Chương 1 Luật Đấu thầu 2005: Những quy định chung

Chapter I

GENERAL PROVISIONS

Article 1 Governing scope

This Law regulates tendering activities in order to select contractors for provision of consultancy services, for procurement of goods, and for construction and installation for tender packages belonging to the following projects:

1. Investment and development projects financed by the State as to thirty (30) per cent or more, comprising:

(a) New construction and investment projects, and upgrading and expansion of construction projects in which investment has already been made;

(b) Investment projects for procurement of assets including equipment and machinery not required to be installed;

(c) Projects for planning for regional development, planning for industry development, and planning for construction of urban and rural areas;

(d) Projects for scientific research, for development of technology, and for technical assistance;

(dd) Other projects for purposes of investment and development.

2. Projects financed by the State for procurement of assets for the purpose of maintaining regular activities of State bodies, political organizations, socio-political organizations, socio-political-occupational organizations, social organizations, socio-occupational organizations and units of the armed forces.

3. Projects financed by the State for procurement of assets for the purpose of renovation or major repairs to equipment, production lines, building works and factories of State owned enterprises in which investment has already been made.

Article 2 Applicable entities

1. Domestic and foreign organizations and individuals participating in tendering activities for tender packages belonging to the projects stipulated in article 1 of this Law.

2. Organizations and individuals involved in tendering activities for tender packages belonging to the projects stipulated in article 1 of this Law.

3. Organizations and individuals with projects not within the governing scope of this Law may choose to apply this Law.

Article 3 Application of Law on Tendering, related laws, international treaties and international agreements

1. Tendering activities must comply with the provisions of this Law and other related laws.

2. If there are any special matters on tendering stipulated in any other Law, then such Law shall apply.

3. Tendering for projects using official development aid (abbreviated as ODA) shall be implemented on the basis of provisions in international treaties of which the Socialist Republic of Vietnam is a member or international agreements signed by authorized bodies or organizations on behalf of the Socialist Republic of Vietnam.

Article 4 Interpretation of terms

In this Law, the following terms shall be construed as follows:

1. Financed by the State means the use of State Budget funds, credit facilities guaranteed by the State, credit facilities for investment and development of the State, investment and development funds of State owned enterprises, and other capital funds managed by the State.

2. Tendering means the process of selecting a contractor who satisfies the requirements set by the party calling for tenders in order to implement a tender package belonging to a project stipulated in article 1 of this Law, on the basis of ensuring competitiveness, fairness, transparency and economic efficiency.

3. Tendering activities means activities of the parties involved in the process of selecting a contractor.

4. Sequence for implementation of tendering means the steps being preparation for tendering; organization of tendering; assessment of tenders; evaluation and approval of the results of tendering; notification of the results of tendering; and negotiation, finalization and signing of a contract.

5. Domestic tendering means the process of selection of a contractor who satisfies the requirements of the party calling for tenders, in which domestic tenderers participate.

6. International tendering means the process of selection of a contractor who satisfies the requirements of the party calling for tenders, in which both foreign and domestic tenderers participate.

7. Project means a set of proposals for implementing a part or the whole of works aimed at achieving an objective or requirement within a specified period of time and based on a specified financing source.

8. Authorized person means the person with the right pursuant to law to make project decisions. In the case of projects financed by the State as to thirty (30) per cent or more, excluding projects financed by the State as to hundred (100) per cent, the authorized person is the board of management or authorized representative of the capital contributing parties.

9. Investor means the entity owning the financing capital or the entity assigned responsibility to represent such owner, or the borrower directly managing and implementing any project as defined in clause 7 of this article.

10. Party calling for tenders means the investor or a professional organization with sufficient capability and experience in accordance with the law on tendering for the investor to hire in order to hold tendering.

11. Tenderer means any eligible organization or individual as stipulated in articles 7 and 8 of this Law.

12. Head contractor means a tenderer liable for its participation in tendering which gives its name to a tender, and which signs and implements a contract if selected (hereinafter referred to as a participating tenderer). A tenderer participating in tendering independently is referred to as an independent tenderer. A tenderer participating in tendering jointly with one or more other tenderers to submit the one tender is referred to as a partnership tenderer.

13. Consultancy tenderer means a tenderer participating in tendering for the supply of products, who satisfies the requirements on knowledge and professional experience stipulated in clause 34 of this article.

