THEGOVERNMENT
No. 30/2015/ND-CP | THE SOCIALIST REPUBLIC OF VIETNAM
Independence- Freedom - Happiness Hanoi, March 17, 2015 |
DECREE
Detailing a number of articles of the Law on Bidding concerning investor selection
Pursuant to the December 25, 2001 Law on Organization of the Government;
Pursuant to the November 26, 2013 Law on Bidding;
Pursuant to the June 18, 2014 Law on Public Investment;
Pursuant to the November 26, 2014 Law on Investment;
At the proposal of the Minister of Planning and Investment;
The Government promulgates the Decree detailing a number of articles of the Law on Bidding concerning investor selection.
Chapter I
GENERAL PROVISIONS
Article 1.Scope of regulation and subjects of application
1. Scope of regulation
This Decree details a number of articles of the Law on Bidding concerning investor selection as prescribed in Clause 3, Article 1 of the Law on Bidding, including:
a/ Investment projects in the form of public-private partnership (PPP) according to the Government’s regulations on PPP investment;
b/ Investment projects using land plots or land areas of high commercial value and requiring investor selection on the list of projects approved under Point b, Clause 1, Article 10 of this Decree to build works in urban areas, new urban centers; commercial housing; trade and service works; multi-purpose complexes other than those specified at Point a of this Clause.
2. Subjects of application
a/ Organizations and individuals participating in or related to the selection of investors to implement investment projects prescribed in Clause 1 of this Article;
b/ Organizations and individuals that have investor selection activities that are not regulated by this Decree but choose to apply this Decree. These organizations and individuals shall comply with relevant provisions of the Law on Bidding and this Decree to ensure fairness, transparency and economic efficiency.
Article 2.Assurance of competition in bidding
1. An investor participating in bidding shall be assessed as legally and financially independent from the consultancy contractor that makes or appraises the feasibility study report (for group-C PPP projects, the investor must be independent from the contractor that makes or appraises the project proposal); from the consultancy contractor that makes or appraises dossiers of invitation to prequalification and bidding dossiers, evaluates dossiers for participation in prequalification and bid dossiers, appraises results of prequalification and investor selection; from competent state agencies and from the bid solicitor prescribed in Clause 4, Article 6 of the Law on Bidding, when satisfying the following conditions:
a/ Not belonging to the same directly managing agency or organization, for non-business units;
b/ The investor participating in bidding, the competent state agency and the bid solicitor do not have more than 30% of one another’s shares or capital contribution;
c/ The investor participating in bidding and the contractor that makes or appraises the feasibility study report (for group-C PPP projects, the investor participating in bidding must be independent from the contractor that makes or appraises the project proposal) or the contractor that makes or appraises the dossier of invitation to prequalification or bidding dossier, evaluates the dossier for participation in prequalification or bid dossier, appraises results of prequalification or investor selection do not have shares or capital contribution of each other; do not have 20% or more of shares or capital contribution of the same organization or individual.
2. The investor is permitted to bid for the project for which it has made the feasibility study report (or the project proposal for group-C PPP projects and must be legally and financially independent from other parties as prescribed in Clause 1 of this Article, except the consultancy contractor that makes the feasibility study report (or project proposal for group-C PPP projects).
Article 3.Incentives in selection of investors to implement PPP projects
If the investor has an approved feasibility study report or project proposal (for group-C projects), such investor is entitled to incentives during the financial-commercial evaluation, particularly:
1. If the service price-based method is applied, the investor that is ineligible for incentives shall add an amount of 5% of the service price to the initial service price of such investor for comparison and ranking.
2. If the state capital contribution-based method is applied, the investor that is ineligible for incentives shall add an amount of 5% of the proposed state capital contribution to the initial state capital contribution proposed by such investor for comparison and ranking.
3. If the public interest- or state interest-based method is applied, the investor that is eligible for incentives may add an amount of 5% of the amount payable to the state budget to the initial amount payable to the state budget proposed by the investor for comparison and ranking.
4. If a combined method is applied, the investor is entitled to incentives according to the proportions of the combined method, provided that the total value of incentives must not exceed 5%.
Article 4.Provision and publishing of bidding information
1. Responsibility 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 prescribed at Point g, Clause 1, Article 8 of the Law on Bidding on the national bidding network or Vietnam Public Procurement Review;
b/ Ministries, ministerial-level agencies, government-attached agencies, other central agencies and provincial-level People’s Committees shall, within the scope of their responsibility, provide the information prescribed at Point h, Clause 1, Article 8 of the Law on Bidding on the national bidding network;
c/ Provincial-level Departments of Planning and Investment and agencies in charge of PPP investment shall provide information about PPP projects, lists of land-using projects and relevant information prescribed at Points i and l, Clause 1, Article 8 of the Law on Bidding on the national bidding network;
d/ The bid solicitor shall provide the information prescribed at Point a, Clause 1, Article 8 of the Law on Bidding on the national bidding network;
dd/ The bid solicitor shall provide the information prescribed at Points b, c, d, dd, Clause 1, Article 8 of the Law on Bidding and information relating to changes of the bid closing time (if any) on the national bidding network or Vietnam Public Procurement Review;
e/ Investors shall provide and update information about their capacity and experience on the investor database on the national bidding network as prescribed at Point d, Clause 1, Article 5, and Point k, Clause 1, Article 8, of the Law on Bidding;
g/ Bidding training institutions, bidding lecturers, and experts having bidding practice certificates shall provide information about their training, teaching and bidding practice to the Ministry of Planning and Investment for posting on the national bidding network as prescribed at Point k, Clause 1, Article 8 of the Law on Bidding.
2. Responsibility to publish information:
a/ The Ministry of Planning and Investment shall publish information about bidding;
b/ Valid information according to regulations shall be posted on the national bidding network and Vietnam Public Procurement Review. If finding invalid information, the Ministry of Planning and Investment shall post a notice thereof on the national bidding network and Vietnam Public Procurement Review for the information provider to modify and supplement it.
3. In addition to the responsibility to provide information prescribed at Point dd, Clause 1 of this Article, the bid solicitor shall publish the notice of invitation to international prequalification on a website or an international newspaper in English that is widely circulated in Vietnam.
Article 5.Time limit and procedures for provision and publishing of bidding information
1. Self-publishing of information on the national bidding network:
a/ The entities responsible for providing information mentioned in Clause 1, Article 4 of this Decree shall register for participation in the national bidding network and post information on the national bidding network themselves as guided by the Ministry of Planning and Investment;
b/ For the information prescribed at Points b and c, Clause 1, Article 8 of the Law on Bidding, bid solicitors shall issue dossiers of invitation to prequalification or bidding dossiers within the time limit stated in the notice of invitation to prequalification or bidding, which must not exceed 3 working days after such information is first posted on the national bidding network;
c/ For the information prescribed at Points a, d, dd, g, h and i, Clause 1, Article 8 of the Law on Bidding, the entities responsible for publishing information shall ensure that information is published within 7 working days from the date on which the document is issued.
2. Provision of information to Vietnam Public Procurement Review:
a/ For the information prescribed at Points b and c, Clause 1, Article 8 of the Law on Bidding, such information shall be received by Vietnam Public Procurement Review at least 5 working days before the intended date of issuance of the dossier of invitation to prequalification or bidding dossier. Such information shall be published on one issue of Vietnam Public Procurement Review;
b/ For the information prescribed at Points d, dd and g, Clause 1, Article 8 of the Law on Bidding, such information shall be received by Vietnam Public Procurement Review within 7 working days after the document is issued. Such information shall be published on one issue of Vietnam Public Procurement Review.
3. Within 2 working days after the information prescribed at Points b, c, d, dd and g, Clause 1, Article 8 of the Law on Bidding is published on the national bidding network by the provider, Vietnam Public Procurement Review shall publish such information on one issue.
4. Within 2 working days after Vietnam Public Procurement Review receives the information prescribed at Points b, c, d, dd and g, Clause 1, Article 8 of the Law on Bidding, it shall publish such information on the national bidding network and the Review itself. For the information prescribed at Points b and c, Clause 1, Article 8 of the Law on Bidding, the bid solicitor shall issue the dossier of invitation to prequalification or bidding dossier within the time limit written in the notice of invitation to prequalification or bidding, which must not exceed 3 working days after such information is first posted on the national bidding network or published on Vietnam Public Procurement Review.
5. Within 2 working days after the information publishing under Point b, Clause 1, or Point a, Clause 2 of this Article, the bid solicitor shall post the notice of invitation to international prequalification under Clause 3, Article 4 of this Decree.
Article 6.Time limits in the process of investor selection
1. Information about a PPP project and the list of land-using investment projects shall be published within 7 working days after the PPP project proposal or the list of land-using investment projects is approved.
2. The time limit for approving an investor selection plan is 10 days from the date on which the appraisal report is received.
3. A dossier of invitation to prequalification, bidding dossier, or dossier of requirements shall be issued within 3 working days from the first date on which the notice of invitation to prequalification or bidding is posted on the national bidding network or published on Vietnam Public Procurement Review, or invitations for bids are sent to the bid closing time.
4. The time for preparing a dossier for participation in prequalification is at least 30 days from the first date on which the dossier of invitation to prequalification is issued to the bid closing date. Investors shall submit dossiers for participation in prequalification before the bid closing time.
5. The time for preparing dossiers of proposals is at least 30 days from the first date on which the dossier of requirements is issued to the bid closing date. Investors shall submit dossiers of proposals before the bid closing time.
6. The time for preparing bid dossiers is at least 60 days for domestic bidding or 90 days for international bidding from the first date on which the bidding dossier is issued to the bid closing date. Investors shall submit bid dossiers before the bid closing time.
7. The time limit for evaluating dossiers for participation in prequalification is 30 days from the bid closing date to the date on which the bid solicitor submits the prequalification result to a competent person for approval.
8. With regard to domestic bidding, the time limit for evaluating dossiers of proposals is 45 days, and bid dossiers, 90 days; for international bidding, the time limit for evaluating dossiers of proposals is 60 days, bid dossiers, 120 days from the bid closing date to the date on which the bid solicitor submits the investor selection result to a competent person for approval. If necessary, the time limit for evaluating bid dossiers or dossiers of proposals may be extended as long as the project implementation schedule is ensured.
9. The time limit is 30 days from the date of receipt of complete dossiers for approval with regard to: investor selection plan, dossier of invitation to prequalification, bidding dossier, dossier of requirements, prequalification result, list of investors satisfying technical requirements and investor selection result.
10. The time limit for approval for dossiers of invitation to prequalification, bidding dossiers, dossiers of requirements, prequalification results and investor selection results is 20 days from the date on which the appraisal report is received by a competent person.
11. The validity duration of a bidding dossier or dossier of proposals is 320 days at most from the bid closing date. If necessary, the validity duration of the bid dossier or dossier of proposals may be extended as long as the project implementation schedule is ensured.
12. Written modifications to a dossier of invitation to prequalification shall be sent (by post, fax, email or directly) to the investors that received the dossier at least 10 days before the bid closing date; written modifications to a bidding dossier shall be sent to investors that received the dossier at least 15 days for domestic bidding or 25 days for international bidding before the bid closing date; written modifications to a dossier of requirements shall be sent at least 10 days before the bid closing date. If the written modifications cannot be sent by the deadline prescribed in this Point, the bid solicitor shall extend the bid closing time to ensure the written modifications to the dossier of invitation to prequalification, bidding dossier or dossier of requirements are sent according to the prescribed time limit.
13. The bid solicitor shall send written notifications of the investor selection result to investors by post or fax within 5 working days from the date on which the investor selection result is approved.
14. The time limit for contract negotiation and finalization is 120 days from the date on which the investor selection result is approved.
Article 7.Expenses for investor selection
1. Based on the size and characteristics of the project, the bid solicitor shall decide on the selling price (inclusive of tax) for a set of dossier of invitation to prequalification, bidding dossier or dossier of requirements. For domestic bidding, the selling price for a bidding dossier or dossier of requirements must not exceed VND 20,000,000 (twenty million); the price for a set of dossier of invitation to prequalification must not exceed VND 5,000,000 (five million). For international bidding, the selling price for a bidding dossier or dossier of requirements must not exceed VND 30,000,000 (thirty million); the price for a set of dossier of invitation to prequalification must not exceed VND 10,000,000 (ten million).
2. Expenses for making and appraisal of dossiers of invitation to prequalification; evaluation of dossiers for participation in prequalification; appraisal of prequalification results:
a/ The expense for making a dossier of invitation to prequalification is 0.02% of the total investment, but must be at least VND 10,000,000 (ten million) and at most VND 100,000,000 (one hundred million);
b/ The expense for appraising a dossier of invitation to prequalification is 0.01% of the total investment, which must be at least VND 10,000,000 (ten million) and at most VND 50,000,000 (fifty million);
c/ The expense for evaluating a dossier for participation in prequalification is 0.02% of the total investment, which must be at least VND 10,000,000 (ten million) and at most VND 100,000,000 (one hundred million);
d/ The expense for appraising the prequalification result is 0.01% of the total investment, which must be at least VND 10,000,000 (ten million) and at most VND 50,000,000 (fifty million).
3. Expenses for making and appraisal of bidding dossiers or dossiers of requirements; evaluation of bid dossiers or dossiers of proposals; appraisal of investor selection results:
a/ The expense for making a bidding dossier or dossier of requirements is 0.05% of the total investment, which must be at least VND 10,000,000 (ten million) and at most VND 200,000,000 (two hundred million);
b/ The expense for appraising each content of a bidding dossier or dossier of requirements and the investor selection result is 0.02% of the total investment, which must be at least VND 5,000,000 (five million) and at most VND 100,000,000 (one hundred million);
c/ The expense for evaluating a bidding dossier or dossier of proposals is 0.03% of the total investment, which must be at least VND 10,000,000 (ten million) and at most VND 200,000,000 (two hundred million).
4. For projects with similar contents of the same competent state agency and the same bid solicitor, and projects in which investors have to be selected again, the expenses for making and appraising a dossiers of invitation to prequalification; making and appraising a bidding dossier or dossier of requirements must not exceed 50% of those to be paid under Clauses 2 and 3 of this Article. If investor selection has to be carried out again, the expense for such selection shall be included in the investment preparation cost.
5. The expenses prescribed in Clauses 2, 3 and 4 of this Article apply to the cases in which the tasks are directly performed by the competent state agency and bid solicitor. If the tasks specified in Clauses 2, 3 and 4 are performed by hired consultants, the expenses shall be determined based on the contents and scope of the tasks, performance duration, capacity and experience of the consultants, their salary norm as prescribed, and other factors.
