Phụ lục II Nghị định số 23/2024/NĐ-CP: Hướng dẫn lập hợp đồng dự án đầu tư kinh doanh

DECREE

ON ELABORATION OF AND MEASURES FOR IMPLEMENTATION OF THE LAW ON BIDDING ON SELECTION OF INVESTORS TO IMPLEMENT PROJECTS SUBJECT TO BIDDING ORGANIZATION IN ACCORDANCE WITH SPECIAL LAWS

Pursuant to the Law on Government Organization dated June 19, 2015;

Pursuant to the Law on Local Government Organization dated June 19, 2015;

Pursuant to the Law on amendments to the Law on Government Organization and the Law on Organization of Local Governments dated November 22, 2019;

Pursuant to the Law on Bidding dated June 23, 2023;

Pursuant to the Law on Investment dated June 17, 2020;

At the request of the Minister of Planning and Investment;

The Government promulgates a Decree on elaboration of and measures for implementation of the Law on Bidding on selection of investors to implement projects subject to bidding organization in accordance with laws on specific sectors and fields (hereinafter referred to as special laws).

Chapter I

GENERAL PROVISIONS

Article 1. Scope

1. The Government elaborates the following articles of the Law on Bidding on selection of investors to implement projects subject to bidding organization in accordance with special laws:

a) Clause 6, Article 6 on ensuring competitiveness in investor selection;

b) Clause 6, Article 10 on incentives in investor selection;

c) Clause 3, Article 15 on costs associated with investor selection;

d) Clause 4, Article 35 on investor selection methods;

dd) Clause 3, Article 46 on investor selection procedures;

e) Clause 5, Article 50 and Point c, Clause 2, Article 84 on procedures, costs, and roadmap for online investor selection; national database on investor selection; or bidding for investor selection that is not conducted on the Vietnam E-procurement System (VNEPS);

g) Clause 5, Article 62 on bid evaluation methods and criteria;

h) Clause 2, Article 73 on the contents of investment project contracts;

i) Clause 4, Article 86 on inspection and supervision of bidding for investor selection;

k) Clause 4, Article 88 on handling situations in investor selection;

l) Clause 2, Article 96 on transitional regulations.

2. Measures to implement the Law on Bidding on investor selection, including:

a) Announcing investment project information for projects not subject to investment guideline approvals;

b) Implementing investment projects.

3. Requirements pertaining to capacity and experience of members of expert teams and appraisal teams; information connection and sharing between VNEPS and other information systems; online bidding techniques in line with the features and development of VNEPS; and actions against violations in bidding are laid down in the corresponding regulations in the Government's Decree on elaboration of and measures to implement the Law on Bidding regarding contractor selection.

4. Projects subject to bidding for investor selection as prescribed in Clause 1 of this Article include:

a) Projects for international football betting business in accordance with law on the business of betting on horse racing, greyhound racing, and international football;

b) Projects for construction of domestic solid waste treatment works in accordance with law on environmental protection;

c) Dredging projects in seaport waters and inland waterways combined with product recovery in accordance with law on maritime traffic and inland waterways;

d) Projects for specialized aviation works at airports and airfields in accordance with law on civil aviation, except for aviation operations centers of domestic airlines at airports, airfields;

dd) Projects for road traffic works in accordance with law on road traffic including mixed-function areas serving public and commercial purposes;

e) Projects for renovation and re-construction of apartment buildings in accordance with housing law;

g) Projects for construction of water supply source works, water supply systems in accordance with law on production, supply and consumption of clean water;

h) Projects subject to bidding when there are at least 2 investors registering for implementation, including:  projects in the fields of education, vocational training, health, culture, and sports, environment in accordance with law on promotion of private sector involvement, except for projects specified in Points b and g of this Clause; horse and greyhound racing projects, including business of betting on horse racing and greyhound racing according to legal regulations on business of betting on horse racing, greyhound racing and international football; projects for construction of social housing in accordance with housing law.

5. Projects that are subject to bidding in accordance with special laws laid down in Clause 4 of this Article and use land must fully meet the following requirements:

a) Fall under the case where the State appropriates the land in accordance with land law;

In case the land zone where the project is to be implemented has a land parcel managed by the State in accordance with land law, the State shall appropriate the entire project area (including land areas managed by the State within the project scope).

b) Be not eligible for auction of land use rights in accordance with land law, not eligible for auction of public assets in accordance with law on management and use of public assets.

6. Projects not subject to investor selection in accordance with this Decree include:

a) Projects using land in the form of transfer, lease of land use rights, receipt of capital contribution in form of land use rights for production and business in accordance with land law;

b) Be eligible for auction of land use rights in accordance with land law, law on management and use of public assets;

c) Projects of which land is allocated or leased by the State not through auction of land use rights, not through bidding for investor selection in accordance with land law.

Article 2. Regulated entities

1. Organizations and individuals participating in or related to selecting investors to implement investment projects specified in Clause 4, Article 1 of this Decree.

2. Organizations and individuals whose bidding do not fall into the cases specified in Clause 4, Article 1 of this Decree may choose to apply the Law on Bidding in accordance with Clause 4, Article 2 of the Law on Bidding.

Article 3. Interpretation of terms

For the purposes of this Decree, these terms below shall be construed as follows:

1. “investor selection progress timeline” means a schedule that presents all the tasks with corresponding time during the investor selection process, as a basis for conducting investor selection in accordance with Clause 3, Article 49 of the Law on Bidding.

2. “EOI requester” means an agency or unit under a ministry or ministerial-level agency; specialized agency, agency under the Provincial People's Committee, Economic Zone Management Board; District-level People's Committee that is assigned to carry out the procedure for requesting EOI (Expression of Interest).

3. “competent authority” means an agency that approves the investment guidelines according to the law on investment or  an agency that decides to organize bidding for investor selection.  For projects under the investment guideline approval for the National Assembly or the Prime Minister, the competent authority is the agency that decides to organize bidding for investor selection.

4. “agencies deciding to organize bidding for investor selection” include ministries, ministerial-level agencies, Provincial People's Committees, and Economic Zone Management Boards.

5. “total investment capital” includes preliminary total project implementation costs, other costs in accordance with special laws (if any) and compensation, support, and resettlement costs (if any). 

Article 4. Ensuring competitiveness

1. From the date of issuance of an EOI request, the investor that submits an application for registration to implement an investment project must be legally independent and financially independent from the following parties:

a) Competent authority, EOI requester;

b) The consultant on preparation of application for approval for investment guidelines (if the investment project is subject to investment guideline approval), project proposal (if the investment project is not subject to investment guideline approval), except for a project proposed by the investor;

c) The consultant on preparation of a pre-feasibility study report or feasibility study report if the special law requires a pre-feasibility study report or feasibility study report before the organization of an EOI meeting, except for a project proposed by the investor;

d) The consultant on preparation of EOI request and evaluation of the project registration application.

2. From the date of issuance of Bidding document, the investor participating in the bidding may not have shares or capital contributions with the following consultants:

a) The consultant on preparation of application for approval for investment guidelines (if the investment project is subject to investment guideline approval), project proposal (if the investment project is not subject to investment guideline approval), except for a project proposed by the investor;

b) The consultant on preparation of a pre-feasibility study report or feasibility study report if the special law requires a pre-feasibility study report or feasibility study report before organization of the bidding, except for a project proposed by the investor;

c) The consultant on preparation of and evaluation of Bidding document; evaluation of bids; appraisal of investor selection result.

3. From the date of issuance of an EOI request, Bidding document, the investor that submit the project registration application or the investor that participates in the bidding will be assessed as legally independent and financially independent from competent authority, procuring entity, EOI requester if they has no capital ownership ratio of more than 50% of shares, total number of voting shares, capital contribution of each other.  In case the investor submits a project registration application and participates in the bidding as a joint venture, the capital ownership ratio is determined according to the following formula:

Where:

X_i: is the ratio of capital ownership, shares, and voting shares of the competent authority, procuring entity, EOI requester to “the ith joint venture party”.

Y_i: is the equity contribution rate of “the ith joint venture party” in the joint venture agreement.

n: is the number of parties in the joint venture.

4. From the time of issuance of an EOI request or Bidding document, the investor that submits the project registration application or the investor that participates in the bidding and the consultants specified in Clause 1, Clause 2 of this Article may not have the capital ownership ratio of over 30% of shares, total number of voting shares, capital contribution of each other. In case of a joint venture investor or joint venture consultant, the capital ownership ratio is determined as follows:

a) The capital ownership ratio of other organizations, individuals and joint venture investors is determined according to the following formula:

Where:

X_i: is the ratio of ownership of capital, shares, and voting shares of organizations and individuals to “the ith investor participating in the bidding”.

Y_i: is the equity contribution rate of “the ith joint venture party” in the joint venture agreement.

n: is the number of parties in the joint venture.

b) The capital ownership ratio of other organizations, individuals and joint venture consultants is determined according to the following formula:

Where:

X_i: is the ratio of ownership of capital, shares, and voting shares of organizations and individuals to “the ith consultant” in the joint venture.

Y_i: is the ratio of responsibility division in “the ith joint venture agreement document” in the joint venture agreement.

n: is the number of parties in the joint venture.

5. For an investor who has a parent-subsidiary structure in accordance with law on enterprises and submits a project registration application or participates in bidding for an investment project:

a) The parent company or subsidiary company, or parent company or joint venture subsidiary companies may only participate in one project registration application or submits one bid;

b) The investor that submits the project registration application or participates to bid and any of the consultants specified in Clauses 1 and 2 of this Article do not have parent-subsidiary relationship, since the issuance of the EOI request or Bidding document.

6. Determination of the capital ownership ratio between the parties is based on the ratio stated in the Business Registration Certificate, establishment decision, and other equivalent documents.

Article 5. Incentives in investor selection

1. Entities eligible for incentives and incentive rates:

a) Investors that have solutions to apply advanced technology, high technology, environmentally friendly technology, and the best available techniques to minimize environmental pollution to their projects which pose high risk of adverse environmental impacts as prescribed by the Law on environmental protection are entitled to a 5% incentive when having their bids evaluated;

b) Investors that commit to make transfer of technologies included in the List of priority high technologies as prescribed by the Law on high technologies or the List of technologies of which the transfer is encouraged as prescribed by the Law on technology transfer are entitled to a 2% incentive when having their bids evaluated.

2. When bidding, investors must submit documents proving their technology application solutions, technology transfer and the right to legally use technology in accordance with law on high technologies technology transfer, environmental protection, and other relevant laws to enjoy incentives specified in Clause 1 of this Article.

3. Calculation of incentives:

The aggregate score of an entity eligible for incentives is calculated according to the following formula:

Where:

T’_TH: is the aggregate score of the investor eligible for incentives, including the incentive rate for comparison and ranking.

T_TH: is the aggregate score of the investor eligible for incentives, excluding the incentive rate.

M_ƯĐ: is the incentive rate that investor is entitled to in accordance with Clause 1 of this Article.

4. If an investor eligible for incentives specified in Clause 1 of this Article is selected to sign the contract, they must comply with the commitments in their bid and investment project contract.

Article 6. Management of costs and revenues in investor selection

1. Cost limits in case the investor selection is carried out by the competent authority, EOI requester, procuring entity, or appraisal team:

a) The cost of preparing the EOI request or Bidding document is 0.05% of the total investment capital but not exceeding 200,000,000 (two hundred million) VND;

b) The cost for appraisal of each item of Bidding document and investor selection result is 0.02% of total investment capital but not exceeding 100,000,000 (one hundred million) VND;

c) The cost of evaluating project registration application or bids is 0.03% of total investment capital but not exceeding 200,000,000 (two hundred million) VND;

d) In case of reorganizing the investor selection, the cost of preparing the EOI request or Bidding document; or evaluating bids is up to 50% of the equivalent cost specified in Points a and b of this Clause.

