Chương 5 Luật Đấu thầu 2005: Quản lý hoạt động đấu thầu

Chapter V

ADMINISTRATION OF TENDERING ACTIVITIES

Article 66 Contents of State administration of tendering

1. Promulgating, disseminating, guiding and organizing implementation of legal instruments and policies on tendering.

2. Training and capacity building for senior personnel engaged in tendering work.

3. Summarizing, assessing and reporting on the status of implementation of tendering activities.

4. Administering on a nationwide basis the tendering information system comprising the Tendering Newsletter, the tendering website and the national tendering network.

5. Conducting international co-operation regarding tendering.

6. Conducting checks and inspections; resolving protests, complaints and denunciations regarding tendering, and dealing with breaches of the law on tendering in accordance with this Law and other relevant laws.

Article 67 Responsibilities and powers of the Government and of the Prime Minister of the Government

1. The Government shall exercise unified administration of tendering throughout the country.

2. The Prime Minister of the Government shall discharge the following responsibilities and exercise the following powers:

(a) Direct the work of conducting inspections and of resolving protests about tendering in accordance with this Law and the law on inspections;

(b) Regulate which evaluating body and/or organization shall assist the authorized person throughout the process of consideration and approval of tendering issues;

(c) In the case of investment projects formulated pursuant to resolutions of the National Assembly, make decisions on the tendering issues stipulated in article 60 of this Law.

(d) Discharge other responsibilities and exercise other powers in accordance with this Law and other relevant laws.

Article 68 Responsibilities and powers of the Ministry of Planning and Investment

1. To be responsible before the Government for the exercise of State administration of tendering activities.

2. To evaluate tendering plans and results of selection of contractor in tender packages belonging to projects within the decision-making power of the Prime Minister of the Government and stipulated in sub-clause (c) of clause 2 of article 67 of this Law.

3. To establish and administer the Tendering Newsletter, the tendering website and the national tendering network.

4. To act as the co-ordinator assisting the Government and the Prime Minister of the Government in conducting international co-operation in the tendering sector.

5. To organize training and capacity building for senior personnel engaged in tendering work.

6. To summarize, assess and provide reports on the status of implementation of tendering activities.

7. To resolve, within the scope of its authority, protests regarding tendering.

8. To preside over co-ordination with other relevant bodies in conducting checks and inspection of tendering on a nationwide basis.

9. To implement other duties regarding tendering as assigned to it by the Government.

Article 69 Responsibilities and powers of ministries, ministerial equivalent bodies, and all level people's committees

Ministries, ministerial equivalent bodies and people's committees at all levels shall, within the scope of their respective duties and powers, have the following responsibilities and duties:

1. To exercise administration of tendering work.

2. To organize training and capacity building for senior personnel engaged in tendering work.

3. To summarize and assess the status of implementation of tendering activities.

4. To provide reports on tendering activities pursuant to regulations of the Government.

5. To resolve protests regarding tendering pursuant to this Law.

6. To conduct checks and inspections of tendering.

7. To deal with breaches of the law on tendering by organizations and individuals involved in tendering activities.

8. In cases where a minister, head of a ministerial equivalent body or chairman of a people's committee at any level is concurrently the authorized person, then such minister, head or chairman must also discharge the responsibilities stipulated in article 60 of this Law.

Article 70 Dealing with exceptional situations in tendering

1. Exceptional situations in tendering shall be dealt with in compliance with the following principles:

(a) Ensuring competitiveness, fairness, transparency and economic efficiency;

(b) Acting on the basis of the approved tendering plan, of the contents of the tender invitation documents and of the tenders of the tenderers participating in the tendering;

(c) The authorized person shall be the person making a decision on dealing with any exceptional situation in tendering, and shall be responsible before the law for his decision.

2. Categories of exceptional situations shall comprise:

(a) Regarding preparation for and organization of tendering: items adjusting a tendering plan, a tender package price or other contents of a tender package; amendments to tender invitation documents; submission of tenders if tenders are submitted out of time or if too few tenders have been submitted; and amendments to the number of participating tenderers;

(b) Regarding assessment of tenders: situations in which tender prices exceed the tender package price, and tender prices made up of unusual unit prices;

(c) Regarding recommendation of winning tenderer and signing of the contract: situations in which the winning tender price is below fifty (50) per cent of the tender package price or the approved estimated budget; situations in which two tenders are both assessed as the best price and are identical, or where the proposed contract sum exceeds the approved winning tender price;

 (d) Regarding the procedures and sequence for implementation of tendering.

The Government shall provide detailed regulations on dealing with exceptional situations in tendering.

Article 71 Tendering Inspectorate

1. Tendering inspections shall be carried out of organizations and individuals who are involved in tendering activities in order to implement a tender package belonging to any of the projects stipulated in article 1 of this Law.

2. The Tendering Inspectorate shall be the specialized inspectorate for the tendering sector. The organization and operations of the Tendering Inspectorate shall be implemented in accordance with the law on inspections.

