Chương IX Nghị định 30/2015/NĐ-CP: Xử lý vi phạm pháp luật, kiểm tra, giám sát, theo dõi hoạt động đấu thầu trong lựa chọn nhà đầu tư

Chapter IX

ACTIONS AGAINST VIOLATIONS OF LAWS; INSPECTION, SUPERVISION, AND MONITORING OF BIDDING DURING INVESTOR SELECTION

Section 1. Actions against violations

Article 91. Penalties

1. Warnings and fines shall be imposed upon any organization or individual that violations regulations of law on bidding in accordance with regulations of law on penalties for administrative violations against regulations of law on planning and investment.

2. Ban from bidding shall be imposed upon any organization or individual that violates Article 89 of the Law on Bidding.

3. Any individual whose violations against regulations of law on bidding constitute crimes shall face criminal prosecution in accordance with criminal laws.

4. Any official that violate regulations of law on bidding shall also be dealt with in accordance with regulations of law on officials.

Article 92. Ban from participation in investor selection

Depending on the seriousness of violations, ban from bidding shall be imposed as follows:

1. Any entity that commits violations against Clauses 1, 2, 3, 4, or 5 Article 89 of the Law on Bidding shall be banned from bidding for 03 – 05 years.

2. Any entity that commits violations against Points a, b, c, d, or h of Clause 6 Article 89 of the Law on Bidding shall be banned from bidding for 01 – 03 years.

3. Any entity that commits violations against Clause 7 Article 89 of the Law on Bidding shall be banned from bidding for 06 months – 01 year.

Article 93. Cancellation, suspension of bidding, rejection of investor selection result

1. Bidding cancellation is a measure taken by the competent persons to deal with violations against regulations of law on bidding and relevant laws committed by participants in the bidding.

The competent person is entitled to decide bidding cancellation in the cases mentioned in Article 17 of the Law on Bidding.

2. Suspension of bidding, rejection of investor selection result, annulment of decisions made during investor selection process:

a) Bidding suspension, rejection of investor selection result shall apply when there is evidence that violations against regulations of law on bidding or relevant laws are committed by participants in the bidding which lead to failure to achieve bidding targets and/or alter the investor selection result.

b) Suspension shall be applied to instantly stop the violations before the investor selection result is approved. Investor selection result shall be rejected from the day on which the investor selection result is approved to the contract conclusion date;

c) The decision on suspension or rejection of investor selection result must specify the reasons, necessary measures and time limit for remediation;

d) The soliciting entity’s decisions shall be annulled by the competent person when finding that such decisions are not conformable with regulations of law on bidding and relevant laws.

Article 94. Compensation for damage caused by violations against regulations of law on bidding

Any entity that commits violations against regulations of law on bidding and causes damage shall pay compensation in accordance with regulations of law on damages and relevant laws.

Section 2. INSPECTION, SUPERVISION, MONITORING

Article 95. Inspection of bidding

1. Inspection of biding shall be carried out periodically or irregularly when there are difficulties, complaints, or at the request of the Prime Minister, Presidents of the People’s Committees of provinces, competent persons of bidding inspection agencies in accordance with Clause 2 of this Article. Inspection method: Direct inspection and request for reports.

2. Ministers, Heads of ministerial agencies, Governmental agencies, other central agencies, Presidents of the People’s Committees of provinces; Directors of the Departments of Planning and Investment, Heads of other Departments and agencies affiliated to the People’s Committees of provinces; Presidents of the People’s Committees of districts shall direct bidding inspection of the units under their management and the projects in which investment is decided by them in order to boost the progress, improve efficiency, discover and prevent violations against regulations of law on bidding.

3. The Ministry of Planning and Investment shall take charge of bidding inspection nationwide. Ministries, ministerial agencies, Governmental agencies, other central agencies, the People’s Committees of provinces; Departments of Planning and Investment, other Departments and agencies affiliated to the People’s Committees of provinces; the People’s Committees of districts shall carry out bidding inspection at the request of the competent persons of bidding inspection agencies. The Departments of Planning and Investment shall assist the People’s Committees of provinces in organizing bidding inspection in within the province.

4. Contents of bidding inspection

a) Contents of periodic inspection:

- Inspect the promulgation of documents on guidelines for investor selection.

- Inspect the provision of training in bidding;

- Inspect the issuance of certificates of training in bidding, biding practising certificate;

- Inspect the formulation and approval of the investor selection plan, pre-qualification documents, bidding documents, request for proposals, pre-qualification result, and investor selection result;

- Inspect the concluded contract and conformity with legal basis during the contract conclusion and execution;

- Inspect the procedures and progress of project execution according to the approved investor selection plan;

- Inspect the reporting on bidding;

- Inspect the bidding inspection and supervision.

b) Contents of irregular inspection: In consideration of the inspection requirements and the decision on inspection, chief of the inspectorate shall specify the inspection contents.

5. After the inspection is completed, a report and conclusion must be made. The inspecting agency shall monitor the remediation according to the conclusion. Actions against violations committed shall be proposed or the case shall be transferred to an inspecting/investigating agency.

6. Contents of inspection conclusion:

a) The situation at the inspected unit;

b) The inspection contents;

c) Comments;

d) Conclusion;

dd) Recommendations.

Article 96. Monitoring of bidding

1. Bidding supervision and monitoring is applied when Ministers, Heads of ministerial agencies, Governmental agencies, other central agencies authorize the heads of organizations affiliated to Ministries, ministerial agencies, Governmental agencies, other central agencies; the People’s Committees of provinces authorize heads of specialized agencies affiliated to the People’s Committees of provinces or  Presidents of the People’s Committees of districts to fulfill the responsibilities of competent persons to investor selection in order to deal with improper acts and issues that contravene regulations of law on bidding and relevant laws.

2. The competent person shall appoint an individual or unit in charge of bidding management to supervise, monitor the investor selection process with regard to the tasks mentioned in Clause 3 of this Article to ensure conformity with regulations of law on bidding.

3. Investor selection tasks that needs monitoring and supervising:

a) Making, appraising, and approving the pre-qualification documents, bidding documents, request for proposals;

b) Evaluating pre-qualification applications, bid-envelopes, and proposals;

c) Appraising and approving pre-qualification result, investor selection result;

d) Result of contract negotiation, completion, and conclusion.

4. Method of supervision and monitoring:

a) The soliciting entity shall provide investors that bought the pre-qualification documents, bidding documents, or request for proposals with the name and address of the organization or individual in charge of supervision and monitoring (hereinafter referred to as supervising entity);

b) The soliciting entity shall provide information about the investor selection process for the supervising entity when receiving a written request;

c) Any act or issue that contravenes regulations of law on bidding committed by the supervising entity must be reported in writing to the competent person in order to take appropriate measures and ensure the efficiency of the investor selection process.

5. Responsibilities of supervising entity:

a) Be honest and objective; do not harass the authorized person and soliciting entity during the supervision, monitoring process.

b) Request the authorized person and soliciting entity to provide relevant documents serving the supervision, monitoring;

c) Receive feedbacks from relevant entities about the investor selection process of the project being supervised monitored;

d) Protect confidentiality of information as prescribed;

dd) Fulfill other responsibilities prescribed by regulations of law on bidding and relevant laws.