Chương 12 Nghị định 58/2008/NĐ-CP: Các vấn đề khác

Chapter XII

OTHER ISSUES

Article 67. Standard forms of tendering documents

1. Standard forms shall be stipulated for the following tendering documents: pre- qualification invitation documents applicable to tender packages for construction and installation; tender invitation documents and reports on assessment of tenders in tender packages for consultancy services, procurement of goods, and construction and installation; tendering plans; evaluation report on results of tendering, and for [some] other cases.

2. The Ministry of Planning and Investment shall be responsible for issuing standard tendering forms.

Article 68. Warranty

1. A contractor shall be responsible to provide a warranty for works in the case where the contract between the investor and the contractor contains construction items, and shall be responsible to provide a goods warranty in accordance with current regulations in a case where the contract between the investor and the contractor has contents regarding procurement of goods.

2. The contract must stipulate the items warranted, the term of the warranty, the relevant costs and expenses and the responsibilities of the parties (the investor and the contractor).

Article 69. Professional tendering organizations

A professional tendering organization as stipulated in article 9.3 of the Law on Tendering means an organization which is established and operates pursuant to the law on enterprises, the law on tendering and other relevant laws.

Article 70. Dealing with exceptional situations in tendering

Exceptional situations in tendering as stipulated in article 70 of the Law on Tendering shall be dealt with as follows:

1. If there are reasons requiring adjustment of the price or contents of a tender package, then the investor must conduct procedures to amend the tendering plan in accordance with law prior to the time for opening tenders, except for the case stipulated in clause 6 of this article.

2. If the estimated budget of a tender package is approved at a lower or higher sum than the approved tender package price, then the estimated budget shall replace the tender package price and provide the basis for consideration of results of selection of contractor without having to conduct procedures to adjust the tender package price in the approved tendering plan; if the estimated budget of a tender package approved by an investor is higher than the tender package price approved by the authorized person in the tendering plan, then the investor must ensure that the higher price is within the approved total invested capital of the project, otherwise an adjustment must be made to the total invested capital in accordance with law.

3. If after the deadline for submitting tenders, pre-qualification applications, expressions of interest or sets of proposals in the case of competitive quotations there are less than three tenderers who have lodged such documents, then the party calling for tenders must immediately provide notification (directly, by telephone, by email or by written notice) to the higher level authority to resolve the issue, within a maximum of 4 hours, in one of the following ways:

(a) By reporting to the person making the investment decision or to the person delegated with authority to make the investment decision (except in the case of competitive quotations for a package with a price below one billion dong as stipulated in sub-clause (b) below) to permit an extension of the deadline for submitting tenders, or to immediately open the tenders or equivalent documents already submitted in order to conduct an assessment of prices;

(b) By reporting to the investor to agree to extend the deadline for submission in the hope of attracting more tenderers, or to immediately open the sets of proposals in the case of a competitive quotation for a tender package with a price less than one billion dong in order to conduct an assessment of prices.

In a case of extending the deadline, there must be clear stipulations on the new deadline and on other corresponding time-limits to enable tenderers to amend or supplement their tenders, pre-qualification applications, expressions of interest or sets of proposals in accordance with the new requirements.

In the case of a tender package within the approval authority of the Prime Minister, the authority to make the decision in the above-mentioned case shall be the minister, head of the ministerial body or other central body, or chairman of the provincial people's committee related to the project. If the investor makes his report by telephone or directly, then thereafter the investor must complete the written procedures within ten (10) days after expiry of the deadline for submitting tenders, pre-qualification applications or so forth.

4. If a tender package is divided into a number of sections, then the tender invitation documents must specify the conditions for tenderers to make offers for them, and the methods and value of the tender guarantee for each or all of the sections of the package, and the methods for assessing prices for each or all of the sections, in order to enable tenderers to calculate their own methods of making offers depending on their capability.

An assessment of tender prices and approval of the winning tender shall be based on the principle that the total assessment price of a tender package is the lowest, and that the winning price for the entire tender package does not exceed the approved tender package price, without making any comparisons of the estimated costs of each section of the package.

