Chương IX Nghị định 24/2024/NĐ-CP: Kiểm tra, giám sát hoạt động đấu thầu và xử lý vi phạm trong đấu thầu

Chapter IX

INSPECTION AND MONITORING OF BIDDING ACTIVITIES AND ADDRESSING OF VIOLATIONS IN BIDDING

Section 1. INSPECTION OF BIDDING ACTIVITIES

Article 114. Responsibilities for inspecting bidding activities

1. Ministry of Planning and Investment:

a) Lead the inspection of bidding activities at ministries, ministerial-level agencies, Governmental agencies, and other central and local agencies according to periodic plans approved by the Minister of Planning and Investment;

b) Lead the inspection of bidding activities according to Clause 2 of this Article;

c) Agencies tasked with managing bidding activities under the Ministry of Planning and Investment assist the Minister of Planning and Investment in inspecting bidding activities according to Point a of this clause.

2. Ministries, ministerial-level agencies, Governmental agencies, and other central agencies shall lead the inspection of bidding activities for projects for projects in which investment is decided by the head of central agencies or projects undertaken by entities under their management.

3. Provincial People's Committee:

a) Lead the inspection of bidding activities of units under its management and projects whose investment is decided by the President of the Provincial People's Committee;

b) The Department of Planning and Investment helps the Provincial People's Committee inspect bidding activities according to Point a of this Clause.

4. Competent persons of state-owned enterprises shall inspect bidding activities for projects in which they decide to invest, and projects of enterprises in which they hold 100% of the charter capital.

Article 115. Responsibilities of inspection team and inspection team members

1. Responsibilities of the inspection team:

a) Carry out inspection of bidding activities according to the inspection decision;

b) Request the inspected entity, relevant organizations and individuals to provide information and documents to facilitate the inspection process at the request of the inspection team;

c) Develop a draft inspection report and share the draft inspection report with organizations and individuals of the inspected entity;

d) Develop draft inspection findings.

2. Responsibilities of the inspection team leader:

a) Lead the formulation of and approval for detailed inspection plans;

b) Assign tasks to inspection team members when performing inspection.

3. Responsibilities of the inspection team members:

a) Carry out inspection in accordance with regulations and as assigned by the inspection team leader;

b) Prepare reports on individual inspection results as assigned;

c) Report to the inspection team leader on the results of the inspection they conducted;

d) Have the right to reserve opinions and bear legal responsibility for expressing them.

Article 116. Responsibilities of organizations and individuals of the inspected entity and related organizations and individuals

1. Responsibilities of organizations and individuals in the inspected entity:

a) Coordinate with and facilitate the inspection team during the inspection process;

b) Report honestly, provide complete information and documents promptly and take legal responsibility for the information provided;

c) Explain the contents in the draft inspection report (if any);

d) Implement the suggesions in the inspection findings of the inspection agency;

dd) Send a feedback report on the implementation of suggestions in the inspection findings to the inspection agency as prescribed in Clause 4, Article 121 of this Decree.

2. Responsibilities of relevant organizations and individuals:

a) Report honestly, provide complete information and documents promptly when requested by the inspection team and take legal responsibility for the information provided;

b) Explain the contents in the draft inspection report (if any).

Article 118. Principles for organizing inspection

1. Comply with the law, ensure accuracy, objectivity, openness, transparency and timeliness.

2. Be fair, objective, and do not cause difficulties for the inspected entity; comply with regulations on anti-corruption.

3. Conduct independently but with coordination and clear division of authority among competent inspection agencies.

4. Ensure no overlap or duplication in scope, inspected entities, inspected matters, and timing among competent inspection agencies.

5. If there is overlap in the inspected entities, priority shall be given to inspection by specialized authorities or superior agencies.

Article 118. Forms of inspection

1. Periodic inspection:

a) Periodic inspection is carried out according to the annual plan approved by the head of the inspection agency;

b) Based on the implementation of bidding activities in each year, the lead inspection agency shall make a periodic inspection plan for the following year and submit it to the head of the inspection agency for approval. The periodic inspection plan includes the following contents: list of inspected entities; projects and procurement estimates to be inspected; inspection time; inspection scope and inspected matters; inspection coordination agencies (if any);

c) If it is necessary to revise the approved periodic inspection plan, the lead inspection agency shall make a revision plan and submit it to the head of the inspection agency for approval;

d) The approved periodic inspection plan and revision plan (if any) are the basis for the head of the inspection agency to approve the inspection decision and organize inspection;

dd) The periodic inspection plan and revision plan (if any) are sent to the inspected entity within 10 days from the date of approval provided that the inspected entity receives them at least 15 days before the inspection date.

