Chương I Luật đấu thầu 2023: Quy định chung

Chapter I

GENERAL PROVISIONS

Article 1. Scope

This Law provides for state management of bidding activities; powers and responsibilities of authorities, organizations and individuals in bidding activities; selection of contractors executing contract packages and selection of investors executing investment projects.

Article 2. Regulated entities

This Law applies to authorities, organizations and individuals participating or involved in bidding activities, including:

1. The selection of contractors which is funded by state budget as prescribed by the Law on state budget or lawful revenues of regulatory authorities and public sector entities for:

a) Executing investment projects or procurement cost estimates of regulatory authorities, political organizations, socio-political organizations, socio-political-professional organizations, socio-professional organizations, social organizations, affiliated units of people’s armed forces, public sector entities and other organizations and individuals;

b) Supplying public goods/services; supplying drugs, chemicals, test equipment and medical devices; supplying national reserve goods or providing storage services for national reserve goods, except direct purchase of goods/services from all sellers/suppliers as prescribed by the Law on national reserve;

c) Performing other tasks which require bidding as prescribed by relevant laws;

2. The selection of contractors for executing:

a) The packages of investment projects of state-owned enterprises as prescribed in the Law on enterprises and wholly state-owned enterprises;

b) The packages for supply of material - technical facilities, machines and equipment for science and technology development funded by science and technology development funds of state-owned enterprises;

3. The selection of investors for the following investment projects, including:

a) Investment projects involving land use which require bidding as prescribed by the Law on land;

b) Investment projects which require bidding as prescribed by specialized laws;

4. Organizations and individuals involved in bidding activities other than those specified in Clauses 1, 2 and 3 of this Article may apply all provisions or some specific Articles, Clauses and/or Points of this Law of their own free will.

Article 3. Application of the Law on Bidding, relevant laws and international conventions, agreements on official development assistance (ODA) and concessional loans of foreign donors

1. Bidding activities within the scope of this Law must comply with the provisions of this Law and other relevant laws. If any provisions of this Law are different from those of any law promulgated before the effective date of this Law, the former shall prevail, except the cases prescribed in Clauses 2 through 7 of this Article.

2. The selection of contractors for petroleum contracts shall comply with the Law on petroleum.

3. The selection of investors for executing investment projects in the form of public-private partnerships (PPP projects) and the selection of contractors for executing packages of PPP projects shall comply with the Law on PPP investment.

4. The selection of foreign contractors for executing overseas packages of Vietnamese missions abroad shall comply with the Law on representative missions of the Socialist Republic of Vietnam in foreign countries.

5. The selection of contractors for projects which are funded by the official development assistance (ODA) or concessional loans of foreign donors under international conventions to which the Socialist Republic of Vietnam is a signatory (hereinafter referred to as “international conventions") or foreign loan agreements shall comply with such international conventions or foreign loan agreements. If the international convention or foreign loan agreement does not provide for the contractor selection or states that the contractor selection is subject to the law of Vietnam, this Law shall apply.

The Government is required to obtain an approval from the Standing Committee of National Assembly before negotiating or deciding to enter into any loan agreement which is not an international agreement and whose provisions on bidding are different from those of this Law or are not included in this Law.

6. In case a package covers both the procurement governed by this Law and that governed by an international convention, the competent person may decide to apply that international convention to the selection of contractor for executing the procurement governed by this Law.

7. Authorities, organizations and enterprises may decide the contractor selection of their own free will but must ensure openness, transparency, economic efficiency and accountability in the following cases:

a) Selection of contractors for the packages funded by domestic sponsors on the condition that this Law shall not be applied to contractor selection; the packages of public sector entities funded by borrowed capital, except funding from State investment credit, on-lent from ODA or concessional loans of foreign donors;

b) Selection of contractors in foreign countries by regulatory authorities, public sector entities, state-owned enterprises, or wholly state-owned enterprises, except the cases in Clause 4 of this Article;

c) Leasing, purchase or lease purchase of housing, working offices or property attached to land;

d) Selection of suppliers of goods, consulting and non-consulting services for ensuring business continuity and procurement for maintaining regular activities funded by business budget of state-owned enterprises or wholly state-owned enterprises; selection of contractors for executing the packages of investment projects specified in Clause 3 Article 2 of this Law; selection of suppliers of consulting services, raw materials, supplies, fuels and/or non-consulting services which are directly used for executing the packages in which a public sector entity is the successful bidder;

dd) Determination of mediators, members of dispute settlement panels, arbitration councils by contracting parties to consider disputes that arise during the execution of their signed contracts;

e) Procurement of goods/services whose prices are set by the State in accordance with regulations of the Law on pricing;

g) Selection of suppliers of petroleum services and goods used for performing petroleum activities under petroleum contracts approved by competent authorities in accordance with the Law on petroleum.

Article 4. Definitions

For the purposes of this Law, the following terms shall be construed as follows:

1. “procuring entity” means an authority or organization carrying out bidding activities, including:

a) The employer or the organization established according to the employer's decision or selected by the employer;

b) Competent authorities that approve investment guidelines or decide to conduct bidding for investor selection; units assigned by such competent authorities to organize the investor selection.

2. “employer” means an authority or organization that has their own funds or borrowed funds or to whom funds are allocated to execute the project; a state budget-funded unit; a budget estimate unit that directly uses funding included in off-budget procurement cost estimate; or a centralized procurement unit.

