Chương XI Nghị định 24/2024/NĐ-CP: Các vấn đề khác

Chapter XI

OTHER MATTERS

Article 131. Handling situations in online and offline bidding

1. Any modifications to the package price or package content must necessitate a corresponding adjustment to the specific contractor selection plan, adhering to legal requirements before the bid submission deadline, except for the cases specified in Clause 2 and Clause 8 of this Article.

2. If, after approving the specific contractor selection plan, a package receives an approved estimate that differs from the package price outlined in the plan (either higher or lower), the estimate will supersede the package price in the plan, following these principles:

a) If the approved estimate is higher than the package price outlined in the plan but the higher estimate does not exceed the total investment of the project or procurement estimate, the specific contractor selection plan does not have to be adjusted. If the higher estimate exceeds the total investment of the project or procurement estimate, the specific contractor selection plan has to be adjusted; if the form of contractor selection in the approved specific contractor selection plan is no longer appropriate, the form of contractor selection must be adjusted;

b) If the approved estimate is lower than the package price outlined in the plan without changing the form of contractor selection in the approved plan, the specific contractor selection plan does not have to be adjusted. If it is necessary to adjust the form of contractor selection to suit the new value of the package according to the approved estimate, the specific contractor selection plan must be adjusted.

The approved estimate after the specific contractor selection plan is approved according to this Clause must be posted on VNEPS at least 5 days before the bid submission deadline.

3. When determining the shortlist, if fewer than 3 bidders that meet the requirements, the employer will choose one of two approaches based on the specific conditions of the package:

a) Select additional bidders to the shortlist;

b) Allow immediate issuance of bidding documents to short-listed bidders.

4. If no bidder participates in bidding by the bid submission deadline, the employer will take one of the following actions:

a) Cancel the EOI request, prequalification document, and invitation to bid to re-invite bids. In this case, before re-inviting bids, it is necessary to review and amend the EOI request, prequalification documents, or bidding documents (if needed) to ensure that there are no conditions in the documents that limit the participation of bidders or give an advantage for any bidders, causing unfair competition;

b) Extend the bid submission deadline for at least 5 days for packages that are currently seeking EOIs or prequalification applications, construction packages, mixed packages with a package price not exceeding 20 billion VND, packages for procurement of goods and non-consulting services with a package price not exceeding 10 billion VND; extend the bid submission deadline for at least 10 days for other packages.

5. At the bid submission deadline, for a package applying the form of competitive bidding, limited bidding, shopping method, online quotation under ordinary procedures, if only 1 or 2 bidders submit EOI responses, prequalification applications, or bids, the employer shall choose one of two approaches within 4 hours from the bid submission deadline:

a) Allow extending the bid submission deadline to increase the number of bidders submitting EOI responses, prequalification applications, and bids. In this case, the new deadline for bid submission and corresponding deadlines must be clearly specified so that the bidder has enough time to amend their EOI responses, prequalification applications, or bids;

b) Allow bid opening immediately to conduct evaluation.

6. For situations as prescribed in Clause 4 of this Article and bid cancellation as prescribed in Clause 1, Article 17 of the Bidding Law, the originally planned start date for contractor selection in the specific contractor selection plan does not need to be changed.

7. If the first ranked bidder’s bid price (after error correction, deviation adjustment, and any discounts) exceeds the package price and at least 1 bidder in the ranked list’s bid price (after error correction, deviation adjustment, and any discounts) does not exceed the package price, the first-ranked bidder can be invited to negotiate the price provided that the final negotiated price cannot exceed the approved package price. If negotiation is unsuccessful, the next ranked bidder is invited to negotiate.

8. If the bid prices (after error correction, deviation adjustment, and any discounts) of all technically-responsive bidders on the ranking list exceed the package price, the employer can choose one or more of the following options:

a) Allow these bidders to re-offer their bid prices if the package price includes all elements constituting the cost of package performance;

b) Allow bidders to re-offer their bid prices and also review the package price and content of approved bidding documents , if necessary.

