Chương 4 Nghị định 58/2008/NĐ-CP: Đấu thầu rộng rãi và đấu thầu hạn chế đối với gói thầu dịch vụ tư vấn

Chapter IV

OPEN TENDERING AND LIMITED TENDERING APPLICABLE TO TENDER PACKAGES FOR CONSULTANCY SERVICES

Section 1. PROVISIONS APPLICABLE TO TENDERERS WHICH ARE ORGANIZATIONS

Article 15. Preparation for tendering

1. Selection of the list of tenderers to invite to participate in tendering

Depending on the nature and specific conditions of each tender package, an investor conducting open tendering may immediately put out his notice inviting submission of tenders as stipulated in Clause 4 of this article or apply the procedures for selection of a list of consultants to invite to participate in the tendering, but the person making the investment decision must approve such items in the tendering plan. The procedures for selecting a list of consultants to invite to participate in tendering shall be conducted as follows:

(a) Applicable to open tendering

- The investor shall approve the request for expressions of interest with the following contents, namely requirements on capability and number of experts; requirements on financial capability, and requirements on experience.

- The criteria for assessment of expressions of interest shall be formulated on the basis of the criterion of pass or fail which must be set out in the request for expressions of interest, and shall include criteria applicable to the requirements on expertise and number of experts, and criteria on experience.

- A notice inviting expressions of interest must be published in three (3) consecutive editions of the Tendering Newsletter and on the tendering website; in the case of international tendering, the notice must also be published in an English newspaper which is widely circulated. After the afore-mentioned publications have been completed, a notice may also be published on other mass media.

- The request for expressions of interest shall be provided free of charge by the party calling for tenders to tenderers wishing to participate, from the date of first publication of the request for expressions of interest until the day before expiry of the deadline for submitting expressions of interest.

- The minimum time-limit for tenderers to prepare expressions of interest shall be fifteen (15) days in the case of domestic tendering and twenty (20) days in the case of international tendering, from the date of the first publication of the notice inviting expressions of interest.

- The party calling for tenders shall evaluate expressions of interest on the basis of the assessment criteria and submit a list of tenderers to be invited to participate in the tendering to the investor for approval.

(b) Applicable to limited tendering

The party calling for tenders shall select a minimum of 5 tenderers deemed to have sufficient capability and experience (in accordance with article 19 of the Law on Tendering) and who wish to participate in the tendering, and submit such list to the investor for his approval before inviting the tenderers to participate. If in fact there are less than 5 tenderers, then the investor shall report to the person making the investment decision or to the person delegated with authority to make the investment decision to decide to either immediately invite the tenderers who are in fact on the list, or to extend the time in order to seek other interested tenderers. If the time is extended but it is still impossible to find other interested tenderers, then the investor shall invite the present tenderers to participate in the tendering.

2. Preparation of tender invitation documents

(a) Bases for formulation of tender invitation documents

- The investment decision and the documents which served as the bases for the investment decision; the business registration certificate, and the investment certificate.

- The approved tendering plan.

- Provisions of the law on tendering and other relevant laws; international treaties or international agreements (if any) in the case of ODA financed projects.

- State policies on tax, wages, and preferences in international tendering or other relevant provisions.

If a tender package requires to be implemented before there is an investment decision, then the organization assigned the task of project preparation shall rely on the relevant documents in order to prepare the tender invitation documents and submit them to the head of the organization preparing the project for his approval.

(b) Contents of tender invitation documents

The tender invitation documents shall contain the items stipulated in article 32.2 of the Law on Tendering and shall be on the standard form issued by the Ministry of Planning and Investment, and must include the important requirements (pre- requisites) in order to eliminate tenders, specifically as follows:

- Any tenderer whose name is not on the list of tenderers who purchased tender invitation documents or who does not satisfy the conditions stipulated in article 17.2 of this Decree.

- Any tenderer who does not satisfy the conditions on eligibility stipulated in articles 7 and 8 of the Law on Tendering.

- Any tenderer who does not satisfy the conditions on capability stipulated in the Law on Construction.

- Any tenderer who does not provide original documents in its tender.

- Any tender submitted on an invalid tender form.

- Any tender in which the period of validity of the tender does not satisfy the requirements stipulated in the tender invitation documents.

- Any tenderer whose name appears in two or more tenders as the principal contractor (either as an independent contractor or as a member of a joint venture).

- Any tenderer who conducts a prohibited act as stipulated in article 12 of the Law on Tendering.

- Other important requirements particular to the tender package.

Any tenderer who breaches one of the pre-requisites set out in the tender invitation documents shall be eliminated and its tender shall not be considered further.