If the salary norm of consultants is not available, the consultants’ salaries shall be determined based on the expenses already paid to consultants for similar projects in a certain period of time or included in the total investment.
6. The payment for the Advisory Council to settle investors’ appeals about investor selection results is 0.02% of the total investment of the appealing investor, which must be at least VND 20,000,000 (twenty million) and at most VND 200,000,000 (two hundred million);
7. The expense for publishing bidding information, expense for participation in the national bidding network and use of revenues collected during the investor selection process must comply with the guidance of the Ministry of Planning and Investment and the Ministry of Finance.
Article 8.Time and expense for investor selection for group-C PPP projects
1. Time of investor selection for group-C PPP projects:
a/ The dossier of invitation to prequalification (if any) or bidding dossier shall be issued within 3 working days from the first date on which the notice of prequalification or bidding is posted on the national bidding network or Vietnam Public Procurement Review or the invitation for bids is sent to before the bid closing time;
b/ The time for preparing a dossier for participation in prequalification is at least 10 days from the first date on which the dossier of invitation to prequalification is issued to the bid closing date. Investors shall submit dossiers for participation in prequalification before the bid closing time;
c/ The time for preparing a bid dossier is at least 30 days, a dossier of proposals, 15 days from the first date on which the bidding dossier or dossier of requirements is issued to the bid closing date. Investors shall submit bid dossiers or dossiers of proposals before the bid closing time;
d/ If the dossier of invitation to prequalification, bidding dossier or dossier of requirements has to be modified, the bid solicitor shall notify the modification to investors 3 days before the bid closing date;
dd/ The time limit for evaluating a bid dossier is 30 days, a dossier of proposals, 20 days from the bid closing date to the date on which the bid solicitor submits the investor selection results to a competent person for approval;
e/ The time limit is 10 days from the date of receipt of a complete dossier for approval for appraisal of: investor selection plan, dossiers of invitation to prequalification, bidding dossiers, dossiers of requirements, prequalification results and investor selection results;
g/ Other time limits must comply with Article 6 of this Decree.
2. Expenses for selection of investors for group-C PPP projects:
a/ The value of bid security must be between 0.5% and 1% of the total investment in the project; the value of contract performance security, between 1% and 1.5% of the total investment in the project;
b/ Based on the characteristics of the project, the bid solicitor shall decide on the selling price (inclusive of tax) for a set of dossier of invitation to prequalification, bidding dossier or dossier of requirements. The selling price for a bidding dossier or dossier of requirements must not exceed VND 15,000,000 (fifteen million); the price for a set of dossier of invitation to prequalification must not exceed VND 5,000,000 (five million);
c/ Expenses for making and appraisal of dossiers of invitation to prequalification; evaluation of dossiers for participation in prequalification; appraisal of prequalification results:
- The expense for making a dossier of invitation to prequalification is 0.02% of the total investment, which must be at least VND 5,000,000 (five million) and at most VND 50,000,000 (fifty million);
- The expense for appraising a dossier of invitation to prequalification and prequalification result is 0.01% of the total investment, which must be at least VND 5,000,000 (five million) and at most VND 25,000,000 (twenty five million);
- The expense for evaluating a dossier for participation in prequalification is 0.02% of the total investment, which must be at least VND 5,000,000 (five million) and at most VND 50,000,000 (fifty million).
d/ Expenses for making and appraisal of bidding dossiers or dossiers of requirements; evaluation of bid dossiers or dossiers of proposals; appraisal of investor selection results:
- The expense for making a bidding dossier or dossier of requirements is 0.05% of the total investment, which must be at least VND 5,000,000 (five million) and at most VND 100,000,000 (one hundred million);
- The expense for appraising each content of a bidding dossier or dossier of requirements and the investor selection result is 0.02% of the total investment, which must be at least VND 5,000,000 (five million) and at most VND 50,000,000 (fifty million);
- The expense for evaluating a bid dossier or dossier of proposals is 0.03% of the total investment, which must be at least VND 5,000,000 (five million) and at most VND 100,000,000 (one hundred million).
dd/ For projects with similar contents of the same competent state agency and bid solicitor, and projects in which investors have to be selected again, the expenses for making and appraising dossiers of invitation to prequalification; and making and appraising bidding dossiers or dossiers of requirements must not exceed 50% of those to be paid as prescribed at Points c and d of this Clause. If investor selection has to be carried out again, such expenses shall be included in the investment preparation expenses;
e/ The expenses prescribed at Points a, b, c and d of this Clause shall apply to the cases in which the tasks are directly performed by the competent state agency and bid solicitor. Clauses 5, 6 and 7, Article 7 of this Decree shall apply to the expense for hiring bidding consultants, expense for the Advisory Council in charge of appeal settlement, expense for bidding information publishing, and expense for participation in the national bidding network.
Article 9.Methods of investor selection
1. The selection of investors for PPP projects and land-using investment projects shall be carried out by open international bidding, except the cases specified in Clauses 2 and 3 of this Article.
2. Open domestic bidding shall be applied to the following cases:
a/ The fields in which foreign investment is restricted by Vietnamese law or treaties to which the Socialist Republic of Vietnam is a contracting party;
b/ Foreign investors do not participate in international prequalification or fail the international prequalification;
c/ Group-C PPP projects as defined by the law on public investment. In case advanced technologies or international management experiences are needed, domestic investors may form joint ventures with foreign investors or employ foreign contractors to participate in bidding and implement the projects;
d/ Land-using investment projects with preliminary total expenses for implementation (excluding the expense for compensation and ground clearance) below VND 120,000,000,000 (one hundred and twenty billion).
3. Cases of appointment of investors to implement projects under Clause 4, Article 22 of the Law on Bidding:
a/ Only one investor registers and satisfies requirements set out in the dossier of invitation to prequalification; only one investor passes the prequalification;
b/ Only one investor is capable of implementing the project as prescribed at Point b, Clause 4, Article 22 of the Law on Bidding;
c/ The project proposed by the investor is feasible and most efficient, including PPP projects, land-using investment projects for protection of national sovereignty, national borders and islands as prescribed at Point c, Clause 4, Article 22 of the Law on Bidding. Feasible and most efficient projects shall be considered and decided by the Prime Minister when all the following conditions are satisfied:
- There is a feasibility study report (for PPP projects) or project proposal (for group-C PPP projects) that is approved;
- The investor proposes reasonable service prices, state capital contribution, public interests or state interests;
- The requirements on protection of national sovereignty, national borders and islands are satisfied.
Article 10.List of land-using investment projects
1. Making and approval of the list of projects
a/ Bases for making the list of projects:
- Socio-economic development plan;
- Annual land use plan; approved list of projects that need land recovery;
- Construction zoning plan on a scale of 1:2,000 or detailed construction plan on a scale of 1:500 (if any).
b/ Making and approval of the list of projects
Relevant provincial-level departments and equivalent specialized agencies or district-level People’s Committees shall propose projects that will use land plots or land areas of high commercial value that need investor selection and send their proposals to the provincial-level Department of Planning and Investment for summarization and reporting of the list of land-using investment projects to the chairperson of the provincial-level People’s Committee for consideration and approval.
2. Publishing the list of projects
a/ After a decision on approval is issued, the list of land-using investment projects shall be published within the time limit prescribed in Clause 1, Article 6 of this Decree. It is encouraged to publish the list on other mass media to facilitate access to information of interested investors;
b/ The published information must specify the project implementation location, land area, land use purpose, approved planning specifications, current conditions of the land plot, and other necessary information.
Article 11.Making ofpreliminary plans on compensation and ground clearance for land-using investment projects
Based on the approved list of land-using projects mentioned at Point b, Clause 1, Article 10 of this Decree, relevant provincial-level departments and equivalent specialized agencies or district-level People’s Committees shall coordinate with the organization in charge of compensation and ground clearance in making a preliminary plan on compensation and ground clearance when land is recovered by the State for use as a basis for making bidding dossiers or dossiers of requirements for investor selection. The compensation and ground clearance money shall be determined based on specific land prices according to the latest land price table and price adjustment coefficients as prescribed by the land law.
Article 12.Storageof bidding information
1. All dossiers related to investor selection shall be stored for at least 3 years after the project contract is completed, except the dossiers mentioned in Clauses 2, 3 and 4 of this Article.
2. Dossiers of financial-commercial proposals of investors that do not pass the technical evaluation shall be returned in their original conditions to the investors at the same time with the refund or release of bid security of unselected investors. If investors refuse to receive back their dossiers of financial-commercial proposals, the bid solicitor shall consider and decide on destroying them in a way that information contained therein is not revealed.
3. In case of bidding cancellation, relevant dossiers shall be stored for 12 months from the time the decision on bidding cancellation is issued.
4. Project contract finalization dossiers and documents related to the selected investor shall be preserved in accordance with the law on archives.
Article 13.Bidding training
The registration, appraisal, recognition and deregistration of bidding training centers and bidding trainers, provision of bidding training; conditions on bidding trainers; conditions for grant of bidding training certificates and practice certificates; responsibilities of the Ministry of Planning and Investment for management of bidding training must comply with the law on contractor selection.
Article 14.Expert teams
1. Every member of an expert team must possess the bidding practice certificate, except those mentioned in Clauses 3 and 4 of this Article.
2. Depending on the characteristics and complication of the project, the expert team must consist of experts in technology, finance, commerce, administration, law, land and relevant fields.
3. In order to participate in an expert team, an individual who is not mentioned in Clause 2, Article 16 of the Law on Bidding must satisfy the following conditions:
a/ Possessing a certificate of bidding training;
b/ Possessing qualifications relevant to the project;
c/ Having foreign language skills that satisfy the project’s requirements;
d/ Being conversant with relevant contents of the project;
dd/ Having at least 5 years’ experience in the field related to the project.
4. In special cases in which opinions of specialized experts are required, these experts are not required to possess bidding training certificates.
Chapter II
PREQUALIFICATION AND INVESTOR SELECTION PLAN
Section 1
PREQUALIFICATION
Article 15.Detailed process
1. Preparation for prequalification, including:
a/ Making a dossier of invitation to prequalification;
b/ Appraising and approving the dossier of invitation to prequalification.
2. Organizing the prequalification, including:
a/ Announcing the prequalification;
b/ Issuing, modifying and clarifying the dossier of invitation to prequalification;
c/ Preparing, submitting, receiving, managing, modifying and withdrawing dossiers for participation in prequalification;
d/ Opening bids.
3. Evaluating dossiers for participation in prequalification.
4. Submitting, appraising and approving the prequalification result; publishing the short list.
Article 16.Application of prequalification
1. Based on the feasibility study reports of PPP projects or on the approved list of land-using projects, prequalification of investors shall be carried out before the investor selection plan is made in order to determine qualified and experienced investors that satisfy the project’s requirements, invite them to open bidding under Clauses 1 and 2, Article 9 of this Decree, or appoint a contractor under Points a and b, Clause 3, Article 9 of this Decree.
2. International prequalification shall be applied to PPP projects and land-using projects, except the cases specified in Clauses 3, 4 and 5 of this Article.
3. Domestic prequalification shall be applied to the projects mentioned at Point a, Clause 2, Article 9 of this Decree.
4. For group-C PPP projects, after the project proposals are approved, competent persons shall decide whether or not to apply domestic prequalification depending on the characteristics of the projects.
5. For land-using projects with total expenses for implementation (excluding the expense for compensation and ground clearance) below VND 120,000,000,000 (one hundred twenty billion), competent persons shall decide whether or not to apply domestic prequalification depending on the characteristics of the projects.
Article 17.Making, appraisal and approval of dossiers of invitation to prequalification
1. Making dossiers of invitation to prequalification
A dossier of invitation to prequalification must include:
a/ Instructions for investors: basic contents of the project and instructions for participation in prequalification for investors;
b/ Requirements on eligibility of investors prescribed in Article 5 of the Law on Bidding; for land-using projects, requirements prescribed at Point c, Clause 3, Article 58 of the Land Law shall be also presented;
c/ Required capacity and experience of investors: financial-commercial capacity, ability to arrange capital, ability to implement the project; required experience of implementing similar projects; preliminary project implementation methods and commitment to implementing the project; responsibility to declare disputes, complaints and lawsuits concerning current and past contracts. Experience and capacity of investors are experience and capacity of investors that participate in the bidding as independent investors or joint ventures with other partners, including the lender, contractors, producers, insurers and relevant partners.
d/ Standards and methods for evaluation
Dossiers for participation in prequalification shall be evaluated according to the evaluation standards mentioned in the dossier of invitation to prequalification. The scores shall be given according to a scale of 100 or 1,000 points to evaluate the investors’ capacity and experience. When establishing standards for evaluating capacity and experience, the minimum score of a qualified investor shall be specified. Nevertheless, the minimum score must not be lower than 60% of the total points and the score of each basic requirement must not be lower than 50% of the maximum score given to such requirement.
2. Appraising and approving the dossier of invitation to prequalification:
a/ The bid solicitor shall submit the draft dossier of invitation to prequalification and relevant documents to a competent person and the appraising unit;
b/ The dossier of invitation to prequalification shall be appraised under Clause 1, Article 82 of this Decree;
c/ The dossier of invitation to prequalification shall be approved in writing according to the written request for approval and the appraisal report.
Article 18.Notification, issuance, modification and clarification of dossiers of invitation to prequalification
1. Notification of invitation to prequalification shall be made under Point dd, Clause 1, Article 4, and Point b, Clause 1, or Point a, Clause 2, Article 5, of this Decree.
2. Issuance, modification and clarification of a dossier of invitation to prequalification
a/ The dossier of invitation to prequalification shall be issued under Clause 3, Article 6 of this Decree. For joint ventures, only one member of the joint venture is required to buy the dossier of invitation to prequalification, even when the joint venture has not been established;
b/ In case of modification of the dossier of invitation to prequalification after issuance, the bid solicitor shall send the decision on modification and the modified contents to the investors that have bought the dossier;
c/ If wishing to have the dossier of invitation to prequalification clarified, the investor shall send a written request to the bid solicitor at least 5 working days before the bid closing date. The bid solicitor shall clarify the dossier in one of the following ways:
- Sending clarifying documents to the investors that have bought or received the dossier of invitation to prequalification;
- When necessary, a pre-bidding meeting shall be held to discuss contents of the dossier of invitation to prequalification that remain unclear to investors. The discussion shall be recorded in writing by the bid solicitor. The written record shall be used as the clarifying document and sent to investors that have bought the dossier;
- The clarification must not contravene the approved contents of the dossier of invitation to prequalification. If the dossier of invitation to prequalification shall be modified after clarification, it shall be modified under Point b of this Clause;
d/ The decision on modification of the dossier of invitation to prequalification and the clarifying document constitute an integral part of the dossier.