If bidders are allowed to re-offer their bid prices, it is necessary to clearly stipulate the time to prepare and re-bid proposal, but not more than 10 days from the date on which the procuring entity sends a written request for re-offering bid prices and clearly stipulate the opening of re-bid proposal according to the bid opening process specified in Article 26 of this Decree or re-offering bid prices on VNEPS for online bidding.

If it is necessary to adjust the package price in the approved specific contractor selection plan, the competent person is responsible for approving the adjustment within 10 days from the date of receiving the request for adjustment provided that the adjustment is done before the deadline for submitting re-bid proposal;

c) Invite these bidders to participate in online quotation under shortened procedures. If it is necessary to adjust the package price in the approved specific contractor selection plan, the competent person is responsible for approving the adjustment before the start of online quotation;

d) The first-ranked bidder can be invited to negotiate the price, but the final negotiated price does not exceed the lowest bid price (after error correction, deviation adjustment, and any discounts). If it is necessary to adjust the package price in the approved specific contractor selection plan, the competent person is responsible for approving the adjustment within 10 days from the date of receiving the request for adjustment. If negotiation is unsuccessful, the next ranked bidder is invited to negotiate. This method only applies to cases where the package uses competitive bidding and the employer must be responsible for the competitiveness, fairness, transparency and economic efficiency of the project, procurement estimate, package.

If only one bidder passes the technical evaluation step, the employer can choose to: follow option a or b as outlined in this Clause, or invite the bidder to negotiate a lower price, but the final price cannot be higher than the package price.

9. For goods procurement packages (as prescribed in Clause 2, Article 92 of this Decree), if the first-ranked bidder’s bid unit price for any items exceeds the standards issued by competent authorities but the proposed winning bid price does not exceed the approved package price, the employer can consider these options:

a) Invite the first-ranked bidders to enter into negotiations for items whose bidding unit prices exceed procurement standards issued by competent authorities;

b) Allow all bidders who pass the technical evaluation step to re-offer their bid prices.

10. For divided packages:

a) If there is a part or parts of a package that does not have a bidder participating in the bidding or does not have a bidder that meets the requirements, the employer must report to the competent person to allow dividing that part into a separate packages to organize contractor selection according to regulations;

b) If a bidder wins all parts of the package, there will be only one contract for the entire package. If multiple bidders win different parts of the package, the package will have multiple contracts corresponding to the specific part(s) which each bidder wins;

c) If the bid price (after error correction, deviation adjustment, and any discounts) of every technically-responsive bidders for a part of package exceeds the estimated value of that part in the package price, causing the total proposed winning price to be over the package price; or if the bid price (after error correction, deviation adjustment, and any discounts) of the first-ranked bidder in any parts of package is higher than the estimated value of these parts in the package price, causing the total proposed winning price to be over the package price, the employer can follow the options outlined in Clauses 7 and 8 of this Article to handle the situations.

11. If a bid price (after error correction, deviation adjustment, and any discounts) of a bid seems unusually low and could negatively impact the package quality, or the bid price (after error correction, deviation adjustment, and any discounts) of a construction package falls below 70% of the package price, the employer will take the following steps:

a) Request the bidder to explain and clarify the feasibility of their unusually low bid price and the costs that constitute the package price. The bidder must demonstrate the compatibility between the bid price and the scope of work, solutions proposed by the bidder, performance schedule, and other requirements of the bidding documents. If the bidder's explanation is not clear enough or convincing, the employer will not accept that bid price, and any unusually low prices offered for specific items that contribute to the overall low bid price can be considered as insufficient deviations. In such cases, the employer can adjust deviations for these items following Clause 2, Article 29 of this Decree. The adjustment of insufficient deviations is only for bid comparison and ranking purpose. If the bidder remains the first rank after the deviation adjustment, the proposed winning price does not include the deviation adjustment amount specified in this point;

b) In order to prevent risks, the employer may require a performance security deposit which is greater than 10% but not more than 30% of the contract price and must be approved in writing by a competent person.

