Chương III Nghị định 30/2015/NĐ-CP: Đấu thầu rộng rãi lựa chọn nhà đầu tư thực hiện dự án PPP

Chapter III

COMPETITIVE BIDDING FOR SELECITON OF INVESTORS IN PPP PROJECTS

Section 1. DETAILED PROCEDURES

Article 25. Detailed procedures

1. Preparation for the investor selection:

a) Make the bidding documents;

b) Appraise, approve the bidding documents.

2. Organization of investor selection:

a) Invite bids;

b) Publish, adjust, clarify the bidding documents;

c) Prepare, submit, receive, manage, adjust, withdraw bid-envelopes;

d) Open technical proposals.

3. Evaluate technical proposals, including:

a) Inspect the validity of technical proposals;

b) Evaluate technical proposals in details;

c) Appraise, approve the list of investors that satisfy technical requirements.

4. Opening and evaluating financial – commercial proposals, including:

a) Open financial – commercial proposals;

b) Inspect the validity of financial – commercial proposals;

c) Evaluate financial – commercial proposals in details and rank investors;

d) Preliminarily negotiate the contract.

5. Submit, appraise, approve, and publish the investor selection result.

6. Contract negotiation, completion, and conclusion:

a) Negotiate and complete the contract;

b) Sign the investment agreement and contract.

Section 2. PREPARATION FOR INVESTOR SELECTION

Article 26. Making the bidding documents

1. Basis for making the bidding documents:

a) Decision to approve the feasibility study report, project documents, and relevant documents;

b) The pre-qualification results;

c) The approved investor selection plan;

d) Relevant regulations of law and State policies.

2. Contents of the bidding documents:

a) The bidding documents must not contain any condition that restricts the participation of investors or provide advantage for one or some investors, which create unfair competition;

b) The bidding documents must contain sufficient information for investors to make their bid-envelopes, including:

- Overall information about project, including the contents and scale of the project, detailed description of the project output, and services provided when the project is completed;

- Instructions for investors including the bidding procedures and the bidding data table;

- Requirements of the project according to the approved feasibility study report, including:

+ Technical requirements: standards for project execution, required quality of the construction, products or serviced provided; detailed description of technical requirements and technical norms applied to evaluation of bid-envelopes; environmental and safety requirements;

+ Financial – commercial requirements: plan for organization of investment and business; financial plan (total capital, capital structure, capital raising plan; state capital (if any); expenditures, revenues, goods/services prices; duration of capital recovery, profits); specific risk distribution requirements;

- Bid-envelope evaluation standards, including technical standards, financial - commercial standards, and method of evaluation. It is not required to establish standards for evaluation of investors’ capacity and experience. However, investors must be required to update information about their capacity and experience;

- The forms including: the letter of bid, technical proposal, financial - commercial proposal, bid security, commitment of a financial institution (if any), and other form;

- The type of project contract, contract conditions, and the draft contract, including project execution requirements, construction quality standards, service provision standards, pricing mechanism, applied regulations, contractual rewards and penalties, force majeure events, reconsideration of the contract during the project execution, and other contents according to the Government’s regulations on PPP.

Article 27. Methods and standards for evaluation of bid-envelopes

The method for evaluating bid-envelopes is expressed by the evaluation standards written in the bidding documents, including:

1. Methods and standards for technical evaluation

a) Depending on the scale, characteristics, and type of the project, technical standards include:

- Quantitative and qualitative standards;

- Standards for operation, management, and maintenance;

- Environmental and safety standards.

When making the bidding documents, it is required to establish detailed technical standards according to the standards prescribed in this Article that suit the project on a case-by-case basis in and ensure that the selected investor satisfy output requirements of the project. During the establishment of detailed technical standards, other technical standards may be added to suit the project on a case-by-case basis.

b) Technical evaluation method

Grades shall be given on a scale of 100 or 1,000 to establish technical standards for evaluation, including the minimum and maximum grade for each overall standard and detailed standard. When establishing technical standards, it is required to set a minimum grade which is not lower than 70% of total technical grades and the grade for each criterion with regard to quantity, quality, operation, management, maintenance, environment, and safety; and not lower than 60% of the maximum grade for the same criterion.

c) The grading structure mentioned in Point a of this Clause must suit the project contract on a case-by-case basis. The total grade must be 100%.

