Chương IV Luật đấu thầu 2023: Quy trình, thủ tục lựa chọn nhà thầu, nhà đầu tư

Chapter IV

CONTRACTOR AND INVESTOR SELECTION PROCESS

Section 1. CONTRACTOR SELECTION PROCESS

Article 43. Contractor selection process

1. The contractor selection process in case of competitive bidding or limited bidding includes the following steps:

a) Preparation for contractor selection;

b) Organization of contractor selection;

c) Bid evaluation;

d) Contract negotiation for a consulting service package.

With regard to procurement, construction or non-consulting service package to be executed adopting the international bidding method or a package with high technical requirements, the procuring entity may conduct contract negotiation with the first-ranked bidder if it is deemed necessary;

dd) Submission, appraisal, approval and disclosure of contractor selection result and provision of explanations for bidders as to why they were not successful (if any);

e) Completion, signing and management of execution of contract.

2. The contractor selection process in case of direct contracting includes the following steps:

a) Preparation for contractor selection;

b) Organization of contractor selection;

c) Evaluation of proposals and negotiation on one or some proposals (if any);

d) Submission, appraisal, approval and disclosure of contract selection result;

dd) Completion, signing and management of execution of contract;

In the case specified in Point m Clause 1 Article 23 of this Law, the competent person may decide to adopt the simplified process, consisting of the following steps: preparing and sending the draft contract to the successful bidder; submitting for approval, approving and disclosing the contractor selection result; signing the contract and managing the contract execution.

3. The contractor selection process in case of shopping includes the following steps:

a) Preparation for contractor selection;

b) Organization of contractor selection;

c) Bid evaluation;

d) Submission, appraisal, approval and disclosure of contractor selection result and provision of explanations for bidders as to why they were not successful (if any);

dd) Completion, signing and management of execution of contract.

4. The contractor selection process in case of direct procurement includes the following steps:

a) Preparation for contractor selection;

b) Organization of contractor selection;

c) Evaluation of proposals and negotiation on the proposal of the selected bidder;

d) Submission, appraisal, approval and disclosure of contract selection result;

dd) Completion, signing and management of execution of contract.

5. The contractor selection process in case of self-execution includes the following steps:

a) Preparation of the self-execution plan, including drafting of the written assignment of tasks;

b) Completion of the self-execution plan;

c) Approval and disclosure of contractor selection result;

d) Signing of the written assignment of tasks; management of the package execution.

6. Individual consultants may be employed in case the tasks of a package can be performed by one or some capable and experienced experts without the participation of any organizations and without imposing execution conditions as those imposed on institutional contractors. Process of individual consultant selection includes the following steps:

a) Preparation for contractor selection;

b) Organization of contractor selection;

c) Evaluation of scientific CVs of bidders that are individual consultants;

d) Contract negotiation;

dd) Submission, approval and disclosure of contract selection result;

e) Signing and management of execution of contract.

7. The contractor selection process in case of community participation includes the following steps:

a) Preparation of the plan for selection of residential community, group or team of local skilled workers to execute the package;

b) Organization of selection process;

c) Approval and disclosure of selection result;

d) Completion, signing and management of execution of contract.

8. The Government shall elaborate this Article.

Article 44. Bidding documents used for contractor selection

1. Bidding documents include:

a) Instructions to bidders, additional purchase option (if any);

b) Bidding Data Sheet (BDS);

c) Criteria for evaluation of validity of bids; capacity and experience of bidders; technical proposals; financial - commercial proposals; bidders’ reputation acquired from participation in bidding and execution of previous similar contracts, and quality of used similar goods.

If specialist contractors are employed, bidding documents must also indicate the scope of tasks and capacity and experience requirements to be satisfied by specialist contractors;

d) Invitation for bid and bidding forms;

dd) Scope of supply, technical requirements, terms of reference;

e) Conditions of contract and contract forms;

g) Documents, drawings and other contents (if any).

2. Bidding documents may impose requirements regarding countries or territories of origin. In the case of a package prescribed in Point dd Clause 1 Article 23 where all direct contracting requirements laid down in Clause 3 Article 23 of this Law are satisfied but the competent person decides to apply the competitive bidding, limited bidding or shopping method to the contractor selection, bidding documents may impose requirements regarding origin and brands of goods.