Article 19.Preparation, submission, receipt, management, modification and withdrawal of dossiers for participation in prequalification; bid opening
1. Preparing, submitting, receiving, managing, modifying and withdrawing dossiers for participation in prequalification:
a/ Investors shall prepare and submit dossiers for participation in prequalification as required in the dossier of invitation to prequalification;
b/ The bid solicitor shall receive and manage dossiers for participation in prequalification according to regulations on management of confidential documents until the prequalification result is published. In no circumstance may information in the dossier for participation in prequalification submitted by an investor be revealed to any other investor, except information which is disclosed upon bid opening. Dossiers for participation in prequalification sent to the bid solicitor after the bid closing time shall not be opened and shall be considered invalid and rejected. Any documents sent by investors after the bid closing time for the purpose of modification or supplementation to the submitted dossiers for participation in prequalification shall be considered invalid, except documents submitted by investors for clarifying the dossiers for participation in prequalification at the request of the bid solicitor or for proving the investors’ eligibility, capacity and experience;
c/ Any investor that wishes to modify or withdraw the submitted dossier for participation in prequalification shall send a written request to the bid solicitor. The bid solicitor shall only accept it if receiving the written request before the bid closing time;
d/ The bid solicitor shall receive dossiers for participation in prequalification of every investor that submits such dossier before the bid closing time, including those that have not bought or received the dossier of invitation to prequalification directly from the bid solicitor. If having not bought the dossier of invitation to prequalification, the investor shall pay the bid solicitor an amount equal to the selling price of the dossier before the dossier is received.
2. Bid opening
Dossiers for participation in prequalification submitted according to the deadline and location specified in the dossier of invitation to prequalification shall be publicly opened within 1 hour from the bid closing time. The opening of these dossiers shall be recorded in writing and the written record shall be sent to every investor that submits the dossier. Dossiers for participation in prequalification sent after the bid closing time shall not be opened and shall be considered invalid and rejected.
Article 20.Evaluation of dossiers for participation in prequalification
1. Dossiers for participation in prequalification shall be evaluated according to the evaluation standards stated in the dossier of invitation to prequalification. Dossiers for participation in prequalification having scores not lower than the required minimum score shall be put on the short list; the dossier for participation in prequalification having the highest score shall be ranked first. If there are more than 3 investors that satisfy requirements, at least 3 and at most 5 top-ranked investors shall be put on the short list.
2. Clarification of dossiers for participation in prequalification:
a/ After bid opening, investors shall clarify their dossiers for participation in prequalification at the request of the bid solicitor. If the dossier for participation in prequalification lacks documents proving the investor’s eligibility, capacity and experience, the bid solicitor shall request the investor to clarify and provide additional documents to prove the investor’s eligibility, capacity and experience;
b/ If, after the bid closing time, the investor finds that the dossier for participation in prequalification lacks documents proving the investor’s eligibility, capacity and experience, such investor may send clarifying documents to the bid solicitor. The bid solicitor shall receive and evaluate clarifying documents sent by the investor; additional documents for clarifying the investor’s eligibility, capacity and experience shall be regarded as an integral part of the dossier for participation in prequalification;
c/ Clarification of the dossier for participation in prequalification shall only be carried out between the bid solicitor and the investor whose dossier needs clarifying. The clarification shall be made in writing and preserved by the bid solicitor as an integral part of the dossier for participation in prequalification. The clarification must not change the nature of the investor.
Article 21.Submission, appraisal and approval of prequalification results; publishing of the short list
1. According to the report on results of evaluation of dossiers for participation in prequalification, the bid solicitor shall submit the prequalification result, clearly stating the opinions of the bid solicitor about the evaluation contents provided by the expert team.
2. The prequalification result shall be appraised under Clause 2, Article 83 of this Decree before being approved.
3. The prequalification result shall be approved in writing according to the written request for approval and the appraisal report. In case a short list is made, the written approval of the prequalification result must specify the names of investors that pass the prequalification and notes (if any). In case a short list is not made, the written approval must specify the reason.
4. Publishing of the short list: The short list shall be published under Point dd, Clause 1, Article 4, and Point c, Clause 1, or Point b, Clause 2, Article 5, of this Decree, and notified to every investor that has submitted the dossier for participation in prequalification.
Section 2
Investor selection plans
Article 22.Making of an investor selection plan
1. Bases for making an investor selection plan:
a/ The decision approving the project proposal (for group-C PPP projects), feasibility study report (for PPP projects); the decision approving the list of land-using projects;
b/ Documents on the use of state investment in PPP projects (if any);
c/ Treaties or international agreements on the PPP projects funded by ODA or concessional loans (if any);
d/ The prequalification result (if any);
dd/ Relevant documents.
2. Pursuant to Clause 1 of this Article, the bid solicitor shall make an investor selection plan and submit it to a competent person and concurrently to the appraising unit.
3. The dossier submitted for approval must comprise the written request for approval and enclosed documents. The written request must contain a summary of the implementation process and contents of the investor selection plan as prescribed in Article 23 of this Decree. Enclosed documents are photocopies serving as the basis for making the investor selection plan prescribed in Clause 1 of this Article.
Article 23.Contents of an investor selection plan
1. Name of the project.
2. Total investment, for PPP projects; preliminary total expense for project implementation and expense for compensation and ground clearance for land-using investment projects.
3. Preliminary state capital contributed to support construction of works under the PPP project, financial mechanism and form of guaranteeing such state investment (if any) to support the project implementation.
4. Form and method of investor selection
a/ Clearly determining whether to apply open bidding or contractor appointment, international or domestic bidding as prescribed in Article 9 of this Decree. For group-C PPP projects and land-using investment projects in which preliminary total expense (excluding the expense for compensation and ground clearance) is below VND 120,000,000,000 (one hundred twenty billion), domestic open bidding shall be carried out if prequalification is not applied, except the case mentioned at Point c, Clause 3, Article 9 of this Decree;
b/ Clearly determining the method of investor selection being one-stage single-envelope or one-stage two-envelope as prescribed in Article 28 or Article 29 of the Law on Bidding.
5. Starting time of investor selection
The starting time of investor selection is the time of issuing the bidding dossier or dossier of requirements, specifying the month or quarter in the year.
6. Type of contract
The type of contract shall be clearly determined under Article 68 of the Law on Bidding.
7. Contract performance duration
The contract performance duration shall be expressed in years or months, counting from the effective date of the contract to the time the involved parties fulfill their contractual obligations.
Article 24.Appraisal and approval of investor selection plans
1. Appraising an investor selection plan
a/ An investor selection plan shall be appraised under Article 23 of this Decree;
b/ The unit assigned to appraise an investor selection plan shall make an appraisal report and submit it to a competent person for approval.
2. According to the appraisal report, the competent person shall issue a written approval of the investor selection plan as the basis for proceeding with investor selection.
Chapter III
OPEN BIDDING TO SELECT INVESTORS FOR PPP PROJECTS
Section 1
DETAILED PROCESS
Article 25.Detailed process
1. Preparation for investor selection:
a/ Making the bidding dossier;
b/ Appraising and approving the bidding dossier.
2. Organizing investor selection:
a/ Inviting bids;
b/ Issuing, modifying and clarifying the bidding dossier;
c/ Preparing, submitting, receiving, managing, modifying and withdrawing bid dossiers;
d/ Opening dossiers of technical proposals.
3. Evaluating dossiers of technical proposals, including:
a/ Checking and assessing the validity of dossiers of technical proposals;
b/ Evaluating in detail dossiers of technical proposals;
c/ Appraising and approving the list of investors satisfying technical requirements.
4. Opening and evaluating dossiers of financial-commercial proposals, including:
a/ Opening dossiers of financial-commercial proposals;
b/ Checking and assessing the validity of dossiers of financial-commercial proposals;
c/ Evaluating in detail dossiers of financial-commercial proposals and ranking investors;
d/ Preliminarily negotiating the contract.
5. Submitting, appraising, approving and publishing the investor selection result.
6. Negotiating, finalizing and signing the contract, including:
a/ Negotiating and finalizing the contract;
b/ Signing the investment agreement and contract.
Section 2
PREPARATION FOR INVESTOR SELECTION
Article 26.Making of bidding dossiers
1. Grounds for making bidding dossiers:
a/ Decision approving the feasibility study report, project dossier and relevant documents;
b/ The prequalification result;
c/ The approved investor selection plan;
d/ Relevant laws and state policies.
2. Contents of a bidding dossier:
a/ The bidding dossier must not contain any condition that restricts the participation of investors or creates advantages for one or some investors, which cause unfair competition;
b/ The bidding dossier must contain sufficient information for investors to make their bid dossiers, including the following basic contents:
- General information about the project, including the contents and scope of the project, detailed description of the project outcome and services provided when the project is completed;
- Instructions for investors including bidding procedures and datasheet;
- Requirements of the project according to the approved feasibility study report, including:
+ Technical requirements: standards for project implementation, required quality of the construction works, products or serviced provided; detailed description of technical requirements and technical norms applied to evaluation of bid dossiers; environmental and safety requirements;
+ Financial-commercial requirements: plan for organization of investment and business; financial plan (total investment, capital structure and capital raising plan; state capital (if any) for project implementation; expenses, revenues, goods and service prices and charges; duration of capital recovery, profits); specific risk distribution requirements;
- Bid dossier evaluation standards, including technical standards and financial-commercial standards and method of evaluation. It is not required to establish standards for evaluation of investors’ capacity and experience. However, investors shall be required to update information about their capacity and experience;
- The bidding forms including: bidding participation application, technical proposal, financial-commercial proposal, bid security, commitment of a financial institution (if any), and other forms;
- The type of project contract, contract conditions and the draft contract, including project implementation requirements, construction quality standards, service provision standards, pricing mechanism, applied regulations, contractual rewards and penalties,force majeureevents, reconsideration of the contract during the project implementation, and other contents according to the Government’s regulations on PPP investment.
Article 27.Standards and methods for evaluating bid dossiers
The method for evaluating bid dossiers shall be expressed by the evaluation standards stated in the bidding dossier, including:
1. Standards and method for technical evaluation
a/ Depending on the scale, characteristics and type of the project, technical standards include:
- Quantitative and qualitative standards;
- Standards for operation, management, business and maintenance;
- Environmental and safety standards.
When making the bidding dossier, it is required to establish detailed technical standards according to the standards prescribed at this Point that suit each specific project and ensure that the selected investor satisfies the project’s outcome requirements. During the establishment of detailed technical standards, other technical standards may be added to suit each specific project.
b/ Technical evaluation method
Scores shall be given on a scale of 100 or 1,000 points to establish standards for technical evaluation, including the minimum and maximum scores for each overall standard and detailed standard. When establishing technical evaluation standards, it is required to set a minimum score for being evaluated as satisfactory which must not be lower than 70% of total technical score and not lower than 60% of the maximum score for each requirement of quality and quantity; operation, management, business and maintenance; and environment and safety.
c/ The score proportion structure mentioned at Point a of this Clause must suit each specific type of project contract, provided the total score ratio must be 100%.
2. Financial-commercial evaluation method
Methods of evaluating bid dossiers specified in a bidding dossier include:
a/ Service price-based method:
- This method shall be applied to a project in which service price is the criterion for financial-commercial evaluation. Other criteria such as standards of assets and services of the project, capital recovery duration and related factors are already specified in the bidding dossier;
- For bid dossiers that are evaluated as satisfying technical requirements, their service prices shall be used for comparison and ranking. The investor that offers the lowest service price shall be ranked first and invited to preliminary contract negotiation.
b/ State capital contribution-based method:
- This method shall be applied to a project in which state capital contribution is the criterion for financial-commercial evaluation. Other criteria such as standards of assets and services of the project, capital recovery duration, service prices and related factors are already specified in the bidding dossier;
- For bid dossiers that are evaluated as satisfying technical requirements, their proposed state capital contributions shall be used for comparison and ranking. The investor that proposes the lowest capital contribution shall be ranked first and invited to preliminary contract negotiation.
c/ Public interest- or state interest-based method:
- This method shall be used to evaluate investors that offer the most efficient project implementation plan; other contents are already specified in the bidding dossier. Investment efficiency shall be assessed according to the criterion of proposed payment to the state budget;
- For bid dossiers that are evaluated as satisfying technical requirements, their proposed payments to the state budget shall be used for comparison and ranking. The investor that offers the highest payment to the state budget shall be ranked first and invited to preliminary contract negotiation.
d/ Combined method:
This is a method that combines the methods prescribed at Points a, b and c of this Clause.
Article 28.Appraisal and approval of bidding dossiers
1. Bidding dossiers shall be appraised under Clause 2, Article 82 of this Decree before being approved.
2. Bidding dossiers shall be approved in writing according to the written request for approval and the appraisal report.
Section 3
ORGANIZATION OF INVESTOR SELECTION
Article 29.Invitation for bids
Invitations for bids shall be sent to the short-listed investors, specifying the time and location of issuing the bidding dossier, bid closing time and bid opening time.
Article 30.Issuance, modification and clarification of bidding dossiers
1. Bidding dossiers shall be issued to short-listed investors. For joint ventures, only one member of the joint venture shall be required to buy the bidding dossier.
2. In case of modification of the bidding dossier after it is issued, the bid solicitor shall send the decision on modification and the modified contents to the investors that have bought or received the bidding dossier.
3. If wishing to have the bidding dossier clarified, the investor shall send a written request at least 7 working days (for domestic bidding) or 15 days (for international bidding) before the bid closing date to the bid solicitor for consideration and handling. The bid solicitor shall clarify the bidding dossier in one of the following ways:
a/ Sending clarifying documents to the investors that have bought the bidding dossier;
b/ When necessary, a pre-bidding meeting shall be held to discuss contents of the bidding dossier that need clarifying. The discussion shall be recorded in writing. The written record shall be used as clarifying document and sent to investors that have bought the bidding dossier.
The clarification must not contravene the approved contents of the bidding dossier. If the bidding dossier shall be modified after clarification, it shall be modified under Clause 2 of this Article.
