Chương II Nghị định 24/2024/NĐ-CP: Quy trình đấu thầu rộng rãi, hạn chế không qua mạng đối với gói thầu cung cấp dịch vụ phi tư vấn, mua sắm hàng hóa, xây lắp, hỗn hợp theo phương thức một giai đoạn

Chapter II

OFFLINE LIMITED BIDDING, COMPETITIVE BIDDING FOR NON-CONSULTING, GOODS PROCUREMENT, CONSTRUCTION, MIXED PACKAGES UNDER SINGLE-STAGE METHOD

Section 1. SINGLE-STAGE AND ONE-ENVELOPE METHOD

Article 22. Detailed procedures

1. Contractor selection preparation, including:

a) Draw up a shortlist (if necessary);

b) Prepare bidding documents;

c) Appraise and approve bidding documents.

2. Contractor selection organization, including:

a) Invitation to bid:

b) Issue, modify and clarify bidding documents;

c) Prepare, submit, receive, manage, modify, withdraw bids;

d) Open bids.

3. Evaluation of bids, including:

a) Check and evaluate the validity of bids:

c) Evaluate bids in details;

c) Rank bidders (if there is more than 1 bidder).

4. Submit, appraise, approve, and publicize the contractor selection result and explain reasons for unsuccessful bidders upon their requests (if any).

5. Finalize, sign, and manage contract performance.

In addition to organizations, individuals and groups can bid on goods procurement packages with innovative products that meet the criteria of Clause 4, Article 5 of this Decree.

Article 23. Shortlisting

Based on the scale and nature of the package, the competent person decides to apply the shortlisting procedure.  The application of shortlisting procedure must be recorded in the specific contractor selection plan.

1. For competitive bidding:

a) Prepare prequalification documents:

The prequalification documents include the following contents: summary about the project, procurement estimate, package; instructions on preparing and submitting prequalification applications; evaluation criteria for the validity of prequalification applications; criteria for bidder capacity and experience.

Prequalification applications are evaluated using pass/fail criteria, which define the minimum acceptable level for each element of the bidder's capacity and experience;

b) Prequalification documents are evaluated according to Article 129 of this Decree before approval.  Approval for the prequalification documents is done in writing based on the approval report and appraisal report of the prequalification documents;

c) Invitation for pre-qualification applications shall comply with Point b, Clause 1, Article 8 of the Bidding Law;

d) Issue prequalification documents:

Prequalification documents are published for free on VNEPS;

dd) Receive and manage prequalification applications:

The procuring entity confidentially receives and manages prequalification applications until the preliminary results are announced;

e) Open and evaluate prequalification applications:

Prequalification applications are submitted by the deadline and at the location specified in the prequalification documents and are opened immediately after the bid submission deadline.  The record of the prequalification application opening will be sent to participating bidders and posted on VNEPS within 24 hours upon bid opening. Prequalification applications submitted after the bid submission deadline are invalid, cannot be opened and will be disqualified. The evaluation of prequalification applications is carried out according to the evaluation criteria specified in the prequalification documents. Bidders whose prequalification applications meet all capacity and experience requirements will be shortlisted.

Bidders who are individuals or groups offering innovative products that meet the requirements in Clause 4, Article 5 of this Decree may be exempt from certain criteria outlined in Clause 3, Article 9.

g) Submit, appraise, and approve prequalification results:

The procuring entity submits the prequalification results for approval, including their opinions on of the expert team's evaluation findings. The prequalification results are appraised against Clauses 1 and 2 of Article 130 of this Decree. Following this appraisal, a written approval is granted based on the prequalification approval proposal and appraisal report. If a shortlist is created, the prequalification approval will identify the successful bidders and include any relevant notes. If a shortlist is not created, the prequalification approval must clearly state the reason a shortlist was not created.

h) Publicly announce the shortlist: the shortlist will be posted as required in Point b, Clause 1 and Clause 4, Article 8 of the Bidding Law and shared with bidders who submitted prequalification applications.

2. For limited bidding:

a) Identify and approve a shortlist of at least 3 bidders who have the capacity and experience to meet the requirements of the package and wish to participate in the bidding. If less than 3 bidders meet the requirements, follow the procedures outlined in Clause 3, Article 131 of this Decree;

b) After approval, the shortlist is posted according to Point b, Clause 1 and Clause 4, Article 8 of the Bidding Law.

3. Shortlisted bidders cannot form a joint venture for this bidding process. However, they may participate as a joint venture with a non-shortlisted bidder, but only with the employer's approval before the bid deadline.

Article 24. Preparation of bidding documents

1. Grounds for preparing bidding documents:

a) Approved overall contractor selection plan (if any);

b) Approved specific contractor selection plan;

c) Documentation on design, drawings, and notes to the package (if any);

d) Technical specifications of the package including: characteristics, specifications, technology requirements, service quality, inspection, testing, taking-over inspection and other technical requirements ( if any);

dd) Legal regulations on bidding and related laws; international treaties and loan agreements (if any) for ODA-funded projects and concessional loans;

e) Legal regulations on taxes, fees, incentives in contractor selection;

g) Other related grounds.

2. Bidding documents must provide all necessary information for bidders to prepare competitive bids. They cannot contain any restrictions that limit bidder participation or give any bidder an unfair advantage, which may cause unfair competition as prescribed in Point k, Clause 6, Article 16 and Clause 3, Article 44 of the Bidding Law. The Ministry of Planning and Investment clarifies that violations of Clause 3, Article 44 of the Bidding Law can invalidate bidding documents. This means such documents cannot be used to evaluate bids.

3. The bidding documents must specify the criteria for evaluating the validity of bids, including:

a) There is the original bid;

b) There is a letter of bid signed and stamped by the bidder's legal representative (if any) according to the requirements of the bidding documents; the signing date of the letter of bid must be after the issuance date of the bidding documents; do not propose different bid prices or include conditions that are disadvantageous to the employer. For a joint venture bidder, 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 bid meets the requirements as prescribed in the bidding documents;

d) There is a bid security with value and validity period and the beneficiary meets the requirements of the bidding documents. Bid security, in the form of a bank guarantee or certificate of guarantee insurance, may not violate any of the following requirements: their value or validity period must meet the minimums specified in the bidding documents, the beneficiary name must be correct, a valid signature must be present, the signature cannot be dated before the bidding documents were issued, the document cannot contain any conditions that disadvantage the employer or procuring entity. The bank guarantee or certificate of guarantee insurance must be signed and stamped by a legal representative of a domestic credit institution or foreign bank branch established under Vietnamese law, a domestic non-life insurer, branch of foreign non-life insurer established under Vietnamese law (if any). For insurance packages, participating bidders may not present their own certificate of guarantee insurance;

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

e) There is a joint venture agreement (in case of joint venture) signed and sealed by the legal representative of each joint venture party (if any); the joint venture agreement must clearly state the specific work each party will perform and the estimated value of each party's work. Work assignments within the joint venture will be determined by: items listed in the bid price schedule or tasks required to produce those items. Tasks unrelated to these items or the production of these items must not be assigned.

g) The bidder must meet the eligibility requirements in accordance with Article 5 of the Law on Bidding;

h) In the 3 years before the bid submission deadline, the bidder did not have employed personnel (signed a labor contract with the bidder at the time they committed the violation) who were convicted by a court of a bidding violation leading to serious criminal consequences, with the intent for that bidder to win the contract.

