Chương 5 Nghị định 58/2008/NĐ-CP: Đấu thầu rộng rãi và đấu thầu hạn chế đối với gói thầu mua sắm hàng hóa, xây lắp

Chapter V

OPEN TENDERING AND LIMITED TENDERING APPLICABLE TO TENDER PACKAGES FOR PROCUREMENT OF GOODS, AND FOR CONSTRUCTION AND INSTALLATION

Section I. ONE-PHASE TENDERING

Article 23. Preparation for tendering

1. Pre-qualification shall be implemented in accordance with Chapter III of this Decree.

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; business registration certificate; investment certificate;

- Approved tendering plan;

- Design data enclosing the approved estimated budget (in the case of a tender package for construction and installation);

- In the case of projects funded by ODA, regulations of the law on tendering and other relevant laws, and international treaties or international agreements (if any);

- Policies of the State on tax, wages, preferences in domestic tendering or other relevant regulations.

(b) Contents of tender information documents

- Tender invitation documents must comprise the items stipulated in article 32.2 on

the Law on Tendering and shall be on the standard form issued by the Ministry of Planning and Investment. In the case of a tender package for which pre- qualification has been conducted, the tender invitation documents need not include criteria for assessment of experience and capability of the tenderer, but must stipulate a requirement that tenderers reconfirm information on their capability and experience which was declared in their prequalification applications.

- Tender invitation documents should not stipulate requirements on brand names and country of origin of goods in accordance with article 12.5 of the Law on Tendering. In special cases where it is necessary to mention the brand name or catalogue of a certain manufacturer or that goods originate from a certain country for purposes of reference and illustration of the technical requirements of the goods, the words "or similar" must be added after the stipulated brand name, catalogue or origin of goods, and the concept of "similar" must be defined so that goods have similar technical specifications and usage as the mentioned goods. In the case of special or complex goods, there shall be a requirement that tenderers submit sales authorizations within the copyright of manufacturers.

- The tender invitation documents must include important requirements (pre- requisites) in order to eliminate tenders on the following specific grounds:

+ Any tenderer whose name does not appear on the list of tenderers purchasing tender invitation documents or who does not satisfy the provisions stipulated in article 28.2 of this Decree.

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

+ Any tenderer who has not provided a tender guarantee or who has provided an invalid guarantee, for example at a lower value or not in the currency stipulated, or with a shorter period of validity than that stipulated, or where the guarantee was not lodged at the address and within the time-limit stipulated in the tender invitation documents, or where the guarantee is not in the name of the tenderer (in cases referred to article 32 of this Decree), or where the guarantee is not an original document or bears ineligible signatures (in the case of a letter of guarantee from a bank or credit institution).

+ There is no original of the tender.

+ The tender form is invalid.

+ The period of validity of the tender does not satisfy the requirements in the tender invitation documents.

+ The tender fails to include a fixed tender price, or makes offers at different unit prices or with conditional prices which are disadvantageous to the investor.

+ Any tenderer with its name on two or more tenders as the principal tenderer (both as an independent tenderer and as a member of a joint venture).

+ Any tenderer who fails to satisfy the requirements on capability in accordance with article 7 of the Law on Construction.

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

+ Failure to satisfy other important requirements particular to the tender package.

Any tenderer in breach of one of the pre-requisites stipulated in the tender invitation documents shall be eliminated and its tender shall not be considered further.

3. Approval of tender invitation documents

Approval of tender invitation documents shall be implemented in accordance with article 15.3 of this Decree.

