Chương III Nghị định 122/2021/NĐ-CP: Hành vi vi phạm hành chính trong lĩnh vực đấu thầu, hình thức xử phạt, mức xử phạt và biện pháp khắc phục hậu quả

Chapter III

ADMINISTRATIVE VIOLATIONS AGAINST REGULATIONS ON BIDDING, PENALTIES, FINES AND REMEDIAL MEASURES

Section 1. ADMINISTRATIVE VIOLATIONS AGAINST REGULATIONS ON BIDDING FOR BIDDER SELECTION, PENALTIES, FINES AND REMEDIAL MEASURES

Article 32. Violations against regulations on bidder selection plans

1. A fine ranging from VND 20,000,000 to VND 30,000,000 shall be imposed for any of the following violations:

a) Failure to follow or incorrectly following procedures for making, appraising and approving the bidder selection plan or adjusted bidder selection plan in accordance with regulations of law on bidding;

b) Making, appraising and approving a bidder selection plan with insufficient contents or insufficient grounds in accordance with regulations of law on bidding;

c) Failure to make, appraise and approve a bidder selection plan for the entire project or cost estimate in case of eligibility for making a bidder selection plan for such entire project or cost estimate.

2. A fine ranging from VND 30,000,000 to VND 50,000,000 shall be imposed for applying a bidder selection method or form and type of contract which is inconsistent with the size or nature of the contract package.

3. A fine ranging from VND 50,000,000 to VND 70,000,000 shall be imposed for any of the following violations:

a) Organizing bidder selection before the bidder selection plan is approved unless the direct contracting applies to packages which need to be performed to immediately overcome or promptly handle consequences caused by force majeure event; packages which need to be performed immediately to avoid causing direct damage to life, health and property of a residential community on a geographical area or avoid seriously affecting adjacent works; procurements of drugs, chemicals, supplies and medical equipment for purposes of disease prevention and control in emergency cases;

b) Dividing a project or cost estimate into different contract packages that fail to satisfy the requirements concerning technical characteristics, procedures and uniformity of the project reducing the competitiveness of bidding or in order to avoid applying e-selection of preferred bidders.

Article 33. Violations against regulations on preparing, appraising and approving requests for expression of interest (EOI requests), prequalification documents, bidding documents and requests for proposals

1. A fine ranging from VND 20,000,000 to VND 30,000,000 shall be imposed for any of the following violations:

a) Issuing an EOI request, prequalification documents, bidding documents or request for proposals without preparation, appraisal and approval thereof as prescribed;

b) Failure to carry out appraisal of the EOI request, prequalification documents, bidding documents or request for proposals in accordance with regulations of law on bidding prior to granting approval thereof.

2. A fine ranging from VND 30,000,000 to VND 50,000,000 shall be imposed for any of the following violations:

a) Appraising and approving the EOI request, prequalification documents, bidding documents or request for proposals ultra vires;

b) Imposing conditions to restrict participation of bidders or give advantage to one or more bidders, thereby causing unfair competition;

c) Imposing standards for evaluating the EOI request, prequalification documents, bidding documents or request for proposals that are not appropriate for the size or technical characteristics of the contract package.

d) Requesting a bidder to submit a sale permit issued by the producer or a certificate of joint venture relationship or any other documents equivalent to the sale permit with respect to common and available-on-market goods which are standardized and under warranty as recommended by the producer.

3. A fine ranging from VND 50,000,000 to VND 70,000,000 shall be imposed:

a) in case contents of the bidding documents or request for proposals are inappropriate to the approved bidder selection plan; or

b) for issuing the bidding documents or request for proposals without satisfying all conditions.

Article 34. Violations against regulations on investor selection and evaluation of EOI requests, prequalification application, bids and proposals

1. A fine ranging from VND 20,000,000 to VND 30,000,000 shall be imposed for any of the following violations:

a) Failure to specify or sufficiently or correctly specify the address from which the EOI request, prequalification documents, bidding documents or request for proposals is issued in the invitation for EOI, invitation for prequalification applications, notice of proposed procurement, invitation to bid or bid invitation letter;

b) Modifying or clarifying the bidding documents or request for proposals without sending a modification decision enclosed with modifications to the bidders that have bought or received the bidding documents or request for proposals in accordance with regulations of law on bidding;

c) Failure to send a notification of technical proposal evaluation result or sending a notification that fails to clearly state contents or contains insufficient contents in accordance with regulations of law on bidding;

d) Failure to receive an EOI request, prequalification application, bid or proposal of the bidder or receiving or managing it against regulations of law on bidding;

dd) Failure to issue the EOI request, prequalification documents, bidding documents or requests for proposals to bidders according to the time and location written on the invitation for EOI, invitation to bid or notice of proposed procurement;

e) Failure to return or release the deposit paid as bid security to the bidder on schedule.