3. “shortlist” means a list of pre-qualified bidders in case of competitive bidding with prequalification; a list of bidders/investors that are invited to bid in case of limited bidding; or a list of bidders whose expressions of interest (EOIs) meet the requirements laid down in the EOI request.

4. “consulting service” means any one or some of the following: preparation and assessment of architecture and development master plans or planning reports; survey and preparation of pre-feasibility study reports, proposals of investment guidelines, applications for approval of investment guidelines, feasibility study reports, technical - economic reports, environmental impact assessment reports; survey and preparation of designs and cost estimates; bidding consulting services; verification and appraisal consulting services; supervision consulting service; project management consulting service; financial arrangement consulting service; auditing and other consulting services.

5. “non-consulting service” means any one or some of the following: logistics, insurance, advertising, acceptance testing and commissioning, satellite imagery; printing; sanitation and cleaning; communications; repair, maintenance and other services which are not defined as consulting services in Clause 4 of this Article.

6. “investment project” (hereinafter referred to as “project”) means a new construction project or program; asset procurement project; renovation, upgrading and expansion project; planning project, task or scheme; technical assistance project; or another program or project as prescribed by laws.

7. “procurement cost estimate” means an estimate of procurement costs to be covered by funding allocated according to the state budget estimate approved by a competent authority to a regulatory authority, political organization, socio-political organization, socio-political-professional organization, socio-professional organization, social organization, affiliated unit of people’s armed forces, public sector entity or another organization or individual; or an estimate of procurement costs to be covered by lawful funds of a regulatory authority or public sector entity.

8. “bidding” means the process by which a qualified bidder will be selected to sign and execute a consulting service contract, non-consulting service contract, contract for supply of goods or construction contract or by which a qualified investor will be selected to sign and execute a project contract in a manner that ensures competitiveness, fairness, transparency, economic efficiency and accountability.

9. “online bidding” means the bidding process in which all bidding activities are carried out on Vietnam E-Procurement System (VNEPS).

10. “international bidding” means the bidding process with the participation of both domestic and foreign bidders or investors.

11. “domestic bidding” means the bidding process with the participation of only domestic bidders or investors.

12. “bid price” means the price stated in the bidder's letter of bid, including all costs associated with the execution of the package and fulfillment of all requirements laid down in the bidding documents or the request for proposals (RFP).

13. “proposed successful bid price” means the bid price of the proposed successful bidder after completing error correction and/or deviation adjustment, as prescribed in the bidding documents or RFP, and deducting discounts (if any).

14. “contract price” means the price specified in the contract signed by and between the employer and the contractor.

15. “package” means a part of or the entire project or procurement cost estimate. The package may cover the same procurement of different projects or one-off purchase quantity or purchase quantity for a given period of the procurement cost estimate, or centralized procurement.

16. “mixed package” means one of the following packages: engineering and procurement (EP); engineering and construction (EC); procurement and construction (PC); engineering, procurement and construction (EPC); project preparation, engineering, procurement and construction (turnkey project).

17. “Goods” include machinery, equipment, raw materials, fuels, supplies and spare parts; products; facilities; consumable goods drugs, chemicals, test equipment and medical devices; commercial software.

18. “Vietnam E-Procurement System (VNEPS)” means an information technology system which is developed and managed by regulatory authorities in charge of bidding activities (hereinafter referred to as “bidding authorities”) for consistently managing bidding information and carrying out online bidding activities.

19. “EOI request or prequalification document” means a set of documents which are used in the competitive bidding with invitation for EOIs or prequalification applications, indicating capacity and experience requirements to be satisfied by bidders, as the basis for the procuring entity to compile the list of pre-qualified bidders or the list of bidders whose EOIs are assessed responsive to the EOI request. In case of investor selection, the EOI request includes all documents used in the project requiring determination of the number of interested investors in accordance with regulations of the Law on land and/or specialized laws, indicating preliminary capacity and experience requirements to be satisfied by investors.

20. “expression of interest (EOI) or prequalification application” means a set of documents prepared and submitted by a bidder to the procuring entity in accordance with requirements laid down in the EOI request or prequalification document. In case of investor selection, the application for project execution includes all documents prepared and submitted by an investor in accordance with requirements laid down in the EOI request.

21. “bidding documents” means all documents used in competitive bidding, limited bidding or shopping, indicating requirements for a project, package or investment project, as the basis for bidders/investors to prepare their bids and for the procuring entity to organize the bid evaluation.

22. “request for proposals (RFP)” means a set of documents used in direct contracting, direct procurement or price negotiation, indicating requirements for a package, as the basis for bidders to prepare their proposals and for the procuring entity to organize the evaluation of received proposals.

23. “bid or proposal” means a set of documents prepared and submitted by a bidder or investor to the procuring entity in accordance with requirements laid down in the bidding documents or RFP.

24. “competent person” means the person who issues the investment decision or the procurement decision as prescribed by laws. In case of investor selection, the competent person is the head of the competent authority that approves the investment guidelines in accordance with regulations of the Law on investment or that makes a decision to conduct bidding for investor selection.

25. “investor” means an organization or individual that acts as a bidder, has their name specified in the letter of bid, and will directly sign and execute the contract, if winning the bid. An investor may participate in the bidding as an independent investor or a consortium member. During the bidding process, investors are referred to as “bidders”.