2. Surprise inspection:

a) Surprise inspection decided by the head of the inspection agency;

b) Surprise inspections are carried out for specific cases at the request of the Prime Minister, heads of central agencies, President of the Provincial People's Committee, and heads of inspection agencies.

Article 119. Methods of inspection

1. An inspection may be conducted according to one or a combination of the inspection methods specified in Clauses 2 and 3 of this Article.

2. Inspection visit is the main method applied and is carried out directly at the premises of the inspected entity.

3. Written report is the method by which the inspection team requests the inspected entity to report in writing on the inspected matters.

Article 120. Inspection visit duration and budget for inspecting bidding activities

1. Inspection visit duration:

a) The maximum duration of an inspection visit at the premises is 7 working days from the date of announcement of the inspection decision, except for the cases specified in Point b of this Clause.   Within a maximum period of 30 days from the date of completion of the inspection visit, the inspection team must make an inspection report.  The head of the inspection agency approves the inspection findings within a maximum period of 20 days from the date the inspection team submits the draft inspection findings;

b) If the inspection has complex aspects and involves many inspected entities, the maximum duration for inspection visit at the premises is 15 days from the date of announcement of the inspection decision.  Within a maximum period of 40 days from the date of completion of the inspection visit, the inspection team must make an inspection report.  The head of the inspection agency approves the inspection findings within a maximum period of 30 days from the date the inspection team submits the draft inspection findings.

2. Budget for inspection:

a) Budget for inspection are allocated in the annual current expenditure estimates of the lead inspection agency of bidding activities under ministries, ministerial-level agencies, Governmental agencies, and other central agencies, Department of Planning and Investment according to the State Budget Law and guiding documents;

b) State-owned enterprises arrange their own funds to carry out inspection.

Article 121. Inspection visit process

1. Preparation for inspection visit:

Based on the periodic inspection plan or surprise inspection request, lead inspection agency shall carry out the following tasks:

a) Collect information and documents related to the inspection; In case of surprise inspection, the collection of information and documents is done before or after the inspection decision;

b) Determine the composition of the inspection team and participating members of the coordinating agencies (if any);

c) Seek approval for the inspection decision from the head of the inspection agency;

d) The inspection team leader approves the detailed inspection plan after the inspection decision is approved; if the inspection has complex aspects, involves many inspected entities or requires a surprise inspection, the inspection team leader shall consider submitting a detailed inspection plan to the head of the inspection agency for approval;

dd) Develop a report outline to serve as a basis for the inspected entity to prepare a report on the bidding activities that need to be inspected;

e) Send a notice together with a detailed inspection plan and report outline to the inspected entity, the superior agency of the inspected entity (if any) and relevant entities (if any). The written notice is sent to the inspected entity at least 10 days before the inspection date.

2. Organization of inspection visit:

a) The inspection team leader announces the inspection decision when starting to undertake an inspection visit to the premises of the inspected entity, and prepares a record to announce the inspection decision;

b) The inspection team collects, researches, analyzes, and evaluates information and documents related to the inspected bidding activities, including the information specified in Clause 1, Article 124 of the Decree for the inspected entity; create an evaluation and comment schedule for each inspection matter; for presenting the inspection findings. During the inspection, the inspection team can discuss with the inspected entities and conduct on-site inspections when necessary.  Depending on the scale and nature of the inspection, the inspection team leader decides to make a record confirming the inspected matters;

c) The inspection team notifies the inspected entity in writing about the end of the inspection visit at the premises and hands over documents and equipment used (if any) during the inspection process;

d) After completing the inspection visit at the premises, the inspection team develops a draft inspection report and submits it to the inspection team leader for review and decision before sending it to the inspected entity for comments. The draft inspection report is sent to the inspected entity in writing or simultaneously by text, fax and email;

dd) Based on the draft inspection report and explanations of the inspected entity, the inspection team is responsible for completing the inspection report.