If one or more sections of a tender package do not attract any participating tenders or if no tenderer satisfies the technical requirements, then the investor shall report to the person making the investment decision to make an adjustment to the tendering plan by separating such section or sections with the tender package price being the total estimated costs for such section/s; selection of a contractor for any such section and assessment of prices and satisfaction of technical requirements must still ensure that the total assessment price of such section is the lowest offered, and that the winning price for such section does not exceed the total estimated expenses for such section, without making a comparison with the estimated expenses of each section.

5. If a tender contains an abnormal unit price which puts the investor calling for tenders at a disadvantage, the party calling for tenders shall request the tenderer to provide a written explanation and clarification of such abnormal unit price. If the explanation provided by the tenderer is unclear or unconvincing, it shall be deemed to be a discrepancy and shall be adjusted as such in accordance with article 30 of this Decree the same as applicable to the adjustment of tender contents which are insufficient or excessive as compared to the requirements in the tender invitation documents. In the case of a tender package using ODA funds where the donor stipulates that the unit prices offered by tenderers may not be adjusted, if the party calling for tenders determines that unit prices in fact offered are abnormal and may affect the feasibility of performance of the contract, then the investor shall report to the person making the investment decision or the person delegated with authority to do so, to require the tenderer to increase the value of the guarantee for contractual performance to an amount of thirty per cent (30%) of the contract sum.

6. Applicable to tender packages for the procurement of goods, construction and installation, or for the selection of a general construction contractor (but not for selection of a general design contractor), if all the tender prices of tenderers exceed the approved tender package price after errors have been rectified and discrepancies adjusted, then the investor shall report to the person making the investment decision or the person delegated with authority to do so, to deal with the issue in one of the following ways:

(a) To permit the tenderers to make another offer on their tender prices;

(b) If necessary, at the same time as permitting tenderers to make another offer on their tender prices, to reconsider the approved tender package price and the contents of the tender invitation documents.

In the case referred to in sub-clause (a) above, the investor must specify time- limits for preparation and lodging new offers (within a maximum of 10 days) and specify provisions on opening of the new offers similar to the provisions on opening tenders in article 28.3 of this Decree. If it is necessary to adjust the tender package price in the approved tendering plan, then this must also be done within a maximum time-limit of 10 days from the date of receiving the report from the investor, and ensuring that it is done prior to closure of the deadline for submitting the new offers.

(c) To permit adjustment of the tender package price based on the lowest tender price of a tenderer after errors have been rectified and discrepancies have been adjusted, and to invite such tenderer to negotiate but ensuring that the post-negotiation price does not exceed the tender price of such tenderer after errors have been rectified and discrepancies adjusted. The person approving such adjustment to the tender package price shall be responsible for his decision and must ensure satisfaction of the following conditions:

- Open tendering applies to such tender package;

- Tendering is held in accordance with the regulations and ensures competitiveness and transparency;

- The increased tender package price does not exceed the approved total invested capital and does not adversely impact on the effectiveness of the project.

7. In a case where only one tender is evaluated as technically responsive (applicable to tender packages for the procurement of goods, construction and installation, or for the selection of a general construction contractor but not for selection of a general design contractor) it shall not be necessary to determine the assessment price but only to determine the proposed winning tender price in order to provide the basis for consideration of the results of winning contractor; if the proposed winning price exceeds the approved tender package price, then the matter shall be resolved in accordance with clause 6 above.

8. If the results are that two tenders have the same assessed price (regarding points scored or assessment prices) then consideration shall be given to awarding the contract to the tenderer with the proposed winning tender price which is lower, except in the case of preferences stipulated in article 4.2 of this Decree.

9. If the proposed contract signing price exceeds the approved winning tender price, then the investor must provide a written report to the person who made the investment decision or to the authorized person for the latter's consideration and decision.

10. If the proposed winning tender price provided by the investor or the evaluating body is abnormal or less than fifty (50) per cent of the tender package price or the estimated budget, then prior to approving the tendering results, the person who made the investment decision or the authorized person may provide appropriate measures such as establishment of a multi-sector evaluating body to conduct a more careful evaluation of the tender of such tenderer or to provide other appropriate measures in the contract in order to ensure feasibility of the implementation process.