2. In case a consultant is hired to perform the tasks specified in Clause 1 of this Article, investor selection costs are as follows:

a) The costs are determined based on the description, scope of work, performance duration, capacity and experience of the consultant, salary level in accordance with law and other factors;

b) In case there are no regulations on expert salary level, it is based on statistics with costs paid to experts in similar projects implemented in a specified period of time or in total investment capital.

3. Detailed expenditures in case the investor selection is carried out by the competent authority, EOI requester, procuring entity, or appraisal team:

a) The expenditure on survey and collection of project information as a basis for preparing the EOI request or Bidding document, including the cost for preparing a project proposal (if the investment project is not subject to investment guideline approval) or an application for investment guideline approval (if the investment project is subject to investment guideline approval) (if any);

b) The expenditure on office supplies, translation, propagation, and communications;

c) The expenditure on meeting for soliciting expressions of interest, inviting bids, and opening bids;

d) The expenditure on posting information on investor selection;

dd) Other expenditures on preparing the EOI request; preparing and appraising Bidding document; evaluating project registration application, bids, opening bids, and resolving complaints.

4. The expenditure specified in Point d, Clause 3 of this Article is applied according to the corresponding regulations in the Government's Decree on elaboration of and measures to implement the Law on Bidding on contractor selection.

5. Funds to pay for the expenditures in Clauses 1 and 3 of this Article are used from regular expenditures of the competent agency, EOI requester, procuring entity, and appraisal team.

6. Bases for estimating expenditures include: Decision on investment guideline approval or investment project information approval made by a competent authority; policies and regulations according to relevant current laws.

7. The preparation, approval, and enactment of estimates of investor selection expenditures specified in Clauses 1, 2 and 3 of this Article are carried out in accordance with the law on preparation, approval and enactment of regular expenditure estimates from the state budget as follows:

a) Pursuant to the State Budget Law and Clause 6 of this Article, the EOI requester or the procuring entity shall prepare expenditure estimates according to each detailed expenditure specified in Clause 3 of this Article and include them into their annual budget estimate, and then submit it to the competent authority for approval in accordance with the law on state budget;

b) After the annual budget estimate is approved, the competent authority allocates regular expenditure estimates to assigned units in accordance with the law on state budget;

c) If a project comes up that requires bidding during the year, the EOI requester or the procuring entity shall supplement the estimate and submit it to the competent authority for approval in accordance with law on state budget.

8. Management of investor selection costs:

a) The management, use, and settlement of investor selection costs shall comply with the law on state budget. In case the EOI requester or the procuring entity is a public sector entity that organize the investor selection, the management, use and settlement of investor selection costs shall be carried out in accordance with the law on the financial autonomy mechanism of public sector entities;

b) In case a consultant is hired to perform part or all of the tasks in Clause 1 of this Article, the total cost of investor selection including taxes must not exceed the approved estimate for the consultancy. The payment for the consultant is made according to the contract between the competent authority, the procuring entity, or EOI requester and the consultant. The management, use, payment, and settlement for the consultant are carried out in accordance with applicable regulations of the law on state budget.

9. Management of investor selection revenues:

a) For international bidding, the selling price (including tax) of a set of electronic Bidding document must not exceed 30,000,000 (thirty million) VND;

b) Revenues from the sale of electronic Bidding document specified in Point a of this Clause, after fulfilling tax obligations, shall be transferred by the procuring entity to the state budget within 3 working days from the deadline for submission of bids.

Article 7. Expenditures on resolving investors' petitions regarding investor selection result

1. In case there is a petition about the investor selection result resolved by a competent person, the investor shall pay a fee for resolving the petition to the standing assistance department of the Petition Resolution Advisory Council (hereinafter referred to as the Advisory Council) in accordance with Point dd, Clause 2, Article 90 of the Law on Bidding.

2. The fee paid by the investor to the Advisory Council specified in Clause 1 of this Article is 0.02% of the total project investment capital of the petitioning investor but not exceeding 200,000,000 (two hundred million dong). During the petition process, if the investor withdraws the petition, they will only be refunded 50% of the paid petition fee in case the Advisory Council has not been established or the Advisory Council has been established but a council meeting has not yet been held. In case the Advisory Council has held a council meeting, the investor will not be refunded their paid petition fee.

For the remaining petition fee paid by investor, the standing assistance department of the Advisory Council shall transfer it to the state budget within 7 working days from the date on which the investor withdrew their petition.

3. The standing assistance department of the Advisory Council shall prepare and submit the expenditure estimate for resolving each investor’s petition to the President of the Advisory Council for approval.

4. The expenditure estimate approved by the President of the Advisory Council specified in Clause 3 of this Article may not exceed the fee paid by the investor as prescribed in Clause 2 of this Article.

5. The President of the Advisory Council shall decide the expenditure limits according to the approved estimate for members of the Advisory Council, the standing assistance department of the Advisory Council and other expenses to resolve the petition. Payment of remuneration to members of the Advisory Council for Resolution of Petitions who are officials and public employees shall comply with the relevant laws.

6. The standing assistance department of the Advisory Council shall spend the expenditure on resolving a petition according to the expenditure estimate approved by the President of the Advisory Council.

7. After resolving the petition, the President of the Advisory Council is responsible for confirming the actual expenditure. In case the actual expenditure is less than the petition fee paid by the investor to the Advisory Council, the standing assistance department of the Advisory Council shall make a refund to the investor within 7 days from the date on which the President of the Advisory Council confirms the actual expenditure.

8. In case the investor's petition is concluded to be correct, the petition resolution document on investor selection result must clearly state that the petitioning investor will receive a refund of the paid petition fee.  The standing assistance department of the Advisory Council shall issue a written request to the procuring entity to refund the investor an amount equal to the petition fee that the investor has paid, minus the amount refunded by the standing assisting department of the Advisory Council in accordance with Clause 7 of this Article (if any).

9. Funding sources to refund the investor according to the document on resolving the petition on investor selection result are specified as follows:

a) In case the procuring entity is an administrative unit or a public sector entity, the funding source to refund the investor will be allocated from their regular expenditure estimate;

b) In case the procuring entity is not an administrative unit or a public sector entity, the funding source to refund the investor will be allocated from their operating budget.

10. Any organizations or individuals in breach as specified in the decision on resolving petition on investor selection result made by the competent authority must compensate the procuring entity in accordance with law.

Article 8. Investor selection procedures

1. For projects applying competitive bidding, limited bidding according to the single-stage, one-envelope method and projects applying the competitive bidding according to single-stage, two-envelope method:

a) Announce investment projects;

b) Prepare bidding for investor selection;

c) Organize bidding for investor selection;

d) Evaluate bids;

dd) Submit, appraise, approve, and publish the investor selection result;

e) Negotiate, finalize, and sign contracts.

2. For projects applying open bidding according to the two-stage, one-envelope method:

a) Announce investment projects;

b) Prepare bidding for investor selection in first stage;

c) Organize bidding for investor selection in first stage;

d) Prepare and organize bidding for investor selection in second stage;

dd) Evaluate bids in second stage;

e) Submit, appraise, approve, and publish the investor selection result;

g) Negotiate, finalize, and sign contracts.

3. For projects in which the number of interested investors must be determined as prescribed in Clause 2, Article 46 of the Law on Bidding and Point h, Clause 4, Article 1 of this Decree:

a) Announce investment projects;

b) Invite for expression of interests;

c) In case there are at least 2 interested investors registering to implement the project, comply with Points b, c, d, dd, and e Clause 1 of this Article (for projects applying competitive bidding according to the single-stage, one-envelope method) or single-stage, two-envelope method, or points b, c, d, dd, e and g, Clause 2 of this Article (for projects applying competitive bidding according to the two-stage, one-envelope method).

Chapter II

INVESTOR SELECTION PROCEDURES FOR PROJECTS APPLYING COMPETITIVE BIDDING AND LIMITED BIDDING ACCORDING TO THE SINGLE-STAGE, ONE-ENVELOPE METHOD, OR SINGLE-STAGE, TWO-ENVELOPE METHOD

Section 1. ANNOUNCEMENT OF INVESTMENT PROJECTS

Article 9. Announcing investment projects subject to investment guideline approvals

Competent authorities shall post decisions on investment guideline approval on VNEPS within 5 working days from the dates of issuance.

Article 10. Announcing investment projects not subject to investment guideline approvals

1. For an investment project that is not subject to investment guideline approval, the competent person shall assign the agency under the ministry or ministerial-level agency; specialized agency, agency under the Provincial People's Committee, Economic Zone Management Board; or District-level People's Committee to prepare a corresponding project proposal, which includes the contents specified in Points b, c, d, dd and e, Clause 2, Article 47 of the Law on Bidding, and then submit it to Head of ministerial-level agency, President of the Provincial People's Committee, Head of Economic Zone Management Board for approval.

2. The competent agency shall post the investment project information in accordance with Clause 1 of this Article within 5 working days from the issuance date of the approval.

3. Investors may propose to implement investment projects other than projects approved and announced by competent authorities in accordance with Clauses 1 and 2 of this Article, unless special laws stipulate that investors are not allowed to propose projects themselves. The procedures for a project proposal are as follows:

a) The investor prepares a project proposal including the contents specified in Points b, c, d and e, Clause 2, Article 47 of the Law on Bidding and the corresponding contents specified in Points a, b and c Clause 1, Article 33 of the Investment Law.  The investor shall bear all the costs incurred in preparing the project proposal;

b) If an investment project falls under authority of the Provincial People's Committee, the investor shall submit 4 sets of project proposal to the corresponding Department of Planning and Investment. Within 3 working days from the date of receiving the project proposal, the Department of Planning and Investment shall report it to the President of the Provincial People's Committee to assign a specialized agency to synthesize and review the project proposal of that investor.

If an investment project falls under authority of a ministry, ministerial-level agency, or Economic Zone Management Board, the investor shall submit 4 sets of project proposal to an agency that is tasked by the Minister, Head of ministerial-level agency, or Head of Economic Zone Management Board to receive and review the project proposal of that investor;

c) Within 25 days from the date of assignment, the agency at Point b of this Clause shall verify the conformity of the project proposal with Clauses 4, 5 and 6, Article 1 of this Decree, and then submit it to the competent person for approval for the investment project;

d) The competent agency shall post the investment project information proposed by the investor on VNEPS within 5 working days from the issuance date of the approval.

Section 2. PREPARATION FOR BIDDING FOR INVESTOR SELECTION

Article 11. Preparation of and approval for the investor selection progress timeline

1. The competent person shall assign an agency, affiliated unit, or specialized agency to prepare an investor selection progress timeline according to Appendix I issued with this Decree.

2. The competent person shall approve the investor selection progress timeline, which determines the procuring entity, the form and method of bidding for investor selection, and the starting time of investor selection to implement the investment project.

3. If the investment project is subject to investment guideline approval according to investment law, the investor selection progress timeline shall be approved independently or concurrently with the decision on investment guideline approval.

4. If the investment project is not subject to investment guideline approval according to investment law, the investor selection progress timeline shall be approved r concurrently with the investment project information.

5. The competent authority shall post the approved investor selection progress timeline on the VNEPS within 5 working days from the issuance date of the approval.

Article 12. Bases for preparing Bidding document

1. Planning, plans, and programs, including:

a) Relevant planning and plans in accordance with law on planning, special laws, and relevant laws;

b) Construction planning that is appropriate to the scale and nature of the project in accordance with construction law and special laws and approved by the competent authority if the project has the construction phase. In case the investment project has many functions, the investment project is determined based on the main works of the project or the main works with the highest level in case the project has many main works in accordance with the construction law;

c) Programs and plans for housing development, building apartment renovation and construction in accordance with housing law (if the project is for social housing construction, apartment building renovation or re-construction).

