Chương IX Luật đấu thầu 2023: Quản lý nhà nước đối với hoạt động đấu thầu

Chapter IX

STATE MANAGEMENT OF BIDDING ACTIVITIES

Section 1. STATE MANAGEMENT OF BIDDING

Article 83. Contents of state management of bidding activities

1. Promulgate and organize the implementation of legislative documents on bidding.

2. Review, assess and submit reports on the implementation of bidding activities.

3. Manage information systems and databases on bidding nationwide.

4. Supervise, inspect and settle bidding-related complaints, denunciations and petitions, and take actions against violations in bidding sector within the jurisdiction and scope of responsibility prescribed in this Law and relevant laws.

5. Provide professional training and retraining courses in bidding activities.

6. Carry out international cooperation in bidding.

Article 84. Responsibility for state management of bidding

1. The Government shall carry out uniform state management of bidding activities nationwide.

2. The Ministry of Planning and Investment of Vietnam shall act as a focal point in charge of assisting the Government in carrying out uniform state management of bidding activities, and have the following powers and responsibilities:

a) Formulate and promulgate, within its jurisdiction, or request competent authorities to promulgate, legislative documents on bidding;

b) Build and manage VNEPS and press products on bidding to serve online bidding, and public disclosure of information on contractor/investor selection as prescribed in this Law;

c) Build and manage national database on contractors and investors, containing information on contract execution results and quality of supplied goods according to the Government’s regulations;

d) Provide regulations on training, retraining and improvement of professional knowledge on bidding for persons in charge of bidding tasks; regulations on examination, issuance and revocation of professional certificates in bidding;

dd) Carry out inspection of bidding activities;

e) Perform other powers and responsibilities to carry out state management of bidding activities as assigned by the Government or the Prime Minister in accordance with this Law and relevant laws.

Article 85. Responsibilities of ministries, ministerial agencies and people’s committees of all levels

1. Perform state management of bidding activities within their jurisdiction.

2. Organize professional training and retraining courses in bidding for officials and public employees in charge of bidding tasks.

3. Inspect and settle complaints, denunciations and petitions and take actions against violations in bidding sector.

4. Review, assess and submit reports on the implementation of bidding activities.

5. Perform other powers and responsibilities as prescribed by this Law and relevant laws.

Article 86. Inspection and supervision of bidding activities

1. Inspection under the Law on inspection:

a) Organizations and individuals involved in bidding activities as prescribed in this Law shall be subject to inspection under the Law on inspection;

b) Organization and operation of inspection agencies in bidding sector shall comply with provisions of the Law on inspection.

2. General inspection of bidding activities:

a) General inspection of bidding activities shall be carried out on a periodical or ad hoc basis which is decided by heads of authorities competent to carry out inspection;

b) The general inspection of bidding activities covers one or some of the following contents: promulgation of guidelines and instructions on performance of bidding tasks; submission, appraisal and approval of contractor selection plans; preparation for contractor/investor selection; organization of contractor/investor selection; management and execution of contracts; other bidding activities;

c) General inspection of bidding activities may be carried out adopting either direct inspection or written reporting method;

d) Inspection process: preparing for inspection; organizing the inspection; reaching inspection conclusions; monitoring the implementation of inspection conclusions.

3. Supervision of bidding activities:

a) Competent persons and bidding authorities shall take charge of supervising bidding activities performed by employers and procuring entities with the aim of ensuring the compliance of contractor/investor selection with the provisions of this Law and relevant laws;

b) Bidding activities are subject to the community supervision. Vietnamese Fatherland Front Committees at all levels shall take charge of organizing the community supervision of bidding activities;

c) Bidding authorities affiliated to Ministries, central-government regulatory authorities and local governments shall carry out regular supervision of bidding activities in respect of packages of projects, investment projects or procurement cost estimates in their provinces or within their jurisdiction;

d) Competent persons shall carry out supervision of bidding activities in respect of projects, investment projects or procurement cost estimates within their jurisdiction;

dd) Supervision of bidding activities covers one or some of the following contents: prequalification document, bidding documents, RFP, evaluation of bids or proposals; contractor/investor selection process;

e) Process of supervision of bidding activities by competent persons: preparing for supervision; carrying out supervision; reporting supervision results.

4. The Government shall elaborate this Article.

Article 87. Handling of violations

1. Organizations and individuals that commit violations against regulations of law on bidding shall, depending on the nature and severity of their violations, be disciplined, face administrative penalties or criminal prosecution, and make compensation for any damage in accordance with regulations of law.

