Chương I Nghị định 30/2015/NĐ-CP: Những quy định chung

Chapter I

GENERAL PROVISIONS

Article 1. Scope and regulated entities

1. Scope

This Decree provides guidelines for some articles on investor selection of the Law on Bidding according to Clause 3 Article 1 of the Law on Bidding, including:

a) Projects of investment in the form of Public – Private Partnership (PPP projects) as prescribed by the Government on PPP projects;

b) Projects of investment using land with high commercial value that require investor selection on the list of approved projects prescribed in Point b Clause 1 Article 10 of Decree to develop constructions in urban areas, new urban areas; commercial housing, commercial and service works; multi-purpose complexes that are not the cases mentioned in Point a of this Clause.

2. Regulated entities

a) Any organization or individual (hereinafter referred to as entity) involved in selection of investors in projects of investment prescribed Clause 1 of this Article;

b) Any entity involved in investor selection that is not regulated by this Decree but still applies this Decree. In this case, such entity must comply with relevant regulations of the Law on Bidding and this Decree to ensure fairness, transparency, and economic efficiency.

Article 2. Assurance of competition in bidding

1. An investor participating in bidding (hereinafter referred to as bidder) is considered legally and financially independent from the consultancy contractor that makes and evaluates the feasibility study report (for PPP projects of group C, the bidder must be independent from the contractor that makes and evaluate the project proposal), from the consultancy contractor that makes, evaluates the pre-qualification documents bidding documents, evaluates, pre-qualification applications, bid-envelopes, appraises results of investor selection, from competent authorities, and from the soliciting entity prescribed in Clause 4 Article 6 of the Law on Bidding when the following conditions are satisfied:

a) The bidder does not belong to the same organization (for administrative services);

b) The bidder, the competent authority, and the soliciting entity do not have more than 30% of each other’s shares or stake;

c) The bidder and the contractor that makes and evaluates the feasibility study report (for PPP projects of group C, the bidder must be independent from the contractor that makes and evaluate the project proposal), the contractor that makes, evaluates the pre-qualification documents, bidding documents, evaluates pre-qualification applications, bid-envelopes, appraises results of investor selection do not have shares of stake of each other; do not have 20% of shares or stake of the same organization or individual.

2. The investor is permitted to bid for the project that they make the feasibility study report (or the project proposal for PPP projects of Group C) and must be legally and financially independent from other parties as prescribed in Clause 1 of this Article, except for the consultancy contractor that makes the feasibility study report (or project proposal for PPP projects of Group C).

Article 3. Incentives in selection of investors in PPP projects

If the investor has a feasibility study report or project proposal (for projects of group c) that is approved, such investor shall have incentives during the financial – commercial evaluation, particularly:

1. If the service-price-based method is applied, the investor that is not eligible for incentives must add an amount of 5% of the service price to the initial service price of such investor for comparison and ranking.

2. If the state contribution method is applied, the investor that is not eligible for incentives must add an amount of 5% of the proposed state contribution to the initial state contribution proposed by the investor for comparison and ranking.

3. If the public-interest-based method is applied, the investor that is eligible for incentives may add an amount of 5% of the amount payable to state budget to the initial amount payable to state budget proposed by the investor for comparison and ranking.

4. If mixed method is applied, the investor shall have incentives according to the proportions of the mixed method. Nevertheless, the total value of incentives must not exceed 5%.