2. The list of projects subject to land appropriation approved by the competent authority in accordance with land law (if the project is specified in Clause 4, Article 1 of this Decree and using land); or the decision on revocation of public assets that is approved by a competent authority in accordance with the law on management and use of public assets (if the project uses public assets subject to revocation).

3. The decision on investment guideline approval (if the project is subject to investment guideline approval in accordance with law on investment), or an approval for investment project information (if the project is not subject to investment guideline approval as prescribed in Article 9 or Article 10 of this Decree).

4. The investor selection progress timeline shall be approved in accordance with Clause 2, Article 11 of this Decree.

5. Other documents in accordance with special laws and relevant laws (if any).

Article 13. Preparation, appraisal of, and approval for Bidding document

1. The procuring entity assigns an expert team to prepare Bidding document according to the contents specified in Article 48 of the Law on Bidding for investors to prepare their bids.

2. Methods and criteria for evaluating bids are laid down in Articles 44, 45, 46 and 47 of this Decree.

3. Appraisal of and approval for Bidding document:

a) The procuring entity submits to the competent person the draft Bidding document and related documents, and sends them to the appraisal team;

b) The appraisal team shall appraise the Bidding document in accordance with Article 52 of this Decree;

c) The competent person approves the Bidding document in writing based on the approval request and appraisal report of the Bidding document.

Article 14. Shortlisting procedure for limited bidding

1. The procuring entity identifies a short list of at least 3 investors that meet the requirements of the investment project and wishes to participate in the bid, and submits the list to the competent person for approval.

2. After approval, the procuring entity publicly posts the short list on VNEPS.

3. Investors on the short list are not allowed to enter into joint ventures to participate in the bidding.

Section 3. ORGANIZATION OF BIDDING FOR INVESTOR SELECTION

Article 15. Conditions for issuance of Bidding document

Bidding document are only issued to select investors when the following conditions are met:

1. A decision on investment guideline approval is issued (if the project is subject to investment guideline approval in accordance with law on investment), or an approval for investment project information is issued (if the project is not subject to investment guideline approval as prescribed in Article 9 or Article 10 of this Decree).

2. The investment project is announced in accordance with Article 9 or Article 10 of this Decree.

3. The Bidding document are approved.

4. Other conditions in accordance with special laws (if any).

Article 16. Invitation to bid, issuance, modifications and clarifications of Bidding document; extension of deadline for submission of bids

1. Invitation to bid:

a) The invitation to bid is posted in accordance with Clause 2, Article 8 of the Law on Bidding.  For projects subject to international competitive bidding as prescribed in Clause 2, Article 11 of the Law on Bidding, the invitation for bid must be posted in English and Vietnamese on VNEPS and on the websites of relevant Ministries, the Provincial People's Committee (if any), or an English-language newspaper published in Vietnam;

b) Send invitations to bid to investors on the short list for limited bidding.

2. Issuance of Bidding document:

a) For competitive bidding, Bidding document are published on VNEPS.  The procuring entity posts a complete file of Bidding document free of charge on VNEPS;

b) For limited bidding, Bidding document are issued to investors on the short list.

3. Modification of Bidding document:

In case of modifications of the Bidding document after issuance, the procuring entity must post on the VNEPS the modification decision enclosed with the detailed modifications of the Bidding document and the modified Bidding document.  The posting of the decision on modifications of the Bidding document is done at least 15 days for domestic bidding and 25 days for international bidding before the deadline for submission of bids. In case there is not enough time, the deadline for submission of bids must be extended.

4. Clarifications of Bidding document:

case the Bidding document need to be clarified, the investor shall send a written request for clarification to the procuring entity on VNEPS within at least 7 working days (for domestic bidding), 15 days (for international bidding) before the bid submission deadline.  Clarifications of Bidding document are carried out by the procuring entity in one or more of the following forms:

a) Posting detailed clarifications on VNEPS;

b) If necessary, organize a pre-bid meeting to discuss matters in the Bidding document that investors are unclear about.  The communication must be made into a record by the procuring entity to clarify the Bidding document and must be posted on VNEPS.

The detailed clarifications of the Bidding document must be posted on the VNEPS at least 2 working days before the bid submission deadline and must not be contrary to the content of the Bidding document which were already posted on the VNEPS. In case the clarifications of the Bidding document leads to the need to modify the Bidding document, the modifications of the Bidding document shall comply with Clause 3 of this Article.

5. The decision on modifications or written clarification of the Bidding document is an integral part of the Bidding document.

6. In case it is necessary to extend the bid submission deadline, the procuring entity shall post a notice of extension along with the decision to approve the extension on VNEPS.  The notice of extension must clearly state the reason for the extension, new deadline for bid submission.

Article 17. Preparation, submission, receipt, management, modification, replacement, and withdrawal of bids

1. Investors prepare and submit bids according to the requirements of the Bidding document.

2. The procuring entity receives bids from all investors submitted before the bid submission deadline and manages submitted bids in a confidential manner until the investor selection result is made public; information in the Bidding document of investors participating in the bidding must not be disclosed, except for information disclosed when the bid is opened.

3. When there is a request to modify, replace or withdraw the submitted bid, the investor must send a written request to the procuring entity.  The procuring entity only accepts the modifications, replacement, or withdrawal of the investor's bid when receiving a written request before the bid submission deadline.

4. Bids or documents sent by the investor to the procuring entity after the bid submission deadline are invalid, cannot be opened and are rejected, except for documents clarifying the bid at the request of the procuring entity, or clarifying and additional documents to prove the investor's eligibility, capacity and experience.

Section 4. EVALUATION OF BIDS FOR PROJECTS APPLYING THE SINGLE-STAGE, ONE-ENVELOPE METHOD

Article 18. Bid opening

1. The bid opening must be conducted publicly and begin within 2 hours from the bid submission deadline.  The procuring entity only opens bids received before the bid submission deadline according to the requirements of the Bidding document in the presence of representatives of investors attending the bid opening ceremony, regardless of the presence or absence of investors.

2. The procuring entity checks the seal and opens each bid in alphabetical order by investor's name and clearly reads the following information:

a) Name of investor;

b) Number of originals and copies of documents;

c) The value proposed by the investor for investment efficiency in the development of industry, field and locality in the bid, which includes one or more of the following information:  value in money paid to the state budget; proportion of revenue that the investor proposes to pay to the state budget; prices of goods and services; the amount of technical infrastructure, social infrastructure, public space serving the community surrounding the project and accompanying operating services; the value of social assistance activities for social protection beneficiaries or the value of other social welfare activities that the investor contributes to the locality; threshold for total emissions of toxic substances;

d) Proposal to increase or decrease the value specified in point c of this clause (if any);

dd) Validity period of the bid;

e) Value and validity of bid security;

g) Other related information.

3. The bid opening record includes the information specified in Clause 2 of this Article, must be signed by the representative of the procuring entity and investors attending the bid opening ceremony, and then be sent to the attending investors.

4. The representative of the procuring entity signs the original letter of bid and the authorization letter of the investor's legal representative (if any); joint venture agreement (if any); bid security; contents of business investment plans and proposals on investment efficiency in developing the industry, field and locality of each bid.

Article 19. Principles for evaluating bids

1. The evaluation of a bid is based on the bid evaluation criteria and other requirements in the Bidding document, based on the submitted bid and the documents clarifying the investor’s bid so as to ensure the selection of an investor with sufficient capacity and experience and feasible technical and financial plan to implement the project.

2. The evaluation of a bid is done on photocopies, the investor is responsible for the consistency between the original and the photocopies. In case there is a deviation between the original and the photocopy but does not change the investor ranking order, the evaluation will be based on the original.  In case there is a deviation between the original and the photocopy, leading to a different evaluation result on the original than the evaluation result on the photocopy, changing the ranking order of the investor, that investor's bid will be disqualified.

3. When evaluating a bid, the procuring entity must check the technical and financial contents of the bid to ensure that the bid has no deviations, reservations, or omissions of basic contents, where:

a) “deviation” means a departure from the requirements specified in the Bidding document; “reservation” is the setting of limiting conditions or withholding from complete acceptance of the requirements specified in the Bidding document; “omission” is the failure to submit part, or all of the information or documentation required in the Bidding document.

b) Provided that a bid is substantially responsive to the requirements of the Bidding document, the procuring entity may accept nonconformities that are not deviations, reservations, or omissions;

c) Provided that a bid is substantially responsive to the requirements of the Bidding document, the procuring entity may require the investor to provide necessary information or documentation, within a reasonable period of time, to rectify non-material nonconformities or deviations in the bid related to the documentation requirements. Requests to provide information and documents to rectify these nonconformities or deviations must not affect the investor's proposal for investment effectiveness in developing the industry, field, and locality of the investor. Failure to comply with the request of the procuring entity may result in disqualifying the investor.

Article 20. Clarification of bids

1. After bid opening, in case the investor's bid lacks documents on eligibility, financial statements, and documents proving their experience in implementing similar projects, the procuring entity may request the investor to clarify and supplement documents to prove their eligibility, capacity and experience.  The investor must clarify the bid when requested by the procuring entity.  Clarification of the investor’s eligibility, capacity, and experience may not change the nature of the eligibility, capacity, and experience of the investor participating in the bid.

2. After closing the bid, in case the investor discovers that the bid lacks information and documents about their capabilities, they will be sent for clarification.  The procuring entity shall receive clarifying and supplementing documents to prove the investor's eligibility, capacity and experience for evaluation. These documents are considered an integral part of the bid.

3. Clarifications of proposals on the business investment plan, proposals on investment efficiency in developing the industry, field, and locality must ensure the principle of not changing the corresponding proposals in the bid that has been submitted.

4. Clarification of a bid is only done between the procuring entity and the investor whose bid needs to be clarified.  The clarification of the bid must be made in writing and kept by the procuring entity as an integral part of the bid.

Article 21. Evaluation of bids

1. Check the validity of the bid, including:

a) Check the number of originals and photocopies of the bid;

b) Check the required documents of the bid, including: letter of bid, joint venture agreement (if any), authorization letter to sign the letter of bid (if any); bid security; documents proving the eligibility of the person signing the letter of bid (if any); documents proving the investor's eligibility, capacity and experience; proposal on the business investment plan; proposal on investment efficiency in developing the industry, field, and locality; other documents of the bid;

c) Check the consistency of content between the original and the photocopy(ies) to serve the detailed evaluation process of the bid.

2. Evaluate the validity of the bid:

An investor's bid is considered valid when it fully meets the following requirements:

a) There is the original bid;

b) There is a valid letter of bid, signed and sealed by the investor's legal representative (if any) as required in the Bidding document.  For a joint venture investor, the letter of bid must be signed and sealed by the legal representative of each joint venture party (if any), or the party assigned to by the joint venture to sign the letter of bid according to the assigned responsibilities in the joint venture agreement;

c) The value stated in the bid must be specific and fixed in numbers and words; do not propose different values ​​in terms of investment efficiency for development of industry, field, locality or include conditions that are disadvantageous to competent authorities or the procuring entity;

d) The validity of the bid meets the requirements as prescribed in the Bidding document;

dd) There is a valid bid security;

e) The investor is not named in two or more bids as an independent investor or a joint venture party;

g) There is a joint venture agreement signed and sealed by the legal representative of each joint venture party (if any);

h) The investor ensures eligibility in accordance with Article 5 of the Law on Bidding.

3. Evaluate the bid:

a) Evaluation of a bid includes evaluation of investor's capacity and experience, evaluation of the business investment plan, and evaluation of investment effectiveness in developing the industry, field, and locality;

b) The evaluation of the bid is carried out according to the evaluation methods and criteria specified in the Bidding document.