11. If in a case of pre-qualification or selection of a list of tenderers to invite, there are less than three tenderers who satisfy the requirements, then depending on the specific conditions of each tender package, either one of the following two solutions shall apply:

(a) Report to the person making the investment decision to permit immediate issuance of the tender invitation documents to the tenderers who pre-qualified or to the tenderers on the list;

(b) The investor shall conduct an additional pre-qualification, or add further tenderers to the list of tenderers to be invited to participate. In such cases, the tenderers who already pre-qualified or who have been assessed as satisfying the requirements shall retain such results and shall not be required to re-submit pre-qualification applications or expressions of interest, but the party calling for tenders must require such tenderers to update their information on capability.

12. If the tender invitation documents permit a tenderer to propose other construction execution methods than those stipulated in the tender invitation documents, then such different proposals shall not be treated as errors or discrepancies to be adjusted pursuant to article 30 of this Decree; nor shall they be treated as errors or discrepancies within the meaning of article 45 of the Law of Tendering, so that tenders must not be rejected on this basis.

13. If during the process of assessment of tender prices a tenderer provides a letter reducing its price, then the assessment shall be conducted on the basis of the tender price recorded in the tender form after rectification of errors and adjustment of discrepancies, without regard to the reduction proposed in the letter. The total value after rectification of errors and adjustment of discrepancies shall be based on the tender price stipulated in the tender form.

If any exceptional situation arises other than the situations mentioned above, the investor must report to the person who made the investment decision or to the authorized person for the latter's consideration and decision.

Article 71. Documents to be submitted for approval of results of selection of contractor

On the basis of a consideration of the report on results of selection of contractor and the file for approval submitted by the party calling for tenders, the investor shall prepare a report and submit it to the person making the investment decision or the person delegated with authority to make the investment decision for the latter's consideration and decision. The documents submitted by the investor for approval of the results of selection of contractor shall include the report on results of selection of contractor and other relevant data.

1. The report on results of selection of contractor shall comprise:

(a) Legal basis for conducting the selection of contractor;

(b) Contents of the tender package;

(c) Process of holding the selection and assessment of tenders or sets of proposals;

(d) Proposal on results of selection of contractor, comprising:

- Name of proposed winning tenderer (including names of sub-contractors if necessary). In the case of a joint venture tenderer, the names of all members of the joint venture must be specified;

- Proposed winning tender price or proposed price for implementation of the tender package (including taxes, contingencies and inflation if any);

- Form of contract;

- Duration for performance of the contract.

If no tenderer is successful, there must be a plan for dealing with the next stage.

2. Relevant data shall comprise:

(a) Copies of the investment decision and documents on which the investment decision was based; business registration certificate, investment certificate or decision on establishment, international treaties or international agreements (if any); tendering plan;

(b) Tender invitation documents or set of requirements;

(c) Decision on establishment of the expert tendering group, or contract selecting the consultancy organization or professional tendering organization;

(d) List of tenderers who submitted tenders or sets of proposals, and minutes of opening of tenders;

(dd) All tenders or sets of proposals and documents clarifying, amending or supplementing same;

(e) Report assessing tenders or sets of proposals from the expert tendering group, consultancy organization or professional tendering organization;

(g) Approval documents as stipulated throughout the process of selection of contractor;

(h) Minutes of contract negotiation in the case of tender packages for consultancy services;

(i) Opinion on results of selection of contractor from the foreign donor organization (if any);

(k) Other relevant data.