3. Bidding documents shall not impose any conditions that limit the participation of a bidder or give advantage for one or some bidders resulting in unfair competition.

4. In case the bidding documents contain any contents in breach of the provisions of Clause 3 of this Article, these contents shall be considered invalid and shall not be used as the basis for bid evaluation.

Article 45. Contractor selection duration

1. The contractor selection duration shall be subject to the following provisions:

a) The minimum period between the first date on which the EOI request or prequalification document is issued and the deadline for submission of bids which is given for bidders to prepare their EOIs or prequalification applications shall be 09 days for domestic bidding or 18 days for international bidding;

b) In case of competitive bidding or limited bidding, the minimum period between the first date on which the bidding documents are issued and the deadline for submission of bids which is given for bidders to prepare their bids shall be 18 days for domestic bidding or 35 days for international bidding. In case of a construction or mixed package whose price does not exceed VND 20 billion or a procurement or non-consulting service package whose price does not exceed VND 10 billion, this period shall be 09 days for domestic bidding or 18 days for international bidding;

c) In case of shopping, the minimum period between the first date on which the bidding documents are issued and the deadline for submission of bids which is given for bidders to prepare their bids shall be 05 days;

d) Where a competent person decides to apply the competitive bidding method to the selection of contractor for a package which satisfies the direct contracting requirements laid down in Points a, b and c Clause 1 Article 23 of this Law, the minimum period between the first date on which the bidding documents are issued and the deadline for submission of bids which is given for bidders to prepare their bids shall be 09 days;

dd) The amendment of bidding documents must be made at least 10 days before the deadline for submission of bids. In case of a construction or mixed package whose price does not exceed VND 20 billion or a procurement or non-consulting service package whose price does not exceed VND 10 billion, bidding documents may be amended at least 03 days before the deadline for submission of bids. The amendment of EOI request or prequalification document must be made at least 03 days before the deadline for submission of bids.

2. EOI request, prequalification document and bidding documents shall be issued as the same time as the invitation for EOIs, invitation for prequalification applications and invitation for bid respectively.

3. The period for performing the tasks other than those specified in Clause 1 and Clause 2 of this Article shall be decided by the competent person or employer in a manner that ensures the project or package execution schedule.

Section 2. INVESTOR SELECTION PROCESS

Article 46. Investor selection process

1. Investor selection process includes the following steps:

a) Public disclosure of the investment project;

b) Preparation for bidding, including: preparation, appraisal and approval of bidding documents;

c) Organization of bidding activities, including: invitation for bid; issuance, amendment and clarification of bidding documents; preparation, submission, receipt, management, modification, withdrawal and substitution of bids;

d) Bid evaluation, including: bid opening; examination and evaluation of validity of bids; detailed evaluation of bids;

dd) Submission, appraisal, approval and disclosure of investor selection result; provision of explanations for investors as to why they were not successful (if any);

e) Negotiation, completion and signing of contract.

2. In case there are 02 or more investors showing interest in a project and thus the investor selection must be conducted through bidding as prescribed by the Law on land or a specialized law, in addition to the steps specified in Clause 1 of this Article, the competent authority shall prepare the EOI request, send invitation for EOIs, organize evaluation of applications for project execution, and approve EOI selection result before preparing for bidding as prescribed in Point b Clause 1 of this Article.

3. The Government shall elaborate this Article.

Article 47. Public disclosure of investment projects

1. Competent authorities shall make information on investment projects publicly available on VNEPS which shall be used as the basis for organization of investor selection.

2. Project details to be publicly disclosed include:

a) Decision on approval of investment guidelines (if any);

b) Project’s name; investment objectives and scale; total investment;

c) Location of the project; current use of land, land area used for executing the project; land use purposes; approved planning indicators;

d) Project execution duration and schedule; preliminary plan for investment phasing or division of component projects (if any); execution schedule of each stage of the project (if any);

dd) Name of the procuring entity; investor selection method and procedure;

e) Other related contents.

Article 48. Bidding documents used for investor selection

1. Bidding documents include:

a) Instructions to investors;

b) Bidding Data Sheet (BDS);

c) Examination and evaluation of validity of bids;

d) Methods and criteria for evaluation of capacity and experience of investors; investment plan; efficiency in land use or investment efficiency, sectoral development;

dd) Invitation for bid and bidding forms;

e) Investment project-related information and execution requirements;

g) Draft contract and contract form;

h) Other related contents.

