VietnameseDecree No. 88/1999/ND-CP dated September 01, 1999 of the Government promulgating the regulation on bidding
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Decree No. 88/1999/ND-CP dated September 01, 1999 of the Government promulgating the regulation on bidding
| 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: | 88/1999/ND-CP | Signer: | Phan Van Khai |
| 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: | 01/09/1999 | Effect status: | Known Please log in to a subscriber account to use this function. Don’t have an account? Register here |
| Fields: | Investment |
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THE GOVERNMENT ------- | SOCIALIST REPUBLIC OF VIETNAM Independence- Freedom- Happiness ------------ |
No.88/1999/ND-CP | Hanoi, September 1, 1999 |
DECREE
PROMULGATING THE REGULATION ON BIDDING
THE GOVERNMENT
Pursuant to the September 30, 1992 Law on Organization of the Government;
At the proposal of the ministers of: Planning and Investment Finance; Trade; and Construction,
DECREES
Article 1.- To promulgate together with this Decision the Regulation on Bidding in replacement of the Regulation on Bidding issued together with the Government�s Decree No.43/CP of July 16, 1996 and Decree No.93/CP of August 23, 1997.
Article 2.- This Decree takes effect 15 days after its signing.
Article 3.- The Minister of Planning and Investment shall assume the prime responsibility and coordinate with the Minister of Construction, the Minister of Finance, the Minister of Trade, the Vietnam State Bank Governor, the heads of concerned ministries and branches in guiding and inspecting the implementation of this Decree.
Article 4.- The ministers, the heads of the ministerial-level agencies, the heads of the agencies attached to the Government, the presidents of the People�s Committees of the provinces and centrally-run cities, the Managing Boards of the State Corporations and concerned organizations shall have to implement this Decree.
ON BEHALF OF THE GOVERNMENT PRIME MINISTER Phan Van Khai |
REGULATION
ON BIDDING
(Issued together with the Government�s Decree No.88/1999/ND-CP September 1st, 1999)
(Issued together with the Government�s Decree No.88/1999/ND-CP September 1st, 1999)
The Regulation on Bidding is promulgated with the aim to uniformly manage activities of bidding for the selection of consultancy, goods procurement, construction and installation as well as selection of partners for execution of projects or parts of projects on the territory of the Socialist Republic of Vietnam.
Chapter I
GENERAL PROVISIONS
Article 1.- Objectives, basis and process of bidding implementation
1. The objective of the bidding is to achieve the competitiveness, fairness and transparency in the process of bidding for selection of appropriate bidders, ensuring the economic efficiency of projects.
2. The bidding is conducted on the basis of bidding package by bidding package.
3. The bidding process includes: bidding preparation, organization of bidding, bid evaluation, appraisal and approval, announcement of bid winners, contract negotiation, finalization and signing.
Article 2.- Scope and objects of application
1. The Regulation on Bidding shall apply to biddings organized and implemented in Vietnam.
2. Application objects:
a) Investment projects implemented under the Regulation on Investment and Construction Management which require the application of the Regulation on Bidding;
b) Joint venture projects, business cooperation contracts or joint stocks with State-run economic organizations (State enterprises) contributing 30% or more of the legal capital, business capital or stock capital;
c) Projects using the sources of aid capital from international organizations or foreign countries, which are implemented on the basis of the content of treaties acceded by the signing parties (the donor parties and the Vietnamese party). Where the draft treaties contain details other than those in this Regulation, the bodies tasked to negotiate and sign the treaties shall have to submit them to the Prime Minister for consideration and decision before they are signed;
d) Projects which require the selection of investment partners for implementation:
- For a domestic investment project, it can be implemented only when there are two or more investors wishing to participate therein simultaneously;
- For foreign-invested projects, the bidding shall be organized according to this Regulation only when there are two or more investors wishing to participate in the same project or when the Prime Minister requests a bidding to select the investment partner for implementation of the project.
e) The investment in procurement of appliances, supplies, equipment and working facilities of the State bodies, organizations and State enterprises; ordinary appliances and working facilities of armed forces units. The Ministry of Finance shall specify the scope of procurement, the procurement value, the responsibility and rights of procuring units under the Law on State Budget.
All objects prescribed in Clause 2 of this Article must be subject to the application of the Regulation on Bidding while for other objects the application thereof is only encouraged.
Article 3.- Interpretation of terms
Terms used in this Regulation shall be construed as follows:
1. "Bidding" is a process of selecting bidders that meet the requirements of the bid solicitor.
2. "Domestic bidding" is a bidding participated only by domestic bidders.
3. "International bidding" is a bidding participated by domestic and foreign bidders.
4. "Bid evaluation" is s process where the bid solicitor consider, analyze, assess and classify bids to select the bid winner.
5. "Project" is a collection of suggestions to perform part or whole of a given work, objective or requirement. Projects shall include investment projects and non-investment projects.
6. "Investment projects of Group A, B or C" stipulated in this Regulation are defined and classified in the Regulation on Investment and Construction Management.
7. "Bid solicitor" is the project owner, investor or a legal person being the lawful representative of the project owner or the investor and assigned the task of carrying out the bidding work.
8. "The competent person" is the head or person authorized under the provisions of law of an organization, a State body or enterprise; concretely as follows:
a) For investment projects, the "competent persons" are "persons competent to decide the investment" as stipulated in the Regulation on Investment and Construction Management;
b) For the procurement of appliances, supplies, equipment and working facilities of State bodies, organizations and State enterprises; the ordinary appliances and working facilities of armed forces units, "the competent persons" are the persons who decide the procurement in accordance with the provisions of law;
c) For projects using capital under the company ownership or other forms of ownership, "the competent persons" are the Managing Boards at the heads with competence is prescribed by law.
9. "The competent levels" are organizations or agencies empowered or authorized by the competent persons under the provisions of law.
10. "Bidders" are economic organizations with full legal person status to participate in bidding. Where a bidding is opened for selection of consultancy, bidders may be individuals. Bidders shall be constructors in the construction and installation bidding; the suppliers in the goods procurement biddings; the consultants in the consultancy selection biddings, or the investors in the biddings for selection of investment partners. Domestic bidders are those with the Vietnamese legal person status and operating lawfully in Vietnam.
11. "Bidding package" is the entire project or part of the project divided according to technical properties or project implementation order, with rational scale and ensuring the completeness of the project. In case of procurement, the bidding package may be a single item or a type of appliance, equipment or facilities. A bidding package may be implemented under one or several contracts (when the bidding package is divided into parts).
12. "Small-scale bidding package" is a bidding package valued at under VND2 billion for goods procurement or construction and installation.
13. "Consultancy" means the operations to satisfy the bid solicitor's requirements on professional knowledge and experience in considering, deciding and examining the process of project preparation and implementation.
14. "Construction and installation" mean jobs to be done in the process of construction and installation of equipment for the project and/or project items.
15. "Goods" mean machinery, transport means, equipment (in complete set or single item), the industrial property right, technological copyrights, raw materials, fuels, materials, consumer goods (finished products, semi-finished products).
16. "Bidding dossier" means the entire documents compiled by the bid solicitor, including the requirements for a bidding package, to be used as bases for the bidders to prepare their bids and the bid solicitor to evaluate bids.
"Bidding dossiers" must be ratified by competent persons or competent levels before they are distributed.
17. "Bids" mean documents prepared by bidders according to the requirements of the bidding dossiers.
18."The expert team" means a group of experts and/or consultants, established or hired by the bid solicitor, having the responsibility to assist the bid solicitor perform relevant work in the process of bidding.
19. "Bidding closing" means the end of the time limit for submitting bids as prescribed in the bidding dossiers.
20. "Bid opening" means the time of opening bids as prescribed in the bidding dossiers.
21. "The short list" is a list of bidders, which is shortened through evaluation steps. In the bidding for selection of consultants, the short list shall include consultants selected on the basis of a long list or from the list of consultants having registered to participate in the bidding.
22. "Evaluation" means the work of examining and evaluating by agencies with evaluation function the plans for the project's bidding, the results of bidding for bidding packages as well as relevant bidding documents before they are ratified by competent persons or competent levels.
23. "Bidding package price" is the price set for each bidding package in the plan for the project's bidding, based on the total investment or the total estimate, estimates already approved. In case of bidding for selection of project preparation consultants, the bidding package price must be approved by the competent person before organizing the bidding.
24. "The bid price" means the price written by the bidder in his/her/its bid after subtracting the price reduction amount (if any) including the total expenses necessary for the performance of the bidding package.
