Chương IV 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 tư vấn

Chapter IV

OFFLINE LIMITED BIDDING, COMPETITIVE BIDDING FOR CONSULTING PACKAGES

Section 1. CORPORATE BIDDERS

Article 59. 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 the technical proposal, including:

a) Check and evaluate the validity of the technical proposal;

b) Evaluate the technical proposal 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;

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

5. Negotiate contract.

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.

Article 60. Shortlisting

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

2. For competitive bidding:

a) Prepare EOI request:

The EOI request includes the following contents: summary about the project, procurement estimate, package; instructions on preparing and submitting EOI responses; evaluation criteria for the validity of EOI responses; criteria for bidder capacity and experience; personnel standards (if any).  Criteria for evaluating EOI responses are built on the basis of using the scoring method, which stipulates the minimum required score not lower than 60% of the aggregate score;

b) EOI request must be appraised according to Article 129 of this Decree before approval;

c) Approval for EOI request must be based on the approval report and appraisal report of EOI request;

d) Invitation for EOI responses shall comply with Point b, Clause 1, Article 8 of the Bidding Law;

dd) The EOI request is published on VNEPS free of charge;

e) The procuring entity confidentially receives and manages EOI responses until the EOI result is announced;

g) Open and evaluate EOI responses:

EOI responses are submitted by the deadline and at the location specified in the EOI request and are opened immediately after the bid submission deadline. The record of the EOI opening will be sent to participating bidders and posted on VNEPS within 24 hours upon bid opening. EOI responses submitted after the bid submission deadline are invalid, cannot be opened and will be disqualified.

The evaluation of EOI responses is carried out according to the evaluation criteria specified in the EOI request.  Bidders' EOI responses with a score not lower than the minimum required score will be included in the shortlist; the bidder's EOI response with the highest score is ranked first; if there are more than 6 qualified bidders, 6 highest-ranked bidders will be selected for the shortlist;

h) Submit, appraise, and approve the EOI result:

The procuring entity submits the EOI evaluation result for approval, including their opinions on of the expert team's evaluation findings.

The EOI result is appraised against Clauses 1 and 2 of Article 130 of this Decree. Following this appraisal, a written approval is granted based on the EOI approval proposal and appraisal report. If a shortlist is created, the EOI result approval will identify the successful bidders and include any relevant notes. If a shortlist is not created, the EOI result approval must clearly state the reason a shortlist was not created;

i) The shortlist will be posted as required in Point b, Clause 1, Article 8 of the Bidding Law and shared with bidders who submitted EOI responses.

3. 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.

4. 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 61. 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) Scope and requirements of work; experience and personnel requirements of the consultant and other necessary requirements (if any);

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

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

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

a) The technical proposal is considered valid when it fully meets the following requirements:

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 tax declaration and tax payment obligations have been fulfilled;

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

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 terms of reference or technical proposal. Tasks unrelated to 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) The financial proposal is considered valid when it fully meets the following requirements:

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.

4. Evaluation criteria of bids, including: technical evaluation criteria; determine the lowest price (if the least-cost selection is applied); combined evaluation criteria (if the quality-and cost-based selection is applied).

5. Technical evaluation criteria: using scoring methods, including:

a) Bidder experience and capacity:  from 0% to 15% of total score;

b) Bidder's reputation through bidding participation, bidder's contract performance result as prescribed in Articles 17 and 18 of this Decree:  5% of total score;

c) Solutions and methodology to perform the package:  from 30% to 40% of total score;

d) Personnel performing the package:  from 50% to 60% of total score;

dd) Depending on the nature of the package, the bidding documents may require technology transfer with a weight of from 0% to 10% of the total score;

e) The total weight of score for the items specified in Points a, b, c and d of this Clause is 100%.

Technical proposals are evaluated to meet technical requirements when the technical score is not lower than 70% of the aggregate score (or 80% for consulting service packages with high and special technical requirements) and the score of each required item on solutions and methodology, personnel, and technology transfer (if any) is not lower than 60% of the maximum score of that item (not lower than 70% for that item for consulting service packages with high and specific technical requirements).  The procuring entity should determine whether a minimum score is necessary for the "bidder experience and capacity" criterion, based on the nature of the procurement package.

6. Based on the scale and nature of the package, the bidding documents stipulate the financial evaluation method according to one of the following methods:

a) Least-cost selection;

b) Quality- and cost-based selection;

c) Quality-based selection.

7. 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.

