurement in the following cases:

1. The bidding package is within the limit eligible for contractor appointment provided in Article 54 of this Decree;

2. The medicine is on the Ministry of Health’s list of rare medicines arising unexpectedly to meet specific treatment needs and has not been included in the contractor selection plan;

3. The medicine is outside the list of medicines under the approved annual plan on medicine supply contractor selection but shall be used to meet the needs of professional operations in emergency cases such as epidemics, natural disasters or enemy sabotage seriously affecting patients’ health;

4. The medicine is on the list of medicines under the approved annual plan on medicine supply contractor selection but the contractor selection result is not available yet or no contractor can be selected and this medicine needs to be bought urgently to meet professional operation needs in emergency cases;

5. The medicine is on the list of medicine under the approved annual plan on medicine supply contractor selection and the demand for this medicine exceeds the planned quantity already approved by competent authorities.

Article 80. Medicine evaluation criteria

1. Criteria for evaluation of bid dossiers include criteria for capacity and experience evaluation; criteria for technical evaluation; and criteria for general evaluation.

2. Criteria for capacity and experience evaluation: the pass and fail criteria shall be used, specifying the minimum requirement for being evaluated as passing each content on capacity and experience of contractors, specifically as follows:

a/ Experience in execution of similar bidding packages; experience in medicine production and trading;

b/ Production and business capacity; technical and physical foundations of medicine plants and preservation places;

c/ Financial capacity: Total assets, total liabilities, short-term assets, short-term debts, revenues, profits, value of contracts being performed and other necessary criteria for evaluation of the financial capacity of contractors.

Specific requirements for each criterion provided at Points a, b and c of this Clause shall be determined based on the requirements of each bidding package or types of specific medicines. A contractor that satisfies all the contents specified in this Clause shall be evaluated as satisfying the capacity and experience requirements.

3. Criteria for technical evaluation: The marking method with a 100- or 1,000-point scale shall be used for evaluation, specifically as follows:

a/ Medicine quality: From 60% to 80% of the total points;

b/ Packing, preservation and delivery: From 20% to 40% of the total points;

The total of the ratios of points of the contents specified at Points a and b of this Clause is 100%;

c/ A dossier of technical proposals shall be evaluated as meeting technical requirements when its technical points are not lower than 80% of the total points while the points of medicine quality and the points of packing, preservation and delivery are not lower than 60% of their maximum points.

Article 81. Selection of medicine supply contractors and centralized procurement of medicines

1. The selection of medicine supply contractors through open and restricted bidding must comply with Chapter II of this Decree; and through contractor appointment, competitive offer, direct procurement and self-execution, must comply with Chapter V of this Decree.

2. Centralized procurement of medicines must comply with Section 1 of this Chapter.

Section 4

SELECTION OF CONTRACTORS FOR PROVISION OF PUBLIC PRODUCTS AND SERVICES

Article 82. Process of selecting contractors for execution of bidding packages for provision of public products or services

The process of selecting contractors for execution of bidding packages for provision of public products or services is the same as for the selection of contractors for bidding packages for non-consultancy service provision and for procurement of goods of projects.

Article 83. Contractor appointment for bidding packages for provision of public products or services

1. Cases eligible for contractor appointment:

a/ Bidding packages for provision of public products or services whose prices are within the limit eligible for contractor appointment provided in Clause 1, Article 54 of this Decree;

b/ Bidding packages for provision of public products or services for which only one supplier in the locality is capable of executing those bidding packages and satisfies their requirements.

2. Contractor appointment conditions:

A contractor appointed to execute a bidding package for provision of public products or services must have capital, technical qualification, production technology, managerial capacity and employees meeting requirements of the contract on provision of public products or services.

3. Bases for contractor appointment:

a/ The decision approving the contractor selection plan for the bidding package for provision of public products or services;

b/ Unit price or price of the bidding package for provision of public products or services determined based on the application of current technical and economic norms and expense norms promulgated by competent agencies. For public products and services subject to price appraisal, the unit price used for contractor appointment is that stated in the price appraisal notice of the line management agency in accordance with the law on prices and relevant laws;

c/ Quantity, volume and quality of public products or services to be provided according to the norms approved by competent persons;

d/ Execution time and completion time;

dd/ Cost estimates assigned by competent persons

4. Process of appointing contractors for bidding packages for provision of public products or services:

a/ The contractor appointment process for bidding packages for provision of public services with a value of VND 500 million or less and for bidding packages for provision of public products with a value of VND 1 billion or less is the same as for that of contractor appointment according to simplified procedures prescribed in Article 56 of this Decree;

b/ The process of contractor appointment for bidding packages for provision of public products or services other than the cases specified at Point a of this Clause is the same as for that of regular contractor appointment prescribed in Article 55 of this Decree.

Chapter VIII

ONLINE SELECTION OF CONTRACTORS

Article 84. Scope of and roadmap for application

1. Online selection of contractors applies to bidding packages for consultancy and non-consultancy services, procurement of goods, construction, installation and mixed bidding packages which select contractors through open bidding, restricted bidding, competitive offer, direct procurement or contractor appointment.

2. Online selection of contractors shall be applied according to the Ministry of Planning and Investment’s roadmap.

Article 85. Principles of application of online selection of contractors

1. For online selection of contractors, the bid solicitor and contractors shall make registration once on the national bidding network.

2. The bid solicitor shall distribute free dossiers of invitation for expression of interest, dossiers of invitation to prequalification, bidding dossiers or dossiers of requirements on the national bidding network.

3. For each bidding package, contractors shall submit dossiers of expression of interest, dossiers for participation in prequalification, bid dossiers or dossiers of proposals once on the national bidding network.

4. The bid solicitor shall open bids on the national bidding network immediately after the time of bid closing. In case no contractor submits dossiers, the bid solicitor shall report such to the project owner for consideration and re-organization of online selection of contractors. In case fewer than 3 contractors submit dossiers, the bid solicitor shall open bids immediately without having to handle them according to Clause 4, Article 117 of this Decree.

5. E-documents sent through the national bidding network and information published on the national bidding network shall be regarded as the originals, have the same legal validity and effect as paper documents and serve as a basis for evaluation, appraisal, inspection, examination, audit and disbursement.

Article 86. Expenses for online selection of contractors

Expenses for online selection of contractors include expense for participation in the national bidding network; expense for submission of bid dossiers and dossiers of proposals; expense for winning contractors; expense for use of e-contracts and expense for use of the online procurement system. These expenses must comply with the guidance of the Ministry of Planning and Investment and the Ministry of Finance.

Article 87. Registration for participation in the national bidding network

1. When participating in the national bidding network, subjects shall register the use of digital certificates provided in Clause 5, Article 4 of the Bidding Law with the system-operating agency.

2. The Ministry of Planning and Investment shall guide in detail registration subjects, process and dossiers and information to be input upon registration and use of digital certificates on the national bidding network.

Article 88. Process of online selection of contractors

1. The bid solicitor and contractors shall register for participation in the national bidding network according to Article 87 of this Decree.

2. The bid solicitor shall publish notices of invitation to prequalification, notices of invitation for expression of interest, notices of invitation to bidding or notices of invitation for offer on the national bidding network. For procurement bidding packages, the bid solicitor shall make public properties of goods to be procured.

3. The bid solicitor shall distribute free dossiers of invitation to prequalification, dossiers of invitation for expression of interest, bidding dossiers or dossiers of requirements on the national bidding network together with notices of invitation to prequalification, notices of invitation for expression of interest, notices of invitation to bidding and notices of invitation for offer. In case there is a difference between attached e-documents and contents filled in forms, attached e-documents will have legal validity.

