Chương II Nghị định 63/2014/NĐ-CP: Quy trình đấu thầu rộng rãi, hạn chế đối với gói thầu dịch vụ phi tư vấn, mua sắm hàng hóa, xây lắp, hỗn hợp theo phương thức một giai đoạn

Chapter II

THE SINGLE-STAGE PROCESS OF OPEN AND LIMITED BIDDING FOR NON-CONSULTING SERVICE, GOODS PURCHASE, CONSTRUCTION WORKS AND MIXED CONTRACTS

Section 1: SINGLE-STAGE ONE-ENVELOPE BIDDING PROCESS

Article 11. Specific process

1. Pre-selection of contactors must include:

a) Composing bidding document;

b) Verifying and approving the bidding document.

2. Selection of contactors must include:

a) Soliciting bidders;

b) Issuing, amending and clarifying the bidding documents;

c) Preparing, submitting, receiving, managing, amending and withdrawing the bid envelope;

d) Opening the bid packages.

3. Evaluation of the bid envelope must include:

a) Examining and evaluating the validation of the bid envelope;

b) Specifically evaluating the bid envelope;

c) Rating the bidder.

4. Discussing the agreement.

5. Reporting, verifying, approving, and announcing the result of contractor selection.

6. Completing and signing the contract.

Article 12. Composition of the bidding documents

1. Bases of the composition of bidding documents:

a) Decision on Project Approval or the Investment Certificate for the project; Decision on the Approval of Purchase Estimates for the recurring purchase and other documents. In respect of the contracts that need executing prior to the decision on the approval of the project, the decisions made by the heads of project or unit in charge of the project preparation shall be followed if the investor of the project has not been defined yet;

b) Approved plan for the selection of contractors;

c) Technical dossiers along with approved estimates for the construction or engineering contracts; required standards of technical features and specifications for commodities (if applicable);

d) Bidding regulations and other relevant laws; international treaties and agreements (if applicable) for the projects funded by the official development assistance capital or concessional loans;

dd) State policies on taxes, fees and the bid preferences in the selection of contractors and other relevant regulations.

2. Bidding documents must provide for the evaluation criteria of the bid envelopes including bidder's competence and experience; technical capability; the definition of lowest bid (in case of the application of the lowest bid method); the identification of evaluated price (in case of the application of evaluated price method). The bidding documents are not allowed to mention any terms and conditions that aim to restrict the participation of bidders or give priority to one or several bidder(s), which can cause unfair competition among bidders.

3. Criteria of the bid evaluation for the goods purchasing contracts include:

a) Competence and experience

“Pass” or “fail” system shall be used to form the evaluation criteria of bidder’s competence and experience in which the minimum criteria are set to give "pass" score for each content of bidder’s competence and experience. The criteria are specified as follows:

- Experience in implementing the same contracts; experience in performing their main production and business regarding the contract execution;

- Manufacturing and trading capability, facilities, skill and expertise of those who are involved in the contract execution;

- Financial competence: Total asset and liability, short-term asset and liability, revenue, profit, work-in-progress value and other essential criteria.

The definition of specific requirements that must be obtained for each criterion or standard as prescribed in this Point should rely on the requirements of a single contract. If bidders shall be given the “pass” criteria of all contents mentioned in this Point, it means that they have met all requirements for their competence and experience.

b) Technical capability

When using the pass, fail criteria system or 100 or 1,000-point grading scale to set standards of the technical evaluation, the minimum and maximum point of each general and specific standard in the grading scale must be defined. The criteria setting for the technical evaluation shall be based on relevant factors like the satisfaction with requirements for amount, quality and expiry date of delivery, shipping, installation, warranty and reliability of bidders through their previous performance of similar projects and other requirements mentioned in the bidding solicitation. Based on each contract, the bidding documents must provide criteria to serve as the basis of technical evaluation, including:

- Technical features and specifications of goods as well as production, fabrication and technological standards;

- Practicality and economic efficiency of technical solutions, goods supply and assembling methods;

- The satisfaction with requirements for warranty and maintenance;

- Geographical and environmental adaptation;

- Environmental impact and solutions;

- Possibility of financial provision (if required);

- Other requirements for trading, execution duration, training and technology transfer;

- Punctuality of goods supply;

- Bidder’s trust defined by evaluating their execution of previous contracts;

- Other essential factors.

c) Determination of lowest bid (in case of the application of lowest bid method):

- Determination of quoted bid;

- Error correction;

