Chapter VI
DIRECT APPOINTMENT OF CONTRACTOR
Article 40. Direct appointment of contractor
Application of the form of direct appointment of contractor must be approved in the tendering plan on the basis of compliance with article 20 of the Law on Tendering and article 101 of the Law on Construction.
Special cases in which there may be direct appointment of a contractor are stipulated in article 101.1(dd) of the Law on Construction and comprise:
1. The cases stipulated in Decision 49/2007/QD-TTg of the Prime Minister of the Government dated 11 April 2007.
2. Tender packages for consultancy services, for assessment of strategic reports [and/or] for zoning where the investor must be able to prove that there is one sole contractor capable of satisfying the requirements of the package, and in such case the investor shall be liable for his decision.
3. Tender packages for consultancy for the preparation of a feasibility study report [and/or] investment report.
4. Tender packages for consultancy for the preparation of a feasibility study report [and/or] investment report in an urgent case where the investor must ensure he is able to confirm the capability and experience of a contractor who satisfies the requirements of the tender package. Tendering must be held in non-urgent cases.
5. Tender packages for the construction of statues, monuments or art works associated with copyright, from the creative stage up until the construction stage.
6. Tender packages belonging to the program of projects with national objectives and the 135 Program, in which case if local resident communities wish to undertake such work then it may assigned to them for implementation. If there are a number of mass organizations within a locality which wish to participate, then once such organization must be selected to provide the most effective implementation plan. The Ministry of Planning and Investment shall co-ordinate with relevant bodies to provide guidelines on appointment of a contractor in this case.
7. The Prime Minister of the Government shall approve a list of important and urgent projects in the national interest or for the safety and security of energy as stipulated in article 20.1(c) of the Law on Tendering on the basis of a proposal from a minister, head of a ministerial equivalent body or other central body, chairman of a provincial people's committee or board of management of a State enterprise, and on the basis of a written evaluation of the list of these projects provided by the Ministry of Planning and Investment. Any of the above-mentioned persons or entities in authority which has a project within the category mentioned in this clause may approve, and shall be responsible for, appointment of a contractor to implement the project in accordance with the Law on Tendering.
8. Other special cases as decided by the Prime Minister of the Government on the bases of a proposal from the relevant ministry, industry, locality or enterprise which has the project, and of an evaluation report from the Ministry of Planning and Investment.
Article 41. Procedures for direct appointment of contractor
1. The procedures for directly appointing a contractor to implement any one tender package (except for a package with a price below one hundred and fifty billion dong) shall be as follows:
(a) Issuance of set of requirements;
(b) Preparation of set of proposals;
(c) Assessment of set of proposals and negotiations on the tenderer's set of proposals;
(d) Submission, evaluation and approval of the results of direct appointment;
(dd) Negotiation, finalization and signing of the contract.
2. Set of requirements
(a) The party calling for tenders shall prepare the set of requirements, in which it shall not be necessary to stipulate criteria for an overall assessment in the case of tender packages for consultancy services. 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 for selection of a general design contractor) it shall not be necessary to stipulate the factors for determination of assessment prices. Specific requirements should be specified in the set of requirements depending on the nature and scale of the particular tender package, but the following items must be specified:
- A tender package for consultancy services must stipulate the requirements on the criteria for capability and number of experts, the experience of the contractor; requirements on items, scope and quality of work; requirements on duration and location for performance; requirements on proposals regarding price, requirements on time-limits for preparing and lodging the set of proposals, on the period of validity of the set of proposals, and other necessary items.
- Tender packages for the procurement of goods or for construction and installation, or for selection of a general construction contractor (but not for selection of a general design contractor) must specify the requirements on experience and capability; on technical items such as the quantity of goods and the scope and volume of work, and the technical criteria and technical solutions; the quality of the work, and the duration for performing it; requirements regarding the price which must be proposed in the set of proposals; the duration for preparation and the time-limit for lodging the set of proposals; the term of validity of the set of proposals and other necessary items, without requiring a tender guarantee.
- The set of requirements must stipulate that the assessment of technical items will be made in accordance with the pass or fail criterion.
(b) The investor shall be responsible to approve the set of requirements in accordance with article 2.2 of this Decree in order for the party calling for tenders to send the set of requirements to the contractor proposed to be directly appointed, in order for the latter to prepare a set of proposals.
3. Set of proposals
The proposed contractor for direct appointment shall prepare a set of proposals with contents similar to those of a tender, and including technical proposals, financial and commercial proposals.