26. “contractor” means an organization or individual or a group of organizations or individuals coming together under a consortium agreement that acts as a bidder, has their name specified in the letter of bid, and will directly sign and execute the contract, if winning the bid. In case of a consortium, the consortium agreement must clearly state responsibilities of the lead member, joint responsibilities and specific responsibilities of each member of the consortium for the entire scope of the package. During the bidding process, contractors are referred to as “bidders"

27. “subcontractor” means an organization or individual that is subcontracted by the contractor to perform construction tasks; provide consulting or non-consulting service; provide any part of the related services of the supply of goods package; or perform tasks of a mixed package.

28. “specialist subcontractor” means a subcontractor that will perform important tasks of the package as proposed by the bidder in their bid or proposal in accordance with capacity and experience requirements laid down in the bidding documents or RFP.

29. “foreign contractor or foreign investor” means an organization duly established under the law of a foreign country or an individual holding a foreign nationality when submitting their bid.

30. “domestic contractor or domestic investor” means an organization duly established under the law of Vietnam or an individual holding Vietnamese nationality when submitting their bid.

31. “deadline for submission of bids” means the last date and time for receipt of EOIs, prequalification applications, bids or proposals.

32. “validity period” of a bid or proposal means the number of days specified in the bidding documents or RFP, commencing on the deadline for submission of bids till the last day of validity specified in the bidding documents or RFP. The length of time starting from the deadline for submission of bids to the end of 24 hours of the day in which this deadline is set shall be counted as 01 day.

33. “construction” means a range of tasks carried out in connection with the construction and installation of a construction work or work item.

Article 5. Eligibility of bidders or investors

1. A bidder or investor that is an organization shall be deemed to be eligible if meeting the following requirements:

a) A domestic bidder or investor must be an enterprise, cooperative, cooperative union, artel, public sector entity or foreign-invested business organization that is duly established and operating under the law of Vietnam. A foreign bidder or investor must be duly established and operating under the law of a foreign country;

b) It must keep independent accounting records;

c) It is not undergoing dissolution process or subject to revocation of enterprise registration certificate, cooperative/cooperative union/ artel registration certificate; is not facing insolvency as prescribed by the law on bankruptcy;

c) Its name is registered on VNEPS before the grant of approval for contractor or investor selection result;

dd) It must ensure competitiveness in bidding as prescribed in Article 6 of this Law;

e) It is not being prohibited from participating in bidding according to a decision issued by a competent person, Minister, head of ministerial agency, Governmental agency or another central-government agency, or Chairperson of the provincial-level People’s Committee as prescribed in Clause 3 Article 87 of this Law;

g) It is not liable to criminal prosecution;

h) Its name is included in the shortlist in case the shortlist has been made available;

i) A foreign bidder is requested to enter into a consortium with a domestic bidder or will subcontract domestic bidders, unless domestic bidders are incapable of performing any tasks of the package.

2. A bidder that is a household business shall be deemed to be eligible if meeting the following requirements:

a) It has a valid certificate of household business registration issued in accordance with regulations of law;

b) It is not undergoing the process of operation termination or subject to revocation of certificate of household business registration; the owner of the household business is not liable to criminal prosecution;

c) It meets the requirements laid down in Points d, dd, e and h Clause 1 of this Article.

3. A bidder or investor that is an individual shall be deemed to be eligible if meeting the following requirements:

a) He/she has full capacity for civil acts in accordance with regulations of the law of the country whose citizenship he/she is holding;

b) He/she possesses appropriate professional certificate(s) if required by laws;

c) He/she meets the requirements laid down in Points e and g Clause 1 of this Article.

4. A bidder or investor that meets the eligibility requirements laid down in Clause 1, 2 or 3 of this Article may participate in the bidding as an independent bidder or consortium bidder.

Article 6. Ensuring competitiveness in bidding

1. When submitting their EOI or prequalification application, a bidder is required to display their legal and financial independence from the following:

a) Consultants on preparation of EOI request or prequalification document, project management consultants, supervision consultants; consultants on preparation, verification and appraisal of design and cost estimation documents; consultants on preparation and appraisal of survey and design tasks;

b) Consultants on evaluation of EOIs or prequalification applications;

c) Consultants on appraisal of EOI selection results or prequalification results;

d) Employer, procuring entity, unless the bidder is a public sector entity that is affiliated to a regulatory authority and has functions and tasks assigned in conformity with the nature of the package of that regulatory authority or is an associate or subsidiary company of a state-owned group or corporation whose main business lines are conformable with the nature of the package of its parent company.

2. When submitting their bid, a bidder is required to display their legal and financial independence from the entities specified in Point d Clause 1 of this Article and from the following:

a) Project management consultants, supervision consultants; consultants on preparation, verification and appraisal of design and cost estimation documents; consultants on preparation and appraisal of survey and design tasks; consultants on preparation and appraisal of bidding documents, RFP; consultants on evaluation of bids, proposals; consultants on appraisal of contractor selection result for the same package;

b) Other bidders of the same package in case of limited bidding.

3. The consultant on supervision of contract execution, the bidder for the contract and the consultant on inspection of the same package must be legally and financially from each other.