2. Financial – commercial evaluation

Methods for evaluating bid-envelopes specified in the bidding documents include:

a) Service-price-based method:

- This is applied to the project of which service prices are the criterion for financial - commercial evaluation. Other criteria such as standards of assets, services of the project, capital recovery duration, and related elements are already specified in the bidding documents;

- With regard to bid-envelopes that satisfy technical requirements, their service prices shall be used for comparison and ranking. The investor that offers the lowest service prices shall be ranked first and invited to preliminary contract negotiation.

b) State-investment-based method:

- The state-investment-based method is applied to the project in which state capital is the criterion for financial - commercial evaluation. Other criteria such as standards of assets, services of the project, capital recovery duration, service prices, and related elements are already specified in the bidding documents;

- With regard to bid-envelopes that satisfy technical requirements, their proposed state investment shall be used for comparison and ranking. The investor that proposes the lowest state investment shall be ranked first and invited to preliminary contract negotiation.

c) Public-interest-based method:

- This is a method for evaluating investors that offer the most efficient project execution plan; other contents are already specified in the bidding documents. Investment efficiency is evaluated according to the propose payment to state budget;

- With regard to bid-envelopes that satisfy technical requirements, their proposed payment to state budget be used for comparison and ranking. The investor that offers the highest payment to state budget shall be ranked first and invited to preliminary contract negotiation.

d) Combined method:

This is a method that combines the methods prescribed in Point a, Point b, and Point c of this Clause.

Article 28. Appraising and approving the bidding documents

1. The bidding documents shall be appraised in accordance with Clause 2 Article 82 of this Decree before being approved.

2. The bidding documents shall be approved in writing according to the written request for approval and the appraisal report.

Section 3. ORGANIZATION OF INVESTOR SELECTION

Article 29. Bid solicitation

Invitations for bids shall be sent to the short-listed investors, specifying the time and location of publishing the bidding documents, bid closing time, and bid opening time.

Article 30. Publishing, adjusting, clarifying bidding documents

1. The bidding documents shall be issued to short-listed investors. With regard to joint ventures, only one member of the joint venture shall buy the bidding documents.

2. In case of adjustment to the bidding documents after publishing, the soliciting entity must send the decision on adjustment and the adjusted contents to the investors that have bought or received the bidding documents.

3. If the bidding documents must be clarified, the investor shall send a written request to the soliciting entity at least 07 working days (for domestic bidding) or 15 days (for international bidding) before the bid closing date. The soliciting entity shall clarify the bidding documents in one of the following manners:

a) Send written clarifying documents to the investors that have bought the bidding documents;

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

The clarification must not contravene the contents of the bidding documents that have been approved. If the bidding documents must be adjusted after clarification, it shall be adjusted in accordance with Clause 2 of this Article.

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

Article 31. Preparing, receiving, managing, changing, withdrawing bid-envelopes

1. Investors are responsible for preparation and submission of bid-envelopes as required in the bidding documents.

2. b) The soliciting entity shall receive and manage bid-envelopes in accordance with regulations on confidential document management until the investor selection result is published. Information in the bid-envelope submitted by an investor must not be revealed to any other investor in any case, except when such information is revealed upon bid opening. Bid-envelopes 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 bid-envelopes are invalid, except for documents submitted by investors for clarification of the bid-envelopes at the request of the soliciting entity or for proving the investors’ eligibility.

3. Any investor that wishes to adjust or withdraw the submitted bid-envelope 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.

4. Any investor who wishes to change the investor’s status (name) in the short list shall send a written report to the soliciting entity at least 07 working days before the bid closing date. The soliciting entity shall request the competent person to consider allowing the change of the investor’s status as follows:

a) Allow the establishment of a joint venture to add a member outside the short list to the joint venture;

b) Do not allow a member to withdraw from the joint venture without addition of another member with equivalent or better capacity and experience.

Article 32. Opening technical proposals

1. Technical proposals shall be publicly opened within 01 hours form the bid closing time. Only the technical proposals received by the soliciting entity before the bid closing time shall be opened as required by the bidding documents in front of representatives of investors who attend the bid opening ceremony, regardless of the investors’ presence.

2. Each of the bid-envelopes shall be opened in alphabetical order of investors’ name and in the following procedures:

- Check the seal;

- Open the envelope and read out loud information about: The investor’s name; quantity of originals and photocopies of the technical proposal; the letter of bid of the technical proposal; effective period of the technical proposal; contract duration; value and validity of the bid security; relevant information.

3. Bid opening record: The information mentioned in Clause 2 of this Article must be written in the bid opening record The bid opening record must bear the signature of the representatives of the soliciting entity and investors who attend the bid opening ceremony. This record must be sent to investors that participate in the bidding.

4. The representative of the soliciting entity must sign the original letters of bid, letters of attorney made by investors (if any); joint venture agreements (if any); bid security; important contents of each technical proposal.

