Chương II Nghị định 30/2015/NĐ-CP: Sơ tuyển và kế hoạch lựa chọn nhà đầu tư

Chapter II

PRE-QUALIFICATION AND INVESTOR SELECTION PLAN

Section 1. PRE-QUALIFICATION

Article 15. Detailed procedures

1. Prepare the pre-qualification:

a) Make the pre-qualification documents;

b) Appraise, approve the pre-qualification documents.

2. Organize the pre-qualification:

a) Announce the pre-qualification;

b) Publish, adjust, clarify the pre-qualification documents;

c) Prepare, submit, receive, manage, adjust, withdraw pre-qualification applications;

d) Bid opening.

3. Evaluate pre-qualification applications.

4. Submit, appraise, approve the pre-qualification results; publish the short list.

Article 16. Application or pre-qualification

1. Pursuant to the feasibility study report of the PPP project and the approved list of land-using projects, the pre-qualification shall be carried out before the investor selection plan is made to determine qualified and experienced investors that satisfy the project's requirements, invite them to participate in competitive bidding as prescribed in Clause 1 and Clause 2 Article 9 of this Decree, or carry out direct contracting as prescribed in Point a and Point b Clause 3 Article 9 of this Decree.

2. International pre-qualification shall be applied to PPP projects and land-using projects, Except for the cases in Clause 3, Clause 4, and Clause 5 of this Article.

3. Domestic pre-qualification shall be applied to the projects mentioned in Point a Clause 2 Article 9 of this Decree.

4. With regard to PPP projects of group C, the competent persons shall decide whether to apply domestic qualification or not apply pre-qualification after the project proposal is approved depending on the characteristics of the projects.

5. With regard to land-using projects in which total investment (not including the cost of land clearance and compensation) is below VND 120 billion, the competent persons shall decide whether to apply domestic qualification or not apply pre-qualification depending on the characteristics of the projects.

Article 17. Making, appraising, and approving the pre-qualification documents.

1. Making the pre-qualification documents

Contents of the pre-qualification documents include:

a) Instructions for investors: Fundamental information about the project and instructions to participate in pre-qualification for investors;

b) Requirements for valid status of investors according to Article 5 of the Law on Bidding; requirements prescribed in Point c Clause 3 Article 58 of the Law on land (for land-using projects);

c) Required capacity and experience of investors: financial – commercial capacity, ability to prepare capital, ability to execute the project; required experience of similar projects; preliminary project execution methods and commitment to execute the project; responsibility to declare disputes and lawsuits concerning current and past contracts. Experience and capacity of investors are experience and capacity of investors that participate in the bidding as independent investors or joint ventures with other partners, including the lender, contractors, producers, insurers, and relevant partners.

d) Methods and standards for evaluation

Pre-qualification applications shall be evaluated according to the evaluation standards mentioned in the pre-qualification documents. The grade shall be given according to a scale of 100 or 1,000 shall be used to evaluate the investors’ capacity and experience. When establishing standards for evaluating investors’ capacity and experience, the minimum grade of a qualified investor must be specified. Nevertheless, the minimum grade must not be lower than 60% and the grade of each requirement must not be lower than 50% of the maximum grade given to such requirement.

2. Appraising, approving the pre-qualification documents:

a) The soliciting entity shall submit the draft pre-qualification documents and relevant documents to the competent persons and the appraising unit;

b) The pre-qualification documents shall be appraised in accordance with Clause 1 Article 82 of this Decree;

c) The pre-qualification documents shall be approved in writing according to the written request for approval and the appraisal report.

Article 18. Announcement, publishing, adjustment, and clarification of the pre-qualification documents

1. Announcement of the pre-qualification shall be made in accordance with Point dd Clause 1 Article 4 and Point b Clause 1 or Point a Clause 2 Article 5 of this Decree.

2. Publishing, adjustment, and clarification of the pre-qualification documents

a) The pre-qualification documents shall be published in accordance with Clause 3 Article 6 of this Decree. With regard to joint ventures, only one member of the joint venture shall buy the pre-qualification documents, even if the joint venture has not been established;

b) In case of adjustment to the pre-qualification documents after publishing, the soliciting entity must send the decision on adjustment and the adjusted contents to the investors that have bought the pre-qualification documents;

c) If the pre-qualification documents must be clarified, the investor shall send a written request to the soliciting entity at least 05 working days before the bid closing date. The soliciting entity shall clarify the pre-qualification documents in one of the following manners:

- Send clarifying documents to the investors that have bought or received the pre-qualification documents;

- Where necessary, a pre-bidding convention shall be held to discuss contents of the pre-qualification documents that need to be clarified. The discussion must be recorded in writing. The record shall be use as the clarifying document and sent to investors that have bought the pre-qualification documents;

- The clarification must not contravene the contents of the pre-qualification documents that have been approved. If the pre-qualification documents must be adjusted after clarification, the pre-qualification documents shall be adjusted in accordance with Point b of this Clause;

d) The decision on adjustment of the pre-qualification documents and the clarifying document is an integral part of the pre-qualification documents.