4. Invitation to submit tenders

(a)  Notice inviting submission of tenders

A notice inviting submission of tenders in the case of open tendering without pre- qualification must be published, on the standard form issued by the Ministry of Planning and Investment, 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 of letters inviting submission of tenders

Applicable to limited tendering and to open tendering for which pre-qualification has been conducted, letters inviting submission of tenders shall be sent on the standard form in Appendix I issued with this Decree to tenderers on the list of

tenderers invited to participate in limited tendering or on the list of tenderers who have pre-qualified. The time-limit from the date of sending letters inviting submission of tenders until the date of issuance of 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 24. General provisions on assessment criteria on technical matters

1. Use of a point score

(a) A maximum point score (100, 1,000 or so forth) shall be formulated as the assessment criteria of technical matters. The contents of the assessment criteria of technical matters in the case of a tender package for procurement of goods or for construction and installation shall be as stipulated in articles 25.2 and 26.2 of this Decree. The minimum points for technical matters shall be stipulated depending on the nature of each tender package but must be not less than seventy (70) per cent of the total points for technical matters, and in the case of tender packages with high technical requirements must be not less than eighty (80) per cent of the total points for technical matters.

In the case of a tender package for the selection of a general construction contractor (but not for selection of a general design contractor) there shall also be a requirement that the minimum points for each item of work shall not be less than seventy (70) per cent of the corresponding total points.

(b) In the case of tender packages for procurement of goods or for construction and installation, tenders shall be deemed technically responsive when they gain points not lower than the minimum required points for technical matters.

In the case of a tender package for the selection of a general construction contractor (but not for selection of a general design contractor) a tender shall be deemed technically responsive when it has been assessed for each item of work at not lower than the corresponding required minimum points and when its overall points for all items are not lower than the required minimum points for technical matters of the whole tender package.

2. Use of the pass and fail criterion

(a) Assessment criteria

The contents of the criterion for assessment of technical matters of tender packages for procurement of goods or for construction and installation shall be as stipulated in articles 25.2 and 26.2 of this Decree. The level of requirement applicable to each content shall depend on the nature of the tender package. Only the criterion of pass and fail may be used for contents deemed to be basic requirements of the tender invitation documents. With respect to items which are not basic requirements, in addition to the pass and fail criterion, it shall be permitted to use the "acceptable" criterion but this may not exceed thirty (30) per cent of the total requirements in the assessment criterion.

(b) A tender shall be evaluated as technically responsive when all basic requirements are assessed as "pass", and the other non-basic requirements are assessed as either "pass" or "acceptable".

Article 25. Assessment criteria of tenders in the case of tender packages for procurement of goods

The criteria for assessing tenders in a tender package for procurement of goods shall comprise assessment criteria of the capability and experience of the tenderer, and assessment criteria of technical matters and the method for determining equal footing prices (assessment prices), specifically as follows:

1. The criteria for assessing the capability and experience of tenderers applicable to tender packages in which pre-qualification is not conducted, comprising:

(a) Experience implementing similar packages in Vietnam and in foreign countries; and experience in activities in the main manufacturing and business sectors;

(b) Capability for manufacture and business, technical infrastructure, and standard of expertise of personnel;

(c) Financial capability being total assets, total payable debts, liquid capital, revenue, profit, value of contracts currently being performed and other criteria.

A determination of the level of the specific requirements of each criterion stipulated in sub-clauses (a), (b) and (c) hereof shall depend on the requirements of each tender package.

The criterion for assessment of the items stipulated in this clause shall be the criterion of pass or fail and a tenderer who achieves a pass for all three (3) items stipulated in sub- clauses (a), (b) and (c) above shall be assessed as responsive in terms of capability and experience.

2. Assessment of technical matters

Assessment criteria of technical matters shall be formulated in accordance with article 24 of this Decree and shall include criteria on ability to satisfy requirements on quantity and quality of the goods set out in the tender invitation documents, specifically:

(a) Special characteristics and technical specifications of the goods, manufacturing standards and other matters;

(b) The rationality and economic efficiency of technical solutions, and of the method organized for supplying the goods;

(c) Capability to install equipment and the qualifications of technical personnel;

(d) Level of responsiveness regarding the warranty requirement;

(dd) Capability to adapt to the geographical location;

(e) Impact on the environment and the method for resolving same;

(g) Capability to provide finance (if so required);

(h) Other factors regarding commercial and financial conditions, time for implementation, and training on technology transfer (if any).