25. "Evaluation price" is the bid price with correction of errors and adjustment of discrepancies (if any), converted to the same level (technical, financial, commercial and other) to serve as basis for comparison of bids.
26. "Error correction" means the correction of errors in order to make bids accurate, including arithmetical errors, typing errors, spelling mistakes, unit-misidentification, which shall be made by the bid solicitor and used as basis for the evaluation.
27. "Adjustment of discrepancies" means the supplement or adjustment of inadequate or superfluent details in bids as compared to the requirements of the bidding dossiers as well as the supplement or adjustment of discrepancies between sections of bids. This shall be made by the bid solicitor.
28. "Bid winning proposed price" means the price proposed by the bid solicitor on the basis of the bid price of the proposed bid winner after correction and adjustment of errors and discrepancies as required by the bidding dossiers.
29. "Bid winning price" means the price approved in the bidding results by the competent person or the competent level to serve as basis for the bid solicitor negotiate, finalize and sign contract with the bid winner.
The bid winning price must not be higher than that of the bidding package in the approved bidding plan.
30. "Contracting price" means the price agreed upon by the bid solicitor and the bid winner after negotiating on the finalization of the contract and compatible to the bidding result.
31. "Bidding result" means the approval of the name of the bid winner, the bid winning price and type of contract by the competent person or the competent level.
32. "Negotiation on finalization of contract" is a process of continuing the negotiation on finalization of detailed contents of the contract with the bid winner for signing.
32. "Bid security" means the deposit of a sum of money (cash, checks, bank guaranty or the like) by bidders into an address for a definite period of time as prescribed in the bidding dossiers to secure the bidders� liability for their bids.
34. "Contract performance security" means the deposit of a sum of money (cash, checks, bank guaranty or the like) by the bid winner into an address for a definite period of time as required in the bidding dossiers and the bidding result in order to secure the liability for the performance of the signed contract.
Article 4.- Forms of bidder selection
1. Unrestricted bidding:
Unrestricted bidding is the form of bidding with unrestricted number of participating bidders. The bid solicitor shall have to publicly announce the bidding conditions and time on the mass media at least 10 days before the distribution of bidding dossiers. Unrestricted bidding is the main in form to be applied in bidding.
2. Restricted bidding:
Restricted bidding is the form of bidding which the bid solicitor invites a number of capable bidders (at least 5) to participate in. The list of participating bidders must be approved by the competent person or the competent level. The form shall be considered for application only when there exists one of the following conditions:
a) Only a number of bidders are capable of meeting the requirements of the bidding package;
b) The sources of capital to be used require the restricted bidding;
c) The restricted bidding is more advantageous due to the specific situation of the bidding package.
3. Appointed bidding:
Appointed bidding is the form of directly selecting bidders capable of meeting the requirements of the bidding package for negotiation on the contracts.
The form shall apply only in the following special cases:
a) Force majeure circumstances such as natural calamities or enemy sabotage occur, the capable units shall be appointed immediately to promptly carry out the work. Then the content of the appointed bidding must be reported to the Prime Minister for consideration and ratification;
b) The bidding package being of study and experimental character, the State secrets, security secrets or defense secrets shall be decided by the Prime Minister;
c) The special bidding packages which shall be decided by the Prime Minister, based on the appraisal reports of the Ministry of Planning and Investment and written comments of the capital supplying agencies and concerned bodies.
In the report proposing the appointment of bidders, the following three contents must be clearly determined:
- The reasons for appointing bidders;
- The technical and financial experiences and capabilities of the bidders recommended for the appointment;
- The value and volume already approved by the competent persons or the competent levels, serving as basis for the appointment of bidders.
4. Competitive sale offers:
This form shall be applied to bidding packages for the procurement of goods valued at under VND2 billion.
Each bidding package must have at least 3 sale offers of 3 different bidders, based on the bid solicitor�s sale offer requirements. The sale offers may be sent directly, by facsimile, postal services or other means.
5. Direct procurement:
On the basis of compliance with the provisions at Clause 3, Article 4 of this Regulation, the form of direct procurement shall apply in cases where the already performed contracts (under one year) or the being performed contracts are supplemented provided that the investors have the demand to increase the goods quantity or the work volume, which have earlier been opened to bidding, but it must be ensured that it must not exceed the price or the unit price in the contract signed earlier. Before signing a contract, the bidder must prove that it/she/he has full technical and financial capabilities to perform the bidding package.
6. Self-performance:
This form shall only apply to bidding packages which the investors have full capabilities to perform, based on the observance of the provisions in Clause 3, Article 4 of this Regulation (beyond the scope prescribed in Article 63 of the Regulation on Investment and Construction Management)
7. Special procurement:
This form shall apply to particularly special branches where, if without separate provisions, the bidding cannot be carried out. The branch-managing agency, shall have to draw up the process of implementation to achieve the objectives of the Regulation on Bidding and obtain the consent of the Minister of Planning and Investment in order to submit them to the Prime Minister for decision.
Article 5.- Mode of bidding
1. The one dossier-bag bidding is a mode by which bidders submit their bids in one bag of dossiers. This mode shall apply to the bidding for procurement of goods and for construction and installation.
2. The two dossier-bag bidding is a mode by which bidders submit their technical solutions and price offers in each separate bag of dossiers simultanously. The dossier bag of technical solutions shall be considered first for evaluation. Those bidders who get 70% of total technical marks upward shall have their dossier bag of price offers opened for evaluation. This mode shall apply only to biddings for the selection of consultants.
3. The two-phase bidding:
This mode shall apply to the following cases:
- Bidding packages for goods procurement or construction and installation with the value of VND500 billion or more;
- Bidding packages for goods procurement, characterized by the technological selection with complete equipment as well as technological and technical complexity, or bidding packages for especially complicated construction and installation;
- Projects to be executed under the turn-key contracts.
This process shall be effected as follows:
a) The first phase: Bidders submit their preliminary bids including the technical solutions and the financial plans (without price) so that the bid solicitor shall consider and discuss in detail with bidders one by one in order to reach agreement on the technical requirements and criteria so that the bidders prepare and submit their official bids.
b) The second phase: The bid solicitor shall invite all bidders participating in the first phase to submit their official bids with the completely supplemented technical solutions on the same technical level and the detailed financial plans fully containing details on the implementation tempo, contractural terms and bid prices.
Article 6.- Contracts
1. The bid solicitor and the bid winner shall have to enter into a written contract. The contract must ensure the following principles:
a) Complying with the current provisions of legislation of the Socialist Republic of Vietnam on contracts. In cases where this has not yet been prescribed by Vietnamese laws, the Prime Minister�s permission must be obtained before signing the contract;
b) The contents of contracts must be approved by the competent persons or the competent levels (compulsory only for contracts to be signed with foreign contractors or contracts to be signed with domestic contractors with the bidding results approved by the Prime Minister).
2. Based on the duration and characters of a bidding package prescribed in the bidding plan, the contract shall be performed in one of the following forms:
a/ The package contract is a contract with the package price, applicable to bidding packages which are clearly determined in term of the quantity, quality requirements and duration. In case of extra-contractural happenings not caused by the contractors, they shall be considered and decided by the competent persons or the competent levels;
b) The turn-key contract is a contract that covers the whole process from designing, equipment supply to construction and installation of a bidding package, which are performed through a contractor. The investor shall have to participate in supervising the process of implementation, pre-acceptance test and examination as well as acceptance and hand-over upon the completion of the entire project by the contractor under the signed contract;
c) The contract with price adjustment is a contract applicable to bidding packages which, by the time of signing the contract, lack conditions for the determination of their quantity and volume or the prices greatly fluctuate due to changes in the State�s policies and the contract performance duration is over 12 months. The performance of price-adjusted contracts shall have to comply with the provisions in Article 7 of this Regulation.
Article 7.- Adjustment of contract value:
The adjustment of contract value shall be made only when
1. The bidding dossiers approved by the competent persons or the competent levels specify the conditions and limits of part of work or project items entitled to price adjustment and the price adjustment formulas.
2. It is confirmed by the involved parties and permitted by the competent person or the competent level, to be applied in the following cases:
a) Where arise new volumes, quantities (increase or decrease), which are not caused by the contractor;
b) Where the prices fluctuate due to changes in the State's policies regarding labor, raw materials and materials and equipment in the price-adjusted contracts with the implementation duration of over 12 months. The inflation rate shall only be calculated as from the 13th month counting from the time of starting the contract performance.
3. The contract value, after being adjusted, must not exceed the total cost estimate, the estimate or price of the bidding package in the approved bidding plan. The total adjusted value and the values of contracts under the project must not exceed the total investment amount already approved.