4. After evaluating the bid, the expert team prepares a report and sends it to the procuring entity for consideration.  The report must clearly state the following:

a) Investor ranking list;

b) List of non-responsive and disqualified investors; reasons for investor rejection;

c) Comments on competitiveness, fairness, transparency, and economic efficiency in the investor selection process.  In cases where competitiveness, fairness, transparency, and economic efficiency are not guaranteed, the reasons and proposed solutions must be clearly stated.

5. Consideration for contract award:

The investor considered for contract award must fully meet the requirements prescribed in Article 48 of this Decree.

Section 5. EVALUATION OF BIDS FOR PROJECTS APPLYING THE SINGLE-STAGE, TWO-ENVELOPE METHOD

Article 22. Opening of technical proposals

1. The opening of a technical proposal must be conducted publicly and begin within 2 hours from the bid submission deadline.  The procedure for opening a technical proposal shall comply with Article 18 of this Decree.  The record of opening technical proposal includes the information specified in Points a, b, dd, e and g, Clause 2, Article 18 of this Decree.

2. The financial proposals of all investors must be sealed in a separate envelope by the procuring entity and must be signed and sealed by representatives of the procuring entity and investors attending the technical proposal opening ceremony.

Article 23. Evaluation of technical proposals

1. Check the validity of the technical proposal, including:

a) Check the number of originals and photocopies of the technical proposal;

b) Check the required documents in the technical proposal, including:  Letter of bid in the technical proposal, joint venture agreement (if any), authorization letter to sign the letter of bid (if any); bid security; documents proving the eligibility of the person signing the letter of bid (if any); documents proving the investor's eligibility, capacity and experience; technical proposal; other documents of the technical proposal;

c) Check the consistency between the original and the photocopy to serve the detailed evaluation of the technical proposal.

2. Evaluate the validity of the technical proposal:

The investor's technical proposal is considered valid when it fully meets the following requirements:

a) There is the original technical proposal;

b) There is a letter of bid in a valid technical proposal, signed and sealed by the investor's legal representative (if any) as required in the Bidding document.  For a joint venture investor, the letter of bid must be signed and sealed by the legal representative of each joint venture party (if any), or the party assigned to by the joint venture to sign the letter of bid according to the assigned responsibilities in the joint venture agreement;

c) The validity of the technical proposal meets the requirements as prescribed in the Bidding document;

d) There is a valid bid security;

dd) The investor is not named in two or more technical proposals as an independent investor or a joint venture party;

e) There is a valid joint venture agreement in case of joint venture;

g) The investor ensures eligibility in accordance with Article 5 of the Law on Bidding.

3. The procedure for clarification of a technical proposal shall comply with Article 20 of this Decree.

4. Evaluate the technical proposal:

a) Principles for evaluating a technical proposal comply with Article 19 of this Decree;

b) Investors with valid technical proposals that meet capacity and experience requirements, and business investment plan requirements will be considered and have their financial proposals opened.

Article 24. Approval for the list of technically-responsive investors

1. The procuring entity shall consider approving the list of technically-responsive investors submitted by the expert team.

2. The procuring entity notifies the list of technically-responsive investors to all investors participating in the bidding and invites investors participating in the bidding to open financial proposals. The notice clearly states the time and location of opening the financial proposals.

Article 25. Opening of financial proposals

1. Financial proposals of investors named in the list of technically-responsive investors are opened publicly at the time and location stated in the notice of list of technically-responsive investors.  The bid opening record includes information specified in Clause 2, Article 18 of this Decree and must be sent to investors participating in the bid.

2. The representative of the procuring entity signs the original letter of bid, and the authorization letter of the investor's legal representative (if any); joint venture agreement (if any); bid security; business investment proposals on investment efficiency in developing the industry, field and locality of each financial proposal.

Article 26. Evaluation of financial proposals

1. Check the validity of the financial proposal, including:

a) Check the number of originals and photocopies of the financial proposal;

b) Check the required documents in the financial proposal, including:  The letter of bid in the financial proposal; other documents in the financial proposal;

c) Check the consistency between the original and the photocopy to serve the detailed evaluation of the financial proposal.

2. Evaluate the validity of the financial proposal:

The investor's financial proposal is considered valid when it fully meets the following requirements:

a) There is the original financial proposal;

b) There is a letter of bid in a valid financial proposal, signed and sealed by the investor's legal representative (if any) as required in the Bidding document.  For a joint venture investor, the letter of bid must be signed and sealed by the legal representative of each joint venture party (if any), or the party assigned to by the joint venture to sign the letter of bid according to the assigned responsibilities in the joint venture agreement;

c) The value stated in the letter of bid in the financial proposal must be specific and fixed in numbers and words; do not propose different values ​​in terms of investment efficiency for development of industry, field, locality or include conditions that are disadvantageous to competent authorities or the procuring entity;

d) Validity of the financial proposal must meet the requirements of the Bidding document.

Investors with valid financial proposals will undergo a detailed financial evaluation in accordance with Clause 4 of this Article.

3. The procedure for clarification of a financial proposal shall comply with Article 20 of this Decree.

4. Evaluation of financial proposals:

a) Principles for evaluating a financial proposal comply with Article 19 of this Decree;

b) Detailed evaluation of financial proposals and investor ranking is carried out according to the evaluation methods and criteria specified in the Bidding document.

5. After evaluating the bid, the expert team prepares a report and sends it to the procuring entity for consideration.  The report must clearly state the following:

a) Investor ranking list;

b) List of non-responsive and disqualified investors; reasons for investor rejection;

c) Comments on competitiveness, fairness, transparency and economic efficiency in the investor selection process.  In cases where competitiveness, fairness, transparency, and economic efficiency are not guaranteed, the reasons and proposed solutions must be clearly stated.

6. Consideration for contract award shall comply with Article 48 of this Decree.

Section 6. SUBMISSION, APPRAISAL, APPROVAL, AND PUBLICATION OF INVESTOR SELECTION RESULT

Article 27. Submission, appraisal of and approval for investor selection result

1. The submission, appraisal of and approval for investor selection result are carried out as follows:

a) Based on the report on the results of bid evaluation, the procuring entity submits to the competent person the results of investor selection, and also sends them to the appraisal team to organize the appraisal, clearly stating the opinions of the procuring entity on the detailed evaluation of the expert team;

b) The appraisal team shall appraise the investor selection result in accordance with Article 53 of this Decree before approval;

c) The competent person approves the investor selection result in writing based on the approval request and appraisal report of the investor selection result.

2. In case the successful investor is selected, the document approving the investor selection result includes the following:

a) Project name;

b) Name of the successful investor and the enterprise expected to be established by the successful investor (if any);

c) One or more information specified in Point c, Clause 2, Article 18 of this Decree;

d) Other contents (if any).

3. In case of bid cancellation in accordance with Point a, Clause 2, Article 17 of the Law on Bidding, the approval for investor selection result or decision on bid cancellation must clearly state the reason for the bid cancellation and the responsibilities of related parties when canceling the bid.

Article 28. Publication of investor selection result

1. Within 5 working days from the date of the approval for investor selection result, the procuring entity posts information about the investor selection result on VNEPS according to Point d, Clause 2, Article 7 and Clause 4, Article 8 of the Law on Bidding, and also send a written notice of investor selection result to the investors participating in the bidding.

2. Contents of the notice of investor selection result:

a) Information specified in Clause 2, Article 27 of this Decree;

b) List of unsuccessful investors and reasons for not being selected for each investor;

c) Plan for negotiating, completing, and signing contracts with the successful investor.

Section 7. NEGOTIATION, FINALIZATION, AND SIGNING OF CONTRACTS

Section 29. Negotiation and finalization of contracts

1. Based on the investor selection result, the first-ranked investor is invited to negotiate and finalize the contract.  In case the investor is invited to negotiate and finalize the contract, but they do not participate or refuse to negotiate and finalize the contract, their bid security will not be returned.

2. The negotiation and finalization of the contract are carried out on the basis of:

a) Bid evaluation report;

b) The bid and clarification of the bid (if any) of the investor;

c) The Bidding document.

3. Principles for negotiating and finalizing a contract:

a) Do not negotiate and finalize the contract for the contents that the investor has offered in accordance with the requirements of the Bidding document;

b) Do not change the basic content of the bid.

4. Contents of negotiation and finalization of a contract:

a) Negotiate and finalize the proposed contents in the bid which are not detailed enough, unclear or different; or negotiate and finalize the inappropriate or inconsistent contents between the Bidding document and the bid which may lead to disputes or affect the rights and obligations of the parties during contract performance;

b) Negotiate issues that arise during the investor selection process (if any) to finalize the detailed contents of the contract;

c) Negotiate other contents related to the project to have a basis for establishing regulations on rights, obligations, and responsibilities in the contract;

d) Other necessary contents.

5. The investor is not allowed to change, withdraw, or refuse to implement the basic contents proposed in their bid that is evaluated as substantially responsive to the Bidding document by the procuring entity, unless any changes proposed by the investor brings greater efficiency to the project.

6. In case of unsuccessful negotiation and finalization of the contract, the procuring entity shall report to the competent person to consider cancelling the investor selection result and invite the next ranked investor to negotiate and finalize the contract.  In case of successful negotiation and finalization of the contract with the next ranked investor, the procuring entity submits, appraises, approves, and publicizes the investor selection result in accordance with Article 27 and Article 28 of the Decree.  In case of unsuccessful negotiation and finalization of the contract with the next ranked investor, the procuring entity shall report to the competent person to consider cancelling the bid in accordance with Point a, Clause 2, Article 17 of the Law on Bidding.

Article 30. Signing of contracts and posting major information of investment project contracts

1. The signing of investment project contracts is carried out in accordance with Articles 71, 72, 74 and 75 of the Law on Bidding.

2. An investment project contracts includes basic contents as prescribed in Article 73 of the Law on Bidding, Appendix II issued with this Decree and regulations of special laws (if any).

3. Within 5 working days from the effective date of the investment project contract, the procuring entity shall post major information of the contract on VNEPS.  The information to be posted includes:

a) Project name; contract number; time of contract signing;

b) Name and address of the competent authority;

c) Name and address of the investor;

d) Objectives and scale of the project;

dd) Estimated project implementation progress;

e) Project implementation location, area, land use term;

g) Estimated total investment capital;

h) One or more information specified in Point c, Clause 2, Article 18 of this Decree;

i) Other contents (if any).

Chapter III

INVESTOR SELECTION PROCEDURES FOR PROJECTS APPLYING COMPETITIVE BIDDING ACCORDING TO THE TWO-STAGE, ONE-ENVELOPE METHOD

Article 31. Preparation for bidding in first stage

1. The two-stage, one-envelope method is applied in the case of competitive bidding for investor selection to implement investment projects with specific requirements for economic and social development of the industry, field, locality but have not yet determined specific technical, economic, social and environmental standards as prescribed in Clause 3, Article 35 of the Law on Bidding.

2. Preparation process for bidding in first stage includes:

a) The preparation of and approval for investor selection progress timeline in accordance with Article 11 of this Decree, which determines the specific progress for each stage;

b) Disclosure of investment project information shall comply with Article 9 or Article 10 of this Decree;

c) The preparation of the Bidding document in first stage shall comply with Clause 3 of this Article;

d) The appraisal of and approval for the Bidding document in first stage shall comply with Clause 3, Article 13 of this Decree.

3. The Bidding document in first stage are prepared based on Article 12 of this Decree, including the following basic contents:

a) General information about the project, including:  project name; objectives; investment scale; investment capital; project implementation location; current status of land use and area of land for project implementation; purpose of land use; approved planning targets; project implementation deadline and progress;

b) Instructions for preparing and submitting bids in first stage;

c) Requirements pertaining to investor eligibility in accordance with Article 5 of the Law on Bidding;

d) Declaration of investor’s history of litigation resulting from contracts completed or ongoing under its execution;

dd) Preliminary ideas about the business investment plan; investment efficiency and development of the industry, field, and locality;

e) Other necessary contents (if any).