3. Approval of tender invitation documents

The person authorized to make the investment decision shall approve or authorize the investor to approve the tender invitation documents in accordance with article 60 of the Law on Tendering on the basis of the evaluation report from the evaluating body or organization.

4. Invitation to submit tenders

(a) Notice inviting submission of tenders

If the procedures for selecting a list of consultants to invite to participate in tendering are not applied, then the investor shall issue a notice inviting submission of tenders in the standard form issued by the Ministry of Planning and Investment and publish it in three (3) consecutive editions of the Tendering Newsletter and on the tendering website; in the case of international tendering, the notice must also be published in an English newspaper which is widely circulated.

In addition to the afore-mentioned publications, the notice may also be published on other mass media.

(b) Sending a letter inviting tenders

The party calling for tenders shall send a letter inviting submission of tenders to all tenderers on the list of tenderers invited to participate in the tendering as stipulated in clause 1 above.

The contents of the letter inviting submission of tenders shall be in accordance with the standard form set out in Appendix I issued with this Decree. The time- limit from the date of sending the letter inviting submission of tenders until the date of issuance of the tender invitation documents shall be a minimum of five (5) days in the case of domestic tendering and seven (7) days in the case of international tendering.

Article 16. Criteria for assessment of tenders

1. In the case of tender packages for consultancy services including construction consultancy services in accordance with the Law on Construction without high technical requirements:

(a) Assessment criteria of the following technical matters shall be carried out by the method of marking a points score (100 points, 1,000 points or so forth) in order to formulate assessment criteria of the following items:

- Experience and capability of the tenderer. The percentage of this item shall be stipulated as from ten (10) to twenty (20) per cent of the total points.

- Solution and methodology to be applied to the requirements of the tender package. The percentage of this item shall be stipulated as from thirty (30) to forty (40) per cent of the total points.

- Personnel of the tenderer who will perform the tender package. The percentage of this item shall be stipulated as from fifty (50) to sixty (60) per cent of the total points.

Assessment criteria as stipulated in the tender invitation documents must stipulate a level of minimum technical requirements which shall not be less than seventy (70) per cent of the total points. Any tender which scores technical points not less than the minimum required technical points shall be deemed technically responsive.

(b) Assessment criteria of financial matters

Assessment of financial matters shall be carried out by the method of marking a score (100, 1,000, …) in uniformity with the criteria for assessing technical matters. The financial score of each tender shall be determined as follows:

In which:

+ Lowest P means the tender price of all tenderers who have been deemed technically responsive after errors have been rectified and discrepancies have been adjusted.

+ P in question means the tender price of the tender in question after errors have been rectified and discrepancies have been adjusted.

(c) Criteria for overall assessment

- The criteria for an overall assessment shall be stipulated on the basis of the criteria for assessment of technical matters and the criteria for assessment of financial matters, in which the weight of technical points shall be stipulated as not less than seventy (70) per cent of the total points and the weight of financial points shall be stipulated as no higher than thirty (30) per cent of the total points.

- The overall points of any one tender shall be determined in accordance with the following formula:

Overall points = D technical x (K%) x D financial x (G%) In which:

+ K% is the weight of technical points (stipulated in the criteria for the overall assessment);

+ G% is the weight of financial points (stipulated in the criteria for the overall assessment);

+ D technical means the points awarded to the tender and determined at the stage of technical assessment in accordance with sub-clause (a) above;

+ D financial means the points awarded to the tender and determined at the stage of financial assessment in accordance with sub-clause (b) above.

2. For tender packages for consultancy services including tender packages for construction consultancy services in accordance with the Law on Construction with high technical requirements:

The assessment criteria of technical matters shall be stipulated in accordance with clause 1(a) of this article in which the minimum requirement on technical matters shall be stipulated as no lower than eighty (80) per cent of the total technical points.

Article 17. Holding tendering

1. Issuance of tender invitation documents

(a) The party calling for tenders shall sell the tender invitation documents, up until the deadline for [closure of] submission of tenders, to all tenderers who wish to participate in open tendering in a case of not applying procedures to select a list of tenderers to be invited to participate in tendering), or to the tenderers on the list of tenderers invited to participate in either open tendering or limited tendering, at the price stipulated in article 6.1 of this Decree. In the case of a joint venture tender, it shall be acceptable for only one member of the joint venture to purchase the tender invitation documents.

(b) Any amendment to or clarification of the tender invitation documents shall be made in accordance with articles 33.1 and 34 of the Law on Tendering.