4. The bidders in Clauses 1, 2 and 3 of this Article are considered to have legal and financial independence when meeting the following requirements:

a) The bidder is not affiliated to the same governing authority or organization with the public sector entity;

b) Neither the bidder nor the employer/procuring entity holds more than 30% of shares or stakes of each other;

c) In case of limited bidding, none of the bidders for the same package holds more than 20% of shares or stakes of each other;

d) None of the bidder and consultants for the same package holds shares or stakes of each other; the bidder and any of these consultants do not jointly hold more than 20% of shares or stakes of another entity.

5. When participating in the bidding, an investor is required to display their legal and financial independence from the following:

a) The competent authority, the procuring entity;

b) Consultants on preparation and appraisal of bidding documents; consultants on evaluation of bids; and consultants on appraisal of investor selection result until the day on which the investment project contract is signed.

6. The Government shall elaborate this Article.

Article 7. Bidding information

1. Information on contractor selection includes:

a) Information on the contractor selection plan or project;

b) Invitation for EOIs or invitation for prequalification applications;

c) Invitation for bid;

d) Shortlist;

dd) EOI request, prequalification document, bidding documents, and any addenda or responses to requests for clarification thereof;

e) Bid opening results in case of online bidding;

g) Contractor selection result;

h) Main contents of the contract;

i) Actions against violations of the bidding law;

k) Information on the contractor’s performance;

l) Other relevant information.

2. Information on investor selection includes:

a) Information on the investment project as prescribed in Clause 2 Article 47 of this Law;

b) Invitation for EOIs, EOI request; EOI selection results;

c) Invitation for bid, bidding documents and any addenda or responses to requests for clarification thereof;

d) Investor selection results;

dd) Main contents of the contract;

e) Actions against violations of the bidding law;

g) Other relevant information.

3. The information in Clauses 1 and 2 of this Article must be published on the VNEPS, except the information on projects, investment projects or packages classified as state secrets.

Article 8. Provision and publishing of bidding information

1. Responsibility to publish information on contractor selection:

a) The employer shall publish the information specified in Points a, g, h, i and k Clause 1 Article 7 of this Law;

b) The procuring entity shall publish the information specified in Points b, c, d and dd Clause 1 Article 7 of this Law; In case of international bidding, the procuring entity shall publish the information specified in Points b, c and d Clause 1 Article 7 of this Law in both Vietnamese and English; the information specified in Point dd Clause 1 Article 7 of this Law may be published in either English or both Vietnamese and English;

c) The contractor shall update and publish information on their capacity and experience on the contractor database, including the information specified in Point k Clause 1 Article 7 of this Law.

2. Responsibility to publish information on investor selection:

a) The competent authority shall publish the information specified in Points a, b and e Clause 2 Article 7 of this Law;

b) The procuring entity shall publish the information specified in Points c, d and dd Clause 2 Article 7 of this Law. In case of international bidding, the procuring entity shall publish such information in both Vietnamese and English.

3. The organizations and individuals that provide and publish the information specified in Clauses 1 and 2 of this Article shall assume legal responsibility for the accuracy and truthfulness of the information registered and published on VNEPS as well as the consistency of documents published with those approved.

4. The information specified in Points a, d, g, h, I Clause 1 and Points a, d, dd, e Clause 2 Article 7 of this Law must be published on VNEPS within 05 working days from the day on which the relevant document is issued or the contract becomes effective.

Article 9. Processing and retention of documents during contractor/investor selection

1. The financial proposal of a bidder that failed the evaluation of technical proposals shall be returned unopened to that bidder within the following time limits:

a) Regarding a package for consulting services: within 10 days from the day on which the contract is signed with the successful bidder;

b) Regarding a package for non-consulting services, procurement of goods, or construction, or a mixed package for which the contractor is selected adopting the single-stage two-envelope bidding procedure: when the bid security is returned or released to the unsuccessful bidders or when the contractor selection result is published.

2. The financial proposal of investors that failed the evaluation of technical proposals shall be returned unopened to them when bid security is returned or released to unsuccessful investors or when the investor selection result is published.

3. Upon the expiry of the time limit specified in Clause 1 and Clause 2 of this Article, if the bidder or investor fails to receive their technical proposals, the procuring entity shall consider deciding to destroy such proposals in a manner that ensures the confidentiality of information therein.

4. In case of bid cancellation, all relevant documents shall be retained for at least 05 years from the issue date of the bid cancellation decision.

5. Settlement documents, as-built dossiers and other documents concerning the successful bidder of the package shall be retained in accordance with regulations of the Law on archives.

6. All documents concerning the contractor/investor selection shall be retained for at least 05 years from the date of contract settlement or the date of termination of the investment project contract, except the documents specified in Clauses 1, 2, 4 and 5 of this Article.

Article 10. Incentives in contractor and investor selection

1. Subjects eligible for incentives in contractor selection:

a) Originating goods of Vietnam;

b) Eco-friendly products and services as prescribed by the Law on environmental protection;

c) Domestic bidders that produce originating goods of Vietnam meeting the requirements laid down in bidding documents;

d) Foreign bidders and domestic bidders coming together under a consortium agreement in which the domestic bidders take charge of at least 25% of total value of tasks of the package;

dd) A domestic bidder that submits a bid as an independent bidder or forms a consortium with other domestic bidders to participate in an international bidding;

e) Bidders that are microenterprises or small enterprises as prescribed in the Law on assistance for small and medium-sized enterprises;

g) Bidders that are startups as prescribed by laws;

h) A bidder that employs the number of female workers, wounded soldiers and people with disabilities, or ethnics, each accounting for at least 25% of their total employees.