- Deviation adjustment;

- Discount deduction (if any);

- Conversion of quoted bid into a common currency (if any);

- Determination of preferential value (if any);

- Comparison of bidding documents to determine the lowest bid.

d) Criteria for determining evaluated price (in respect of the application of evaluated price):

Formula of the determination of evaluated price:

G_ĐG = G ± ∆_G + ∆_ƯĐ

Where:

- G = (quoted bid ± value of errors ± value of deviations) – value of discounts (if any);

∆_G denotes value of elements embedded on the same level for the life circle of goods, including:

+ Operation and maintenance cost;

+ Loan interest (if any);

+ Progress;

+ Quality (efficiency and capacity);

+ Origin;

+ Other factors (if any).

∆_ƯĐ denotes the added value for those who are not granted bid preferences according to the regulations mentioned at Point b Clause 2 Article 5 of this Decree.

4. Criteria of the bid evaluation for the construction contracts include:

a) Competence and experience

“Pass” or “fail” criteria system shall be used to form the evaluation criteria for bidder’s competence and experience in which the minimum requirements are set to give "pass" score for each of these contents. The criteria are specified as follows:

- Experience in implementing contracts with the same size, technical features, geographical, geological and site conditions (if any); experience in performing their main production and business regarding the contract execution;

- Technical capability: Amount and qualification of key personnel and engineers who will directly execute the contracts and quantity of available construction equipment, capability of construction facility mobilization for the contract execution;

- Financial competence: Total asset and liability, short-term asset and liability, revenue, profit, work-in-progress value and other essential criteria.

The determination of specific requirements for each criteria prescribed in this Point should rely on requirements of each contract. Those who are evaluated to pass all criteria mentioned in this point shall satisfy the requirements for their competence and experience.

b) Technical capability

When using the pass or fail criteria or 100 or 1,000-point grading scale to set standards of technical evaluation, the minimum and maximum point of each overall and specific standard in the grading scale must be defined. The criteria setting for the technical evaluation shall be based on relevant factors like the satisfaction with requirements for design documentation, bill of quantities, bidder's quality of performance on the previous contracts and other requirements mentioned in the bidding documents. Based on each contract, the bidding documents must provide detailed criteria as the basis of technical evaluation, including:

- Suitability and feasibility of technical solutions, construction arrangement and method in conformity with proposals for the construction progress;

Except the case in which bidders are requested to adhere to the construction method specified in the bidding documents due to a particular contract, the bidding documents should provide regulations on enabling bidders to propose a construction method different from the one specified in the bidding documents.

- Construction progress;

- Quality assurance methods;

- Assurance about environmental hygiene and other requirements like fire fighting, prevention and occupational safety;

- Satisfaction with requirements for warranty and maintenance;

- Bidder’s quality of previous performance on similar contracts;

- Other essential factors.

c) Determination of lowest bid price (in case of the application of lowest bid price) shall adhere to the regulations mentioned in Point c Clause 3 of this Article;

d) Criteria for determining evaluated price (in respect of the application of evaluated price method)

Formula of the determination of evaluated price:

G_ĐG = G ± ∆G + ∆_ƯĐ

Where:

- G = (quoted bid ± value of errors ± value of deviations) – value of discounts (if any);

- ∆G denotes value of elements embedded on the same level for the life circle of construction works, including:

+ Operation and maintenance cost;

+ Loan interest (if any);

+ Progress;

+ Quality;

+ Other factors (if any).

- ∆ƯĐ denotes the added value for those who are not granted bid preferences according to the regulations mentioned at Point b Clause 2 Article 4 of this Decree.

5. In terms of non-consulting service supply and mixed contracts

Based on the size and nature of contracts as well as regulations specified in Clause 2, 3 and 4 of this Article, the evaluation criteria of competence and experience; technical capability and lowest bid price (in case of the application of lowest bid price method) or standards in the determination of evaluated price (in case of the application of evaluated price method) shall be properly defined.

6. The application of combined technical and price evaluation method for the contractor selected through single-stage one-envelope bidding process shall not be applied.

7. Bidding documents are not permitted to inquire about the brand and origin of goods. In case of failure to describe the specifications according to technical features, technological designs and standards, brand and catalogue of a specific product can serve as a reference and illustration for technical features of goods but must write the phrase “or equivalences” after brand and catalogue as well as clearly specify equivalent contents of such illustrating and reference goods in terms of technical features, functions, technological standards and other contents (if any) to facilitate the preparation of the bid packages. Bidders are requested to submit the License or Authorization of goods sale from manufacturers or the Certificate of Partnership only if particular and complicated goods require the obligations of manufacturers to supply the after-sale services such as warranty, maintenance, repair and replacement components or materials.

