Chương IX Luật Đấu thầu 2013: Trách nhiệm của các bên trong lựa chọn nhà thầu, nhà đầu tư

Chapter 9.

RESPONSIBILITIES OF PARTIES IN SELECTION OF BIDDERS/INVESTORS

Article 73. Responsibilities of the competent person

1. To approve the plan on selection of bidder/ investor, except for case defined at point a Clause 1 Article 74 of this Law.

2. To resolve protests during selection of bidder/ investor.

3. To deal with breaches of bidding in accordance with this Law and other relevant laws.

4. To cancel bid as prescribed at Clauses 2, 3 and 4 Article 17 of this Law.

5. To suspend bid, to refuse recognition of result of selecting bidder/investor, or to declare invalidity to decisions of the investor, the Procuring Entity when detecting violations of bidding or other provisions of relevant law.

6. To inspect, supervise, monitor the work of bidding and contract performance.

7. For the selected bidder, apart from provisions at Clauses 1, 2, 3, 4, 5 and 6 of this Article, the competent person shall have the following responsibilities:

a) To adjust tasks and competence of investor in case of failing to meet legislation on bidding and requirements of project, package;

b) To require the investor, the Procuring Entity to supply dossiers, documents in order to serve the inspection, supervision, monitoring, settlement of protests, handling of violations on bidding and works defined at Clause 4 and clause 5 of this article;

c) To give opinions on handling of complex circumstances at the proposal of the investor defined at point a clause 2 Article 86 of this Law.

8. For the selected investor, apart from provisions at Clauses 1, 2, 3, 4, 5 and 6 of this Article, the competent person shall have the following responsibilities:

a) To decide on selection of the Procuring Entity;

b) To approve Prequalification Document, result of prequalification, Bid, Request for Proposals, result of investor selection;

c) To make a decision dealing with any exceptional situation;

d) To sign and manage the contract performance;

dd) To cancel bid as prescribed at Clause 1 Article 17 of this Law;

e) To require the Procuring Entity to supply dossiers, documents in order to serve the inspection, supervision, monitoring, settlement of protests, handling of violations on bidding and works defined at Clause 4 and clause 5 of this article.

9. To decide on establishment of the Procuring Entity with personnel satisfying the conditions as prescribed by this Law in case of investor selection for recurrent procurement. If the personnel fails to satisfy, the competent person must conduct selection of a professional bidding organization to act as the Procuring Entity or to perform some of tasks of the Procuring Entity.

10. To pay compensation for loss and damage to relevant parties pursuant to this Law if such loss and damage was caused by the competent person’s fault.

11. To make explanations for observance with provisions in this article at the request of superior agencies, inspection agencies, regulatory bodies on bidding activities.

12. To perform other tasks as prescribed in this Law.

Article 74. Responsibilities of the investor

1. To approve contents during contractor selection including:

a) Plan on selection of bidders in case where the package is performed prior to decision on approving the project;

b) EOI request, Prequalification Document, short list;

c) Bidding Documents, Request for Proposals;

d) List of ranked contractors;

dd) Result of selection of bidders.

2. To sign or authorize for signing and manage the contract performance with contractor.

3. To decide on establishment of the Procuring Entity with personnel satisfying conditions as prescribed in this Law. If the personnel fail to satisfy, it must conduct selection of a professional bidding organization to act as the Procuring Entity or to perform some of tasks of the Procuring Entity.

4. To make a decision dealing with any exceptional situation.

5. To resolve protests during selection of bidders.

6. To maintain confidentiality of relevant documents during selection of bidders.

7. To archive relevant information during selection of bidders as prescribed by law on archival and regulations of Government.

8. To report the annual bidding work.

9. To pay compensation for loss and damage to relevant parties pursuant to this Law if such loss and damage was caused by the competent person’s fault.

10. To cancel bid as prescribed at Clause 1 Article 17 of this Law.

11. To be legally liable before law and competent person for the process of selection of bidder.

12. To provide information, relevant documents and make explanations on observance with provisions in this Article at the request of superior agencies, inspection agencies, regulatory bodies on bidding activities.

13. If the investor currently being the Procuring Entity, the investor must take responsibilities specified in Article 75 of this Law.

14. To perform other tasks as prescribed in this Law.

Article 75. Responsibilities of the Procuring Entity

1. For contractor selection to perform packages of project:

a) To conduct preparations for contractor selection; to organize contractor selection, and to assess EOI responses, Applications, Bids, Proposals;

b) To decide on establishment of expert group;

c) To request bidders to clarify their EOI responses, Applications, Bids and Proposals during the process of dossier assessment;

d) To submit for approval of the result of short list selection and result of bidder selection;

dd) To negotiate and finalize contract with bidder;

e) To pay compensation for loss and damage to relevant parties pursuant to this Law if such loss and damage was caused by the Procuring Entity’s fault;

g) To maintain confidentiality of relevant documents during selection of bidders;

h) To ensure honesty, objectivity and impartiality throughout the process of bidder selection;

i) To provide information to the bidding newspaper and to the national bidding website; to provide information and relevant documents and make explanations on observance with provisions in this Clause at the request of competent person, investor, inspection agencies, regulatory bodies on bidding activities;

k) To be legally liable before law and investor for the process of selection of bidder.