2. Incentives in contractor selection:

a) In case where bidders are equally evaluated, the bidder eligible for incentives (eligible bidder) shall be ranked higher than those ineligible for incentives (ineligible bidder);

b) Extra points shall be given to the eligible bidder in case bidders are evaluated and ranked adopting the fixed-price method, technical-based evaluation method, or combined technical and price method;

c) An amount of money shall be added to the bid price or evaluated price of the ineligible bidder in case bidders are evaluated and ranked adopting the lowest-price method or lowest-evaluated price method;

d) Evaluation of capacity, experience and other criteria of eligible bidders shall be given priority during the evaluation of bids;

dd) Bidders that are microenterprises or small enterprises shall be given priority in bidding for construction packages whose price does not exceed VND 05 billion. Upon completion of the bidding process, if none of microenterprises and small enterprises meets the requirements of the package, a new bidding process shall be organized with the participation of other enterprises.

3. Application of incentives in contractor selection:

a) The entities specified in Points a, b, c and g Clause 1 of this Article shall be given incentives as prescribed in Point b or Point c Clause 2 of this Article when they participate in packages for procurement of goods or mixed packages;

b) The entities specified in Points d and dd Clause 1 of this Article shall be given incentives as prescribed in Point b or Point c Clause 2 of this Article when they participate in international bidding for packages for consulting services, non-consulting services, construction or mixed packages;

c) The entities specified in Point h Clause 1 of this Article shall be given incentives as prescribed in Point a Clause 2 of this Article when they participate in domestic bidding for packages for consulting services, non-consulting services, construction or mixed packages;

d) The entities specified in Point e Clause 1 of this Article shall be given incentives as prescribed in Points a and dd Clause 2 of this Article when they participate in domestic bidding for construction packages;

dd) In addition to the incentives in Points b and c Clause 2 of this Article, the bidders specified in Points c and g Clause 1 of this Article shall also be entitled to the incentives prescribed in Point b Clause 2 of this Article when they participate in domestic bidding for packages for consulting services, non-consulting services, procurement of goods, construction or mixed packages;

e) In case of domestic bidding for a procurement package, the employer may decide whether to require inclusion of a domestic good in bids if such good can be manufactured by at least 03 domestic manufacturers satisfying technical, quality and price requirements.

4. Investors eligible for incentives in investor selection:

a) Investors that apply technological solutions for reducing environmental pollution to their projects which pose high risk of adverse environmental impacts as prescribed by the Law on environmental protection;

b) Investors that commit to make transfer of technologies included in the List of priority high technologies as prescribed by the Law on high technologies or the List of technologies of which the transfer is encouraged as prescribed by the Law on technology transfer.

5. Incentives in investor selection:

a) In case where investors are equally evaluated, the investor eligible for incentives shall be ranked higher than those ineligible for incentives;

b) Extra points shall be given to eligible investors during evaluation and ranking of their bids.

6. The Government shall elaborate this Article.

Article 11. International bidding

1. International bidding may be organized if one of the following conditions is satisfied:

a) The international bidding is requested by the donor that finances the project or package under an international convention or loan agreement;

b) In case of a package for consulting services, non-consulting services, construction or mixed package, none of the domestic bidders meets the requirements of the package, or the domestic prequalification or EOI procedure or competitive bidding for the package has been held but none of prequalification applications, EOIs or bids is received;

c) In case of a consulting service package in which the competent person believes that the participation of foreign bidders is necessary for improving the quality of the package or project, the competent person decides to organize international bidding and assumes responsibility for his/her decision;

d) In case of a procurement package, the good to be procured cannot be domestically manufactured or none of domestic manufacturers of such a good satisfies all technical, quality and price requirements. If the good to be procured is a common good which has been imported and sold in Vietnam, the organization of international bidding is not allowed.

2. International bidding shall be organized for selecting qualified investors for the investment projects specified in Clause 3 Article 2 of this Law, except the following cases:

a) Projects involving business lines from which foreign investors are prohibited as prescribed by the Law on investment;

b) Projects for which the domestic bidding is compulsory for the purposes of national defense and security, social order and security;

c) Projects located in land areas or sea areas the use of which is restricted to foreign investors and foreign-invested business organizations as prescribed by the Law on land and relevant laws;

d) Projects with a total investment of less than VND 800 billion;

dd) Projects other than those specified in Points a, b, c and d of this Clause for which the invitation for EOI under international bidding has been sent but no EOIs are received from foreign bidders.

Article 12. Language used in bidding

1. Language used in bidding shall be Vietnamese.

2. The language used in international bidding shall be English or both Vietnamese and English. In case the EOI request, prequalification document, bidding documents or RFP is made in Vietnamese and English, bidders or investors may submit their bids either in Vietnamese or English.

Article 13. Currencies of bid

1. In case of domestic bidding, bidders or investors shall be allowed to quote their bids in VND only.

2. In case of international bidding:

a) The bidding documents or RFP shall indicate the specific currencies to be used in the bids or proposals but no more than 03 currencies shall be allowed;

b) If bidders or investors are allowed to quote their bids in 02 or 03 various currencies as prescribed in bidding documents, conversion into a single currency shall be required when conducting the bid evaluation. If such currencies include VND, conversion into VND is required. The currency of conversion, time and basis for determining the exchange rate must be included in the bidding documents;

c) Costs incurred in Vietnam in association with the execution of a package, project or investment project shall be quoted in VND;

d) Costs incurred in a foreign country in association with the execution of a package, project or investment project shall be quoted in the local currency of that country, VND.