4. Contractors shall submit dossiers for participation in prequalification, dossiers of expression of interest, bid dossiers or dossiers of proposals once on the national bidding network. The national bidding network must notify contractors of their successful or unsuccessful submission and concurrently record the time and status of submission on the system as a basis for settlement of disputes (if any). Contractors shall pay bid security through banks connected to the national bidding network. In case of withdrawing dossiers for participation in prequalification, dossiers of expression of interest, bid dossiers or dossiers of proposals, contractors shall notify such to the bid solicitor and the bank providing security (if any) before the time of bid closing.

5. The bid solicitor shall open and decode dossiers for participation in prequalification, dossiers of expression of interest, bid dossiers and dossiers of proposals on the national bidding network immediately after the time of bid closing. Records on the opening of dossiers for participation in prequalification, dossiers of expression of interest, bid dossiers or dossiers of proposals shall be published on the national bidding network within 2 hours after the time of bid closing.

6. After evaluating dossiers for participation in prequalification, dossiers of expression of interest, bid dossiers or dossiers of proposals, the bid solicitor shall input the contractor selection result on the national bidding network. The contractor selection result shall be published on the national bidding network immediately after the decision approving the contractor selection result is issued.

7. The Ministry of Planning and Investment shall detail the time and process of online selection of contractors.

Chapter IX

CONTRACTS

Article 89. General principles of contracts

1. A contract concluded between parties is a civil one; and is agreed in writing to establish responsibilities of parties for performing the entire scope of jobs under the contract. A contract which has been signed by parties, has taken effect and complies with law is a legally binding document between parties in the contract performance.

2. 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 and the contractor selection result on the basis of the requirements of the bidding package and guidance of the specialized state management agency.

3. Before signing a contract, parties may reach agreement on use of arbitration for settlement of disputes arising in the contract performance which shall be specified in the contract.

Article 90. Contract price

1. The contract price shall be specified in the contract together with principles of management of changes or adjustments (if any).

2. The contract price should be detailed to an appropriate extent in the contract price table made according to the form provided in the bidding dossier or dossier of requirements and be negotiated and finalized before the contract signing.

Article 91. Currency and form of payment of contracts

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 under 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 92. Contract advance

1. Contract advance is an amount of money advanced to the contractor for performing the jobs under the contract.

2. Depending on the size and characteristics of the bidding package, an appropriate advance amount shall be determined. 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.

4. For manufacture of building components or semi-finished products with high value or a number of materials which have to be seasonally reserved, the contract must clearly state the advance plan and amount to ensure its performance schedule.

Article 93. Adjustment of contract prices and volumes

1. The contract price adjustment shall be clearly stated in the contract in terms of contents, principles and time for calculation of adjustment and input data for adjustment calculation.

2. Unit price adjustment:

A unit price-based contract must clearly specify the following contents:

a/ The time for calculation of the original unit price (normally 28 days before the time of bid closing) as a basis for determining the difference between the bid-winning unit price and the adjusted unit price;

b/ Input data for calculation of unit price adjustment with the price index used as the basis for calculation of unit price adjustment being that announced by the General Statistics Office or the construction price index announced by the Ministry of Construction or the provincial-level People’s Committee;

c/ Methods and formulas for calculation of unit price adjustment:

The method and formula for calculation of unit price adjustment shall be determined based on scientific grounds and suitable to the bidding package’s characteristics. It is encouraged to apply calculation methods which are applied widely 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).

3. Adjustment of job volume:

a/ Principles of adjustment of job volume shall be clearly stated in the contract if at the time of contract signing the full volume of jobs to be performed has not been determined yet;

b/ Job volume may not be adjusted if it is increased due to the contractor’s fault;

c/ If the actually performed volume differs by more than 20% from the original job volume stated in the contract price table, upon payment for the volume exceeding 20%, two parties shall reach agreement on principles to reasonably adjust the unit price suitable to the volume change (increase or decrease) conditions;

d/ Two parties shall discuss and reach agreement to deal with job volume arising outside the contract’s initial adjustment conditions or in cases  in which the participation of both contractual parties is needed to prevent and handle risks falling within the responsibilities of one party.

4. In case of arising expenses or changes in implementation schedule, two parties shall report such to a competent authority for decision and sign a contract annex as a basis for performance.

Article 94. Contract payment

1. The contract price and specific terms on payment stated in the contract serve as the basis for payment to the contractor. A project owner that fails to make payment on time under the contract shall pay interests on the value of late payment to the contractor under the contract.

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 contract, payment shall be made according to payment principles applicable to each type of contract.

Article 95. Payment for package contracts

1. Payment principles:

Payment for a package contract may be made either in installments after each takeover test corresponding to the performed work volume or in lump sum after the contractor fulfills all responsibilities under the contract with a value equal to the contract price minus the advance amount (if any). In case it is unable to determine in detail the value of completed work corresponding to each work item or takeover test period, payment may be made according to the percentage (%) of the contractual value.

2. A payment dossier for a package contract must comprise:

a/ The takeover test record of the work volume performed in the payment period, certified by representatives of the contractor, project owner and supervision consultant (if any). This record is to certify completion of a work, a work item or a work’s job according to design but not the completed volume in detail.

b/ For procurement of goods: Depending on goods’ characteristics, appropriate payment documents may be required, such as contractor’s invoices, packing list, bill of lading, insurance policy, quality certificate, record of goods takeover test, certificate of origin and other related documents.

Article 96. Payment for contracts with fixed unit prices

1. Payment principles:

a/ The payment value equals the fixed unit price under the contract multiplied by the volume or quantity of jobs actually performed by the contractor;

b/ For installation jobs, in case the job volume actually performed by the contractor according to design is smaller than that stated in the contract, the contractor shall be paid only for the actually performed volume. In case the job volume actually performed by the contractor according to design is larger than that stated in the contract, the contractor shall be paid for the work volume difference at the fixed unit price stated in the contract;

c/ The project owner, supervision consultant and contractor shall certify the completed work volume in the takeover test record as a basis for payment to the contractor.

2. A payment dossier must comprise:

a/ The takeover test record of the work volume performed in the payment period, certified by representatives of the contractor, project owner and supervision consultant (if any);

b/ Written certification of the increased or decreased volume compared with the contractual volume by representatives of the contractor, project owner and supervision consultant (if any);

c/ The sheet of calculation of the value proposed for payment based on the certified completed job volume and the unit price stated in the contract;

d/ The contractor’s payment request clearly stating the completed work volume and value, the increased (decreased) value compared with the contractual value, the value for which an advance has been paid and the value proposed for payment in the payment period;

dd/ For procurement of goods: Depending on goods’ characteristics, appropriate payment documents may be required, such as contractor’s invoices, packing list, bill of lading, insurance policy, quality certificate, record of goods takeover test, certificate of origin and other related documents.

Article 97. Payment for contracts with adjusted unit prices

1. Payment principles:

a/ The payment value equals the adjusted unit price under the contract multiplied by the volume or quantity of jobs actually performed by the contractor;

b/ For installation jobs, in case the job volume actually performed by the contractor according to design is smaller than that stated in the contract, the contractor shall be paid only for the actually performed volume. In case the job volume actually performed by the contractor according to design is larger than that stated in the contract, the contractor shall be paid for the work volume difference;

c/ The project owner, supervision consultant and contractor shall certify the completed work volume in the takeover test record as a basis for payment to the contractor.

2. A payment dossier must comprise:

a/ The takeover test record of the work volume performed in the payment period, certified by representatives of the contractor, project owner and supervision consultant (if any);

b/ Written certification of the increased or decreased volume compared with the contractual volume by representatives of the contractor, project owner and supervision consultant (if any);

c/ The sheet of calculation of the value proposed for payment based on the certified completed job volume and the unit price stated in the contract;

d/ The contractor’s payment request clearly stating the completed work volume and value, the increased (decreased) value compared with the contractual value, the value for which an advance has been paid and the value proposed for payment in the payment period;

dd/ For procurement of goods: Depending on goods’ characteristics, an appropriate payment documents may be required such as contractor’s invoices, packing list, bill of lading, insurance policy, quality certificate, record of goods takeover test, certificate of origin and other related documents.

