Chapter VII
OTHER FORMS OF SELECTION OF CONTRACTOR
Article 42. Direct procurement
Application of the form of direct procurement must be approved in the tendering plan on the basis of compliance with article 21 on the Law on Tendering and shall apply to contracts previously signed with contractors via open tendering or limited tendering. The period "within the previous 6 months" shall be calculated from the time of signing the [previous] contract up until the date on which the results of the [current] direct procurement are approved.
Procedures for direct procurement shall be implemented as follows:
1. The investor shall approve the contents of the set of requirements as the basis for the tenderer to prepare its set of proposals.
2. The following items in the set of proposals shall be assessed:
(a) A check of the contents of the technical matters and unit prices;
(b) Update of capability of the tenderer;
(c) An assessment of the schedule for performance;
(d) Other items (if any).
3. Submission, evaluation and approval of the results of direct procurement
On the basis on the report on the results of direct procurement and the evaluation report, the person making the investment decision shall approve or authorize another entity to approve the results of direct procurement.
Article 43. Competitive quotation in procurement of goods
Application of the form of competitive quotation in procurement of goods must be approved in the tendering plan on the basis of compliance with article 22 of the Law on Tendering. Procedures for competitive quotation in procurement of goods shall be implemented as follows:
1. Set of requirements for competitive quotation
The investor shall approve the contents of the set of requirements for competitive quotation which must include technical requirements such as quantity, standards, technical specifications, time-limit for supply, validity period of the quotation, and deadline for submission of the quotation; requirements on warranty, maintenance, training, handover and other necessary contents, excluding the requirement for submitting a tender guarantee. The criterion for assessment of technical requirements [of quotations] shall be the criterion of pass or fail which must be set out in the set of requirements for competitive quotation.
2. Holding tendering in the form of a competitive quotation
(a) The party calling for tenders shall publish a notice inviting quotations, on the standard form issued by the Ministry of Planning and Investment, in three consecutive editions of the Tendering Newsletter and on the tendering website in order for interested tenderers to participate. The notice may also be published on other mass media. The set of requirements for the competitive quotation shall be issued by the party calling for tenders no earlier than five days from the date of the first publication of the notice.
(b) The party calling for tenders shall send the set of requirements to the interested tenderers ensuring that at least three competitive quotations from three different tenderers are received.
The time-limit in which tenderers must submit their quotations shall be a minimum of three (3) days.
(c) Tenderers shall send their quotations to the party calling for tenders by direct delivery, or by post or by fax. Each tenderer may only send one quotation.
(d) The party calling for tenders shall be responsible for maintaining confidentiality of information in quotations. Immediately after expiry of the deadline for submitting quotations, the party calling for tenders shall prepare minutes of receipt of quotations with the following contents: names of the tenderers, offering prices, after-sale conditions and period of validity of the quotations. The party calling for tenders shall then send the minutes to all tenderers who submitted quotations.
3. Assessment of quotations
(a) The party calling for tenders shall carry out an assessment of technical matters in the submitted quotations in accordance with the criteria set out in the set of requirements. A quotation shall be evaluated as technically responsive when all technical requirements are assessed as "pass".
(b) The party calling for tenders shall compare the offering prices in all technically responsive quotations in order to determine the quotation with the lowest offering price. The tenderer with the lowest offering price after errors have been rectified and discrepancies have been adjusted, and on condition such price does not exceed the tender package price, shall be proposed for selection.
4. Approval of the results of competitive quotation and signing of a contract
(a) On the basis of the report submitted by the party calling for tenders on the results of competitive quotation and the evaluation report, the person making the investment decision or the person delegated with authority to make the investment decision shall approve the results for a tender package with a tender package price of one billion (1,000,000) dong or more, while the investor shall approve the results for a tender package with a tender package price of less than one billion (1,000,000) dong.
(b) The party calling for tenders shall notify the results of competitive quotation to all participating tenderers, and shall conduct negotiation and finalization of the contract with the selected contractor in order for the investor to sign the contract.
Article 44. Self-implementation
Application of the form of self-implementation must be approved in the tendering plan on the basis of compliance with article 23 on the Law on Tendering, and with clause 1(a) in each of articles 41, 50, 57, 75 and 89 of the Law on Construction and in compliance with article 45.2(b) on the Law on Construction as follows:
1. The investor shall select, in accordance with the Law on Tendering, a consultant supervising contractor who is organizationally and financially independent of the investor as stipulated by law.
The investor must provide the documents essential for the supervising contractor to carry out the tasks stipulated in clause 2 of this article.
2. The supervising contractor shall have the following tasks:
(a) To supervise implementation of the tender package of the investor correctly in accordance with the plan and implementing solutions provided by the investor;
(b) To check all types of goods, materials and equipment used for the tender package;
(c) To test and accept all volumes of work implemented by the investor in order to provide the basis for payment.
3. When applying the form of self-implementation, the investor must select a supervisory consultant to supervise those items of work which the specialized branch law requires be supervised. However, a consultant need not be hired to supervise tender packages for major renovation or repairs of manufacturing equipment or production lines. If in a case of application of the form of self-implementation a specialized branch law requires supervision but there are no independent consultants who express an interest or it is impossible to select such a consultant because the tender package is to be implemented in a remote area, and the tender package price is less than one million dong, then the investor must abide by supervision by the community in accordance with the law on supervision of investment by the community.
4. When applying the self-implementation form, the investor must ensure he has sufficient capability and experience to conduct all of the work belonging to the tender package, must ensure that his selfimplementation would benefit the project more than selection of another contractor, and must also satisfy the following conditions:
(a) His function, duties, operational sector and business line (in accordance with his business registration certificate and decision on establishment) is consistent with the requirements of the tender package;
(b) He has sufficient key personnel, senior staff and technicians employed (except for ordinary workers) for his tender package; and he has sufficient machinery and equipment to use for execution of construction which belong to such investor or which the investor can prove he is able to mobilize in order to satisfy the requirements of the schedule for implementing the tender package.
5. If during the process of implementation the investor is discovered to have transferred a volume of work with a total monetary amount more than ten per cent (10%) of the value of the work to be selfimplemented, then the investor shall be deemed not to have sufficient capability for selfimplementation of the tender package and to have breached article 12.14 of the Law on Tendering.
Article 45. Selection of a consultant contractor for architectural design for construction of works
The selection of a consultant contractor for architectural design for construction of works via a competition as stipulated in article 97.3 of the Law on Construction shall be implemented in accordance with article 102 of the Law on Construction.
Article 46. Selection of contractor in special cases
1. Based on the special characteristics of a tender package for which the forms of selection of contractor stipulated in articles 18 to 23 inclusive of the Law on Tendering and in article 97 of the Law on Construction cannot be applied, the investor shall prepare a plan for selection of contractor which ensures competitiveness and economic effectiveness and submit same to the Prime Minister of the Government for his consideration and decision. The investor must also send the plan to the Ministry of Planning and Investment and to the ministry managing the industry for these ministries to provide their written opinions to the Prime Minister of the Government for his consideration and approval.
2. If there are any special matters on tendering stipulated in any other Law, then the Decree providing guidelines for implementation of such other Law shall apply.
Tìm kiếm
Nghị định 58/2008/NĐ-CP (Bản Word)