4. Criteria for evaluating bids for goods procurement packages include:

a) Evaluation criteria for capacity and experience:

Bidders’ capacity and experience are evaluated using pass/fail criteria, which define the minimum acceptable level for each element of the bidder's capacity and experience, including: experience in supplying similar goods, production capacity, and financial capability (net asset value, revenue); fulfillment of tax declaration and payment obligations and other necessary indicators to evaluate the bidder's financial capability; technical facilities, qualifications of professional staff to perform related services (if required).

Determining the level of specific requirements for each criterion specified in this point is based on the requirements of each specific package. Bidders that are assessed to meet all the criteria specified in this point meet the requirements for capacity and experience.

For goods procurement packages, bidders who are individuals or groups offering innovative products that meet the requirements in Clause 4, Article 5 of this Decree may be exempt from certain criteria outlined in Clause 3, Article 9.

Bidders who are household businesses are exempt from financial statements and the net asset value requirements.

b) Technical evaluation criteria:

Technical evaluation criteria are set based on pass, fail criteria or scoring methods.

In case of using pass/fail method, for general evaluation criteria, only pass/fail criteria are used. For basic detailed criteria in the general criteria, only pass and fail criteria are used; for non-basic detailed criteria in the general criteria, in addition to the pass and fail criteria, additional acceptable criteria may be applied but must not exceed 30% of the total number of detailed criteria in the general criteria. General criteria are assessed as passed when all basic detailed criteria are assessed as passed and non-basic detailed criteria are assessed as passed or acceptable.

In case a scoring method is used, the minimum score and maximum score must be specified for each general criterion. The minimum scores for basic detailed criteria can be specified in the general criteria; there is no minimum score for non-basic detailed criteria. The minimum technical score is not lower than 70% of the total maximum technical score. For a package with high technical requirements, the minimum technical score is from 80% to 90% of the total maximum technical score; for a package that need to be considered on the basis of focusing on technical and price factors, the employer can stipulate that the minimum technical score is not lower than 80% of the total maximum technical score. Technical evaluation criteria are built on the basis of factors on the ability to meet the requirements of quantity, quality, delivery time, transportation, installation, warranty, and after-sales services (if any), the bidder's contract performance results according to Articles 17 and 18 of this Decree and other requirements stated in the bidding documents. Based on each specific package, when preparing bidding documents, it is necessary to specify the criteria as a basis for technical evaluation, including: characteristics, specifications of goods, production standards, manufacturing and technology standards; the reasonableness and economic efficiency of technical solutions and measures for supplying and installing goods; level of satisfaction of warranty and maintenance requirements; the degree to which requirements for providing supplies, replacement equipment and other related services (if any) are met during the entire use process of the goods; geographical and environmental adaptability; impacts on the environment and solutions; factors of commercial conditions, delivery time, technology transfer training, and after-sales services; goods supply progress; environmentally friendly factors; the bidder's contract performance results according to Articles 17 and 18 of this Decree; the quality of similar goods published according to Article 18 of this Decree (if any); other necessary factors.

c) Determine the lowest price (in case the least-cost selection is applied): determine the bid price; correct errors and adjust deviations; deduct discounts (if any); convert the bid price to a common currency (if any); determine incentive value (if any); compare bids to determine the lowest price;

d) Criteria for determining evaluated price (in case of applying the evaluated price selection):

Formula for determining evaluated price:

G_{ĐG =} G ± ∆_{G +} ∆_ƯĐ

Where:

G = (bid price ± error correction value ± deviation adjustment value) - discounts (if any).

∆_G is the value of factors converted into one level for the entire life cycle of the goods including:  delivery time; payment schedule; costs of supplies and spare parts during the initial period; availability of materials, spare parts and after-sales services for the goods offered in the bid at the project location; life cycle costs; device performance and capacity; elements of sustainable bidding (if any); the bidder's contract performance results according to Articles 17 and 18 of this Decree; the quality of goods used published according to Article 18 of this Decree, including consideration of origin; other factors (if any).

∆_ƯĐ is the value that must be added to non-incentive subjects according to Points b and d Clause 1, Points b and d Clause 2 and Point b Clause 3 Article 5 of this Decree.

5. Criteria for evaluating bids for construction packages include:

a) Evaluation criteria for capacity and experience:

Bids are evaluated using pass/fail criteria for capacity and experience, which define the minimum acceptable level for each element of the bidder's capacity and experience, including: experience in performing similar packages; technical capacity:  quantity and professional qualifications of key staff, quantity of main construction equipment that can be mobilized to carry out the package (if required); financial capacity:  net asset value, revenue; fulfillment of tax declaration and payment obligations and other necessary indicators to evaluate the financial capacity of the bidder.

The specific requirements for each criterion will be determined based on the individual package requirements. Bidders that are assessed to meet all the criteria specified in this point meet the requirements for capacity and experience;

b) Technical evaluation criteria:

Technical evaluation criteria are set based on pass, fail criteria or scoring methods.

In case of using pass/fail method, for general evaluation criteria, only pass/fail criteria are used. For basic detailed criteria in the general criteria, only pass and fail criteria are used; for non-basic detailed criteria in the general criteria, in addition to the pass and fail criteria, additional acceptable criteria may be applied but must not exceed 30% of the total number of detailed criteria in the general criteria. General criteria are assessed as passed when all basic detailed criteria are assessed as passed and non-basic detailed criteria are assessed as passed or acceptable.

In case a scoring method is used, the minimum score and maximum score must be specified for each general criterion. The minimum scores for basic detailed criteria can be specified in the general criteria; there is no minimum score for non-basic detailed criteria.

Technical evaluation criteria will assess a bidder's ability to meet the requirements outlined in the design documents, scope of work, and contract performance results, as detailed in Articles 17 and 18 of this Decree and other requirements stated in the bidding documents. Based on each specific package, when preparing bidding documents, it is necessary to specify the criteria as a basis for technical evaluation, including: reasonableness and feasibility of technical solutions, execution plans in accordance with proposed construction progress; construction progress; project management methods (project management organization, field management organization); quality assurance measures; assurance of environmental sanitation and other conditions such as fire safety and labor safety; level of satisfaction of warranty and maintenance requirements; environmentally friendly factors (if any), including: the use of supplies, materials, execution plans, lines, construction technology and other factors (if any); bidder's contract performance results according to Articles 17 and 18 of this Decree; other necessary factors.

The bidding documents must allow bidders to propose alternative construction methods, except in special cases where a specific method is required due to the package's nature. This will be clearly stated in the bidding documents;

c) Determination of the lowest price (in case of applying the least-cost selection) is carried out according to Point c, Clause 4 of this Article;

d) Criteria for determining evaluated price (in case of applying the evaluated price selection):

Formula for determining evaluated price:

G_{ĐG =} G ± ∆_{G +} ∆_ƯĐ

Where:

G = (bid price ± error correction value ± deviation adjustment value) - discounts (if any).