8. Regulations on employee recruitment and utilization:

a) In terms of the international bidding, the bidding documents must set out the regulations on the recruitment of domestic employees if these employees are qualified and the domestic market is able to supply employments, especially manual labors. The employment of foreign workers in the contracts is only permitted when domestic workers are not qualified. Bidders who do not observe the regulations on the employee utilization upon the contract execution, depending on the severity of their violations, shall be prohibited from participating in the bidding in Vietnam under the regulations specified in Clause 4 Article 122 of this Decree;

b) In terms of the contract that needs a lot of manual labors, the bidding documents must require bidders to propose their solutions to the use of their local workers at which their projects or contracts are executed;

c) Investors take legal responsibility for their compliance with regulations specified in Point a of this Clause during the composition of the bidding documents, evaluation of bid packages, approval of the contractor selection result, signing and execution of the contracts;

d) Bid envelopes that fail to satisfy the requirement for the employee utilization specified in the bidding documents as prescribed in Point a of this Clause shall be eliminated.

Article 13. Verification and approval of the bidding documents

1. Bidding documents must be verified as prescribed in Article 105 of this Decree prior to approval.

2. The approval for the bidding documents must be in writing with reference to the submission statement on the approval and report on verification of the bidding documents.

Article 14. Arrangement for the selection of contactors

1. Soliciting bidders:

Procuring entities advertise the bid solicitation as prescribed in Point d Clause 1 Article 7 and Point b Clause 1 or Point a Clause 2 Article 8 of this Decree.

2. 2. Issuing, amending and clarifying the bid solicitation:

a) The bidding documents are released for contractors to participate in the open bidding or for those who are short-listed bidders. In case of bidders as joint ventures or consortiums, only one of the partners is required to purchase or receive the bid solicitation, even if the joint venture or consortium has not been founded yet when purchasing or receiving the bid solicitation;

b) In case of correcting the bid solicitation after release, procuring entities must make the decision on this correction as well as specify the corrected contents in the bid solicitation, which shall notify the bidders who have purchased or received the bid solicitation;

c) In case the bid solicitation need to be clarified, bidders must send the written requests to procuring entities within a minimum period of 03 working days (applicable to domestic bidding) and 05 working days (applicable to international bidding) before the deadline for the submission of bid packages for any possible consideration and solution. The clarification of the bid solicitation shall be undertaken by procuring entities by means of one or more form(s) as follows:

- Dispatch their clarification in writing to bidders;

- When necessary, a pre-bid conference must be held to discuss and clarify these confusing contents. Discussion contents for the clarification of the bid solicitation must be recorded in the form of the minutes and documented to send to bidders;

- Clarified contents must not contrast with approved contents in the bid solicitation. If the bid solicitation needs amending or modifying after this clarification, this amendment or modification to the bid solicitation must be carried out as prescribed in Point b of this Clause;

d) The written decision on the amendment or modification as well as the record of the bid solicitation constitutes the bid solicitation.

3. c) Preparing, submitting, receiving, managing, amending and withdrawing the bid packages:

a) Bidders are responsible for the preparation and submission of their bid packages as prescribed in the bidding documents;

b) Procuring entities shall receive and monitor the bid packages, which adheres to the regulations on the management of confidential files until the result of contractor selection is made known to the public; under no circumstances is the information of the bid packages revealed to any other bidders, except for the information that need disclosing during the bid opening. Those sent to procuring entities after the deadline for the bid submission shall not be opened and considered invalid and subject to being eliminated. Any further document that arrives after the deadline for bid submission with the aim of amending the existing bid packages shall be invalid, except for any document sent to clarify the bid packages as requested by the procuring entities or any of such documents that serve to certify the validation, competence and experience of the bidders;

c) Upon wishing to amend or withdraw the bid packages, bidders must lodge a written request to procuring entities. Procuring entities shall only give consent to this amendment or withdrawal from bidders if written requests are submitted prior to the deadline for the submission of bid packages;

d) Procuring entities are obliged to receive all of the bid packages from all bidders that arrive before the deadline for bid submission, even those who have not purchased or received the bid solicitation directly released by the procuring entities. In case bidders have not yet purchased the bidding documents, they must pay a sum equal to the selling price of the bidding documents to procuring entities to enable the bid packages to be accepted.

