VietnameseDecree No. 85/2009/ND-CP dated October 15, 2009 of the Government guiding the Bidding Law and the selection of construction contractors under the Construction Law
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Decree No. 85/2009/ND-CP dated October 15, 2009 of the Government guiding the Bidding Law and the selection of construction contractors under the Construction Law
| Issuing body: | Government | Effective date: | Known Please log in to a subscriber account to use this function. Don’t have an account? Register here |
| Official number: | 85/2009/ND-CP | Signer: | Nguyen Tan Dung |
| Type: | Decree | Expiry date: | Known Please log in to a subscriber account to use this function. Don’t have an account? Register here |
| Issuing date: | 15/10/2009 | Effect status: | Known Please log in to a subscriber account to use this function. Don’t have an account? Register here |
| Fields: | Bidding - Competition , Construction , Investment |
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THE GOVERNMENT ------- | SOCIALIST REPUBLIC OF VIET NAM Independence - Freedom – Happiness --------- |
No. 85/2009/ND-CP | Hanoi, October 15, 2009 |
DECREE
GUIDING THE BIDDING LAW AND THE SELECTION OF CONSTRUCTION CONTRACTORS UNDER THE CONSTRUCTION LAW
THE GOVERNMENT
Pursuant to the December 25, 2001 Law on Organization of the Government;
Pursuant to November 29, 2005 Bidding Law No. 61/2005/QH11 and November 26, 2003 Construction Law No. 16/2003/QH11 of the National Assembly;
Pursuant to June 19, 2009 Law No. 38/2009/ QH12 of the National Assembly, amending and supplementing a number of articles of the laws concerning capital construction investment;
At the proposal of the Minister of Planning and Investment and the Minister of Construction.
DECREES:
Chapter I
GENERAL PROVISIONS
Article 1.
Scope of regulation
1. This Decree guides November 29, 2005 Bidding Law No. 61/2005/QH11, and June 19, 2009 Law No. 38/2009/QH12 of the National Assembly, amending and supplementing a number of articles of the laws concerning capital construction investment (below referred to as the Amending Law), and the selection of construction contractors under November 26, 2003 Construction Law No. 16/2003/QH11 of the National Assembly.
2. The selection of contractors for bidding packages of ODA-funded projects complies with Clause 3, Article 3 of the Bidding Law. The procedures for submission, appraisal and approval of relevant contents in the course of contractor selection comply with this Decree.
Article 2.
Interpretation of terms
In this Decree, the terms below are construed as follows:
1. Use of state capital referred to in Clause 1, Article 1 of the Bidding Law covers spending in the form of purchase, hire or hire-purchase. The state capital portion of 30% or more in the total investment or investment capital amount of an approved project shall be determined based on each specific project but not on the amount of contributed state capital in the total registered capital of the enterprise.
2. Dossier of requirements means the entire documentation used for contractor appointment, competitive offers, direct procurement or contractor selection in special cases, including requirements for a bidding package which serve as legal grounds for contractors to prepare dossiers of proposals and for the bid solicitor to evaluate such proposals in order to select a contractor that satisfies the requirements in the dossier of requirements; and serve as a basis for the negotiation. Finalization and conclusion of contracts. Investors shall decide on contents of dossiers of requirements.
3. Dossier of proposals means the entire documentation prepared and submitted by a contractor based on the dossier of requirements. For the form of competitive offers, dossiers of proposals are also referred to as price advices.
4. Contractor selection results means results of open or restricted bidding or other forms of selection.
5. Violation of the bidding law means an act of failure to comply or fully comply with the provisions of the bidding law.
6. Bidding participation means contractors’ participation in open or restricted bidding.
7. Bidding package for selection of general construction contractor covers the selection of a general contractor to undertake an engineering (E) bidding package; a construction (C) bidding package; an engineering and construction (EC) bidding package; an engineering, procurement and construction (EPC) bidding package; and the formulation of projects, engineering, procurement and construction (turn-key).
8. Validity term of bid or dossier of proposals-means the number of days counted from the date of bidding closure or the deadline for submission of dossiers of proposals (counting from the time of bidding closure or the deadline for submission of dossiers of proposals to the 24th hour of the same day) to the 24th hour of the final effective date stated in the bidding dossier or dossier of requirements.
9. Validity term of bid security equals the validity term of a bid dossier plus 30 days, counted in days from the date of bidding closure (counting from the time of bidding closure to the 24th hour of the same day) to the 24th hour of the final effective date stated in the bidding dossier.