The Bidding document in first stage does not require investors to make financial proposals and furnish a bid security.

Article 32. Organization of bidding in first stage

1. The invitation to bid in first stage shall comply with Clause 1, Article 16 of this Decree.

2. The issuance, modification, and clarification of the Bidding document shall comply with Clauses 2, 3 and 4, Article 16 of this Decree.

3. Preparation, submission, receipt, management, modification, replacement, and withdrawal of bids shall comply with Article 17 of this Decree.

4. Bid opening:

a) The bid opening must be conducted publicly and begin within 2 hours from the bid submission deadline.  The record of bid opening must be sent to investors participating in the bid;

b) The representative of the procuring entity signs the original letter of bid, and the authorization letter of the investor's legal representative (if any); joint venture agreement (if any); bid security; important contents of each bid.

5. Discussion about the bid in first stage:

a) Based on the requirements specified in the Bidding document and investors' proposals in bid in the first stage, the procuring entity discusses with each investor to accurately request the business investment plan, investment efficiency in development of the industry and field of the project as a basis for completing the Bidding document in second stage;

b) Discussion about the bid in first stage must not change the content of the decision on investment guideline approval (if the project is subject to investment guideline approval) or content of the approval for investment project information (if the project is not subject to investment guideline approval);

c) The discussion result is made into a record with signatures of the representatives of the procuring entity and the bidding investors, and then sent directly to the investors.

Article 33. Preparation for and organization of bidding in second stage

1. The Bidding document in second stage is prepared based on Article 12 of this Decree and the discussion result about the Bidding document in first stage.

2. The content of the Bidding document in second stage is prepared in accordance with Clauses 1 and 2, Article 13 of this Decree.

3. The appraisal of and approval for the Bidding document in second stage shall comply with Clause 3, Article 13 of this Decree.

4. Organization of bidding:

a) The procuring entity invites investors who have submitted bids in first stage to receive the Bidding document in second stage. The issuance, modification, and clarification of the Bidding document in second stage shall comply with Clauses 2, 3 and 4, Article 16 of this Decree;

b) The preparation, submission, receipt, management, modification, replacement, and withdrawal of bids shall comply with Article 17 of this Decree;

c) The bid opening shall comply with Article 18 of this Decree.

Article 34. Evaluation of bids in second stage

1. The bid evaluation shall comply with Article 19 of this Decree.

2. The bid clarification shall comply with Article 20 of this Decree.

3. The bid evaluation in second stage shall comply with Article 21 of this Decree.

Article 35. Submission, appraisal of,  approval for, and publicization of investor selection result; negotiation, finalization, signing of contracts, publication of project contract information

1. The submission, appraisal of, approval for, and publicization of investor selection result shall comply with Article 27 and Article 28 of this Decree.

2. The negotiation, finalization, signing of contracts, publication of project contract information shall comply with Article 29 and Article 30 of this Decree.

Chapter IV

INVESTOR SELECTION PROCEDURES FOR PROJECTS WHICH NEED TO DETERMINE THE NUMBER OF INTERESTED INVESTORS

Article 36. Application of procedures for invitation for expression of interests (invitation for EOIs)

1. Procedures for invitation for expression of interests apply to projects that need to determine the number of interested investors in accordance with special laws specified in Point h, Clause 4, Article 1 of this Decree.

2. International invitation for EOIs applies to investment projects specified in Clause 1 of this Article, except for the cases specified in Points a, b, c and d, Clause 2, Article 11 of the Law on Bidding and other cases as prescribed by special laws.

3. The competent person will assign an agency or unit under a ministry or ministerial-level agency; specialized agency, agency under the Provincial People's Committee, Economic Zone Management Board; District-level People's Committee to act as the EOI requester.

4. The EOI requester shall follow the procedures specified in Articles 37, 38, 39, 40, 41 and 42 of this Decree. The competent authority shall create and delegate a specialized account to the EOI requester to post information and invite EOIs on VNEPS.

Article 37. Preparation for invitation for EOIs

Before invitation for EOIs, the competent authority shall publish the project information on VNEPS in one of the following two cases:

1. If the project is subject to investment guideline approval, the competent authority shall post the decision on investment guideline approval.

2. If the project is not subject to investment guideline approval, based on the project proposal prepared and approved in accordance with Article 10 of this Decree, the competent authority shall post the information specified in Points b, c, d and e, Clause 2, Article 47 of the Law on Bidding.

Article 38. Preparation of and approval for EOI request

1. EOI request is prepared based on Article 12 of this Decree.

2. Contents of the EOI request include:

a) Instructions to investors;

b) Requirements pertaining to investor eligibility in accordance with Article 5 of the Law on Bidding;

c) Methods and criteria for preliminary assessment of the investor's capacity and experience as prescribed in Clauses 3 and 4 of this Article;

d) EOI forms;

dd) Information and requirements for implementing investment projects;

e) Other related contents (if any).

3. The pass and fail method is applied to make a preliminary assessment of the investor's capacity and experience.  The investor is assessed as meeting the preliminary requirements for capacity and experience when all standards are assessed as passed.

4. Preliminary assessment criteria for investor’s capacity and experience, including:

a) Equity requirements as prescribed in Point a, Clause 1, Article 45 of this Decree;

b) The investor's experience in implementing similar projects as prescribed in Points a and b, Clause 2, Clause 3 and Clause 4, Article 45 of this Decree.

5. In case the project applies domestic invitation for expression of interests but needs to promote the use of advanced technology, techniques, and international management experience, the EOI request can apply Clause 5, Article 45. of this Decree.

6. The EOI request only states the requirements for the purpose of selecting an investor that meets the eligibility, capacity, and experience in project implementation; and may not state any conditions to limit the participation of investors or to create an advantage for one or several investors, causing unfair competition.

7. The EOI request is prepared and approved at the same time during the process of deciding on investment guideline approval (if the project is subject to investment guideline approval according to the law on investment) or during the preparation of and approval for investment project information (if the project is not subject to investment guideline approval) or after these decisions are approved by competent authorities.

Article 39. EOI invitation, issuance and clarification of EOI request; extension of the deadline for submitting project registration application

1. The EOI invitation is posted on VNEPS in accordance with Clause 2, Article 8 of the Law on Bidding.  For projects subject to international competitive bidding as prescribed in Clause 2, Article 36 of the Law on Bidding, the EOI invitation must be posted in English and Vietnamese on VNEPS and on the websites of relevant Ministries, the Provincial People's Committee (if any), or an English-language newspaper published in Vietnam.

2. The EOI request is published on VNEPS.  The EOI requester posts a complete file of EOI request free of charge on VNEPS.

3. In case of modifications of the EOI request after issuance, the EOI requester must post on the VNEPS the modification decision enclosed with the detailed modifications of the EOI request and the modified EOI request.  The posting of the modified decision on VNEPS is done at least 10 days before the deadline for submitting project registration application.

4. Clarification of EOI request:

a) In case it is necessary to clarify the EOI request, the investor shall send a request for clarification to the EOI requester on VNEPS at least 5 working days before the deadline for submitting project registration application.

b) The clarification of the EOI request must be posted on VNEPS at least 2 working days before the deadline for submitting project registration application;

c) The clarification of the EOI request must not be contrary to the content of EOI request which was posted on VNEPS.  In case the clarifications of the EOI request leads to the need to modify the EOI request, the modifications of the EOI request shall comply with Clause 3 of this Article;

d) The decision on modifications or written clarification of the EOI request is an integral part of the EOI request.

5. In case it is necessary to extend the deadline for submitting the project registration application, the EOI requester shall post a notice of extension along with the decision to approve the extension on VNEPS.  The notice of extension must clearly state the reason for the extension, new deadline for bid submission.

Article 40. Preparation, submission, receipt, modification, and withdrawal of project registration application

1. Investors prepare and submit project registration applications on VNEPS according to the requirements of the EOI request.  The duration to prepare a project registration application is at least 30 days from the first date of issuing EOI request to the bid submission deadline.

2. The project registration application of the investor includes: project registration application form; documents on the investor's legal status, capacity and experience; other relevant documents (if any).

3. The modification and withdrawal of the project registration application can only be made before the deadline for submitting the project registration application.

Article 41. Bid opening and evaluation of project registration application

1. The bid opening is carried out on VNEPS and begins within 2 hours from the deadline for submitting the project registration application.

2. The EOI requester organizes the evaluation of the project registration applications submitted by the investors. Investors are responsible for clarifying the project registration application at the request of the EOI requester or by themselves if they found that their submitted project registration application is missing documents regarding their certain capacity and experience. All clarification requests and clarification documents from investors are made on VNEPS.

Article 42. Submission of, approval for, and publication of the results of invitation for EOIs

1. Based on the results of evaluating the project registration application, the EOI requester proposes the competent person to review and approve the results of the invitation for EOIs and organize investor selection as follows:

a) In case there are two or more investors that meet the requirements of EOI request, competitive bidding will be held to select the investor in accordance with Article 43 of this Decree;

b) In case there is only one investor registered and meets the requirements of EOI request or there are many investors registered but only one investor meets the requirements of EOI request, then that qualified investor will be approved in accordance with investment law;

c) In case there are no interested investors, or no investors meet the requirements of the EOI request, a written notice of completion of the invitation for EOIs will be issued.

2. For projects specified in Point a, Clause 1 of this Article, the competent person shall approve the investor selection progress timeline in accordance with Article 11 of this Decree, which shall decide the procuring entity, form and method of bidding for investor selection, time to start organizing the selection of investors to implement investment projects.  The form of bidding to select investors is determined according to the following regulations:

a) Domestic competitive bidding if no foreign investor submits a project registration application or no foreign investor meets the requirements of the EOI request as prescribed in Point dd, Clause 2, Article 11 of the Law on Bidding;

b) International competitive bidding if at least one foreign investor meets the requirements of EOI request.

3. For the case specified in Point c, Clause 1 of this Article, the competent person shall notify in writing of completion of the invitation for EOIs and consider carrying out one of the following two procedures:

a) Re-implement the procedure for inviting EOIs within the time limit decided by the competent person;

b) Review and edit EOI request but must ensure compliance with the decision on investment guideline approval or project information approval and re-implement the procedure for invitation for EOIs.

4. Based on the decision of the competent person specified in Clause 1 of this Article, the EOI requester shall post the results of invitation for EOIs and the investor selection progress timeline or notice of completion of the procedure for inviting EOIs on VNEPS.

Article 43. Investor selection procedures

The procedures for competitive bidding for investor selection comply with Sections 2 to 7, Chapter II or Chapter III of this Decree.

Chapter V

METHODS AND CRITERIA FOR EVALUATION OF BIDS

Article 44. Evaluation method

1. The evaluation of investors' bids is carried out on the basis of the methods and criteria specified in Article 62 of the Law on Bidding, detailed criteria and standards specified in Articles 45, 46 and 47 of this Decree.

2. Bids are evaluated on a scale of 100 or 1,000, in which the aggregate score is built on the basis of a combination of capacity and experience score, business investment plan score and score of investment efficiency in the industry, field, and locality, ensuring a total proportion of 100%, of which:

a) Capacity and experience score accounts for 20% to 30% of the total score;

b) Business investment plan score accounts for 20% to 50% of the total score;

c) Score of investment efficiency in the industry, field, and locality accounts for 30% to 50% of the total score.