12. For construction and mixed packages applying international bidding, the employer can ask the first-ranked bidder to clarify the breakdown of the costs constituting their bid price in writing, if their bid price seems unbalanced, like: much higher prices for simple and easy work items or work items likely to be required beyond what is already listed in the bid price schedule compared to the package’s estimate, or much lower prices for complex and difficult tasks compared to the estimate. The bidder must demonstrate the compatibility between the bid price and the scope of work, solutions proposed by the bidder, performance schedule, and other requirements of the bidding documents. If the bidder's explanation is not clear enough or convincing, the bid will be rejected. In order to prevent risks, the employer may require a performance security deposit which is greater than 10% but not more than 30% of the contract price and must be approved in writing by a competent person.

13. If the bidding documents allow the bidder to propose construction methods different from those stated in the bidding documents, any difference in workload between the proposed method and the one in the documents will not be considered a deviation and then adjusted (as defined in Clause 2, Article 29 of this Decree). This difference is not considered as insufficient deviation.

14. If a company participating in a bidding process merges with another company, the new combined company can still take part in the bidding and benefit from the experience and qualifications of the original company.

15. If an entity (branch, enterprise, or representative office) undergoes a separation from a juridical entity according to civil law, the new entity formed from the separation (bidder) may inherit the bidding experience and qualifications of the original entity.

16. For packages that apply contract negotiation (as prescribed in Clause 1, Article 43 of the Bidding Law), if the first-ranked bidder does not negotiate, refuses to sign the negotiation minutes, or the negotiation is unsuccessful, the employer can consider inviting the next ranked bidder (if any) to negotiate. The content of negotiation is based on the bid and the bid price (after error correction, deviation adjustment, and any discounts) of the bidder invited to negotiate.  If the negotiation is unsuccessful, the procuring entity reports to the employer to consider inviting the next bidders (if any) to negotiate the contract; the content of negotiation is based on the bid and the bid price (after error correction, deviation adjustment, and any discounts) of the bidder invited to negotiate the contract. Where bidders are invited to negotiate a contract but refuse to negotiate, refuse to sign the negotiation minutes, or negotiate unsuccessfully, the employer shall consider cancelling the bid according to Clause 1, Article 17 of the Bidding Law.

If the next ranked bidder is invited to negotiate a contract according to this point within the validity period of the bid but does not come to negotiate or negotiates but refuses to sign the negotiation minutes, their bid security will be forfeited. If the bid of the next ranked bidder expires, the procuring entity must request the bidder to extend the validity period of the bid and bid security before negotiating the contract.

17. If the proposed winning price is lower than 50% of the approved package price, the employer requests the bidder to clarify the elements constituting the bid cost and consider relevant evidence as follows:

a) Economic factors related to construction methods, production processes, or service provision;

b) Economic solutions applied or special advantages of the bidder leading to price advantages;

c) Origin of goods, services, and personnel provided for the package, which must ensure compliance with legal regulations.

If the conditions specified in Points a, b and c of this Clause are met, the bidder's bid or proposal will still be accepted as the winning bid. In order to prevent risks, the employer may require a performance security deposit which is greater than 10% but not more than 30% of the contract price and must be approved in writing by a competent person. If a bidder receives subsidies from any organization or individual leading to unfair competition, their bid or proposal will be disqualified.

18. After evaluation, if multiple bidders are ranked best and equal, the following criteria will be used in order to choose the successful bidder:

a) Award contracts to small- and medium-sized enterprises owned by women as per the law on supporting small- and medium-sized enterprises (if any);

b) Award the contract to the bidder with a higher technical score or fewer technically acceptable criteria (if the package applies the least-cost selection); award the contract to the bidder with lower bid price (after error correction, deviation adjustment, and any discounts) (if the package applies the evaluated price selection or the quality- and cost-based selection);

c) Award the contract to a bidder whose head office is located in the locality where the contract package is performed;

d) Award the contract to a bidder that meets both of these criteria: employs at least 25% of war invalids or people with disabilities and they have a labor contract for at least 3 months, still valid at the bid submission deadline;

dd) Award the contract to a bidder that meets both of these criteria: employs at least 25% of ethnic minority workers and they have a labor contract for at least 3 months, still valid at the bid submission deadline;

e) Award the contract to a bidder that meets both of these criteria: employs at least 25% of female workers and they have a labor contract for at least 3 months, still valid at the bid submission deadline;

g) Allow these bidders to re-offer bid prices to select the bidder with the lowest bid price. Bidders cannot offer a price higher than their previously offered price (after any corrections, adjustments, or discounts).  The re-offering of bid prices shall comply with Point a, Clause 8 of this Article;

h) Invite these bidders to participate in online quotation under shortened procedures. Bidders cannot offer a price higher than their previously offered price (after any corrections, adjustments, or discounts).