4. The decision on modification and the clarifying document constitute an integral part of the bidding dossier.
Article 31.Preparation, submission, receipt, management, modification and withdrawal of bid dossiers
1. Investors shall prepare and submit bid dossiers as required in the bidding dossier.
2. The bid solicitor shall receive and manage bid dossiers according to regulations on management of confidential documents until the investor selection result is disclosed. In no circumstance may information in the bid dossier submitted by an investor be revealed to any other investor, except when such information is disclosed upon bid opening. Bid dossiers sent to the bid solicitor after the bid closing time shall not be opened and shall be considered invalid and rejected. Any documents sent by investors after the bid closing time for the purpose of modification or supplementation to the submitted bid dossiers shall be considered invalid, except documents submitted by investors for clarifying the bid dossiers at the request of the bid solicitor or for proving the investors’ eligibility.
3. Any investor that wishes to modify or withdraw the submitted bid dossier shall send a written request to the bid solicitor. The bid solicitor shall only accept it if the written request is received before the bid closing time.
4. Any investor that wishes to change the investor’s status (name) in the short list shall send a written notice to the bid solicitor at least 7 working days before the bid closing date. The bid solicitor shall request a competent person to consider allowing the change of the investor’s status as follows:
a/ Allowing the establishment of a joint venture with or addition of a member outside the short list to the joint venture;
b/ Disallowing a member to withdraw from the joint venture without addition of another member with equivalent or better capacity and experience.
Article 32.Opening of dossiers of technical proposals
1. A dossier of technical proposals shall be publicly opened within 1 hour from the bid closing time. Only dossiers of technical proposals received by the bid solicitor before the bid closing time shall be opened as required by the bidding dossier in front of representatives of investors who attend the bid-opening ceremony, regardless of the investors’ presence.
2. Each of the bid dossiers shall be opened in the alphabetical order of investors’ names and according to the following process:
- Checking the seal;
- Opening the dossier and reading out the information about: The investor’s name; quantity of originals and photocopies of the dossier of technical proposals; the bidding participation application in the technical proposals; validity duration of the dossier of technical proposals; contract performance duration; value and validity of the bid security; other relevant information.
3. Bid opening record: The information mentioned in Clause 2 of this Article shall be written in the bid opening record. The bid opening record must bear the signatures of the representatives of the bid solicitor and investors who attend the bid-opening ceremony. This record shall be sent to investors that participate in the bidding.
4. The representative of the bid solicitor shall sign for certification the original bidding participation application, the letter of attorney of the representative at law of the investor (if any); joint venture agreement (if any); bid security; and important contents of each dossier of technical proposals.
5. Dossiers of financial-commercial proposals of all investors shall be sealed by the bid solicitor in separate bags. The seals shall be signed by representatives of the bid solicitor and investors that attend the bid-opening ceremony.
Article 33.Principles ofevaluating bid dossiers
1. Bid dossiers shall be evaluated according to the evaluation standards and other requirements mentioned in the bidding dossier, and explanatory and clarifying documents of investors in order to ensure selection of technically and financially-commercially qualified and experienced investors to implement the projects.
2. The evaluation shall be based on the photocopies. Investors shall take responsibility for the consistency of the originals and photocopies. In case of discrepancies between the original and the photocopy which do not affect the investor’s ranking, the original shall be used.
3. In case of discrepancies between the original and the photocopy which lead to a different evaluation and change the investor’s ranking, such bid dossier shall be rejected.
Article 34.Clarification of bid dossiers
1. After bid opening, investors shall clarify their bid dossiers at the request of the bid solicitor. The clarification of the technical proposals and financial-commercial proposals in the bid dossiers must ensure that the basic contents of the submitted bid dossiers are not changed.
2. After bid closing, if the investor finds that the bid dossier lacks documents proving the investor’s eligibility, capacity and experience, such investor may send additional documents to the bid solicitor, provided the change of the investor’s status is permitted. The bid solicitor shall receive, consider and evaluate clarifying documents sent by the investor; additional documents to clarify the investor’s eligibility, capacity and experience shall be regarded as an integral part of the bid dossier.
3. Clarification of the bid dossier shall only be carried out between the bid solicitor and the investor whose bid dossier needs clarifying, ensuring that the investor’s nature is not changed. The clarification shall be done in writing and kept by the bid solicitor as an integral part of the bid dossier.
Article 35.Correction of errors and adjustment of deviation
1. Correction of errors means the correction of errors in a bid dossier, including arithmetic errors, unit errors; differences between technical proposals and financial-commercial proposals, and other errors.
2. Adjustment of deviation means the adjustment of missing or redundant contents of a bid dossier compared to the bidding dossier. Adjustment of deviation shall be done to ensure fairness, transparency and economic efficiency.
3. After finding an error or deviation, the bid solicitor shall send a written notification of such error or deviation correction and adjustment thereto to the investor. Within 7 working days after receiving the bid solicitor’s notification, the investor shall send a written response to the bid solicitor which states:
a/ Whether or not to accept the error correction result. If the investor does not accept the error correction result, the investor’s bid dossier shall be rejected;
b/ The investor’s opinion about the deviation adjustment result. The investor that does not accept the deviation adjustment result shall give an explanation to the bid solicitor for consideration and decision.
Section 4
EVALUATION OF DOSSIERS OF TECHNICAL PROPOSALS
Article 36.Evaluation of dossiers of technical proposals
1. Checking the validity of the dossier of technical proposals:
a/ Checking the quantity of originals and photocopies of the dossier;
b/ Checking the composition of the dossier of technical proposals, including the bidding participation application, joint venture agreement (if any), power of attorney to sign the bidding participation application (if any); bid security; technical proposals; and other components of the dossier;
c/ Checking the consistency between the originals and photocopies to serve the detailed evaluation of the dossier of technical proposals.
2. Evaluating the validity of the dossier of technical proposals:
An investor’s dossier of technical proposals shall be evaluated valid when all of the following conditions are satisfied:
a/ The original dossier of technical proposals is available;
b/ The bidding participation application in the dossier bears the signature and seal (if any) of the lawful representative of the investor as required in the bidding dossier. The bidding participation application of a joint venture must bear the signatures and seals (if any) of every joint venture member. The head member of the joint venture may sign the bidding participation application on behalf of the joint venture if so agreed in the joint venture agreement;
c/ The validity of the dossier of technical proposals satisfies requirements in the bidding dossier;
d/ There is a bid security of which the value and validity duration satisfy requirements in the bidding dossier. In case of bid security in the form of letter of guarantee, the letter of guarantee shall be signed by the lawful representative of a credit institution with the value, validity duration and beneficiary as required in the bidding dossier;
dd/ The investor’s name is not present in more than one dossier of technical proposals as an independent investor or joint venture member;
e/ There is a joint venture agreement bearing the signatures and seals (if any) of lawful representatives of every joint venture member;
g/ The investor is not banned from participation in bidding as prescribed by the law on bidding;
h/ The investor is eligible as prescribed in Clause 1, Article 5 of the Law on Bidding.
3. The investor that has a valid dossier of technical proposals and updated capacity and experience that satisfy requirements of the bidding dossier shall be accepted for detailed technical evaluation.
4. Detailed evaluation of dossiers of technical proposals:
a/ Dossiers of technical proposals shall be evaluated in detail according to the evaluation standards stated in the bidding dossier;
b/ If satisfying the technical requirements, the investors shall have their dossiers of financial-commercial proposal evaluated.
Article 37.Appraisal and approval of the list of investors satisfying technical requirements
A list of investors satisfying technical requirements shall be approved in writing based on the written request for approval and the report on appraisal of the list of investors satisfying technical requirements. The bid solicitor shall notify the list of investors satisfying technical requirements to all investors that have participated in the bidding, inviting those satisfying technical requirements to open dossiers of financial-commercial proposals.
Section 5
OPENING AND EVALUATION OF DOSSIERS OF FINANCIAL- COMMERCIAL PROPOSALS
Article 38.Opening of dossiers of financial-commercial proposals
1. Checking the seals of the bags containing dossiers of financial-commercial proposals.
2. Opening dossiers of financial-commercial proposals:
a/ Only dossiers of financial-commercial proposals of investors named on the list of investors satisfying technical requirements shall be opened in the presence of representatives of investors participating in the dossier-opening ceremony, regardless of the investors’ presence;
b/ The representative of each investor participating in the opening of dossiers of financial-commercial proposals are required to certify whether or not there is a letter of proposal for reduction of the service price or state capital contribution or for increase of the payment to the state budget enclosed with his/her dossier of financial-commercial proposals;
c/ Each of the dossiers of financial-commercial proposals shall be opened in alphabetic order of investors’ names on the list of investors satisfying technical requirements and the following process:
- Checking the seal;
- Opening the dossier and reading out the information about: investor’s name; quantity of originals and photocopies of the dossier; bidding participation application in the financial-commercial proposal; validity duration of the dossier; total investment and total capital of the project, service price, state capital contribution to support the construction of the project’s works (if any), the payment to the state budget stated in the bidding participation application (if any); the value of service price discount or reduction of the state capital contribution or increase of the payment to the state budget (if any); technical scores of bid dossiers evaluated as satisfying technical requirements; and other relevant information.
3. Making a record of opening of the dossier of financial proposals:
a/ Information specified in Clauses 1 and 2 of this Article shall be recorded in the record of opening of the dossier of financial-commercial proposals. Such record must bear the signatures for certification of the representatives of the bid solicitor and the investor who attends the opening of the dossier of financial-commercial proposals. This record shall be sent to investors that satisfy technical requirements;
b/ The representative of the bid solicitor shall sign all original pages of the dossier of financial-commercial proposals.
Article 39.Evaluation of dossiers of financial-commercial proposals
1. Checking the validity of the dossier of financial-commercial proposals, including:
a/ Checking the quantity of originals and photocopies of the dossier;
b/ Checking the composition of the dossier, including bidding participation application included in the dossier and other components of the dossier;
c/ Checking the consistency of contents of the originals and photocopies to serve the detailed evaluation of the dossier.
2. Evaluating the validity of a dossier of financial-commercial proposals:
A dossier of financial-commercial proposals of an investor shall be evaluated valid when fully satisfying the following conditions:
a/ The original of the financial-technical proposal is available;
b/ The bidding participation application bears the signature and seal (if any) of the lawful representative of the investor as required in the bidding dossier. Total investment and total capital of the project, service price, state capital contribution or payment to the state budget stated in the bidding participation application must be specific and fixed in figures and words and conformable and logic with the financial plan of the investor, without proposing different values regarding the same content or a condition unfavorable to the competent state agency and bid solicitor. For a joint venture, the bidding participation application must bear the signatures and seals (if any) of every joint venture member. The head member of the joint venture may sign the bidding participation application on behalf of the joint venture if so agreed in the joint venture agreement;
c/ The validity of the dossier satisfies requirements mentioned in the bidding dossier.
An investor with a valid dossier of financial-commercial proposals shall undergo detailed financial-commercial evaluation.
3. Detailed evaluation of dossiers of financial-commercial proposals and ranking of investors:
a/ The detailed evaluation of dossiers of financial-commercial proposals and ranking of investors shall be conducted according to the evaluation standards mentioned in the bidding dossier;
b/ After drawing up an investor ranking list, the expert team shall make a report and send it to the bid solicitor for consideration. Such a report must state:
- The list of investors ranked and their rankings;
- The list of eliminated investors and the reasons for their elimination;
- Comments on the competitiveness, fairness, transparency and economic efficiency in the process of investor selection. In case competitiveness, fairness, transparency and economic efficiency are not ensured, their causes shall be identified and handling measures proposed;
- Contents of the bidding dossier which are incompliant with the bidding law, which have caused unclear or different understandings in the course of implementation, or untruthful investor selection results (if any); proposed handling measures.
Article 40.Preliminary contract negotiation
1. The investor ranked first shall be invited to preliminary contract negotiation. In case the investor fails to come or refuses to participate in the preliminary contract negotiation, such investor shall not be refunded the bid security.
2. Preliminary contract negotiation shall be based on the following grounds:
a/ The report on evaluation of the bid dossier;
b/ The bid dossier and clarifying documents (if any) provided by the investor;
c/ The bidding dossier.
3. Principles of preliminary contract negotiation:
a/ Preliminary negotiation shall not be conducted on contents offered by the investor according to requirements in the bidding dossier;
b/ Preliminary negotiation must not change the basic contents of the bid dossier.
4. Contents of preliminary contract negotiation:
a/ Contents that remain unspecific, unclear or inconsistent between the bidding dossier and bid dossier or inconsistent contents of the bid dossier which might lead to disputes or affect responsibilities of the parties during the contract performance;
b/ Matters that arise in the investor selection process (if any) for the purpose of finalizing details of the project;
c/ Other necessary contents.
5. During preliminary contract negotiation, the negotiating parties shall finalize the draft investment agreement and draft contract.
6. In case the preliminary contract negotiation is unsuccessful, the bid solicitor shall request a competent person to consider inviting the investor ranked next to preliminary contract negotiation. In case the preliminary negotiation with the investors ranked next is unsuccessful, the bid solicitor shall request the competent person to consider cancelling the bidding under Clause 1, Article 17 of the Bidding Law.
Article 41.Principles of approval of winning investors
An investor shall be proposed for selection when fully satisfying the following conditions:
1. Having a valid bid dossier.
2. Satisfying capacity and experience requirements.
3. Satisfying technical requirements.
4. Offering the lowest service price not exceeding the service price stated in the approved feasibility study report, and compliant with the laws on prices, charges and fees, for the service price-based method; or proposing the lowest state capital contribution not exceeding the value of state capital contribution determined in the approved feasibility study report, for the state capital contribution-based method; or proposing the highest payment to the state budget, for the public interest- or state interest-based method.
Section 6
SUBMISSION, APPRAISAL, APPROVAL AND PUBLICIZATION OF INVESTOR SELECTION RESULTS
Article 42.Submission, appraisal, approval and publicization of investor selection results
1. Based on the report on results of evaluation of bid dossiers, the bid solicitor shall submit the investor selection result, clearly stating its opinions on the appraisals of the expert team.
2. The investor selection result shall be appraised under Clause 4, Article 83 of this Decree before being approved.
3. The investor selection result shall be approved in writing according to the written request for approval and the appraisal report.
4. In case the winning investor is selected, the written approval of the investor selection result must contain the following details:
a/ Name, location and size of the project;
b/ Name of the winning investor;
c/ Type of contract;
d/ Time limits for construction commencement, completion, operation and transfer of the project’s works;
dd/ Land use conditions for project implementation (location, area, purpose and duration of land use);
e/ Total investment and total capital of the project;
g/ Service price, state capital contribution or state budget payment;
h/ Notes (if any).