5. Financial – commercial proposals of all investors must be sealed by the soliciting entity in separate bags. The seals must be signed by representatives of the soliciting entity and investors that attend the bid opening ceremony.

Article 33. Rules for evaluating bid-envelopes

1. Bid-envelopes must be evaluated according to standards for evaluating bid-envelopes and other requirements in the bidding documents, explanatory and clarifying documents of investors in order to select technically and financially qualified investors to execute the project.

2. The evaluation shall be carried on the photocopies; investors area responsible for the consistency of the originals and photocopies. In case of discrepancies between the original and the photocopy which do not affect investors’ rankings, the original shall prevail.

3. In case of discrepancies between the original and the photocopy which do lead to incorrect evaluation and change the investors’ rankings, such bid-envelope shall be disqualified.

Article 34. Clarifying bidding documents

1. After bid opening, investors are responsible for clarifying their bid-envelopes at the request of the soliciting entity. The clarification of the technical proposal and financial – commercial proposal in the bid-envelope must ensure that the primary contents of the submitted bid-envelopes are not changed.

2. After bid closing, if the investor finds that the bid-envelope lacks documents proving the investor’s eligibility, capacity, and experience, such investor may send additional documents to the soliciting entity, provided the change of the investor’s status is permitted. The soliciting entity must receive and consider clarifying documents sent by the investor to consider; additional documents meant to clarify the investor’s eligibility, capacity, and experience is considered an integral part of the bid-envelope.

3. c) Clarification of the bid-envelope shall only be carried out between the soliciting entity and the investor whose bid-envelope needs clarifying, ensuring that the investor’s nature is not changed. The clarification must be done in writing and kept by the soliciting entity as an integral part of the bid-envelope.

Article 35. Correction of errors and adjustment of deviation

1. Correction of errors means the correction of errors in the bid-envelope, including arithmetic errors, unit errors; differences between the technical proposal and financial – commercial proposal, and other errors.

2. Adjustment of deviation means the adjustment of missing or redundant contents of the bid-envelope compared to the bidding documents. Adjustment of deviation shall be done to ensure fairness, transparency, and economic efficiency.

3. After finding an error or deviation, the soliciting entity must send a written notification of such error/deviation correction/adjustment thereto to the investor. Within 07 working days from the receipt of the soliciting entity’s notification, the investor must send a written response to the soliciting entity which states:

a) Whether to accept or not accept the error correction result. If the investor does not accept the error correction result, the investor’s bid-envelope shall be disqualified;

b) Offer the investor’s opinion about the deviation adjustment result. If the investor does not accept the deviation adjustment result, an explanation must be provided for the soliciting entity to consider.

Section 4. EVALUATION OF TECHNICAL PROPOSALS

Article 36. Evaluation of technical proposals

1. Check the validity of the technical proposal:

a) Check the quantity of originals and photocopies of the technical proposal;

b) Check the composition of the technical proposal, including: the letter of bid, joint venture agreement (if any), letter of attorney to sign the bid form (if any); bid security; specific technical proposals; and other components of a technical proposal;

c) Check the consistency of the originals and photocopies to serve the detailed evaluation of the technical proposal.

2. Evaluate the validity of the technical proposal:

An investor’s technical proposal shall be considered legitimate when all of the following conditions are satisfied:

a) The original of the technical proposal is available;

b) b) The letter of bid of the technical proposal bears the signature and seal (if any) of the legal representative of the investor as required in the bidding documents. The letter of bid of a joint venture must bear the signatures and seals (if any) of every joint venture member. The head member of the joint venture may sign the letter of bid on behalf of the joint venture if so agreed in the joint venture agreement;

c) The effectiveness of the technical proposal satisfies requirements in the bidding documents;

d) There is a bid security of which the effectiveness and duration satisfy requirements in the bidding documents. In case of bid security in the form of letter of guarantee, the letter of guarantee must be signed by the legal representative of a credit institution with the effectiveness, value, and beneficiary conformable with the bidding documents;

dd) The investor’s name is not present in more than one technical proposal as an independent investor or joint venture member;

e) There is a joint venture agreement bearing the signatures and seals (if any) of legal representatives of every joint venture member;

g) The investor is not banned from bidding as prescribed by regulations of law on bidding;

h) The investor is eligible as prescribed in Clause 1 Article 5 of the Law on Bidding.

3. The investor that has a valid technical proposal, updated capacity and experience that satisfy requirements of the bidding documents shall have the technical proposal undergone detailed evaluation.