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

a) Determine cost-based score:

Use a scale consistent with the quality-based scale to determine the cost-based price.  The cost-based score is determined as follows:

Where:

Cost-based score under consideration: Cost-based score of the financial proposal under consideration;

Lowest price: The lowest bid price (after error correction, deviation adjustment, and any discounts) among bidders with detailed financial evaluation;

Price under consideration: The bid price (after error correction, deviation adjustment, and any discounts) of the bid under consideration.

b) Combined evaluation criteria:

The aggregate score is determined according to the following formula:

Aggregate score under consideration = K x Quality-based score under consideration + G x Cost-based score under consideration

Where:

Quality-based score under consideration: is the score determined at the technical evaluation step;

Cost-based score under consideration: is the score determined at the financial evaluation step;

K: Quality-based score weight given in the aggregate score scale; accounting for 70% to 80%;

K: Cost-based score weight given in the aggregate score scale; accounting for 20% to 30%;

K + G = 100%.

Article 62. 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 63. 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) In case the package applies the shortlisting procedure, invitations to bid will be sent to the bidders named on the shortlist.

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

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

4. The technical proposal opening shall comply with Clause 4 Article 38 of this Decree but exclude the bid security.  The bid opening minutes will be sent to participating bidders and posted on VNEPS within 24 hours upon bid opening.

Article 64. 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 61 of this Decree, will be disregarded during bid evaluation.

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

3. 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.

Article 65. 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, tax declaration and payment obligations, personnel, the procuring entity shall request clarification and additional documents,

2. After bid submission deadline, if a bidder finds that their bid lacks required documents on eligibility, similar contracts, tax declaration and payment obligations, personnel, they will send clarification and additional documents to the procuring entity. The procuring entity shall receive the bidder's clarifications for review and evaluation; additional and clarifying documents are 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 clarification of the 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 66. Error correction and deviation adjustment

1. For types of contracts in Article 64 of the Bidding Law, if the bidder omits the unit price for one or more work items in the financial proposal although these work items have been stated in the technical proposal as required in the bidding documents, the missing unit price will be assumed to be distributed proportionally among the other listed item in the bid.

2. For time-based contracts:

a) 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;

b) In case of an error in the total bid price due to addition or subtraction mistakes within the "Amount" column, the individual values in the "Amount" column will be used to correct the error;

c) If there is a discrepancy between the unit price and the amount, the unit price will be used as the basis for error correction. Discrepancies between the numerical and written bid price will be resolved as follows: if the written price contains arithmetic errors, the numerical price is used after correction based on points (a) and (b) of this Clause (if applicable); otherwise, the written price will prevail;

d) In case of discrepancies between the technical proposal and the financial proposal regarding: the number of personnel involved, the number of working days, the quantity of each non-salary cost item, the number of other input factors offered in the technical proposal and financial proposal, the quantities specified in the technical proposal will be used as the basis for error correction and deviation adjustment. Deviation adjustment in this case is done according to the quantity and volume stated in the technical proposal with the unit price stated in the financial proposal.

3. For lump-sum contracts:

In case of applying a lump-sum contract, the bid price after discount (if any) proposed by the bidder in the letter of bid included in the financial proposal is considered to include all necessary costs to Perform the package according to the scope of work stated in the bidding documents, without error correction and deviation adjustment. 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, the numerical price is used.

4. For fixed unit price contracts and adjustable unit price contracts:

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

5. Following error correction and deviation adjustment (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 and deviation adjustment are inappropriate or inaccurate.

Article 67. Checking and evaluation of the validity of technical proposals

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

The evaluation of validity of the technical proposal shall comply with Clause 1 Article 40 of this Decree but exclude the bid security.

2. Evaluate the validity of the technical proposal:

The technical proposal is considered valid when it fully meets the requirements of Point a, Clause 3, Article 61 of this Decree. Bidders with valid technical proposals will be evaluated for their technical aspect.

3. Technical evaluation:

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

b) If a bid proposes a quantity of personnel for a key position that deviates from the amount required in the bidding documents (either exceeding or falling short), it will be considered non-compliant with the technical requirements.

c) The bidder that meets the technical requirements or achieves the highest technical score (for the quality-based selection) may have their financial proposal opened and evaluated.

4. The 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 technicall-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 68. Opening, checking, and evaluation of financial proposals

1. The opening of financial proposals shall comply with Article 41 of this Decree; for packages applying the quality-based selection, only open the financial proposal of the bidder with the highest technical score.

2. The evaluation of validity of financial proposals shall comply with point b clause 3 Article 61 of this Decree.

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

3. The detailed evaluation of financial proposals and bidder ranking shall comply with Clause 3 Article 42 of this Decree.

Article 69. Contract negotiation

1. The first-ranked bidder is invited by the procuring entity to negotiate the contract. The contract negotiation shall comply with Clause 2 Article 43 of this Decree.

2. 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) Personnel:

Bidders cannot change key personnel who have been proposed. 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) Costs related to consulting services in accordance with the requirements of the package and actual conditions;

e) Other necessary matters.

3. During the contract negotiation process, the parties complete the draft contract; specific conditions of the contract.

4. Following the contract negotiation completion, the procuring entity shall send a request for approval for contractor selection result the employer according to Article 70 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).