Article 4. Provision and publishing of information about bidding

1. Responsibility to provide information:

a) Ministries, ministerial agencies, Governmental agencies, other central agencies, the People’s Committees of provinces, and competent persons are responsible for providing information prescribed in Point g Clause 1 Article 8 of the Law on Bidding on the national bidding network or Vietnam Public Procurement Review Journal;

b) Ministries, ministerial agencies, Governmental agencies, other central agencies, the People’s Committees of provinces shall, within the area of their competence, provide the information prescribed in Point h Clause 1 Article 8 of the Law on Bidding on the national bidding network;

c) Provincial Departments of Planning and Investment and regulatory bodies in charge of PPP investment are responsible for providing information about PPP projects, list of projects using land, and relevant information prescribed in Point i and Point l Clause 1 Article 8 of the Law on Bidding on the national bidding network.

d) The soliciting entity is responsible for providing the information prescribed in Point a Clause 1 Article 8 of the Law on Bidding on the national bidding network;

dd) The soliciting entity is responsible for providing the information prescribed Points b, d, d, dd Clause 1 Article 8 of the Law on Bidding and information about changes of bid closing time (if any) on the national bidding network or Vietnam Public Procurement Review Journal;

e) Investors are responsible for providing and updating information about their capacity and experience on the investor database of national bidding network as prescribed in Point d Clause 1 Article 5 and Point k Clause 1 Article 8 of the Law on Bidding;

g) Training institutions, bidding lecturers, experts having bidding practice certificates are responsible for providing information about their training, teaching, and bidding practice for the Ministry of Planning and Investment for posting on the national bidding network as prescribed in Point k Clause 1 Article 8 of the Law on Bidding.

2. Responsibility to publish information:

a) The Ministry of Planning and Investment is responsible for publishing information about bidding;

b) Valid information shall be posted on national bidding network and Vietnam Public Procurement Review Journal. If a piece of information is found invalid, the Ministry of Planning and Investment shall post a notice on national bidding network and Vietnam Public Procurement Review Journal for the information provider to adjust it.

3. Apart from the responsibility to provide information prescribed in Point dd Clause 1 of this Article, the soliciting entity must publish the pre-qualification documents on the website of an international journal (in English) that is published in Vietnam.

Article 5. Time limit and procedures for provision and publishing of bidding information

1. Publishing of information on national bidding network:

a) The entities responsible for providing information mentioned in Clause 1 Article 4 of this Article shall register for participation in national bidding network and publish information on the national bidding network themselves as instructed by the Ministry of Planning and Investment;

b) With regard to information prescribed in Point b and Point c Clause 1 Article 8 of the Law on Bidding, the soliciting entity shall publish the pre-qualification documents and bidding documents within the time limit written in the notice, which does not exceed 03 working days from the first day on which such information are posted on the national bidding network;

c) With regard to the information prescribed in Points a, d, dd, g, h, I Clause 1 Article 8 of the Law on Bidding, the entities responsible for publishing information must ensure that information is published within 07 working days from the day on which the document is issued.

2. Provision of information for Vietnam Public Procurement Review Journal:

a) With regard to the information prescribed in Point b and Point c Clause 1 Article 8 of the Law on Bidding, Vietnam Public Procurement Review Journal must receive the information at least 05 working days before the intended issuance date of the pre-qualification documents or bidding documents. Such information shall be published on one issue of Vietnam Public Procurement Review Journal;

b) With regard to the information prescribed in Points d, dd, g Clause 1 Article 8 of the Law on Bidding, the entities responsible for publishing information must ensure that information is published within 07 working days from the day on which the document is issued. Such information shall be published on one issue of Vietnam Public Procurement Review Journal.

3. Within 02 working days from the day on which the information is published on the national bidding network by the provider as prescribed in Points b, c, d, dd, g Clause 1 Article 8 of the Law on Bidding, it must be published on one issue of Vietnam Public Procurement Review Journal.

4. Within 02 working days from the day on which the information is published on the national bidding network by the provider as prescribed in Points b, c, d, dd, g Clause 1 Article 8 of the Law on Bidding, it must be published on one issue of Vietnam Public Procurement Review Journal. With regard to the information prescribed in Point b and Point c Clause 1 Article 8 of the Law on Bidding, the soliciting entity shall publish the pre-qualification documents and bidding documents within the time limit written in the notice, which does not exceed 03 working days from the first day on which such information are posted on the national bidding network or Vietnam Public Procurement Review Journal.