4. Detailed evaluation of the technical proposal:

a) Detailed evaluation of the technical proposal shall be carried out according to the evaluation standards in bidding documents;

b) If the technical proposal is satisfactory, the investor shall have the financial - commercial proposal evaluated.

Article 37. Appraising, approving the list of investors that satisfy technical requirements

The list of investors that satisfy technical requirements shall be approved in writing according to the written request for approval and appraisal report. The soliciting entity must send the list of investors that satisfy technical requirements to all participating investors; invite investors that satisfy technical requirements to attend the opening of financial - commercial proposals.

Section 5. OPENING AND EVALUATING FINANCIAL – COMMERCIAL PROPOSALS

Article 38. Opening financial – commercial proposals

1. Check the seals of the bags that contain financial – commercial proposals.

2. Open financial – commercial proposals:

a) Only the financial - commercial proposals of investors that satisfy technical requirements shall be opened in front of representatives of investors who attend the opening ceremony, regardless of the investors’ presence;

b) The representative of each of the investors shall be requested to confirm the availability of the proposal of reduction in service price, reduction in state investment, or increase in payment to state budget enclosed with their financial - commercial proposals.

c) Each of the financial - commercial proposals shall be opened in alphabetical order of investors that satisfy technical requirements’ names and in the following procedures

- Check the seal;

- Open the envelope and read out loud information about: The investor’s name; quantity of originals and photocopies of the financial - commercial proposal; the letter of bid of the financial - commercial proposal; effective period of the financial - commercial proposal; total investment and total capital of the project, service prices, state investment in project construction (if any); payment to state budget written in the bid form (if any); reduction in service prices or reduction in state investment or increase in payment to state budget (if any); grades of bid-envelopes that satisfy technical requirements; and relevant information.

3. Record on opening of financial – commercial proposals:

a) The information mentioned in Clause 1 and Clause 2 of this Article must be written in the opening record. The opening record bear the signatures of the soliciting entity and investors who attend the opening ceremony. This record must be sent to investors that satisfy technical requirements;

b) The representative of the soliciting entity must sign all pages of the original financial – commercial proposals;

Article 39. Evaluating financial – commercial proposals

1. Inspect the validity of financial – commercial proposals:

a) Check the quantity of originals and photocopies of the financial - commercial proposal;

b) Check the components of the financial - commercial proposal, including the letter of bid and other components of the proposal.

c) Check the consistency between the original and photocopies.

2. Inspect the validity of financial – commercial proposals;

An investor’s financial - commercial proposal shall be considered legitimate when all of the following conditions are satisfied:

a) There is the original financial – commercial proposal;

b) There is a letter of bid of the financial - commercial proposal which bears the investor’s signature and seal (if any) as requested in the bidding documents. The total investment and capital of the project, service prices, state investment, payment to state budget written in the letter of bid must be specific in both number and text, logical, and appropriate for the investor’s financial plan; the same item must not have various proposed values or put under conditions that are disadvantageous for state authorities or the soliciting entity. The letter of bid of a joint venture must be signed and stamped (if any) by each of the joint venture member. The head member of the joint venture may sign the bidding form on behalf of the joint venture if so agreed in the joint venture agreement;

c) The effectiveness of the financial – commercial proposal satisfies requirements in the bidding documents.

Valid financial – commercial proposals shall undergo detailed evaluation.

3. Detailed evaluation of financial – commercial proposals and ranking of investors:

a) Detailed evaluation of the financial – commercial proposal and investor ranking shall be carried out according to the evaluation standards in bidding documents;

b) After investors are short-listed, the group of experts shall submit a report to the soliciting entity. The report must contain:

- The list of ranked investors and their ranks;

- The list of disqualified investors and reasons for disqualification;

- Opinions about the competitiveness, fairness, transparency, and economic efficiency of the investor selection process. If competitiveness, fairness, transparency, or economic efficiency is yet to be achieved, explanation and solutions must be provided;

- Any contents of the bidding documents that are not conformable with regulations of law on bidding that lead to conflicting interpretation or deviation of the investor selection result (if any); solutions.

Article 40. Preliminary contract negotiation

1. The investor ranked first shall be invited to preliminary contract negotiation. If the invited investor does not come or refuses the preliminary contract negotiation, such investor shall not have the bid security returned.

2. Preliminary contract negotiation must be based on:

a) Report on evaluation of bid-envelopes;

b) The bid-envelope and clarifying documents provided by the investor (if any);

c) The bidding documents.

3. Rules for Preliminary contract negotiation:

a) Do not negotiate the investor's offers that are conformable with the bidding documents;

b) The preliminary contract negotiation must not change fundamental contents of the bid-envelope.