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

The submission, appraisal of, approval for, and publicization of contractor selection result, finalization, signing, and management of contracts shall comply with Articles 31, 32, 33 of this Decree.

Section 2. INDIVIDUAL BIDDERS

Article 71. Selection of individual consultants

1. Individual consultant may include one or a group of experts. If the consultant is a group of experts, the experts will appoint a representative to deal with the procuring entity or the employer. If the group of experts wins the bid, all of the members must sign a contract with the employer in person. Individual consultants are selected based on their capacity and experience, and a fixed price is agreed upon.

2. For individual consulting service packages with a package price not exceeding 200 million VND, contractor selection is carried out according to the shortened process specified in Article 74 and Article 75 of this Decree.  For individual consulting service packages with a package price of over 200 million VND, contractor selection is carried out according to the ordinary process specified in Article 72 and Article 73 of this Decree.

Article 72. Preparation, submission of and approval for terms of reference under ordinary procedures

1. The procuring entity prepares terms of reference for the individual consultant that needs to be selected and submit them to the employer for approval. The terms of reference include:

a) Brief description of the project, procurement estimate;

b) Requirements on scope, volume, quality and performance duration of the package;

c) Requirements on capacity and qualifications of consultants;

d) Conditions and location of contract performance;

dd) Package price according to the fixed price method;

e) Other necessary matters (if any).

2. Based on the documents submitted by the procuring entity, the employer considers approving the terms of reference.

Article 73. Posting of invitations to bid and evaluation of individual consultants' scientific resumes; approval for the contractor selection result; signing of contract; posting of individual consultant selection result under ordinary procedures

1. After the terms of reference are approved, the procuring entity posts an invitation to bid along with the terms of reference on VNEPS, clearly stating the deadline for receiving scientific resumes. Individual consultants need at least five working days to prepare a scientific resume.

Organizations and individuals can request clarification on the terms of reference through VNEPS. Any clarification requests must be submitted at least 3 working days before the bid submission deadline for consideration. The procuring entity shall respond to the clarification request on the VNEPS at least 2 working days before the bid submission deadline.

If the terms of reference need to be amended after they are issued, the procuring entity must post the decision to amend them, along with the amended version and detailed amendments, on VNEPS at least 3 working days before the bid submission deadline.

2. Submission of scientific resumes:

Individual consultants prepare scientific resumes according to the requirements stated in the terms of reference, technical proposals (if any) and submit them on VNEPS.

3. Evaluation of scientific resumes:

Based on the terms of reference, the procuring entity evaluates the scientific resume of each individual consultant. An individual consultant will be ranked first if they meet all the following criteria: fulfill the eligibility requirement outlined in Clause 3, Article 5 of the Bidding Law; have the best scientific resume and technical proposal (if any), and meet the requirements of the terms of reference.

4. Contract negotiation:

The procuring entity invites the first-ranked individual consultant to negotiate the contract according to the approved terms of reference, including the scope of work, performance schedule, reporting requirements, consulting costs, contract prices and other necessary matters. The result of contract negotiation is recorded in writing and must be signed by the procuring entity and the individual consultant.

5. Approval for individual consultant selection result is based on the approval request, report on the result of evaluating the individual consultants' scientific resumes, and contract negotiation result. The contract signed between the parties must be consistent with the decision on approval for individual consultant selection result, the contract negotiation result, the content of the terms of reference and other related documents.

6. The individual consultant selection result is posted on VNEPS according to Point a, Clause 1 and Clause 4, Article 8 of the Bidding Law.

Article 74. Preparation, submission of and approval for terms of reference and list of individual consultants under shortened procedures

1. The preparation, submission of and approval for terms of reference are carried out in accordance with Article 72 of this Decree.

2. The procuring entity identifies a list of at least 3 individual consultants to submit to the employer for approval.

3. Based on the documents submitted by the procuring entity, the employer considers approving the terms of reference and the list of individual consultants.

Article 75. Sending of invitation letters and evaluation of individual consultants' scientific resumes; approval for the contractor selection result; signing of contract; posting of individual consultant selection result under shortened procedures

1. After the terms of reference and list of individual consultants are approved, the procuring entity sends invitation letters and terms of reference to the individual consultants named on the list, clearly stating the deadline and location for receiving scientific resumes. Individual consultants need at least three working days to prepare a scientific resume.

2. Submission of scientific resumes:

Individual consultants prepare scientific resumes according to the requirements stated in the terms of reference and technical proposals (if any) and submit them to the procuring entity within the time limit and address stated in the invitation letter.

3. Evaluation of the individual consultant's scientific resumes; contract negotiation; approval for the contractor selection result; signing of contracts; posting of individual consultant selection result shall comply with Clauses 3, 4, 5 and 6, Article 73 of this Decree.

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