3. Determination of assessment price

Making a determination of the assessment price means making a determination of an equal footing price on the same technical, financial and commercial grounds and other factors in order to compare and rank the tenders. The method for determination of assessment prices must be stipulated in the tender assessment criteria. Making a determination of the assessment price shall be implemented in the following order:

- Determination of tender price;

- Rectification of errors;

- Adjustment of discrepancies.

- Conversion of the tender price (after rectification of errors and adjustment of discrepancies) to a common currency (if any) as a basis for determination of the assessment price;

- Putting costs on an equal footing to determine the assessment price, including:

+ Technical conditions such as implementation schedule; output and efficiency

of machinery and equipment; level of consumption of electricity, fuel and raw materials; costs of operation and maintenance; lifespan of goods and other technical requirements depending on the particular package;

+ Financial and commercial conditions;

+ Preferences in international tendering (if applicable);

+ Other factors.

A determination of the factors constituting the assessment price shall depend on the nature of the particular package. Tenders shall be ranked in order of their assessment prices and the tender with the lowest assessment price shall be ranked first.

Article 26. Assessment criteria of tenders in the case of tender packages for construction and installation

The criteria for assessing tenders in a tender package for construction and installation shall comprise assessment criteria of capability and experience of the tenderer, and assessment criteria of technical matters and the method for determining assessment prices, specifically as follows:

1. The criteria for assessing capability and experience of tenderers applicable to tender packages in which pre-qualification is not conducted, comprising:

(a) Experience implementing similar packages in Vietnam and in areas with similar geographical and site conditions;

(b) Technical capability including the number and qualifications of senior personnel and technicians who will directly perform the work, and the number of items of construction equipment available and the capability to mobilize other construction equipment to carry out the work;

(c) Financial capability being total assets, total payable debts, liquid capital, revenue, profit, value of contracts currently being performed and other criteria.

A determination of the level of the specific requirements of each criterion stipulated in sub-clauses (a), (b) and (c) hereof shall depend on the requirements of each tender package.

The criterion for assessment of the items stipulated in this clause shall be the criterion of pass or fail and a tenderer who achieves a pass for all three items stipulated in sub-clauses (a), (b) and (c) above shall be assessed as responsive in terms of capability and experience.

2. Assessment of technical matters

Assessment criteria of technical matters shall be formulated in accordance with article 24 of this Decree and shall include criteria on ability to satisfy requirements on technical design and accompanying bills of quantity, specifically:

(a) The reasonableness and feasibility of technical solutions and methods for implementing construction consistent with the proposals on the construction schedule.

The tender invitation documents should stipulate if a tenderer is permitted to propose alternative construction execution methods from those stipulated in the tender invitation documents, except in a case where due to the nature of the tender package the tenderers must all strictly comply with the execution method set out in such documents. The tender invitation documents should also stipulate the criteria for assessing the proposals from tenderers on alternative construction execution methods.

(b) Ability to ensure environmental hygiene and other conditions such as fire prevention and fire fighting, and labour safety.

(c) The level of responsiveness to requirements on providing a warranty.

(d) Quality control measures.

(dd) Construction schedule.

(e) Other contents (if any).

Use of either the criterion for assessment of the above-mentioned technical matters being pass or fail, or the method of awarding points, shall depend on the nature and specific conditions of each tender package. If it is desired to allow tenderers to submit replacement or additional methods and to make creative suggestions which may be more effective for the tender package, then this must be specified in the tender invitation documents which must also specify the criteria and methods for assessing such alternative proposals including the tender price.

If it is necessary to speed up the process of assessing tenders for a tender package for construction and installation with simple technical requirements, then the tender invitation documents may specify that assessment shall be conducted by way of simultaneous consideration of technical items, of tender prices of tenderers, and of the schedule for performing the package as proposed by the tenderers.