4. Contents of preliminary contract negotiation:

a) Preliminary negotiation of the contents that are not specific, clear, or appropriate enough, or not consistent between the bidding documents and the bid-envelope, and inconsistency within that same bid-envelope, which may lead to disputes or affect the responsibilities of parties during the contract execution;

b) Preliminary negotiation of issues that arise during the investor selection (if any) to complete details the project;

c) Negotiation of other necessary issues.

5. During the preliminary contract negotiation, the parties shall draft the investment agreement and the contract.

6. If the preliminary contract negotiation does not succeed, the soliciting entity shall request the competent person to consider inviting the investor ranked next to preliminary contract negotiation. If the next negotiation does not succeed, the soliciting entity shall request the competent person to consider canceling the bidding as prescribed in Clause 1 Article 17 of the Law on Bidding.

Article 41. Rules for approving successful bidder

An investor shall be considered for selection when all of the conditions below are satisfied:

1. The investor has a valid bid-envelope;

2. The investor is qualified in terms of capacity and experience;

3. The investor satisfy technical requirements;

4. The investor offers the lowest service price which does not exceed the service price determined in the approved feasibility study report, is conformable with regulations of law on prices, fees, and charges (if service-price-based method is applied); proposes the lowest state investment which does not exceed the state investment determined in the approved feasibility study report (if state-investment-based  method is applied); or offers the highest payment to state budget (if public-interest-based method is applied.)

Section 6. SUBMISSION, APPRAISAL, APPROVAL, AND PUBLISHING OF INVESTOR SELECTION RESULT

Article 42. Submission, appraisal, approval, and publishing of investor selection result

1. According to report on evaluation of bid-envelopes, the soliciting entity shall submit the investor selection result which specifies the soliciting entity’s opinions about the evaluations given by the group of experts.

2. The investor selection result shall be appraised in accordance with Clause 4 Article 83 of this Decree before being approved.

3. The investor selection result shall be approved in writing according to the written request for approval and appraisal report.

4. If an investor is selected, the written approval for the investor selection result must contain:

a) Name, location, and scale of the project;

b) Name of the selected investor;

c) Type of contract;

d) Time for commencement of construction, completion, operation, and transfer of the project;

dd) Conditions for using land to execute the project (location, area, purpose, and duration);

e) Total investment and total capital of the project;

g) Service prices, state investment, or payment to state budget;

h) Notes (if any).

5. In case of bidding cancellation prescribed in Clause 1 Article 17 of the Law on Bidding, the written approval for investor selection result or the decision on bidding cancellation must specify the reasons for cancellations and responsibilities of relevant parties.

6. After receiving the written approval for investor selection result, the soliciting entity post information about the investor selection result as prescribed in Point dd Clause 1 Article 4 and Point c Clause 1 or Point b Clause 2 Article 5 of this Decree; send notifications of investor selection result to the investors that participated in the bidding by the deadline prescribed in Clause 13 Article 6 of this Decree. The notification of investor selection result must contain:

a) The information mentioned in Clause 4 of this Article;

b) The list of unselected investors and reasons for each investor;

c) The plan for negotiating, completing, and concluding the contract with the selected investor.

Section 7. CONTRACT NEGOTIATION, COMPLETION, AND CONCLUSION

Article 43. Contract negotiation and completion

1. According to the investor selection result, preliminary contract negotiation result, a competent authority shall organize the contract negotiation and completion with the selected investor.

2. Contents of contract negotiation and completion:

a) The contents of contract negotiation and completion must not change fundamental contents of preliminary contract negotiation prescribed in Clause 4 Article 40 of this Article and the investor selection result. Contents of contract negotiation and completion include:

- Details of preliminary contract negotiation;

- Foundations for concluding the project contract;

- Changes to special terms of the contract (if any).

b) Apart from the contents mentioned in Point a of this Clause, the soliciting entity shall request the competent person to decide other contract negotiation and completion contents that suit the type of contract.

3. If the contract negotiation and completion does not succeed, the soliciting entity shall request the competent person to consider cancelling the investor selection result and inviting the investor ranked next to preliminary contract negotiation, then following the steps prescribed in Articles 40, 41, and 41 of this Decree and Clause 1, Clause 2 of this Article.

Article 44. Conclusion of investment agreement and contract.

1. The investment agreement shall be concluded in accordance with regulations of the Government on PPP.

2. The concluded contract must comply with regulations in Articles 69, 70, 71, and 72 of the Law on Bidding and regulations of the Government on PPP.