∆_G is the value of factors converted into one level for the entire life cycle of the construction work including:  construction completion progress; life cycle costs during the entire use of the construction work; loan interest expenses (if any); elements of sustainable bidding (if any); the bidder's contract performance results according to Articles 17 and 18 of this Decree; other factors (if any).

∆_ƯĐ is the value that must be added to non-incentive subjects according to Point b Clause 2 Article 6 of this Decree.

6. For non-consulting and mixed packages:

Based on the scale and nature of the package and the provisions in Clauses 2, 4 and 5 of this Article, determine evaluation criteria for capacity and experience; technical evaluation criteria; determine the lowest price (in case the least-cost selection is applied) or the criteria for determining the evaluated price (in case the evaluated price selection is applied) accordingly.

7. Do not use the quality- and cost-based selection for packages that apply the single-stage and one-envelope method. For a package that needs to be considered on the basis of focusing on technical and price factors, the employer can stipulate that the minimum technical score is not lower than 80% of the total maximum technical score.

8. For a divided package, the bidding documents must clearly state the bidding conditions, the bid security measures and values for each part or multiple parts, and the evaluation method for each part or multiple parts so that the Bidders calculate bidding options according to their abilities.

9. Regulations on trademarks and origin of goods:

a) Except for the cases specified in Point e, Clause 3, Article 10, Clause 2, Article 44 and Clause 1, Article 56 of the Bidding Law, bidding documents must not state requirements on the specific trademarks or origin of the goods;

b) If bidding documents specify an origin requirement by groups of countries or territories but exclude Vietnamese origin (as allowed under Clause 2, Article 44 of the Bidding Law), Vietnamese goods can still be evaluated.

c) If the bidding documents cannot describe the goods in details according to technical characteristics, usability, technological design, or technological standards, they may state the trademark or catalog of a specific product for reference and illustration. However, these references must always be followed by the phrase "or equivalent." Additionally, the documents must clearly define what constitutes an equivalent good in terms of technical specifications, usability, and any other relevant aspects.

10. Regulations on labor use: For international bidding, bidding documents must prioritize the use of domestic workers for unskilled positions, where their qualifications are suitable and the supply is available. Foreign workers can only be employed when domestic workers are underqualified. Bids that fail to meet the labor use requirements outlined in the bidding documents will be rejected.

11. Regulations on additional purchase options (if any):

In case the specific contractor selection plan has regulations on additional purchase options, the bidding documents must stipulate the maximum volume and quantity of goods or services subject to the additional purchase option in accordance with the approved specific contractor selection plan.

12. Bidding documents must not require a sales permit, a sales authorization letter from the manufacturer or distributor, or a partnership certificate, manufacturer’s, or distributor's technical support or warranty, or other documents of equivalent value (hereinafter referred to as sales permit). For complex goods requiring the manufacturer’s after-sales support (warranty, maintenance, repairs, parts, technical support, etc.), the bidding documents may request a sales permit from the bidder. However, such a request must be pre-approved by the relevant authority.

If the manufacturer, its representative office, or agent commits one or more of the following acts without a legitimate reason: fails to provide a sales permit; revokes a previously provided sales permit; limits competition by issuing sales permits to only a few bidders; engages in other anti-competitive practices, the bidders or procuring entity will report these actions by: posting information on VNEPS and sending information to the Ministry of Planning and Investment and the Ministry of Industry and Trade.  The document must specifically state the actions taken by the manufacturer, representative office, or agent along with supporting documents. The manufacturer, representative office, or agent facing a complaint from a bidder or procuring entity must respond via VNEPS. Additionally, they should submit a copy of their response to the Ministry of Planning and Investment for their records.

Article 25. Appraisal of and approval for bidding documents

1. Bidding documents must be appraised according to Article 129 of this Decree before approval.

2. Approval for bidding documents must be based on the approval report and appraisal report of bidding documents.

Article 26. Organization of contractor selection

1. Invitation for bids:

a) Invitations to bid are applied according to Point b, Clause 1, Article 8 of the Bidding Law if the shortlisting procedure is not applied;

b) In case the package applies the shortlisting procedure, invitations to bid will be sent to the bidders named on the shortlist.

2. Issue, modify and clarify bidding documents:

a) The bidding documents are published on VNEPS;

b) In case of modifications of the bidding documents after issuance, the procuring entity must post on the VNEPS the modification decision enclosed with the detailed modifications of the bidding documents and the modified bidding documents.  Modifications of bidding documents must be made at least certain days before the bid submission deadline as prescribed in Point dd, Clause 1, Article 45 of the Bidding Law. In case there is not enough time, the bid submission deadline must be extended;

c) In case the bidding documents need to be clarified, the organization or individual shall send a written request for clarification to the procuring entity on VNEPS within at least 3 working days (for domestic bidding), 5 days (for international bidding) before the bid submission deadline.  The procuring entity shall post the clarifications to bidding documents on the VNEPS at least 2 working days before the bid submission deadline. The clarifications to bidding documents must not mention the name of the bidder that requested clarification. If necessary, the procuring entity may organize a pre-bid meeting to discuss the content of bidding documents. The notice of organization of the pre-bid meeting is posted on VNEPS; all interested bidders are allowed to attend the pre-bid meeting without prior notification to the procuring entity. The procuring entity must record the minutes of the pre-bid meeting and post them on VNEPS. The minutes of the pre-bid meeting are considered clarifications to the bidding documents.

Clarifications to bidding documents must not contradict the approved bidding documents. In case the clarifications to the bidding documents leads to the need to modify the bidding documents, the modifications of the bidding documents shall comply with point b of this clause;

d) The decision on modifications or written clarifications to bidding documents is an integral part of the bidding documents.

3. Prepare, submit, receive, manage, modify, withdraw bids:

a) Bidders prepare and submit bids according to the requirements of the bidding documents.

The procuring entity confidentially receives and manages bids until the contractor selection results are announced. Bids or documents submitted after the deadline to modify or supplement the bid will be rejected, except for: clarifications requested by the procuring entity; clarifications regarding eligibility, financial statements, tax declaration and payment obligations, personnel and equipment documents, similar contracts, production capacity to demonstrate the bidder meets the requirements;

b) The employer, the procuring entity, or the expert team cannot disclose information from one bid to another bidder, except for information disclosed at the bid opening;

c) When there is a request to modify or withdraw the submitted bid, the bidder must send a written request to the procuring entity.  The procuring entity only accepts the modifications or withdrawal of the bid when receiving a written request before the bid submission deadline.