5. In case of bidding cancellation under Clause 1, Article 17 of the Bidding Law, the written approval of the investor selection result or the decision on bidding cancellation must clearly state the reason and responsibilities of related parties for bidding cancellation.
6. After receiving the written approval of the investor selection result, the bid solicitor shall publish the information on the investor selection result under Point dd, Clause 1, Article 4, and Point c, Clause 1, or Point b, Clause 2, Article 5, of this Decree; send a written notification on the investor selection result to investors that have participated in the bidding within the time limit prescribed in Clause 13, Article 6 of this Decree. Such a notification must include:
a/ The information specified in Clause 4 of this Article;
b/ The list of unselected investors and a summary of reasons for non-selection;
c/ Plan on contract negotiation, finalization and signing with the selected investor.
Section 7
CONTRACT NEGOTIATION, FINALIZATION AND SIGNING
Article 43.Contract negotiation and finalization
1. Based on the investor selection result and preliminary contract negotiation result, the competent state agency shall organize contract negotiation and finalization with the selected investor.
2. Contents of contract negotiation and finalization
a/ Contents of contract negotiation and finalization must not substantially change contents of preliminary contract negotiation under Clause 4, Article 40 of this Decree and the investor selection result. Contents of contract negotiation and finalization include:
- Detailed contents of preliminary contract negotiation;
- Grounds for signing the project contract;
- Changes in special clauses of the contract (if any).
b/ In addition to the contents specified at Point a of this Clause, the bid solicitor shall request a competent person to decide on other contents of contract negotiation and finalization suitable to the contract type of the project.
3. In case the contract negotiation and finalization is unsuccessful, the bid solicitor shall request a competent person to consider cancelling the investor selection result and inviting the investor ranked next to preliminary contract negotiation, following the steps specified in Articles 40, 41 and 42 of this Decree and Clauses 1 and 2 of this Article.
Article 44.Signing of investment agreements and contracts
1. The signing of investment agreements must comply with the Government’s regulations on PPP investment.
2. Contracts signed between involved parties must comply with Articles 69, 70, 71 and 72 of the Bidding Law and the Government’s regulations on PPP investment.
Chapter IV
OPEN BIDDING TO SELECT INVESTORS FOR GROUP-C PPP PROJECTS
Article 45.Detailed process
1. Making preparation for investor selection, including:
a/ Making the bidding dossier;
b/ Appraising and approving the bidding dossier.
2. Organizing investor selection, including:
a/ Inviting bids;
b/ Issuing, modifying and clarifying the bidding dossier;
c/ Preparing, submitting, receiving, managing, modifying and withdrawing bid dossiers;
d/ Opening dossiers of technical proposals.
3. Evaluating dossiers of technical proposals, including:
a/ Checking and evaluating the validity of dossiers of technical proposals;
b/ Evaluating in detail dossiers of technical proposals;
c/ Approving the list of investors satisfying technical requirements.
4. Opening and evaluating dossiers of financial-commercial proposals, including:
a/ Opening dossiers of financial-commercial proposals;
b/ Checking and evaluating the validity of dossiers of financial-commercial proposals;
c/ Evaluating in detail dossiers of financial-commercial proposals and ranking investors.
5. Submitting, appraising, approving and publicizing the investor selection result.
6. Negotiating, finalizing and signing the contract, including:
a/ Negotiating and finalizing the contract;
b/ Signing the contract.
Article 46.Making of bidding dossiers
1. Bases for making a bidding dossier:
a/ Decision approving the project proposal; project dossier and relevant documents;
b/ Prequalification result (if any);
c/ Approved investor selection plan;
d/ Relevant regulations and state policies.
2. Contents of a bidding dossier:
a/ The bidding dossier must not contain any condition that restricts the participation of investors and creates advantages to one investor or some investors, which causes unfair competition;
b/ The bidding dossier must have sufficient information for investors to make their bid dossiers, including the following basic contents:
- General information on the project, including contents and scope of the project, detailed description of the project output and services provided upon completion of the project;
- Instructions for investors, including bidding procedures and datasheet;
- Requirements on the project according to the approved project proposal, including:
+ Technical requirements: Standards for project implementation, requirements on quality, project’s works, products or services provided; detailed description of technical requirements and criteria for the evaluation of bid dossiers, and environmental and safety requirements;
+ Financial-commercial requirements: investment and business plan; financial plan (total investment, capital structure and capital raising plan; state investment in the project implementation (if any); expenses, revenues, prices and charges of goods and services; capital recovery duration and profits); specific risk distribution requirements;
- Standards for evaluating bid dossiers, including standards for evaluating investors’ capacity and experience in case prequalification is not applied (in case of application of prequalification, it is not required to establish standards for evaluating investors’ capacity and experience but investors are required to update information about their capacity and experience); standards for technical and financial-commercial evaluation and methods of evaluation;
- The bid forms;
- Type of the project contract, contractual conditions and draft contract.
Article 47.Standards and methods of evaluation of bid dossiers
Methods of evaluation of bid dossiers shall be expressed through evaluation standards stated in the bidding dossier, including:
1. Standards and methods for evaluating investors’ capacity and experience specified at Point d, Clause 1, Article 17 of this Decree, in case prequalification is not applied.
2. Standards and method for technical evaluation specified in Clause 1, Article 27 of this Decree.
3. The method of financial-commercial evaluation specified in Clause 2, Article 27 of this Decree.
Article 48.Appraisal and approval of bidding dossiers
1. A bidding dossier shall be appraised under Clause 2, Article 82 of this Decree before being approved.
2. A bidding dossier shall be approved in writing according to the written request for approval and the appraisal report.
Article 49.Organization of investor selection
Investor selection shall be organized in accordance with Section 3, Chapter III of this Decree. In case prequalification is not applied, the invitation for bid, issuance of bidding dossiers and opening of dossiers of technical proposals must comply with the following provisions:
1. Inviting bids
Invitations to bidding shall be published under Point dd, Clause 1, Article 4, and Point b, Clause 1 or Point a, Clause 2, Article 5, of this Decree.
2. Issuance of the bidding dossier
The bidding dossier shall be issued to investors that participate in open bidding. For a joint venture, only one joint venture member is required to buy the bidding dossier, even when the joint venture has not been established yet.
3. Opening dossiers of technical proposals
Dossiers of technical proposals shall be opened under Article 32 of this Decree, even in case there is only one bid dossier submitted.
Article 50.Evaluation of dossiers of technical proposals
1. The checking and evaluation of validity of dossiers of technical proposals must comply with Clauses 1 and 2, Article 36 of this Decree.
2. Evaluation of capacity and experience:
The evaluation of capacity and experience shall be conducted according to the evaluation standards stated in the bidding dossier. In case prequalification is applied, the evaluation of investors’ capacity and experience is not required but investors shall be required to update information about their capacity and experience.
3. Investors that have valid dossiers of technical proposals and satisfy capacity and experience requirements are eligible for technical evaluation.
4. Detailed evaluation of dossiers of technical proposals must comply with Clause 4, Article 36 of this Decree.
Article 51.Appraisal and approval of the list of investors satisfying technical requirements
The appraisal and approval of the list of investors satisfying technical requirements must comply with Article 37 of this Decree.
Article 52.Opening and evaluation of dossiers of financial-commercial proposals
The opening and evaluation of dossiers of financial-commercial proposals must comply with Articles 38 and 39 of this Decree.
Article 53.Principles of approval of winning investors
An investor shall be proposed for selection when fully meeting the following conditions:
1. Having a valid bid dossier.
2. Satisfying capacity and experience requirements.
3. Satisfying technical requirements.
4. Offering the lowest service price not exceeding the service price stated in the approved feasibility study report, and compliant with the laws on prices, charges and fees, for the service price-based method; or proposing the lowest state capital contribution not exceeding the value of state capital contribution determined in the approved feasibility study report, for the state capital contribution-based method; or proposing the highest payment to the state budget, for the public interest- or state interest- based method.
Article 54.Submission, appraisal, approval and publicization of investor selection results
The submission, appraisal, approval and publicization of investor selection results must comply with Article 42 of this Decree.
Article 55.Contract negotiation, finalization and signing
1. Bases for contract negotiation and finalization:
a/ The investor selection result;
b/ The report on appraisal of the bid dossier;
c/ The bid dossier and clarifying documents (if any) provided by the investor;
d/ The bidding dossier.
2. Principles of contract negotiation and finalization:
a/ Negotiation is not required on contents offered by the investor according to requirements set in the bidding dossier;
b/ Contract negotiation and finalization must not change substantial contents of the bid dossier.
3. Contents of contract negotiation and finalization:
a/ Contents which remain unspecific, unclear or inconsistent between the bidding dossier and bid dossier or among different contents in the bid dossier which might lead to disputes or affect responsibilities of involved parties during the contract performance;
b/ Matters that arise in the investor selection process (if any) for the purpose of finalizing details of the project;
c/ Other necessary contents.
4. In case the contract negotiation or finalization is unsuccessful, the bid solicitor shall request a competent person to consider cancelling the investor selection result and inviting the investor ranked next to contract negotiation and finalization.
5. A contract signed between parties must comply with Articles 69, 70 and 71, and Clauses 1, 3 and 4, Article 72 of the Bidding Law; Point a, Clause 2, Article 8 of this Decree, and the Government’s regulations on PPP investment.
Chapter V
OPEN BIDDING TO SELECT INVESTORS FOR LAND-USING INVESTMENT PROJECTS
Section 1
DETAILED PROCESS
Article 56.Detailed process
1. Making preparation for investor selection, including:
a/ Making the bidding dossier;
b/ Appraising and approving the bidding dossier.
2. Organizing investor selection, including:
a/ Inviting bids;
b/ Issuing, modifying and clarifying the bidding dossier;
c/ Preparing, submitting, receiving, managing, modifying and withdrawing bid dossiers;
d/ Opening dossiers of technical proposals.
3. Evaluating dossiers of technical proposals, including:
a/ Checking and evaluating the validity of dossiers of technical proposals;
b/ Evaluating in detail dossiers of technical proposals;
c/ Appraising and approving the list of investors satisfying technical requirements.
4. Opening and evaluating dossiers of financial-commercial proposals, including:
a/ Opening dossiers of financial-commercial proposals;
b/ Checking and assessing the validity of dossiers of financial-commercial proposals;
c/ Evaluating in detail dossiers of financial-commercial proposals and ranking investors;
d/ Preliminarily negotiating the contract.
5. Submitting, appraising, approving and publicizing the investor selection result.
6. Negotiating, finalizing and signing the contract, including:
a/ Negotiating and finalizing the contract;
b/ Signing the contract.
Section 2
PREPARATION FOR INVESTOR SELECTION
Article 57.Making of bidding dossiers
1. Bases for making a bidding dossier:
a/ List of projects to be published under regulations;
b/ Prequalification result (if any);
c/ Approved investor selection plan;
d/ Current regulations on land, housing, real estate business, investment, construction and relevant regulations.
2. Contents of a bidding dossier:
a/ The bidding dossier must not contain any condition that restricts the participation of investors and creates advantages for one investor or some investors, which causes unfair competition;
b/ The bidding dossier must contain sufficient information for investors to make their bid dossiers, including the following basic contents:
- General information on the project, including name of the project; objectives and utilities; implementation location; size; tentative implementation schedule; current state of the land plot or area; planning specifications;
- Instructions for investors, including bidding procedures and datasheet;
- Requirements on project implementation; architectural, environmental and safety requirements; and other contents of the project (if any);
- Standards for evaluating bid dossiers, including standards for evaluating investors’ capacity and experience in case prequalification is not applied (in case of application of prequalification, it is not required to establish standards for evaluating investors’ capacity and experience but investors are required to update information about their capacity and experience); technical, financial-commercial evaluation standards and methods of evaluation;
- The bid forms, including bidding participation application, technical proposal, financial-commercial proposal, bid security, commitment of a financial institution (if any), and other forms;
- Land allocation or lease term; land use purpose and structure;
- Bases for determining land use levy and rental payable by the investor into the state budget during the land allocation or lease term;
- Preliminary plan on compensation and ground clearance;
- Floor price = m1+ m2
In which:
+ m1is preliminary total expenses for project implementation (excluding the expense for compensation and ground clearance) determined by the bid solicitor for each project, ensuring the maximum use efficiency of the land plot or area, land use coefficient and space planning based on the approved construction zoning plan on a scale of 1:2,000 or detailed construction plan on a scale of 1:500 (if any);
+ m2is the total expense for compensation and ground clearance determined by the bid solicitor based on the plan specified in Article 11 of this Decree.
The bidding dossier must specify that if the actual expense for compensation and ground clearance is lower than that proposed by the investor, the difference shall be paid into the state budget and if the actual expense for compensation and ground clearance is higher than that proposed by the investor, the investor shall make up for the deficit. The investor shall be allowed to deduct the actual expense for compensation and ground clearance from the land rental, which must not exceed the payable land rental prescribed by the land law.
- The draft contract must specify project implementation requirements, land allocation or lease term; area of the land plot; land rental and use levy; the method of deducting the actual expense for compensation and ground clearance from the land rental, and method of land rental payment; coordination responsibility of the organization in charge of compensation and ground clearance; applicable regulations; contract rewards and penalties;force majeureevents; reconsideration of the contract during the project operation, and other contents.
Article 58.Standards and methods of evaluation of bid dossiers
Methods of evaluation of bid dossiers shall be expressed through evaluation standards stated in the bidding dossier, including:
1. Standards and method for evaluating investors’ capacity and experience specified at Point d, Clause 1, Article 17 of this Decree in case prequalification is not applied.
2. Standards and method of technical evaluation:
a/ Based on the size, characteristics and type of each project, the standards for technical evaluation include:
- Conformity of the project objectives proposed by the investor with the approved construction zoning plan on a scale of 1:2,000 or detailed construction plan on a scale of 1:500 (if any);
- Requirements on the project size, architectural solution and basic utilities of the project’s works;
- Environmental and safety requirements;
- Other standards suitable to each project.
b/ Method of technical evaluation:
Scores shall be given according to a scale of 100 point or 1,000 points to establish standards for technical evaluation, in which the minimum score and maximum score shall be specified for each general standard and specific standard. When establishing standards for technical evaluation, the minimum score for a project to be evaluated satisfactory shall be specified but must not be lower than 70% of total technical score and the minimum score for each specific requirement specified at Point a, Clause 1 of this Article must not be lower than 60% of the maximum score of such requirement.
c/ The score ratio structure for the requirements specified at Point a of this Clause must be suitable to each specific project but the total score ratio must be 100%.