3. Determination of assessment price

Making a determination of the assessment price means making a determination of an equal footing price on the same technical, financial and commercial grounds and other factors in order to compare and rank tenders. The method for determining assessment prices must be stipulated in the assessment criteria. Determination of an assessment price shall be implemented in the following order:

- Determination of tender price;

- Rectification of errors;

- Adjustment of discrepancies.

- Conversion of the tender price (after rectification of errors and adjustment of discrepancies) to a common currency (if any) as a basis for determination of the assessment price;

- Putting costs on an equal footing to determine the assessment price, including:

+ Technical conditions such as implementation schedule; management fees; costs of operation and maintenance; lifespan of goods and other technical requirements depending on the particular package;

+ Financial and commercial conditions;

+ Preferences in international tendering (if applicable);

+ Other factors.

A determination of the factors comprising the assessment price shall depend on the nature of the particular tender package. Tenders shall be ranked in order of their assessment prices and the tender with the lowest assessment price shall be ranked first.

Article 27. Assessment criteria of tenders in the case of tender packages for selection of a general construction contractor (but not for selection of a general design contractor)

The criteria for assessing tenders in the case of a tender package for the selection of a general construction contractor (but not for selection of a general design contractor) shall comprise the criteria for each item of work stipulated in articles 16.1(a), 24, 25 and 26 of this Decree.

Article 28. Holding tendering

1. Issuance of tender invitation documents

(a) The party calling for tenders shall, up until closure of tenders, sell the tender invitation documents to all tenderers on the list of those who have pre-qualified, to all tenderers invited to participate in limited tendering, or to all tenderers who wish to participate in open tendering at the selling 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 implemented in accordance with articles 33.1 and 34 of the Law on Tendering.

2. Preparation and receipt of, and amendment to or withdrawal of tenders These items shall be implemented in accordance with clauses 2, 3 and 4 of article 17 of this Decree.

If any tenderer needs to change its status (name) to participate in the tendering as compared to its name when it purchased the tender invitation documents, such tenderer must provide written notice to the party calling for tenders. The party calling for tenders shall only consider such change 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 or to open tendering after pre-qualification, 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. Opening of tenders

(a) The opening of tenders 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, one at a time, the tender of each tenderer whose name appears on the list of tenderers purchasing the tender invitation documents and who submitted a tender prior to the deadline for submission of tenders, in alphabetical name order and in the following sequence:

- Check the sealing up of the tender;

- Open the tender 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;

+ Tender price recorded on the tender form and any price reductions;

+ Value and validity period of the tender guarantee;

+ Any written request for amendment of the tender;

+ Other relevant information.

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

After opening, the party calling for tenders shall sign each page of the original tender of each tenderer and shall treat the tenders as confidential. Assessment of tenders 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 29. Assessment of tenders

Assessment of tenders shall be conducted on the basis of the criteria stipulated in the tender invitation documents and on the basis of other requirements stipulated in such documents, on the principles for assessment of tenders stipulated in article 28 on the Law on Tendering and in the sequence stipulated in Article 35 on the Law on Tendering, specifically as follows:

1. Preliminary assessment

(a) A check that the tenders are valid

- 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 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, and who is the leading member of the joint venture and the responsibilities of such member, and the agreement must be signed and sealed (if any) by the 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 or certificate of lawful registration of operation; and sales authorization from manufacturers with copyright (if required).

- Number of originals and copies of the tenders.

- Validity of the tender guarantee.

- Appendices and documents attached to the tender.

(b) Elimination of tenders which fail to satisfy the pre-requisites set out in the tender invitation documents pursuant to article 23.2(b) of this Decree.

(c) An assessment of the capability and experience of tenderers in accordance with the criteria set out in the tender invitation documents, in the case of tender packages in which prequalification is not conducted. Depending on the conditions of each tender package, assessment of the capability and experience of tenderers may be conducted at the stage of preliminary assessment of all tenderers who have submitted a valid tender and who are not in breach of the prerequisites; or else an assessment of the capability and experience may be conducted after determining the assessment prices and if so, must be stipulated in the tender invitation documents. Only the tenders of tenderers who are assessed as having satisfied the requirements on capability and experience as set out in the tender invitation documents shall be considered during the following stages.