4. Bid opening:

a) 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 documents in the presence of representatives of bidders attending the bid opening ceremony, regardless of the presence or absence of bidders. Bids are opened in alphabetical order by bidder name and in the following order: check the seal; open the envelope and clearly read the bidder's name; identify if the bid is submitted independently or as a joint venture; check the number of originals and copies of all documents; review the bid price stated in the letter of bid and any offered discount; check validity period of the bid; verify proposed performance duration; check value and validity of bid security and other related information;

b) Minutes of bid opening:  The information specified in point a of this clause must be recorded in the minutes of bid opening. The minutes of bid opening must be signed by the representative of the procuring entity and the bidders attending the bid opening ceremony. The minutes will be sent to participating bidders and posted on VNEPS within 24 hours upon bid opening;

c) The representative of the procuring entity signs the original letter of bid, letter of discount (if any), and the authorization letter of the bidder’s legal representative (if any); joint venture agreement (if any); bid security; financial proposals and important contents of each bid.

Article 27. Principles for evaluating bids

1. The evaluation of bids must be based on the bid evaluation criteria and other requirements in the bidding documents, based on the submitted bids and clarifications to bids to ensure the selection of a bidder with sufficient capacity and experience and a feasible solution to perform the package; any content within the bidding documents that restricts competition, as defined in Clause 2, Article 24 of this Decree, will be disregarded during bid evaluation.

2. The procuring entity will allow the bidder to make additions of and substitutions for key personnel (excluding engineering (E) personnel in EPC, EP, EC, or turnkey contracts) or major equipment if: the proposed personnel or equipment does not meet requirements, the bidder cannot demonstrate the ability to mobilize personnel (including cases where personnel have been mobilized for another contract whose working time overlaps with the performance duration of this package). The bidder may only add or replace each key personnel position and major equipment once within an appropriate period of time. Any bidder found to declare key personnel and major equipment untruthfully will be ineligible to propose substitutes. Their bid will be disqualified, and they will be subject to fraud allegations as per Clause 4, Article 16 of the Bidding Law. This will be addressed under Point a, Clause 1, Article 125 of this Decree.

3. If the proposed similar contract in the bid does not meet requirements, the procuring entity may request the bidder to supplement or replace another similar contract for evaluation within a reasonable timeframe.

4. For a divided package, bid evaluation and award will prioritize the bid with lowest total proposed winning price (for least-cost selection); or prioritize the bid with the lowest total evaluated price (for evaluated price selection) and the winning bid price for the entire package not exceeding the approved package price, regardless of partial package estimates; for a package for procurement of drugs, chemicals, testing supplies, medical equipment, and medical procedures, the instructions of the Ministry of Health (if any) will apply.

5. The evaluation of a bid is done on photocopies, the bidder is responsible for the consistency between the original and the photocopies.  In case there is a discrepancy between the original and the photocopy but does not change the bidder ranking order, the evaluation will be based on the original.  In case there are discrepancies between the original and the photocopy, leading to a different evaluation result on the original than the evaluation result on the photocopy and causing a change in the bidder's ranking order, the bid will be rejected and the bidder will be subject to fraud allegations and will be addressed according to Point a, Clause 1, Article 125 of this Decree.

6. Deviation, reservation, omission in bids:

a) “deviations” means departures from the requirements specified in the bidding documents; “reservation” is the setting of limiting conditions or withholding from complete acceptance of the requirements specified in the bidding documents; “omission” is the failure to submit part or all of the information or documentation required in the bidding documents;

b) Provided that a bid is substantially responsive to the requirements of the bidding documents, 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 documents, the procuring entity may require the bidder to provide necessary information or documents within a reasonable duration for correction of nonconformities or non-material deviations in the bid related to the material requirements. Requests to provide information and documents to rectify these nonconformities or deviations must not affect any factor of the bid price. Failure to comply with this request of the procuring entity may result in disqualifying the bidder;

d) Provided that a bid is substantially responsive to the requirements of the bidding documents, the procuring entity or expert team may adjust nonmaterial and quantifiable nonconformities related to the bid price; the bid price will be adjusted to account for the cost of missing or non-compliant items; this adjustment is solely for bid comparison purposes.

7. In case the bidder does not meet one of the evaluation criteria of eligibility, capacity, experience, technique, finance or the bid has any deviations, reservations, or omissions which disqualifies the bid, other criteria will not be further evaluated.

8. The employer or procuring entity may not allow the bidder to use a subcontractor that provides consulting services for the package for which the bidder has won the bid. These consulting services include:  preparation, evaluation of engineering design, design of construction drawing, estimates or design of Front-End Engineering Design (FEED); valuation; supervision of contract performance and appraisal; preparation, appraisal of the prequalification document or bidding documents; evaluation of prequalification applications or bids; appraisal of the prequalification result or contractor selection result; management of project or contract; other consulting services directly to the package.

Article 28. Clarification to bids

1. After bid opening, the bidder is responsible for clarifying the bids according to the request of the procuring entity.  If a bid lacks required documents on eligibility, similar contracts, production capacity, financial statements, tax declaration and payment obligations, personnel, and equipment, the procuring entity shall request clarification and additional documents to demonstrate the bidder's qualifications and experience.

2. After bid submission deadline, if a bidder finds that their bid lacks required documents on eligibility, similar contracts, production capacity, financial statements, tax declaration and payment obligations, personnel, and equipment, they will send clarification and additional documents to the procuring entity to demonstrate their qualifications and experience. The procuring entity shall receive the bidder's clarifications for review and evaluation; additional and clarifying documents are an integral part of the bid.

3. Clarifications regarding eligibility must not alter the nature of the participating bidder. Clarifications regarding validity of the bid (excluding eligibility), technical proposals, and financial proposals must ensure no changes to the basic content of the submitted bid or the bid price.

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

5. The procuring entity may verify the authenticity of any doubtful documents of the bidder with relevant organizations or individuals.

Article 29. Error correction and deviation adjustment

1. Error correction is the correction of errors in bids, including arithmetic errors and other errors, carried out according to the following principles:

a) Arithmetic errors include errors caused by performing addition, subtraction, multiplication, and division calculations incorrectly when calculating the bid price. For fixed unit price contracts, adjustable unit price contracts, time-based contracts, cost-plus-a-fee contracts, output-based contracts, percentage-based contracts, if there is a discrepancy between the unit price and the amount, the unit price will be used as the basis for error correction; if it is discovered that the unit price has an unusual difference due to a decimal error (10 times, 100 times, 1,000 times), the amount of money is the basis for error correction;

b) In case the total value of the items is incorrect due to an error when adding or subtracting the value of the items, the value of the items is the basis for correcting the error;

c) Discrepancies between the numerical and written bid price will be resolved as follows: if the written price has a clear meaning, it takes precedence; if the written price has no meaning or contains arithmetic errors, the numerical price is used after correction based on points (a) and (b) of this Clause (if applicable);

d) If the amount column has the full value filled in but there is no corresponding unit price, the unit price is determined by dividing the amount by the quantity; when there is a unit price but the amount column is blank, the value of the amount column will be determined by multiplying the quantity by the unit price; if a certain item has a unit price and value in the amount column but leaves the quantity blank, the quantity is determined by dividing the value in the amount column by the unit price of that item. In case the quantity determined according to this principle is different from the quantity stated in the bidding documents, that difference is a deviation in the scope of supply and is corrected according to Clause 2 of this Article, except for construction package that applies lump sum contract;

dd) Calculation unit errors: correct it to meet the requirements of the bidding documents.