Article 8.- Project bidding plan
1. The project bidding plan shall be worked out by the bid solicitor under this Regulation and must be approved by the competent person. In cases where there are not enough conditions for working out the bidding plan for the entire project, the bid solicitor may draw up bidding plan for each part of the project according to the implementation stages, but the competent person's permission is required.
2. A project bidding plan shall include the following contents:
a) The division of the project into different bidding packages;
b) The prices of the bidding packages and financial sources;
c) Form of selecting bidders and the bidding mode to be applied to each bidding package;
d) The time for organizing the bidding for each bidding package;
e) Type of contract for each bidding package;
f) The contract performance duration.
Article 9.- Conditions for contract performance
1. The bidding shall be organized only when the following conditions are fully met:
a) Having the investment decision or the investment license granted by the competent person or the competent level;
b) The bidding plan has been ratified by the competent person;
c) The bidding dossier has been ratified by the competent person or the competent level.
In case of bidding for the selection of consultants to perform the work of project preparation or bidding for the selection of partners for the project implementation, the organization of bidding shall be conditioned by the written approval of the competent person or the competent level and the approved bidding plan.
2. The bidders participating in bidding shall have to satisfy the following conditions:
a) Having the business registration certificate. For bidders for procurement of complicated equipment prescribed in the bidding dossiers, the permit for the sale of goods under the producers' licenses is also required besides the business registration certificate;
b) Having full technical and financial capabilities to meet the requirements of bidding packages;
c) Being entitled to participate in the bidding with only one bid for a bidding package, whether it is unilateral or multilateral bid. Where a corporation registers its name for the bidding, all its attached units shall not be allowed to participate therein in the capacity as independent bidders in the same bidding package.
3. The bid solicitors shall not be allowed to participate as bidders in the bidding packages organized by themselves.
Article 10.- Conditions for international biddings and preferences for bidders
1. The international biddings shall be organized in the following cases:
a) The bidding packages cannot be satisfied in terms of their requirements by any domestic bidders;
b) The projects which use the sources of aid capital of international organizations or foreign countries require international biddings as provided for in the agreements.
2. The foreign bidders, when participating in international biddings in Vietnam, shall have to either enter into partnership with Vietnamese bidders or commit to use Vietnamese subcontractors, but clearly state the division of work between parties regarding the scope and volume of work and the corresponding unit prices.
3. The foreign bid winners shall have to fulfill their commitments regarding the work volumes in percentage and corresponding unit prices, to be given to the Vietnamese partners or subcontractors as stated in their bids. While negotiating the finalization of contracts, if the foreign bid winners fail to fulfill their commitments stated in their bids, the bidding results shall be disregarded.
4. Bidders participating in biddings in Vietnam shall have to commit to procure and use the supplies and equipment with suitable quality and prices, being manufactured, processed or available in Vietnam.
5. Where two bids of foreign bidders have been evaluated being equal, the one with higher percentage of work given to the Vietnamese side (partner or subcontractor) shall be accepted.
6. Domestic bidders participating in international biddings (unilaterally or in partnership) shall be given priority when their bids are evaluated as equal to bids of foreign bidders.
7. Where two bids are evaluated being equal, priority shall be given to the bid with higher percentage of labor.
8. Domestic bidders participating in international biddings shall be entitled to the regime of preferences as prescribed by laws.
Article 11.- Clarification of bids
Bidders must not change their bids after the closure of biddings. During the process of bid evaluation, the bid solicitor may request bidders to clarify some details of their bids in forms of direct or indirect discussion, which, however, must ensure the equality among bidders and must not alter the basic contents of the bids as well as the bid prices. The clarification requests of the bid solicitor and the replies of the bidders must be recorded in writing and archived by the bid solicitor according to the provisions of law.
Article 12.- Bid preparation time and effective time-limits of bids
1. The time of bidding closure and the effective time-limit of bids must be clearly inscribed in the bidding dossiers. Depending on the size and complexity of a bidding package, the maximum duration for bid preparation shall be 15 days for domestic biddings (7 days for small-sized bidding packages) or 30 days for international biddings, counting from the date of distributing the bidding dossiers.
In special cases where a number of details of the bidding dossiers need to be amended before the bidding closure deadline, the bid solicitor may extend the bid preparation duration.
The written amendments to the bidding dossiers must be sent to all bidders having participated in the bidding at least 10 days before the prescribed deadline for bidding closure so that the bidders may have enough time to finalize their bids.
2. The maximum effective time-limit of a bid shall not exceed 180 days after the bidding closure. Where such time-limit needs to be extended, the bid solicitor shall have to notify it to all bidders after getting permission of the competent person or the competent level. If the bidder refuses to accept this, he/she/it shall be refunded with the bid security money.
Article13.- Bid opening, evaluation, submission and approval and the announcement of bidding results
1. Bid opening:
After the receipt of bids in status quo, which have been submitted on time and managed according to the regime of management of "Secret" documents, the bid opening shall be publicly conducted according to the date, hour and location inscribed in the bidding dossiers and within 48 hours after the bidding closure (excluding holidays prescribed by law).
The minutes of the bid opening shall contain the following principal details:
a) The name of the bidding package;
b) The date, hour and location of opening bids;
c) The names and addresses of bidders;
d) The bid price, bid security and implementation tempo;
e) Other relevant details.
The bid solicitor's representative and bidders invited to participate therein must affix their signatures to the bid-opening minutes.
The originals of bids, after being opened, shall be signed for certification on each page before they are evaluated and managed according to the regime of management of "Secret" documents, which shall serve as legal bases for evaluation and consideration.
2. Bid evaluation:
The bid solicitor shall study, evaluate in detail and classify the opened bids according to the requirements of the bidding dossiers and the evaluation criteria already approved by the competent person or the competent level before the bid opening. The bid evaluation shall be conducted according to the following principles:
a) Using the method of giving marks with regard to the evaluation of bids for consultancy bidding packages, partner selection bidding packages, the evaluation of preliminary bids, as well as to the evaluation of the technical aspects of bidding packages for goods procurement or construction and installation;
b) Using the method of evaluating bidding packages for goods procurement or construction and installation according to the two following steps.
- Step 1: Using the points scale for technical matters to select the short list (namely the list of bidders who basically meet the requirements of the bidding dossiers based on the evaluation criteria).
- Step 2: Determining the evaluation price for bids on the short list for rating.
c) Not using the bid evaluation price, the floor price but the bidding package price in the approved bidding plan.
3. Approving and announcing the bidding results:
The bidding results must be approved by the competent persons or the competent levels. The bid solicitor may announce the bidding results only after they are approved by the competent persons or the competent levels.
Article 14.- Currency, tax and language used in the bidding
1. The bid currency shall be stipulated by the bid solicitor in the bidding dossiers according to the principle of one currency for one goods offer volume.
In the course of bids evaluation and comparison, the exchange rates between the Vietnam dong and the foreign currencies shall be determined according to the rates announced by the State Bank of Vietnam at the time of opening bids.
2. The bidding dossiers must specify kinds of tax according to the provisions of law so that the investors may have grounds to calculate their bid prices.
3. The languages used in biddings shall be Vietnamese for domestic biddings; Vietnamese and English for international biddings.
Article 15.- Responsibilities of the bid solicitor
Besides the tasks of drawing up and submitting for approval bidding plans for projects prescribed in Article 8 of this Regulation, the bid solicitor shall have to conduct biddings according to the approved bidding plans or written approvals of the competent persons or the competent levels and to the order of organizing biddings stipulated in Articles 20, 22, 33, 45 and 47 of this Regulation, including:
1. Setting up the experts team or hiring consultants to assist the bidding on the basis of the approval by the competent persons or the competent levels;
2. Summarizing the bidding process and submitting the bidding results to the competent persons or the competent levels for consideration and approval;
3. Announcing the bid winners, negotiating on the finalization of contracts;
4. Submitting for approval the contract contents (as prescribed in Point b, Clause 1, Article 6 of this Regulation) and signing the contracts.
Article 16.- Composition, criteria, responsibilities and powers of the experts' group
1. The composition of the experts' group:
Depending on the characteristics and complexity of each bidding package, the experts' group shall be composed of experts in:
a) Technique, technology;
b) Economics, finance;
c) Legal affairs and other matters ( if necessary).
The head of the experts' group shall be decided by the bid solicitor and approved by the competent person or the competent level, who shall have to run the affairs, synthesize and prepare evaluation reports or other relevant documents.