14. Supply tenderer means a tenderer participating in tendering for tender packages for the supply of goods as defined in clause 35 of this article.

15. Construction tenderer means a tenderer participating in tendering for tender packages for construction and installation as defined in clause 36 of this article.

16. EPC tenderer means a tenderer participating in tendering for the performance of an EPC tender package as defined in clause 21 of this article.

17. Sub-contractor means a contractor performing part of the work of a tender package on the basis of an agreement or contract signed with the head contractor. A sub-contractor is not a contractor liable for participation in tendering.

18. Domestic tenderer means any tenderer established and operating pursuant to the law of Vietnam.

19. Foreign tenderer means any tenderer established and operating pursuant to the law of the country of nationality of such tenderer.

20. Tender package means a part of a project, and in a number of special cases means the entire project; a tender package may comprise items for the procurement of similar goods for a number of projects or a one-off procurement in recurrent procurement of goods.

21. EPC tender package means a tender package which comprises the entire work of design, supply of equipment and materials, and construction and installation.

22. Pre-qualification invitation documents means all of the documents stipulating the requirements on capability and experience of tenderers as the legal basis for the party calling for tenders to select a list of tenderers to be invited to submit tenders.

23. Pre-qualification application means all of the documents prepared by a tenderer in accordance with the requirements of the pre-qualification invitation documents.

24. Tender invitation documents means all of the documents used for open or limited tendering stipulating the requirements for any one tender package and providing the legal basis for tenderers to prepare their tenders and for the party calling for tenders to assess tenders aimed at selection of a winning tenderer; and also providing the basis for negotiation, finalization and signing of a contract.

25. Tender means all of the documents prepared by a tenderer in accordance with the requirements of the tender invitation documents and submitted to the party calling for tenders in accordance with the provisions in the tender invitation documents.

26. Tender package price means the value of a tender package specified in the tendering plan based on the approved total invested capital, total estimated budget or estimated budget and current regulations.

27. Tender price means the price stated by a tenderer in its tender. If a tenderer provides a discount letter, then the tender price is the price after deducting the discount.

28. Proposed contract sum means the sum proposed by the party calling for tenders on the basis of the tender price of the tenderer selected to be awarded the contract after errors have been rectified and discrepancies have been adjusted as required by the tender invitation documents.

29. Winning tender price means the price approved in the results of selection of contractor as the basis for negotiation, finalization and signing of a contract.

30. Equal footing price means the tender price submitted by a tenderer to implement a tender package after errors have been rectified and discrepancies have been adjusted, and after adding all necessary operating and maintenance costs and other costs relating to the schedule, quality and origin of goods or construction works under the tender package for the entire use life. Equal footing prices shall be used to compare and rank tenders and are referred to as the assessment prices.

31. Contract means the document signed between the investor and the selected contractor based on the agreement reached between the parties. The contract must be in accordance with the decision approving the results of selection of contractor.

32. Tender guarantee means the tenderer provides security by one of the methods of paying a deposit, providing collateral or providing a letter of guarantee for a definite term as stipulated in the tender invitation documents, in order to secure the liability of the tenderer for its tender.

33. Contract performance guarantee means the tenderer provides security by one of the security methods of paying a deposit, providing collateral or providing a letter of guarantee for a definite term as stipulated in the tender invitation documents, in order to secure the liability of the winning tenderer to perform the contract.

34. Consultancy services comprise:

(a) Consultancy services on project preparation comprising formulation and assessment of planning reports, charts on overall development, architecture, pre-feasibility and feasibility study reports;

(b) Consultancy services on project implementation comprising surveying, design, total estimated budgets and estimated budgets, preparation of tender invitation documents, assessment of tenders, and supervision of execution of building and installation of equipment;

(c) Consultancy services on project management, arranging finance, training, technology transfer and other consultancy services.

35. Goods means machinery, equipment, raw materials, fuel, supplies, consumer goods, and services other than consultancy services.

36. Construction and installation comprises work which is part of the process of building and installing equipment in construction works and items of works, and of renovation and major repairs.

37. Protest regarding tendering means a request from any tenderer participating in tendering for reconsideration of the results of selection of contractor or regarding any other relevant matter during the tendering process when such tenderer considers his rights and interests have been adversely affected.

