Chapter III
ORDERING AND TENDERING FOR PUBLIC UTILITIES
Section 1. ORDERING PUBLIC UTILITIES
Article 17. Conditions for placement of orders for public utilities
1. Ordering the public utilities indicated in the Appendix II hereto shall be permitted when all of the following conditions are satisfied:
a) The producer or supplier of public utility has obtained registration for business activities relevant to the sectors or industries involving the public utility on order; has full financial capacity and ensure that their infrastructure, equipment, machinery, engineering, production technology level, management and personnel qualification conform to requirements concerning production and supply of public utilities that are set forth in a purchase agreement. In addition, the public utility producer or supplier that is entitled to receive any order in the sectors eligible for licenses or permits granted by the Government must be subject to another condition whereunder they must successfully obtain the permit or license from the agency having jurisdiction to grant licenses or permits according to specialized law;
b) The public utility on order is on the list of particular public utilities because it is related to intellectual property, or is tendered for by only one supplier.
c) Selling price, market price or value of and subsidy on the public utility on order are subject to the competent authority’s decision issued according to price and other relevant law.
2. Conditions for ordering public utilities specified in clause 1 of Section I and clause 2 of Section II of Appendix II hereto shall be subject to specialized and other relevant law; regulatory provisions regarding placement of orders that are laid down in this Decree.
3. Conditions for ordering any particular public utility prescribed in clause 3 of Article 7 herein shall be subject to the Prime Minister's decisions.
4. In case of ordering other public utilities specified in relevant specialized law, such ordering shall be subject to specialized law (if any).
5. With regard to the public utilities stated in clause 1 of Section I of Appendix II hereto, where any public utility on order is subject to the specialized law prescribing the commissioning method, that public utility can be procured by applying that commissioning method; notwithstanding, the ordering method is recommended to purchase this type of public utility. Commissioning conditions and other matters related to the commissioning process shall be carried out according to regulatory provisions of specialized law, Law on State Budget and other relevant law; shall be subject to regulatory provisions on commissioning state-funded public services that are laid down in Section I of Chapter II herein.
6. Though public utilities shown in Appendix II hereto can be procured by applying the ordering method, the tendering method is recommended.
Article 18. Basis for placing orders for public utilities
1. Budget permitted by the competent authority for ordering public utilities.
2. Targets pertaining to production and supply of public utilities; estimate of reasonable costs of production and supply of public utilities.
3. Unit price, cost or value of, or subsidy on the public utility on order that is determined according to economic – technical norms or cost norms adopted for use by the Government and are subject to the decisions issued by competent authorities in accordance with price and other relevant law. Fees and charges for paid public utilities shall be subject to the Government’s regulations.
4. Selling price; unit price, market price or value of the public utility that is subject to the Government's regulations or the sum that the beneficiary of the public utility pays in accordance with the Government’s regulations.
5. Based on the permitted budget, unit price, quoted price, reasonable cost, selling price, market price or value of the public utility, subsidy and other order factors prescribed in other relevant law (if any), the order-placing agency shall determine the amount and quantity of public utilities qualified for the subsidy to enter into a purchase agreement. If the selling price; unit price or market or selling price or value of the public utility regulated by the Government or the sum that the beneficiary of the public utility pays in accordance with the Government’s regulations as stated in clause 4 of this clause is lower than total reasonable cost of production and supply of the public utility, the producer or supplier can be given subsidies varying according to the amount or quantity of public utilities on order.
Article 19. Details or terms and conditions of the purchase agreement
1. The details shall include:
a) Name of the ordered public utility: Amount and quantity of the public utility on order;
b) Quality of the public utility on order (according to the criteria and standards set by competent state agencies);
c) Price, unit price, subsidy;
d) Amount and quantity of the subsidized public utility;
dd) Contract value;
e) Start date and completion deadline;
g) Sales and expenses arising from production and supply of the public utility (where necessary);
h) Selling price of the public utility;
i) Reasonable costs of production and supply of the public utility;
k) Delivery time, location, method;
l) Payment and accounting method;
m) Contract acceptance testing and discharge method;
n) Rights and obligations of the purchaser and the producer or supplier of the ordered public utility;
o) Responsibilities of the contracting parties in case of breach of the agreement and settlement mechanism.
p) Contracting parties may add several details or terms and conditions to the agreement on condition that they neither violate law and cause any change in the price of the public utility on order.
2. Apart from the order information specified in clause 1 of this Article, Ministries, central and local authorities may add several other information to purchase agreements in order to ensure conformity to managerial requirements in specific sectors or consistency with details given in the sample agreement prescribed in specialized law (if any).
3. Each purchase agreement used for ordering a public utility is made by adopting the sample Agreement (Form No. 03) shown in this Decree.
Article 20. Adjustments in the purchase agreement
1. Any adjustment in a purchase agreement used for ordering a public utility can be made only when it is permitted by the competent authority.
2. An adjustment is made in the following cases:
a) The Government changes pay systems and policies;
b) The Government changes economic - technical norms; cost norms, prices, unit prices of or subsidies on the public utility on order;
c) Any force majeure event prescribed by law that causes impacts on production and provision of public utilities occurs.
Section 2. TENDERING FOR PUBLIC UTILITIES
Article 21. Regulations for tendering for public utilities
1. Based on registered functions and business activities relevant to public utilities involved in the tendering process; based on regulatory provisions of specialized law that are applied to service supply bidders or contractors in the sectors eligible for licenses or permits granted by the Government and other bidding conditions prescribed in relevant law (if any), bidders or contractors can bid for contracts to administer public utilities according to the list shown in Appendix II hereto by employing the following bidding methods:
a) Method of open tendering for contracts to produce and supply public utilities that is prescribed in Article 20 in the Law on Bidding, except as provided in point b of clause 1 of Article 21 herein;
b) Method of restricted tendering for contracts to produce and supply public utilities that is prescribed in Article 21 in the Law on Bidding.
2. Tendering and other relevant regulations regarding production and supply of public utilities shall be aligned with the regulations laid down in the Law on Bidding, the Government’s Decree No. 63/2014/ND-CP dated June 26, 2014, elaborating on implementation of several Articles of the Law on Bidding regarding selection of contractors and regulatory documents prescribing amendments or supplements thereto (if any); other relevant law.
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Nghị định 32/2019/NĐ-CP (Bản Word)
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