3. Investors must meet the following minimum scores to be evaluated and ranked:

a) The minimum aggregate score must not be lower than 70% of the total score;

b) The minimum score of a standard or detailed criterion is not lower than 60% of the maximum score of that criterion. For projects applying the single-stage, two-envelope method, the minimum score of the standard and detailed criterion specified in Article 45 and Article 46 of this Decree is not lower than 70% of the maximum score of the criterion;

c) The minimum score of each criterion is not lower than 50% of the maximum score of that criterion.

Investors who meet the minimum score of each criterion specified in this Clause and have the highest aggregate score are ranked first.

4. For investment projects with specific requirements on business investment conditions, management and development of the industry and field in accordance with investment law and special laws, the Bidding document specifies one or more evaluation criteria for the investor's business investment plan or the investment efficiency in developing the industry, field, and locality without having to build a scoring scale for this fixed criterion.

Article 45. Evaluation criteria for capacity and experience

1. Evaluation criteria for financial capacity and ability to arrange capital include the following:

a) Equity requirements are determined on the basis of the total investment capital of the project;

For projects specified in Clause 4, Article 1 of this Decree and using land, the minimum equity requirement is determined in accordance with the land law. For other projects, the minimum equity requirement is determined in accordance with special laws. In cases where the special laws do not stipulate that, the minimum equity requirement is not lower than 15% of total investment capital.

In case of a joint venture, the equity of the joint venture investor is equal to the total equity of the joint venture parties, each joint venture party must meet the requirements corresponding to the equity contribution according to the joint venture agreement. The lead party in the joint venture must have a minimum equity contribution rate of 30%, and each joint venture party must have a minimum equity contribution rate of 15%.

b) Requirements on the investor's ability to mobilize loan capital; in case of a joint venture, the loan capital of the joint venture investor is equal to the total loan capital of the joint venture parties;

c) Requirements for financial indicators (if any).

2. Evaluation criteria for experience in implementing similar projects based on field; investment scale; duration and level of completion of works and projects; equity ratio that the investor has participated in similar projects, including the following criteria:

a) Experience in investing and constructing similar works and projects (for projects with construction components); experience in investing in similar projects (for projects without construction components);

b) Experience in operating and trading similar works and projects;

c) Requirements for experience of key personnel and specialized equipment (if any);

d) Require investors to declare history of litigation resulting from projects completed or ongoing under its execution; competent authorities' assessment of the investor's operating process in the provinces or centrally affiliated cities where the projects are implemented (if any).

3. In case of a joint venture, the joint venture investor's experience in implementing similar projects specified in Clause 2 of this Article is equal to the total number of projects that the joint venture parties have implemented.

4. Investors may use their partners' experience to demonstrate their experience in implementing similar projects specified in Clause 2 of this Article. Partner is an organization that signs a contract with an investor to participate in implementing an investment project and is proposed by the investor in their Bid based on the experience requirements specified in the Bidding document.

5. In case the project applies domestic bidding but needs to promote the use of advanced technology, techniques, and international management experience, the Bidding document may stipulate that domestic investors can engage foreign contractors as partners.

6. For investment projects undergoing the procedures specified in Article 43 of this Decree, evaluation criteria for capacity and experience must be updated and supplemented based on preliminary requirements on capacity and experience, Clauses 1, 2, 3, 4 and 5 of this Article and documents specified in Article 12 of this Decree.

Article 46. Evaluation criteria for investors' business investment plans

1. Technical evaluation criteria:

a) Requirements on the suitability of the investment plan and project construction of the investor (including scope, scale, preliminary total project implementation costs, time, progress, phasing construction investment) with planning and plans approved by competent authorities in accordance with law on planning, construction, management of industries and fields and relevant laws; housing development programs and plans, apartment renovation and construction plans in accordance with housing law (for social housing construction projects, apartment building rebuilding and renovation projects);

b) Requirements on the suitability of the architectural design proposed by the investor, including requirements on the main functions of the project, technical infrastructure, architecture, and landscape to ensure synchronization with the overall design of the construction works (for projects with construction components), except for the provisions in Point g of this Clause;

c) Requirements on feasibility of technology application solutions proposed by investors; technology transfer requirements (if any); requirements for conformity with regulations on technology criteria for domestic solid waste treatment in accordance with law on environmental protection (for investment projects to construct domestic solid waste treatment works);

d) Requirements for compliance with investment and business conditions according to investment laws and special laws (if any); requirements on phasing plans, operation and business of the investor;

dd) Requirements on the compatibility of the betting system investment plan and betting business plan with the provisions of law on the business of betting on horse racing, greyhound racing, and international football (applicable to projects for international football betting business; horse racing and greyhound racing projects, including horse racing and greyhound racing betting business);

e) Requirements pertaining to the quality of goods and services provided by investors (applicable to projects for building domestic solid waste treatment works, projects in the field of private sector involvement incentives); requirements pertaining to specialized techniques, scope and scale of dredging, volume of recovered products (applicable to projects for dredging seaport waters, inland waterway waters combined with product recovery); requirements pertaining to clean water quality, reducing water loss rate and ensuring safe, continuous and stable water supply (applicable to projects for building water supply sources, projects for building water supply system);

g) Requirements for the main functions of the technical infrastructure, and landscape to be synchronized with the overall project (applicable to aviation service works at airports and airfields with construction components).

2. Social evaluation criteria:

a) Requirements pertaining to plans for and costs of compensation, support, and resettlement (if any);

b) Requirements pertaining to the ability to contribute to social welfare for local workers through the employment of local workers, human resource training, average income level and average income growth rate;

c) Requirements for the people to meet healthcare needs and benefits, and educational and training benefits (applicable to projects that encourage private sector involvement in the fields of health and education).

3. Environmental evaluation criteria:

a) Requirements pertaining to the conformity of the works, goods and services provided with the environmental law; requirements pertaining to solutions for dredging seaport waters and inland waterway waters to limit recovery of products affecting seaport waters and inland waterway waters (applicable to projects for dredging seaport waters, inland waterways combined with product recovery);

b) Requirements for applying solutions to minimize adverse impacts on the environment (applicable to projects in the group with a high risk of adverse impacts on the environment in accordance with law on environmental protection);

c) Requirements pertaining to environmental protection, clean production, and energy saving;

d) Requirements pertaining to land and resource use rates; ability to preserve or improve land, resources, and natural ecosystems in the project area.

Article 47. Evaluation criteria for investment efficiency in developing the industry, field, and locality

Requirements for development of the industry, field, and locality, evaluation criteria for investment efficiency in developing the industry, field, and locality are built on the basis of one of the following criteria:

1. Value in money transferred to the state budget applicable to projects for dredging seaport waters and inland waterways combined with product recovery, in which:

a) Minimum value of the difference between dredging costs and the value of recovered products in case the project's dredging costs are less than or equal to the value of recovered products;

b) Maximum value of the difference between dredging costs and the value of recovered products in case the project's dredging costs are greater than the value of recovered products.

2. Minimum value in money transferred to the state budget is determined based on specific requirements and criteria specified in the special laws.

3. The minimum revenue ratio shared by the investor is equivalent to the value in money transferred to the state budget according to the business investment plan used to prepare the Bidding document for an aviation service work at an airport or airfield that generates revenue.

4. Price bracket and maximum price in accordance with the law on prices and the special laws.

5. The minimum amount of technical infrastructure, social infrastructure, public space serving the community surrounding the project and accompanying operational services are appropriate to the needs of the locality where the project is implemented.

6. Minimum value of social assistance activities for social protection beneficiaries or minimum value of other social welfare activities that the investor contributes to the locality, in accordance with the needs of locality where the project is implemented.

7. Maximum threshold for total emission of toxic substances in accordance with law on environmental protection.

The values and ratios specified in Clauses 1, 2 and 3 of this Article are independent from the investor's obligations to the state budget as prescribed by law.

Article 48. Principles for consideration for contract award

1. An investor is considered awarding a contract when they fully meet the following conditions:

a) They have a valid bid;

b) They meet the capacity and experience requirements;

c) They meet the business investment plan requirements;

d) They meet the requirements pertaining to investment efficiency in development of the industry, field, and locality;

dd) They have the highest aggregate score of capacity and experience; business investment plan; and investment efficiency in developing the industry, field, and locality.

2. For unsuccessful investors, they shall be provided with a notice of investor selection result that states the reason they did not win the bid.

Chapter VI

INVESTMENT PROJECT IMPLEMENTATION

Article 49. Establishing an enterprise to implement the investment project of the successful investor

1. The successful investor has the right to establish an enterprise to implement the investment project or directly implement the project.  A successful foreign investor must establish an enterprise to implement the project.  The establishment, management, operation and dissolution of enterprises comply with law on enterprises, investment, and relevant laws.

2. In case of planning to establish an enterprise to implement a investment project as prescribed in Clause 1 of this Article, the investor must propose it in their bid.

3. An enterprise established by the investor in accordance with Clauses 1 and 2 of this Article has the following rights and obligations:

a) The enterprise must have 100% charter capital held by the successful investor;

b) The enterprise inherits the rights and obligations to implement the investment project that the successful investor has committed to in their bid and contract;

c) The enterprise must meet the conditions for establishment and operation in accordance with law on enterprises, investment, construction, land and special laws;

d) The investment project is non-transferable if it does not meet the conditions specified in Clause 2, Article 76 of the Law on Bidding and the conditions prescribed by the law on investment and the special laws.

4. The successful investor has the right to contribute capital and increase the charter capital of the enterprise to carry out other investment projects (if any) provided that they do not affect the rights and obligations committed in the bid and the contract.

5. In the event that the activities set forth in Clauses 3 and 4 of this Article give rise to financial obligations to the State under relevant laws, the successful investor and related parties shall fully discharge their obligations.

Article 50. Implementation of investment projects of successful investors

1. After completing compensation, support, and resettlement of the project's land area, the successful investor or enterprise established under Article 49 of this Decree will be allocated or leased land, determine land levies and land rents in accordance with land law.

2. The successful investor and the enterprise established by the successful investor shall implement the investment project in accordance with the contract and laws on enterprises, investment, construction, and land, and other relevant laws.

Article 51. Implementation of investment projects of investors approved in accordance with investment laws

1. Investors approved in accordance with Point b, Clause 1, Article 42 of this Decree are allocated land, leased land, determine land levies and land rents in accordance with land law and prescribed in Clause 1, Article 50 of this Decree.

2. Investors approved in accordance with Point b, Clause 1, Article 42 of this Decree carry out their investment projects according to the investor approval application and the investor approval decision and laws on business, investment, construction, land, and other relevant laws.

Chapter VII

MATTERS TO BE APPRAISED AND RESPONSIBILITIES FOR APPRAISAL AND APPROVAL DURING THE INVESTOR SELECTION PROCESS

Article 52. Appraisal of the Bidding document

1. Documents submitted for appraisal and approval include:

a) Proposal for approval for the Bidding document from the procuring entity;

b) The Draft Bidding document;

c) Photocopies of documents: The decision on investment guideline approval (if the project is subject to investment guideline approval in accordance with law on investment), or an approval for investment project information (if the project is not subject to investment guideline approval);

d) Other documents in accordance with special laws and relevant laws.

2. Matters to be appraised include:

a) The legal bases and documents as a basis for preparing the Bidding document;

b) The compatibility of the content of the Bidding document with the scale, objectives, scope of work, and project implementation duration; the conformity of the Bidding document with the provisions of the law on bidding and other relevant laws;

c) Different opinions (if any) between organizations and individuals participating in preparing the Bidding document;

d) Other related contents.

3. Contents of the appraisal report include:

a) Overview of project information and legal bases for preparing the Bidding document;

b) Summarize opinions of relevant agencies and departments (if any);

c) Comments and opinions of the appraisal team on the matters specified in Clause 2 of this Article; agreement or disagreement on the content of the Draft Bidding document;

d) Proposals and recommendations of the appraisal team on approval for the Bidding document; proposed solutions in case the Bidding document contains content that does not comply with the law on bidding and other relevant laws; recommendations in case there is not enough basis to approve the Bidding document;

dd) Other opinions (if any).