2. Criteria for members of the experts� group:
a) Having professional qualifications related to the bidding package;
b) Being conversant with the specific contents of the bidding package;
c) Having experience in practical management or research;
d) Being knowledgeable about the bidding process.
3. The experts� group shall have the following responsibilities and powers:
a) Preparing legal documents, compiling the bidding dossiers;
b) Receiving and managing bids;
c) Analyzing, evaluating, comparing and classifying bids according to the evaluation criteria stated in the bidding dossiers and the detailed evaluation criteria approved before opening bids.
d) Synthesizing documents on the process of evaluation and selection bidders and making reports on bid consideration;
e) Having to state honestly and objectively its opinions in writing to the bid solicitor in the course of analyzing, evaluating and classifying bids and being answerable before law for its opinions. Being entitled to reserve its opinions for consideration by the superior level;
f) Having to keep secret information, not to join hand with bidders in any forms;
g) Not entitled to participate in evaluating the bidding results.
Chapter II
BIDDING FOR SELECTION OF CONSULTANCY
Article 17.- The content of consulting work
1. Consultancy for the project preparation:
a) Elaborating the planning and overall scheme for development;
b) Making pre-feasibility study report;
c) Making feasibility study report;
d) Evaluating reports on the elaboration of planning, overall development scheme, pre-feasibility study report and feasibility study report.
2. Consultancy for project implementation:
a) Survey;
b) Making the design, total cost estimate and estimates;
c) Evaluating and verifying the design and the total cost estimate and estimates (if any);
d) Compiling bidding dossiers;
e) Analyzing and evaluating bids;
f) Supervising the construction and equipment installation.
3. Other consultancies:
a) Project management, financial settlement;
b) Administrations of the project implementation;
c) Training, technology transfer and other matters.
The consultants must not participate in the assessment of their work performances and must not participate in the bidding for bidding packages on goods procurement or construction and installation, on which they have provided consultations (except for bidding packages implemented in the form of turn-key contracts).
Article 18.- Types of consultants:
The consultants shall be classified into the following types:
1. Governmental or non-governmental consulting organizations which operate under the provisions of law;
2. Specialists operating independently or in an organization which operates under the provisions of law.
Article 19.- Requirements on the consultants
1. The consultants must have adequate professional qualifications suitable to the requirements of the bidding dossiers. The consulting specialists must be possessed of certificates and/or diplomas evidencing their proper professional qualifications.
2. The consultants must bear responsibility before the bid solicitor for the legitimacy, accuracy and objectivity regarding the professional matters and fulfill their tasks under the signed contracts.
Article 20. - Order of organizing the bidding
The bidding for selection of consultancy shall be organized in the following order:
1. Compiling the bidding dossiers, including:
a) The bid invitation letter;
b) Reference terms (purpose, scope of work, tempo, tasks and responsibilities of the consultants, responsibilities of the bid solicitor and other relevant contents);
c) Relevant fundamental information;
d) Evaluation criteria;
e) Preferential terms (if any);
f) Enclosed detail appendices.
2. Announcement on bid registration:
The bid registration announcement must be made on the appropriate mass media or sent directly to bidders recommended by concerned information supplying agencies or organizations.
3. Determination of the short list:
a) The short list shall be determined according to selection criteria already approved by the competent person or the competent level;
b) This short list must be approved by the competent person or the competent level.
4. Bid invitation:
The bid solicitor shall have to supply the bidding dossiers to the bidders on the short list.
5. Receipt and management of bids:
The bid solicitor shall only receive bids which are submitted on time as prescribed in the bidding dossiers and manage them according to the regime of management of "Secret" files.
6. Opening technical solutions bags:
The opening of technical solutions bags shall comply with Clause 1, Article 13 of this Regulation.
7. Evaluation of technical solutions:
The evaluation of technical solutions shall comply with the evaluation criteria prescribed in the bidding dossiers and the detail evaluation criteria, already approved by the competent person of the competent level before the opening of the technical solutions bags.
8. Opening the financial proposals bags:
The opening of financial proposals bags of bidders who have got 70% or more of the total marks on technical solutions as prescribed in Clause 1, Article 13 of this Regulation.
9. General evaluation:
Points giving for rating must be based on the points structure between the technical matters and the price on the same plane already mentioned in the bidding dossiers; the percentrage of points for price shall not exceed 30% of the total points.
10. Submitting for approval the list of rated bidders.
11. Negotiating the contract:
The bid solicitor shall invite the first-rated bidder to negotiate the contract. In case of failure, the bid solicitor shall invite the next-rated bidder to negotiate the contract, but with the approval of the competent person or the competent level.
The bidding work prescribed in Clauses 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11 of this Article shall be performed by the bid solicitor or the hired specialists.
12. Submitting the bidding results for approval.
13. Announcing the bid winner and negotiating the finalization of the contract:
The bid solicitor shall notify the approved bidding results to bidders having participated in the bidding, conduct negotiation on the finalization of the contract with the bid winner.
14. Submitting for approval the contract contents (according to the provisions in Point b, Clause 1, Article 6 of this Regulation) and signing the contract.
Article 21.- Consultancy costs
The foreign consultancy costs shall include:
a) Payment to consultants specialists, including basic wages, social fees, management fees, corporate profits and other allowances;
b) Expenses outside wages, including air fares, working travel allowance, expenses for stationery, information, working facilities, training and other expenses;
c) Various kinds of tax prescribed by law;
d) Reserve expenses:
The reserve expenses shall be determined according to current regulations and be used only when it is approved by the competent person or the competent level.
2. Domestic consultancy costs shall comply with the provisions of law.
Chapter III
BIDDING FOR GOODS PROCUREMENT
Article 22.- Order of organizing the bidding
The bidding for goods procurement shall comply with the following order.
1. Preliminary selection of bidders (if any);
2. Compiling the bidding dossiers;
3. Sending the bid invitation letters or announcing the bid invitation;
4. Receiving and managing bids;
5. Opening bids;
6. Evaluating and rating bidders;
The work of organizing the bidding prescribed in Clauses 1, 2, 3, 4, 5 and 6 of this Article shall be carried out by the bid solicitor or the hired specialists.
7. Submitting the bidding results for approval;
8. Announcing the bid winner, negotiating the finalization of the contract;
9. Submitting for approval the contract contents (according to provisions in Point b, Clause 1, Article 6 of this Regulation) and signing the contract.
Article 23.- Preliminary selection of bidders
1. The preliminary selection of bidders must be carried out for bidding packages valued at VND300 billion or more in order to select bidders with full capability and implementation experiences, meeting the requirements of the bidding dossiers.
2. The preliminary selection of bidders shall be carried out through the following steps:
a) Compiling the preliminary selection dossiers, including:
- The letter of invitation to the preliminary selection;
- Instructions on the preliminary selection;
- Evaluation criteria;
- Enclosed appendices.
b) Announcement on preliminary selection invitation;
c) Receiving and managing the preliminary selection application dossiers;
d) Evaluating the preliminary selection application dossiers;
e) Submitting for approval the preliminary selection results;
f) Notification on the preliminary, selection results.
Article 24.- Bidding dossiers
The bidding dossiers shall include:
1. The letter of bid invitation;
2 The bid form;
3. Instructions to bidders;
4. Preferential terms (if any);
5. Various kinds of tax prescribed by law;
6. Requirements on technology, supplies, equipment, goods, their technical properties and origins;
7. The price index;
8. Evaluation criteria (including methods and mode of converting to the same level for determination of the evaluation price);
9. The general conditions and special conditions of the contract;
10. Bid security form;
11. Contract agreement form;
12. Contract performance security form.
Article 25.- Bid invitation letter or notice
The bid invitation letter or notice shall include the following details:
1. Name and address of the bid solicitor;
2. The project outline, location and time of goods delivery;
3. Instructions on the inquiry into the bidding dossiers.
4. Conditions for participation in the bidding.
5. The time and place of receiving the bidding dossiers.
Article 26. - Instructions to bidders
The instructions to bidders shall include the following major contents:
1. Brief description of the project;
2. The source of funds for project implementation;
3. Requirements on qualifications, experiences and legal status of the bidders, evidences and information relating to the bidders within a reasonable period of time before participation in the bidding;
4. Field trips (if any) and replies to inquiries of bidders.
Article 27. - Bids
The content of a bid for goods supply shall include:
1. Contents on administrative and legal matters:
a) The valid application for bidding participation (with the signature of the competent person);
b) The copy of the business registration certificate. For the procurement of complex equipment prescribed in the bidding dossiers, in addition to the copy of the business registration paper, the copy of the permit for sale of goods under the producer's license is also required;
c) Documents on the qualifications and experiences of the bidders, including subcontractors (if any);
d) The bid security.