3. Standards and method of financial-commercial evaluation:
a/ Standards for financial-commercial evaluation include:
- Standard on price proposed by the investor (A) = M1+ M2
- Standard on investment efficiency (B) = M2+ M3
In which:
+ M1is total expenses for project implementation (excluding the expense for compensation and ground clearance) proposed by the investor in the bid dossier.
+ M2is the expense for compensation and ground clearance proposed by the investor in the bid dossier, which, once the investor is selected, shall be wholly transferred to a designated unit or organization for paying for the compensation and ground clearance in the land plot or area under the project.
+ M3is the payment to the state budget proposed by the investor in the bid dossier.
b/ Method of financial-commercial evaluation
- The public interest- or state interest-based method shall be used for financial-commercial evaluation;
- For bid dossiers which have been evaluated as satisfying technical requirements, investment efficiency (B) shall be used for comparison and ranking. The investor with the proposed price (A) not lower than the floor price, the expense for compensation and ground clearance (M2) not lower than m2, and the highest investment efficiency (B) shall be ranked first and invited to preliminary contract negotiation.
Article 59.Appraisal and approval of bidding dossiers
The appraisal and approval of bidding dossiers must comply with Article 28 of this Decree.
Section 3
ORGANIZATION OF INVESTOR SELECTION
Article 60.Conditions for issuance of bidding dossiers
A bidding dossier may only be issued for selection of investors in a land-using investment project that fully meets the following conditions:
1. Meeting the conditions prescribed in Clause 2, Article 7 of the Bidding Law;
2. Having a construction zoning plan on a scale of 1:2,000 or a detailed construction plan on a scale of 1:500 (if any).
Article 61.Organization of investor selection
The investor selection shall be organized in accordance with Section 3, Chapter III of this Decree. In case prequalification is not applied, the invitation for bids, issuance of bidding dossiers and opening of dossiers of technical proposals must comply with the following provisions:
1. Inviting bids
Invitations for bids shall be published under Point dd, Clause 1, Article 4 and Point b, Clause 1, or Point a, Clause 2, Article 5 of this Decree.
2. Issuing bidding dossiers
Bidding dossiers shall be issued to investors that participate in open bidding. For a joint venture, only one joint venture member is required to buy the bidding dossier, even when the joint venture has not been established yet.
3. Opening dossiers of technical proposals
Dossiers of technical proposals shall be opened under Article 32 of this Decree, even in case only one bid dossier is submitted.
Section 4
EVALUATION OF DOSSIERS OF TECHNICAL PROPOSALS
Article 62.Evaluation of dossiers of technical proposals
1. The checking and evaluation of the validity of dossiers of technical proposals must comply with Clauses 1 and 2, Article 36 of this Decree.
2. Evaluation of capacity and experience:
The evaluation of capacity and experience shall be conducted according to the evaluation standards stated in the bidding dossier. In case prequalification is applied, the evaluation of investors’ capacity and experience is not required but investors are required to update information about their capacity and experience.
3. Investors that have valid dossiers of technical proposals and meet capacity and experience requirements are eligible for technical evaluation.
4. Detailed evaluation of dossiers of technical proposals must comply with Clause 4, Article 36 of this Decree.
Article 63.Appraisal and approval of the list of investors satisfying technical requirements
The appraisal and approval of the list of investors satisfying technical requirements must comply with Article 37 of this Decree.
Section 5
OPENING AND EVALUATION OF DOSSIERS OF FINANCIAL-COMMERCIAL PROPOSALS
Article 64.Opening and evaluation of dossiers of financial-commercial proposals
Dossiers of financial-commercial proposals shall be opened and evaluated under Article 38 of this Decree. Particularly, information to be read out at the dossier-opening ceremony must include: Name of the investor; quantity of originals and photocopies of the dossier; bidding participation application included in the financial-commercial proposal; validity duration of the dossier; total expenses for project implementation (excluding the expense for compensation and ground clearance) proposed by the investor (M1), the expense for compensation and ground clearance proposed by the investor (M2), the payment to the state budget (M3), if any; proposed increase of the payment to the state budget (if any); technical scores of bid dossiers evaluated as satisfying technical requirements; and other relevant information.
Article 65.Evaluation of dossiers of financial-commercial proposals
Dossiers of financial-commercial proposals shall be evaluated under Article 39 of this Decree. Particularly, the evaluation of the validity of the bidding participation application included in a dossier of financial-commercial proposals shall be based on the following: The application must bear the signature and seal (if any) of the lawful representative of the investor as required by the bidding dossier; total expenses for project implementation (excluding the expense for compensation and ground clearance) proposed by the investor (M1), the expense for compensation and ground clearance proposed by the investor (M2), the payment to the state budget (M3), if any, shall be specified in the bidding participation application, fixed in numbers and words and appropriate and logical, without proposing different values for the same content or conditions unfavorable to the competent state agency and bid solicitor. For a joint venture, the bidding participation application must bear the signatures and seals (if any) of the lawful representative of every joint venture member. The head member of the joint venture may sign the bidding participation application on behalf of the joint venture if so agreed in the joint venture agreement.
Article 66.Preliminary contract negotiation
1. The investor ranked first shall be invited to preliminary contract negotiation. In case such investor does not come or refuses to participate in the preliminary contract negotiation, it shall not be refunded the bid security.
2. The preliminary contract negotiation shall be based on:
a/ The report on evaluation of the bid dossier;
b/ The bid dossier and clarifying documents (if any) provided by the investor;
c/ The bidding dossier.
3. Principles of preliminary contract negotiation:
a/ Preliminary negotiation must not be conducted on bid contents offered by the investor as required by the bidding dossier;
b/ Preliminary contract negotiation must not change the basic contents of the bid dossier.
4. Contents of preliminary contract negotiation:
a/ Contents which remain unspecific, unclear or inconsistent between the bidding dossier and bid dossier or between different contents of the bid dossier which might lead to disputes or affect responsibilities of the parties during contract performance;
b/ Matters that arise in the investor selection process (if any) for the purpose of finalizing details of the project;
c/ Other necessary contents.
5. During the preliminary contract negotiation, the negotiating parties shall finalize the draft contract.
6. In case the preliminary contract negotiation is unsuccessful, the bid solicitor shall request a competent person to consider inviting the investor ranked next to preliminary negotiation. In case the preliminary negotiation with the investor ranked next is unsuccessful, the bid solicitor shall request the competent person to consider cancelling the bidding under Clause 1, Article 17 of the Bidding Law.
Article 67.Principles of approval of winning investors
An investor shall be proposed for selection when fully meeting the following conditions:
1. Having a valid bid dossier.
2. Satisfying capacity and experience requirements.
3. Satisfying technical requirements.
4. Offering a price (A) not lower than the floor price approved in the bidding dossier, an expense for compensation and ground clearance (M2) not lower than m2, and the highest investment efficiency (B).
Section 6
SUBMISSION, APPRAISAL, APPROVAL AND PUBLICIZATION OF INVESTOR SELECTION RESULTS; CONTRACT NEGOTIATION, FINALIZATION AND SIGNING
Article 68.Submission, appraisal, approval and publicization of investor selection results
1. The submission, appraisal, approval and publicization of investor selection results must comply with Clauses 1, 2, 3, 5 and 6, Article 42 of this Decree.
2. In case the winning investor is selected, the written approval of the investor selection result must contain the following details:
a/ Name, objectives, utilities, implementation location and size of the project;
b/ Name of the selected investor;
c/ Project implementation duration and schedule;
d/ Land use conditions for project implementation (location, area, purpose and duration of land use), and time limit for approval of the detailed construction plan on a scale of 1:500;
dd/ Total expenses for the project implementation (excluding the expense for compensation and ground clearance); land use levy and rental units; payment to the state budget;
e/ Other contents (if any).
Article 69.Contract negotiation, finalization and signing
1. Based on the investor selection and preliminary contract negotiation results, the competent state agency shall organize the contract negotiation and finalization with the selected investor.
2. Contents of contract negotiation and finalization:
a/ Contents of contract negotiation and finalization must not substantially change contents of preliminary contract negotiation under Clause 4, Article 66 of this Decree and the investor selection result. Contents of contract negotiation and finalization must include:
- Detailed contents of preliminary contract negotiation;
- Grounds for signing the project contract.
b/ In addition to the contents specified at Point a of this Clause, the bid solicitor shall report to a competent person for decision other contents of contract negotiation and finalization.
3. In case the contract negotiation and finalization is unsuccessful, the bid solicitor shall request a competent person to consider cancelling the investor selection result and inviting the investor ranked next to preliminary contract negotiation, following the steps specified in Articles 66, 67 and 68 of this Decree and Clauses 1 and 2 of this Article.
4. The signing of contracts must comply with Articles 69, 70, 71 and 72 of the Bidding Law. Winning investors shall implement land-using investment projects under contracts, investment and construction laws and other relevant laws.
Chapter VI
CONTRACTOR APPOINTMENT IN INVESTOR SELECTION
Section 1
APPOINTMENT OF INVESTORS TO IMPLEMENT PPP PROJECTS
Article 70.Preparation for investor selection
1. Making of a dossier of requirements
a/ Grounds for making a dossier of requirements:
The making of a dossier of requirements must comply with Clause 1, Article 26 or Clause 1, Article 46 (for group-C PPP projects) of this Decree.
b/ Contents of a dossier of requirements must include:
- General information on the project; instructions for investors;
- Requirements on the project based on the approved project proposal (for group-C PPP projects) or feasibility study report;
- Standards for evaluating dossiers of proposals, including standards and method for technical and financial-commercial evaluation. It is not required to establish standards for evaluating investors’ capacity and experience but investors are required to update information about their capacity and experience;
- The bid forms; contractual conditions and draft contract.
- Standards and method for evaluating dossiers of requirements under Article 27 or Clauses 2 and 3, Article 47 (for group-C projects) of this Decree. Comparison and ranking of investors satisfying financial-commercial requirements are not required.
2. Appraisal and approval of dossiers of requirements:
a/ A dossier of requirements shall be appraised under Clause 2, Article 82 of this Decree before it is approved;
b/ A dossier of requirements shall be approved in writing according to the written request for approval and the appraisal report.
Article 71. Organization of investor selection
1. Dossiers of requirements shall be issued to identified investors.
2. Investors shall prepare and submit dossiers of proposals as required by dossiers of requirements.
Article 72.Evaluation of dossiers of proposals and preliminary contract negotiation
1. Dossiers of proposals shall be evaluated according to the standards and method stated in the dossier of requirements. In the course of evaluation, the bid solicitor may ask the investor to clarify or modify and supplement necessary information in the dossier of proposals.
2. The preliminary contract negotiation must comply with Clause 4, Article 40 of this Decree, except for group-C projects.
Article 73.Principles of approval of winning investors
An investor shall be proposed for selection when fully meeting the following conditions:
1. Having a valid dossier of proposals.
2. Satisfying capacity and experience requirements.
3. Satisfying technical requirements.
4. Offering a service price not exceeding the service price stated in the approved feasibility study report or project proposal (for group-C projects), and compliant with the laws on prices, charges and fees, for the service price-based method; or proposing a state capital contribution not exceeding the value of state capital contribution determined in the approved feasibility study report or project proposal (for group-C projects), for the state capital contribution-based method; or proposing an appropriate payment to the state budget and a total capital of the project not lower than the total investment or total capital of the project determined in the approved feasibility study report or project proposal (for group-C projects), for the public interest- or state interest-based method.
Article 74.Submission, appraisal, approval and publicization of contractor appointment results
The submission, appraisal, approval and publicization of contractor appointment results must comply with Article 42 of this Decree.
Article 75.Contract negotiation, finalization and signing
1. The contract negotiation and finalization must comply with Article 43 of this Decree.
2. The signing of investment agreements and contracts must comply with Article 44 of this Decree.
3. Particularly for group-C projects, the contract negotiation, finalization and signing must comply with Article 55 of this Decree.
Section 2
APPOINTMENT OF INVESTORS FOR LAND-USING
INVESTMENT PROJECTS
Article 76.Preparation for investor selection
1. Making of a dossier of requirements
a/ Grounds for making a dossier of requirements:
- The list of projects to be published under regulations;
- The prequalification result (if any);
- The approved investor selection plan;
- Current provisions of the laws on land, housing, real estate business, investment, construction, and relevant laws.
b/ Contents of a dossier of requirements must comply with Clause 2, Article 57 of this Decree. It is not required to establish standards for evaluating investors’ capacity and experience but investors are required to update information about their capacity and experience. Standards and method for evaluating dossiers of proposals must comply with Clauses 2 and 3, Article 58 of this Decree though comparison and ranking of investors satisfying financial-commercial requirements are not required.
2. Appraisal and approval of a dossier of requirements:
a/ A dossier of requirements shall be appraised under Clause 2, Article 82 of this Decree before it is approved;
b/ A dossier of requirements shall be approved in writing according to the written request for approval and the appraisal report.
Article 77.Organization of investor selection
1. Dossiers of requirements shall be issued to identified investors.
2. Investors shall prepare and submit dossiers of proposals as required by dossiers of requirements.
Article 78.Evaluation of dossiers of proposals and preliminary contract negotiation
1. Dossiers of proposals shall be evaluated according to the standards stated in the dossier of requirements. In the course of evaluation, the bid solicitor may invite the investor to clarify or modify and supplement necessary information in the dossier of proposals.
2. The preliminary contract negotiation must comply with Article 66 of this Decree.
Article 79.Principles of approval of winning investors
An investor shall be proposed for selection when fully meeting the following conditions:
1. Having a valid dossier of proposals.
2. Satisfying capacity and experience requirements.
3. Satisfying technical requirements.
4. Offering a price (A) not lower than the floor price approved in the dossier of requirements, an expense for compensation and ground clearance (M2) not lower than m2, and an appropriate investment efficiency (B).
Article 80.Submission, appraisal, approval and publicization of contractor appointment results
The submission, appraisal, approval and publicization of contractor appointment results must comply with Article 68 of this Decree.
Article 81.Contract negotiation, finalization and signing
1. The contract negotiation and finalization must comply with Clauses 1 and 2, Article 69 of this Decree.
2. The contract signing must comply with Articles 69, 70, 71 and 72 of the Bidding Law. Selected investors shall implement land-using investment projects under contracts, laws on investment and construction and other relevant laws.