2. Adjustment of deviations in scope of supply:

a) Deviations in the scope of supply for construction packages:

For a construction package that does not apply the lump sum contract, the bidder must state the bid unit price and total amount for all work items stated in the bid price schedule. If the bidder lists the work items as required in the bidding documents but omits the unit price and total amount for one or more work items, those items will not be considered underbid. The missing unit price will be assumed to be distributed proportionally among the other listed items in the bid price schedule and will not be separately payable by the employer.

Work items stated in the bidding documents that are not listed in the bidder's bid price schedule are considered missing offers, and deviations are adjusted according to Point c of this Clause for bid comparison and ranking. If a work item in the bidding documents appears in the bidder's price schedule with a unit price, but the quantity differs from the bidding document requirements (either less or more), this will be considered an underbid or excess offer. These deviations will be adjusted according to Point c of this Clause. Work items listed in the bidder's bid price schedule that are not within the scope of work stated in the bidding documents are considered excess offers, and these deviations are adjusted according to Point c of this Clause.

For construction packages applying the lump sum contract, the bidder's bid price is considered to include all necessary costs to carry out the package in accordance with the design and technical requirements stated in the bidding documents and do not make adjustments in case the scope of work proposed by the bidder in the bidding documents is different from the requirements stated in the bidding documents, unless the other proposed work is outside the scope of the requirements in the bidding documents (in addition to the volume to be completed according to the design). In this case, the portion of work outside the scope of requirements in the bidding documents will be considered an excess offer and adjusted according to Point c of this Clause;

b) Deviations in the scope of supply for goods procurement and non-consulting packages:

In case the bidder lists the work items as required in the bidding documents but omits the bid unit price and total amount for one or several work items, it is considered an insufficient deviation and the deviation is adjusted according to Point c of this Clause for bid comparison and ranking.

Work items stated in the bidding documents that are not listed in the bidder's bid price schedule are considered missing offers, and the deviations are adjusted according to Point c of this Clause for bid comparison and ranking. If a work item in the bidding documents appears in the bidder's price schedule, but the quantity differs from the bidding document requirements (either less or more), this will be considered an underbid or excess offer. This deviation will be adjusted according to Point c of this Clause.

Work items listed in the bidder's bid price schedule that are not within the scope of work stated in the bidding documents are considered excess offers, and these deviations are corrected according to Point c of this Clause;

c) Adjust excess or insufficient deviations in the scope of supply:

If a bid lacks any required items (as specified in Points a and b of this Clause) and omits unit prices, the highest unit price of the item from technically-responsive bids will be used as the basis for deviation adjustment for those missing items; if the technically-responsive bids omit unit prices, the unit prices of the package estimate will be used as the basis for deviation adjustment; if the package estimate is unavailable, the unit prices forming the package price will be used as the basis for deviation adjustment, and for bidder comparison and ranking. The adjustment of insufficient deviations is only for bid comparison and ranking purpose.

If a bid proposes a lower volume of work than required in the bidding documents, the cost of the missing work will be added using the unit price from the bid.

If a bid proposes a higher volume of work than required in the bidding documents, the cost of the excess work will be deducted using the unit price from the bid.

3. If the bidder has a letter of discount, error correction and deviation adjustment are carried out on the basis of the bid price without deducting the discount. The percentage (%) of the insufficient deviation is determined on the basis of the bid price stated in the letter of bid.

4. Apply the unit price for the insufficient deviation to the first ranked bidder:

If a bid has insufficient deviations after adjustment according to Point c, Clause 2 of this Article, but remains ranked first, and lacks a unit price for the insufficient deviation, the proposed winning unit price will be determined based on the following priorities: the lowest unit price among the technically-responsive bids, the unit price in package estimate, unit price forming the package price (if package estimate is unavailable).

5. Following error correction, deviation adjustment, and application of unit prices for insufficient deviations (as outlined in Clauses 1, 2, 3, and 4), the procuring entity will notify the bidder of these adjustments in writing. Within 3 working days of receiving such a notice from the procuring entity, the bidder must notify the procuring entity in writing if they accept those adjustments from the procuring entity. If the bidder refuses those adjustments, their bid will be disqualified, unless the error correction, deviation adjustment, and application of unit prices are inappropriate or inaccurate.

Article 30. Checking and evaluation of bids

1. Check the validity of the bid, including:

a) Check the required documents of the bid, including: letter of bid; joint venture agreement (if any); power of attorney from the bidder's legal representative (if any); bid security; number of originals and photocopies of bidding documents;

b) Cross-check the original bid with its photocopies to ensure consistency before conducting the detailed bid evaluation.

2. Evaluate the validity of the bid:

a) The bid is considered valid when it fully meets the requirements of Clause 3, Article 24 of this Decree;

b) Bidders with valid bids will be evaluated for their capacity and experience.

3. Capacity and experience evaluation:

a) The capacity and experience evaluation is carried out according to the evaluation criteria specified in the bidding documents;

b) Bidders with qualified capacity and experience may undergo technical evaluation.

For goods procurement packages, bidders who are individuals or groups offering innovative products that meet the requirements in Clause 4, Article 5 of this Decree may be exempt from certain criteria outlined in Clause 3, Article 9.

4. Technical and financial evaluation:

a) The technical evaluation is carried out according to the evaluation criteria and methods specified in the bidding documents;

b) technically-responsive bidders may undergo financial evaluation using least-cost selection or evaluated price selection. The bidder who has the lowest bid price (after error correction, deviation adjustment, and any discounts) (for the least-cost selection) or has the lowest evaluated price (for the evaluated price selection) is ranked first. Discount letters that are not published in the bid opening minutes will not be evaluated.

If only one bidder is technically responsive, there is no need to determine the bidder ranking list. The employer does not have to approve the bidder ranking list.

5. e expert team prepares a report on the bid evaluation result and sends it to the procuring entity for review and submission to the employer for approval according to Article 31 of this Decree. The report on bid evaluation result must clearly state the following contents:

a) Evaluation result for each bid;

b) List of considered and ranked bidders and order of ranking of bidders;

c) List of non-responsive and disqualified bidders; reasons for bidder disqualification;

d) Name of the bidder proposed to win the bid, proposed winning price, type of contract, package performance duration and contract performance duration;

dd) Comments on competitiveness, fairness, transparency and economic efficiency in the contractor selection process.  If competitiveness, fairness, transparency, or economic efficiency cannot be assured, the procurement entity must clearly document the reasons and propose solutions;

e) The contents of the bidding documents are not in accordance with law on bidding or the contents may lead to unclear or different interpretations during the implementation process or may distort the contractor selection result  (if any); propose remedial measures;

g) Key considerations (if any).

6. Based on the report on the bid evaluation result, the procuring entity shall send a request to the employer for approval according to Article 31 of this Decree. The request for approval for contractor selection result includes the contents specified in Clause 5 of this Article.

Article 31. Submission, appraisal of, approval for, and publication of contractor selection results

1. The procuring entity will submit the contractor selection result based on the bid evaluation report. This result, as specified in Clause 5, Article 30 of this Decree, will clearly outline the procuring entity's opinions on the expert team's evaluation findings.

