Chapter VI
HANDLING SITUATIONS AND ACTIONS AGAINST VIOLATIONS DURING PPP INVESTMENT
Section 1. HANDLING SITUATIONS DURING PROJECT EXECUTION
Article 83. Handling of certain situations
1. In case the competent authority receives a project proposal from another investor after the first investor submits the project proposal that have the same objectives and location and are conformable with the project planning, the competent authority shall handle this situation as follows:
a) If the second investor’s project proposal is received within 10 days from the day on which the first investor’s project proposal is received, assign an affiliated specialized agency to consider and establish evaluation method to select the project proposal with highest feasibility and efficiency according to the following criteria:
- The conditions specified in Clause 1 Article 26 of PPP Law;
- Necessity of investment;
- Technical feasibility;
- Economic – social efficiency of the project;
- Financial feasibility of the project;
- The investors’ capacity and experience as the basis for preparation of the pre-feasibility study report, feasibility study report of the project.
b) If the second investor’s project proposal is received after 10 days from the day on which the first investor’s project proposal is received, the competent authority shall not consider the it and return it to the second investor as is.
2. In case the project applies competitive bidding with prequalification or competitive negotiation as prescribed in Clause 2 and Clause 3 Article 38 of PPP Law and fewer than 03 investors satisfy the requirements of the pre-qualification documents or negotiation documents (qualified investors), the procuring entity shall, on the basis of specific conditions of the project, request the competent authority to select one of the following options:
a) Immediately approve the shortlist of qualified investors;
b) Revise the pre-qualification documents or negotiation documents (if necessary) and reinitiate the prequalification or competitive negotiation process to increase the number of investors on the shortlist. In this case, investors may revise or withdraw their submitted pre-qualification applications or negotiation applications.
3. In case of prequalification, competitive bidding without prequalification, competitive negotiation prescribed in Clause 2 and Clause 3 Article 38 of PPP Law and fewer than 03 investors submit pre-qualification applications, negotiation application or bids, the procuring entity shall request the competent authority to selection one of the following options:
a) Immediately open and evaluate the bids;
b) Defer the bid closing time and revise the pre-qualification documents, negotiation documents or bidding documents (if necessary). In this case, investors may revise or withdraw their submitted pre-qualification applications, negotiation applications or bids.
4. In case of competitive bidding where prequalification or competitive negotiation has been carried out and the quantity of bidding investors is smaller than the approved quantity in the shortlist at the bid closing time, the procuring entity shall request the competent authority to select one of the following options:
a) Immediately open and evaluate the bids;
b) Defer the bid closing time and revise the pre-qualification documents, negotiation documents or bidding documents (if necessary). In this case, investors may revise or withdraw their submitted pre-qualification applications, negotiation applications or bids.
5. The investor that needs to change their status and name in the shortlist shall send a written notice to the procuring entity at least 07 working days before the bid closing date. The procuring entity shall request the competent authority to consider permitting:
a) Addition of the partnership member to the shortlist;
b) Removal of the partnership member provided the remaining members or the substitute member (if any) have qualified capacity and experience;
c) Change of the ratio of contributed equity to in the partnership, in which case the procuring entity shall carry out evaluation and update information about the investor’s capacity; ensure that the investor has adequate capacity and minimum equity ratio of each member specified in the pre-qualification documents or negotiation documents.
6. In case the shortlisted investors wish to form a partnership to bid, the competent authority shall consider approving this as long as competitiveness, transparency and efficiency are ensured.
7. In case all investors that are technically qualified and included in the list of ranked investors propose the prices, fees for public services and products, state capital provided as assistance in construction of works and infrastructure system that are higher than the values in the approved feasibility study report (or the pre-feasibility study report for high-tech projects), the procuring entity shall request the competent authority to select one of the following options:
a) Allow the investors to resubmit the financial – commercial proposals;
b) Concurrently allow these investors to resubmit the financial – commercial proposals and reconsider the prices, fees for public services and products, state capital provided as assistance in construction of works and infrastructure system in the approved feasibility study report (or the pre-feasibility study report for high-tech projects), if necessary.
