Chương I Nghị định 63/2014/NĐ-CP: Những quy định chung

Chapter I

GENERAL PROVISIONS

Section 1: GOVERNING SCOPE

Article 1: Governing scope

1. This Decree hereby details the implementation of several provisions of the Bidding Law regarding the selection of contractors who are eligible to be awarded contracts which are governed by the regulations stated in Clause 1 and Clause 2 Article 1 of the Bidding Law.

2. The selection of contractors for petroleum contracts as stipulated in Clause 4 Article 1 of the Bidding Law shall be applicable to the investment and development projects as regulated in Point a, b and c Clause 1 Article 1 of the Bidding Law, except for the selection of contractors directly involved in petroleum exploration, extraction and mine development.

3. In case international treaties and agreements provide for the application of procedures for the selection of contractors, regulations specified in Clause 3 and Clause 4 of Article 3 of the Bidding Law shall apply. Procedures for submission, verification and approval shall be followed in accordance with this Decree.

4. In case international treaties and agreements do not provide for procedures for selection of contractors, regulations specified in the Bidding Law and this Decree must be observed.

Section 2: ENSURING COMPETITIVENESS IN BIDDING

Article 2: Ensuring competitiveness in the bidding

1. The contractors submit their EOI (expression of interest) responses or applications for the prequalification held by the procuring entity must adhere to Clause 1 and Clause 2 Article 6 of the Bidding Law.

2. Contractors who bid for mixed contracts must be legally and financially independent from those who conduct feasibility study reports, technical design proposals and construction drawings for the purpose of the contract award, except for these accepted as a part of mixed contracts.

3. Consulting service suppliers participating in the bidding can provide one or a lot of consulting service(s) for the same project or contract, including the formation of pre-feasibility study reports, feasibility study reports, technical design documents, construction drawing records as well as the provision of consultancy and supervision services.

4. Contractors shall be considered legally and financially independent from other contractors, consulting service providers, investors or procuring entities as regulated in Clause 1, 2 and 3 of Article 6 of the Bidding Law when they meet the following requirements:

a) They must come from different agencies or are not directly managed by the same organization if they are public service providers;

b) Contractors, investors and procuring entities do not hold more than 30% of shares or contributed capital of each other;

c) Contractors do not hold more than 20% shares or contributed capital of each other when all of bidders participate in selective bidding for a contract;

d) Bidders and contractors who provide consulting services for that contract are not allowed to hold mutual shares and contributed capital; shares and contributed capital of either bidder or consulting contractor held by other organizations and individuals account for above 20%.

5. In respect of state-owned economic corporations, if products and services specified in the contract are defined as their main production and trading sectors which are considered the outflow of this company and the inflow of the other company affiliated with these corporations, their subsidiaries have the right to participate in the selection of contractors held by each of these subsidiaries. In case products and services are the outflow of this company and concurrently the inflow of the other company as well as are seen as the exclusive ones on the market, the bidding must comply with the Prime Minister’s regulations.

Section 3: BID PREFERENCES IN THE SELECTION OF CONTRACTORS

Article 3. Rules of bid preferences

1. In case bid package and proposal documentation are ranked at the same position after bid preferences that has been counted, bidders who quote more domestic expenses or employ more local employees (based on their wage and salary).

2. In case bidders are granted more than one bid preference, they are only allowed to get access to the optimal bid preference as prescribed in the bidding documents and request for proposals.

3. With respect to mixed contracts, bid preferences are based on all of bidder’s proposals for the contracts for consulting service and goods supply as well as construction works. Bidders shall be granted proper bid preferences if they propose expenses incurred by the execution of domestic contracts (consulting services, goods and construction works) which account for more than 25% of the total value of the contracts.

Article 4. Bid preferences for the international bidding

1. In terms of contracts for the consulting service supply:

a) In case of the application of lowest bid method, bidders who are not granted bid preferences must provide an additional monetary amount accounting for 7,5% of these bidders’ quoted bid after correction of errors, adjustment of deviations and deduction of discounts (if any) in order to carry out bidder’s comparison and rating;

b) In case of the application of fixed price method or technical method, bidders who receive the bid preferences are given additional 7.5% of technical score to these bidders' total technical score to serve the purpose of comparison and rating;

c) In case of the application of combined technical and price-based method, bidders who receive the bid preferences are given additional 7.5% of combined scores to total combined scores of these bidders for comparison and rating.