19. If the successful bidder fails to finalize and sign the contract or the successful bidder no longer meets the technical and financial requirements specified in Clause 2 of Article 66 of the Bidding Law at the time of contract signing, the employer can take the following steps:

a) Invite the second-ranked bidder (if any) to finalize the contract, and also request this bidder to extend or renew the validity of their bid and bid security (in case of expiration) for at least 30 days from the expected start date of contract finalization.

If the second ranked bidder fails to finalize the contract, or extend or renew the validity of their bid and bid security as required, the employer shall consider following one of the two options specified in Point b or Point c of this Clause.

The contract finalization shall comply with Article 32 of this Decree.

The content of contract finalization must be based on the bid and bid price (after error correction, deviation adjustment, and any discounts) of the second ranked bidder. 

After finalizing the contract with the second ranked bidder, the employer cancels the previous decision on approval for contractor selection result and issues the winning decision to the second ranked bidder before signing the contract with that bidder.

If the second-ranked bidder fails to accept the contract finalization results and fails to sign a contract with the employer, their bid security will be forfeited, except for force majeure events or other cases that the employer fails to comply with the principle of finalizing the contract.  In this case, the employer shall consider following one of two options specified in Point b or Point c of this Clause;

b) Invite the third ranked bidder (if any) to finalize the draft contract. If the third ranked bidder fails to finalize the contract, or fails to extend or renew the validity of the bid and bid security as required, the employer shall consider inviting the next ranked bidders (if any) to finalize the contract or cancel the bid according to Clause 1, Article 17 of the Bidding Law.

The bidder invited to finalize the contract must extend or renew the validity of their bid, bid security (in case of expiration) for at least 30 days from the expected start date of contract finalization.

The contract finalization shall comply with Article 32 of this Decree. The content of contract finalization must be based on the bid and bid price (after error correction, deviation adjustment, and any discounts) of the bidder invited to finalize the contract. After finalizing the contract with the bidder, the employer cancels the previous decision on approval for contractor selection result and issues the winning decision to the bidder invited to finalize the contract before signing the contract with that bidder.

If the bidder invited to finalize the contract fails to accept the contract finalization results and fails to sign a contract with the employer, the bid security will be forfeited and the employer will consider cancelling the bid according to Clause 1, Article 17 of the Bidding Law;

c) Cancel the bid in accordance with Clause 1, Article 17 of the Bidding Law.

20. During the contract performance process, if the competent person rejects the contractor selection result when there is evidence that the successful bidder has violated Article 16 of the Bidding Law, or has violated relevant laws leading to failure to ensure competition, fairness, transparency and economic efficiency, or has falsified the contractor selection result, the employer will take the following actions:

a) Forfeit the performance security deposit and advance payments (if any);

b) Pay the bidder for the work portions that the bidder has performed and have been accepted according to the contract;

c) Terminate the contract with the bidder; for a joint venture bidder where only one joint venture party violates and is banned from participating in bidding activities as prescribed in Clause 1, Article 125 of this Decree, the remaining joint venture parties will not be considered incomplete contract due to the bidder's fault;

d) Post information about violating bidders on VNEPS within 5 working days from the date of issuance of the decision on contract termination with the violating bidder, and also send the decision on contract termination and other documents dealing with violations (if any) to the Ministry of Planning and Investment for consolidation and monitoring;

dd) After terminating the contract with the previous successful bidder, the unfinished work will be assigned to the second-ranked bidder in the ranking list, if the second-ranked bidder fails to accept to sign the contract, the employer appoints another bidder or separates the unfinished work into a new package and organizes contractor selection as per the law. If necessary, the package price can be reviewed and re-approved for the unfinished work to organize bidding. If a direct contracting is applied, the value of the unfinished work is calculated as the value stated in the contract minus the value of the previously performed work.