2. The technical contents:
a) The technical properties of goods;
b) Technical and technological solutions;
c) The goods�s origin and certificates of the producer;
d) Organizing the construction and installation, training and technology transfer;
e) The contract performance tempo.
3. The commercial and financial contents:
a) The bid price enclosed with the explanation and detailed price index;
b) Conditions for goods delivery;
c) Financial conditions (if any);
d) Payment conditions.
Article 28.- Bid security
1. Bidders shall have to furnish as parts of their bids the bid security. Where the two-phase bidding mode is applied, the bid security shall be submitted at the second phase.
2. The bid security value represents from 1% to 3% of the bid price. The bid solicitor may fix the uniform bid security level in order to keep secret the bid prices for bidders. The bid solicitor defines the bid security form and conditions. The bid security shall be returned to the unsuccessful bidders within 30 days after the announcement of the bidding results.
3. Bidders may not take back their bid security in the following cases:
a) They win the bids but refuse to perform the contracts;
b) They withdraw their bids after the closure of bidding;
c) They violate the Regulation on Bidding defined in Article 60 of this Regulation.
4. The bid security shall apply only to forms of unrestricted and restricted biddings.
5. After depositing their contract performance security, the bid winners shall have their bid security returned.
Article 29.- Bid evaluation criteria
The evaluation of bids shall be carried out according to the criteria on the following contents:
1. The bidders� capabilities and experiences:
a) The production and business capabilities, their material and technical foundations, the qualifications of their professional personnel.
b) The financial capabilities (turnovers, profits and other norms);
c) Experiences in the performance of similar contracts in Vietnam and foreign countries.
2. The technical contents:
a) The capabilities to satisfy the requirements on quantity, quality and technical properties of goods stated in the bidding dossiers;
b) The economic and technical characteristics and code of the goods, the place of production, the production level and other contents;
c) The rationality and economic efficiency of the technical solutions, measures to organize the goods supply;
d) The capability for equipment installation and qualifications of technical personnel;
e) The capability for geographical adaptability;
f) Impacts on environment and solutions thereto.
3. Finance and price: The capability for financial supply (if so requested), commercial and financial conditions, evaluation price.
4. Other criteria: The contract performance duration, technology transfer, training and other contents.
Article 30. - Bid evaluation
The bid evaluation shall be carried out in the following order:
1. Preliminary evaluation:
The preliminary evaluation is aimed to do away with unqualified bids and carried out as follows:
a) Checking the validity of the bids;
b) Examining the bids to see if they meet the basic requirements stated in the bidding dossiers;
c) Clarifying bids (if necessary).
2. Detailed evaluation
The detailed evaluation of bids shall be carried out by method of evaluation price, including two steps:
a) Step 1 : Evaluation of the technical aspects to select the short list:
Such evaluation is conducted on the basis of evaluation requirements and criteria prescribed in the bidding dossiers and the detailed evaluation criteria must not contradict the evaluation criteria prescribed in the bidding dossiers, already approved by the competent person or the competent level before the bid opening. Those bidders who score at least 70% of the total technical points shall be included in the short list.
b) Step 2: Evaluation of the commercial and financial aspects:
The financial and commercial evaluation of bids submitted by bidders in the short list shall be made on the same plane according to the approved evaluation criteria.
The financial and commercial evaluation is aimed to determine the evaluation price, including the following contents:
- Mistake correction;
- Adjustment of discrepancies;
- Conversion of the bid price to the single currency;
- Putting bids on the same plane for comparison;
- Determination of the evaluation prices of bids.
3. Rating bids according to the evaluation prices and proposing to the bid winners the corresponding bid winning price.
Article 31.- Bidding results
1. Those bidders who have regular bids, basically meet the requirements of the bidding dossier, offer the lowest evaluation price and have the proposed bid winning price not exceeding the approved bidding package price shall be considered for bid winning.
2. The bidding results must be approved by the competent persons or the competent levels.
3. The bid solicitor shall invite the bid winner for negotiation on the finalization of the contract. In case of a failure, the bid solicitor shall invite the next-rated bidder for negotiation, but with the approval of the competent person or the competent level.
Article 32.- Contract performance security
1. The bid winner shall have to deposit the contract performance security to the bid solicitor in order to secure his/her/its liability to perform the signed contract.
2. The contract performance security value shall not exceed 10% of the contract value, depending on the type and scale of the contract. In special cases where the higher contract performance security level is required, it must be approved by the competent person or the competent level. The contract performance security shall be effective until the performance of the warranty or maintenance obligations.
3. The contract performance security shall cover the following major contents:
a) The payment time-limit: The bid winner shall have to deposit the contract performance security before signing the contract;
b) The forms of security in cash, checks, bank guaranty or the like;
c) The effective time-limit of the security;
d) The security currency.
4. The contract performance security must apply to all forms of selecting bidders as prescribed in Article 4 of this Regulation, except for the form of self-performance.
Chapter IV
BIDDING FOR CONSTRUCTION AND INSTALLATION
Article 33.- Order of organizing the bidding
The bidding for construction and installation shall be organized in the following order:
1. Preliminary selection of bidders (if any);
2. Compiling the bidding dossiers;
3. Distributing bid invitation letters or notices;
4. Receiving and managing bids;
5. Opening bids;
6. Bid evaluation and rating;
The bidding work prescribed in Clauses 1, 2, 3, 4, 5 and 6 of this Article shall be carried out by the bid solicitor or the hired specialists.
7. Submitting the bidding results for approval;
8. Announcing the bid winner, negotiating the contract finalization;
9. Submitting for approval the contract contents (according provisions in Point b, Clause 1, Article 6 of this Regulation) and signing the contract.
Article 34. - Preliminary selection of bidders
1. The preliminary selection of bidders must be applied to bidding packages valued at VND200 billion or more in order to select bidders with full capabilities and implementation experiences, meeting the requirements stated in the bidding dossiers.
2. The preliminary selection of bidders shall be carried out through the following steps:
a) Compiling the preliminary selection dossiers, including:
- The letter of invitation to the preliminary selection;
- The preliminary selection instructions;
- The evaluation criteria;
- The enclosed appendices.
b) Announcement of the preliminary selection invitation;
c) Receiving and managing dossiers of preliminary selection participation;
d) Evaluation of the preliminary selection participation dossiers;
e) Submitting the preliminary selection results for approval;
f) Announcing the preliminary selection results.
Article 35.- Bidding dossiers
The bidding dossiers shall include:
1. The letter of bid invitation;
2. The bid form;
3. Instructions to bidders;
4. Preferential terms (if any);
5. Various kinds of tax as prescribed by law;
6. Dossiers of technical design enclosed with the quantitative prediction and technical instructions;
7. Construction tempo;
8. Evaluation criteria (including methods and measures of conversion to the same plane for determination of evaluation price);
9. General terms and specific terms of the contract;
10. Bid security form;
11. Contract form;
12. Contract performance security form.
Article 36.- Bid invitation letters or notices
A bid invitation letter or notice shall contain the following details:
1. The name and address of the bid solicitor;
2. The project outline, the construction location and time and other contents;
3. Instructions on inquiry into the bidding dossiers;
4. Conditions for participation in the bidding;
5. Time and place for receiving the bidding dossiers.
Article 37.- Instructions to bidders
The instructions to bidders shall include:
1. Brief project description;
2. Source of funds for project implementation;
3. Applicable technical standards;
4. Requirements on capabilities, experiences and legal status of bidders, evidences and information related to bidders within a reasonable period of time before their participation in the bidding;
5. Field trips (if any) and replies to inquiries of the bidders.
Article 38. - Bids
A construction and installation bid shall contain the following details:
1. Administrative and legal contents:
a) The valid application for bidding participation (with signature of the competent person);
b) The copy of the business registration paper;
c) Recommendatory documents evidencing the capabilities and experiences of the bidder, including the subcontractor (if any);
d) Written documents agreeing on the partnership (in case of partnership in bidding participation).
e) Bid security.
2. Technical contents:
a) Construction measures and organization for the bidding package;
b) Contract performance tempo;
c) Technical properties, sources of materials and construction materials supply;
d) Quality control measures.
3. The commercial and financial contents:
a) The bid price enclosed with explanation and detailed price index;
b) The financial conditions (if any);
c) The payment conditions.
Article 39. - Bid security
The construction and installation bid security shall comply with the goods procurement bid security prescribed in Article 28 of this Regulation.