Article 14. Bid security

1. Bidders or investors shall furnish bid securities in one of the following forms in order to ensure their fulfillment of responsibilities for a period specified in the bidding documents:

a) Pay a deposit;

b) Submit a letter of guarantee issued by a domestic credit institution or foreign bank branch lawfully established under the law of Vietnam; or

c) Submit a certificate of surety bond insurance issued by a domestic non-life insurer or branch of a foreign non-life insurer duly established under the law of Vietnam.

2. The submission of bid security is required in the following cases:

a) Competitive bidding, limited bidding or shopping for a consulting service, procurement, construction or mixed package;

b) Competitive bidding or limited bidding for investor selection.

3. Bid securities must be furnished prior to the deadline for submission of bids specified in the bidding documents. In case of two-stage bidding procedure, bidders or investors shall furnish bid securities in the second stage.

4. Depending on the scale and nature of each project, investment project or package, the amount of bid security specified in the bidding documents shall be:

a) 1% - 1,5% of the price of a construction or mixed package whose price does not exceed VND 20 billion or of a procurement or non-consulting service package whose price does not exceed VND 10 billion;

b) 1,5% - 3% of the price of a package other than that specified in Point a of this Clause; or

c) 0,5% - 1,5% of total investment of the investment project for which the bidding is conducted for investor selection.

5. The validity period of bid security is specified in the bidding documents and equals the bid validity period plus 30 days.

6. In case the validity period of a bid is extended after the deadline for submission of bids, the procuring entity shall request the bidder or investor whose bid is extended to extend the validity period of their bid security for a corresponding additional period. In this case, the bidder or investor shall follow procedures for extending the validity period of their bid security for a corresponding additional period and shall not be permitted to modify their bid. If the bidder or investor refuses to extend the validity period of their bid security, their bid shall be considered invalid and rejected. The procuring entity shall return or release the bid security to the bidder or investor within 14 days from the day on which the procuring entity receives the bidder or investor’s written refusal.

7. In case of a consortium, each consortium member may furnish a separate bid security or reach an agreement to appoint a member to provide bid securities for that member and all other members of the consortium. Total value of bid securities shall not be lower than the amount of bid security specified in the bidding documents. If any member of the consortium commits violations as prescribed in Clause 9 of this Article, the bid securities of all consortium members shall not be returned.

8. The procuring entity shall return or release bid securities to unsuccessful bidders or investors within the time limit specified in the bidding documents which shall not exceed 14 days from the date of approval of the contractor or investor selection result. The bid security shall be returned or released to the successful bidder or investor after the contract becomes effective.

9. The bid security may be forfeited in the following cases:

a) After the deadline for submission of bids and during the validity period of the bid, the bidder or investor withdraws their bid or gives a written refusal to perform one or some tasks proposed in their bid in accordance with the requirements laid down in the bidding documents;

b) The bidder or investor performs any of the prohibited acts specified in Article 16 of this Law or commits violations of the bidding law resulting in bid cancellation as prescribed in Points d, dd Clause 1, Points d, dd Clause 2 Article 17 of this Law;

c) The successful bidder or investor fails to furnish the required performance security as prescribed in Article 68 and Article 75 of this Law;

d) The successful bidder fails or refuses to negotiate the contract (if any) within 05 working days in case of domestic bidding, or within 10 working days in case of international bidding, from the receipt of the invitation for contract negotiation, or, after the contract negotiation has been carried out, refuses to complete the contract and sign the contract negotiation record, except force majeure events;

dd) The successful bidder fails or refuses to carry out the completion of contract or framework agreement within 10 days, in case of domestic bidding, or within 20 days in case of international bidding, from the receipt of the notice of acceptance from the procuring entity, except force majeure events;

e) The successful bidder fails or refuses to sign the contract or framework agreement within 10 days, in case of domestic bidding, or within 20 days in case of international bidding, from the date of completion of that contract or framework agreement, except force majeure events;

g) The successful investor fails or refuses to carry out the completion of contract within 15 days, in case of domestic bidding, or within 30 days in case of international bidding, from the receipt of the notice of acceptance from the procuring entity, except force majeure events;

h) The successful investor fails or refuses to sign the contract within 15 days, in case of domestic bidding, or within 30 days in case of international bidding, from the date of completion of that contract, except force majeure events.

10. In case bidders or investors commit violations of the bidding law resulting in forfeiture of their bid securities and/or performance securities as prescribed in Clause 9 of this Article, Clause 6 Article 68 and Clause 4 Article 75 of this Law, amounts of bid securities and/or performance securities forfeited shall be used according to the following provisions:

a) Regarding projects or packages funded by state budget, these amounts shall be paid to state budget in accordance with regulations of the Law on state budget;

b) Regarding projects or packages not funded by state budget, or investment projects, these amounts shall be used according to financial regulations adopted by employers or competent authorities;

c) If the procuring entity is a bidding consultant selected by the employer, these amounts shall be paid to the employer. The employer shall manage and use these amounts in accordance with Points a and b of this Clause.