2. Preparation of tender invitation documents

Tenderers shall prepare and submit their tenders in accordance with the requirements set out in the tender invitation documents. If any tenderer needs to change its status (name) to participate in the tendering from its name when it purchased the tender invitation documents, such tenderer must provide written notice to the party calling for tenders who shall only consider such notice if:

- Applicable to open tendering, he approves the change of status on receipt of the written notice thereon from the tenderer prior to the closing of tenders;

- Applicable to limited tendering, [if the change is notified] after the stage of selection of a list of tenderers to participate in tendering then depending on the specific case, the party calling for tenders shall consider the proposed change of name and report to the investor to make a decision on accepting or not accepting the change of status of the tenderer prior to closing of tenders, but ensuring competitiveness, fairness and transparency during tendering.

3. Receipt and management of tenders

The party calling for tenders shall receive tenders which have been submitted and shall treat them as confidential. Any tender submitted to the party calling for tenders after the deadline for submission of tenders shall be deemed ineligible and shall be returned to the tenderer unopened. Any document amending or supplementing the tender which is submitted by a tenderer after the deadline for submission of tenders shall be deemed invalid.

4. Amendment or withdrawal of tenders

Any tenderer wishing to amend or withdraw its submitted tender must provide written notice to the party calling for tenders, and the latter shall only accept such notification if it is received prior to the deadline for submission of tenders. Any request for withdrawal of a tender must be submitted separately from the tender.

5. Opening of technical proposals

(a) The opening of technical proposals shall be conducted publicly, immediately after expiry of the deadline for submission of tenders and on the date and time and at the place stipulated in the tender invitation documents, and shall be witnessed by persons present irrespective of the presence or absence of invited tenderers. The party calling for tenders may invite representatives of relevant bodies to the opening.

(b) The party calling for tenders shall open the technical proposal of each tenderer in alphabetical name order and in accordance with the following sequence:

- Check the sealing up of the tender;

- Open the technical proposal and read out and record in minutes the following basic information:

+ Name of the tenderer;

+ Number of originals and copies of the tender;

+ Validity period of the tender;

+ Any written request for amendment of the tender;

+ Other relevant information.

The minutes of opening of tenders shall be signed by representatives of tenderers, the representative of the party calling for tenders, and representatives of relevant bodies which are present.

After opening, the party calling for tenders shall sign each page of the original technical proposal of each tender and shall treat them as confidential. Assessment of technical proposals shall be carried out using copy documents. Tenderers shall be responsible for the accuracy of and consistency between copies and original documents, and also for the sealing up of their tenders.

Article 18. Assessment of tenders

Assessment of tenders for tender packages for consultancy services including tender packages

for construction consultancy services in accordance with the Law on Construction shall be based on the criteria for assessment of tenders and other requirements stipulated in the tender invitation documents and on the principles stipulated in article 28 of the Law on Tendering, and shall be conducted in the sequence stipulated in article 35 of the Law on Tendering as follows:

1. Preliminary assessment

(a) A check that the technical proposals are valid in terms of the requirements set out in the tender invitation documents.

- Validity of tender form: The tender form must be completed in full and bear the signature of the legal representative of the tenderer in accordance with the requirements set out in the tender invitation documents. The tender form of a joint venture tenderer must be signed by the legal representative of each member of the joint venture, or only by the leading member if the joint venture agreement stipulates that all members of the joint venture authorize the leading member to sign tender forms.

- Validity of the joint venture agreement: A joint venture agreement must specify the responsibilities, powers and quantity of work to be implemented by each member of the joint venture and the corresponding value of such work, must specify the leading member of the joint venture and the responsibilities of such member, and the agreement must be signed and sealed (if any) by members of the joint venture.

- There must be one of the following valid documents as required by the tender invitation documents: business registration certificate, investment certificate, decision on establishment; certificate of lawful registration of operation; and appropriate professional [practising] certificates.

- Number of originals and copies of the technical proposal.

- Appendices and documents attached to the tender.

b) Elimination of tenders which fail to satisfy the important requirements ( pre-requisites) set out in the tender invitation documents pursuant to article 15.2(b) of this Decree.

2. Detailed assessment

(a) For tender packages for consultancy services including tender packages for construction consultancy services in accordance with the Law on Construction without high technical requirements:

- Technical assessment

A technical assessment of tenders shall be held in order to confirm which tenders satisfy the requirements of the tender invitation documents. The investor shall approve a list of the tenderers satisfying the technical requirements in order to conduct an assessment of financial matters.

- Financial assessment

There shall be a public opening of the financial proposals of the tenderers who satisfied the technical requirements in the sequence stipulated in article 17.5(b) of this Decree. The minutes of opening of technical proposals shall include the following basic information:

+ Name of the tenderer;

+ Number of originals and copies of the tender;

+ Tender price stipulated in the tender form;

+ Technical points of tenders which satisfied the minimum requirements;

+ Other relevant information.

