Chapter XI
DEALING WITH BREACHES OF THE LAW ON TENDERING
Article 63. Principles for dealing with breaches
1. Any organization or individual who acts in breach of the Law on Tendering shall, depending on the seriousness of the breach, be subject to a disciplinary penalty or one or more of the following penalties: a warning, a fine, and prohibition from participating in tendering activities. Any State employee who breaches the Law on Tendering shall be dealt with in accordance with the law on State employees.
2. The principles and procedures for dealing with breaches and the procedures for enforcement of penalty decisions shall be implemented in accordance with law.
3. A decision imposing a penalty must be sent to the organization or individual subject to the penalty, to the Ministry of Planning and Investment and to other relevant bodies and organizations.
4. A penalty decision to be implemented in any one locality or within any one industry shall be of full force and effect throughout the entire country and within all industries.
5. Any organization or individual subject to a penalty for a breach of the Law on Tendering shall have the right to institute court proceedings.
Article 64. Jurisdiction to deal with breaches of the Law on Tendering
1. The person making the investment decision shall be responsible to deal with breaches of the Law on Tendering in projects for which he made the investment decision pursuant to article 60 of the Law on Tendering. If the person making the investment decision breaches the Law on Tendering, such person shall be dealt with in accordance with law.
2. The Ministry of Planning and Investment shall be responsible to monitor dealing with breaches of the Law on Tendering and to make decisions prohibiting participation in tendering activities applicable to any organization or individual who is subject to a warning on five (5) or more consecutive occasions in accordance with article 66.4 of this Decree.
Article 65. Forms of penalty
Depending on the seriousness of the breach, any organization or individual in breach of the Law on Tendering as stipulated in article 75.1(b) of the Law on Tendering shall be subject to the following fines:
1. A fine of from five million (5,000,000) to twenty million (20,000,000) dong for one of the following breaches:
(a) Formulating, evaluating or approving tender invitation documents or a set of requirements not in conformity with the Law on Tendering and leading to the tendering having to be rescinded;
(b) Assessing a tender or set of proposals, or evaluating or approving results of selection of contractor other than on the basis of the requirements in the tender invitation documents and set of requirements and other than on the relevant assessment criteria, leading to an incorrect result of selection of contractor or leading to the tendering having to be rescinded;
(c) Signing a contract which fails to comply with the law, leading to loss to the interests of the State;
(d) Other acts resulting in the tendering having to be re-held such as holding tendering without an approved tendering plan, approved tender invitation documents or approved set of requirements.
2. A fine of from twenty million (20,000,000) to fifty million (50,000,000) dong for one of the following breaches:
(a) Making an arrangement or collusion as between tenderers; as between a tenderer and the investor, the party calling for tenders, the expert tendering group, or the consultant preparing the tender invitation documents, the evaluating body or organization and/or the person approving the results of selection of contractor in order to provide an incorrect result of selection of contractor, leading to the tendering having to be rescinded or resulting in selection of a contractor who fails to satisfy the conditions on capability as stipulated in article 10.3 of the Law on Construction.
(b) A contractor performing a contract for supply of goods or for construction and installation colludes with the consultant supervising contractor or with the body or organization carrying out test and acceptance in order to incorrectly certify the quality and quantity of the works or goods.
3. In addition to causing loss to the interests of relevant parties stipulated in clauses 1 and 2 of this article, any other consequences causing loss or any other conduct in breach shall also be subject to a fine in accordance with the relevant law.