Article 19. Preparing, receiving, managing, changing, withdrawing pre-qualification applications; bid opening

1. Preparing, receiving, managing, changing, withdrawing pre-qualification applications

a) Investors are responsible for preparation and submission of pre-qualification applications as required in the pre-qualification documents;

b) The soliciting entity shall receive and manage pre-qualification applications in accordance with regulations on confidential document management until the pre-qualification results is published. Information in the pre-qualification application submitted by an investor must not be revealed to any other investor in any case, except when information is revealed upon bid opening. Pre-qualification applications sent to the soliciting entity after the bid closing time shall not be opened, be considered invalid, and disqualified. Any documents sent by investors after the bid closing time for the purpose of adjustment or supplementation to the submitted pre-qualification applications are invalid, except for documents submitted by investors for clarification of the pre-qualification applications at the request of the soliciting entity or for proving the investors’ eligibility, capacity, and experience;

c) Any investor that wishes to adjust or withdraw the submitted pre-qualification applications shall send a written request to the soliciting entity. The soliciting entity shall only accept it if the written request is received before the bid closing time;

d) The soliciting entity must receive pre-qualification applications of every investor who submits it before the bid closing time, including those who have not bought or received the pre-qualification documents directly from the soliciting entity. If the pre-qualification documents is not bought, the investor must pay the soliciting entity an amount equal to the selling price of the pre-qualification documents before the pre-qualification applications is received.

2. Bid opening

Pre-qualification applications submitted in accordance with the location and deadline written in the pre-qualification documents shall be publicly opened within 01 hours form the bid closing time. The opening of pre-qualification applications shall be recorded in writing. The record shall be sent to every investor that submits the pre-qualification application. Pre-qualification applications sent after the bid closing time shall not be opened, be considered invalid, and disqualified.

Article 20. Evaluation of pre-qualification applications

1. Pre-qualification applications shall be evaluated according to the evaluation standards in the pre-qualification documents. Pre-qualification applications whose grades are not lower than the minimum passing grade shall be put on the short list; the pre-qualification application having the highest grade shall be ranked first. If there are more than 03 investors that satisfy requirements, 03 – 05 investors ranked highest shall be put on the short list.

2. Clarification of pre-qualification applications:

a) After bid opening, investors are responsible for clarifying pre-qualification applications at the request of the soliciting entity. If the pre-qualification application lacks documents proving the investor’s eligibility, capacity, and experience, the soliciting entity shall request the investor to clarify and provide additional documents to prove the investor’s eligibility, capacity, and experience;

b) If the investor finds that the pre-qualification application lacks documents proving the investor’s eligibility, capacity, and experience, such investor may send clarifying documents to the soliciting entity. The soliciting entity must receive and consider clarifying documents sent by the investor; additional documents meant to clarify the investor’s eligibility, capacity, and experience is considered an integral part of the pre-qualification application;

c) Clarification of the pre-qualification application shall only be carried out between the soliciting entity and the investor whose pre-qualification application needs clarifying. The clarification must be made in writing and kept by the soliciting entity as an integral part of the pre-qualification application. The clarification must not change the nature of the investor.

Article 21. Submission, appraisal, and approval of pre-qualification results; publishing of the short list

1. According to the report on evaluation of pre-qualification applications, the soliciting entity shall submit the pre-qualification result, specifying the opinions of the soliciting entity about the evaluation provided by the group of experts.

2. The pre-qualification result shall be appraised in accordance with Clause 2 Article 83 of this Decree before being approved.

3. The pre-qualification result shall be approved in writing according to the written request for approval and the appraisal report. In case a short list is made, the written approval must specify the name of investors that pass the pre-qualification and notes (if any). In case a short list is not made, the written approval must specify the reasons.

4. Publishing of the short list: the short list must be posted in accordance with Point dd Clause 1 Article 4 and Point c Clause 1 or Point b Clause 2 Article 5 of this Decree, and notified to every investor that submits the pre-qualification application.

Section 2. Investor selection plan

Article 22. Making the investor selection plan

1. Basis for making the investor selection plan:

a) The decision on approval for project proposal (for PPP projects of Group c), feasibility study report (for PPP projects); the decision to approve the list of land-using projects;

b) Documents about use of state investment in PPP projects (if any);

c) International agreements on the PPP projects funded by ODA or concessional loan (if any);

d) The pre-qualification results (if any);

dd) Relevant documents.

2. Pursuant to Clause 1 of this Article, the soliciting entity shall make and submit the investor selection plan to the competent person and the appraising unit.

3. The set of documents submitted consists of the written request for approval and enclosed documents. The written request contains the summary of the implementation process and contents of the investor selection plan as prescribed in Article 23 of this Decree. Enclosed documents are photocopies being basis for making the investor selection plan prescribed in Clause 1 of this Article.

Article 23. Contents of the investor selection plan

1. Name of the project.

2. Total investment (for PPP projects); preliminary cost of project execution, cost of land clearance and compensation (for land-using projects).

3. Preliminary state capital to support construction of the PPP project, financial mechanism, and method of guaranteeing such state investment (if any).

4. Methods of investor selection

a) Determine whether to carry out competitive bidding or direct contracting, international or domestic bidding as prescribed in Article 9 of this Decree. With regard to PPP projects of Group C and land-using projects in which total investment (not including the cost of land clearance and compensation) is below VND 120 billion, domestic competitive bidding shall be carried out if pre-qualification is not applied, except for the case in Point c Clause 3 Article 9 of this Decree.

b) Determine whether to select investor through single-envelope procedures or two-envelop procedures as prescribed in Article 28 or Article 29 of the Law on Bidding.

5. Beginning of investor selection

The beginning of investor selection is the time of publishing of the bidding documents or request for proposals, specifying the month or quarter in the year.

6. Type of contract

The type of contract shall be determined in accordance with Article 68 of the Law on Bidding.

7. Contract duration

The duration is expressed as years or months, begins from the effective date of the contract and ends when the parties have fulfilled their contractual obligations.

Article 24. Evaluating and approving the investor selection plan

1. Evaluating the investor selection plan

a) The investor selection plan shall be evaluated in accordance with Article 23 of this Decree;

b) The unit appointed to evaluate the investor selection plan shall make and submit the evaluation report to the competent person.

2. According to competent person, the competent persons shall issue a written approval for the investor selection plan, which is the basis for investor selection.