38. National tendering network means the system applying information technology set up and managed by the State administrative body for tendering in order to uniformly administer information about tendering and to service tendering activities.

39. Tendering evaluation means check and assessment by the body or organization in charge of the evaluation of tendering plans, tender invitation documents and results of selection of contractor as the basis for the authorized person to consider and make a decision in accordance with this Law. An evaluation of the results of selection of contractor is not a re-assessment of tenders.

Article 5 Information on tendering

1. The following information on tendering must be published in the Tendering Newsletter and on the tendering website of the State administrative body for tendering:

(a) Tendering plans;

(b) Notices inviting pre-qualification applications; results of pre-qualification;

(c) Invitations to tender in the case of open tendering;

(d) Lists of tenderers invited to participate in tendering;

(dd) Results of selection of contractor;

(e) Information on how breaches of the law on tendering have been dealt with;

(g) Current legal instruments on tendering;

(h) Other relevant information.

2. After the information stipulated in clause 1 of this article has been published in the Tendering Newsletter and on the tendering website, it may also be published on other mass media in order to facilitate access by interested organizations and individuals.

The Government shall provide detailed regulations on information on tendering.

Article 6 Tendering plans

1. The authorized person must provide written approval of a tendering plan after approval of the investment decision, or the tendering plan may be approved at the same time as the investment decision in cases where there are adequate conditions providing a legal basis for the investor to hold selection of a contractor, except for tender packages which must be implemented prior to an investment decision. The person approving a tendering plan shall be liable before the law for his decision.

2. A tendering plan must be formulated for the entire project; in cases where there are inadequate conditions to formulate a tendering plan for the entire project, it shall be permitted to formulate a tendering plan for some tender packages to be implemented in advance, but only when essential.

3. A tendering plan must set out clearly the number of tender packages and the contents of each tender package. The contents of each tender package shall comprise:

(a) Name of the tender package;

(b) Tender package price;

(c) Financing source;

(d) Form of selection of contractor; method of tendering;

(dd) Scheduled time for selection of contractor;

(e) Form of contract;

(g) Scheduled period for performance of the contract.

4. Division of the project into different tender packages shall be based on the technical nature of the project and the sequence for its implementation, ensuring unity within the project and that each tender package is of an appropriate size. There shall be only one set of tender invitation documents for any one tender package, and tendering shall only be held once. Each tender package shall be implemented by only one contract, except where a tender package is made up of several independent components in which case it may be implemented by more than one contract.

Article 7 Eligibility of tenderers being organizations

A tenderer being an organization shall be deemed to be eligible when it satisfies the following conditions:

1. It has a business registration certificate or investment certificate issued pursuant to law, or a decision on establishment in the case of a domestic tenderer which is an organization without business registration. A foreign tenderer must have registration for its operation issued by the competent authority of the country of nationality of the tenderer.

2. It is an independent cost accounting entity.

3. There is no decision by a competent body concluding that the tenderer has an unhealthy financial status; it is not bankrupt or insolvent, and it is not in the process of dissolution. 

Article 8 Eligibility of tenderers being individuals

A tenderer being an individual shall be deemed to be eligible when he or she satisfies the following conditions:

1. Having full capacity for civil acts pursuant to the law of the country of which such individual is a citizen;

2. Having lawful registration for operation or an appropriate professional certificate issued by the competent authority;

3. The individual is not subject to investigation for a criminal offence.

Article 9 Requirements applicable to a party calling for tenders and to an expert tendering group

1. Individuals being members of a party calling for tenders must satisfy all the following conditions:

(a) Be knowledgeable about the law on tendering;

(b) Be knowledgeable about project management;

(c) Have professional expertise appropriate to the requirements of the tender package in technical, financial, commercial, administrative and legal fields.

(d) Have foreign language skills sufficient to satisfy the requirements for tender packages for which international tendering is held and for tender packages of ODA financed projects.

2. Depending on the nature and complexity of a tender package, the expert tendering group shall include experts in technical, financial, commercial, administrative, legal and other relevant fields. Members of an expert group must satisfy all of the following conditions:

(a) Have a certificate of attendance at a training course on tendering;

(b) Have professional expertise relevant to the tender package;

(c) Be knowledgeable about the specific contents of the tender package;

(d) Have at least three years' working experience in fields relating to the economic and technical contents of the tender package.