2. The contractor selection result is evaluated according to Clauses 1 and 4, Article 130 of this Decree before approval.

3. The contractor selection result is approved in writing based on the approval request and appraisal report of the contractor selection result.

4. In case the successful bidder is selected, the approval for contractor selection result includes the following:

a) Name of successful bidder;

b) Successful bid;

c) Contract type;

d) Package performance duration as prescribed in Clause 7, Article 39 of the Bidding Law and contract performance duration according to civil law regulations;

dd) Key considerations (if any).

5. In case of bid cancellation in accordance with Clause 1, Article 17 of the Bidding Law, the approval for contractor selection results or decision on bid cancellation must clearly state the reason for the bid cancellation and the responsibilities of related parties when canceling the bid. The decision on bid cancellation must be posted on VNEPS within 5 working days from signing date.

6. After the approval for contractor selection result is issued, the employer posts information about the contractor selection result according to Point a, Clause 1 and Clause 4, Article 8 of the Bidding Law; send a written notice of contractor selection result to participating bidders within 5 working days from approval date. Contents of the notice of contractor selection result:

a) Contents specified in Points a, b, c and d, Clause 4 of this Article;

b) List of unsuccessful bidders and the reasons for disqualification of each bidder;

c) Plan for finalizing and signing contracts with the successful bidder:

Unsuccessful bidders can request a written or in-person explanation from the employer to understand why their bids were not chosen. The employer is responsible for responding to the bidder's request within 2 working days from the date of receiving the bidder's request.

If a bidder files a petition to the employer or competent person about issues before the announcement of the contractor selection result or about the contractor selection result, the employer is responsible for posting the petition resolution from employer and competent persons on VNEPS within 5 working days from the date of issuance of the petition resolution.

Article 32. Finalization and signing of contracts

1. The employer or procuring entity invites the successful bidder to finalize the contract. During the process of finalizing the contract, the parties complete the draft contract; specific conditions of the contract, contract appendices (any detailed list of scope of work, price schedule, performance schedule).  Contract finalization is carried out on the basis of:

a) The contract form filled out with specific information of the package;

b) Approved contractor selection result;

c) Requirements stated in the bidding documents;

d) Contents stated in the bid and clarifications to bid of the successful bidder (if any);

dd) Contents that need to be finalized in the contract.

2. The contract finalization result is the basis for the employer and bidder to sign the contract. If the bidder voluntarily reduces the price, the contract price is the value after the discount.

3. If the successful bidder does not come to finalize or refuses to finalize the contract or sign the contract, the bid security will be forfeited.

Article 33. Contract performance management

1. Contract performance management includes the following contents: performance progress, quality, costs and other aspects of the contract. The employer is responsible for managing contract performance.

2. The employer must update the actual progress of contract performance when completing the milestones specified in the contract on VNEPS.

3. The employer is responsible for publicizing the bidder's contract performance result on VNEPS according to Clauses 3 and 4, Article 18 of this Decree. For a package with good supply involvement, the employer must also publicly disclose on VNEPS the quality of goods provided by the bidder according to Clauses 5, 6 and 7, Article 18. of this Decree.

Section 2. SINGLE-STAGE AND TWO-ENVELOPE METHOD

Article 34. Detailed procedures

1. Contractor selection preparation, including:

a) Shortlisting (if necessary);

b) Prepare bidding documents;

c) Appraise and approve bidding documents.

2. Contractor selection organization, including:

a) Invitation to bid:

b) Issue, modify and clarify bidding documents;

c) Prepare, submit, receive, manage, modify, withdraw bids;

d) Open technical proposals.

3. Evaluate technical proposals, including:

a) Check and evaluate validity of technical proposals;

b) Evaluate technical proposals in details;

c) Submit, appraise, and approve the list of technically-responsive bidders.

4. Open and evaluate financial proposals, including:

a) Open financial proposals of technically-responsive bidders;

b) Check and evaluate validity of financial proposals;

c) Evaluate financial proposals in details and rank bidders (if there is more than 1 bidder).

5. Negotiate contracts (if any).

6. Submit, appraise, approve, and publicize the contractor selection result and explain for unsuccessful bidders’ disqualification upon their requests (if any).

7. Finalize, sign, and manage contract performance.

In addition to organizations, individuals and groups can bid on goods procurement packages with innovative products that meet the criteria of Clause 4, Article 5 of this Decree.

Article 35. Preparation of bidding documents

1. If the package applies shortlisting procedure, it shall comply with Article 23 of this Decree.

2. Bidding documents are prepared based on Clause 1 Article 24 of this Decree.

3. Bidding documents must provide all necessary information for bidders to prepare competitive bids. They cannot contain any restrictions that limit bidder participation or give any bidder an unfair advantage, which may cause unfair competition as prescribed in Point k, Clause 6, Article 16 and Clause 3, Article 44 of the Bidding Law. The Ministry of Planning and Investment clarifies that violations of Clause 3, Article 44 of the Bidding Law can invalidate bidding documents. This means such documents cannot be used to evaluate bids.

4. Bidding documents must specify evaluation criteria for the validity of technical proposals and financial proposals, including:

a) Evaluation criteria for the validity of a technical proposal:

There is the original technical proposal;

There is a letter of bid in the technical proposal signed and stamped by the bidder's legal representative (if any) according to the requirements of the bidding documents; the signing date of the letter of bid must be after the issuance date of the bidding documents; do not include conditions that are disadvantageous to the employer. For a joint venture bidder, 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;

The validity of the technical proposal meets the requirements as prescribed in the bidding documents;

There is a bid security with value and validity period and the beneficiary meets the requirements of the bidding documents. Bid security, in the form of a bank guarantee or certificate of guarantee insurance, may not violate any of the following requirements: their value or validity period must meet the minimums specified in the bidding documents, the beneficiary name must be correct, a valid signature must be present, the signature cannot be dated before the bidding documents were issued, the document cannot contain any conditions that disadvantage the employer or procuring entity. The bank guarantee or certificate of guarantee insurance must be signed and stamped by a legal representative of a domestic credit institution or foreign bank branch established under Vietnamese law, a domestic non-life insurer, branch of foreign non-life insurer established under Vietnamese law (if any). For insurance packages, participating bidders may not present their own certificate of guarantee insurance;

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

There is a joint venture agreement (in case of joint venture) signed and sealed by the legal representative of each joint venture party (if any); the joint venture agreement must clearly state the specific work each party will perform and the estimated value of each party's work. Work assignments within the joint venture will be determined by: items listed in the bid price schedule or tasks required to produce those items. Tasks unrelated to these items or the production of these items must not be assigned.

The bidder must meet the eligibility requirements in accordance with Article 5 of the Law on Bidding;

In the 3 years before the bid submission deadline, the bidder did not have employed personnel (signed a labor contract with the bidder at the time they committed the violation) who were convicted by a court of a bidding violation leading to serious criminal consequences, with the intent for that bidder to win the contract;

b) Evaluate the validity of a financial proposal:

There is the original financial proposal;

There is a letter of bid in the financial proposal signed and stamped by the bidder's legal representative (if any) according to the requirements of the bidding documents; the signing date of the letter of bid must be after the issuance date of the bidding documents; do not propose different bid prices or include conditions that are disadvantageous to the employer. For a joint venture bidder, 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;

The validity of the financial proposal meets the requirements as prescribed in the bidding documents.