Article 98. Payment for time-based contracts

1. Payment principles:

a/ The level of remuneration for a consultant equals the consultant’s salary and salary-related expenses such as social insurance, health insurance, unemployment insurance, holiday payments and other expenses stated in the contract or adjusted according to regulations multiplied by the actual working time (on a monthly, weekly, daily or hourly basis). In case the consultant’s actual working time is shorter or longer than that stated in the signed contract, payment shall be based on the consultant’s actual working time;

b/ Related expenses (other than the salary expenses for consultants specified at Point a of this Clause) include management expenses of the unit managing and employing the consultant (if any); expenses for travel, survey, office lease and 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.

2. Payment dossiers:

Depending on the characteristics of consultancy jobs, appropriate payment documents may be required such as records on takeover tests of consultancy jobs, written certification of contract performance progress and other related documents.

Article 99. 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 prescribed by law.

2. The liquidation of a contract shall be completed with a written agreement signed between two parties. 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 responsibilities stated in the contract liquidation record; for big and complex contracts, their liquidation shall be made within 90 days.

Chapter X

DECENTRALIZATION OF RESPONSIBILITES FOR APPRAISAL AND APPROVAL IN CONTRACTOR SELECTION

Article 100. Responsibilities of ministers; heads of ministerial-level agencies, government-attached agencies and other central agencies; and chairpersons of provincial-level People’s Committees

1. For projects in which investment is decided by the Prime Minister and of which they are not project owners:

a/ To give written comments on contractor selection plans upon request;

b/ To perform other contractor selection-related jobs under the Prime Minister’s authorization.

2. For projects in which investment is decided by them:

a/ To approve contractor selection plans;

b/ To perform other jobs falling within the responsibility of competent persons provided in Article 73 of the Bidding Law.

3. For projects of which they are project owners:

a/ To approve bidding dossiers and dossiers of requirements;

b/ To approve contractor selection results;

c/ To perform other jobs falling within the responsibility of the project owner provided in Article 74 of the Bidding Law.

Article 101. Responsibilities of chairpersons of district- and commune-level People’s Committees and heads of other local agencies

1. For projects in which investment is decided by them:

a/ To approve contractor selection plans;

b/ To perform other jobs falling within the responsibility of competent persons provided in Article 73 of the Bidding Law.

2. For projects of which they are project owners:

a/ To approve bidding dossiers and dossiers of requirements;

b/ To approve contractor selection results;

c/ To perform other jobs falling within the responsibility of the project owner provided in Article 74 of the Bidding Law.

3. To perform contractor selection-related jobs under their superiors’ authorization.

Article 102. Responsibilities of boards of directors or heads of enterprises

1. For projects in which investment is decided by them:

a/ To approve contractor selection plans;

b/ To perform other jobs falling within the responsibility of competent persons provided in Article 73 of the Bidding Law.

2. For projects of which they are project owners:

a/ To approve bidding dossiers and dossiers of requirements;

b/ To approve contractor selection results;

c/ To perform other jobs falling within the responsibility of the project owner provided in Article 74 of the Bidding Law and under authorization.

Article 103. Responsibilities of boards of directors of joint-venture enterprises, joint-stock companies and lawful representatives of parties to business cooperation contracts

1. For projects in which investment is decided by them:

a/ To approve contractor selection plans;

b/ To perform other jobs falling within the responsibility of competent persons provided in Article 73 of the Bidding Law.

2. For projects of which they are project owners:

a/ To approve bidding dossiers and dossiers of requirements;

b/ To approve contractor selection results;

c/ To perform other jobs falling within the responsibility of the project owner provided in Article 74 of the Bidding Law.

Article 104. Responsibilities of appraisal units

1. The Ministry of Planning and Investment shall appraise the following contents:

a/ Contractor selection plans to be approved by the Prime Minister;

b/ Contractor selection plans in special cases considered and decided by the Prime Minister under Article 26 of the Bidding Law and in other cases requested by the Prime Minister.

2. Provincial-level Planning and Investment Departments shall appraise the following contents:

a/ Contractor selection plans for projects in which investment is decided by chairpersons of provincial-level People’s Committees, except for bidding packages prescribed in Clause 3 of this Article;

b/ Dossiers of invitation for expression of interest, dossiers of invitation to prequalification, bidding dossiers and dossiers of requirements, results of evaluation of dossiers of expression of interest and dossiers for participation in  prequalification and contractor selection results for bidding packages under projects of which provincial-level People’s Committees are project owners, when so requested, except for bidding packages prescribed in Clause 3 of this Article.

3. Provincial-level Health Departments shall appraise contractor selection plans for bidding packages for procurement of medicines and medical supplies under the competence of chairpersons of provincial-level People’s Committees.

4. Agencies and organizations assigned by ministers, heads of ministerial-level agencies, government-attached agencies or other central agencies, or heads of enterprises shall appraise:

a/ Contractor selection plans for projects in which investment is decided by ministers, heads of ministerial-level agencies, government-attached agencies or other central agencies, or heads of enterprises;

b/ Dossiers of invitation for expression of interest, dossiers of invitation to prequalification, bidding dossiers and dossiers of requirements, results of evaluation of dossiers of expression of interest and dossiers for participation in prequalification and contractor selection results for bidding packages under projects of which ministries, ministerial-level agencies, government-attached agencies, other central agencies or enterprises are project owners, when so requested.

5. District-level planning and finance sections shall appraise contractor selection plans for bidding packages under projects to be decided by chairpersons of district-level People’s Committees.

 6. Relevant assisting sections shall appraise contractor selection plans for projects to be decided by chairpersons of commune-level People’s Committees, heads of other local agencies, boards of directors of joint ventures or joint stock companies or lawful representatives of parties to business cooperation contracts.

7. Project owners shall assign their attached organizations or individuals to appraise dossiers of invitation for expression of interest, dossiers of invitation to prequalification, bidding dossiers and dossiers of requirements, results of evaluation of dossiers of expression of interest and dossiers for participation in prequalification and contractor selection results, except for the case provided in Clause 2 of this Article.

When organizations or individuals assigned to perform the appraisal task are incapable, project owners shall select a capable and experienced consultancy organization to conduct the appraisal. In all cases, project owners shall take responsibility for the appraisal of dossiers of invitation for expression of interest, dossiers of invitation to prequalification, bidding dossiers and dossiers of requirements, results of evaluation of dossiers of expression of interest and dossiers for participation in prequalification and contractor selection results.

Article 105. 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 report for 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/ Copies of the project approval decision, procurement cost estimate and decision approving the contractor selection plan;

d/ Other relevant documents.

2. Appraisal contents cover:

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 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 bidding law and other relevant laws;

c/ Consideration of divergent opinions (if any) between the bid solicitor and persons 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 related contents.

3. An appraisal report covers:

a/ Overview of principal contents of the project 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 observance of the bidding law 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 bidding law 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 106. 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 one-envelope method, appraisal is required only for contractor selection results;

c/ For bidding packages applying the single-stage two-envelope method, the list of technically eligible contractors shall be appraised before being approved;

d/ For bidding packages applying the two-stage one-envelope method, appraisal shall not be conducted in the first stage. Appraisal in the second stage shall be conducted as for bidding packages applying the single-stage one-envelope method;

dd/ For bidding packages applying the two-stage two-envelope method, in the first stage, only the list of technically eligible contractors shall be appraised. Appraisal in the second stage shall be conducted as for bidding packages applying the single-stage one-envelope method and corresponding to contents technically adjusted from the first stage;

e/ The ranking list of contractors shall not be appraised before being approved. This list shall be approved at the proposal of the bid solicitor;

g/ Before signing its appraisal report, the appraisal unit may hold a meeting for parties to solve existing problems, if necessary.