Article 15. Costs associated with contractor/investor selection

1. Costs associated with the contractor selection:

a) RFP, bidding documents used in domestic bidding, EOI request and prequalification document are issued free of charge on VNEPS;

b) Bidding documents used in international bidding shall be issued on VNEPS; bidders shall make payment for purchase of electronic forms of the bidding documents when submitting their bids;

c) Employers/procuring entities shall incur costs of publishing bidding information and other costs associated with the contractor selection;

d) Bidders shall incur costs of preparing their EOIs, prequalification applications, bids, proposals, and participating in bidding, and settling bidding-related petitions (if any).

2. Costs associated with the investor selection:

a) EOI request and bidding documents used in domestic bidding are issued free of charge on VNEPS;

b) Bidding documents used in international bidding shall be issued on VNEPS; investors shall make payment for purchase of electronic forms of the bidding documents when submitting their bids;

c) Procuring entities shall incur costs of publishing information on investor selection and other costs associated with the investor selection;

d) Investors shall incur costs of preparing their applications for project execution and bids, and participating in bidding, and settling bidding-related petitions (if any).

3. The Government shall elaborate this Article.

Article 16. Prohibited acts in bidding

1. Offering, giving, receiving or taking a bribe.

2. Abusing positions or entrusted power to influence or illegally intervene in bidding process in any form.

3. Collusive practice, including:

a) Reaching, with or without undue influence, an arrangement or agreement which is designed to let one or more parties to prepare bids for all bidders or to withdraw submitted bids so that one of them will win the bid;

b) Reaching an arrangement or agreement on refusal to supply goods or services, or subcontract, or reaching other agreements to limit competition so that one party will win the bid;

c) A bidder or investor with appropriate qualifications and experience has submitted a bid and meets the requirements laid down in the bidding documents but deliberately refuses to provide additional documents proving their capacity and experience at the procuring entity’s request for clarification of the bid or verification of their submitted documents with the aim of facilitating one party’s winning of the bid.

4. Fraudulent practice, including:

a) Forging or falsifying information and/or documents used in bidding;

b) Deliberately providing information and documents which are not accurate or objective in EOIs, prequalification applications, applications for project execution, bids or proposals with the aim of falsifying the contractor/investor selection result.

5. Obstructive practice, including:

a) Destroying, deceiving, altering or concealing of evidence or making false statements; threatening, harassing or intimidating any party to prevent the verification or investigation into a corrupt, fraudulent or collusive practice made with a supervision, inspection or audit authority;

b) Obstructing the competent person, employer, procuring entity, bidders (or investors) in the course of contractor (or investor) selection;

c) Impeding competent authorities’ rights of supervision, inspection or audit of bidding activities;

d) Deliberately making false complaints, denunciations or petitions with the aim of impeding bidding process;

dd) Acts of violation against laws and regulations on cybersecurity and safety intended to intervene or impede the online bidding process.

6. Inequality and non-transparency, including:

a) A bidder or investor of a package or investment project is also the procuring entity or employer or takes charge of performing tasks of the procuring entity or employer of that package or investment project;

b) A person or entity concurrently engages in the preparation and appraisal of EOI request, prequalification document, bidding documents, or RFP of the same package or investment project;

c) A person or entity concurrently engages in the evaluation of bids or proposals and the appraisal of the contractor or investor selection result of the same package or investment project;

d) A person who is working for the procuring entity/employer directly engages in the contractor/investor selection, or acts as a member of the expert team or appraising team in charge of appraising the contractor/investor selection result, or is a competent person or head of the procuring entity/employer, for a package or investment project for which his/her family relative, as defined in the Law on enterprises, directly submits a bid or acts as the legal representative of a bidder or investor;

dd) A bidder submits a bid for a procurement, construction or non-consulting service package for which the bidder is also acting as a consultant on preparation, verification and appraisal of cost estimate, technical design, building drawings and designs, front-end engineering design (FEED); preparation and appraisal of prequalification document or bidding documents; evaluation of prequalification applications or bids; inspection of goods; appraisal of contractor selection result; supervision of contract execution;

e) A person acts as a bidder for a package of a project or investment project of the procuring entity or employer for which he/she worked and held the executive or managerial position within 12 months from the date of his/her resignation therefrom;

g) A supervision consultant also acts as the inspection consultant of the same package;

h) Failure to meet relevant requirements laid down in this Law when adopting a method other than the competitive bidding to the contractor/investor selection;

i) Inclusion of specific brand and/or origin requirements in the bidding documents for a procurement or construction or mixed package under the competitive bidding, limited bidding or shopping method, except the provisions of Point e Clause 3 Article 10, Clause 2 Article 44 and Clause 1 Article 56 of this Law;

k) Bidding documents impose conditions that limit the participation of bidder(s) or investor(s) or give advantage for one or some bidders or investors resulting in unfair competition or violation of the Clause 3 Article 44 and Clause 2 Article 48 of this Law;

l) Slitting a project or procurement cost estimate into a series of packages for the purpose of direct contracting or with the aim of limiting the participation of bidders.