5. Evaluation criteria of bids, including:

a) Evaluation criteria for capacity and experience;

b) Technical evaluation criteria;

c) Determine the lowest price (in case the least-cost selection is applied);

d) Criteria for determining evaluated price (in case of applying the evaluated price selection);

dd) Combined evaluation criteria (in case of applying the quality- and cost-based selection).

For packages that have been pre-qualified, the bidding documents can omit evaluation criteria for bidder capacity and experience. However, they must require an update on the bidder's current capacity information.

6. Evaluation criteria for capacity and experience; technical evaluation criteria will be based on Points a and b, Clause 4 and Points a, b, Clause 5, Article 24 of this Decree.

7. Determination of the lowest price (in case of applying the least-cost selection) is carried out according to Point c, Clause 4 and Point c, Clause 5, Article 24 of this Decree.

8. Determination of the evaluated price (in case of applying the evaluated price selection) is carried out according to Point d, Clause 4 and Point d, Clause 5, Article 24 of this Decree.

9. Determination of combined evaluation criteria (in case of applying the quality- and cost-based selection) is carried out according to Article 36 of this Decree.

10. Regulations on stating the trademark and origin of goods are specified in Clause 9, Article 24 of this Decree.

11. Regulations on labor use are specified in Clause 10, Article 24 of this Decree.

12. Regulations on additional purchase options are specified in Clause 11, Article 24 of this Decree.

13. For non-consulting and mixed packages, based on the scale and nature of the package and the provisions in this Article, determine evaluation criteria for capacity and experience; technical evaluation criteria; determine the lowest price (in case the least-cost selection is applied), or the criteria for determining the evaluated price (in case the evaluated price selection is applied), or combined evaluation criteria (in case the quality- and cost-based selection is applied) accordingly.

14. Regulations on sales permits are specified in Clause 12, Article 24 of this Decree.

Article 36. Combined evaluation criteria

1. Combined evaluation criteria apply to the quality- and cost-based selection on the basis of determining an aggregate score.

The aggregate score is determined as follows:

Where:

Technical score under consideration: is the score determined at the technical evaluation step of the bid under consideration;

Highest technical score:  is the highest technical score among technically-responsive bids;

Lowest G: is the bid price (after error correction, deviation adjustment, and any discounts) of technically-responsive bids;

G under consideration:  is the bid price (after error correction, deviation adjustment, and any discounts) of the bid under consideration;

K: Technical score weight given in the aggregate score scale;

T: Financial score weight given in the aggregate score scale;

K + T = 100%. Technical score weight and financial score weight must be specifically determined in the bidding documents.

2. Combined evaluation criteria are built on the basis of a combination of technical and financial aspects. Depending on the scale and nature of each package, it is necessary to determine the technical score weight and financial score weight accordingly, ensuring that their total equals 100% according to the following principle:

a) For construction, procurement, non-consulting, and mixed packages: Technical score weight is from 10% to 30% and financial score weight is from 70% to 90%;

b) For drug procurement packages:  Technical score weight is from 30% to 40% and financial score weight is from 60% to 70%.

3. If technical aspects need to be prioritized over financial aspects, the employer submits to the competent person to consider specific technical score weight and financial score weight accordingly, provided that the technical score weight does not exceed 50%.

Article 37. Appraisal of and approval for bidding documents

1. Bidding documents must be appraised according to Article 129 of this Decree before approval.

2. Approval for bidding documents must be based on the approval report and appraisal report of bidding documents.

Article 38. Organization of contractor selection

1. Invitation for bids:

a) Invitation to bid is applied according to Point b, Clause 1, Article 8 of the Bidding Law if the shortlisting procedure is not applied;

b) Send invitations to bid to bidders on the short list.

2. Issue, modify and clarify bidding documents:

The issuance, modification, and clarifications to bidding documents shall comply with Clause 2, Article 26 of this Decree.

3. Prepare, submit, receive, manage, modify, withdraw bids:

Preparation, submission, receipt, management, modification, and withdrawal of bids shall comply with Clause 3, Article 26 of this Decree.

4. Open technical proposals:

a) The opening of a technical proposal must be conducted publicly and begin within 2 hours from the bid submission deadline.  The procuring entity only opens technical proposals received before the bid submission deadline according to the requirements of the bidding documents in the presence of representatives of bidders attending the bid opening ceremony, regardless of the presence or absence of bidders;

b) Technical proposals are opened in alphabetical order by bidder name and in the following order: check the seal; open the envelope and clearly read the bidder's name, check the number of originals and copies of the technical proposal and the letter of bid in the technical proposal; check validity period of the technical proposal; verify proposed performance duration; check value and validity of bid security and other related information;

c) The information specified in point b of this clause must be recorded in the minutes of technical proposal opening. The minutes will be signed by representatives of the procuring entity and bidders attending the opening ceremony of technical proposals an  sent to participating bidders and posted on VNEPS within 24 hours upon bid opening;

d) 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 technical proposal;

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

Article 39. Principles for evaluation of and clarifications to bids, error correction and deviation adjustment

1. The evaluation of bids is carried out according to the principles specified in Clauses 1, 2, 3, 5, 6, 7 and 8, Article 27 of this Decree.

For a divided package, bid evaluation and award will prioritize the bid with lowest total proposed winning price (for least-cost selection); or prioritize the bid with the lowest total evaluated price (for evaluated price selection); or prioritize the bid with the highest aggregate score (for quality- and cost-based selection) and the winning bid price for the entire package not exceeding the approved package price, regardless of partial package estimates; for a package for procurement of drugs, chemicals, testing supplies, medical equipment, and medical procedures, the instructions of the Ministry of Health (if any) will apply.

2. The bid clarification shall comply with Article 28 of this Decree.

3. Error correction and deviation adjustment are carried out in accordance with Article 29 of this Decree.

Article 40. Checking and evaluation of validity of technical proposals

1. Evaluate criteria for the validity of a technical proposal:

a) Check the required documents in the technical proposal, including:  letter of bid in the technical proposal; joint venture agreement (if any); power of attorney from the bidder's legal representative (if any); bid security; number of originals and photocopies of the technical proposal;

b) Cross-check the original bid with its photocopies to ensure consistency before conducting the detailed technical proposal evaluation.

2. Evaluate the validity of the technical proposal:

The technical proposal is considered valid when it fully meets the requirements of Point a, Clause 4, Article 35 of this Decree.

Bidders with valid technical proposals will be evaluated for their capacity and experience. For packages that have been pre-qualified, no evaluation of the bidder's capacity and experience is conducted.

3. Evaluation of capacity and experience:

a) The evaluation of capacity and experience is carried out according to the evaluation criteria specified in the bidding documents;

b) Bidders with qualified capacity and experience may undergo technical evaluation;

c) For packages with prequalification, the bidder who has passed the prequalification step, has a valid technical proposal, and has updated capacity to meet the requirements of the package will undergo the technical evaluation.