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 comprises:

- The bid solicitor’s report for 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;

- Copies of the dossier of invitation for expression of interest, dossier of invitation to prequalification, bid closing and bid opening records, dossiers of expression of interests or dossiers for participation in prequalification of contractors and other relevant documents.

b/ Appraisal contents cover:

- 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 the bidding law 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 related contents.

c/ An appraisal report covers:

- Overview of principal contents of the project 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 evaluation results of dossiers of expression of interest and dossiers for participation in prequalification; assurance of competition, 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 incompliance with the bidding law 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 the list of technically eligible contractors:

a/ A dossier submitted for appraisal and approval comprises:

- The bid solicitor’s report for 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;

- Copies of the bidding dossier or dossier of requirements, bid opening and closing records, dossiers of technical proposals of contractors and other relevant documents.

b/ Appraisal contents cover:

- Examination of dossiers of technical proposals; and observance of the bidding law 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 related contents.

c/ An appraisal report covers:

- Overview of the contractor selection process (from the publication of notices of invitation to bidding to the submission for appraisal and approval 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 observance of the bidding law and relevant laws; 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 incompliance with the bidding law 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 comprises:

- The bid solicitor’s proposal for 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 bids and dossiers of proposals;

- The contract negotiation record;

- Copies of the bidding dossier or the dossier of requirements, bid opening and closing 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/ Appraisal contents cover:

- Examination of dossiers serving as a basis for organizing the contractor selection;

- Examination of the observance of regulations on time limits in the selection of contractors;

- Examination of the evaluation of bids for bidding packages applying the single-stage one-envelope, two-stage one-envelope or two-stage two-envelope method; and observance of the bidding law and other relevant laws in the evaluation of bids;

- Examination of the evaluation of dossiers of financial proposals for bidding packages applying the single-stage two-envelope method; and observance of the bidding law and other relevant laws in the evaluation of dossiers of financial proposals;

- Examination of the observance of the bidding law and other relevant laws in the contract negotiation; and consistency between the contract negotiation result and contractor selection result, ranking list of contractors, bidding dossier or dossier of requirements and bid dossier or dossier of proposals of the contractor invited to contract negotiation;

- Consideration of divergent opinions (if any) between the bid solicitor and the expert team; or between members of the expert team;

- Other related contents.

c/ An appraisal report covers:

- Overview of principal contents of the project and bidding package, legal bases for organizing the contractor selection;

- Summary of the contractor selection process from short listing (if any) to submission for appraisal and approval of the contractor selection result together with dossiers and documents already reported according to 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 observance of the bidding law and relevant laws; 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 incompliance with the bidding law 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

TRAINING AND RETRAINING IN BIDDING, ORGANIZATION OF PROFESSIONAL BIDDING ORGANIZATIONS AND CONDITIONS ON MEMBERS OF EXPERT TEAMS

Section 1

TRAINING AND RETRAINING IN BIDDING

Article 107. Registration, appraisal, recognition and deletion of names of bidding training institutions

1. Training institutions meeting the conditions specified at Points a, b and c, Clause 1 of Article 19 of the Bidding Law shall make training institution registration dossiers to be sent to the Ministry of Planning and Investment.

2. The Ministry of Planning and Investment shall form a council to appraise registration dossiers of bidding training institutions.

3. Training institutions evaluated by the Appraisal Council as satisfying the   conditions specified at Points a, b and c, Clause 1, Article 19 of the Bidding Law shall be recognized as bidding training institutions and posted on the national bidding network.

4. The name of a bidding training institution shall be deleted from the national bidding network if it violates one of the following provisions:

a/ Changing its head office address and failing to notify it in writing to the Ministry of Planning and Investment within 60 days after the change;

b/ Failing to use bidding lecturers named on the national bidding network to lecture bidding training or retraining courses;

c/ Failing to perform training and retraining activities based on the bidding training framework program;

d/ Granting certificates to individuals who do not attend bidding training courses or individuals who attend such courses but fail to fully satisfy the conditions prescribed in Clause 1, Article 111 of this Decree;

dd/ Failing to archive under regulations dossiers on bidding training or retraining courses it has organized;

e/ Failing to report on its bidding training and retraining activities on an annual basis or at the request of the Ministry of Planning and Investment.

Article 108. Organization of bidding training and retraining

1. Bidding training institutions may organize bidding training and retraining courses when fully satisfying the following conditions:

a/ Being named on the national bidding network;

b/ Having classrooms, teaching and learning facilities and equipment meeting requirements;

c/ Having teaching materials suitable to the framework program under the Ministry of Planning and Investment’s regulations, enclosed with a set of test questions of the basic bidding training program;

d/ Having labor contracts or teaching contracts with bidding lecturers.

2. Bidding training courses, where certificates will be granted, shall be organized on a formal basis with each course accommodating no more than 150 trainees. After the course, the head of the training institution shall grant training certificates to qualified trainees.

3. At the end of each bidding training course, where certificates will be granted, a training institution shall send a report on training results together with a list of individuals who are granted training certificates to the Ministry of Planning and Investment for summarization and publishing on the national bidding network.

4. For courses in which all trainees are from deep-lying, remote and specially disadvantaged areas, training institutions may adjust the contents of teaching materials suitable to specific requirements of local bidding activities but shall ensure training duration according to the framework program.

Article 109. Conditions on bidding lecturers

1. Possessing a university or higher degree in law, technology or economics.

2. Having at least five consecutive years’ or six non-consecutive years’ experience in jobs directly related to bidding activities.

3. Possessing a bidding practice certificate.

4. Completing bidding trainer retraining courses organized by the Ministry of Planning and Investment.

Article 110. Registration, appraisal, recognition and deletion of names of bidding lecturers

1. An individual satisfying the conditions specified in Article 109 of this Decree shall make a bidding lecturer registration dossier to be sent to the Ministry of Planning and Investment.

2. The Ministry of Planning and Investment shall form a council to appraise registration dossiers of bidding lecturers.

3. Bidding lecturers evaluated by the Appraisal Council as fully meeting the conditions specified in Article 109 of this Decree shall be recognized as bidding lecturers and have their names published on the national bidding network.

4. A bidding lecturer has the following responsibilities:

a/ To give lectures in accordance with the framework program of the Ministry of Planning and Investment;

b/ To update knowledge on new mechanisms, policies and laws, if any;

c/ To report on his/her bidding teaching activities on an annual basis or at the request of the Ministry of Planning and Investment.

5. A bidding lecturer’s name shall be deleted from the national bidding network if he/she violates one of the following provisions:

a/ Failing to teach according to the framework program of the Ministry of Planning and Investment;

b/ Failing to regularly update their knowledge on new mechanisms, policies and laws, if any;

c/ Failing to report on his/her bidding teaching activities on an annual basis or at the request of the Ministry of Planning and Investment.

Article 111. Conditions for grant of bidding training certificates and bidding practice certificates

1. An individual shall be granted a bidding training certificate when fully satisfying the following conditions:

a/ Attending at least 90% of the course duration. If a trainee fails to ensure his/her participating duration for plausible reasons, the training institution may permit him/her to have his/her participating duration reserved and continue his/her study at another course organized by the same training institution within three months from the first date of the previous course;

b/ Sitting an end-of-course exam with results assessed as satisfactory or higher;

c/ Having full civil act capacity and being not subject to penal liability examination.