10. Short list means a list of contractors invited to participate in bidding in case of restricted bidding, a list of pre-qualified contractors or a list of contractors with dossiers of expression of interest which have been evaluated as meeting requirements of dossiers of invitation to interested parties.
11. Investment report and work construction investment project report in construction activities are respectively construed as a pre-feasibility study report and feasibility study report.
Article 3.
Assurance of competition in bidding
Assurance of competition and its implementation roadmap are implemented as follows:
1. Contractors participating in bidding and consultancy contractors for the compilation of bidding dossiers and evaluation of bids; contractors performing contracts and consultancy contractors for the supervision of contract performance shall be regarded as being organizationally independent, no dependent on the same management agency and financially independent under Clause 2, Article 2 of the Amending Law when fully meeting the following conditions:
a/ They are enterprises operating under the Enterprise Law or their establishment decisions have not been directly issued by the same agency or unit;
b/ They do not hold more than 30% of shares or contributed capital of each other.
2. Investors and contractors participating in bidding for bidding packages of the same project shall be regarded as being organizationally independent, non-dependent on the same management agency and financially independent under Clause 2, Article 2 of the Amending Law when fully meeting the following conditions:
a/ For contractors operating under the Enterprise Law: They do not hold more than 50% of shares or contributed capital of each other;
b/ For contractors being non-business units: Their establishment decisions have not been directly issued by the same agency or unit and they must be financially autonomous and accountable when providing services and goods;
c/ For contractors being state enterprises established under the 2003 Law on State Enterprises and subject to transformation under the Enterprise Law: They do not hold more than 50% of shares or contributed capital of each other from the deadline for transformation under decisions of competent authorities.
Contractors being state enterprises operating in special sectors or domains in which the State needs to hold the controlling stake shall comply with the Prime Minister’s regulations.
Article 4.
Incentives in international bidding
1. Incentives in international bidding provided for in Article 14 of the Bidding Law are granted as follows:
a/ For consultancy service bidding packages: Contractors eligible for incentive have the total points of their bids added with 7.5% of that total; for consultancy service bidding packages involving hi-tech requirements, contractors’ technical points are added with 7.5% of those points;
b/ For construction and installation bidding packages: Evaluation prices of bids submitted by contractors ineligible for incentive shall be added with a sum of money equal to 7.5% of bidding prices after errors and flaws of those contractors are corrected and adjusted respectively;
c/ For procurement bidding packages: Evaluation prices of bids submitted by contractors ineligible for incentive shall be added with a sum of money equal to the value of import duty and import-related charges and fees payable under law, which, however, must not exceed 15% of goods prices. Incentives are not applicable to goods subject to import duty or import-related charges and fees under regulations;
d/ For bidding packages for selection of general engineering contractors, the determination of incentives is pursuant to Point a of this Clause. For other bidding packages for selection of general construction contractors, the determination of incentives is pursuant to Point b of this Clause.
2. When bids of foreign contractors are ranked equal, a higher rank will be given to the bid proposing higher domestic expenses. When bids of a domestic contractor and a foreign contractor are ranked equal following the application of incentives under Clause 1 of this Article, a higher rank will be given to the bid of the domestic contractor.
Article 5.
Training and re-training in bidding operations
1. Trainees
a/ Individuals directly involved in bidding operations requiring bidding operation training or re-training certificates, except contractors;
b/ Other individuals who wish to possess such certificates.
2. Conditions for establishments to organize training and re-training activities
a/ Having business registration certificates or establishment decisions, for establishments having no business registration certificates as prescribed by law;
b/ Having a contingent of bidding trainers satisfying standards set by state management agencies in charge of bidding.
3. Conditions for grant of bidding certificates
a/ Certificates are only granted to trainees who attend all bidding training sessions and pass examinations or tests;
b/ A bidding training course, after which certificates will be granted, must last for at least 3 days.
4. Responsibilities and obligations of bidding training establishments
a/ To be responsible for training quality; to provide information on their own establishments to the database according to Point b, Clause 2 of this Article;
b/ To carry out training and re-training activities based on the bidding training framework program and grant training certificates to trainees under regulations;
c/ To archive dossiers on bidding training or retraining courses they have organized under regulations;
d/ To annually report on their bidding training and retraining activities to the Ministry of Planning and Investment, concerned ministries, branches or localities for monitoring and sum-up.