2. Detailed assessment of tenders

(a) Assessment of technical matters

The assessment criteria for technical matters must be stipulated in the tender invitation documents. During the process of assessment, the party calling for tenders shall have the right to request a tenderer to explain or clarify unclear or unusual items in its tender. Only those tenders which the investor has approved as satisfying technical requirements shall be eligible for further assessment in accordance with sub-clause (b) below.

During the process of considering and approving the list of tenderers who satisfy the requirements on technical matters, in necessary cases the investor may request the party calling for tenders to re-assess the technical items of tenders which have [only] been awarded with points approximately equal to the minimum required points, but which have a low tender price and which could render the project more efficient.

(b) Determination of assessment prices

Determination of assessment prices shall be implemented in accordance with articles 25.3 and 26.3 of this Decree.

3. Ranking of tenders based on the assessment prices

The tender with the lowest assessment price shall be ranked first. In a case of conducting preliminary assessment or in the case where the capability and experience of tenderers has not yet been assessed at the preliminary stage, then after the investor approves the list ranking all the tenderers in accordance with their assessment prices, the party calling for tenders may assess the ability and capability of the first ranked tenderer. If the capability and experience of the first ranked tenderer does not satisfy the requirements, then such an assessment should be conducted of the next ranked tenderers.

In the case of a complex package, if deemed necessary, the party calling for tenders may report to the investor to permit the first ranked tenderer to conduct preliminary contractual negotiations in order to facilitate negotiation and finalization of the contract after there is a result on the winning tenderer.

Article 30 - Rectification of errors and adjustment of discrepancies

1. Rectification of errors

Rectification of errors means correcting mistakes in tenders including arithmetical errors and other errors, which shall be implemented in accordance with the following principles:

(a) For arithmetical errors due to an inaccurate plus, minus, multiplication or division calculation

- If there is an inconsistency between a unit price and a sub-total price, then the unit price shall be taken as the legal basis for correction;

- If there is an inconsistency between an overall price list and a detailed price list, then the detailed price list shall be taken as the legal basis for correction.

(b) For other errors

- If a sub-total price is filled in without a corresponding unit price, then the unit price shall be identified by dividing the sub-total by the numerical quantity;

- If there is a unit price but the sub-total is not filled in, then the sub-total price shall be identified by multiplying the unit price by the numerical quantity;

- If any of the items have unit prices and sub-totals but no quantity, then the quantity shall be identified by dividing the sub-total by the corresponding unit price. If the quantity stipulated in this way is different from the quantity required by the tender invitation documents, such difference shall be deemed a discrepancy in scope of supply and shall be adjusted in accordance with clause 2 of this article;

- If there is a decimal error in that "," (comma) is used instead of "." (full stop) or vice versa, then this error shall be corrected in accordance with Vietnamese writing practice.

Arithmetic shall be calculated in accordance with total absolute values, irrespective of the increase or decrease of the tender price after rectification.

After making rectification in accordance with the above principles, the party calling for tenders shall notify the tenderers of such changes and tenderers shall be required to accept such changes in writing. If any tenderer does not accept the rectifications, its tender shall be eliminated.

2. Adjustment of discrepancies

Adjustment of discrepancies means the adjustment of insufficient or excess contents in terms of the requirements of the tender invitation documents, and adjustment of differences between parts of a tender, between technical and financial proposals, between numbers and writing, and between contents of the tender form and other parts of the tender. The adjustment shall be implemented as follows:

(a) In a case where there is a deviation in scope of supply, then the insufficient content shall be added or the excess content shall be deducted in accordance with the principle that if the tender price of the tenderer in question cannot be separated then take the highest offering price of that content (in the case of an insufficient offer) or the lowest offering price of that content (in the case of an excessive offer) of other tenders assessed as technically responsive. If there is only one tenderer assessed as technically responsive, then take the price of such tenderer or the price in the approved budget.