4. d) Open the bid packages:

a) The opening of the bid packages must be performed in the witness of all bidders and start in 01 hour after the deadline for bid submission expires. Only bid packages that have been submitted by the required deadline shall be opened in the witness of legal representatives of bidders who attend the bid-opening session, which is not dependent on the presence or absence of bidders;

b) Bid packages shall be opened in the alphabetical order of bidder’s names and the following processes must be observed:

- Request each legal representative of bidders to confirm whether letter of discount is attached to the bid packages or not;

- Check whether the seal is broken;

- Open the bid packages and clearly read the information regarding bidder’s names, amount of originals and copies of the bid packages; the quoted bid specified in their bid packages; discount value (if any); validity period of the bid packages; defined time of contract execution; value and validity of tender guarantee and other relevant information;

c) Records on the bid opening: All information mentioned in Point b of this Clause must be recorded. Records on the bid opening must be countersigned by representatives of procuring entities and bidders who participate in the bid opening session. Such records must be delivered to the participating bidders;

d) Representatives of procuring entities must also append their signature in the original bid, letter of discount (if any), authorization letter conferred on bidder's legal representatives (if any); joint venture or consortium agreement (if any); tender guarantee; financial proposals as well as other significant contents of the bid packages.

Article 15. Rules for the bid evaluation

1. The evaluation of the bid packages must follow the standards of the bid evaluation, different requirements specified in the bidding documents, the bid envelopes, demonstration or explanation of the bid envelopes to select the right contractors who prove their proper competence, experience and feasible solutions to executing contracts.

2. Since the evaluation is based on the bid copies, bidders must be responsible to ensure that they are identical to the originals. In case of any difference between the originals and copies without leading to any change in the rating of bidders, the originals are important to make critical evaluations.

3. In case of any difference between the originals and copies which leads to the difference between the evaluation result of original bid packages and that of duplicate bid packages as well as change to the rating of bidders, such bid packages shall be eliminated.

Article 16. Clarification of the bid packages

1. Upon completion of the bid opening, bidders are responsible to clarify their bid packages as requested by the procuring entities. In case bidder's evidence for their validation, competence and experience have been lacked, procuring entities request bidders to clarify and provide further documents to prove their validation, competence and experience. In respect of technical and financial proposals of bidders, the clarification must ensure no change in the basic contents of bid packages and quoted bids.

2. In case bidder's evidence for their validation, competence and experience have been lacked after the bid closing, bidders are allowed to send further documents for clarification. Procuring entities are responsible to accept the documents on clarification for consideration and evaluation; further documents on clarifying bidder's validation, competence and experience shall be considered a part of the whole bid packages.

3. This clarification is only involved by procuring entities and participating bidders, which must ensure rules for no change to the actual nature of concerned bidders. The clarification contents must be shown in writing and kept by procuring entities as a part of the bid packages.

Article 17. Error correction and deviation adjustment

1. Error correction involves correcting errors contained in the bid packages including numerical errors and others, which shall be performed under the following rules:

a) Numerical errors include those incurred in the inaccurate operations of addition, abstraction, multiplication and division during the estimation of quoted bid. In case the bidding documents require the detailed analysis on unit price, the figures in the detailed breakdown of quoted bid must be used as the basis of the correction of numerical errors. In case there is some inconsistency between unit price and total price, unit price shall serve as the basis of the error correction; if any dramatic errors in unit price has been found due to decimal errors (i.e., the decimal powers like 10, 100 or 1,000), total price shall serve as the basis of the error correction;

b) Other errors:

- At the column of total price that has been fully calculated without equivalent unit price, the unit price shall be additionally defined by dividing the total price by the quantity; when unit price has been defined but total price remains blank, the value in the total price column shall be identified by multiplying the quantity by unit price; if the unit price and the value of any item has been defined in the total price column but the quantity remains blank, this blank value shall be filled with the number generated by dividing the value in the total price column by the unit price of that item. In case the aforesaid quantity that has been additionally defined is different from the quantity mentioned in the bid packages, that value difference is the deviation in the scope of supply, which shall be adjusted under regulations specified in Clause 2 of this Article;

- Error or mistake of calculating unit must be corrected to satisfy the requirements specified in the bidding documents;

- In case there is any difference in the contents of technical and financial proposals, technical proposals shall serve as the basis of the error correction.