21. During the contract performance process, if the competent person rejects the contractor selection result when there is evidence that the employer, the procuring entity, the expert team, or the appraisal team has violated Article 16 of the Bidding Law, or has violated relevant laws leading to failure to ensure competition, fairness, transparency and economic efficiency, or has falsified the contractor selection result not due to the successful bidder's fault, the competent person will take the following actions:

a) Request the employer to forfeit advance payments (if any) and terminate the contract with the bidder.  The bidder is refunded the performance security deposit and reimbursed the costs related to contract termination due to the employer's fault according to the agreements stated in the contract. The employer is responsible for compensating damages to the bidder according to the contract;

b) The unfinished work will be separated into a new package to organize the selection of contractors according to regulations.  If necessary, the package price can be reviewed and re-approved;

c) If more than 70% of the package work is already finished, and the actions mentioned in points a and b do not make good financial sense, the competent person will decide whether to continue maintaining the contract with the successful bidder.

22. If any joint venture party breaches the contract, no longer has the capacity to continue performing the contract, seriously affects the progress, quality, and efficiency of the package, the employer will take the following actions:

a) Impose contract penalties on all joint venture parties according to the contract;

b) Forfeit the contract performance security deposit of all joint venture parties;

c) Terminate the contract with the violating joint venture parties; in this case, only the violating parties will be considered to have failed to complete the contract and their information will be posted on VNEPS; the remaining parties can continue to perform the contract corresponding to their work undertaken in the joint venture. Within 5 working days from the date of issuance of the decision on contract termination with one or several joint venture parties, the employer must post information about violating joint venture parties on VNEPS; the notice must clearly state the violation leading to the termination of the contract and send the decision to the Ministry of Planning and Investment for consolidation and monitoring;

d) The violating party’s work is assigned to the remaining parties to perform if these parties are competent and experienced to take over. In this case, the remaining parties must furnish a new performance security deposit corresponding to the value of the unfinished work of the package;

dd) If the remaining parties refuse to perform or do not have enough capacity or experience to perform, the employer shall report to the competent person to allow the violating member's work to be separated into a separate package for direct contracting according to Point dd, Clause 20 of this Article or organize contractor selection according to regulations.

23. If the bidder breaches the contract, no longer has the capacity to continue performing the contract, or seriously affects the progress, quality and effectiveness of the package, the employer shall consider requesting the competent person to terminate the contract with that bidder; bidders who breach the contract are considered to have failed to complete the contract.

If a direct contracting is applied to the unfinished work, the value of the unfinished work is calculated as the value stated in the contract minus the value of the previously performed and accepted work.

The employer must ensure that the appointed bidder has the capacity and experience to meet the requirements for performing the remaining work of the package.  If the direct contracting is not applied, a new package will be formed to organize contractor selection. If necessary, review the package price for the remaining work before organizing contractor selection as per the law. If the contract performance is behind schedule due to no fault of the bidder, it is not allowed to terminate the contract to replace another bidder. If the contract with a violating bidder must be terminated to replace a new bidder, post information about the violating bidder and the substitute bidder on VNEPS within 5 working days from the date of issuance of the decision on contract termination with the violating bidder, and also send the decision on contract termination and other documents dealing with violations (if any) to the Ministry of Planning and Investment for consolidation and monitoring; The notice must clearly state the reason for the bidder's breach of contract leading to the termination of the contract, the method of selecting a substitute bidder, and the name of the designated bidder if the form of direct contracting is applied.

24. If a joint venture needs to finish a contract faster than originally planned (which requires revision to the contract), the employer must report to the competent person for the employer and bidder to agree on a new schedule and adjust the workload among the joint venture members accordingly with the shortened schedule. In this case, the competent person and the employer must ensure that the party undertaking the extra work has enough capacity and experience to do that and transferring work among the parties is not for bid transfer purpose.