(b) If there is a discrepancy between the technical proposal and the financial proposal, then the contents of the technical proposal shall be the legal basis for adjustment.

(c) If there is inconsistency between numbers and writing, the writing shall be the legal basis for adjustment.

(d) If there is any difference between the price in the tender form (exclusive of discount) and the price in the general price list, this shall be deemed a discrepancy and adjustment shall be based on the price in the general price list after rectification of errors and adjustment of discrepancies in the detailed price list.

Article 31. Submission, evaluation, approval and notification of results of tendering; and negotiation, finalization and signing of the contract

1. Submission, evaluation, approval and notification of results of tendering shall be implemented in accordance with articles 38 and 39 of the Law on Tendering and articles 20.2, 20.3, 71 and 72 of this Decree.

2. Negotiation, finalization and signing of the contract

(a) Negotiation, finalization and signing of the contract shall be implemented in accordance with the provisions in article 42 in Chapter III of the Law on Tendering and in Section 2 of Chapter VI of the Law on Construction.

(b) If negotiation and finalization of the contract is unsuccessful, the investor must provide a report to the person making the investment decision or to the person delegated with authority to make a decision rescinding the results of tendering and to consider and make a decision selecting the next ranking tenderer as the winning tenderer in order to provide the basis for negotiation and finalization of the contract; in such a case, there shall be a requirement for the tenderer to extend the validity of its tender and tender guarantee if necessary.

Article 32. Tender guarantee

1. Tenderers participating in tendering must provide a tender guarantee in accordance with article 27 of the Law on Tendering. Joint tenderers participating in tendering for tender packages for the procurement of goods, for construction and installation, and for selection of a general contractor (but not a general design contractor) must provide a tender guarantee in accordance with the requirement set out in the tender invitation documents, in either of the following two forms:

(a) Each member of the joint venture must provide a separate tender guarantee for a total sum not less than the amount stipulated in the tender invitation documents; and if the tender guarantee of any one such member is deemed invalid, then the tender of the joint venture shall be eliminated in accordance with the pre-requisite conditions set out in the tender invitation documents.

(b) All joint venture members may agree on one member being liable to provide the tender guarantee on behalf of the joint venture, and such guarantee may be provided in the name of the joint venture or in the name of the member liable to provide such guarantee, but the total value of the guarantee must not be less than the level stipulated in the tender invitation documents.

2. In a case where the tender invitation documents stipulate that the tender guarantee must be provided in the form of a letter of guarantee from a bank or credit institution, then the validity of such tender guarantee shall be considered on the basis of the regulations on delegation of authority to sign and issue letters of credit by the particular bank or credit institution concerned.

Article 33 - Selection of a contractor applicable to small scale packages

1. In the case of tender packages for the procurement of goods, or for construction and installation, or for selection of a general construction contractor (but not a general design contractor) with a price below three billion dong, either open tendering or limited tendering shall be conducted in the order as stipulated in section 1 of Chapter V of this Decree, but the tender invitation documents need not specify criteria for providing equal footing prices in order to arrive at assessment prices; and further, it shall not be necessary to arrive at assessment prices during the process of assessing the tenders.

A tenderer shall be considered and proposed as the winning tenderer when it satisfies all the following conditions:

(a) It has a valid tender.

(b) It is assessed as satisfying the requirements on capability and experience.

(c) It has proposals on technical matters which are assessed as satisfying the requirements in accordance with the pass or fail criterion.

(d) The tender price is the lowest after rectification of errors and adjustment of discrepancies.

(e) The proposed winning tender price does not exceed the approved tender package price.

2. The various time-limits applicable to tendering for small scale packages shall be regulated as follows:

(a) Tender invitation documents shall be issued as from the date of notice of invitation to tenderers up until closing of tenders.