2. Adjustment of deviation:

a) In case there exists the deviation in the scope of supply, the deficient quoted value shall be added and the excess quoted value shall be subtracted to correspond to the equivalent unit price specified in the bid packages containing such deviations;

In the event of no unit price defined in the bid packages, the highest quoted price out of that of other bid packages that pass the technical evaluation shall be accepted as the basis of deviation adjustment on the same item; in case the bid packages of bidders that have passed the technical evaluation are provided with no unit price, the unit price specified in the bid estimates shall serve as the basis of the deviation adjustment; in case there is no bid estimate, the unit price forming the bid price shall serve as the basis of the deviation adjustment;

In the event that only one bidder passed the technical evaluation, the deviation adjustment shall be carried out on the basis of accepting the equivalent offer price; if the bid packages do not specify the unit price, the unit price in the bid estimate shall be accepted; if there is no bid estimate, the unit price forming the bid price shall be used as the basis of deviation adjustment;

b) If the offer price is quoted with a deficiency in taxes, fees and charges payable as requested in the bidding documents, procuring entities must add these expenses to the quoted bid. These expenses shall not be amounted to the negative deviation according to the regulations specified in Point d Clause 1 Article 43 of the Bidding Law;

c) If bidders present their letters of discount, error correction and deviation adjustment shall be performed on the basis of the quoted bid before discount. Percentage (%) of the negative deviation is determined on the basis of the quoted bid specified in the bid packages;

d) If the bid packages with adjusted deviations are ranked at the first position to be eligible for the contract negotiation, the lowest quoted offer out of other bid packages that pass the technical evaluation shall be accepted to negotiate the negative deviation.

3. After error correction and deviation adjustment as prescribed in Clause 1 and Clause 2 of this Article, procuring entities must send a written notification to concerned bidders about these corrections and adjustments. Within a period of 03 working days from the date on which bidders receive written notification from procuring entities, bidders must send their written notice to procuring entities about their consents to these error corrections and deviation adjustments. If bidders refuse to accept the result of error corrections and deviation adjustments on receipt of written notification from procuring entities, the bid package of these bidders shall be eliminated.

Article 18. Evaluation of the bid packages

1. Examining the validation of the bid packages must include:

a) Check the number of original and duplicate bid packages;

b) Examine ingredients of the bid packages, including the bid letter, agreement on founding joint venture or consortium (if any), authorization for the validation of the bid letter (if any); tender guarantee; proof of bidder’s validation; proof of bidder's competence and experience; technical proposal; financial proposal; other relevant ingredients.

c) Examine the consistency of contents described in the original and duplicate, which supports the detailed evaluation of bid packages.

2. Evaluation of the validation of bid packages:

A bid package is considered valid when it fully meets the following requirements:

a) Keep an original of the bid package available;

b) Hold the bid letter signed and sealed by a bidder’s legal representative (if any) as required in the bidding documents; identify definite time for the contract execution specified in the bid letter to correspond to the technical proposal; detail and fix the offer price in numbers and words, which must logically match total offer price quoted in the general pricelist; do not propose different quoted bids or invent any disadvantageous terms and conditions to investors or procuring entities. As for a bidder as a joint venture or consortium, the bid letter must be signed and sealed by a legal representative of each partner (if any) or the head on behalf of joint venture or consortium must sign the bid letter with reference to the duties assigned in the agreement on founding joint venture or consortium;

c) Validate the bid package to conform to the regulations specified in the bidding documents;

d) Hold the tender guarantee with its validity and expiry date conforming to requirements given in the bidding documents. In the event of the tender guarantee in the form of a guarantee letter, it must be issued by the legal representative of credit institutions or foreign bank's branches in compliance with Vietnam laws, which specify the value, expiry date and beneficiary as required by the bidding documents;

dd) Do not take part in two or more bid packages in which they are considered the main contractor (independent contractor or a partner of joint venture or consortium);

e) Show the agreement on founding the joint venture or consortium, signed and sealed by every partners (if any);

g) Prove that bidders are not prohibited from participating in the bidding according to bidding laws;

h) Ensure their valid status under regulations specified in Clause 1 Article 5 of the Bidding Law.

Those who submit their validated bid packages shall be considered and evaluated to verify their competence and experience.

3. Evaluation of competence and experience:

a) Competence and experience evaluation shall comply with the evaluation criteria prescribed in the bidding documents;

b) Bidders with satisfactory competence and experience shall be considered and evaluated to examine their technical capability.