2. In addition to penalties prescribed in Clause 1 of this Article, depending on the nature and severity of each violation, the organization or individual that commits any of the prohibited acts prescribed in this Law shall be prohibited from participating in bidding activities for a period from 06 months to 05 years.

3. Power to decide prohibition from participating in bidding activities:

a) Competent persons shall issue decisions on prohibition from participating in bidding for projects, investment projects or procurement cost estimates within their jurisdiction;

b) Ministers, heads of ministerial agencies, Governmental agencies, and other central-government agencies, and Chairperson of provincial People’s Committees shall issue decisions on prohibition from participating in bidding activities within their jurisdiction;

c) The Minister of Planning and Investment of Vietnam shall issue decisions on prohibition from participating in bidding activities within his/her jurisdiction and nationwide.

4. A decision on prohibition from participating in bidding activities must be sent to the violating organization or individual and relevant authorities and organizations; and also be sent to the Ministry of Planning and Investment of Vietnam and published on VNEPS.

5. The Government shall elaborate Clauses 2, 3 and 4 of this Article.

Section 2. HANDLING SITUATIONS AND PETITIONS ARISING FROM BIDDING ACTIVITIES

Article 88. Handling certain situations in bidding

1. If a situation which is not specifically and clearly prescribed in the contractor selection plan, EOI request, prequalification document, bidding documents or RFP or other tasks of the bidding process occurs, the competent person or employer shall make decision, and assume legal responsibility for their decision, to handle the situation on the basis of ensuring competitiveness, fairness, transparency, economic efficiency and accountability.

2. Situations shall be handled on the basis of the contractor selection plan; EOI request, prequalification document, bidding documents or RFP; EOIs, prequalification applications, applications for project execution, bids or proposals; contractor/investor selection result; the contract signed with the selected bidder or investor; actual execution of the package, project or investment project.

3. Power to handle situations arising in bidding:

a) In case of contractor selection, situations shall be handled according to decisions of employers. In complicated cases, employers shall decide to handle situations after obtaining opinions from competent persons;

b) In case of investor selection, situations shall be handled according to decisions of competent persons.

4. The Government shall elaborate this Article.

Article 89. Settlement of petitions in bidding

1. If there are grounds for presuming that their legitimate rights and interests are affected, bidders, investors, authorities and organizations are entitled to submit petitions to competent persons, employers or procuring entities for review or consideration of issues concerning the contractor/investor selection process and/or result as prescribed in Articles 90, 91 and 92 of this Law.

2. Bidders, investors, authorities or organizations shall only have their petitions put into consideration if they have not yet filed any other complaints, denunciations or lawsuits. If a bidder, investor, authority or organization is found to have filed a lawsuit, complaint or denunciation during the settlement of their petition, the settlement process shall be terminated immediately.

3. A petition may be withdrawn during its settlement process.

Article 90. Conditions for settlement of petitions

1. In order to be put into consideration, petitions for review of issues that arise before the publishing of contractor/investor selection result must meet the following conditions:

a) Petitions for review of bidding documents may be submitted by authorities or organizations having interest in the package or investment project; petitions for review of other issues concerning the contractor/investor selection process shall only be filed by bidders or investors participating in the bidding;

b) The petition must bear signature and seal (if any) of the petitioner’s lawful representative or be digitally signed and submitted through VNEPS;

c) The petition must be submitted to the entity in charge of settling the petition prescribed in Clause 1 Article 91 and Clause 1 Article 92 of this Law before the contractor/investor selection result is published.

2. In order to be put into consideration, petitions for review of the contractor/investor selection result must meet the following conditions:

a) The petition must be filed by the bidder or investor participating in the bidding (petitioner);

b) The petition must bear signature and seal (if any) of the petitioner’s lawful representative or be digitally signed and submitted through VNEPS;

c) The issue in the petition has not been included in any other lawsuit, complaint or denunciation filed by the petitioner;

d) The issue in the petition must directly concern the petitioner's bid evaluation results;

dd) The petition settlement fee is paid by the petitioner to the standing assistance section of the chairperson of the petition settlement advisory board (hereinafter referred to as “standing section”) before or at the same time when the petition is submitted;

e) The bidder and the investor must submit their petitions to the employer/competent person and the procuring entity/competent person respectively within the time limit specified in Clause 2 Article 91 of this Law.