(b) The time-limit for preparation of tenders shall be a minimum of ten (10) days as from the date of issuing the tender invitation documents. If the party calling for tenders needs to amend the tender invitation documents, he must notify the tenderers three days prior to the date for closure of tenders so that they will have sufficient time to prepare their tenders.

(c) The time-limit for assessing tenders shall be a minimum of twelve (12) days as from the date of opening tenders up until the date on which the investor notifies the results of tendering to the authorized person for his consideration and decision.

3. The value of the tender guarantee shall be one per cent (1%) of the tender package price in the case of small scale packages, and the value of the contract performance guarantee shall be three per cent (3%) of the contract value.

Article 34. Provision on selection of a contractor applicable to insurance and auditing packages and on selection of investment partners

1. The same procedures as for selection of a contractor for a tender package for procurement of goods shall apply to selection of a contractor for an insurance tender package.

2. The same procedures as for selection of a contractor for a tender package for consultancy services shall apply to selection of a contractor for an auditing tender package.

3. The procedures for conducting tendering to select investment partners to implement a project stipulated in article 54 of the Law on Investment2 shall be conducted in accordance with guidelines of the Ministry of Planning and Investment.

Section 2. TWO-PHASE TENDERING

Article 35. Preparation for phase 1 tendering

1. Pre-qualification of tenderers shall be implemented in accordance with Chapter III of this Decree.

2. Preparation of phase 1 tender invitation documents

(a) The bases for formulation of tender invitation documents is stipulated in article 23.2(a) of this Decree.

(b) The contents of phase 1 tender invitation documents shall be as stipulated in article 23.2(b) of this Decree, but excluding the requirements for tenderers to submit a tender price and tender guarantee.

3. Approval of tender invitation documents shall be implemented in accordance with article 15.3 of this Decree.

4. Invitations for submission of phase 1 tenders shall be implemented in accordance with article 23.4 of this Decree.

Article 36. Holding phase 1 tendering

1. Issuance of tender invitation documents

(a) The party calling for tenders shall sell the tender invitation documents at the price stipulated in article 6.1 of this Decree to tenderers on the list of tenderers who passed the pre-qualification stage, or to tenderers invited to participate in limited tendering, or to all tenderers wishing to participate in open tendering, up until the deadline for submission of tenders. In the case of a joint venture tender, only one member of the joint venture need purchase the tender invitation documents.

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

2. Receipt and management of phase 1 tenders

The party calling for tenders shall receive tenders which have been submitted and shall treat them as confidential.

3. Opening of tenders

Opening of tenders shall be implemented in accordance with article 28.3 of this Decree. The minutes of opening of tenders shall not contain information on tender prices and tender guarantee.

4. Discussions on phase 1 tenders

Based on the requirements stipulated in the tender information documents, the party calling for tenders shall hold discussions with each tenderer aimed at elucidating the requirements on technical matters of the tender package. The contents of discussions must be recorded by the party calling for tenders in minutes, in order to provide the basis for formulation of the phase 2 tender invitation documents.

Article 37. Preparation for and holding phase 2 tendering

1. Formulation of phase 2 tender invitation documents

The phase 2 tender invitation documents shall clearly stipulate the detailed technical requirements and detailed financial requirements including tender prices and commercial requirements as well as requirements on the method for providing a tender guarantee. Approval of phase 2 tender invitation documents shall be implemented in accordance with article 15.3 of this Decree.

2. Holding tendering

Phase 2 tender invitation documents shall be sold to the tenderers who submitted tenders during phase 1 at the price stipulated in article 6.1 of this Decree, and the tendering shall be held in accordance with the provisions in article 28 of this Decree.

Article 38. Assessment of phase 2 tenders

Assessment of phase 2 tenders shall be implemented in accordance with article 29 of this Decree.

Article 39. Submission for approval, evaluation, approval and notification of the results of tendering; negotiation, finalization and signing of the contract

Submission for approval, evaluation, approval and notification of the results of tendering; and negotiation, finalization and signing of the contract shall be implemented in accordance with article 31 of this Decree.