2. Individuals shall be granted a bidding practice certificate when fully satisfying the following conditions:

a/ Possessing a bidding training certificate;

b/ Possessing a university or higher level degree;

c/ Having full civil act capacity and being not subject to penal liability examination;

d/ Having at least four consecutive years’ or five non-consecutive years’ experience in jobs directly related to bidding activities or having directly participated in compilation and appraisal of dossiers of invitation for expression of interest, dossiers of invitation to pre-qualification, bidding dossiers and dossiers of requirements; evaluation of dossiers of expression of interest, pre-qualification dossiers, bid dossiers and dossiers of proposals; appraisal of results of the evaluation of dossiers of expression of interest and pre-qualification dossiers or contractor selection results for at least five large-sized bidding packages or 10 small-sized bidding packages;

dd/ Having passed an exam organized by the Ministry of Planning and Investment.

3. Bidding practice certificates granted by the Ministry of Planning and Investment are valid for five years from the date of grant. Individuals that violate the bidding law shall, depending on the severity of their violations, have their granted bidding practice certificates revoked.

Article 112. Responsibilities of the Ministry of Planning and Investment in the management of bidding training activities

1. To develop and manage a database on bidding lecturers, training institutions and individuals who have been granted bidding training and practice certificates.

2. To develop and promulgate the framework program and bidding training materials for uniform application nationwide.

3. To detail the registration, appraisal and recognition of bidding training institutions and lecturers.

4. To organize exams for the grant of bidding practice certificates.

5. To organize training for, and grant certificates to, bidding lecturers.

6. To promulgate the forms of bidding lecturer certificate, training certificate and practice certificate.

7. To issue decisions on recognition of bidding training institutions for those meeting the conditions specified at  Points a, b and c, Clause 1 of Article 19 of the Bidding Law.

8. To issue decisions on recognition of bidding lecturers for individuals meeting the conditions specified in Article 109 of this Decree.

9. To issue decisions on deletion of names of training institutions and bidding lecturers that violate Clause 4, Article 107 and Clause 5, Article 110 of this Decree.

10. To examine training institutions’ and lecturers’ compliance with the bidding law.

11. To summarize training institutions’ and lecturers’ training and re-training activities through reports on bidding activities of ministries, sectors and localities and bidding training institutions and lecturers.

Section 2

PROFESSIONAL BIDDING ORGANIZATIONS

Article 113. Conditions on a professional bidding organization

1. Having an establishment and operation registration certificate granted by competent authorities, which indicates the permitted business line being bidding agency or bidding consultancy, or having the function to perform specialized bidding tasks.

2. Having a managerial apparatus meeting professional requirements to perform the functions and tasks of bidding agency and bidding consultancy or specialized bidding tasks.

3. Having a staff who have professional ethics and perform their work in an honest, objective and fair manner.

4. Having a process to manage and control the quality of work performance.

Article 114. Consideration, recognition and publishing of information on professional bidding organizations

1. Organizations satisfying the conditions specified in Article 113 of this Decree shall compile a dossier of application for recognition of professional bidding organization to be sent to the Ministry of Planning and Investment.

2. The Ministry of Planning and Investment shall form a council to appraise dossiers of application for recognition of professional bidding organizations.

3. Organizations evaluated by the appraisal council as satisfying the conditions specified in Article 113 of this Decree may be recognized as professional bidding organizations and have their names published on the national bidding network.

Article 115. Operations of professional bidding organizations

1. Professional bidding organizations may operate after being named on the national bidding network.

2. Professional bidding organizations may sign contracts to work as bidding agents or bidding consultants for project owners and bid solicitors.

Section 3

EXPERT TEAMS

Article 116. Expert teams

1. Individuals joining an expert team must possess bidding practice certificates, except those specified in Clauses 3 and 4 of this Article.

2. Depending on the characteristics and complexity of bidding packages, an expert team shall be composed of experts in technical, financial, commercial, administrative, legal or relevant fields.

3. Individuals not mentioned in Clause 2, Article 16 of the Bidding Law shall meet the following conditions when joining an expert team:

a/ Having a bidding training certificate;

b/ Possessing a professional degree related to the bidding package;

c/ Being knowledgeable about specific contents of the bidding package;

d/ Having worked for at least three years in a field related to economic and technical contents of the bidding package.

4. In special cases in which opinions of experts are needed, such experts are not required to have a bidding training certificate.

Chapter XII

RESPONSE TO ARISING EVENTUALITIES AND SETTLEMENT OF APPEALS IN BIDDING

Section 1

RESPONSE TO ARISING EVENTUALITIES

Article 117. Response to arising eventualities

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 opening, except cases specified in Clauses 2 and 8 of this Article.

2. In case 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 needs not 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 needs not 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.

3. In case after selecting a short list, if fewer than three contractors are qualified, this case shall, depending on the practical conditions of the bidding package, be handled in either of the following ways:

a/ Conducting additional selection of contractors to be included in the short list;

b/ Permitting the immediate distribution of bidding dossiers to short-listed contractors.

4. If, by the time of bid closing, for bidding packages subject to open bidding, restricted bidding or competitive offer, fewer than three contractors have submitted bid dossiers or dossiers of proposals, the case shall be considered and settled within four 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 bid dossiers or dossiers of proposals. In this case, the new time of bid closing and corresponding deadlines shall be clearly specified for contractors to modify or supplement their submitted bid dossiers or dossiers of proposals according to new requirements;

b/ Permitting the immediate opening of bids for evaluation.

5. In case a bidding package is divided into different parts, the following provisions shall be complied with:

a/ The bidding dossier or dossier of requirements should 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.

b/ 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 evaluation bid of the bidding package is lowest (for the bidding package subject to the evaluation bid method), the highest total points (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.

c/ In case a bidding package has one part or several parts for which there is no contractor participating in bidding or satisfying the requirements stated in the bidding dossier or dossier of requirements, the project owner shall report it to a competent person for adjusting the contractor selection plan of the bidding package by separating such part(s) into different bidding packages with the bidding package price being the sum of estimated costs of these parts. The selection of contractors for parts for which there are contractors participating in bidding and they have been evaluated as satisfying the technical requirements must still abide by the evaluation principles prescribed at Point b of this Clause;

d/ In case one contractor wins all of its parts, the bidding package shall have one contract. In case several contractors win different parts, the bidding package shall have several contracts.

6. When a bid dossier or dossier of proposals contains abnormal low unit prices, affecting the bidding package quality, the bid solicitor may request contractors to give written explanations and clarifications about the feasibility of these abnormal unit prices. If the contractors’ explanations are unclear and unpersuasive, these offered unit prices shall not be accepted and concurrently be considered deviation that shall be adjusted under regulations like deficient offers of bid dossiers or dossiers of proposals compared with the requirements of bidding dossiers or dossiers of requirements stated in Article 17 of this Decree.

7. If the bid 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 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 bids of contractors that satisfy technical requirements and are on the ranking list all exceed the approved bidding package price, this case shall be considered and handled in one of the following ways:

a/ Permitting these contractors to offer new bids if the bidding package price already comprises elements constituting the performance cost of the bidding package;

b/ Permitting these contractors to offer new bids at the same time with the bid solicitor reporting to the project owner to reconsider the bidding package price and contents of the approved bidding dossier, if necessary.

If permitting contractors to offer new bids, 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 bids, as well as the opening of new bid offering dossiers according to the bid-opening procedures prescribed in Article 29 of this Decree. In case of necessity to adjust the bidding package price in the approved contractor selection plan, the competent person shall approve the adjustments before the date of opening new bid offering dossiers but within 10 days after receiving the adjustment requests and before the deadline for submission of new bid offering dossiers.

c/ Permitting the invitation of the first ranked contractor to price negotiation while ensuring that the post-negotiation price does not exceed the bid 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 10 days after 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 or bidding packages.