5. Organization and management of bidding operation training and re-training activities
The Ministry of Planning and Investment shall organize and manage bidding operation training and re-training activities under Clause 5, Article 68 of the Bidding Law, specifically:
a/ Summing up training and re-training activities of training establishments based on annual bidding reports of ministries, branches and localities and reports of these establishments;
b/ Building and managing a database of bidding training establishments on the basis of information provided by these establishments;
c/ Building and managing a database of bidding experts;
d/ Issuing regulations on the framework program on bidding training, certificates, criteria for bidding trainers, and archive of dossiers on bidding training and retraining courses;
e/ Organizing and supporting bidding operation training and retraining activities.
Article 6.
Bidding expenses
1. The sale price (tax inclusive) of a bidding dossier set shall be decided by the investor based on the size and characteristics of the bidding package but must not exceed VND 1,000,000 for domestic bidding. For international bidding, that price must comply with international bidding practice.
2. The expense for appraisal of contractor selection results, even when no contractor is selected, is equal to 0.01% of the bidding package price, but must be between VND 1,000,000 and VND 50,000,000.
3. The expense for the Advisory Council to deal with a contractor's complaint concerning bidding results is 0.01% of the bidding price offered by that contractor, but must be between VND 2,000,000 and VND 50,000,000.
The management and use of expenses specified in Clauses 1 and 2 of this Article comply with current provisions of law.
Article 7.
Bidding Newspaper and bidding website
1. The Bidding Newspaper is a non-business unit having revenues.
2. The Bidding Newspaper is a daily.
3. Provision of bidding information
a/ Responsibility to provide information
- Ministries, ministerial-level agencies, other central agencies and People's Committees at all levels shall provide information specified at Points g and h, Clause 1, Article 5 of the Bidding Law:
- Investors and bid solicitors shall provide information specified at Points a thru f and Point h, Clause 1, Article 5 of the Bidding Law.
b/ Time limit for information provision
With regard to notices of invitation for pre-qualification. bids, dossiers of expression of interest, and offers, information must be provided at least 3 working days before the intended dale of publication of such information. Other information specified in Clause 1, Article 5 of the Bidding Law must be provided within 7 days after the signing of relevant documents.
The Ministry of Planning and Investment shall guide the provision of information and the timing and expenses for publication of bidding information on the Bidding Newspaper and bidding website.
Article 8.
Provisions on bidding time limits
1. Bidding time limits must comply with Article 31 of the Bidding Law. Clause 6, Article 2 of the Amending Law and the following specific provisions:
a/ Investors shall approve dossiers of requirements within 10 days from the date of receipt of bid solicitors’ written requests for approval of dossiers of requirements or reports on appraisal of dossiers of requirements (if any);
b/ Investors shall approve bidding dossiers, approve or give opinions on the handling of contractor selection results within 10 days from the date of receipt of appraisal reports of appraisal agencies or organizations;
c/ The validity term of a bid must be specified in the bidding dossier but not exceed 180 days from the bidding-closing time. In case of necessity to extend the validity term of a bid, the contractor may be requested to grant a single or multiple extensions, provided that the total duration of all requested extensions must not exceed 30 days according to Clause 4, Article 31 of the Bidding Law.
2. In the course of implementation, the following bidding contents may be performed simultaneously: pre-qualification of contractors and compilation of bidding dossiers; approval of bidding dossiers and notification of invitation for bids; notification of bidding results and contract negotiation and finalization.
Chapter II
BIDDING PLAN
Article 9.
Bases for elaboration of a bidding plan
1. The investment decision or investment certificate and relevant documents;
For a bidding package which needs to be implemented before the investment decision is issued, the decision of the head of the project-preparing agency can be used as a basis.
2. Treaties or international agreements, for ODA-funded projects.
3. The approved design and cost estimate (if any).
4. Capital sources for the project.
5. Relevant legal documents (if any).
Article 10.
Contents of each bidding package in a bidding plan
The division of a project into bidding packages complies with Clause 4, Article 6 of the Bidding Law, and ensures that the size of each bidding package is neither too small nor too big as this may restrict the participation of contractors. Details of a bidding package include:
1. Title of a bidding package
The title of a bidding package indicates its characteristics, contents and scope of job, which are consistent with the contents of the project. When all conditions are met and depending on particularities of the project, a bidding package may include formulation of a pre-feasibility study report, a feasibility study report and the technical design. When a bidding package consists of separate parts (lots), the bidding plan should also indicate the title of each part.