25. If, during the contract performance, a court convicts the bidder's employees (who had a valid employment contract with the bidder at the time of the offense) of a bidding-related offense that significantly impacted the bidder's ability to win the contract, the employer can terminate the contract and forfeit the bidder's performance security deposit; the bidder is only paid for the work performed and accepted according to the contract. The bidder is considered to have failed to complete the contract and is posted on VNEPS; the notice must clearly state the violation leading to termination of the contract; for the unfinished work, the employer shall apply direct contracting according to Point dd, Clause 20 of this Article or split into a new package and organize contractor selection as per the law.

26. If an investigation body alleges the bidder’s employees (who had a valid employment contract with the bidder at the time of offense) of a bidding-related offense that significantly impacted the bidder’s ability to win the contract, but they have not been convicted by the Court or the bidder has not been banned from bidding by a competent person, that bidder can still continue to participate in the bidding.

27. During the contract performance, if the bidder requests to switch to a newer version or production year for certain goods than those specified in the contract because of practical needs, the employer can agree to this request, but only if all of these conditions are met:

a) The bidder sends a written notice to the employer;

b) The substitute goods and the goods originally stated in the contract come from the same manufacturer and have the same origin;

c) The substitute goods have technical features, configuration, parameters and other technical requirements that are equivalent or better than the goods originally stated in the contract;

d) Suitable for practical needs;

dd) The unit price of the substitute goods do not exceed the unit price of the goods originally stated in the contract.

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

29. Beyond the situations outlined in Clauses 1 through 28 of this Article, the employer will consider taking actions that upholds the bidding objectives of competitiveness, fairness, transparency, economic efficiency, and accountability.

Article 132. Bidder management

1. Responsibilities of the bidder:

a) Register on VNEPS as prescribed in Point d, Clause 1, Article 5 of the Bidding Law before the contractor selection results are approved;

b) Regularly update and take responsibility for the accuracy and truthfulness of information about their capacity and experience on VNEPS;

c) In addition to the responsibilities specified in Points a and b of this Clause, foreign bidders must also perform the following responsibilities:

foreign bidders must comply with Vietnamese law on entry and exit; import and export of goods; registration for temporary residence or temporary absence; accounting, taxes and other relevant Vietnamese regulations, unless international treaties to which the Socialist Republic of Vietnam is a member or loan agreements provide otherwise.

Within 15 days from the effective date of the contract signed with the foreign bidder, the employer shall post the list of successful foreign bidders on VNEPS and sending a notice of information about the successful bidders to the Ministry of Planning and Investment, specialized Ministry, and the Department of Planning and Investment in the province where the project is executed for consolidation and monitoring;

d) Foreign bidders selected according to the Bidding Law are not required to apply for a bidding license.

2. Subcontractor management:

a) The bidder may sign contracts with subcontractors in the list of subcontractors stated in the bids, proposals or sign with subcontractors approved by the employer to participate in performing the construction work; consulting services; non-consulting services; related services of goods procurement packages or mixed packages. Employing a subcontractor will not change the bidder's obligations.  The bidder must be responsible for the volume, quality, progress and other responsibilities for the work performed by the subcontractor;

b) Any substitutions or additions of subcontractors (as detailed in point a) or modifications to their assigned tasks (as outlined in the bid or proposal) require prior written approval from the employer or supervisor and the total cost of subcontracted work cannot exceed the maximum amount stipulated in the contract; the employment of subcontractors must be consistent with the bidder's needs in implementing the contract; the subcontractor must meet the capacity and experience requirements of the bidder;

c) The bidder shall employ subcontractors with the capacity and experience to meet the requirements to perform the assigned work.  If a special subcontractor is employed to perform important work of the package according to the requirements of the bidding documents, their capacity and experience shall be evaluated according to the regulations stated in the bidding documents.  When employing special subcontractors, the bidder is not required to meet capacity and experience requirements for the work assigned to these special subcontractors;

d) The bidder shall pay the subcontractors in full and on schedule according to the agreement between the bidder and the subcontractors.