Article 40. - Criteria for bid evaluation
The bid evaluation shall be carried out according to criteria on the following contents:
1. Technical matters and quality:
a) The bids' compatibility with the technical, equipment quality requirements stated in the bidding dossiers;
b) The rationality and feasibility of technical solutions as well as construction measures and organization;
c) Meeting requirements on environmental hygiene and others such as fire prevention, labor safety;
d) The capability to satisfy demand for construction equipment (their quantity, types, quality and mobilization tempo).
e) Quality control measures.
2. The bidders' capabilities and experiences:
a) The experiences in implementation of projects with similar technical requirements in similar geographical areas and locations.
b) The quantity and qualifications of officials, technical workers directly engaged in the project implementation;
c) The financial capability (turnovers, profits and other norms)
3. Finance and price: the capability to make
financial supply (when so requested), commercial and financial conditions, evaluation price.
4. Construction tempo:
a) The level of ensuring the general tempo stipulated in the bidding dossiers;
b) The rationality on the completion tempo among relevant project items.
Article 41.- Evaluation of bids
The evaluation of bids shall be carried out in the following order:
1. The preliminary evaluation: aims to do away with unqualified bids, including:
a) Checking the validity of bids;
b) Examining the bids' basic compatibility with the requirements stated in the bidding dossiers;
c) Clarifying bids (if necessary).
2. Detailed evaluation: The detailed evaluation of bids shall comply with the following two-step evaluation method:
a) Step 1: Making the technical evaluation so as to make the short list:
The technical evaluation is carried out on the basis of the evaluation requirements and criteria prescribed in the bidding dossiers and the detailed evaluation criteria approved by the competent person of the competent level before the bids opening. Those bidders who score at least 70% or more of the total technical points shall the included in the short list.
b) Step 2: The financial and commercial evaluation:
The financial and commercial evaluation of bidders on the short list is carried out on the same plane according to the approved evaluation criteria.
The financial and commercial evaluation to determine the evaluation price shall include the following contents:
- Mistake correction;
- Adjustment of discrepancies;
- Conversion of bid prices to the single currency;
- Putting them on the same plane for comparison;
- Determining the evaluation prices of bids.
3. Rating bids according to the evaluation prices and proposing to the bid winner the corresponding bid winning price.
Article 42.- Bidding results
1. Those bidders who have the valid bids, basically meet the requirements of the bidding dossiers, have the lowest evaluation price and have the proposed bid winning price not exceeding the bidding package prices or the approved cost estimates, total cost estimates (if the approved estimate, total cost estimate is lower than the approved bidding package price) shall be considered for bid winning.
2. The bidding results must be approved by the competent persons or the competent levels.
3. The bid solicitor shall invite the bid winner for negotiation on the finalization of the contract. In case of failure, the bid solicitor shall invite the next-rated bidder for negotiation, but with the approval of the competent person or the competent level.
Article 43.- Contract performance security
The construction and installation contract performance security shall comply with the goods supply contract performance security as prescribed in Article 32 of this Regulation.
Chapter V
BIDDING FOR SMALL-SCALE BIDDING PACKAGES
Article 44.- The principle for organizing the bidding
1. The principle of organizing the bidding shall apply to bidding packages stipulated in Clause 12, Article 3 of this Regulation on the basis of compliance with the objectives of the bidding work prescribed in Article 1 and the specific provisions in Article 45 of this Regulation.
2. The bidding for small-scale bidding packages shall be carried out under the following principles:
a) Only enterprises of various economic sectors (excluding enterprises being corporations or corporation members) stationing in provinces or centrally-run cities shall be allowed to participate therein. Where the number of local bidders able to participate therein is smaller than 3, enterprises outside the locality must be invited to participate therein. Where the bidding package contains complex technical requirements, corporation or corporation members shall be additionally invited to participate in the bidding;
b) Only the bidding mode of one dossier bag shall apply to all bidding packages.
Article 45.- Organization of bidding
1. The bidding order:
a) Compiling the bidding dossiers;
b) Dispatching bid invitation letters or notices;
c) Receiving bids, opening bids and evaluating and rating bidders;
The tasks of organizing the bidding prescribed in Points a, b and c of this Clause shall be performed by the bid solicitor or the hired specialists;
d) Approving the bidding results and signing contracts.
2. The bidding dossiers
The bidding dossiers prepared by the bid solicitor should be simple and clear but must contain all requirements on the bidders, including the following details:
a) The bid invitation letter and the form of application for participation in the bidding;
b) Requirements on the bidding packages:
- Goods procurement: Technical properties, technical instructions and implementation tempo.
- Construction and installation: The technical design dossiers enclosed with the approved estimate of work volume, technical instructions and
implementation tempo;
c) Evaluation criteria (passed or failed) for technical aspects according to the contents prescribed in Point b, Clause 2 of this Article;
d) Model form of bid guaranty and contract performance security.
3. Bids:
Bids prepared by bidders must ensure their truthfulness and feasibility, and include:
a) The application for participation in bidding; the copy of the business registration paper; bid security;
b) Technical solutions and implementation tempo;
c) Bid price.
4. Bid evaluation:
a) Only bids which are regular and have the post-error correction bid prices not larger than the approved bidding package prices shall be evaluated;
b) Evaluation shall be made according to the criteria specified in the bidding dossiers so as to determine bidders who satisfy the requirements stated in the bidding dossiers. Those bidders who satisfy the requirements stated in the bidding dossiers, meet the technical requirements and have the lowest bid prices (after the error correction and discrepancy readjustment as required by the bidding dossiers) shall be recommended as bid winners.
5. Bidding results:
a) The bidding results must be approved by the competent person or the competent level;
b) The bid solicitor shall invite the bid winner for finalization of the contract.
6. Bid security and contract performance security:
The bid security level of 1% of the bid price and the contract performance security level of 3% of the contract value shall apply, based on the contents defined in Articles 28 and 32 of this Regulation.
Chapter VI
BIDDING FOR SELECTION OF PARTNER TO PERFORM THE CONTRACT
Article 46.- Application principles
On the basis of the list of investment projects announced annually by the Government or initiative by the investors, a project with two or more partners being interested in performing it must be opened to bidding so that the competent person may have grounds to consider and select the partner for the performance of the project in the following form:
1. The project is being an idea;
2. The project has its pre-feasibility or feasibility study report approved;
3. Requirements on a number of jobs.
Article 47. - The order of organizing bidding for selection of partners to implement projects
Where there are 7 or more partners interested in implementing a project, a preliminary selection must be organized. The preliminary selection shall comply with the provisions in Clause 2, Article 23 or Clause 2, Article 34, of this Regulation.
The order of organizing bidding for selection partners to implement projects shall include the following steps:
1. Compiling the bidding dossier:
The bidding dossiers shall be compiled on the basis of the project requirements regarding their purposes, contents, scope of work and implementation tempo. A bidding dossier shall include the following contents:
a) Bid invitation letter;
b) Basic requirements of the project;
c) Instructions to bidders;
d) Relevant information;
e) Evaluation criteria;
f) Enclosed appendices.
2. Bid invitation:
The bid solicitor shall select ways of notification suitable to the forms of bidder selection.
3. Bid reception and management:
The bid solicitor shall receive and manage bids according to the provisions of law.
4. Bid opening.
5. Bid evaluation.
The bid evaluation shall be conducted by method of points giving. Those bidders who get 70% of the total points or higher shall be rated for submission to the competent persons for consideration and decision on the bid winner.
The bid evaluation and rating shall be conducted through the two following steps:
a) Preliminary evaluation: Bids are considered in term of their legality and compatibility with the requirements stated in the bidding dossiers.
b) Detailed evaluation and rating:
The detailed evaluation of bids is effected on the basis of the evaluation criteria specified in the bidding dossiers and the detailed evaluation criteria approved by the competent person or the competent level before
the opening of bids and in accordance with the following contents:
- Mistake correction;
- Detailed evaluation of the following factors: techniques, commerce, finance, technology transfer (if any);
- Rating of bidders.
6. Submitting the bidding results for approval.
7. Announcing the bid winner and negotiating the finalization of a contract:
Based on the bidding results already approved, the bid solicitor shall invite the bid winner for negotiation on the finalization of the contract.
8. Submitting the contract contents for approval in and signing the contract.
Article 48.- Bid security and contract performance security
Based on the nature of the project, the application of bid security or contract performance security shall be decided by the competent person in accordance with the provisions at Article 28 and Article 32 of this Regulation.