Article 66. The form of penalty of prohibition from participating in tendering activities
Prohibition from participating in tendering activities shall be applied depending on the seriousness of the breach, and specifically as follows:
1. Prohibition from participating in tendering for a period of from six (6) months to one year for any one of the following breaches:
(a) A breach of article 12.4 of the Law on Tendering;
(b) A breach of article 12.5 of the Law on Tendering, and specifically if the organization or individual preparing, evaluating or approving tender invitation documents for a tender package for the procurement of goods, or for construction and installation, or for selection of a general construction contractor includes in such tender invitation documents a requirement on a specific brand name or country of origin of goods;
(c) An individual belonging to the investor, the party calling for tenders, the expert tendering group, the tendering consultant or the evaluating body or organization breaches article 12.9 of the Law on Tendering;
(d) A breach of article 12.6 of the Law on Tendering;
(dd) A breach of article 12.7 of the Law on Tendering, and specifically if the person making the investment decision permits division of a project into tender packages contrary to the provisions in article 6.4 of the Law on Tendering in order to conduct direct appointment of a contractor or to enable only a limited number of tenderers to participate;
(e) A breach of article 12.8 of the Law on Tendering, and specifically if the investor or party calling for tenders accepts and proposes the winning tender of a tenderer participating in tendering for the supply of goods, or for construction and installation in a tender package belonging to a project for which such tenderer previously supplied consultancy services except for an EPC tender package, or a tender package for the selection of a general design and construction contractor, or for a general turn-key contractor;
(g) A breach of article 12.10 of the Law on Tendering, and specifically if an individual directly participates in tendering or in the assessment of tenders when such individual belongs to the investor, the party calling for tenders, is a member of the expert tendering group, is a tendering consultant; or is an individual directly participating in evaluation of results of selection of contractor and belongs to the evaluating body or organization or is the person who signed the decision on results of selection of contractor, and fails to withdraw from such assigned task when the person who signed a tender form was a relative of such individual (a natural parent, parent-in-law, spouse, natural or adopted child, son or daughter in law, or sibling);
(h) A breach of article 12.11 of the Law on Tendering, and specifically any organization or individual belonging to the party calling for tenders, the investor, the State Treasury, the financial management body, the bank or the body conducting test and acceptance who causes difficulty during procedures for capital drawdown or accounting finalization pursuant to a contract signed between an investor and a contractor;
(i) A breach of article 12.13 of the Law on Tendering, and specifically any person who signs a tender form as the tenderer for a tender package belonging to a project of an organization or body for which such person worked within a period of one year from the date on which such person ceased to work for such body or organization; or any person who makes a decision on the winning tender awarded to a tenderer when the person who signed the tender form belonged to one of the above-mentioned bodies or organizations and a period of one year has not expired since the signatory received the decision on termination of work from such body or organization;
(k) A breach of article 12.16 of the Law on Tendering, and specifically approval of the form of selection of contractor in the tendering plan other than open tendering when the conditions stipulated in articles 19 to 24 inclusive of the Law on Tendering and in articles 100 and 101 of the Law of Construction have not been satisfied;
(l) A breach of article 12.17 of the Law on Tendering when the person making the investment decision approves a tendering plan permitting the holding of tendering when the financing source for the tender package has not yet been determined; or the person making the investment decision approves results of selection of contractor without a credit undertaking in cases where the tendering plan permits tenderers to arrange their own financing sources.
2. Prohibition from participation in tendering for a period of from one to three years applicable to one of the following breaches:
(a) A breach of article 12.2 of the Law on Tendering, specifically an individual using his or her rights or influence to compel the investor, party calling for tenders, expert tendering group, tendering consultants, or body or organization evaluating results of selection of contractor to propose a winning tender inconsistent with the requirements set out in the tender invitation documents and the assessment criteria stipulated in such tender invitation documents;
An individual directly assessing a tender or evaluating results of selection of contractor who deliberately makes a false report or provides untruthful information resulting in an incorrect result of selection of contractor, and incorrect signing and performance of the contract;
Any tenderer who deliberately provides false information in its tender resulting in an incorrectresult of selection of contractor, and incorrect signing and performance of the contract.
(b) A breach of article 12.14 of the Law on Tendering, and specifically:
A tenderer who uses its name, signature or seal to legalize a tender in artificial tendering aimed at allowing another tenderer to win the tendering;
A tenderer who permits another tenderer to use the former's name, signature or seal; a tenderer who uses the name, signature or seal of another tenderer in order to create a joint venture tender but after winning the tendering fails to implement the terms of the joint venture agreement; but excluding cases where the contract contains some other provision;
A tenderer transfers ten (10) per cent or more of the contracted work (after deducting the work to be undertaken by sub-contractors) to another tenderer, except in a case where there is a reasonable reason for doing so and the person making the investment decision so permits;
The investor or the consultant supervising contractor agrees to a tenderer transferring contracted work without permission from the person making the investment decision, except for the work which is the responsibility of sub- contractors as declared in the contract.
(c) A breach of article 12.15 of the Law on Tendering.
3. Prohibition from participating in tendering for a period of from three to five years in the case of any one of the following breaches:
(a) A breach of article 12.1 of the Law on Tendering;
(b) A breach of article 12.3 of the Law on Tendering;
(c) A breach of article 12.12 of the Law on Tendering.
4. Any organization or individual subject to five consecutive warnings shall be prohibited from participation in tendering for a period of six (6) months. If such organization or individual continues to commit a further breach of the Law on Tendering on a further two occasions, the offender shall be prohibited from participation in tendering activities for one, two or three years.
Tìm kiếm
Nghị định 58/2008/NĐ-CP (Bản Word)