For goods procurement packages, bidders who are individuals or groups offering innovative products that meet the requirements in Clause 4, Article 5 of this Decree may be exempt from certain criteria outlined in Clause 3, Article 9.

4. Technical evaluation:

a) The technical evaluation is carried out according to the evaluation criteria specified in the bidding documents;

b) Open and evaluate financial proposals of technically-responsive bidders.

5. he list of technically-responsive bidders must be approved in writing by the employer based on the approval report and appraisal report of technical evaluation result. The procuring entity announces the list of technically-responsive bidders and technically-nonresponsive bidders, states the reasons for technically-nonresponsive bidders, and invites all participating bidders to open their financial proposals. The procuring entity must post a list of technically-responsive bidders on VNEPS within 5 working days from the date of approval for this list.

Article 41. Opening of financial proposals

1. The procuring entity checks the seal of the envelope containing the financial proposals.

2. The opening of financial proposals is carried out as follows:

a) Only open financial proposals of bidders whose names are on the list of technically-responsive bidders in the presence of representatives of bidders attending the financial proposal opening ceremony, regardless of the presence or absence of bidders;

b) The opening of financial proposals is carried out for each financial proposal according to the alphabetical order of the bidder's name in the list of technically-responsive bidders and according to the following order: check the seal; read the technical scores of technically-responsive bids (If the scoring method is used); open the envelope and clearly read the information:  check the seal; read the technical scores of technically-responsive bids (If the scoring method is used); open the envelope and clearly read the information: name of the bidder, number of originals, copies of the financial proposal, letter of bid included in the financial proposal, validity period of the financial proposal, bid price stated in the letter of bid, discount (if any), and other related information.

3. Minutes of opening financial proposals:

a) The information specified in Clauses 1 and 2 of this Article must be recorded in the minutes of opening financial proposals. The minutes of opening financial proposals must be signed by representatives of the procuring entity and bidder participating in the opening of financial proposals. The minutes will be sent to technically-responsive bidders and posted on VNEPS within 24 hours upon bid opening;

b) The representative of the procuring entity must sign all original pages of the financial proposal.

Article 42. Checking and 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; bid price schedule; other documents in the financial proposal;

c) Cross-check the original with its photocopies to ensure consistency before conducting the detailed financial proposal evaluation.

2. Evaluate the validity of the financial proposal:

The financial proposal is considered valid when it fully meets the requirements of Point b, Clause 4, Article 35 of this Decree.

Bidders with valid financial proposals will undergo a detailed financial evaluation.

3. Evaluate financial proposals in details and rank bidder:

a) Detailed evaluation of financial proposals and bidder ranking are carried out according to the evaluation criteria specified in the bidding documents. Any letter of discount that is not published in the bid opening minutes will not be evaluated;

b) After forming the bidder ranking list, the expert team prepares a report and sends it to the procuring entity for consideration. The report includes the following contents: list of responsive bidders and their ranks; list of nonresponsive and disqualified bidders, with explanations for disqualification; comments on competitiveness, fairness, transparency and economic efficiency in the contractor selection process. If competitiveness, fairness, transparency and economic efficiency are not guaranteed, the reasons must be clearly stated and solutions proposed; the contents of the bidding documents are not in accordance with the law on bidding or the contents may lead to unclear or different interpretations during implementation or may distort the contractor selection result (if any); propose remedial measures.

The employer does not have to approve the bidder ranking list.

Article 43. Contract negotiation

1. If the package applies contract negotiation, the first-ranked bidder is invited by the procuring entity to negotiate the contract.

2. Bases for contract negotiation:

a) Bid evaluation report;

b) The bid and clarifications to bid (if any) of the bidder;

c) Bidding documents, which contain general conditions, specific conditions of the contract and modifications of and clarifications to the bidding documents (if any).

3. Principles of contract negotiation:

a) Do not negotiate the content of a bid that complies with the bidding documents;

b) Do not change the unit price determined at the financial evaluation step.

4. Matters to be negotiated:

a) Contents that are insufficiently detailed, unclear, or inconsistent between the bidding documents and the bid, or within different sections of the bid, which can lead to issues and disputes or affect the responsibilities of the parties during contract performance;

b) Deviations identified and proposed by the bidder in their bid (if applicable). This includes proposals for changes or alternative technical solutions, if the bidding documents allowed bidders to submit such alternatives;

c) Key personnel:

Bidders cannot replace key personnel who have been proposed or have been replaced once according to Clause 2, Article 27 of this Decree. Exceptions are allowed only in two situations: the bid evaluation takes longer than originally anticipated in the specific contractor selection plan, or force majeure prevents the proposed key personnel from performing the contract.  In this case, the bidder can replace other personnel but the replacements must possess qualifications, experience and capacity equivalent to or higher than the originally proposed personnel and the bidder is not allowed to change their bid price;

d) Issues that arise during the contractor selection process (if any) to finalize the detailed contents of the package;

dd) Other necessary contents.

5. During the contract negotiation process, the parties complete the draft contract; specific conditions of the contract, contract appendices (any detailed list of scope of work, price schedule, performance schedule).

6. Following the contract negotiation completion, the procuring entity shall send a request for approval for contractor selection result the employer according to Article 31 of this Decree. The request for approval for contractor selection result includes the following contents:

a) Evaluation result for each bid;

b) List of considered and ranked bidders and order of ranking of bidders;

c) Contract negotiation result;

d) List of non-responsive and disqualified bidders; reasons for bidder disqualification;

dd) Name of the bidder proposed to win the bid, proposed winning price, type of contract, package performance duration and contract performance duration;

e) Comments on competitiveness, fairness, transparency and economic efficiency in the contractor selection process.  If competitiveness, fairness, transparency, or economic efficiency cannot be assured, the procurement entity must clearly document the reasons and propose solutions;

g) The contents of the bidding documents are not in accordance with law on bidding or the contents may lead to unclear or different interpretations during the implementation process or may distort the contractor selection result  (if any); propose remedial measures;

h) Key considerations (if any).

7. . If the bidder participates in negotiations but fails to conduct negotiations in accordance with the principles and contents specified in Clauses 3 and 4 of this Article or has conducted negotiations but fails to sign the contract negotiation minutes, signifying their withdrawal from the bidding process; or causes disadvantages to the employer, the bidder will be disqualified and the bid security will be forfeited.

8. The bidder has the right to refuse to negotiate and has the bid security refunded if the procuring entity or employer fails to conduct negotiations according to the principles and contents specified in Clauses 3 and 4 of this Article.

9. If the negotiation is not successful, the procuring entity will report to the employer for consideration and decide whether to invite the next ranked bidder to negotiate.

Article 44. Submission, appraisal of, approval for, and publication of contractor selection result, finalization, signing, and management of contract

1. The submission, appraisal of, approval for, and publicization of contractor selection result shall comply with Article 31 of this Decree.

2. The finalization, signing, and management of contracts shall comply with Article 32 and Article 33 of this Decree.

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