5. Within 02 working days from the date of information publishing prescribed in Point b Clause 1 or Point a Clause 2 of this Article, the soliciting entity shall post the notice of international pre-qualification in accordance with Clause 3 Article 4 of this Decree.

Article 6. Time limits for selection of investors

1. Information about the PPP project, the list of projects of investment using land must be published within 07 working days from the day on which the PPP project proposal or the list of projects of investment using land is approved.

2. The time limit for approving the investor selection plan is 10 days from the day on which the evaluation report is received

3. The pre-qualification documents, bidding documents, and request for proposals must be published within 03 working days from the first day on which the notice of pre-qualification or notice of bidding is posted on the national bidding network or Vietnam Public Procurement Review Journal; invitations for bids must be sent before the bid closing time.

4. The time for preparing the pre-qualification application is at least 30 days from the first day on which the pre-qualification documents is published to the bid closing date. Investors must submit pre-qualification applications before the bid closing time.

5. The time for preparing proposals is at least 30 days from the first day on which the request for proposals is published to the bid closing date. Investors must submit proposals before the bid closing time.

6. The time for preparing bid-envelopes is at least 60 days for domestic bidding and 90 days for international bidding from the first day on which the bidding documents is published to the bid closing date. Investors must submit bid-envelopes before the bid closing time.

7. The time limit for evaluating pre-qualification applications is 30 days from the bid closing date to the day on which the soliciting entity submits the pre-qualification result to a competent person for approval.

8. With regard to domestic bidding, the time limit for evaluating proposals is 45 days, bid-envelopes 90 days; With regard to international bidding, the time limit for evaluating proposals is 60 days, bid-envelopes 120 days from the bid closing date to the day on which the soliciting entity submits the investor selection result to a competent person for approval. If necessary, the time limit for evaluating bid-envelopes or proposals may be extended as long as the project progress is ensured.

9. The time limit shall be 30 days from the receipt of sufficient documents for evaluation of: Plan for investor selection, pre-qualification documents, bidding documents, request for proposals, pre-qualification result, list of investors satisfying technical requirements, and result of investor selection.

10. Time limit for approval for the pre-qualification documents, bidding documents, request for proposals, pre-qualification results, and investor selection result is 20 days from the day on which the evaluation result is received by the competent person.

11. The effective period of the bidding documents and proposals is 320 days from the bid closing date. If necessary, the expiration dates of the bid-envelopes or proposals may be extended as long as the project progress is ensured.

12. The adjustment to pre-qualification documents must be sent to the investors that received the pre-qualification documents must be sent (directly, by post, fax, or email) at least 10 days before the bid closing date; the adjustment to bidding documents must be sent to investors that received the bidding documents at least 15 days (for domestic bidding) or 25 days (for international bidding) before the bid closing date; the adjustment to the request for proposals must be sent at least 10 days before the bid closing date. If the documents cannot not be sent by the deadlines prescribed in this Article, the soliciting entity shall delay the bid closing deadline to ensure the adjustment to the pre-qualification documents, bidding documents, or request for proposals is sent by the deadline.

13. The soliciting entity shall send written notifications of the investor selection result to investors by post or fax within 05 working days from the day on which the investor selection result is approved.

14. The contract shall be negotiated and completed within 120 days from the day on which the investor selection result is approved.

Article 7. Costs of investor selection

1. In consideration of the scale and characteristics of the project, the soliciting entity shall decide the selling price for a set of pre-qualification documents, bidding documents, or request for proposals (inclusive of tax). With regard to domestic bidding, the selling price for a bidding documents or request for proposals shall not exceed VND 20,000,000; the price for a set of pre-qualification documents shall not exceed VND 5,000,000. With regard to international bidding, the selling price for a bidding documents or request for proposals shall not exceed VND 30,000,000; the price for a set of pre-qualification documents shall not exceed VND 10,000,000.