2. In terms of contracts for non-consulting service supply, construction works and mixed contracts:

a) In case of the application of lowest bid method, bidders who are not granted bid preferences must provide an additional monetary amount accounting for 7.5% of these bidders’ quoted bid after correction of errors, adjustment of deviations and deduction of discounts (if any) for comparison and rating;

b) In case of the application of lowest bid method, bidders who are not granted bid preferences must add a monetary amount accounting for 7.5% of these bidders’ quoted bid after correction of errors, adjustment of deviations and deduction of discounts (if any) to the evaluated price of these bidders for comparison and rating;

c) In case of the application of combined technical and price-based method, bidders who receive the bid preferences are given additional 7.5% of combined scores to total combined scores of these bidders for comparison and rating.

3. In terms of the contract for goods procurement, the bid preference applied to domestic goods shall be implemented as regulated in Article 5 of this Decree.

Article 5. Bid preference for domestic goods

1. Goods are eligible for bid preferences provided that bidders prove that domestic production costs account for above 25% of total price. Percentage (%) of domestic production cost of goods is calculated according to the following formula:

D (%) = G*/G (%)

Where:

- G*: Domestic production cost calculated by quoted price of goods defined in the bid envelope and proposal which subtracts tax values and external costs, inclusive of fees and charges;

- G: Quoted price of goods defined in the bid envelope and proposal subtracting tax values;

- D: Percentage (%) of domestic production cost of goods. D³ gains the rate of 25%, which can enable goods to receive the bid preferences as regulated in Clause 2 of this Article.

2. Bid preference calculation:

a) In case of the application of lowest bid method, goods that do not receive bid preferences must add a monetary amount accounting for 7.5% of quoted bid after correction of errors, adjustment of deviations and deduction of discounts (if any) of these goods to the quoted bid price after correction of errors, adjustment of deviations and deduction of discounts (if any) of bidders for comparison and rating;

b) In case of the application of evaluated price method, goods that do not receive bid preferences must add a monetary amount accounting for 7.5% of quoted bid after correction of errors, adjustment of deviations and deduction of discounts (if any) of these goods to the evaluated price of these bidders for comparison and rating;

c) In case of the application of combined technical and price-based method, goods that receive the bid preferences are given additional preferential scores to total combined scores as follows:

Preferential score = 0.075 x (preferential goods price / bid price) x combined scores

Where: Preferential goods price is quoted bid after correction of errors, adjustment of deviations and deduction of discounts (if any) of goods that receive bid preferences.

Article 6. Bid preferences for the domestic bidding

1. In terms of the contract for goods procurement, the preference applied to domestic goods shall be implemented according to the regulations specified in Article 5 of this Decree.

2. Bid envelopes and proposals from bidders who employ total female workers and wounded soldiers or invalid employees accounting for above 25% and signing minimum 03 month’s labor contracts and who are small enterprises granted bid preferences as regulated in Clause 3 Article 14 of the Bidding Law shall achieve higher ranks than those of bidders who are not granted bid preferences in case their bid envelopes and proposals are ranked at the same position.

3. In case of construction contracts worth less than VND 05 billion, only small and ultra small enterprises are allowed to participate into the bidding as stipulated by laws.

4. In case bid envelopes and proposals from bidders achieve the same rank after bid preferences that have been granted, those of local bidders shall be given priority over others during the contract award.

Section 4: INFORMATION SUPPLY, ADVERTISEMENT AND DISSEMINATION; INCURRED EXPENSES; SAFE CUSTODY FOR BIDDING DOCUMENTS DURING THE SELECTION OF CONTRACTORS

Article 7. Supply, advertisement and dissemination of the bidding information

1. Responsibility for the information supply:

a) Ministries, ministerial-level agencies, Governmental agencies, Central bodies, provincial People’s Committees and competent persons are responsible to disseminate the bidding information mentioned at Point g Clause 1 Article 8 of the Bidding Law on the national bidding network or the Vietnam Public Procurement Review Journal;

b) Ministries, ministerial-level agencies, Governmental agencies and other centrally-governed bodies, provincial People’s Committees are responsible to advertise the bidding information mentioned at Point h Clause 1 Article 8 of the Bidding Law on the national bidding network;

c) Procuring entities are responsible to supply the bidding information regulated at Point a Clause 1 Article 8 of the Bidding Law on the national bidding network;

d) Procuring entities are responsible to provide the bidding information regulated at Point b, c, d and dd Clause 1 Article 8 of the Bidding Law as well as other information regarding the change in the bidding schedule (if any) on the national bidding network or the Vietnam Public Procurement Review Journal;

dd) Bidders are responsible to provide and update the information about their competence and experience into the database of bidders on the bidding network system according to regulations stated at Point d Clause 1 Article 5 and Point k Clause 1 Article 8 of the Bidding Law;

e) Bidding training institutions, lecturers and experts who hold certificates of the bidding practices are responsible to provide the information regarding their bidding training, lecturing and practice for the Ministry of Planning and Investment to post on the national bidding network system as stipulated in Point k Clause 1 Article 8 of the Bidding Law.