Chapter VII
CONTENTS OF APPRAISAL, AND DECENTRALIZATION OF APPRAISAL AND APPROVAL RESPONSIBILITIES IN INVESTOR SELECTION
Article 82.Appraisal of dossiers of invitation to prequalification, bidding dossiers and dossiers of requirements
1. Appraisal of a dossier of invitation to prequalification
a/ A dossier to be submitted for appraisal or approval must comprise:
- The bid solicitor’s written request for approval of the dossier of invitation to prequalification;
- The draft dossier of invitation to prequalification;
- Copies of documents serving as legal bases for prequalification;
- Other relevant documents.
b/ Contents of appraisal include:
- Checking documents serving as legal bases for making the dossier of invitation to prequalification;
- Checking the conformity of the dossier of invitation to prequalification with the size, objectives, scope of work and implementation period of the project; and compliance with the bidding and other relevant laws;
- Considering other divergent opinions (if any) of organizations and individuals involved in making the dossier of invitation to prequalification;
- Other relevant contents.
c/ An appraisal report must contain:
- A summary of the project, and legal bases for making the dossier of invitation to prequalification;
- Comments and opinions of the appraising unit on the legal bases and compliance with the bidding law and other relevant laws; opinions agreeing and disagreeing with contents of the draft dossier of invitation to prequalification;
- Proposals and recommendations of the appraising unit on the approval of the dossier; measures to handle the dossier that is found to be incompliant with the bidding and other relevant laws; and measures to handle the case in which grounds for approving the dossier of invitation to prequalification are insufficient;
- Other opinions (if any).
d/ Before signing the appraisal report, if finding it necessary, the appraising unit shall organize a meeting of involved parties to solve remaining problems.
2. Appraisal of a bidding dossier or dossier of requirements
a/ A dossier to be submitted for appraisal or approval must comprise:
- The bid solicitor’s written request for approval of the bidding dossier or dossier of requirements;
- The draft bidding dossier or dossier of requirements;
- Copies of the following documents: Decision approving the contractor selection plan; and written approval of the prequalification result (if any);
- Other relevant documents.
b/ Contents of appraisal include:
- Checking documents serving as legal bases for making the bidding dossier or dossier of requirements;
- Checking the conformity of the bidding dossier or dossier of requirements with the size, objectives, scope of work and implementation period of the project; and compliance with the bidding and other relevant laws;
- Considering other divergent opinions (if any) of organizations and individuals involved in making the bidding dossier or dossier of requirements;
- Other relevant contents.
c/ An appraisal report must contain:
- A summary of the project, legal bases for making the bidding dossier or dossier of requirements;
- Comments and opinions of the appraising unit on legal bases and compliance with the bidding and other relevant laws; opinions agreeing and disagreeing with contents of the draft bidding dossier or dossier of requirements;
- Proposals and recommendations of the appraising unit on the approval of the bidding dossier or dossier of requirements; measures to handle the dossier that is found to be incompliant with the bidding and other relevant laws; and measures to handle the case in which grounds for approving the bidding dossier or dossier of requirements are insufficient;
- Other opinions (if any).
d/ Before signing the appraisal report, if finding it necessary, the appraising unit shall organize a meeting of involved parties to solve remaining problems.
Article 83.Appraisal of prequalification results, lists of investors satisfying technical requirements and investor selection results
1. General principles:
a/ Prequalification results, lists of investors satisfying technical requirements and investor selection results shall be appraised before being approved;
b/ For projects to which the single-stage single-envelope method is applied, only investor selection results shall be appraised;
c/ For projects to which the single-stage two-envelope method is applied, lists of investors satisfying technical requirements shall be appraised before being approved;
d/ Investor ranking lists are not required to be appraised before being approved. Such a list shall be approved at the request of the bid solicitor;
dd/ Before signing the appraisal report, if finding it necessary, the appraising unit may organize a meeting of involved parties to solve remaining problems.
2. Appraisal of prequalification results:
a/ A dossier for appraisal must comprise:
- The report on results of evaluation of the dossiers for participation in prequalification;
- The bid solicitor’s report on the result of evaluation of dossiers for participation in prequalification, specifying the bid solicitor’s opinions on the opinions, proposals and recommendations of the expert team;
- Photocopies of the dossier of invitation to prequalification, bid closing record, bid opening record, dossiers for participation in prequalification of investors, and other relevant documents.
b) Appraisal contents include:
- Checking documents used as the basis for prequalification;
- Inspecting the compliance with regulations on time limits during the prequalification;
- Inspecting the compliance with regulations of the dossier of invitation to prequalification and the law on bidding during the prequalification.
c) An appraisal report must contain:
- Summary of the project, legal bases for organizing the investor selection;
- Summary of the implementation and proposals of the submitting agency about the prequalification result;
- Comments on the compliance with the law on bidding and other relevant laws during the prequalification;
- Opinions agreeing or disagreeing with the prequalification result; proposed measures to handle violations of the law on bidding during the prequalification or measures to deal with cases in which grounds for conclusion on the prequalification result are insufficient;
- Opinions of the appraising unit on assurance of competitiveness, fairness and transparency during the prequalification;
- Proposals and recommendations of the appraising unit;
- Other opinions.
3. Appraising the list of investors satisfying technical requirements:
a/ A dossier for appraisal must comprise:
- The bid solicitor’s written request for appraisal of the results of evaluation of dossiers of technical proposals;
- A report on the results of evaluation of dossiers of technical proposals;
- Photocopies of the dossier of invitation to prequalification, bid closing record, bid opening record, dossiers of technical proposals of investors, and other relevant documents.
b/ Appraisal contents include:
- Inspecting the evaluation of dossiers of technical proposals; compliance with the law on bidding and relevant laws during the evaluation of the dossiers;
- Relevant contents.
c/ An appraisal report must contain:
- Summary of the investor selection process from shortlisting (if any) to submission of the list of investors satisfying technical requirements;
- Comments on the compliance with the law on bidding and other relevant laws during the investor selection process;
- Opinions of the appraising unit on assurance of competitiveness, fairness and transparency in the investor selection process;
- Proposals and recommendations for the bid solicitor and expert team;
- Opinions agreeing or disagreeing with the results of evaluation of dossiers of technical proposals; proposed measures to handle violations of the law on bidding in the investor selection process or measures to deal with cases in which grounds for conclusion on the results of evaluation of dossiers of technical proposals are insufficient;
- Other opinions.
4. Appraising the investor selection result:
a/ A dossier for appraisal must comprise:
- The bid solicitor’s written request for appraisal of the investor selection result;
- A report on the result of evaluation of bid dossiers or dossiers of proposals;
- The preliminary contract negotiation record;
- Photocopies of the bidding dossier or dossier of requirements, bid closing record, bid opening record, bid dossiers or dossiers of proposals submitted by investors, and other relevant documents.
b/ Appraisal contents include:
- Inspecting the conformity and compliance of the bidding dossier or dossier of requirements with regulations; compliance with the bidding and other relevant laws;
- Inspecting the compliance with regulations on time limits during the contract negotiation and finalization;
- Inspecting the compliance with regulations on submission of investor selection results.
c/ An appraisal report must contain:
- Summary of the project, legal bases for organizing the investor selection;
- Review of the whole investor selection process from shortlisting (if any) to submission of the investor selection result;
- Comments on the compliance with the law on bidding and other relevant laws during the investor selection process;
- Opinions of the appraising unit on assurance of competitiveness, fairness, transparency and economic efficiency in the investor selection process;
- Proposals and recommendations for the bid solicitor and expert team;
- Opinions agreeing or disagreeing with the investor selection result; proposed measures to handle violations of the law on bidding in the investor selection process or measures to deal with cases in which grounds for conclusion on the investor selection result are insufficient;
- Other opinions.
Article 84.Responsibilities of ministers; heads of ministerial-level agencies, government-attached agencies and other central agencies; chairpersons of provincial-level People’s Committees
1. For PPP projects subject to the Prime Minister’s approval of investor selection plans or investor selection results of which they are not bid solicitors:
a/ To give written opinions on investor selection plans or investor selection results as requested;
b/ To perform other tasks involved in the investor selection as authorized by the Prime Minister.
2. For PPP projects subject to the Prime Minister’s approval of investor selection plans or investor selection results of which they are bid solicitors:
a/ To approve dossiers of invitation to prequalification, prequalification results, bidding dossiers, dossiers of requirements and lists of investors satisfying technical requirements;
b/ To sign, and manage the performance of, contracts with selected investors;
c/ To perform other tasks under the responsibility of bid solicitors as prescribed in Article 75 of the Bidding Law.
3. For PPP projects or land-using investment projects for which they act as competent persons:
a/ To approve investor selection plans or investor selection results;
b/ To approve dossiers of invitation to prequalification, prequalification results, bidding dossiers or dossiers of requirements; or authorize heads of bid solicitors to do so;
c/ To perform other tasks under the responsibility of competent persons as prescribed in Article 73 of the Bidding Law;
d/ For land-using investment projects, chairpersons of provincial-level People’s Committees shall assign provincial-level specialized departments or equivalent professional agencies or district-level People’s Committees to act as bid solicitors.
Article 85.Responsibilities of chairpersons of district-level People’s Committees
1. For PPP projects or land-using investment projects of which they are bid solicitors:
a/ To perform the tasks under the responsibility of bid solicitors as prescribed in Article 75 of the Bidding Law;
b/ To perform other tasks involved in the investor selection as authorized by their superiors.
2. For PPP projects for which they act as competent persons:
a/ To approve investor selection plans;
b/ To approve dossiers of invitation to prequalification, prequalification results, bidding dossiers, dossiers of requirements, lists of investors satisfying technical requirements, and investor selection results;
c/ To perform other tasks under the responsibility of competent persons prescribed in Article 73 of the Bidding Law.
Article 86.Responsibilities of appraising units
1. The Ministry of Planning and Investment shall appraise:
a/ Investor selection plans and results under the approving competence of the Prime Minister;
b/ Investor selection plans in special cases subject to the Prime Minister’s consideration and decision under Article 26 of the Bidding Law and other cases as requested by the Prime Minister;
c/ Projects proposed by investors to apply the method of contractor appointment which fall under the considering and deciding competence of the Prime Minister prescribed at Point c, Clause 3, Article 9 of this Decree.
2. Provincial-level Planning and Investment Departments shall appraise:
a/ Investor selection plans, for projects for which chairpersons of provincial-level People’s Committees act as competent persons;
b/ Dossiers of invitation to prequalification, prequalification results, bidding dossiers, dossiers of requirements, lists of investors satisfying technical requirements and investor selection results, for projects for which chairpersons of provincial-level People’s Committees act as competent persons.
3. Agencies and organizations assigned by ministers or heads of ministerial-level agencies, government-attached agencies or other central agencies shall appraise:
a/ Investor selection plans, for projects for which ministers or heads of ministerial-level agencies, government-attached agencies or other central agencies act as competent persons;
b/ Dossiers of invitation to prequalification, prequalification results, bidding dossiers, dossiers of requirements, lists of investors satisfying technical requirements and investor selection results, for projects for which ministers or heads of ministerial-level agencies, government-attached agencies or other central agencies act as competent persons.
4. District-level planning and finance offices shall appraise investor selection plans, dossiers of invitation to prequalification, bidding dossiers, dossiers of requirements, prequalification results, lists of investors satisfying technical requirements and investor selection results for projects for which chairpersons of district-level People’s Committees act or are authorized to act as competent persons.
Chapter VIII
HANDLING OF CASES AND SETTLEMENT OF APPEALS IN
THE INVESTOR SELECTION PROCESS
Article 87.Handling of cases in the investor selection process
1. In case of necessity to adjust or modify contents of an investor selection plan, the procedures for modifying investor selection plans shall be carried in accordance with law before the dossier of technical proposals (for open bidding) or the dossier of proposals (for contractor appointment) is opened.
2. For a PPP project or land-using investment project, in urgent cases in which investment efficiency may be affected, the competent person shall decide on investor selection through open bidding without prequalification as long as competitiveness, fairness, transparency and economic efficiency are ensured. In this case, the bidding dossier must contain requirements on investors’ capacity and experience.
3. In case no investor submits a dossier of participation in prequalification or bid dossier by the bid closing time, the bid solicitor shall report it to a competent person for consideration and handling in either of the following ways:
a/ Permitting the extension of the deadline for bid closing for no more than 30 days;
b/ Deciding to cancel the bidding and at the same time requesting the bid solicitor to modify the dossier of invitation to prequalification or bidding dossier and organize the investor selection again, or considering change of the form of investment when the project is unattractive to investors.
4. In case the winning investor fails to satisfy the technical and financial requirements prescribed in Clause 2, Article 70 of the Bidding at the time of contract signing, the investor ranked next shall be invited to preliminary contract negotiation or to contract negotiation and finalization (for group-C PPP projects). In this case, the invited investor shall restore the validity of the bid dossier and bid security if the bid dossier has ceased to be valid and the bid security has been refunded or released.
5. After dossiers of financial-commercial proposals are evaluated, if all investors are ranked equal, the investor with the highest technical score shall be ranked first.
6. In case all investors that satisfy technical requirements and are ranked propose service prices and state capital contributions higher than service price and state capital contribution determined in the approved feasibility study report or project proposal (for group-C PPP projects), the competent person shall consider and handle in either of the following ways:
a/ Permitting these investors to make financial-commercial proposals again;
b/ Permitting these investors to make financial-commercial proposals again and at the same time reconsidering the service price and state capital contribution determined in the approved feasibility study report or project proposal (for group-C PPP projects) if necessary.
7. For selection of investors for land-using investment projects, in case all investors propose equal investment efficiency (B), investors with higher proposed state budget payments (M3) shall be considered for selection. In case investors propose equal expenses for compensation and ground clearance (M2) and state budget payments (M3), the investor with the highest proposed price (A) not lower than the floor price shall be selected.
8. In addition to the above cases, any circumstances arise in the investor selection process shall be reported by the bid solicitor to a competent person for consideration and decision in pursuance to the bidding objectives of competitiveness, fairness, transparency and economic efficiency.
Article 88.Conditions for appeals to be considered for settlement
1. The appeal is made by an investor that participates in the bidding.
2. The appeal bears the signature of the person having signed the bidding participation application or a lawful representative of the investor, and a seal (if any).