7. Unauthorized disclosure of the following information and documents on the contractor/investor selection, except the cases specified in Point b Clause 8 and Point g Clause 9 Article 77, Clause 11 Article 78, Point h Clause 1 Article 79, Clause 4 Article 80, Clause 4 Article 81, Clause 2 Article 82, Point b Clause 4 Article 93 of this Law, including:

a) Contents of EOI request, prequalification document, bidding documents or RFP before they are issued as prescribed;

b) Contents of EOIs, prequalification applications, applications for project execution, bids or proposals; the procuring entity’s clarification requests and responses from bidders or investors during the evaluation of EOIs, prequalification applications, applications for project execution, bids or proposals; reports of the procuring entity or expert team, appraisal reports, reports of consultants and other relevant specialized agencies during the contractor/investor selection; records or minutes of bid evaluation meetings, opinions or comments on each EOI, prequalification application, application for project execution, bid or proposal before they are disclosed as prescribed;

c) The contractor/investor selection result before it is disclosed as prescribed;

d) Other documents issued or obtained during the contractor/investor selection and certified to contain state secrets as prescribed by law.

8. Illegal transfer of awarded contract, including the following cases:

a) The contractor transfers a volume of tasks of the package worth more than the maximum value of tasks to be subcontracted and those tasks to be undertaken by specialist subcontractor(s) under the signed contract;

b) The contractor transfers a volume of tasks of the package whose value does not exceed the maximum value of tasks to be subcontracted under the signed contract but beyond the scope of tasks to be subcontracted specified in the bid or proposal without obtaining a prior consent from the employer or supervision consultant;

c) The employer/supervision consultant gives consent to the contractor’s transfer of tasks as prescribed in Point a of this Clause;

d) The employer/supervision consultant gives consent to the contractor’s transfer a volume of tasks as prescribed in Point b of this Clause which is worth more than the maximum value of tasks to be subcontracted under the signed contract.

9. The contractor selection is conducted before determining funding sources as prescribed in Clause 3 Article 39 of this Law.

Article 17. Bid cancellation

1. In case of contractor selection, bid cancellation shall occur when:

a) all EOIs, prequalification applications, bids or proposals are considered substantially nonresponsive to the EOI request, prequalification document, bidding documents or RFP;

b) there are changes in the objectives and scope of investment specified in the investment decision resulting in changes in volume of tasks and evaluation criteria specified in the EOI request, prequalification document, bidding documents or RFP;

c) the EOI request, prequalification document, bidding documents or RFP does not comply with regulations laid down in this Law or other relevant laws to the extent that the selected bidder fails to meet the requirements of the package;

d) the successful bidder commits any of the prohibited acts in Article 16 of this Law; or

dd) another organization or individual that is not the successful bidder commits any of the prohibited acts in Article 16 of this Law resulting in inaccurate contractor selection result.

2. In case of investor selection, bid cancellation shall occur when:

a) all bids are considered substantially nonresponsive to the bidding documents;

b) there are changes in the objectives, scale, location, investment capital or duration of investment project execution due to force majeure events resulting in changes in evaluation criteria specified in the issued bidding documents;

c) one or some contents of the bidding documents does not comply with regulations laid down in this Law or other relevant laws resulting in inaccurate investor selection result or to the extent that the selected investor fails to meet the requirements of the investment project;

d) the successful investor commits any of the prohibited acts in Article 16 of this Law; or

dd) another organization or individual that is not the successful investor commits any of the prohibited acts in Article 16 of this Law resulting in inaccurate investor selection result.

3. Bid cancellation may occur within the period from the issuance of the EOI request, prequalification document, bidding documents or RFP to the signing date of the contract or framework agreement in case of centralized procurement.

4. Organizations and individuals that commit violations to the extent of bid cancellation as prescribed in Points c, d, dd Clause 1 and Points c, d, dd Clause 2 of this Article shall pay compensation to related parties.

Article 18. Bid suspension, refutation of contractor/investor selection result

1. If there is evidence that an organization or individual participating in the bidding commits any of the prohibited acts in Article 16 of this Law or violations against relevant laws which adversely affect the achievement of competitiveness, fairness, transparency, and economic efficiency or falsify the contractor/investor selection result, the competent person shall adopt one or some of the following measures:

a) Suspend the bidding process in order to suspend all contractor/investor selection activities and take remedial actions against violations immediately. Bid suspension shall be made during the contractor/investor selection and before the contractor/investor selection result is approved;

b) Refuse to recognize the contractor/investor selection result during the contractor/investor selection and the contract execution;

c) Impose penalties for violations as prescribed in Article 87 of this Law.

2. The decision on bid suspension or refutation of contractor/investor selection result must clearly indicate the causes thereof, remedial measures and time limit for completing remedial measures against violations.

Article 19. Expert team, appraising team

1. An expert team consists of capable and experienced individuals who are selected or assigned by the employer or bidding consultant (in case of contractor selection) or the procuring entity (in case of investor selection) to perform one or some of the following tasks: preparation of EOI request, prequalification document, bidding documents or RFP; evaluation of EOIs, prequalification applications, bids, proposals or applications for execution of investment project; other tasks during the contractor/investor selection process.

2. An appraising team consists of capable and experienced individuals who are selected or assigned by the competent person, employer or bidding consultant to inspect and consider the compliance with laws and regulations by one or all of the following contents: contractor selection master plan, contractor selection plan; EOI request, prequalification document, bidding documents or RFP and EOI selection result, prequalification result, and contractor/investor selection result.

3. In order to become a member of the expert team or appraising team, an individual shall have at least 03 years’ experience in any field relevant to legal, technical or financial contents of the package or investment project.

4. The Government shall elaborate capacity and experience requirements to be satisfied by members of the expert team and appraising team.

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