9. When the proposed winning bid is below 50% of the approved bidding package price, an inter-branch appraisal team may be formed to 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%, higher than the winning bid 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.

10. In case the bidding dossier permits contractors to propose construction measures different from those specified in the bidding dossier, the deviation between the job volume performed by the construction measures specified in the bidding dossier and that performed by construction measures proposed by contractors is not required to be adjusted under Article 17 of this Decree. This deviation shall not be regarded as deficient deviation.

11. In case the contractor executing the bidding package violates 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 a competent person for permission to terminate the contract with such contractor. The undone work volume may be subject to the form of contractor appointment or other contractor selection forms while ensuring the quality and schedule of the bidding package. The value of the undone work volume assigned to the new contractor shall be determined by subtracting the value of the volume of work done from that stated in the contract. In case the form of contractor appointment is applied, competent persons shall ensure that the appointed contractor is capable and experienced to meet the requirements of the bidding package’s remaining work. In case the unscheduled implementation of the contract is not due to the fault of the contractor, the termination of the contract to replace another contractor shall not be permitted. In case of termination of the contract to replace the violating contractor with a new one, within five working days from the issuance of the decision on termination of the contract with the violating contractor, the project owner shall send a notice to the Ministry of Planning and Investment, which specifies the contractor’s violation leading to the termination of the contract, the form of selecting the alternative contractor and the name of the appointed contractor in case of the application of the form of contractor appointment, for consideration and publishing of information on the violating contractor on the national bidding network and Bidding newspaper.

12. If the contractor is merged, separated or split during the bidding participation process, the merged, separated or split contractor may be considered and permitted to continue participating in bidding.

13. If at the time of the contract signing, the bid-winning contractor fails to meet the conditions on technical and financial capacities prescribed in Clause 2, Article 64 of the Bidding Law, the next lower-ranked contractor shall be invited to negotiation. In this case, the contractor invited to negotiate the contract shall restore the validity of the bid dossier and bid security if his/her/its bid dossier has ceased to be valid and bid security has been refunded or released.

14. The case in which some contractors evaluated as the best and equal after evaluation shall be handled as follows:

a/ Awarding the contract to the contractor with higher technical points for the bidding package subject to the lowest bid method;

b/ Awarding the contract to the contractor with the lower proposed winning bid for the bidding package subject to the evaluation bid method or method of combined techniques and bids.

15. In addition to the cases specified in Clauses 1 thru 14 of this Article, in case of occurring eventualities, project owners shall consider and make decision based on ensuring the goals of competitiveness, fairness, transparency and economic efficiency of bidding.

Section 2

SETTLEMENT OF APPEALS IN BIDDING

Article 118. Conditions for consideration and settlement of appeals 

1. Written appeals are filed by participating contractors.

2. Written appeals are signed by persons who sign bid applications or lawful representatives of contractors, and are appended with seals (if any).

3. Persons who are in charge of appeal settlement receive written appeals under Article 92 of the Bidding Law.

4. The contents of appeals are not yet brought by contractors to court.

5. Appeal settlement costs specified in Clause 8, Article 9 of this Decree shall be paid by appealing contractors to the permanent assisting section of the advisory council in case appeals about contractor selection results are settled by competent persons.

Article 119. Advisory councils

1. Chairmen of advisory councils:

a/ The chairman of the central consultancy council is a competent representative of the Ministry of Planning and Investment. The central-level advisory council shall give advice on appeal settlement at the request of the Prime Minister;

b/ The chairmen of advisory councils of ministries, ministerial-level agencies, government-attached agencies or other central agencies (below referred to as ministerial-level advisory councils) are competent representatives of units under these agencies which are assigned to manage bidding activities. Except for bidding packages specified at Point a of this Clause, ministerial-level advisory councils shall give advice on settlement of appeals concerning all bidding packages under investment projects decided by ministries or heads of ministerial-level agencies or government-attached agencies or managed by ministries.

c/ The chairmen of provincial-level advisory councils are competent representatives of provincial-level Planning and Investment Departments. Except for bidding packages specified at Point a of this Clause, provincial-level advisory councils shall give advice on settlement of appeals concerning all bidding packages under investment projects in provinces or centrally run cities, including bidding packages of enterprises registered for establishment and operation in the localities.

2. Membership of an advisory council:

Members of an advisory council include representatives of competent persons and of relevant business associations. Depending on the characteristics of each bidding package and when necessary, in addition to the above-mentioned members, the chairman of an advisory council may invite other individuals to participate in the advisory council. Members of an advisory council must not be relatives (blood parents, parents-in-law, spouses, blood children, adopted children, daughters- or sons-in-law or blood siblings) of the persons who sign appeals or of individuals who are personally involved in the evaluation of bid dossiers or dossiers of proposals or individuals personally involved in the appraisal of contractor selection results and of the persons who sign for approval contractor selection results.

3. Activities of an advisory council:

a/ The chairman of an advisory council shall issue a decision on the council establishment within 5 working days after receiving written appeals from contractors. The advisory council shall work on an adhoc basis;

b/ The advisory council shall work on the collegial principle, vote by majority and submit reports on its working results to the competent person for consideration and decision. Each member may reserve his/her opinions and is held responsible before law for his/her opinions.

4. Permanent assisting section of an advisory council:

a/ Permanent assisting section is a unit which is assigned with the management task in bidding activities, but does not have individuals personally involved in the appraisal of bidding packages subject to appeals;

b/ The permanent assisting section shall perform administrative tasks assigned by the chairman of the advisory council; and receive and manage sums of money paid by appealing contractors.

Article 120. Settlement of appeals in contractor selection

1. The time limit for settling an appeal specified in Clauses 1 and 2, Article 92 of the Bidding Law is counted from the time the administrative section of the person in charge of appeal settlement receives the written appeal.

2. Persons who are in charge of appeal settlement shall notify in writing the contractors of the refusal to consider and settle their appeals if such appeals fail to meet the conditions specified in Article 118 of this Decree.

3. Contractors may withdraw their written appeals during the process of settlement but shall make written requests for withdrawal.

4. A written reply on appeal settlement results must contain conclusions on the appeal’s contents. 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 request responsible individuals and organizations to pay appealing contractors a sum of money equal to the amount they paid to the advisory council. If contractors’ appeals are concluded wrong, the written reply shall clearly state the reason.

Chapter XIII

HANDLING OF VIOLATIONS, EXAMINATION, SUPERVISION AND MONITORING OF BIDDING ACTIVITIES

Section 1

HANDLING OF VIOLATIONS IN BIDDING

Article 121. Forms of handling violations in bidding

1. Caution and fine shall be applied to organizations or individuals that violate the bidding law in accordance with the law on handling administrative violations in the field of planning and investment.

2. Ban from participation in bidding activities shall be imposed on organizations or individuals that violate provisions in Article 89 of the Bidding Law and Clause 8, Article 12 of this Decree.

3. Individuals’ violations of the Bidding Law that constitute crimes shall be  subject to penal liability examination in accordance with the criminal law.

4. Cadres and civil servants who commit violations of the bidding law shall be handled in accordance with the law on cadres and civil servants.

Article 122. Ban from participation in the contractor selection process

Depending on the severity of violations, a ban from participation in bidding activities may be imposed on organizations and individuals, specifically as follows:

1. Ban from participation in bidding activities for between three and five years for one of violations of Clauses 1, 2, 3, 4 and 5, Article 89 of the Bidding Law.

2.  Ban from participation in bidding activities for between one year and three years for one of violations of Clauses 8 and 9, Article 89 of the Bidding Law.

3. Ban from participation in bidding activities for between six months and one year for one of violations of Clauses 6 and 7, Article 89 of the Bidding Law.