3. Inspection findings:

a) Based on the inspection report, the inspection team drafts inspection findings to submit to the head of the inspection agency for review and approval. Inspection findings must include action plans to address violations of the bidding law.

b) Inspection findings are sent to the inspected entity and the superior agency of the inspected entity (if any) and relevant units (if necessary).

4. Monitoring of the implementation of suggestions in inspection findings:

a) The head of the inspected entity organizes and reports the implementation of suggestions in the inspection findings to the competent inspection agency within the time limit specified in the inspection findings.  The report includes the following: action plans for inadequacies and nonconformities mentioned in the inspection findings; actions to rectify bidding activities; actions plans for violations of organizations and individuals according to the recommendations of the inspection team (if any);

b) Monitoring of implementation suggestions of inspection findings is carried out through reports as prescribed in Point a of this Clause.  If organizations and individuals of the inspected entity and related organizations and individuals who are responsible for implementing the suggestions in the inspection findings fail to do or fail to fully and promptly do that, their violations will be, depending on their nature and extent, addressed as per the law.

Article 121. Written inspection process

1. Preparation for inspection:

The inspection agency or the inspection team established by the inspection agency requires the inspected entity to report on the implementation of its management responsibilities for bidding or the implementation of bidding activities, including the following:

a) Reporting purposes and requirements;

b) Scope and content of the report;

c) Outline of reporting requirements;

d) Deadline for submitting report of the inspected entity;

dd) Responsibilities of the inspected entity;

e) Other related matters.

2. Organization of inspection:

a) Based on the report of the inspected entity, the lead inspection agency collects, researches, analyzes and evaluates information, including the information specified in Clause 1, Article 124 of this Decree about the inspected entity; documents related to the report contents; verify information and documents when necessary; during the inspection, the lead inspection agency can discuss with the inspected entity (if necessary);

b) The lead inspection agency develops a draft inspection report that proposes solutions to problems discovered during the inspection process.

3. Inspection findings and monitoring of implementation of suggestions in inspection findings are carried out according to Clauses 3 and 4, Article 121 of this Decree.

Section 2. MONITORING OF BIDDING ACTIVITIES

Article 123. Supervision of bidding activities by competent persons

1. Authority to supervise bidding activities:

a) In projects where the Prime Minister is a competent person, the Prime Minister may designate a lead supervisory agency, based on the project's or package’s scale and nature.

b) The competent person will designate individuals or affiliated agencies with expertise in independent bidding with the employer, procuring entity, and expert team to supervise bidding activities for packages of the project and procurement estimates within their scope of management when necessary.

2. Procedures for supervision of bidding activities by competent persons:

a) Preparation for supervision: identify packages that need supervision in the specific contractor selection plan; notify employers about individuals and units performing supervision (hereinafter referred to as supervisors) and the supervision matters in bidding activities. The supervisors must be disclosed in the bidding documents or RFPs;

b) Organization of supervision: The supervisor directly communicates, prepares working minutes or requests relevant organizations and individuals to report in writing on the supervised matters. The employer, procuring entity and relevant organizations and individuals are responsible for providing records and documents at the request of the supervisor;

c) Reporting results of supervision: Upon detecting any behavior or matter that violates bidding regulations, the supervisor must promptly submit a written report to the relevant person; this report should recommend appropriate corrective actions to safeguard the effectiveness of the contractor selection process.

3. Responsibilities of supervisors of bidding activities:

a) Honesty and objectivity; do not cause trouble to the employer or the procuring entity during the supervision process;

b) Request the employer and procuring entity to provide relevant records and documents to facilitate the supervision process;

c) Receive feedback from bidders and organizations and individuals related to the contractor selection process for the package being supervised;

d) Ensure confidentiality of information as per the law;

dd) Take responsibility for the results of their supervision;

e) Carry out other responsibilities according to the law on bidding and other relevant laws.