Members of an expert tendering group do not necessarily have to be members of the party calling for tenders, and vice versa.

3. If an investor has sufficient personnel who satisfy the conditions stipulated in clause 1 of this article, the investor may itself act as the party calling for tenders. If the investor has insufficient personnel or if it has personnel but they fail to satisfy the conditions stipulated in clause 1 of this article, then the investor shall conduct a selection process in accordance with this Law to select a consultancy organization or a professional tendering organization with sufficient capability and experience to represent the investor in acting as the party calling for tenders. In all cases investors shall be liable for the process of selection of contractor and for signing a contract with the winning tenderer after negotiation and finalization of the contract pursuant to the provisions of this Law.

Article 10 Conditions for participation in tendering for any one tender package

Tenderers participating in tendering for any one tender package must satisfy all the following conditions:

1. Be eligible pursuant to articles 7 and 8 of this Law.

2. Submit only one tender, either as an independent tenderer or in partnership, for each tender package. In the case of a partnership there must be a written agreement between the partners specifying the person heading the partnership and the general and specific responsibilities of each partner with respect to the tender package works.

3. Satisfy the requirements set out in the notice inviting tenders or in the letter inviting tenders from the party calling for tenders;

4. Ensure competitiveness in tendering pursuant to the provisions in article 11 of this Law.

Article 11 Ensuring competitiveness in tendering

1. Any tenderer who participates in tendering for a tender package belonging to the projects stipulated in article 1 of this Law must satisfy the following requirements on competitiveness:

(a) A consultancy tenderer who prepared a feasibility study report shall not be permitted to participate in tendering for the provision of consultancy services to prepare the technical designs of the same project. Any consultancy tenderer who has already participated in the technical designs of a project shall not be permitted to participate in tendering for the subsequent steps, except in the case of an EPC tender package;

(b) Any tenderer participating in tendering must be organizationally independent of, financially independent from, and not under the control of the managing body of the consultancy tenderer who prepared the tender invitation documents or who will assess the tenders;

(c) A consultancy tenderer who supervises implementation of a contract must be organizationally independent of, financially independent from, and not under the control of the managing body of the consultancy tenderer who performs the contract;

(d) Tenderers participating in tendering for tender packages belonging to projects must be organizationally independent of, financially independent from, and not under the control of the managing body of the project investor.

2. The provisions in clause 1 of this article must be implemented at the latest by three years, in accordance with a schedule stipulated by the Government, from the date this Law takes effect.

The Government shall provide detailed regulations on ensuring competitiveness in tendering.

Article 12 Prohibited conduct in tendering

1. Giving, accepting or requesting any object of value by an individual or organization involved in the process of selection of contractor or of contractual performance, resulting in dishonest or partial behaviour when deciding on selection of contractor or when signing and implementing the contract.

2. Using personal influence to affect or to intervene in, or intentionally making a false or dishonest report about information thus distorting the result of selection of contractor or the signing and implementation of the contract.

3. Collaboration or collusion between the party calling for tenders and tenderers, or between the State administrative body and the party calling for tenders and/or tenderers in order to change tenders; collusion with the evaluating organization or an inspectorate in order to affect the collective or national interest.

4. Participation by an organization or individual in both assessment of tenders and in evaluation of the results of selection of contractor within the same tender package.

5. Imposition of specific requirements regarding brand names and country of origin of goods in tender invitation documents applicable to tendering for procurement of goods, for construction and installation and EPC tender packages.

6. Participation in the capacity of a tenderer in tendering for a tender package for which such participant is also the party calling for tenders.

7. Division of a project into tender packages contrary to the provisions in clause 4 of article 6 of this Law.

8. Participation by a tenderer in tendering for the supply of goods or for construction and installation in a tender package for which such participant has provided consultancy services, except for EPC tender packages.

9. Disclosure of the following data and information regarding tendering:

(a) Contents of tender invitation documents prior to the stipulated date for issuance of such documents;

(b) Contents of tenders, notebooks and minutes of tender consideration meetings, comments and assessments from experts and consultants regarding each tender prior to the announcement of the results of selection of contractor;

(c) Requests for clarification of tenders made by the party calling for tenders and responses of tenderers during the process of tender assessment prior to announcement of the results of selection of contractor;

(d) Reports by the party calling for tenders, by the expert group, by consultants or any professional organization involved in the tendering process, or consideration of tenders and evaluation prior to announcement of the results of selection of contractor;

(dd) Results of selection of contractor prior to the stipulated time for announcement;

(e) Other relevant tendering documents which are stamped "confidential" pursuant to the law on confidentiality.