4. Before signing the appraisal report, the appraisal team holds a meeting between the parties to discuss and resolve issues in the Bidding document that remain controversial (if necessary).

Article 53. Appraisal of investor selection result

1. Documents submitted for appraisal and approval include:

a) Proposal for approval for investor selection result from the procuring entity;

b) Report on the bid evaluation result from the expert team;

c) Photocopies of documents:  The Bidding document, bid closing and bid opening records, bids of investors and other relevant documents.

2. Matters to be appraised include:

a) Check documents that are the basis for organizing bidding for investor selection;

b) Check compliance with time regulations during the process of organizing bidding for investor selection;

c) Check the evaluation of bids; compliance with regulations of the law on bidding and other relevant laws during the evaluation of bids;

d) Consider different opinions (if any) between the procuring entity and the expert team; between individuals in the expert team;

dd) Other related contents.

3. Contents of the appraisal report include:

a) Overview of project information and legal basis for organizing bidding for investor selection;

b) Summary of the implementation process and the procuring entity's request for investor selection result;

c) Summarize opinions of related agencies and departments (if any);

d) Comments and opinions of the appraisal team on the matters specified in Clause 2 of this Article; some observations on how well the investor selection process achieved the goals of competition, fairness, transparency, economic efficiency, and accountability; agreement or disagreement on the investor selection result;

dd) Proposals and recommendations of the appraisal team on approving the investor selection result; propose solutions in case of non-compliance with the provisions of the law on bidding and other relevant laws during the bidding process to select investors; recommendations in case there is not enough basis to approve the investor selection result;

e) Other opinions (if any).

Article 54. Responsibilities of Ministers, heads of ministerial-level agencies, Presidents of the Provincial People's Committees, Heads of the Economic Zone Management Boards

1. Approve the results of invitation for EOIs and investor selection results.

2. Approve EOI requests.

3. Approve the Bidding document or authorize heads of agencies under ministries or ministerial-level agencies; specialized agencies, agencies under the Provincial People's Committee, Economic Zone Management Board; district-level People's Committees to approve the Bidding document.

4. Perform other tasks falling within the responsibilities of the competent persons specified in Article 77 of the Law on Bidding.

Article 55. Responsibilities of heads of agencies under ministries and ministerial-level agencies; specialized agencies, agencies under the Provincial People's Committees, Economic Zone Management Boards; District-level People's Committees

1. Perform tasks under the responsibilities of the procuring entity as prescribed in Article 79 of the Law on Bidding; approve the list of technically-responsive investors.

2. Perform tasks under the responsibilities of the EOI requester as prescribed in Clause 4, Article 36 of this Decree.

3. Perform other tasks on investor selection as authorized by competent authorities.

Article 56. Responsibilities of the appraisal team

1. The Department of Planning and Investment shall appraise the following:

a) The Bidding document of a project to which the President of the Provincial People's Committee is the competent person, except for the case specified in Clause 3 of this Article;

b) The investor selection result of a project to which the President of the Provincial People's Committee is the competent person.

2. Agencies and units assigned by the Minister, head of ministerial-level agency, Head of Economic Zone Management Board shall appraise the following:

a) The Bidding document of a project to which the Minister, head of ministerial-level agency, Head of Economic Zone Management Board is the competent person, except for the case specified in Clause 3 of this Article;

b) The investor selection result of a project to which the Minister, head of ministerial-level agency, or Head of the Economic Zone Management Board is the competent person.

3. In case the procuring entity is authorized to approve the Bidding document in accordance with Point d, Clause 2, Article 79 of the Law on Bidding and Clause 3, Article 54 of this Decree, the procuring entity shall establish an appraisal team or assign an affiliated unit to appraise the Bidding document.

4. In case the organization or individual assigned to appraise does not have enough capacity, then choose a consulting organization with sufficient capacity and experience to do the appraisal.

Chapter VIII

HANDLING SITUATIONS AND INSPECTING AND MONITORING BIDDING ACTIVITIES FOR INVESTOR SELECTION

Article 57. Handling situations in investor selection

1. On the bid submission deadline, if no investor has submitted the project registration application or bid, the EOI requester or the procuring entity shall report to the competent person to address the situation in either of two ways below:

a) Allow extension of deadline for bid submission for up to 30 days;

b) Cancel the EOI invitation, notice of invitation to bid, and concurrently request the EOI request and the procuring party to adjust the EOI request, invitation to bid and reorganize the investor selection.

2. At the bid submission deadline, if there are less than 3 investors who have submitted the project registration applications or bids, the EOI requester or the procuring entity shall report to the competent person within 4 hours from the deadline to address the situation in either of two ways below:

a) Allow extension of the bid submission deadline, and review and modify the invitation for EOIs or the Bidding document (if necessary) to increase the number of investors registering to implement the project and participate to bid. In this case, the new deadline for bid submission and corresponding deadlines must be clearly specified so that investors have enough time to amend the project registration application and submit their bids.  In case of modifying the EOI request or the Bidding document, investors who have submitted project registration application or bids have the right to amend, replace or withdraw their previously submitted bids;

b) Allow bid opening immediately to conduct evaluation.

3. In case the Bidding document are discovered to have content that leads to unclear or different interpretations during the bid evaluation process or may distort the investor selection result, the procuring entity shall report the competent person to consider and handle it according to the following steps:

a) Modify and clarify the Bidding document, ensuring that it is not contrary to the investment guideline approval decision (if the project is subject to investment guideline approval according to investment laws), project information approval (if the project is not subject to investment guideline approval), and regulations of Law on bidding and special laws;

b) Notify all investors who have submitted bids of the modification of the Bidding document and request the investors to submit additional bids for the amended content or other contents of the Bidding document if there is an impact from the modification of the Bidding document (if necessary);

c) Organize re-evaluation of bids.

4. After selecting a short list for an investment project under the limited bidding procedure, if there are less than 03 investors that meet the project's requirements, the procuring entity shall report the competent person to review and approve the short list with less than 3 investors.

5. After evaluating the bids, if at least investors have the highest and equal aggregate score, then the investor will have the higher score in terms of investment efficiency in developing the industry, field, or locality is considered and recommended to win the bid.

6. At the time of signing the contract, if the successful investor does not meet the technical and financial capacity requirements to implement the investment project as required by the Bidding document, then invite the next ranked investor to enter into contract negotiation and finalization. If the bid of the investor invited to negotiate and finalize the contract expires and their bid security has been returned or released, they must extend their bid validity period and bid security.

7. If a joint venture wins a bid but has not signed the project contract yet, or if the contract is signed but not yet in effect, any changes to the equity contribution ratio within the joint venture require the procuring entity to re-evaluate and update investor capacity according to Article 45 of this Decree. This verification, in accordance with Article 45 of this Decree, will ensure each joint venture party meets the minimum equity requirements. After updating capacity information, the procuring entity shall report the competent person to consider carrying out further procedures specified in this Decree.

8. If the VNEPS system experiences a prolonged downtime requiring extensive troubleshooting, the Ministry of Planning and Investment will issue guidelines on the System itself. These guidelines will outline how to select investors during system downtime, including procedures for offline selection.

9. If the EOI requester or procuring entity discovers they have posted incorrect information on VNEPS before the bid submission deadline, they must notify the relevant authority to remove the information and post a corrected version.

10. Beyond the situations outlined in Clauses 1 to 9 of this Article, the EOI requester or procuring entity may report unforeseen circumstances in investor selection to the competent authority. This report will enable a considered decision that upholds the bidding objectives of competition, fairness, transparency, economic efficiency, and accountability.

Article 58. Inspection of bidding for investor selection

1. Authority to inspect bidding for investor selection:

a) The Ministry of Planning and Investment takes charge and organizes inspection of bidding for investor selection according to periodic plans nationwide;

b) The Minister, head of ministerial-level agency, or Head of the Economic Zone Management Board takes charge and organizes inspection of bidding for investor selection for projects for which they are competent persons;

c) The President of the Provincial People's Committee takes charge and organizes the inspection of bidding for investor selection applicable to projects for which they are the competent person.  The Department of Planning and Investment shall assist the President of the Provincial People's Committee to inspect bidding for investor selection within the province.

2. Matters to be inspected in investor selection:

a) Promulgation of guidance documents for investor selection implementation;

b) Announcement of investment projects (if the project is subject to investment guideline approval); preparation of, approval for, and disclosure of investment projects (if the project is not subject to investment guideline approval);

c) Preparation of and approval for EOI requests; evaluation of and approval for invitation for EOI results;

d) Preparation of and approval for the Bidding document; evaluation of and approval for investor selection results;

dd) Content of the signed contract and compliance with legal bases in signing and implementing the contract;

e) Other necessary contents.

3. Inspection principles, forms, methods, and procedures shall comply with the corresponding regulations in the Decree on elaboration and implementation of the Law on Bidding regarding bidder selection.

Article 59. Supervision of bidding for investor selection

1. Supervision of investor selection as prescribed in Point a, Clause 3, Article 86 of the Law on Bidding is carried out in combination with investment project supervision or overall investment supervision by  the investment authority, the investment registry in accordance with the law on investment.

2. Authority to supervise bidding for investor selection:

a) The Minister, head of ministerial-level agency, or Head of the Economic Zone Management Board takes charge and organizes supervision of bidding for investor selection for projects for which they are competent persons or for projects under their managed fields;

b) The President of the Provincial People's Committee takes charge and organizes the supervision of bidding for investor selection applicable to projects for which they are the competent person within the province. The Department of Planning and Investment shall assist the President of the Provincial People's Committee to supervise bidding for investor selection within the province.

3. Matters to be supervised in investor selection:

a) Announcement of investment projects (if the project is subject to investment guideline approval); preparation of, approval for, and disclosure of investment projects (if the project is not subject to investment guideline approval);

b) Preparation, appraisal of and approval for the Bidding document;

c) Evaluation of the bid;

d) Appraisal of investor selection results;

dd) Results of negotiation, finalization, and signing of the contract.

4. At the end of the contract term, the competent authority will exercise its legal oversight functions in terms of state investment management, investment project supervision, and overall investment supervision to ensure investors fulfill all their commitments during the project implementation.

Chapter IX

ELECTRONIC INVESTOR SELECTION

Article 60. Roadmap for electronic investor selection

1. From January 1, 2025: Carry out procedures for inviting EOIs via the domestic network in accordance with Article 61 of this Decree on VNEPS.

2. From July 1, 2025: Implement electronic investor selection for investment projects applying competitive bidding and limited domestic bidding according to the single-stage, one-envelope method, or single-stage, two-envelope method as prescribed in Article 62 of this Decree on the System.

3. For investment projects in the case of international bidding, online investor selection is not applicable, but project information must be made public on the System in accordance with Clause 2, Article 7 of the Law on Bidding.

Article 61. Process for electronic invitation for EOIs

1. Electronic EOI invitation, issuance of electronic EOI requests:

a) Electronic EOI invitation (hereinafter referred to as E-EOI invitation) is posted on the System in accordance with Clause 2, Article 8 of the Law on Bidding;

b) Electronic EOI requests (hereinafter referred to as E-EOI request) is issued simultaneously with E-Notice on the VNEPS. The EOI requester can upload the E-EOI request file on the VNEPS for free and in full;

c) Modifications and cancellations of the E-EOI invitation can only be made before the deadline for submitting electronic project registration application (hereinafter referred to as E-PRA), except in cases where no investor submits the E-PRA.