3. The person in charge of settling the petition shall inform the petitioner in writing in case their petition is rejected because the conditions specified in Clauses 1 and 2 of this Article are not fulfilled.

Article 91. Procedures for settlement of petitions arising from contractor selection

1. Settlement of petitions for review of issues that arise before the notice of contractor selection result is published shall be subject to the following provisions:

a) The bidder, authority or organization (petitioner) shall send their petition to the employer before the contractor selection result is published on VNEPS;

b) The employer shall send a written response to the petitioner within 07 working days from the receipt of the petition;

c) In case the petitioner disagrees with the petition settlement result or does not receive any response from the employer upon the expiration of the time limit specified in Point b of this Clause, the petitioner shall be entitled to send their petition to the competent person within 05 working days from the prescribed deadline for petition settlement or from the day on which the employer’s response is received;

d) The competent person shall send a written response to the petitioner within 05 working days from the receipt of the petition.

2. Petitions for review of the issues that arise after the notice of contractor selection result is published shall be settled according to one of the following processes:

a) The bidder (petitioner) shall send their petition to the employer within 10 days from the day on which the contractor selection result is published on VNEPS. The employer shall send a written response to the petitioner within 07 working days from the receipt of the petition.

In case the petitioner disagrees with the petition settlement result or does not receive any response from the employer upon the expiration of the time limit specified in this Clause, the petitioner shall be entitled to send their petition to the competent person through the standing section within 05 working days from the prescribed deadline for petition settlement or from the day on which the employer’s response is received. The competent person shall issue a decision on settlement of the petition for review of the contractor selection result within 05 working days from the receipt of the written opinion from the petition settlement advisory board;

b) The bidder (petitioner) shall send their petition to the competent person through the standing section within 10 days from the day on which the contractor selection result is published on VNEPS. The competent person shall issue a decision on settlement of the petition for review of the contractor selection result within 05 working days from the receipt of the written opinion from the petition settlement advisory board.

3. The time limit for settling a petition prescribed in Clause 1 and Clause 2 of this Article starts on the day on which the administrative section of the person in charge of settling the petition receives the petition or when the petition is sent through VNEPS.

4. Where necessary, the petition settlement advisory board shall, based on the received petition, request the competent person to consider suspending the signing or execution of the contract. If the request of the petition settlement advisory board is accepted, within 05 working days from its receipt, the competent person shall provide the employer with a written notice of suspension of contract signing or execution in which the suspension duration must be clearly stated.

5. A written response shall contain conclusions on the issue in the petition. If the petition is found to be true, remedial measures and implementation time limit (if any) must also be specified in the written response. The petitioner shall have their paid petition settlement fee reimbursed. If the petition is found to be false, the written response shall contain detailed explanations. In this case, the paid petition settlement fee shall not be reimbursed.

6. If the petitioner disagrees with the decision on petition settlement issued by the competent person or employer, they shall be entitled to initiate Court proceedings.

Article 92. Procedures for settlement of petitions arising from investor selection

1. Settlement of petitions for review of issues that arise before the investor selection result is published shall be subject to the following provisions:

a) The investor, authority or organization (petitioner) shall send their petition to the procuring entity before the investor selection result is published;

b) The procuring entity shall send a written response to the petitioner within 15 working days from the receipt of the petition;

c) In case the petitioner disagrees with the petition settlement result or does not receive any response from the procuring entity upon the expiration of the time limit specified in Point b of this Clause, the petitioner shall be entitled to send their petition to the competent person within 05 working days from the prescribed deadline for petition settlement or from the day on which the procuring entity’s response is received;

d) The competent person shall send a written response to the petitioner within 05 working days from the receipt of the petition.

2. Petitions for review of the issues that arise after the investor selection result is published shall be settled according to one of the following processes:

a) The investor (petitioner) shall send their petition to the procuring entity within 10 days from the day on which the investor selection result is published. The procuring entity shall send a written response to the petitioner within 15 working days from the receipt of the petition.

In case the petitioner disagrees with the petition settlement result or does not receive any response from the procuring entity upon the expiration of the time limit specified in this Point, the petitioner shall be entitled to send their petition to the competent person through the standing section within 05 working days from the prescribed deadline for petition settlement or from the day on which the procuring entity’s response is received. The competent person shall issue a decision on settlement of the petition for review of the investor selection result within 10 working days from the receipt of the written opinion from the petition settlement advisory board;

b) The investor (petitioner) shall send their petition to the competent person through the standing section within 10 days from the day on which the investor selection result is published. The competent person shall issue a decision on settlement of the petition for review of the investor selection result within 10 working days from the receipt of the written opinion from the petition settlement advisory board.