2. Costs of making and appraisal of pre-qualification documents; evaluation of pre-qualification applications; appraisal of pre-qualification result:

a) The cost of making the pre-qualification documents is 0.02% of the total investment. Nevertheless, the cost shall not fall below VND 10,000,000 and not exceed VND 100,000,000;

b) The cost of appraising the pre-qualification documents is 0.01% of the total investment. Nevertheless, the cost shall not fall below VND 10,000,000 and not exceed VND 50,000,000;

c) The cost of evaluating pre-qualification applications is 0.02% of the total investment. Nevertheless, the cost shall not fall below VND 10,000,000 and not exceed VND 100,000,000;

d) The cost of appraising the pre-qualification result is 0.01% of the total investment. Nevertheless, the cost shall not fall below VND 10,000,000 and not exceed VND 50,000,000;

3. Costs of making, appraisal of bidding documents and request for proposals; evaluation of bid-envelopes and proposals; appraisal of investor selection result:

a) The cost of making the bidding documents or request for proposals is 0.05% of the total investment. Nevertheless, the cost shall not fall below VND 10,000,000 and not exceed VND 200,000,000;

b) The cost of appraising the bidding documents/request for proposals and the investor selection result is 0.02% of the total investment. Nevertheless, the cost shall not fall below VND 5,000,000 and not exceed VND 100,000,000;

c) The cost of evaluating pre-qualification applications/proposal is 0.03% of the total investment. Nevertheless, the cost shall not fall below VND 10,000,000 and not exceed VND 200,000,000.

4. With regard to projects with similar contents of the same competent authority and solicited by the same party, the projects in which investors have to be selected again, the costs of making, appraising the pre-qualification documents; making, appraising the bidding documents or request for proposals shall not exceed 50% the costs that were paid as prescribed in Clause 2 and Clause 3 of this Article. If investor selection has to be carried out again, such cost shall be included in the investment preparation cost.

5. The costs prescribed in Clause 2, Clause 3, and Clause 4 of this Article apply to the cases in which the investor selection is directly carried out by the competent authority or soliciting entity. If the tasks mentioned in Clause 2, Clause 3 and Clause 4 are done by hired consultants, the costs shall depend on the contents and extent of the tasks, duration, capacity, experience of the consultants, their salary scale, and other factors.

If the salary scale of consultants is not available, the consultants’ salaries shall be determined according to the salaries of consultants for similar projects in certain period of time or included in the total investment.

6. The cost of payment for Advisory Council to settle investors’ complaints against investor selection result is 0.02% of the total investment of the complaining investor. Nevertheless, the cost shall not fall below VND 10,000,000 and not exceed VND 200,000,000;

7. The cost of publishing bidding information, cost of participation in national bidding network and use of revenues collected during the investor selection process shall comply with instructions of the Ministry of Planning and Investment and the Ministry of Finance.

Article 8. Time and cost of investor selection PPP project of Group C

1. Time of investor selection PPP project of Group C:

a) The pre-qualification documents (if any) or bidding documents shall be published within 03 working days from the first day on which the notice of pre-qualification or notice of bidding is posted on the national bidding network or Vietnam Public Procurement Review Journal; invitations for bids must be sent before the bid closing time.

b) The time for preparing the pre-qualification application is at least 10 days from the first day on which the pre-qualification documents is published to the bid closing date. Investors must submit pre-qualification applications before the bid closing time.

c) The time for preparing bid-envelopes is at least 30 days, proposals 15 days from the first day on which the bidding documents or request for proposals is published to the bid closing date. Investors must submit bid-envelopes or proposals before the bid closing time.

d) If the pre-qualification documents, bidding documents, or request for proposals has to be adjusted, the soliciting entity must notify investors 03 days before the bid closing date.

dd) The time limit for evaluating bid-envelopes is 30 days, proposals 20 days from the bid closing date to the day on which the soliciting entity submits the investor selection result to a competent person for approval.

e) The time limit shall be 10 days (from the day on which the request for approval is submitted) for evaluation of: Plan for investor selection, pre-qualification documents, bidding documents, request for proposals, pre-qualification result, and result of investor selection.

g) Other time limits are similar to those prescribed in Article 6 of this Decree.