2. Modifications and clarifications of E-EOI invitation; extension of submission of E-PRA:

a) In case the E-EOI request is modified after its issuance, the EOI requester must post on the VNEPS modifications along with the modified E-EOI invitation.

b) Clarifications of E-EOI invitation:

In case the E-EOI invitation needs to be clarified, the investor sends a request for clarification to the EOI requester on the VNEPS at least 5 working days before the deadline for submitting the E-PRA for consideration.

The clarifications of E-EOI invitation is posted on the VNEPS at least 2 working days before the deadline for submitting the E-PRA.  The detailed clarifications of E-EOI invitation must not be contrary to the content of E-EOI invitation posted on the VNEPS.

If the E-EOI invitation needs to be modified as a result of clarification, the modification must follow the requirements outlined in Point a of this Clause.

c) In case of extension of the deadline for submitting the E-PRA on the VNEPS, the EOI requester posts a notice of extension along with the extension approval on the VNEPS.  The notice of extension must clearly state the reason for the extension, new deadline for bid submission.

3. Submission, modification, replacement, withdrawal of E-PRA:

a) Submission of E-PRA:

The investor shall prepare and submit the E-PRA on the VNEPS.  In case of a joint venture, the leading party of the joint venture or the assigned party in the joint venture agreement shall submit the E-PRA and also attach the joint venture agreement on the VNEPS.

The system notifies the investor about the status of E-PRA submission (successful or unsuccessful) via the email address registered by the investor. Information recorded on the VNEPS as a basis for resolving complaints and disputes (if any) includes:  information about the sender, recipient, time of sending, sending status, number of attached files on the VNEPS when the investor submits their E-PRA.

b) Clarification of E-PRA:

The investor shall clarify the E-PRA at the request of the EOI requester or by themselves if they found that their submitted E-PRA is missing documents regarding their certain capacity and experience. The clarification of the E-PRA is carried out on the VNEPS.

c) Modification, replacement, withdrawal of E-PRA:

After submission, the investor can modify, replace, or withdraw the E-PRA. Investors are not allowed to withdraw submitted documents after the deadline for E-PRA submission.

4. E-PRA opening:

The E-PRA is opened and decoded for evaluation. Record of opening the E-PRA is posted publicly on the VNEPS within 2 hours after the deadline for E-PRA submission.

5. Evaluation of E-PRA:

At the deadline for E-PRA submission, the EOI requester shall access the VNEPS and evaluate E-PRAs of the investors.

6. After having the E-PRA evaluation result, the EOI invitation result, including the list of investors that meet the E-EOI invitation requirements, shall be posted on the VNEPS.

Article 62. Process for electronic investor selection

1. Electronic invitation to bid and issuance of electronic Bidding documents:

a) Electronic invitation to bid (hereinafter referred to as E-ITB) is posted on the VNEPS in accordance with Clause 2, Article 8 of the Law on Bidding.

b) Electronic Bidding document (hereinafter referred to as E-BD) is published simultaneously with E-ITB on the VNEPS. The procuring entity can upload the E-BD on the VNEPS for free and in full.

c) Modifications and cancellations of E-BD can only be made before the bid submission deadline, except in cases where no investor submits an E-Bid.

2. Modification and clarification of E-BD:

a) In case the E-BD is modified after its issuance, the procuring entity must post on the VNEPS modifications along with the modified E-BD.

b) Clarification of E-BD:

In case the E-BD needs to be clarified, the investor sends a request for clarification to the procuring entity on the VNEPS within the time limit specified in the E-BD for consideration.

The clarification is posted on the VNEPS at least 2 working days before the bid submission deadline. The detailed clarifications of E-Bd must not be contrary to the content of E-BD posted on the VNEPS.

If the E-BD needs to be modified as a result of clarification, the modification must follow the requirements outlined in Point a of this Clause.

c) In case of extension of bid submission deadline on the VNEPS, the procuring entity shall post a notice of extension on the VNEPS.  The notice of extension must clearly state the reason for the extension, new deadline for bid submission.

3. Submission, modification, replacement, withdrawal of E-Bid:

a) Submission of E-Bid:

Investors shall prepare and submit E-bids on the VNEPS, and furnish E-bid security (if any) on the VNEPS.

In case of a joint venture, the leading party of the joint venture or the assigned party in the joint venture agreement shall submit the E-Bid and also attach the joint venture agreement on the VNEPS.

The VNEPS notifies the investor about the status of E-Bid submission (successful or unsuccessful) via the email address registered by the investor. Information recorded on the VNEPS as a basis for resolving complaints and disputes (if any) includes:  information about the sender, recipient, time of sending, sending status, number of attached files on the VNEPS when the investor submits their E-Bid.

b) Clarification of E-Bid:

The investor shall clarify the E-Bid at the request of the procuring entity or by themselves if they found that their submitted E-Bid is missing documents regarding their certain capacity and experience. The clarification of the E-Bid is carried out on the VNEPS.

c) Modification, replacement, withdrawal of E-Bid:

After submission, the investor can modify, replace, or withdraw the E-Bid. Investors are not allowed to withdraw submitted documents after the bid submission deadline.

4. Bid opening:

The procuring entity opens and decodes the E-bid for evaluation. Record of opening the E-Bid is posted publicly on the VNEPS within 2 hours after the bid submission deadline.

5. Evaluation of E-Bid:

At the E-Bid submission deadline, the procuring entity shall access the VNEPS and evaluate the E-Bids submitted by investors.

6. After evaluating the E-bids, the investor selection result will be approved and publicly posted on the VNEPS within the time limit specified in Clause 4, Article 8 of the Law on Bidding.

Article 63. National database of investors

1. National database of investors on the VNEPS includes:

a) Information about the investor's legal status;

b) Information about the investor's capacity and experience;

c) Information on actions against investors’ violations of bidding laws;

d) Other information about investors.

2. Investors are responsible for registering on the VNEPS in accordance with Point d, Clause 1, Article 5 of the Law on Bidding before the investor selection result are approved. They must keep their information up-to-date and accurate as specified in Points a and b, Clause 1 of this Article.  The procedure for registering and updating investor information on the VNEPS is implemented in accordance with the corresponding regulations in the Government's Decree on elaboration and implementation of the Law on Bidding regarding bidder selection.

3. The information specified in Point c, Clause 1 of this Article is posted on the VNEPS by the competent authority in accordance with Point a, Clause 2 and Clause 4, Article 8 of the Law on Bidding.

Chapter X

IMPLEMENTATION

Article 64. Amendment to Clause 3, Article 5 of Decree No. 52/2020/ND-CP dated April 27, 2020 of the Government on investment in construction and business of golf courses

“3. The form of investor selection for golf course project is determined in accordance with the law on investment, land and relevant laws.”

Article 65. Transitional regulations

1. If a project which is subject to investment guideline approval by a competent authority or is subject to project portfolio approval (if not subject to investment guideline approval) has not established investor capacity and experience requirements by the time Bidding Law No. 22/2023/QH15 takes effect, the following transitional regulations will apply.

a) Projects utilizing an Expression of Interest (EOI) process under this Decree must follow the EOI invitation and request procedures outlined in the Law on Bidding No. 22/2023/QH15 and this Decree;

b) Projects not utilizing an Expression of Interest (EOI) process under this Decree must follow the bidding for investor selection procedures outlined in the Law on Bidding No. 22/2023/QH15 and this Decree.

2. If a project issued an EOI invitation before Bidding Law No. 22/2023/QH15 took effect, but the project registration applications have not been approved by the effective date of the Bidding Law, then evaluate them based on the investor capacity and experience requirements, along with relevant regulations, which were in effect when those requirements were approved. After obtaining the preliminary assessment results of capacity, experience, follow one of the following cases:

a) For projects in industries and fields lacking legal documents on investor selection before Bidding Law No. 22/2023/QH15 and this Decree take effect, prepare, appraise, and approve bidding documents and take next procedures prescribed in the Law on Bidding No. 22/2023/QH15 and this Decree;

b) For projects in industries and fields that have had legal documents on investor selection before the time Bidding Law No. 22/2023/QH15 and this Decree take effect, competent authorities can continue using those documents if the managing ministries have not issued new ones. However, they also have the option to follow the procedures outlined in the Law on Bidding No. 22/2023/QH15 and this Decree.

3. If a project has had preliminary assessment results of the investor's capacity and experience approved, but the bidding document is not issued by the time Bidding Law No. 22/2023/QH15 takes effect, then follow one of the following cases:

a) For projects in industries and fields lacking legal documents on investor selection before Bidding Law No. 22/2023/QH15 and this Decree take effect, prepare, appraise, and approve bidding documents and take next procedures prescribed in the Law on Bidding No. 22/2023/QH15 and this Decree;

b) For projects in industries and fields that have had legal documents on investor selection before the time Bidding Law No. 22/2023/QH15 and this Decree take effect, competent authorities can continue using those documents if the managing ministries have not issued new ones. However, they also have the option to follow the procedures outlined in the Law on Bidding No. 22/2023/QH15 and this Decree.

4. If a project has issued a Bidding document but the bid evaluation result has not been approved by the time Bidding Law No. 22/2023/QH15 takes effect, then continue evaluating the bids according to the Bidding document, along with relevant regulations, which are in effect at the time of approval for the Bidding document. The signing and performance of the contract shall be carried out in accordance with the law in effect at the time of approval for the Bidding document.

5. A project that has already obtained an investment guideline approval (if the project is subject to investment guideline approval), or obtained a project portfolio approval (if the project is not subject to investment guideline approval), or issued the Bidding document, or received investor selection result with a cost refund provision (as per the Law on Bidding No. 43/2013/QH13), can continue following the approved refund principles.

6. For golf courses requiring investment guideline approval with investor selection through bidding (as per the Law on Bidding), if no EOI request or investor capacity/experience requirements are established by the time Bidding Law No. 22/2023/QH15 takes effect, halt investor selection procedures outlined in Article 64 of the Decree. If investor capacity/experience requirements or Bidding documents have been issued before the date of this Decree takes effect, continue to comply with Clauses 2, 3 or 4 of this Article.

7. Projects not covered by transitional provisions (Clauses 1-6) implemented between January 1, 2024 and the effective date of this Decree and in accordance with the Law. Bidding No. 22/2023/QH15 and the special laws are not required to re-implement corresponding provisions from this Decree.

Article 66. Entry into force

1. This Decree comes into force from the date of signing.

2. From the effective date of this Decree, Point c, Clause 1, Article 1 and Article 16 of Decree No. 25/2020/ND-CP dated February 28, 2020 of the Government on elaboration and implementation of the Law on Bidding on investor selection, Clause 7, Article 108 of Decree No. 31/2021/ND-CP dated March 26, 2021 of the Government on elaboration and implementation of the Law on Investment cease to be effective.

3. If a special law mandates project bidding after this Decree's effective date, investor selection must follow the procedures outlined in the Law on Bidding and this Decree. The methods and criteria for evaluating the project registration application, the Bidding document, and any other relevant aspects should comply with the special law. This ensures the bidding process remains competitive, fair, transparent, economically efficient, and accountable.

Article 67. Implementation

1. The Minister of Planning and Investment promulgates forms and documents in the process of selecting investors non-electronically and electronically.

2. Ministers shall:

a) Review existing legal documents related to investor selection procedures for investment projects within their scope of management. These documents should be promptly amended, supplemented, or replaced to ensure they fully comply with the Law on Bidding No. 22/2023/QH15 and this Decree;

b) Review and assess the following: standards and criteria used to evaluate investor business investment plans, standards and criteria used to evaluate the effectiveness of investments in developing the industry or field, and implementation of investment project contracts. Based on this assessment, where necessary, the Minister can issue or request a competent authority to issue a document outlining appropriate enforcement measures specific to the industry or field being managed.

3. Ministers, heads of ministerial-level agencies, heads of Governmental agencies, Presidents of People’s Committees of provinces and central-affiliated cities shall implement this Decree.

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