3. The time limit for settling a petition prescribed in Clause 1 and Clause 2 of this Article starts on the day on which the administrative section of the person in charge of settling the petition receives the petition or when the petition is sent through VNEPS.

4. Where necessary, the petition settlement advisory board shall, based on the received petition, request the competent person to consider suspending the signing or execution of the contract. If the request of the petition settlement advisory board is accepted, within 10 working days from its receipt, the competent person shall issue a written notice of suspension of contract signing or execution in which the suspension duration must be clearly stated.

5. A written response shall contain conclusions on the issue in the petition. If the petition is found to be true, remedial measures and implementation time limit (if any) must also be specified in the written response. The petitioner shall have their paid petition settlement fee reimbursed. If the petition is found to be false, the written response shall contain detailed explanations. In this case, the paid petition settlement fee shall not be reimbursed.

6. If the petitioner disagrees with the decision on petition settlement issued by the competent person or the procuring entity, they shall be entitled to initiate Court proceedings.

Article 93. Composition, responsibilities and operation of petition settlement advisory board

1. The petition settlement advisory board (hereinafter referred to as “advisory board”) includes:

a) The advisory board established by the Minister of Planning and Investment of Vietnam;

b) Advisory boards established by Ministers or heads of ministerial agencies, Governmental agencies or other central-government agencies;

c) Advisory boards established by Directors of Provincial Departments of Planning and Investment.

An advisory board shall be established within 05 working days from the receipt of a petition from the bidder or investor.

2. Composition and standing section of the advisory board:

a) An advisory board is composed of a chairperson, deputy chairperson(s) (if deemed necessary) and other members who are representatives of the competent person and relevant authorities, and may also be representatives of trade associations, experts and/or scientists.

The advisory board shall not have any member who is a family relative, as defined in the Law on enterprises, of the petitioner, any member of the expert team or appraising team or the person approving the contractor/investor selection result;

b) The chairperson of the advisory board specified in Point a Clause 1 of this Article is a representative of the Ministry of Planning and Investment of Vietnam. The chairperson of the advisory board established by an authority mentioned in Point b Clause 1 of this Article is a representative of its affiliated unit tasked with managing bidding activities. The chairperson of the advisory board specified in Point c Clause 1 of this Article is a representative of the Provincial Department of Planning and Investment;

c) The standing section is the unit tasked with managing bidding activities. Its members do not include any member of the expert team or appraising team of the package or project. The standing section shall perform administrative tasks assigned by the chairperson of the advisory board; receive and manage fees paid by petitioners.

3. Responsibilities of an advisory board:

a) The advisory board specified in Point a Clause 1 of this Article shall give advice on petition settlement at the request of the Prime Minister;

b) An advisory board specified in Point b Clause 1 of this Article shall give advice on settlement of petitions relevant to all packages of projects, procurement cost estimates or investment projects which are subject to the jurisdiction of, or whose competent person is, the Minister or head of ministerial agency, Governmental agency or another central-government agency establishing that advisory board, except the packages and projects specified in Point a of this Clause;

c) An advisory board specified in Point c Clause 1 of this Article shall give advice on settlement of petitions relevant to all packages of projects, procurement cost estimates or investment projects located in the province or central-affiliated city, except the packages and projects specified in Points a and b of this Clause.

4. Operation of an advisory board:

a) The advisory board shall work on a case-by-case basis and on the principle of collectives, and make decision under the majority rule. All members have the right to express and are legally responsible for their opinions;

b) The advisory board shall have the right to request the bidder, investor, employer, procuring entity and relevant authorities to provide information concerning the package, project or investment project and other information necessary for performing its tasks;

c) The competent person must be provided with the petition settlement result within 25 days, for petitions filed by bidders, or 35 days, for petitions filed by investors, from the establishment date of the advisory board.

Article 94. Right to file a lawsuit and request the Court to grant interim injunctions

1. Initiating Court proceedings shall comply with regulations of the Code of Civil Procedures.

2. When filing a lawsuit or while the Court proceedings are running, concerned parties shall have the right to request the Court to suspend the bid closing; approval of the shortlist; approval of the contractor/investor selection result; signing of the contract; execution of the contract and issue other interim injunctions in accordance with regulations of law.