4. Ban from participation in bidding activities for between one year and five years for violations of labor employment specified in Clause 8, Article 12 of this Decree.

Article 123. Cancellation or termination of bidding and rejection of contractor selection results

1. Cancellation of bidding means a measure taken by competent persons, project owners or bid solicitors to handle violations of the bidding law and other relevant laws committed by other organizations or individuals participating in bidding activities by issuing decisions to cancel bidding under Clause 4, Article 73; Clause 10, Article 74, and Point e, Clause 2, Article 75, of the Bidding Law.

2. Termination of bidding, rejection of contractor selection results or declaration to invalidate project owners’ or bid solicitors’ decisions, specifically as follows:

a/ Termination of bidding or rejection of contractor selection results applies when there is evidence that the participating organization or individual commits an act in violation of the bidding law or other relevant laws, leading to the consequence that the goals of competitiveness, fairness, transparency and economic efficiency of bidding activities cannot be achieved or contractor selection results are falsified;

b/ Termination may only be applied to immediately remedy violations and will be implemented before the approval of contractor selection results. Rejection of contractor selection results may apply from the date of approval of contractor selection results to the date of contract signing, or may apply after the signing of the contract in case of necessity;

c/ Decisions on termination of bidding or rejection of contractor selection results must clearly state reasons, contents, measures and time limit for remedying bidding violations;

d/ Declaration to invalidate project owners’ or bid solicitors’ decisions shall be decided by competent persons when such decisions are detected to be incompliant with the bidding law and other relevant laws.

Article 124. Compensation for damage caused by violations of the bidding law

Organizations or individuals committing violations of the bidding law or other relevant laws shall pay compensations for damage in accordance with the law on compensation for damage and other relevant laws.

Section 2

EXAMINATION, SUPERVISION AND MONITORING OF BIDDING ACTIVITIES

Article 125. Examination of bidding activities

1. Bidding examination shall be conducted regularly according to plan or extraordinarily upon occurrence of problems, appeals, petitions or requests of the Prime Minister, chairpersons of provincial-level People’s Committees, or competent persons of bidding examination agencies specified in Clause 2 of this Article. Examination methods include direct examination and reporting request.

2. Ministers, heads of ministerial-level agencies, government-attached agencies or other central agencies, chairpersons of provincial-level People’s Committees, directors of provincial-level Planning and Investment Departments, and heads of departments and sectors under provincial-level People’s Committees, chairpersons of district-level People’s Committees and heads of state enterprises shall direct the examination of bidding activities at units under their management and for projects in which investment has been decided by them so as to manage and re-organize bidding activities to speed up, and raise the efficiency of, bidding activities and timely detect, prevent and handle violations of the bidding law.

3. The Ministry of Planning and Investment shall assume the prime responsibility for organizing bidding examination nationwide. Ministries, ministerial-level agencies, government-attached agencies, other central agencies, provincial-level People’s Committees, Planning and Investment Departments, other departments and sectors under provincial-level People’s Committees, and district-level People’s Committees and state enterprises shall assume the prime responsibility for bidding examination at the request of competent persons of bidding examination agencies. Provincial-level Planning and Investment Departments shall assist provincial-level People’s Committees in organizing bidding examination in their localities.

4. Bidding examination includes regular and extraordinary examinations.

a/ Contents of regular examination cover:

- Examining the issuance of documents guiding and directing bidding work and decentralization in bidding;

- Examining bidding training activities;

- Examining the grant of bidding training certificates and bidding practice certificates;

- Examining the making and approval of contractor selection plans, dossiers of invitation for expression of interest, dossiers of invitation to prequalification, bid dossiers, dossiers of requirements and contractor selection results;

- Examining contents of signed contracts and compliance with legal bases in signing and performing contracts;

- Examining the process and schedules for execution of bidding packages under approved contractor selection plans;

- Examining the reporting on bidding work;

- Examining the examination, supervision and monitoring of bidding activities.

b/ Contents of extraordinary examination: Based on extraordinary examination requests and decisions, heads of examination teams shall decide on appropriate examination contents.

5. At the end of an examination, an examination report with conclusions shall be made. The examination agency shall monitor the remedy of shortcomings (if any) listed in the examination conclusions. For detected wrongdoings, it is necessary to propose remedies or report them to inspection and investigation agencies for handling under regulations.

6. Contents of the examination conclusions must comprise:

a/ The implementation of bidding work at the examined unit;

b/ Examination contents;

c/ Comments;

d/ Conclusions;

dd/ Recommendations.

Article 126. Supervision and monitoring of bidding activities

1. Competent persons shall assign individuals or units with the function of managing bidding activities to supervise and monitor project owners’ and bid solicitors’ compliance with the bidding law in the contractor selection process.

2. Competent persons shall decide and guide the supervision and monitoring of bidding activities for bidding packages under investment projects or procurement cost estimates decided by them when necessary; focus the supervision and monitoring on project owners and bid solicitors having questions and appeals or bidding packages applying the form of contractor appointment and bidding packages with high value, particularities and high technical requirements.

3. The Ministry of Planning and Investment shall assume the prime responsibility for organizing supervision and monitoring of bidding activities for projects under the competence of the Prime Minister or at the request of the Prime Minister. For ministries, ministerial-level agencies, government-attached agencies, other central agencies and units assigned with the task of managing bidding activities under such agencies shall assume the prime responsibility for organizing supervision and monitoring of bidding activities for cases in which ministers or heads of ministerial-level agencies, government-attached agencies or other central agencies are competent persons. Provincial-level Planning and Investment Departments shall assume the prime responsibility for organizing supervision and monitoring of bidding activities for projects decided or managed by localities.

4. Contents of supervision and monitoring of bidding activities in compliance with the bidding law cover:

a/ Preparation for contractor selection: Compiling bidding dossiers or dossiers of requirements;

b/ Organization of contractor selection: Distributing bidding dossiers or dossiers of requirements; 

c/ Evaluation of bid dossiers or dossiers of proposals: The quality of reports on the evaluation of bid dossiers or dossiers of proposals; contract negotiation;

d/ Appraisal and approval of contractor selection results;

dd/ Contract finalization and signing: The process of finalizing contracts, contents of signed contracts and the compliance with legal bases in signing and performing contracts.

5. Methods of supervision and monitoring of bidding activities:

a/ For bidding packages that need to be supervised and monitored, competent persons shall send written notices to project owners and bid solicitors;

b/ Bid solicitors shall publicize names and addresses of supervision and monitoring individuals or units to contractors that have bought or received bidding dossiers or dossiers of requirements;

c/ Bid solicitors shall provide information on the process of contractor selection to supervision and monitoring individuals or units upon receipt of written requests;

d/ When detecting acts and contents that are incompliant with the bidding law, supervision and monitoring individuals or units shall promptly send reports to competent persons for taking appropriate handling measures to ensure the effectiveness of the contractor selection process.

6. Responsibilities of individuals or units that supervise and monitor bidding activities:

a/ To be honest and objective; refrain from causing troubles to project owners and bid solicitors during the supervision and monitoring process;

b/ To request project owners and bid solicitors to provide relevant dossiers and documents serving the supervision and monitoring process;

c/ To receive information from contractors and organizations and individuals related to the process of selecting contractors for bidding packages being supervised and monitored;

d/ To keep information confidential under regulations;

dd/ To discharge other responsibilities in accordance with the bidding law and other relevant laws.

Chapter XIV

OTHER ISSUES

Article 127. Forms of bidding-related dossiers

1. Forms of bidding-related dossiers include the form of contractor selection plan, the form of dossier of invitation for expression of interest, the form of dossier of invitation to prequalification, the form of bidding dossier, the form of dossier of requirements, the form of report on results of evaluation of bidding dossiers or dossiers of proposals, the form of report on appraisal of contractor selection results and other forms.