Article 72. Evaluation of results of selection of contractor

1. Contents of an evaluation shall comprise:

(a) A check of the data which was the basis for the selection of contractor;

(b) A review of the procedures and time-limits applicable in accordance with regulations to selection of a contractor; the time-limit for publication of information on tendering, for issuing tender information documents and sets of requirements, the time-limit for preparation of tenders and sets of proposals, the deadline for closure of submission of tenders, the time for opening tenders and the time-limits for opening for receipt of, deadline for receipt of and assessing tenders and sets of proposals;

(c) A review of the contents of assessment of tenders and sets of proposals; of minutes of assessment of observations provided by each expert, of overall reports from the expert group, tendering consultant and any professional organization; a review of compliance by the assessment of tenders and sets of proposals with the requirements in the tender invitation documents and sets of requirements and approved assessment standards, and a review of the level of accuracy of the assessment;

(d) A detection of any unclear matters in the file submitting the results of selection of contractor for approval;

(dd) A review of any differences of opinion between the expert group, and between consultants or the professional organization [on the one hand] with the party calling for tenders [on the other hand].

2. An evaluation report shall contain the following main particulars:

(a) An overall view and the main contents of the project and the tender package, and the legal basis for holding selection of contractor;

(b) A summary of the process of holding the tendering and proposals from the body submitting the results of selection of contractor for approval;

(c) Observations on the legal bases for the process of holding the tendering, and on the proposals of the body making the submission for approval;

(d) Opinion on the results of selection of contractor or measures for resolving a case where there are insufficient bases for the conclusion on results of selection of contractor.

3. The evaluation report stipulated in clause 2 of this article shall be sent simultaneously to the person making the investment decision, the investor and the party calling for tenders.

Article 73. Administration of foreign contractors

1. A foreign contractor, after being selected to implement a tender package in the territory of Vietnam, must comply with the provisions of the law of Vietnam on entry and exit, import and export of goods, registration of residence, and with the accounting and tax regimes and other relevant provisions of the law of Vietnam unless an international treaty of which Vietnam is a member contains different provisions or unless there are different provisions in an international treaty which an authorized body or organization of the Socialist Republic of Vietnam has signed.

2. Within fifteen (15) days from the date on which a contract signed with a foreign contractor takes effect, the investor of the project shall be responsible to provide a written report or to send an email (on the standard form in Appendix 2 issued with this Decree) to the Ministry of Planning and Investment and also to the ministry managing the relevant industry namely the Ministry of Construction in the case of construction and installation, and the local Department of Planning and Investment in the case of a project managed by a locality, in order for these latter authorities to monitor such project.

Article 74. Checks of tendering activities

1. The Ministry of Planning and Investment shall have the main responsibility to conduct checks of tendering activities throughout the whole country. Ministries, ministerial equivalent bodies, Government bodies, other central bodies, local bodies, and people's committees at all levels shall be responsible to conduct checks of tendering activities by entities within the scope of their administration and of projects for which such above- named ministry or body made the investment decision.

2. Checks of tendering activities shall be conducted on a regular basis in accordance with plans, or on a random basis (when there are difficulties or complaints) in accordance with a decision made by the authorized person of the inspecting body.

3. The contents of a check of tendering activities shall comprise:

(a) A check of training certificates and of professional certificates of senior staff and tendering experts, and of the legal documents forming the basis for the process of selection of contractor.

(b) A check of formulation of the tendering plan with the following items:

- Legal basis;

- Contents of the tendering plan, the legality of the division of a tender package, and the legality of the form of selection of contractor applicable to the particular tender package;

- Progress of implementation of the tender package in accordance with the approved tendering plan; and any amendments to the tendering plan and the reasons for same;

- Submission of tendering plan for approval and the approval.

(c) A check of the holding of selection of contractor in order to implement a tender package with the following items:

- Compliance with the approved legal bases being the tendering plan, tender invitation documents or set of requirements;

- Implementing procedures and time schedules.

(d) Identification of any problems during tendering work and proposals on measures to remedy same.

4. On the conclusion of any check, there must be a report on the results of the check. The inspecting body shall be responsible to monitor any measures taken to remedy problems stipulated in the conclusions in such report.

5. A report on a check shall comprise the following items:

(a) Legal basis;

(b) Results of the check;

(c) Observations;

(d) Recommendations.

Article 75. Supervision of tendering activities by the community

Supervision of tendering activities by the community shall be implemented in accordance with the law on supervision of investment by the community.