3. The person responsible for settling appeals receives the appeal under Clauses 3, 4 and 5, Article 92 of the Bidding Law.
4. Appealed contents have not yet been included in any initiated lawsuit.
5. In case appeals about investor selection results are settled by competent persons, appeal settlement expenses under Clause 6, Article 7 of this Decree shall be paid by investors to the assisting apparatus of the Advisory Council.
Article 89.Advisory council
1. Chairperson of an advisory council
a/ The chairperson of the Central Advisory Council is a competent representative of the Ministry of Planning and Investment. The Central Advisory Council shall give advice on the settlement of appeals about projects of national importance in which investment is decided by the National Assembly, group-A or equivalent investment projects;
b/ The chairperson of an advisory council of a ministry, ministerial-level agency, government-attached agency or another central agency (below referred to as ministerial-level advisory council) is the head of the unit assigned to manage bidding activities of such agency. The chairperson of a local advisory council is the director of the provincial-level Planning and Investment Department. Ministerial-level or local advisory councils shall give advice on the settlement of appeals about projects in which investment is decided by ministries, ministerial-level agencies, government-attached agencies, other central agencies or local administrations, except projects mentioned at Point a of this Clause.
2. Members of an advisory council
a/ Members of the Central Advisory Council include officials of the unit of the Ministry of Planning and Investment assigned to manage bidding, and representatives of competent state agencies and related professional associations. Members of a ministerial-level advisory council include officials of the unit of the ministry assigned to manage bidding, and representatives of competent state agencies and related professional associations. Members of a local advisory council include officials of the provincial-level Planning and Investment Department and representatives of competent state agencies and related professional associations.
b/ Based on the characteristics of each project and in case of necessity, the chairperson of an advisory council may invite other persons to join the council as its members.
c/ Members of an advisory council must not be relatives (blood parents, parents in law, spouses, blood children, adopted children, children in law and siblings) of the persons signing the appeal and persons involved in the evaluation of bid dossiers or dossiers of proposals, persons directly evaluating the list of investors satisfying technical requirements and investor selection results, and person approving investor selection results.
3. Operations of an advisory council
a/ The chairperson of an advisory council shall issue a decision to establish the council within 5 working days after receiving an appeal filed by an investor. The advisory council shall operate on anadhocbasis;
b/ The advisory council shall work on a collegial basis, make decisions by majority voting, send work reports to a competent person for consideration and decision; each member may reserve his/her opinions and take responsibility before law for such opinions.
4. The standing assisting apparatus of an advisory council
a/ The standing assisting apparatus of the Central Advisory Council is a unit of the Ministry of Planning and Investment assigned to manage bidding activities. The standing assisting apparatus of a ministerial-level advisory council is a unit of the concerned ministry assigned to manage bidding activities. The standing assisting apparatus of a local advisory council is a unit of the provincial-level Planning and Investment Department assigned to manage bidding activities. The standing assisting apparatus must not be composed of persons directly involved in the evaluation of investor selection results of the project;
b/ The standing assisting apparatus shall perform administrative tasks determined by the chairperson of the advisory council; and receive and manage payments made by appealing investors under Clause 6, Article 7 of this Decree.
Article 90.Settlement of appeals about investor selection
1. The time limit for appeal settlement specified in Clauses 3 and 4, Article 92 of the Bidding Law shall be counted from the date the administrative section of the person responsible for appeal settlement of receives an appeal.
2. The person responsible for appeal settlement shall notify in writing the investor of the refusal to consider and settle the latter’s appeal in case such appeal fails to meet the conditions prescribed in Article 88 of this Decree.
3. Investors may withdraw their appeals in the course of appeal settlement, provided they make written requests.
4. A written reply on the appeal settlement result to the investor must specify conclusions on the appeal contents. In case an appeal is concluded to be right, the written reply must clearly state the measures, method and time limit for remedying consequences (if any), and at the same time the standing assisting apparatus shall request responsible organizations and individuals to pay to the appealing investor a sum of money equal to that paid by the latter to the advisory council. In case an appeal is concluded to be wrong, the written reply must clearly state the reason.
Chapter IX
HANDLING OF VIOLATIONS; INSPECTION,
SUPERVISION AND MONITORING OF
BIDDING ACTIVITIES IN INVESTOR SELECTION
Section 1
HANDLING OF VIOLATIONS
Article 91.Forms of handling violations
1. Warning and fine shall be applied to violators of the bidding law in accordance with the law on sanctioning of administrative violations in the field of planning and investment.
2. Ban on participation from bidding shall be applied to violators of Article 89 of the Bidding Law.
3. Examination for penal liability shall be applied to individuals whose violations of the bidding law constitute crimes in accordance with the criminal law.
4. Cadres and civil servants violating the bidding law shall also be handled in accordance with the law on cadres and civil servants.
Article 92.Ban from participation in investor selection
Depending on the seriousness of violations, the ban from participation in bidding shall be applied to violators as follows:
1. Ban from participation in bidding for between 3 years and 5 years for one of the violations prescribed in Clauses 1, 2, 3, 4 and 5, Article 89 of the Bidding Law.
2. Ban from participation in bidding for between 1 year and 3 years for one of the violations prescribed at Points a, b, c, d and h, Clause 6, Article 89 of the Bidding Law.
3. Ban from participation in bidding for between 6 months and 1 year for one of the violations prescribed in Clause 7, Article 89 of the Bidding Law.
Article 93.Cancellation, termination and rejection of investor selection results
1. Cancellation of bidding shall be applied by competent persons to handle violations of the bidding law and other relevant laws committed by organizations and individuals participating in the bidding.
Competent persons shall cancel the bidding in the cases prescribed in Article 17 of the Bidding Law.
2. Termination or rejection of investor selection results, invalidation of decisions made during the investor selection process:
a/ Termination of the bidding or rejection of investor selection results shall be applied when there is evidence to believe that organizations or individuals participating in the bidding commit violations of the bidding or other relevant laws, making bidding objectives unachievable or falsifying investor selection results;
b/ Termination shall be applied to remedy a violation immediately upon its occurrence and before approval of investor selection results. Rejection of investor selection results shall be applied from the date of approval of investor selection results to the date of contract signing;
c/ A document on termination or rejection of investor selection results must clearly state the reason, contents, measures and time limit for remedying the violation in bidding;
d/ Invalidation of decisions of the bid solicitor shall be decided by a competent person when detecting that such decisions are incompliant with the bidding law and other relevant laws.
Article 94.Compensation for damage caused by violations of the bidding law
Organizations and individuals that commit violations of the bidding law and cause damage shall pay compensation for damage in accordance with the law on compensation and other relevant laws.
Section 2
INSPECTION, SUPERVISION AND MONITORING
Article 95.Inspection of bidding for investor selection
1. Inspection of bidding for investor selection shall be conducted as planned or extraordinarily when a problem arises or an appeal or a request or a recommendation is made by the Prime Minister, chairpersons of provincial-level People’s Committees or competent persons of agencies in charge of bidding inspection under Clause 2 of this Article. Inspection methods include direct inspection or request for reporting.
2. Ministers; heads of ministerial-level agencies, government-attached agencies and other central agencies; chairpersons of provincial-level People’s Committees; directors of provincial-level Planning and Investment Departments, heads of departments and sections of provincial-level People’s Committees; chairpersons of district-level People’s Committees shall direct the bidding inspection of units under their management and of projects in which investment is decided by them for the purpose of management, administration and rectification of bidding activities in order to accelerate and improve bidding activities and promptly detect, prevent and handle violations of the bidding law.
3. The Ministry of Planning and Investment shall assume the prime responsibility for inspecting bidding activities nationwide. Ministries, ministerial-level agencies, government-attached agencies and other central agencies; provincial-level People’s Committees; provincial-level Planning and Investment Departments, departments and sections of provincial-level People’s Committees and district-level People’s Committees shall assume the prime responsibility for inspecting bidding activities when requested by competent persons of bidding inspection agencies. Provincial-level Planning and Investment Departments shall assist provincial-level People’s Committees in assuming the prime responsibility for inspecting bidding activities in their localities.
4. Contents of bidding inspection
a/ Contents of periodical inspection include:
- Inspection of the promulgation of documents guiding and directing the investor selection and decentralization of powers for investor selection;
- Inspection of bidding training activities;
- Inspection of the grant of bidding training certificates and bidding practice certificates;
- Inspection of the making and approval of investor selection plans, dossiers of invitation to prequalification, bidding dossiers, dossiers of requirements, prequalification results and investor selection results;
- Inspection of contents of contracts to be signed and compliance with legal bases during the contract signing and performance;
- Inspection of the project implementation process and progress according to approved investor selection plans;
- Inspection of bidding reporting;
- Inspection of the organization of bidding inspection and supervision.
b/ Contents of extraordinary inspection: Based on extraordinary inspection requirements and decisions, heads of inspection teams shall determine appropriate inspection contents.
5. After the inspection is completed, inspection reports and conclusions shall be made. The inspecting agency shall monitor the resolution of problems (if any) stated in the inspection conclusions. In case a violation is detected, it shall determine handling measures or transfer the violation to an inspectorate or investigative agency for handling under regulations.
6. Contents of inspection conclusions include:
a/ Organization of bidding activities at the inspected unit;
b/ Inspection contents;
c/ Comments;
d/ Conclusions;
dd/ Recommendations.
Article 96.Supervision and monitoring of bidding activities for investor selection
1. Supervision and monitoring of bidding activities shall be applied in case ministers or heads of ministerial-level agencies, government-attached agencies and other central agencies authorize heads of organizations of their ministries or agencies; chairpersons of provincial-level People’s Committees authorize heads of professional agencies of provincial-level People’s Committees or chairpersons of district-level People’s Committees to perform the investor selection in order to detect and handle acts and contents violating the bidding law and other relevant laws.
2. Competent persons shall appoint persons or units having the bidding management function to supervise and monitor the investor selection contents specified in Clause 3 of this Article in order to ensure compliance with the bidding law.
3. Investor selection contents subject to supervision and monitoring include:
a/ Making, appraisal and approval of dossiers of invitation to prequalification, bidding dossiers and dossiers of requirements;
b/ Evaluation of dossiers for participation in prequalification, bid dossiers and dossiers of proposals;
c/ Appraisal and approval of prequalification and investor selection results;
d/ Contract negotiation, finalization and signing results.
4. Methods of supervision and monitoring:
a/ The bid solicitor shall publicly notify the name and address of the supervising and monitoring person or unit to investors that have bought the dossier of invitation to prequalification, bidding dossier or dossier of requirements;
b/ The bid solicitor shall provide information relating to the investor selection to the supervising and monitoring person or unit when receiving a written request;
c/ When detecting an act or a content in contravention of the bidding law, the supervising and monitoring person or unit shall promptly report it in writing to a competent person so as to take appropriate handling measures to ensure the effectiveness of the investor selection.
5. Responsibilities of persons or units supervising and monitoring bidding activities:
a/ To be honest and impartial; not to cause troubles to authorized persons and bid solicitors in the course of supervision and monitoring;
b/ To request authorized persons and bid solicitors to provide dossiers and documents to serve the supervision and monitoring;
c/ To receive information from investors and organizations and individuals involved in the selection of investors for the projects subject to supervision and monitoring;
d/ To keep confidential information under regulations;
dd/ To perform other responsibilities prescribed by the bidding law and other relevant laws.
Chapter X
IMPLEMENTATION PROVISIONS
Article 97.Transitional provisions
1. Projects that have investor selection results approved before the effective date of this Decree are not required to organize investor selection again under this Decree.
2. For dossiers of invitation to prequalification, bidding dossiers and dossiers of requirements issued before July 1, 2014, bidding activities to select investors shall be carried out in accordance with Decree No. 108/2009/ND-CP of November 27, 2009, Decree No. 24/2011/ND-CP of April 5, 2011, Decision No. 71/2010/QD-TTg of November 9, 2010, and relevant guiding circulars.
3. For dossiers of invitation to prequalification, bidding dossiers and dossiers of requirements issued during the period from July 1, 2014, to the effective date of this Decree, bidding activities to select investors shall be carried out in accordance with the Investment Law, Decree No. 108/2009/ND-CP of November 27, 2009, Decree No. 24/2011/ND-CP of April 5, 2011, Decision No. 71/2010/QD-TTg of November 9, 2010, and relevant guiding circulars which are not contrary to Bidding Law No. 43/2013/QH13 of November 26, 2013.
Article 98.Effect
This Decree takes effect on May 5, 2015.
Article 99.Implementation guidance
1. The Ministry of Planning and Investment shall:
a/ Assume the prime responsibility for preparing and promulgating model bidding documents, including dossier of invitation to prequalification, bidding dossier, dossier of requirements for selection of investors for PPP projects; bidding dossier and dossier of requirements to select investors to implement land-using investment projects, and other forms;
b/ Draw up a roadmap for application and guide in detail the following contents:
- Registration of investor information on the national bidding network under Point d, Clause 1, Article 5 of the Bidding Law;
- Grant of bidding practice certificates to individuals who must have such certificates under Clause 2, Article 16, and Point c, Clause 1, Article 19, of the Bidding Law;
c/ Assume the prime responsibility for, and coordinate with related agencies in, building the national bidding network and a roadmap for application; create mechanisms to manage, operate and guide the online investor selection;
d/ Guide the implementation of other necessary provisions of this Decree to meet requirements of state management of bidding activities for investor selection.
2. The Ministry of Finance shall guide expenses for investor selection.
3. Ministries, ministerial-level agencies, government-attached agencies, other central agencies and provincial-level People’s Committees shall:
a/ Assume the prime responsibility for, and coordinate with the Ministry of Planning and Investment in, promulgating model bidding documents for investor selection for group-C PPP projects of their sectors;
b/ Guide in detail, within the ambit of their management, relevant provisions of this Decree (if necessary) in accordance with this Decree.
4. Ministers, heads of ministerial-level agencies and chairpersons of People’s Committees at all levels shall appoint leading officials to take direct charge of and responsibility for investor selection, and assign an attached unit to manage the investor selection under the management of their ministries or localities. Any problems arising in the course of implementation of this Decree should be reported to the Prime Minister for consideration and decision. Annually, ministries, ministerial-level agencies and provincial-level People’s Committees shall send reports on organization of bidding activities for investor selection to the Ministry of Planning and Investment for summarization and reporting to the Prime Minister.-
On behalf of the Government
Prime Minister
NGUYEN TAN DUNG
Vietnamese
Decree 30/2015/NĐ-CP DOC (Word)
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