8. In case all investors are equally ranked after evaluation of financial – commercial proposals, the investor that has the highest technical score will be first-ranked.
9. In case some contents of the bidding documents are not conformable with PPP laws and relevant laws and thus cause vague or ambiguous interpretation during bid evaluation or incorrect investor selection result, the procuring entity shall request the competent authority to consider following these steps:
a) Revise the bidding documents to their conformity with the decision on investment guidelines, project approval decision, PPP laws and relevant laws;
b) Notify all investors that have submitted their bids of the revisions to the bidding documents and request them to submit supplementary documents for the revised contents or other contents if affected by the revisions to the bidding documents (if necessary);
c) Organize re-evaluation of bids.
10. In case the successful investor fails to satisfy the technical and financial criteria, the by the time the contract is concluded, the next-ranked bidder will be invited to negotiate the contract. The invited investor shall restore the effect of the bid and bid security in case it has expired and ensure that the bid security has been returned or released.
11. In case the partnership is the successful bidder but the project contract has not been concluded or concluded but has not come into force and the ratio of equity contribution in the partnership is adjusted, the procuring entity shall update the investor’s capacity as prescribed in Clause 1 Article 49 of PPP law, ensuring that the investor has adequate capacity and minimum equity ratio of each member as prescribed in Point a Clause 2 Article 41 of PPP law. After information about the investor’s capacity is updated, the procuring entity shall request the competent authority to make a decision in order to carry on the procedures as per regulations.
12. In other situations than those mentioned above, the competent authority shall make decision on the basis of ensuring competitiveness, fairness, transparency and efficiency.
Article 84. Responsibility for handling situations
1. The situations specified in Clauses 1, 2, 3, 4, 5, 6, 7, 9, 11 and 12 Article 83 of this Decree shall be handled by the competent authority.
2. The situations specified in Clause 8 and Clause 10 Article 83 of this Decree shall be handled by the procuring entity.
Section 2. HANDLING VIOLATIONS
Article 85. Bid cancellation, bid suspension, refutation of investor selection result, invalidation of decisions of the competent authority, contract-signing authority, procuring entity
1. Bid cancellation is an action against violations of PPP laws and relevant laws committed by organizations and individuals participating in investor selection. The competent authority shall decide bid cancellation in the cases specified in Article 34 of PPP law.
2. Bid suspension means suspension of the bidding process before the investor selection result is approved when violations against PPP laws or relevant laws by the organizations and individuals participating in the investor selection are suspected which affect the achievement of the purposes of investor selection.
3. Refutation of investor selection result means cancellation of the investor selection result during the period from the day on which the investor selection result is approved to before the contract conclusion date if there is evidence that the organizations and individuals participating in the investor selection commits violations against PPP laws or relevant laws which alters the investor selection result.
4. Invalidation means cancellation of a decision that is issued by the competent authority, contract-signing authority or procuring entity against PPP laws and relevant laws.
Article 86. Prohibition from participating in PPP investment activities
1. Depending on the seriousness of the violation, an organization or individual can be prohibited from participation in PPP investment activities for:
a) 06 – 12 months for any of the violations specified in Clause 4 and Clause 5 Article 10 of PPP Law;
b) 01 – 03 years for any of the violations specified in Clause 7 and Clause 8 Article 10 of PPP Law;
c) 03 - 05 years for any of the violations specified in Clauses 3, 6, 9, 10, 11 and 12 Article 10 of PPP Law.
2. Authority to prohibit participation in PPP investment activities:
a) The competent authority shall issue decisions to prohibit organizations and individuals from participating in or involving in investment in PPP projects under its management; in case of serious violations, the competent authority shall request the Minister of Planning and Investment to issue the decision on prohibition from participation in PPP investment activities nationwide;
b) The Minister of Planning and Investment shall issue decisions to prohibit participation in PPP investment activities nationwide in the cases requested by the competent authority as prescribed in Point a of this Clause.
Tìm kiếm
Nghị định 35/2021/NĐ-CP (Bản Word)
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