2. Responsibility for the information dissemination:

The Ministry of Planning and Investment is responsible for the advertisement of the bidding information;

b) All of proper information shall be advertised on the national bidding network system or the Vietnam Public Procurement Review Journal. Whenever any improper information is detected, the Ministry of Planning and Investment is responsible to make their announcement on the national bidding network system or the Vietnam Public Procurement Review Journal in order for information suppliers to make any possible adjustment, correction and completion prior to postings.

3. The information about the online selection of contractors shall be disseminated by procuring entities on the national bidding network system but must ensure the compliance with regulations specified at Point b Clause 2 of this Article.

4. In case of projects or contracts identified in the list of national secrets, the dissemination of information to the public must be carried out according to the laws on national secret protection.

5. The supply and dissemination of bidding information posted on the national bidding network, the Vietnam Public Procurement Review Journal and through other means of mass media are encouraged for the contracts that are not regulated by the Bidding Law.

Article 8. Time limit and procedures for the supply and dissemination of the bidding information

1. In case of the self-advertisement of information posted on the national bidding network:

a) Concerned entities who are responsible to supply information as regulated at Clause 1 Article 7 of this Decree carry out the registration of participants into the national bidding network system according to regulations specified in Article 87 of this Decree and perform the self-advertisement of their information on the national bidding network system according to the guidance from the Ministry of Planning and Investment;

b) In respect of the information regulated in Point b, c Clause 1 Article 8 of the Bidding Law, procuring entities shall release the Request for Expression of Interest (hereinafter abbreviated as EOI), Prequalification, Invitation for Bids and Request for Proposals, which complies with the bidding schedule announced in the notification of EOI Request, Prequalification, Invitation for Bids and Request for Offers but takes place within a minimum of 03 working days from the first date on which the information is posted on the national bidding network system;

c) In respect of the information regulated in Point a, d, dd, g and h Clause 1 Article 8 of the Bidding Law, organizations responsible for the advertisement of bidding information must ensure that their self-advertisement of bidding information is not later than 07 working days from the date on which the bidding documents are released.

2. 2. In terms of the supply of bidding information to the Vietnam Public Procurement Review Journal:

a) As regards the information regulated in Point b, c Clause 1 Article 8 of the Bidding Law, the time limit for the Vietnam Public Procurement Review Journal’s receipt of the information is not later than minimum 05 working days before the proposed date on which the Request for EOI, Prequalification, Invitation for Bids and Request for Proposals are released. These pieces of information must be posted on 01 publication of the Vietnam Public Procurement Review Journal;

b) In respect of the information regulated in Point d, dd and g Clause 1 Article 8 of the Bidding Law, the time limit for the Vietnam Public Procurement Review Journal’s receipt of the information is not later than 07 working days from the date on which the bidding documents are released. These pieces of information must be posted on 01 publication of the Vietnam Public Procurement Review Journal.

3. Within a period of 02 working days from the date of the self-advertisement of information as regulated in Point b, c, d, dd and g Clause 1 Article 8 of the Bidding Law to be posted on the national bidding network system, the Vietnam Public Procurement Review Journal is responsible to disseminate their received information on 01 publication of the Vietnam Public Procurement Review Journal.

4. Within a period of 02 working days from the date on which the Vietnam Public Procurement Review Journal receives the information as regulated in Point b, c, d, dd and g Clause 1 Article 8 of the Bidding Law, the Vietnam Public Procurement Review Journal is responsible to post these pieces of information on the national bidding network system and their publication as well. In respect of the information regulated in Point b, c Clause 1 Article 8 of the Bidding Law, procuring entities shall release the Request for EOI, Prequalification, Invitation for Bids and Request for Proposals, which complies with the bidding schedule identified in the notification of EOI Request, Prequalification, Invitation for Bids and Request for Goods Quotations but ensures that it is received within a minimum of 03 working days from the first date on which the information is posted on the national bidding network system or the Vietnam Public Procurement Review Journal;

5. The supply and dissemination of information in the aim of the online bidding shall observe the regulations specified in Clause 2 Article 88 of this Decree.