2. A fine ranging from VND 30,000,000 to VND 50,000,000 shall be imposed for any of the following violations:

a) Failure to extend the deadline for bid closing when the amendments to the EOI request, prequalification documents, bidding documents or request for proposals fail to be made on prescribed schedule;

b) Failure to adhere to the time for bid opening and bid closing specified in the bidding documents or invitation to bid;

c) Failure to send the record of bid opening to the bidders;

d) Submitting, appraising, approving and publishing the bidder selection result that contains inadequate, inaccurate information or ultra vires.

3. A fine ranging from VND 50,000,000 to VND 70,000,000 shall be imposed for any of the following violations:

a) Failure to carry out appraisal of list of bidders that satisfy technical requirements in the case of single stage - two envelope bidding procedure or two stage - two envelope bidding procedure;

b) Failure to carry out appraisal of the bidder selection result before approving it;

c) Failure to clarify or request additional documents proving lawful status and qualifications of the bidder without changing the bidder evaluation result;

d) Evaluating the bid or proposals of the bidder against the approved evaluation standards in the bidding documents or request for proposals and regulations of law on bidding without changing the bidder selection result.

4. A fine ranging from VND 100,000,000 to VND 150,000,000 shall be imposed for any of the following violations:

a) Evaluating the bid or proposal of a bidder against the approved evaluation standards in the bidding documents or request for proposals and regulations of law on bidding changing the bidder selection result;

b) Failure to clarify or request additional documents proving lawful status and qualifications of the bidder changing the bidder evaluation result;

c) Permitting a bidder to clarify or supplement the bid or proposal against regulations changing the nature of the bid or proposal, thereby changing the bidder evaluation result.

Article 35. Violations against contract negotiation and notification of bidder and contract selection results

1. A fine ranging from VND 20,000,000 to VND 30,000,000 shall be imposed for any of the following violations:

a) Failure to carry out a contract negotiation or carry out a contract negotiation according to the rules or contents in accordance with regulations of law on bidding;

b) Failure to send a notification of bidder selection result to all bidders;

c) Sending a notification of bidder selection result that contains insufficient or incorrect contents in accordance with regulations of law on bidding.

2. A fine ranging from VND 30,000,000 to VND 50,000,000 shall be imposed for any of the following violations:

a) Failure to request the successful bidder to provide the performance security as prescribed or providing performance security against regulations;

b) Failure to confiscate the contract performance security of the bidder in the case where their bid security or performance security is non-returnable.

3. A fine ranging from VND 50,000,000 to VND 70,000,000 shall be imposed for any of the following violations:

a) Signing a contract before the bidder selection result is approved;

b) Performing the contract package before a contract is signed;

4. Remedial measures: The successful bidder is compelled to provide the performance security as prescribed if the violation specified in Point a Clause 2 of this Article is committed.

Article 36. Violations against regulations on posting bidding information

1. A fine ranging from VND 15,000,000 to VND 20,000,000 shall be imposed for failure to comply with regulations on deadline for providing and posting bidding information in accordance with regulations of law on bidding.

2. A fine ranging from VND 20,000,000 to VND 30,000,000 shall be imposed for any of the following violations:

a) Failure to post or adequately post contents of the bidding documents;

b) Posting bidding documents inconsistent with the approved contents.

3. A fine ranging from VND 30,000,000 to VND 50,000,000 shall be imposed for failure to provide or post bidding information in accordance with regulations of law on bidding.

Article 37. Violations against regulations on prohibited acts of bidding

A fine ranging from VND 200,000,000 to VND 300,000,000 shall be imposed for any of the following violations which do not constitute a criminal offence as prescribed in Article 222 of the Criminal Code:

1. Unlawfully interfering in bidding activities.

2. Colluding with other bidders in bidding.

3. Commit frauds in bidding.

4. Obstructing bidding activities.

5. Committing regulations of law on assurance of fairness and transparency of bidding.

6. Holding bidder selection before capital sources for contract packages are determined resulting in inability to pay bidders.

7. Illegally transferring the contract.

Article 38. Other violations against regulations on bidding

1. A fine ranging from VND 20,000,000 to VND 30,000,000 shall be imposed for any of the following violations:

a) Failure to retain or adequately retain documents during the bidder selection process in accordance with regulations of law on bidding;

b) Failure to meet the prescribed deadlines during the bidder selection process in accordance with regulations of law on bidding;

c) Failure to periodically reporting the bidding in accordance with regulations of law on bidding;

d) Failure to provide or sufficiently or punctually provide information and documents about the bidding to facilitate inspection, monitoring and supervision of bidding activities.

2. A fine ranging from VND 30,000,000 to VND 50,000,000 shall be imposed:

a) upon any individual that participates in the bidding without a certificate of bidding training and bidding practicing certificate in accordance with regulations of law on bidding; or

b) upon any individual that joins the expert group or carry out appraisal of bidding contents without a commitment in accordance with regulations of law on bidding; or

c) for failure to carry out e-selection of preferred bidders for the procurements eligible for e-selection of preferred bidders according to the prescribed roadmap.