Article 124. Regular supervision of bidding activities by bidding authorities under ministries, agencies and localities

1. Regular supervision of bidding actvities is imposed by bidding authorities under ministries, agencies, and localities whenever there are indications that competition, fairness, transparency, or economic efficiency may be compromised according to information compiled on VNEPS or according to recommendations and feedback from relevant organizations and individuals, including:

a) The employer does not respond to requests to clarify the bidding documents, does not respond to proposals about the bidding documents, or the contractor selection result of the bidder;

b) The employer violates regulations on time for posting specific contractor selection plans, contractor selection results and other information;

c) The employer has a low average number of bidders of competitive bidding, limited bidding, shopping method, and online quotation under ordinary procedures;

d) The employer has many packages and has recommendations on bidding documents and contractor selection results;

dd) Bidding documents are alleged to contain provisions that restrict competition;

e) Other related information.

2. Based on the results of synthesizing the matters and information specified in Clause 1 of this Article, bidding authorities under ministries, agencies, and localities promptly implement the following measures:

a) Rectify issues in bidding activities in localities and sectors under management;

b) Request the employer and competent person to consider taking actions against organizations and individuals that commit violations (if any).

Section 3. ADDRESSING OF VIOLATIONS

Article 125. Addressing of violations in bidding activities

1. The bidding disqualification periods for organizations and individuals committing violations, including individuals within the employer or procuring entity:

a) The bidding disqualification period is 3 to 5 years for one of the violations of Clauses 1, 2, 4 and Point a, Clause 3, Article 16 of the Bidding Law;

b) The bidding disqualification period is 1 year to 3 years for one of the violations of Points b and c, Clause 3; Clause 5; Points g, h, i, k, l Clause 6; Clause 8; Clause 9, Article 16 of the Bidding Law;

c) The bidding disqualification period is 6 months to 1 year for one of the violations of Points a, b, c, d, dd, e, Clause 6 and Clause 7, Article 16 of the Bidding Law;

For joint venture bidders, the bidding disqualification applies to all joint venture parties if any joint venture parties violate Article 16 of the Bidding Law, except for the following case: If a joint venture party violates Point c, Clause 3, Clause 4, Points b, c, d, dd Clause 5, Points a, b, c, d, dd, e, g Clause 6, Clause 7, a, Point b, Clause 8, Article 16 of the Bidding Law, only that party is disqualified from bidding, not remaining parties of the joint venture.

2. If an organization or individual commits 2 or more violations under the same management scope of the competent person and has not previously faced disqualification from bidding, the competent person shall issue a decision on total bidding disqualification period, which equals the sum of individual violation periods but not exceeding 5 years.

3. The statute of limitations for applying the bidding disqualification period specified in Clause 1 of this Article is 10 years from the date of the violation.

4. The competent person shall consider issuing a decision on bidding disqualification within the scope of their management within 15 days from the date of receipt of one of the following documents:

a) Written request from the employer accompanied by documents proving the violation;

b) Petitions on the inspection findings of the inspection agency, the inspection findings of the inspection team, and the audit result report of the state audit agency;

c) Results of resolving petitions of the Advisory Council;

d) Other documents of competent regulatory agencies that identify violations.

5. Depending on the nature and severity of the violation, the competent person as prescribed in Clause 4 of this Article shall issue a decision on bidding disqualification or request the head of the central agency or the President of the Provincial People's Committee to consider issuing a decision on bidding disqualification within the management scope of ministry, branch or locality. The head of the central agency or the President of the Provincial People's Committee shall consider issuing a decision on bidding disqualification within 15 days from the date of receipt of the written request for bidding disqualification from the competent person.

6. Pursuant to the decision on bidding disqualification posted on VNEPS, the Minister of Planning and Investment shall issue a decision on bidding disqualification nationwide in 5-year period against the organizations and individuals previously faced three separate disqualification decisions from heads of central agency or Presidents of the Provincial People's Committees.

7. A decision on bidding disqualification shall contain:

a) Name of competent person;

b) Name of the violating organization or individual;

c) The disqualification period, including:  the disqualification period for the violation (content of the violation, legal basis for addressing the violation); disqualification period for subsequent violations (if any); total disqualification period;

d) Disqualification scope;

dd) Entry into force: Effective date and expiration date.

8. Organizations and individuals disqualified from bidding can file a lawsuit in court if they disagree with the disqualification decision, following civil procedure law.

9. Expert team or appraisal team members who break Article 16 of the Bidding Law will face the consequences outlined in Clause 1 of this Article, including the revocation of their bidding professional certificates.