2. The Ministry of Planning and Investment shall issue forms of bidding-related dossiers.

Article 128. Management of contractors

1. Responsibilities of contractors

a/ To register on the national bidding network under Point d, Clause 1, Article 5 of the Bidding Law;

b/ To regularly update information of their capacity and experience on the national bidding network;

c/ In addition to responsibilities specified in Points a and b of this Clause, foreign contractors shall 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 for by a treaty to which the Socialist Republic of Vietnam is a contracting party or by an international agreement which the competent agency or organization of the Socialist Republic of Vietnam has signed;

- Within 15 days after contracts signed with foreign contractors take effect, project owners shall 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 monitoring.

d/ Foreign contractors selected under the Bidding Law are not required to apply for bidding licenses.

2. Management of subcontractors

a/ Principal contractors may sign contracts with subcontractors on the list of subcontractors mentioned in their bid dossiers or dossiers of proposals. The employment of subcontractors shall not change the obligations of principal contractors. Principal contractors shall take responsibility for volume, quality and schedule and other responsibilities for jobs carried out by subcontractors;

b/ Principal contractors may not employ subcontractors to do jobs other than those declared in their bid dossiers or dossiers of proposals employing subcontractors; subcontractors outside the list of subcontractors mentioned in bid dossiers or dossiers of proposals may be replaced or supplemented only upon the approval of project owners.

c/ Principal contractors shall take responsibility for selecting and employing capable and experienced subcontractors to perform assigned jobs. For important subcontractors as requested in bidding dossiers, the evaluation of their capacity and experience must comply with bidding dossiers;

d/ Principal contractors shall take responsibility for full payment on schedule to subcontractors as agreed upon between principal contractors and subcontractors.

3. The Ministry of Planning and Investment shall take responsibility for maintaining the contractor database and the list of contractors violating the bidding law; summarizing and providing information on contractors to related organizations and individuals to serve information publicity and transparency and fair competition in the contractor selection process.

Chapter XV

IMPLEMENTATION PROVISIONS

Article 129. Implementation guidance

1. For bidding packages with approved bidding plans for which by July 1, 2014, dossiers of invitation for expression of interest, dossiers of invitation to prequalification, bidding dossiers  or dossiers of requirements have not yet been issued, and which do not comply with Bidding Law No. 43/2013/QH13, their bidding plans shall be adjusted for approval.

 Dossiers of invitation for expression of interest, dossiers of invitation to prequalification, bidding dossiers or dossiers of requirements that are issued before July 1, 2014, must comply with Bidding Law No. 61/2005/QH11, Law No. 38/2009/QH12 Amending and Supplementing a Number of Articles of Laws Concerning Capital Construction Investment, the Government’s Decrees No. 85/2009/ND-CP of October 15, 2009, and No. 68/2012/ND-CP of September 12, 2012, and the Prime Minister’s Decision No. 50/QD-TTg of November 9, 2012, and relevant circulars.

2. From July 1, 2014, to the effective date of this Decree, the selection of contractors must comply with Bidding Law No. 43/2013/QH13. Before the effective date of this Decree, the selection must comply with the Government’s Decrees No. 85/2009/ND-CP and No. 68/2012/ND-CP and relevant guiding documents but not in contravention of Bidding Law No. 43/2013/QH13.

3. For procurement funded with state budget to provide public products and services specified at Point dd, Clause 1, Article 1 of Bidding Law No. 43/2013/QH13, the contractor selection under order placement or plan assignment must comply with Decree No. 130/2013/ND-CP of October 16, 2013; other contractor selection forms must comply with Bidding Law No. 43/2013/QH13 and this Decree.

4. Individuals who have bidding retraining certificates granted before the effective date of this Decree may participate in bidding activities under Article 16 of Bidding Law No. 43/2013/QH13 but shall update themselves on provisions of current legal documents on bidding.

5. The Ministry of Planning and Investment shall:

a/ Establish a roadmap for the application and detail the implementation of the following contents:

- Registration of information on contractors on the national bidding network under Point d, Clause 1, Article 5 and Point e, Clause 2, Article 22 of Bidding Law No. 43/2013/QH13;

- The grant of bidding practice certificates to individuals who must possess bidding practice certificates under Clause 2, Article 16 and at Point c, Clause 1, Article 19 of Bidding Law No. 43/ 2013/QH13;

- Operations of professional bidding organizations under Article 32 of Bidding Law No. 43/2013/QH13;

b/ Guide the implementation of other necessary contents of this Decree to serve the state management of bidding activities.

6. The Ministry of Finance shall:

a/ Guide in detail the procurement with state funds in order to maintain regular operations of state agencies, units of people’s armed forces, public non-business units, political organizations, socio-political organizations, socio-political-professional organizations, social organizations and socio-professional organizations;

b/ Publicize the list of goods and services subject to centralized procurement;

c/ Assume the prime responsibility for, and coordinate with the Ministry of Planning and Investment in, guiding the centralized procurement;

d/ Provide guidance on expenses related to the contractor selection process.

7. The Ministry of Health shall guide the bidding for medicines serving disease prevention and medical examination and treatment covered by state funds, health insurance funds and other lawful incomes in health establishments.

8. The Ministry of Industry and Trade shall:

a/ Guide goods import and export procedures of bid-winning contractors;

b/ Publicize the list of domestically produced goods and the list of common goods which are permitted for import and sale in Vietnam.

9. The Ministry of Labor, War Invalids and Social Affairs shall assume the prime responsibility for, and coordinate with the Ministry of Finance and agencies managing related sectors in, promulgating regulations on salary levels of domestic consultants to serve as a basis for determining the value of consultancy contracts of time-based type specified in Clause 4, Article 62 of Bidding Law No.43/2013/QH13.

10. The Ministry of Construction shall issue guidance on the norms of laborers in construction consultancy activities to serve as a basis for determining the value of consultancy contracts of time-based type specified in Clause 4, Article 62 of the Bidding Law No.43/2013/QH13.

11. Ministries and sectors shall, within the ambit of their management, publicize the lists of domestically produced goods satisfying technical and quality requirements.

12. Ministries, ministerial-level agencies, government-attached agencies, other central agencies and provincial-level People’s Committees shall, within the ambit of their management, detail a number of contents of this Decree (if necessary) but ensure non-contravention of Bidding Law No.43/2013/QH13 and this Decree.

13. Ministers, heads of ministerial-level agencies, government-attached agencies or other central agencies and chairpersons of People’s Committees of all levels shall assign leaders to be directly in charge of bidding activities and tasks to an affiliate unit in charge of bidding activities within the scope of their sectoral or local management. Any problems arising in the process of implementation of this Decree should be reported to the Prime Minister for consideration and decision. Ministries, ministerial-level agencies, government-attached agencies, other central agencies, provincial-level People’s Committees and enterprises established under the Prime Minister’s decisions shall send annual reports on the implementation of bidding activities to the Ministry of Planning and Investment for summarization and reporting to the Prime Minister.

Article 130. Effect

This Decree takes effect on August 15, 2014.

The Government’s Decree No. 85/2009/ND-CP of October 15, 2009, guiding the Bidding Law and the selection of construction contractors under the Construction Law; Decree No. 68/2012/ND-CP of September 12, 2012, amending and supplementing a number of articles of the Government’s Decree No. 85/2009/ND-CP of October 15, 2009; and the Prime Minister’s Decision No. 50/QD-TTg of November 9, 2012, on the application of the form of contractor appointment to bidding packages in special cases considered and decided by the Prime Minister, cease to be effective on the effective date of this Decree.-

One behalf of the Government
Prime Minister
NGUYEN TAN DUNG