2. Bidding package price
a/ The bidding package price is determined on the basis of the approved total investment level or total investment capital or cost estimate (if any) and relevant regulations;
b/ For consultancy service bidding packages for formulation of pre-feasibility study reports and feasibility study reports, the bidding package price is determined on the basis of information on the average price according to statistics of related projects already implemented in the sector in a given period of time; the estimated total investment capital based on investment ratio norms of projects in each specialized domain; and the preliminarily calculated total investment capital;
c/ For a bidding package consisting of separate lots, the estimated value of each part in the bidding package price must be clearly stated.
3. Capital sources
Capital sources or the mode of arranging capital for payment to contractors must be clearly identified (breach bidding package. When ODA capital is used, the name of the donor and the capital structure (domestic and foreign) must be stated.
4. Form of contractor selection and mode of bidding
The form of contractor selection (for domestic or international bidding, pre-qualification. invitation of interested parties, selection of individual consultants, if any) provided for in Articles 18 thru 24 of the Bidding Law. Clause 4, Article 2 of the Amending Law, and Article 97 of the Construction Law; and the mode of bidding provided for in Article 26 of the Bidding Law, must be stated.
5. Time of selection of contractors
The time of selection of contractors to undertake a bidding package according to schedule must be stated. The time of selection of contractors shall be counted from the date of issuing bidding dossiers or dossiers of proposals to the date of entry into contract. For open bidding involving the making of a short list, the time of selection of contractors shall be counted from the date of issuing dossiers of invitation for prequalification or dossiers of invitation for expression of interests to the date of entry into contract.
6. Forms of contract
Depending on the characteristics of the bidding package, the applicable form of contract must be identified pursuant to Articles 49 thru 53 of the Bidding Law and Article 107 of the Construction Law. In case a bidding package consists of many jobs corresponding to different forms of contract, the contract for this package may consist of these forms of contract.
7. Contract performance duration
The duration of performance of a contract shall be counted from the date the contract takes effect to the date the parties fulfill the contractual obligations, ensuring that the execution of the bidding package accords with the project implementation schedule.
Article 11.
Submission of a bidding plan for approval
1. Submission responsibility
The investor shall submit a bidding plan to the competent person or a person authorized to decide on investment for consideration and approval; and concurrently send that plan to the appraisal agency or organization. When submitting the bidding plan to the Prime Minister, the investor shall also send it to a relevant line ministry for making written comments to the Prime Minister for consideration and approval.
For consultancy service bidding packages executed before the investment decision is issued and in case the investor has been identified, the unit attached to the investor shall submit a bidding plan to the head of its investing agency for consideration and approval. In case the investor is not yet identified, the unit assigned to prepare the project shall submit a bidding plan to the head of its agency for consideration and approval. The head of the concerned investing agency and the head of the unit assigned to prepare the project shall designate a subordinate unit to appraise the bidding plan before approving it.
2. Dossier submitted for approval
a/ The document submitting a bidding plan for approval indicates:
- Jobs already done, including those related to project preparation and bidding packages executed in advance with their respective values and legal grounds;
- Jobs to which none of the forms of contractor selection prescribed in Articles 18 thru 24 of the Bidding Law, Clause 4, Article 2 of the Amending Law, and Article 97 of the Construction Law is applicable;
- Jobs specified in the bidding plan, with their contents and values constituting bidding packages to be executed in any of the forms of contractor selection prescribed in Articles 18 thru 24 of the Bidding Law, Clause 4, Article 2 of the Amending Law, and Article 97 of the Construction Law, including such jobs as mine, bomb and explosive sweeping, building of resettlement areas, preparation of construction sites, work insurance, and training: and grounds for division of the project into bidding packages; and all contents specified in Article 10 of this Decree for each bidding package.
For a bidding package not subject to open bidding, the investor shall clearly state in the bidding plan-submitting document the reason(s) for the application of another form of contractor selection pursuant to the Bidding Law, the Construction Law, the Amending Law and this Decree. For a bidding package of a value within the limit eligible for the form of contractor appointment or subject to the form of contractor appointment under Clause 4, Article 2 of the Amending Law and Clause 1, Article 40 of this Decree due to other special requirements, the investor shall assure that contractor appointment is more efficient than open bidding by quantifying the benefits of socio-economic and other elements.