2. Costs of selection of investors in PPP project of Group C:

a) The value of bid security is 0.5% – 1% of total investment in the project; The value of performance security is 1% - 1.5% of total investment in the project.

b) In consideration of the characteristics of the project, the soliciting entity shall decide the selling price for a set of pre-qualification documents, bidding documents, or request for proposals (inclusive of tax). The selling price for a bidding documents or request for proposals shall not exceed VND 15,000,000; the price for a set of pre-qualification documents shall not exceed VND 5,000,000.

c) Costs of making, appraisal of pre-qualification documents; evaluation of pre-qualification applications; appraisal of pre-qualification result:

- The cost of making the pre-qualification documents is 0.02% of the total investment. Nevertheless, the cost shall not fall below VND 5,000,000 and not exceed VND 50,000,000;

- The cost of appraising the pre-qualification documents and pre-qualification result is 0.01% of the total investment. Nevertheless, the cost shall not fall below VND 5,000,000 and not exceed VND 25,000,000;

- The cost of evaluating pre-qualification applications is 0.02% of the total investment. Nevertheless, the cost shall not fall below VND 5,000,000 and not exceed VND 50,000,000.

d) Costs of making, appraisal of the bidding documents/request for proposals; evaluation of bid-envelopes/proposals; appraisal of investor selection result:

- The cost of making the bidding documents/request for proposals is 0.05% of the total investment. Nevertheless, the cost shall not fall below VND 5,000,000 and not exceed VND 100,000,000;

- The cost of appraising the bidding documents/request for proposals and the investor selection result is 0.02% of the total investment. Nevertheless, the cost shall not fall below VND 5,000,000 and not exceed VND 50,000,000;

- The cost of evaluating pre-qualification applications/proposals is 0.03% of the total investment. Nevertheless, the cost shall not fall below VND 5,000,000 and not exceed VND 100,000,000.

dd) With regard to projects with similar contents of the same competent authority and solicited by the same party, the projects in which investors have to be selected again, the costs of making, appraising the pre-qualification documents; making, appraising the bidding documents or request for proposals shall not exceed 50% the costs that were paid as prescribed in Point c and Point d of this Clause. If investor selection has to be carried out again, such cost shall be included in the investment preparation cost.

e) The costs prescribed in Point a, Point b, Point c, and Point d of this Clause apply to the cases in which the investor selection is directly carried out by the competent authority or soliciting entity. Clause 5, Clause 6, and Clause 7 Article 7 of this Decree shall apply to costs of bidding consultancy, operating cost of Advisory Council in charge of complaint settlement, cost of bidding information publishing, and cost of participation in national bidding network.

Article 9. Methods of investor selection

1. The selection of investors in PPP projects and projects of investment using land must be carried out by international competitive bidding except for the cases mentioned in Clause 2 and Clause 3 of this Article.

2. Domestic competitive bidding shall be applied in the following cases:

a) The fields in which foreign investment is restricted by Vietnam’s law or international agreements to which the Socialist Republic of Vietnam is a signatory;

b) Foreign investors do not participate in international pre-qualification or fail the pre-qualification;

c) PPP projects of Group C as defined by regulations of law on public procurement. Where advanced technologies or international management experienced are needed, domestic investor may form joint ventures with foreign investors or employ foreign contractors to execute the projects.

d) Projects of investment using land in which preliminary investment (not including cost of land clearance and compensation) is below VND 120 billion.