Article 72 Resolution of protests regarding tendering

1. Tenderers shall have the right to protest about the results of selection of contractor and about other relevant matters during the tendering process.

2. The entities responsible for resolution of a protest made by a tenderer during the tendering process shall be the party calling for tenders, the investor and the authorized person. The authorized person shall resolve any protest by a tenderer regarding results of selection of contractor on the basis of a report from the Consulting Council for Resolution of Protests pursuant to article 73 of this Law.

3. With regard to protests about relevant matters during the tendering process other than the results of selection of contractor, the time-limit for lodging a protest shall be calculated as from the date the event protested about arose until the date of the notification of results of tendering. The time-limit for lodging a protest about the results of selection of contractor shall be a maximum of ten (10) days after the date of notification of results of tendering.

Article 73 Procedures for resolution of protests regarding tendering

1. The resolution of protests about relevant matters during the tendering process shall be implemented as follows:

(a) The party calling for tenders shall be responsible to resolve a protest regarding tendering made by a tenderer within a time-limit of a maximum five (5) working days from the date of receipt of the written protest of the tenderer. If the party calling for tenders is unable to resolve the protest or if the tenderer disagrees with the resolution as made by the party calling for tenders, the tenderer shall have the right to lodge the protest with the investor for the latter's consideration and resolution in accordance with the provisions in sub-clause (b) of this clause.

(b) The investor shall be responsible to resolve a protest regarding tendering made by a tenderer within a time-limit of a maximum seven (7) working days from the date of receipt of the written protest of the tenderer. If the investor is unable to resolve the protest or if the tenderer disagrees with the resolution as made by the investor, the tenderer shall have the right to lodge the protest with the authorized person for the latter's consideration and resolution in accordance with the provisions in sub-clause (c) of this clause.

(c) The authorized person shall be responsible to resolve a protest regarding tendering made by a tenderer within a time-limit of a maximum fifteen (15) working days from the date of receipt of the written protest of the tenderer. If the authorized person is unable to resolve the protest or if the tenderer disagrees with the resolution as made by the authorized person, the tenderer shall have the right to institute court proceedings.

2. The resolution of protests about results of selection of contractor shall be implemented as follows:

(a) In accordance with the provisions in sub-clause (a) of clause 1 of this article.

(b) In accordance with the provisions in sub-clause (b) of clause 1 of this article. If the investor is unable to resolve the protest or if the tenderer disagrees with the resolution as made by the investor, the tenderer shall have the right to concurrently submit the written protest to the authorized person and to the chairman of the Consulting Council for Resolution of Protests for consideration and resolution pursuant to sub-clause (c) of this clause.

(c) The Consulting Council for Resolution of Protests (hereinafter referred to as the Consulting Council) shall be responsible to request the tenderer, the investor and other bodies involved in the tendering to provide necessary information, data and opinions in order to formulate a report on the results of the tendering work. If necessary, the Consulting Council may work directly with the parties involved in order to clarify issues. The time-limit within which the Consulting Council shall provide it's report shall be a maximum twenty (20) days after the date of receipt of the written protest of the tenderer. The chairman of the Consulting Council shall be a representative of the State administrative body for tendering, and members of the Consulting shall include a representative of the authorized person and a representative of the relevant occupational organization concerned. The authorized person shall be responsible to issue a decision on resolution of the protest of the tenderer within a time-limit of a maximum five (5) working days after the date of receipt of the report on results of tendering work from the Consulting Council. If the tenderer disagrees with the resolution made by the authorized person, the tenderer shall have the right to institute court proceedings.

3. A tenderer who wishes to make a protest regarding tendering shall have the right to institute court proceedings. If the tenderer chooses not to institute court proceedings, then the protest shall be resolved in accordance with clauses 1 and 2 of this article.

The Government shall provide detailed regulations on resolution of protests and on the operation of the Consulting Council.

Article 74 Complaints and denunciations about tendering

The making of complaints and denunciations about tendering and the resolution of such complaints and denunciations shall be implemented in accordance with the law on complaints and denunciations.

Article 75 Dealing with breaches of the law on tendering

1. Any organization or individual who breaches the law on tendering shall be dealt with by one of the following forms:

(a) A warning shall apply to any organization or individual in breach of the provisions of the Law on Tendering other than the breaches stipulated in article 12 of this Law;

(b) A fine shall be imposed on any organization or individual who acts in breach of the Law on Tendering and causes loss and damage to the interests of related parties;

(c) The penalty of prohibition from participation in tendering shall apply to any organization or individual who commits a breach being one of the acts stipulated in article 12 of this Law.

2. Any individual who commits a breach of the Law on Tendering where such conduct also constitutes a criminal offence shall be dealt with in accordance with the criminal law.

3. Any breach of the Law on Tendering by an organization or individual shall, in addition to being dealt with pursuant to the provisions in clause 1 of this article, be listed in the Tendering Newsletter and on the tendering website.

The Government shall provide detailed regulations on dealing with breaches of the law on tendering.