3. A fine ranging from VND 50,000,000 to VND 100,000,000 shall be imposed for any of the following violations:

a) Failure to provide basic bidding training according to the training contents and duration in accordance with regulations of law on bidding;

b) Exploiting and using bidding information and accompanying documents on the National Bidding Network System in any way, shape or form and by any means without the permission of the Ministry of Planning and Investment and the organization operating the National Bidding Network System, except for information on the list of open databases as prescribed.

Section 2. ADMINISTRATIVE VIOLATIONS AGAINST REGULATIONS ON BIDDING FOR SELECTION OF INVESTORS EXECUTING INVESTMENT PROJECTS USING LAND (LAND USING PROJECTS), PENALTIES, FINES AND REMEDIAL MEASURES

Article 39. Violations against compiling and approving lists of land-using projects

A fine ranging from VND 20,000,000 to VND 30,000,000 shall be imposed for compiling and approving a list of land-using projects without satisfying the conditions applicable to land-using projects in accordance with regulations of law on bidding.

Article 40. Violations against regulations on bidding documents and requests for proposals

1. A fine ranging from VND 20,000,000 to VND 30,000,000 shall be imposed for any of the following violations:

a) Issuing the bidding documents or request for proposals without satisfying all prescribed conditions;

b) Failure to prepare, appraise and approve the bidding documents or request for proposals before organizing investor selection;

c) Appraising and approving the bidding documents or request for proposals ultra vires;

d) Preparing, appraising and approving the bidding documents or request for proposals against regulations on investor’s lawful status, incentives for investor selection and standards for document/request evaluation;

dd) Approving the bidding documents or request for proposals which is inappropriate for the approved contractor selection plan.

2. A fine ranging from VND 30,000,000 to VND 50,000,000 shall be imposed for imposing conditions to restrict participation of investors or give advantage to one or more investors, thereby causing unfair competition.

Article 41. Violations against regulations on investor selection and evaluation of bids and proposals

1. A fine ranging from VND 20,000,000 to VND 30,000,000 shall be imposed for any of the following violations:

a) Failure to specify or sufficiently or correctly specify the address from which the bid or proposal is issued in the invitation to bid or bid invitation letter;

b) Modifying or clarifying the bid or proposal without giving a notification as prescribed;

c) Failure to receive or unlawfully receiving or managing bids or proposals of investors;

d) Failure to issue bids or proposals to investors according to the time and location written on the invitation to bid;

dd) Failure to evaluate bids or proposals of investors as prescribed;

e) Failure to notify the contractor selection result.

2. A fine ranging from VND 30,000,000 to VND 50,000,000 shall be imposed for any of the following violations:

a) Failure to adhere to the time for bid opening and bid closing specified in the bidding documents or invitation to bid;

b) Failure to send the record of bid opening to all investors participating in bidding;

c) Submitting, appraising, approving and publishing a shortlist or investor selection result that contains inadequate, inaccurate information or ultra vires;

d) Submitting, appraising and approving the investor selection result inconsistent with the approved investor selection plan.

3. A fine ranging from VND 50,000,000 to VND 70,000,000 shall be imposed for any of the following violations:

a) Evaluating the bid or proposal of an investor against the approved evaluation standards in the bidding documents or request for proposals and regulations of law on bidding without changing the investor selection result;

b) Permitting an investor to clarify contents on their lawful status and qualifications without changing the nature of the lawful status and qualifications of the investor participating in bidding;

c) Failure to carry out appraisal of the investor selection result before it is approved;

d) Failure to appraise the shortlist or list of investors that satisfy technical requirements.

4. A fine ranging from VND 70,000,000 to VND 100,000,000 shall be imposed for any of the following violations:

a) Selecting investors without satisfying prescribed conditions;

b) Appointing an investor to execute a land-using project without satisfying prescribed conditions.

5. A fine ranging from VND 100,000,000 to VND 150,000,000 shall be imposed for any of the following violations:

a) Evaluating a bid or proposal of an investor against the approved evaluation standards in the bidding documents or request for proposals changing the investor selection result;

b) Permitting an investor to clarify contents on their lawful status and qualifications changing the nature of the lawful status and qualifications of the investor participating in bidding.

Article 42. Violations against regulations on investor selection contractors

1. A fine ranging from VND 20,000,000 to VND 30,000,000 shall be imposed for any of the following violations:

a) Failure to conduct a preliminary contract negotiation in investor selection;

b) Signing a contract with contents which are inappropriate for the investor selection plan.

2. A fine ranging from VND 50,000,000 to VND 70,000,000 shall be imposed for any of the following violations:

a) Signing a contract before the investor selection result is approved;

b) Carrying out construction before signing a contract.