After opening tenders, the party calling for tenders shall sign each page of the original financial proposal of each tender and shall treat the tenders as confidential. Assessment of financial proposals shall be carried out using copy documents. Tenderers shall be responsible for the accuracy of and consistency between copies and original documents, and also for the sealing up of their financial proposals. Assessment of financial proposals shall be based on the criteria for assessment of financial proposals stipulated in the tender invitation documents.

- Overall assessment

An overall assessment shall be conducted of technical and financial matters in accordance with the criteria for the overall assessment stipulated in the tender invitation documents. The party calling for tenders shall propose to the investor that the tenderer with the highest overall points be ranked first and be invited to negotiate a contract in accordance with article 19 of this Decree.

(b) For tender packages for consultancy services including tender packages for construction consultancy services in accordance with the Law on Construction with high technical requirements:

Assessment of technical matters shall be conducted in accordance with the criteria stipulated in the tender invitation documents and in accordance with clause 2(a) above. Tenders with technical points no lower than the minimum required points shall be assessed as technically responsive and ranked by the party calling for tenders for approval by the investor. The first ranked tenderer shall be invited to witness the opening of the financial proposal and to negotiate a contract as stipulated in article 19 of this Decree.

Article 19. Negotiation of the contract

1. Based on the decision of the investor, the party calling for tenders shall invite the first ranked tenderer to negotiate the contract.

2. Contents of contract negotiation

(a) Tasks of the consultancy contractor and detailed items of work the consultancy contractor is required to implement;

(b) Items on technology transfer and training;

(c) Work plan and allocation of staff;

(d) Schedule;

(dd) Resolution of changes (if any) of staff;

(e) Arrangement of working conditions;

(g) Consultancy fees;

(h) Any other necessary matters.

If negotiation of the contract is unsuccessful, the party calling for tenders shall provide a report to the investor for the investor to consider and decide on inviting the next ranking tenderer to conduct negotiations.

Article 20. Submission for evaluation, approval and notification of the results of tendering

1. Submission for evaluation of the results of tendering for consultancy services packages shall be implemented in accordance with articles 37 and 39 of the Law on Tendering and articles 71 and 72 of this Decree.

2. Approval of the results of tendering shall be implemented in accordance with article 40 of the Law on Tendering.

3. Notification of the results on tendering shall be implemented in accordance with article 41 of the Law on Tendering and more specifically, immediately after there is a decision approving the results of tendering, the party calling for tenders shall provide written notification of the results of tendering to all participating tenderers, and must also send the plan for negotiation and finalization of the contract to the winning tenderer.

Article 21. Negotiation, finalization and signing of the contract

1. The negotiation, finalization and signing of the contract shall be implemented in accordance with article 42 and Chapter III of the Law on Tendering, and Section II of Chapter IV on the Law of Construction.

2. If negotiation and finalization of the contract is unsuccessful, the investor shall report to the person making the investment decision to rescind the decision approving the results of tendering and to consider and make a decision to select the next ranking tenderer to negotiate a contract in accordance with article 19 of this Decree, and in such case there may be a requirement that the tenderer extend the validity of its tender. The subsequent steps shall be implemented in accordance with articles 20 and 21 of this Decree.

Section 2. PROVISIONS APPLICABLE TO TENDERERS WHO ARE INDIVIDUAL CONSULTANTS

Article 22. Selection of a consultant contractor who is an individual

Depending on the nature, contents and scope of the consultancy work, the investor may consider an individual expert consultant who is able to accept work independently without requiring a number of experts or without requiring expert assistance from some other individual or organization, or where use of an individual consultant would be advantageous, and then the investor shall report to the person making the investment decision to approve such item in the tendering plan. Selection shall be carried out as follows:

1. The party calling for tenders shall formulate draft terms and conditions for reference and a draft contract for the necessary consultancy position and submit same to the investor for his consideration and approval. The draft terms and conditions for reference shall comprise:

(a) A summarized description of the project and of the consultancy work;

(b) Requirements on the scope, quantity and volume of work and time for performing same;

(c) Requirements on capability and expertise of the consultant;

(d) Conditions and location for providing the consultancy work and any other necessary items.

2. The party calling for tenders shall select at least three scientific curriculum vitae of three consultants who would comply with the requirements set out in the draft terms and conditions, and submit them to the investor for his approval; if in fact there are less than three proposed consultants, then this should also be reported to the investor for his decision.

3. The party calling for tenders shall assess the scientific curriculum vitae of the proposed consultants on the basis of the items set out in the draft terms and conditions for reference in order to select an expert who satisfies the requirements and then submit same to the investor for his decision.

4. The party calling for tenders shall conduct negotiations with the consultant proposed to be selected on the basis of the draft contract, the draft terms and conditions for reference, and other relevant information.

5. The investor shall, on the basis of the report received from the party calling for tenders, approve the results of selection and sign a contract with the selected consultant.