3. Cases of appointment of investors in projects according to Clause 4 Article 22 of the Law on Bidding:

a) Only one investor registers and satisfies requirements of the pre-qualification documents; only one investor passes the pre-qualification;

b) Only one investor is capable of executing the project as prescribed in Point b Clause 4 Article 22 of the Law on Bidding;

c) The project proposed by the investor is feasible and most efficient including PPP projects, projects of investment using land meant for protection of national sovereignty, national borders, and islands as prescribed in Point c Clause 4 Article 22 of the Law on Bidding. Feasible and most efficient projects are considered and decided by the Prime Minister when the following conditions are satisfied:

- There are feasibility study reports (for PPP projects) or project proposals (for PPP projects of Group C) that are approved;

- The investor proposes reasonable service prices, state contribution, social benefits, or state interests;

- The requirements for protection of national sovereignty, national borders, and islands are satisfied.

Article 10. List of projects of investment using land (hereinafter referred to as land-using projects)

1. Compiling and approving the list of projects

a) Basis for compiling the list of projects

- Socio-economic development plans;

- Annual land use plans; lists of approved projects that need land withdrawal;

- Overall planning on a scale of 1:2000 spatial planning on a scale of 1:500 (if any).

b) Compiling and approving the list of projects

Relevant Departments and equivalent agencies or the People’s Committees of districts shall propose projects using land with high commercial value that need investor selection and send proposals to the Department of Planning and Investment; the provincial Department of Planning and Investment shall submit the list of land-using projects to the President of the People’s Committee of the province for approval.

2. Publishing of list of projects

a) After a decision on approval is issued, the list of land-using projects shall be published by the deadline prescribed in Clause 1 Article 6 of this Decree. The list should be published on other mass media to facilitate access to information of interested investors.

b) The published information must specify: the project location, land area, purposes of land, approved targets, current land condition, and other necessary information.

Article 11. Preliminary plan for land clearance and compensation for land-using projects

According to the approved list of land-using projects mentioned in Point b Clause 1 Article 10 of this Decree, relevant Departments and equivalent agencies or the People’s Committees of districts shall cooperate with the organization in charge of land clearance and compensation in making a preliminary plan for land clearance and compensation when land is withdrawn by the State as the basis for making the bidding documents/request for proposals. The compensation levels depend on the land prices according to the latest land price list and price adjustment coefficients as prescribed by regulations of law on land.

Article 12. Retention of bidding information

1. All documents about the selection of investors shall be retained for at least 03 years after the project contract is completed, except for the documents mentioned in Clause 2, Clause 3, and Clause 4 of this Article.

2. Financial - commercial proposals of investors that do not pass technical evaluation shall be returned as is to investors at the same time as the refund or release of bid security of unselected investors. If investors do not receive their financial – commercial proposals, the soliciting entity shall consider destroying them in a way that information contained therein is not revealed.

3. In case of bidding cancellation, relevant documents shall be kept for 12 months from the day on which the decision on bidding cancellation is issued.

4. Project contract finalization documents and documents related to the selected investor in accordance with regulations of law on documents retention.

Article 13. Training in bidding

The registration, evaluation, recognition, and removal of bidding training centers, lecturers, provision of bidding training; requirements applied to lecturers in bidding; requirements for issuance of training certificate and practicing certificate; responsibilities of the Ministry of Planning and Investment for management of training in bidding must comply with regulations of law on contractor selection.

Article 14. Group of experts

1. Every individual participating in the group of experts must have the bidding practicing certificate, except for those mentioned in Clause 3 and Clause 4 of this Article.

2. Depending on the characteristics and complication of the project, the group of experts shall consists of experts in technology, finance, commerce, administration, law, land, and relevant fields.

3. With regard to individuals that are not mentioned in Clause 2 Article 16 of the Law on Bidding, in order to participate in the group of experts, the individual must satisfy the following conditions:

a) have a certificate of training in bidding;

b) have qualifications related to the project;

c) have foreign language skills that satisfy the project’s requirements;

d) be conversant with relevant contents of the projects;

dd) have at least 05 years’ experience in the field related to the project.

4. With regard to special cases in which professional opinions of experts are necessary, the experts are not required to have certificates of training in bidding.