2. Bidding documents shall not impose any conditions that limit the participation of an investor or give advantage for one or some investors resulting in unfair competition.

Article 49. Investor selection duration

1. In case of domestic bidding, the minimum period between the first date on which the bidding documents are issued and the deadline for submission of bids which is given for investors to prepare their bids shall be 45 days;

2. In case of international bidding, the minimum period between the first date on which the bidding documents are issued and the deadline for submission of bids which is given for investors to prepare their bids shall be 60 days;

3. The period for performing the tasks other than those specified in Clause 1 and Clause 2 of this Article shall be decided by the competent person or procuring entity in a manner that ensures the investment project execution schedule.

Section 3. ONLINE BIDDING

Article 50. Online contractor and investor selection

1. Domestic competitive bidding, limited bidding and shopping must be conducted on VNEPS according to the following roadmap:

a) From the effective date of this Law to December 31, 2024 inclusively, the Government shall decide whether to adopt online bidding method or not;

b) From January 01, 2025, the online bidding method shall apply to all packages, except cases where the bidding is not conducted on VNEPS as prescribed in Clause 5 of this Article.

2. Contractor/investor selection contents to be conducted on VNEPS:

a) Publishing of information on contractor/investor selection;

b) Preparation, appraisal and approval of prequalification document, EOI request, bidding documents or RFP;

c) Preparation and submission of prequalification applications, EOIs, applications for project execution, bids or proposals;

d) Bid opening;

dd) Evaluation of prequalification applications, EOIs, bids or proposals, invitation for contract negotiation, appraisal and approval of contractor selection result;

e) Consortium agreement, electronic bid security, electronic contract performance;

g) Clarification of bidding-related contents;

h) Submission and receipt of petitions;

i) Electronic contract;

k) Electronic payment.

3. Electronic documents on VNEPS shall be valid in accordance with regulations of the Law on electronic transactions and used as the basis for comparing, verifying and authenticating information serving performance of evaluation, appraisal, inspection, supervision, auditing and disbursement tasks.

4. Costs incurred in online bidding include: costs of registration for participation in VNEPS; costs of publishing of bidding information as prescribed in Point c Clause 1 and Point c Clause 2 Article 15 of this Law, participation in bidding, signing of contract, and other costs associated with the bidding process on VNEPS.

5. The Government shall stipulate the connection and information sharing as prescribed in Clause 6 Article 51 of this Law; online bidding techniques which should be suitable for features and development of VNEPS; online bidding procedures and costs; online investor selection roadmap; cases where the bidding is not conducted on VNEPS.

Article 51. Requirements for VNEPS

1. Information published on VNEPS must be made publicly available and accessed without limitation.

2. Time source of VNEPS shall comply with regulations of law on national standard time source.

3. VNEPS must be operated in a continuous, uniform, stable and safe manner and is capable of user authentication, and data confidentiality and integrity.

4. Information on transactions conducted on VNEPS must be sufficiently recorded and can be easily tracked.

5. VNEPS must be operated in a manner ensuring that bidders/investors cannot send their EOIs, prequalification applications, bids or proposals to procuring entities after deadlines for submission of bids.

6. Information on contractors/investors may be obtained from the national enterprise registration information system, tax administration information system, budget and treasury management information system and other systems. VNEPS shall be connected with web portals and other information systems for the purposes of sharing data and information used in online bidding and serving state management of bidding activities.

Article 52. Responsibilities of VNEPS operating unit

1. Ensure information security, cybersecurity and data confidentiality of VNEPS.

2. Ensure the integrity of documents on VNEPS, and prevent unauthorized access to and unlawful replacement of documents.

3. Ensure safety, security and confidentiality for users, and manage user profiles; adopt an appropriate mechanism for recording information and tracking source of information in chronological order and by activity on VNEPS.

4. Build VNEPS which should be compatible with other systems; have a user-friendly interface and meet relevant standards in the field of information technology.

5. Manage information security and cybersecurity risks to VNEPS.

6. Do not use information on projects, investment projects, packages, employers, procuring entities, contractors, investors and other information available on VNEPS for any purposes other than performance of its functions and tasks.

7. Ensure that hardware systems are capable of performing bidding activities.

8. Discharge other responsibilities as prescribed by this Law and relevant laws.