10. An arrangement by a person so that his or her natural parent, parent-in-law, spouse, natural child, adopted child, son or daughter-in-law or sibling participates in tender packages for which such person is the party calling for tenders, a member the expert tendering group or expert group evaluating the results of selection of contractor or the person approving the results of selection of contractor.

11. Conduct contrary to the regulations on management of capital funds, or causing difficulties during the procedures for capital drawdown or for accounting finalization under any contract signed between an investor and a contractor.

12. An arrangement or collusion between two or more tenderers participating in tendering for the one tender package so that one of the tenderers will be awarded the contract; between the contractor implementing a tender package and the consultant supervising implementation; or between a contractor implementing a tender package with the body or organization assigned the task of check and acceptance of the results of implementation.

13. Provision of one's name as the tenderer for a tender package belonging to a project of an organization or body for which such person worked, within a period of one year from the date on which such person ceased to work for such body or organization.

14. Permitting another tenderer to use one's legal status in order to participate in tendering; or assignment by a contractor who is a winning tenderer of the performance of the contract to another contractor.

15. Using a protest regarding tendering in order to impede the tendering process and the signing of a contract, or to prevent other tenderers from participating in tendering.

16. Application of a form of selection of contractor other than open tendering when the conditions stipulated in articles 19 to 24 inclusive of this Law have not been satisfied.

17. Holding tendering when the financing source for the tender package has not yet been determined, resulting in insolvency of the contractor.

Article 13 International tendering

1. International tendering shall be held in the following cases:

(a) Tender packages belonging to projects using ODA in which the donor stipulates that international tendering must be held;

(b) Tender packages for procurement of goods where the goods are not yet able to be manufactured domestically;

(c) Tender packages in which domestic tenderers are incapable of satisfying the requirements of the party calling for tenders, or in which domestic tendering has been held but without selection of a winning tenderer.

2. In a case where a winning foreign tenderer fails to correctly fulfil undertakings in the partnership agreement or fails to employ a Vietnamese contractor (if any) to perform the volume and value of work assigned to the party being the Vietnamese contractor and as stipulated in the tender, such tenderer shall be rejected.

3. Any foreign tenderer who is a winning tenderer for implementation of a tender package in Vietnam must comply with regulations of the Government of Vietnam on management of foreign contractors.

Article 14 Preferential treatment in international tendering

Entities entitled to preferential treatment in international tendering shall comprise:

1. Tenderers being enterprises established and operating in Vietnam pursuant to the Law on Enterprises and the Law on Investment.

2. Partnership tenderers where one of the partners being an entity prescribed in clause 1 of this article undertakes work valued at over fifty (50) per cent of a tender package for consultancy services or for construction and installation, or of an EPC tender package.

3. Tenderers participating in tendering for tender packages for procurement of goods where the ratio of the domestic manufacturing costs of such goods is thirty (30) per cent or more.

The Government shall provide detailed regulations on preferential treatment in international tendering.

Article 15 Currency to be used in tendering

1. The currency to be used in tendering shall be stipulated in the tender invitation documents on the principle of one currency for any one volume offered.

2. During the process of assessment of tenders, the conversion to a common currency for purposes of comparison must be based on the exchange rate between Vietnamese dong and foreign currencies in accordance with the clauses set out in the tender invitation documents.

3. All types of domestic costs must be quoted in Vietnamese dong.

Article 16 Language to be used in tendering

The language to be used in tender invitation documents, tenders and data exchanged between the party calling for tenders and tenderers shall be Vietnamese in the case of domestic tendering, and Vietnamese and English in the case of international tendering.

Article 17 Expenses for tendering

1. Expenses for preparation of tenders and participation in tendering shall be borne by tenderers.

2. Expenses of the process of selection of contractor shall be included in the total invested capital or total estimated budget of the project.

3. Tender invitation documents may be sold to tenderers.

The Government shall provide detailed regulations on costs of tendering.