Chapter VII
THE STATE MANAGEMENT OVER BIDDING
Article 49.- Bodies in charge of the State management over bidding
1. The Government shall uniformly manage the bidding on the national scale.
2. The Ministry of Planning and Investment shall act as the coordinating body assisting the Government to perform the management over the bidding work.
3. The ministers, the heads of the ministerial-level agencies and the heads of the agencies attached to the Government shall exercise the State management over the bidding within their respective scope and responsibility, and at the same time appoint a vice-minister or a deputy of corresponding level (for the ministerial-level agencies and agencies attached to the Government) to personally direct the bidding work.
4. The presidents of the People's Committees of the provinces and centrally-run cities, the presidents of the People�s Committees of the districts, provincial capitals and the presidents of the People�s Committees of wards, communes, district townships shall exercise the State management over the bidding with regard to bidding packages under their respective, management, and at the same time appoint one of their deputies to personally direct the work of bidding.
Article 50.- The contents of the State management of the bidding
The contents of the State management over the bidding shall include:
1. Compiling and promulgating or submitting for promulgation the legal documents on bidding.
2. Guiding the implementation thereof.
3. Organizing the evaluation of the project's bidding plan and the appraisal of the bidding results.
4. Ratifying the project�s bidding plan and the bidding results.
5. Organizing the inspection of the work of bidding.
6. Reviewing, evaluating and reporting on the situation of bidding and observance of the Regulation on Bidding.
7. Settling problems and complaints about bidding.
Article 51.- Responsibilities of the competent persons or the competent level
1. To ratify the basic contents of the bidding process:
a) The project�s bidding plan;
b) The list of bidders in the restricted bidding;
c) The short list of consultancy bidders;
d) Dossier of invitation to preliminary selection, criteria for preliminary selection evaluation and results of preliminary selection of bidders;
e) The bidding dossier;
f) Criteria for evaluation of bids;
g) The list of bidders rated according their technical solutions and the general list of bidders rated according to their technical solutions and financial plans (for the selection of consultancy);
h) The bidding results;
i) The contents of the contract (the contract with foreign bidders or the contract with domestic bidders with the bidding results approved by the Prime Minister).
2. To direct the bid solicitor to negotiate, sign and organize the performance of the contract with the bid winner.
3. To inspect the observance of the Regulation on Bidding by the bid solicitor.
Article 52.- Assignment of responsibility for bidding
The approval responsibility in the course of bidding shall be effected according to the following principles:
- The person competent to approve the project shall have to approve the bidding plan of the project and the results of bidding for packages of great value.
- Assigning the responsibility to or authorizing the subordinate level to approve the results of bidding for packages of small value.
- Evaluation bodies and individuals participating in the evaluation shall bear responsibility for their evaluation comments.
The responsibilities of various levels shall be specified as follows:
1. The Prime Minister shall approve or authorize the approval of:
a) Plans on bidding for Group A projects and the like;
b) The results of bidding for bidding packages under the norms specified in Table 1 at Article 53 of this Regulation;
c) The proposal on appointed bidding, direct procurement, self-performance with regard to the bidding packages prescribed in Clauses 3, 5 and 6, Article 4 of this Regulation;
For Points a and b, Clause 1 of this Article, the Prime Minister shall approve them, based on the evaluation report of the Ministry of Planning and Investment and written comments of competent bodies concerned. Particularly for Point c, Clause 1, this Article, the Prime Minister shall approve them, based on the evaluation report of the Ministry of Planning and Investment and the written comments of the capital-supplying bodies as well as the competent bodies concerned.
d) Decisions on the inspection and handling of violations of the Regulation on Bidding.
2. The Minister of Planning and Investment shall have the responsibility to:
a) Evaluate for submission to the Prime Minister for approval:
- Plans on bidding for Group A projects and the like;
- The results of bidding for packages of Group A projects and the like under the norms specified in Table 1, Article 53 of this Regulation;
- The proposals on appointed biddings, direct procurement, self-performance with regard to bidding packages prescribed in Clause 3, 5 and 6, Article 4 of this Regulation.
b) Evaluate the results of bidding for other bidding packages at the request of the Prime Minister;
c) Approve (for projects under his/her licensing competence):
Plans on bidding for the project and the results of bidding for packages belonging to projects licensed for investment by the Ministry of Planning and Investment according to the provisions in Point b, Clause 2, Article 2 of this Regulation.
3. The ministers, the heads of the ministerial-level agencies and agencies attached to the Government, the Managing Boards of the State Corporations set up by the Prime Minister, and the presidents of the People's Committees of the provinces and centrally-run cities shall have the responsibility to:
a) Report or make written comments on the plans on bidding for projects of Group B and the like;
b) Submit for approval the results of bidding for bidding packages as prescribed or make written comments on the results of bidding for relevant packages under the approval competence of the Prime Minister;
c) Approve the basic contents of the bidding process:
- For bidding packages under projects of Group A and the like: Points b, c, d, e, f, g of Clause 1, Article 51 of this Regulation shall apply;
- For bidding packages under projects of Groups B, C and the like: Points a, b, c, d, e, f, g of Clause 1, Article 51 of this Regulation shall apply;
d) Approve the results of bidding for bidding packages under the norms specified in Table 1, Article 53 of this Regulation;
e) Approve the contract contents (as prescribed at Point b, Clause 1, Article 6 of this Regulation);
f) Approve (for projects under his/her licensing competence):
Plans on bidding for project mid results of bidding for bidding packages under the projects licensed for investment by him/-herself according to the provisions at Point b, Clause 2, Article 2 of this Regulation (based on the evaluation by the bodies assisting the bidding).
4. The presidents of the People's Committees of urban districts, provincial capitals, rural districts, district capitals, communes and wards shall have the responsibility to:
Approve the basic contents of the bidding process specified in Article 51 of this Regulation with regard to projects falling under their deciding competence, based on the evaluation comments of the relevant sections assisting the bidding.
5. The Managing Boards of the joint-venture enterprises and lawful representative s of the business cooperation shall have the following responsibilities with regard to projects prescribed at Point b, Clause 2, Article 2 of this Regulation:
a) To approve plans on the project's bidding, based on the written approval of the investment-licensing body;
b) To approve the results of bidding for all bidding packages under the project, based on the approval of the investment-licensing body;
c) To approve the basic contents of the bidding process prescribed at Points b, c, d, e, f, g, h of Clause 1, Article 51 of this Regulation;
d) To decide the appointed bidding, direct procurement, self-performance with regard to bidding packages prescribed in Clauses 3, 5 and 6, Article 4 of this Regulation, based on the approval of the investment-licensing body.
Article 53.- Division of responsibilities for approving and evaluating the bidding results
Based on the approved bidding package prices with regard to projects prescribed at Points a, c and e, Clause 2, Article 2 of this Regulation, the evaluation and approval of the bidding results shall comply with the Table 1 below:
Table 1: DIVISION OF RESPONSIBILITIES FOR APPROVAL AND EVALUATION OF BIDDING RESULTS
Project Group | Approval level | Evaluation level | Bidding packages of Branch I (billion VND) | Bidding packages of Branch II (billion VND) | Bidding packages of Branch III (billion VND) | |||
Consultancy | Goods procurement and construction installation | Consultancy | Goods procurement and construction Installation | Consultancy | Goods procurement and construction installation | |||
Prime Minister | Ministry of Planning and Investment | From 20 upward | From 100 upward | From 15 upward | From 75 upward | From 10 upward | From 50 upward | |
Group A and the like | Ministers, heads of agencies attached to the Government, Managing Boards of Corporations set up by the Prime Minister | The concerned assisting units | All bidding packages of under 20 | All bidding packages of under 100 | All bidd-ing packages of under 15 | All bidding packages of under 75 | All bidding packages of under 10 | All bidding packages of under 50 |
Presidents of the provinces and centrally-run cities | Provincial/municipal Planning and Investment Services | |||||||
Group B, C and the like | Ministers, heads of agencies attached to Government, Managing Boards of Corporations set up by the Prime Minister | The concerned assisting units | All bidding packages of under the project | |||||
Presidents of People�s Committees of provinces and centrally-run cities | Provincial/ municipal Planning and Investment Services | |||||||
Presidents of People�s Committees of districts, provincial capitals, district capitals, communes, and wards | Concerned assisting sections | Self deciding on and responsible for all bidding packages under the projects, which they have decided the investment in according to the provisions of law | ||||||
Notes:
- Branch I includes: power, petroleum, chemicals, machine tool, cement, metalurgical, mineral exploiting and processing, and communications (bridges, seaports, airports, railways, national highways) industries.