4. Assessment of set of proposals and negotiations on the tenderer's set of proposals
(a) The party calling for tenders shall conduct an assessment of the set of proposals and negotiate the proposals with the tenderer in accordance with the requirements stipulated in the set of requirements. During the process of assessment, the party calling for tenders may request the tenderer to negotiate, explain, clarify, amend or supplement necessary information in its set of proposals in order to prove it satisfies the requirements on capability and experience, the schedule, quality, technical solutions and measures for organizing construction as set out in the set of requirements.
(b) The tenderer shall be proposed as the winning tenderer when its set of proposals fully satisfies the following conditions:
- It has adequate capability and experience in accordance with the set of requirements;
- Its proposals on technical matters are assessed as satisfying the requirements stipulated in the set of requirements pursuant to the assessment criteria;
- The proposed price for appointment of contractor does not exceed the approved tender package estimated budget (tender package price).
5. Submission, evaluation and approval of results of direct appointment of contractor
(a) Based on the report on results of direct appointment of contractor and the evaluation report, the person making the investment decision shall approve, or delegate authority to approve, the results of direct appointment of contractor in the case of a tender package for consultancy services with a price of five hundred million (500,000,000) dong or more, or a tender package for procurement of goods or for construction and installation or for selection of a general construction contractor (but not for selection of a general design contractor) with a tender package price of one billion (1,000,000,000) dong or more. The investor shall approve the results of direct appointment of contractor in the case of tender packages for consultancy services with a tender package price below five hundred million (500,000,000) dong and for procurement of goods or for construction and installation with a tender package price below one billion (1,000,000,000) dong in the case of tender packages belonging to projects stipulated in clauses 1 and 3 of article 1 on the Law on Tendering.
(b) In the case of direct appointment of contractor for the projects stipulated in article 20.1(c) of the Law on Tendering, the investor shall submit the report on results of direct appointment of contractor to the authorized person, or to the person delegated with such authority, as stipulated in article 40.7 of this Decree.
6. Negotiation, finalization and signing of the contract On the basis of the decision approving the results of direct appointment of contractor, the party calling for tenders shall conduct negotiations and finalize the contract with the appointed contractor in order for the investor to sign the contract.
7. In the case of an event of force majeure due to a natural disaster, war or a breakdown which should be immediately dealt with as stipulated in article 20.1(a) of the Law on Tendering, direct appointment of a contractor shall not be implemented in accordance with clauses 1 to 6 of this article; but within a time-limit not to exceed fifteen (15) days as from the date of making a direct appointment, the investor or the body responsible for management of the building works or assets affected must, together with the appointed contractor, carry out procedures for determining the volume and value of works in order for the two parties to sign a contract as the basis for performance of the works and for payment of the works.
8. In a case where it is permitted to apply the form of direct appointment of contractor for a tender package to be performed prior to there being an investment decision, the organization assigned the duty to prepare the project shall prepare, and arrange for approval, the estimated budget of the tender package in accordance with article 20.3 of the Law on Tendering. In such a case, the estimated budget means the equivalent price for the volume of works approved by the head of the body preparing the project.
9. In the case of tender packages for consultancy services with a tender package price of less than five hundred million dong, tender packages for the procurement of goods or for construction and installation with a tender package price of less than one billion dong belonging to projects for major renovation or repairs of State owned enterprises referred to in article 3.1 of the Law on Tendering, direct appointment of a contractor may be applied when deemed necessary but must be implemented in accordance with clauses 1 to 6 of this article, except for the case stipulated in clause 10 of this article.
10. When the form of direct appointment of contractor is applied to a tender package with a tender package price below one hundred and fifty million dong, the appointment shall be made in accordance with the following sequence:
(a) The party inviting the contractor shall, based on the objectives and scope of the work and the tender package price all of which have been approved in the tendering plan, formulate and send a draft contract to the contractor whom it is proposed to appoint. The draft contract should contain the following items namely the requirements on scope and contents of the work to be performed, the duration for performance, and the quality of the work, services and goods and their corresponding values.
(b) The party inviting the contractor and the proposed contractor shall, based on the draft contract, conduct negotiations and finalize the contract as the basis for signing the contract.
(c) On completion of negotiation and finalization of the contract, the party inviting the contractor shall make a submission to the investor to approve the results of direct appointment of the contractor, and shall then sign a contract with such contractor.
Tìm kiếm
Nghị định 58/2008/NĐ-CP (Bản Word)