2. For selection of tenders in recurrent procurement, apart from provisions at points a, b, c, d, dd, e, g, h and i Clause 1 this Article, the Procuring Entity must take the following responsibilities:

a) To approve the Bid, Request for Proposals;

b) To approve the result of bidder selection;

c) To sign and manage the contract performance with contractor;

d) To make a decision dealing with any exceptional situation;

dd) To resolve protests during selection of bidders;

e) To cancel bid as prescribed at Clause 1 Article 17 of this Law;

g) To be legally liable before law and competent person for the process of selection of bidder;

h) To archive relevant information during selection of bidders as prescribed by law on archival and regulations of Government;

i) To provide information to the bidding newspaper and to the national bidding website; to provide information and relevant documents and make explanations on observance with provisions in this Clause at the request of competent person, inspection agencies, regulatory bodies on bidding activities;

k) To report the annual bidding work.

3. For selection of investors:

a) To conduct preparations for investor selection; to organize investor selection; to assess Applications, Bids, Proposals in accordance with this Law;

b) To decide on establishment of expert group;

c) To request investors to clarify their Applications, Bids and Proposals during the process of dossier assessment;

d) To submit for approval of Prequalification Document, result of prequalification, Bid, Request for Proposals, result of investor selection;

dd) To negotiate contract with investor;

e) To pay compensation for loss and damage to relevant parties pursuant to this Law if such loss and damage was caused by the Procuring Entity’s fault;

g) To maintain confidentiality of relevant documents during selection of investors;

h) To archive relevant information during selection of investors as prescribed by law on archival and regulations of Government;

i) To resolve protests during selection of investor;

k) To ensure honesty, objectivity and impartiality throughout the process of investor selection;

l) To provide information to the bidding newspaper and to the national bidding website; to provide information and relevant documents and make explanations on observance with provisions in this Clause at the request of competent person, inspection agencies, regulatory bodies on bidding activities.

4. To perform other tasks as prescribed in this Law.

Article 76. Responsibilities of the expert groups

1. To be honest, objective and impartial throughout the process of implementation of tasks.

2. To conduct assessments of EOI responses, Applications, Bids, Proposals correctly in accordance with the requirements.

3. To report the Procuring Entity about result of assessing EOI responses, Applications, Bids, Proposals and list of the ranked bidders/investors.

4. To maintain confidentiality of relevant documents during selection of bidders/investors.

5. To reserve their own opinions.

6. To pay compensation for loss and damage to relevant parties pursuant to this Law if such loss and damage was caused by the expert group’s fault.

7. To provide information, relevant documents and make explanations on observance with provisions in this Article at the request of competent person, the Procuring Entity, inspection agencies, regulatory bodies on bidding activities.

8. To perform other tasks as prescribed in this Law.

Article 77. Responsibilities of the bidders and investors

1. To request the Procuring Entity to clarify dossier of invitation for expression of interest, Prequalification Document, Bid, Request for Proposals.

2. To fulfill the contractual undertakings provided to the Subcontractors (if any).

3. To lodge protests, to make complaints and whistleblowing regarding bidding.

4. To comply with the provisions of the law on procurement.

5. To be honest and accurate during the process of participation in bidding and while lodging protests or making complaints and whistleblowing.

6. To pay compensation for loss and damage to relevant parties pursuant to this Law if such loss and damage was caused by the expert group’s fault.

7. To provide information, relevant documents and make explanations on observance with provisions in this Article at the request of competent person, the Procuring Entity, inspection agencies, regulatory bodies on bidding activities.

8. To perform other duties in accordance with this Law and other relevant laws.

Article 78. Responsibilities of the evaluating organizations

1. To act independently and to comply with the provisions of this Law and other relevant laws when conducting evaluations.

2. To request the investor and the Procuring Entity to provide all relevant documents and data.

3. To maintain confidentiality of documents and data throughout the process of evaluation.

4. To be honest, objective and impartial throughout the process of evaluation.

5. To reserve their own opinion and to bear liability for their evaluation report.

6. To pay compensation for loss and damage to relevant parties pursuant to this Law if such loss and damage was caused by their fault.

7. To provide information, relevant documents and make explanations on observance with provisions in this Article at the request of competent person, the investor, the Procuring Entity for recurrent procurement, centralized procurement, inspection agencies, regulatory bodies on bidding activities.

8. To perform other tasks as prescribed in this Law.

Article 79. Responsibilities of the Procuring Entity in participation in National E-procurement System

In addition to responsibilities defined in Article 75 of this Law, the Procuring Entity participating in National E-procurement System shall have the following responsibilities:

1. To equip an information technology infrastructure which meets requirements of bidding online;

2. To manage and not disclose secret key of the granted digital certificate. In case where a Procuring Entity lost digital certificate or detect the illegal use of digital certificate, it must notify immediately to the provider of digital signature certification service for cancelation and grant of new digital certificate; to expand the validity period of digital certificate to ensure the digital certificate to be valid during the process of bidding;

3. To be legally liable before law for accuracy and honesty of information registered or published on National E-procurement System when sign in by their digital signature;

4. To check and certify the publishing of their information entered in National E-procurement System;

5. To comply with provisions of this Law and other provisions of relevant legislation.

Article 80. Responsibilities of the bidders and investors participating in National E-procurement System

In addition to responsibilities defined in Article 77 of this Law, the bidders and investors participating in National E-procurement System also have the following responsibilities:

1. To equip an information technology infrastructure when participating in bidding online;

2. To manage and not disclose secret key of the granted digital certificate. If users of bidders or investors lost or detect the third party’s use of their digital certificate, they must change the secret key of digital certificate, cancel digital certificate under guide of the provider of digital signature certification service; extend the validity term of the digital certificate to ensure the digital certificate to be invalid during the process of participation in bidding;

3. To be legally liable before law for accuracy and honesty of information registered or published on National E-procurement System when sign in by their digital certificate;

4. To be responsible for result when participating in bidding online in case of having incident due to the network system at the side of bidders or investors which make documents to be not able to be open or not readable;

5. To comply with provisions of this Law and other provisions of relevant legislation.