- Branch II includes: light industry, water conservancy, communications (other than those in group I), water supply and drainage, technical infrastructure projects, new urban zones, materials production, electronics and informatics, post and telecommunications.
- Branch III includes the rest.
Article 54.- Time-limit for evaluation of bids and appraisal of the bidding results
1. The time-limit for evaluation of bids, counted from the time of bids opening till the time of submitting the bidding results to the competent persons or the competent level for approval, shall not exceed 60 days for domestic bidding and 90 days for international bidding. Where the two-phase bidding mode is applied, the time-limit for bid evaluation shall be calculated from the time of opening bids in the second phase.
2. The time-limit for appraisal of the bidding results is stipulated as follows:a) For bidding packages under the deciding competence of the Prime Minister: Not more than 30 days from the date of fully receiving the valid dossiers.
b) For other bidding packages: Not more than 20 days from the date of fully receiving the valid dossiers.
Article 55.- Handling bidding circumstances
1. Where there is the reason to adjust the bidding package price or contents, the bid solicitor shall have to fill the procedures for adjusting the bidding plan according to the current regulations before submitting the bidding results for approval.
2. Where less than 3 bidders submit their bids, the bid solicitor shall have to report to the competent person or the competent level on the process of bidding preparation so that the latter decides to permit the prolongation of the time for bidding closure with a view to increasing the number of bids or to permit the opening of bids for evaluation of already submitted bids.
3. Where the offered prices of all bids, after being corrected arithmetically and supplemented or adjusted according to the requirements of the bidding dossier, exceed the bidding package price in the approved bidding plan, the bid solicitor shall have to report such to the competent person or the competent level that shall consider to permit bidders with bids meeting the basic requirements of the bidding dossiers to make new price offers and at the same time shall review the bidding package price in the approved bidding plan and the contents of the bidding dossiers (if necessary).
4. Where the price proposed for contract signing exceeds the bid winning price, the bid solicitor shall have to report such to the competent person (if the price proposed for contract signing exceeds the bidding package price) or the competent level (if the price proposed for contract signing is lower than the bidding package price) for consideration and decision.
5. Bidding cancellation shall apply to one of the following circumstances:
a) The objectives mentioned in the bidding dossier has changed due to objective reasons;
b) All bids have basically not met the requirements of the bidding dossier;
c) There is evidence showing that bidders have been in connivance, thus creating the unhealthy competition in bidding and affecting the interests of the bid solicitor.
Based on the decision of the competent person or the competent level, the bid solicitor shall have to notify all bidders of the cancellation of the bidding or reorganization of the bidding.
6. Where there are too bids with the equal best evaluation results (in terms of the number of points or the evaluation price), the bidder that has the lower bid price after it has been corrected arithmetically and supplemented or adjusted in accordance with the requirements of the bidding dossiers (except for cases prescribed in Clauses 5, 6 and 7 of Article 10 of this Regulation) shall be awarded the winning.
7. The bid elimination shall apply to one of the following cases where:
a) The bid fails to satisfy the preconditions stated in the bidding dossier;
b) The bid fails to satisfy the basic technical, tempo, financial and commercial requirements;
c) The bidder refuses to admit the arithmatic mistakes detected by the bid solicitor that requires the correction thereof or the bid contains other arithmatic mistake exceeding 15% of the bid price;
d) The bid has the discrepancy value exceeds 10% of the bid price.
Article 56.- Keeping secret dossiers, documents and information
All agencies, organizations and individuals participating in biddings and bid evaluation shall have to keep secret the dossiers, documents and information according to the following regulations:
1. Not to disclose contents of the bidding dossiers to any subjects before the date of distributing the bidding dossiers.
2. Not to disclose contents of bids, inscriptions in notebooks, minutes of meeting to consider bids, comments made by specialists or consultants on each bidder and other documents with "secret", "confidential"' or "top secret" seal.
3. Not to disclose the bidding results before the bid solicitor makes the announcement thereof.
4. Not to make contacts to exploit and/or trade in information on the evaluation of bids in the process of bid consideration.
All acts of secret disclosure must be promptly dealt with according to the provisions in Article 60 of this Regulation.
Article 57. - Bidding cost and fee
1. The bid solicitor may sell the bidding dossiers at the price decided by the competent person or the competent level; for domestic biddings, a set of bidding dossiers shall cost not more than VND500,000; for international biddings, the international practices shall apply; besides these, other fees and charges of any types must not be collected from the bidders. The use of the collected amounts shall comply with the provisions of law.
2. The costs of organizing the bidding and bid evaluation incurred by the bid solicitor shall be accounted into the general cost of the project, jointly prescribed by the Ministry of Finance, the Ministry of Construction and the Ministry of Planning and Investment.
3. The fee for appraisal of the bidding results shall be accounted into the general cost of the project and represent 0.01% of the total value of the bidding package, but shall not exceed VND30 million. The Ministry of Finance shall have to guide in detail the management and use of the bidding results appraisal fees.
Chapter VIII
INSPECTION AND HANDLING OF VIOLATIONS
Article 58.- Inspection of biddings
1. The Prime Minister shall decide the inspection and handling of violations on bidding in case of necessity.
2. The Ministry of Planning and Investment shall assume the prime responsibility together with the relevant ministries, branches and localities in inspecting the implementation of bidding throughout the country.
3. Relevant organizations assigned the responsibility to manage the biddings in ministries, branches and localities shall perform the function of inspection of the bidding within their respective branches or localities.
Article 59. - Contents and powers of the bodies in charge of the inspection of the bidding
1. The inspection of the bidding implementation shall be conducted as follows:
a) The regular inspections according to plans and irregular inspections in the bidding process;
b) Inspection of problems and complaints of organizations or individuals.
2. In the course of inspection, the inspection bodies shall have the following rights:
a) To request relevant organizations and individuals to fully supply documents and answer relevant matters;
b) To investigate, gather evidence and documents relating to inspection contents and objects and make reports thereon so that the competent person or the competent level can consider and decide the case;
c) To propose the competent person to handle violations on bidding according to the provisions in Article 60 of this Regulation.
Article 60.- Dealing with violations
1. Those who violate the Regulation on Bidding shall, depending on the seriousness of the violations, be administratively sanctioned or examined for penal liability according to the provisions of law.
2. Bidders who violate the Regulation on Bidding may, depending on the seriousness of the violations, be eliminated from the list of bidders, shall not be entitled to take back their bid security money and shall not be allowed to participate in any bidding for the period of from 1 to 3 years or shall be dealt with by law.
3. Those who abuse their positions and powers and violate the Regulation on Bidding such as disclosing secrets of dossiers, documents and information, connivance, bribery, fraudulence and other acts of violation shall, depending on the seriousness of the violations, be administratively disciplined or examined for penal liability according to the provisions of law.
4. Those who violate the Regulation on Bidding and cause damage shall have to compensate therefor according to the provisions of law.
Chapter IX
IMPLEMENTATION PROVISIONS
Article 61.- Organization of implementation
1. The Ministry of Planning and Investment shall assume the prime responsibility and coordinate with the Ministry of Finance, the Ministry of Trade, the Ministry of Construction, other ministries and branches as well as localities in guiding the implementation of this Regulation.
2. The Ministry of Finance shall assume the prime responsibility and coordinate with the relevant ministries and branches in guiding the implementation of bidding for the procurement of appliances, supplies, equipment and working facilities for State bodies, armed forces units, mass organizations and State enterprises using the State budget sources.
3. The Ministry of Labor, War Invalids and Social Affairs shall assume the prime responsibility and coordinate with the Ministry of Finance, the Ministry of Construction and other relevant ministries and branches in guiding the contents of the domestic consultancy costs, the wages of domestic specialists working under contracts with foreign bidders who win bids in Vietnam.
4. The Ministry of Justice shall assume the prime responsibility and coordinate with the relevant ministries and branches in guiding the handling of violations of the Regulation on Bidding.
5. The Ministry of Construction shall assume the prime responsibility and coordinate with relevant ministries and branches in defining preferences for domestic bidders.
6. The ministers, the heads of the ministerial-level agencies, the heads of the agencies attached to the Government and the presidents of the People's Committees of the provinces and centrally-run cities shall have to implement this Regulation and at the same time in December every year report on the results of implementation of the work of bidding during the year to the Ministry of Planning and Investment for sum-up and submission to the Prime Minister.
7. Any problems arising outside the contents prescribed in the Regulation on Bidding shall be reported by agencies and units to the competent persons or the competent levels for consideration and decisions.
ON BEHALF OF THE GOVERNMENT PRIME MINISTER Phan Van Khai |
(This translation is for reference only)
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