Article 9. Expenses incurred during the selection of contractors

1. Based on the size and nature of the contracts, investors decide the selling price of one set of bidding documents and request for proposals (taxes included) for the domestic bidding, including the maximum price of VND 2,000,000 for the bid envelope and VND 1,000,000 for the Request for Proposals; as for the international bidding, such selling prices shall adhere to the international bidding practices.

2. Expenses incurred by the composition and evaluation of the Request for EOI and Prequalification:

a) Expenses incurred by the composition of the Request for EOI and Prequalification account for 0.05% of the bid price but are identified at the minimum price of VND 1,000,000 and the maximum price of VND 30,000,000;

b) Expenses incurred by the evaluation of the Request for EOI and Prequalification account for 0.03% of the bid price but are identified at the minimum price of VND 1,000,000 and the maximum price of VND 30,000,000;

3. Expenditure on compilation and evaluation of the Invitation for Bids and Request for Proposals:

a) Expenses incurred by the composition of the Invitation for Bids and Request for Proposals account for 0.1% of the bid price but are identified at the minimum price of VND 1,000,000 and the maximum price of VND 50,000,000;

b) Expenses incurred by the evaluation of the Invitation for Bids and Request for Proposals account for 0.05% of the bid price but are identified at the minimum price of VND 1,000,000 and the maximum price of VND 50,000,000;

4. Expenses incurred by the evaluation of the EOI Response, Prequalification, Bid Envelope and Proposals:

a) Expenses incurred by the evaluation of the EOI Response and Prequalification account for 0.05% of the bid price but are identified at the minimum price of VND 1,000,000 and the maximum price of VND 30,000,000;

b) Expenses incurred by the evaluation of Bid Envelopes and Proposals account for 0.1% of the bid price but are identified at the minimum price of VND 1,000,000 and the maximum price of VND 50,000,000.

5. Expenses incurred by the evaluation of the result of the selection of contractors, even when there are none of selected contractors, account for 0.05% of the bid price but are identified at the minimum price of VND 1,000,000 and the maximum price of VND 50,000,000.

6. In respect of the contracts that elaborate the same contents in the same project and purchase estimate as well as the contracts that require redoing the selection of contractors, expenses incurred by the composition and evaluation of the Request for EOI and Prequalification; Invitation for Bids and Request for Proposals account for maximum 50% of the expense regulated in Clause 2 and Clause 3 of this Article. In case of the contracts that require another selection of contractors, expenses on the selection of contracts for the project and purchase estimates must be accounted for and supplemented to meet the actual requirements mentioned in the contracts.

7. Expenses prescribed in Clause 2, 3, 4, 5 and 6 of this Article shall be applicable to investors and procuring entities who are directly involved in the bidding. In case bidder’s consultants are hired to carry out the contents specified in Clause 2, 3, 4, 5 and 6 of this Article, expenses are defined on the basis of the content, scope of work, execution period, competence and experience of consultants and other elements.

8. Expenses paid to a council in charge of considering the contractor's recommendations on the selection of contractors (hereinafter referred to as Advisory Council) account for 0.02% of the quoted bid of the bidders who have made recommendations but are identified at the minimum price of VND 1,000,000 and the maximum price of VND 50,000,000.

9. Expenses incurred by the dissemination of bidding information and participation in the national bidding network and the use of receipts during the selection of contractors shall follow the instructions from the Ministry of Planning and Investment and the Ministry of Finance.

Article 10. Safe custody for bid packages during the selection of contractors

1. All of documents regarding the selection of contractors shall be kept to a minimum of 03 years after the contract finalization, except for those prescribed in Clause 2, 3 and 4 of this Article.

2. If the Proposals for financial contents by the bidders that do not pass the technical evaluation shall be fully returned to the bidders as scheduled below:

a) In terms of consulting service supply contract: Within the period of 10 days from the date on which the contract with selected contractors are signed;

b) In terms of the contracts for non-consulting service, goods purchase, construction works and mixed contracts applying the single-stage two-envelope bidding process: scheduled at the same time when the tender guarantee of eliminated bidders is refunded or cleared.

Within the time limit regulated at Point a, b of this Clause, if bidders that do not reclaim their financial proposals, procuring entities shall consider and decide the cancellation of financial proposals but ensure the confidentiality of information enclosed in these financial proposals.

3. In case of the bid cancellation, all of relevant documents shall be kept within the period of 12 months from the date on which the decision on the bid cancellation is made.

4. Financial statements, as-built dossiers and other documents regarding the selected bidders shall be kept in a safe manner according to legal regulations on the document custody.