Chương XII Luật Đấu thầu 2013: Giải quyết kiến nghị và tranh chấp trong đấu thầu

Chapter 12.

RESOLUTION OF PROTESTS AND DISPUTES IN BIDDING

Section 1. RESOLUTION OF PROTESTS REGARDING BIDDING

Article 91. Resolution of protests regarding bidding

1. When consider that lawful rights and benefits are severely affected, the contractors and investors have rights:

a) To make protests to the Procuring Entity, investor, competent person about matters during selection of bidder/ investor; result of selection of bidder/ investor according to the process of resolution of protests specified in Article 92 of this Law;

b) To institute court proceedings at any time, including time of resolution of protests or after having result of resolution of protests.

2. In case where bidders/investors instituted court proceedings, they are not entitled to send protest to the Procuring Entity, investor, or the competent person. If in the process of resolution of protests, bidders/investors instituted court proceedings, the resolution of protests shall be terminated immediately.

Article 92. The process of resolution of protests

1. The process of resolution of protests regarding matters during selection of bidders shall be performed as follows:

a) A contractor may send a written protest to the investor for project; the Procuring Entity for recurrent procurement, centralized procurement since happening matters and prior to having notice of result of bidder selection;

b) The investor, the Procuring Entity shall be responsible to have a document to resolve a protest made by a bidder within a time limit of 07 working days from the date of receipt of the written protest of the bidder;

c) If the investor, the Procuring Entity has no document to resolve the protest or if the bidder disagrees with the result of resolution of protest, the bidder shall have the right to lodge the protest with the authorized person within 05 working days, as from the expired day of replying or day of receiving document of resolution of protest made by investor, the Procuring Entity;

d) The authorized person shall be responsible to resolve a protest made by a bidder within a time limit of 15 working days from the date of receipt of the written protest of the bidder.

2. The process of resolution of protests regarding result of selection of bidders shall be performed as follows:

a) A bidder may send a written protest to the investor for project; the Procuring Entity for recurrent procurement, centralized procurement in period of 10 days after having notice of result of bidder selection;

b) The investor, the Procuring Entity shall be responsible to have a document to resolve a protest made by a bidder within a time limit of 07 working days from the date of receipt of the written protest of the bidder;

c) If the investor, the Procuring Entity has no document to resolve the protest or if the bidder disagrees with the result of resolution of protest, the bidder shall have the right to lodge the protest with the authorized person and the Consulting Council for resolution of protests within 05 working days, as from the expired day of replying or day of receiving document of resolution of protest made by investor, the Procuring Entity. The Minister of Planning and Investment shall establish a Consulting Council for Resolution of Protests at central level; the Ministers, Deputy Ministers of Ministerial agencies shall establish the Councils at ministerial level; the heads of regulatory bodies on bidding at localities shall establish the Councils at local level;

d) When receiving written protest, the Consulting Councils for Resolution of Protests shall be entitled to request the bidders, investors, the Procuring Entity and relevant agencies for information provision in order to consider and have written report to the competent person about the plan and content or replying protest within 20 days, after receiving the written protest made by the bidder;

dd) In necessary case, the Consulting Councils for Resolution of Protests shall, based on the written protest made by the bidder, suggest the competent person to consider for temporary suspension of the bid. If accepting, within 05 working days, after receiving the document of the Consulting Council for Resolution of Protests, the competent person shall issue a written notice about temporary suspension of the bid. The document of temporary suspension of the bid must be sent to the investor, the Procuring Entity, bidder within 03 working days after issuing the written notice about temporary suspension of the bid. Duration of temporary suspension of the bid shall be calculated from the date the investor, the Procuring Entity receive the notice of temporary suspension until the competent person issues a document to resolve protest;

e) The competent person shall issue decision on resolution of protest regarding result of selection of bidder within 05 working days, after receiving the written opinion of the Consulting Council for Resolution of Protests.

3. The process of resolution of protests regarding matters during selection of investors shall be performed as follows:

a) The investor may send a written protest to the Procuring Entity as from happening events and prior to having notice of result of selection of investor;

b) The Procuring Entity shall be responsible to have a document to resolve a protest made by an investor within a time limit of 15 days from the date of receipt of the written protest of the investor;

c) If the Procuring Entity has no document to resolve the protest or if the investor disagrees with the result of resolution of protest, the investor shall have the right to lodge the protest with the authorized person within 05 working days, as from the expired day of replying or day of receiving document of resolution of protest made by the Procuring Entity;

d) The authorized person shall be responsible to resolve a protest made by an investor within a time limit of 05 working days from the date of receipt of the written protest of the investor.

4. The process of resolution of protests regarding result of selection of investor shall be performed as follows:

a) An investor may send a written protest to the Procuring Entity in period of 10 days after having notice of result of investor selection;

b) The Procuring Entity shall be responsible to have a document to resolve a protest made by an investor within a time limit of 15 days from the date of receipt of the written protest of the investor;

c) If the Procuring Entity has no document to resolve the protest or if the investor disagrees with the result of resolution of protest, the investor shall have the right to lodge the protest with the authorized person and the Consulting Council for resolution of protests within 05 working days, as from the expired day of replying or day of receiving document of resolution of protest made by the Procuring Entity;

d) When receiving written protest, the Consulting Councils for Resolution of Protests shall be entitled to request the investors, the Procuring Entity and relevant agencies for information provision in order to consider and have written report to the competent person about the plan and content or replying protest within 30 days, after receiving the written protest made by the investor;

dd) In necessary case, the Consulting Councils for Resolution of Protests shall, based on the written protest made by the investor, suggest the competent person to consider for temporary suspension of the bid. If accepting, within 10 days, after receiving the document of the Consulting Council for Resolution of Protests, the competent person shall issue a written notice about temporary suspension of the bid. The document of temporary suspension of the bid must be sent to the Procuring Entity, investor within 05 working days after issuing the written notice about temporary suspension of the bid. Duration of temporary suspension of the bid shall be calculated from the date the Procuring Entity receives the notice of temporary suspension until the competent person issues a document to resolve protest;

e) The competent person shall issue decision on resolution of protest regarding result of selection of investor within 10 days, after receiving the written opinion of the Consulting Council for Resolution of Protests.

5. If a bidder or investor sends a written protest directly to the competent person without observance with the processes of resolution of protests specified in this Article, such written protest shall not be considered for settlement.

6. The Government shall elaborate this Article.

Section 2. RESOLUTION OF DISPUTES IN BIDDING BY COURTS

Article 93. The principles of resolution

Resolution of disputes in bidding by courts shall comply with law on civil procedures.

Article 94. The right to request Court for application of temporary emergency measures

When instituting, parties have the right to request the Court for immediate temporary suspension of bid disclosure; approval of short list; approval of result of selection of bidder/ investor; conclusion in a contract; performance of contract, and other temporary emergency measures as prescribed by law.