- Jobs ineligible for elaboration of a bidding plan (if any): their contents and values.
The total value of jobs already done, jobs to which no form of contractor selection is applicable, jobs falling under the bidding plan and jobs ineligible for elaboration of a bidding plan (if any) must not exceed the total investment of the project.
When necessary to make a bidding plan for one or some bidding packages to be executed in advance under Clause 2, Article 6 of the Bidding Law, the bidding plan-submitting document must still contain the contents specified in this Clause.
b/ Documentation enclosed with the bidding plan-submitting document
Upon submitting a bidding plan, the investor shall enclose copies of documentation used as a basis for the elaboration of that plan as prescribed in Article 9 of this Decree.
Article 12.
Appraisal and approval of a bidding plan
1. Appraisal of a bidding plan
a/ Appraisal of a bidding plan means examination and assessment of the contents specified in Articles 9, 10 and 11 of this Decree;
b/ The appraisal agency or organization shall make a report on appraisal results in compliance with Article 65 of the Bidding Law and submit it to a competent person for approval.
2. Approval of a bidding plan
The competent person or the person authorized to decide on investment: the head of the project-investing agency or the head of the unit assigned to prepare the project in case the bidding package is executed before the investment decision is issued shall approve the bidding plan within 10 days after receiving the report of the appraising agency or organization. The Prime Minister's approval of the bidding plan complies with the Government’s Working Regulation.
Chapter III
PRE-QUALIFICATION OF CONTRACTORS
Article 13.
Application of pre-qualification
1. Based on the characteristic and size of a bidding package, pre-qualification of contractors may be conducted under Clause 7, Article 2 of the Amending Law to select capable and experienced contractors that meet requirements of the bidding package and invite them to participate in the bidding.
2. Pre-qualification of contractors must be approved by competent persons in bidding plans.
Article 14.
Order of pre-qualification
1. Compilation of a dossier of invitation for pre-qualification
The bid solicitor shall compile a dossier of invitation for pre-qualification and submit it to the investor for approval. The dossier of invitation for pre-qualification contains information on the bidding package and the following requirements for contractors:
a/ Requirements on technical capability;
b/ Requirements on financial capability;
c/ Requirements on experience.
Pre-qualification dossiers are evaluated on the basis of the "pass" or "fail" criterion, which must be stated in the dossier of invitation for pre-qualification and include criteria for each of the requirements on technical capability, financial capability and experience.
For construction and installation bidding packages and bidding packages for selection of general construction contractors, excluding general engineering contractors, criteria for evaluation of pre-qualification dossiers must also conform to construction activity capability requirements under the construction law.
2. Notice of invitation for pre-qualification
A notice of invitation for pre-qualification (including an English version for international bidding) must be published on the Bidding Newspaper in 3 consecutive issues and on the bidding website. Apart from being published on these media, such an invitation may also be published on other mass media.
Dossiers of invitation for pre-qualification shall be supplied free of charge to contractors from the first date of publication of the notice of invitation for pre-qualification till the date of expiration of the time limit for submission of pre-qualification dossiers (closure of pre-qualification). Bid solicitors that fail to distribute dossiers of invitation for pre-qualification under regulations or take any action to prevent contractors from receiving such dossiers shall be handled under Point 1, Clause 1, Article 65 of this Decree.
3. Receipt and management of pre-qualification dossiers
The time for preparation of pre-qualification dossiers must be at least 10 days for domestic bidding or 20 days for international bidding, counted from the first date of issuance of the dossier of invitation for pre-qualification.
The bid solicitor shall receive pre-qualification dossiers from contractors and manage them under regulations. Pre-qualification dossiers submitted in compliance with the requirements of the dossier of invitation for pre-qualification shall be opened publicly right after the closure of pre-qualification. Pre-qualification dossiers submitted after the closure of pre-qualification will be regarded as invalid and rejected.
4. Evaluation of pre-qualification dossiers
The bid solicitor shall evaluate pre-qualification dossiers according to criteria stated in the dossier of invitation for pre-qualification.
5. Submission and approval of pre-qualification results
The bid solicitor shall submit pre-qualification results to the investor for approval.
6. Notification of pre-qualification results
After the investor approves pre-qualification results, the bid solicitor shall notify in writing those results to the contractors who have participated in pre-qualification and invite contractors who have passed pre-qualification to bidding.
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