4. Technical and price-based evaluation:

a) Evaluation of bidder’s offer price and technical capability must adhere to the evaluation standards and methods prescribed in the bidding documents;

b) Bidders who satisfy technical requirements shall be considered to define the lowest price (in respect of the application of the lowest bid price method) and evaluated price (in respect of the application of evaluated price method).

5. After finalizing the rating of bidders, the expert group shall compile reports to procuring entities for their consideration. Reports must clarify the following contents:

a) List of bidders who have been qualified for further consideration and rating together with bidder’s positions in this rating;

b) List of bidders who are not qualified and eliminated; reasons for elimination;

c) Remarks on bidder's competitiveness, fairness, transparency and economic efficiency of the contractor selection. If competitiveness, fairness, transparency and economic efficiency have not been ensured, reasons and recommendations for any possible solution must be stated as well;

d) Any content of the bidding documents that has not conformed to bidding laws, which can result to any possible confusion or ambiguity in further implementation or lead to any possible deviations on the result of contractor selection; recommendations and solutions.

Article 19. Contract negotiation

1. The bidder who has seized the first position in the bidder's rating shall be eligible for the contract negotiation. If any bidder who is invited to negotiate the contract has not turned up or refused to proceed to the contract negotiation, they are not allowed to reclaim their tender guarantee.

2. Contract negotiation shall be based on the followings:

a) Report on evaluation of the bidding documents;

b) Bid package and bidder’s records of clarification of bid package;

c) Bidding solicitation.

3. Rules of the contract negotiation:

a) Contents of the bid package that satisfy the requirements of the bidding documents do not need to be negotiated;

b) Contract negotiation is not allowed to change the quoted bid after error correction, deviation adjustment and discount deduction (if any). While evaluating bid packages and negotiating contracts, if workloads specified in the bill of quantities are lower than these mentioned in the design documentation, the soliciting party must request contractors to make up for this inadequacy on the basis of the quoted price; if a bid package has not provided the quoted price, procuring entities shall send reports to investors for consideration and decision on fixing the price in the approved estimate for these inadequate workloads or the price quoted by other bidders who have passed the technical evaluation

c) Negotiation over the negative deviation value shall comply with regulations specified in Point d Clause 2 Article 17 of this Decree.

4. Contents of contract negotiation:

a) Unspecified, inappropriate and inconsistent contents between bidding documents and bid packages or in the same bid package shall be negotiated to prevent any possible dispute or unexpected impact on the contractual obligations of contracting parties;

b) Deviations that have been found by the contractor and contractor’s recommendations (if any), including possible alternatives which contractors are allowed to provide according to relevant bidding regulations;

c) Personnel issues in respect of construction and mixed contracts:

In the course of negotiation, selected bidder is not allowed to change their key personnel as proposed in the bid package for those who are in charge of design and survey (in respect of construction and mixed contracts that require contractors to implement one or two design steps prior to construction), construction site, except the case in which the evaluation time is extended longer than the regulated time or because of unexpected events that dissuade these key personnel from participating in the contract execution. In such case, contractors have the right to change other personnel but must ensure the substitute employees prove qualification, experience and capability equivalent to or higher than proposed personnel and bidders are not allowed to change their quoted bids;

d) Any issue that arises during the selection of contractors (if any) in the aim of completing detailed contents of the contract;

dd) Other necessary issues.

5. In the course of contract negotiation, negotiating parties must proceed to draft and complete the official agreement, specific terms and conditions and annexes that determine detailed list of workloads, price list and contract execution progress (if any).

6. If the negotiation fails, procuring entities must report investors for their consideration and decision on soliciting bidders who are ranked at the next positions for contract negotiation; if the successive negotiations also fail, procuring entities must report investors for their consideration and decision on the bid cancellation as regulated in Clause 1 Article 17 of the Bidding Law.

Article 20. Report, verification, approval and announcement of the result of contractor selection.

1. On the basis of the report on the result of the evaluation of bid packages, procuring entities must submit the contractor selection result in which opinions on the evaluation contents performed by expert group must be clarified.

2. Result of contractor selection must be verified as prescribed in Clause 1 and Clause 4 Article 106 of this Decree prior to approval.

3. Result of contractor selection must be approved in writing and adhere to the documents on applying for the approval as well as the reports on verification of contractor selection.

4. If the winning contractor has been selected, the documents on approving the result of contractor section must include the followings:

a) Winning contractor’s name;

b) Winning bid;

c) Type of contract;

d) Contract execution period;

dd) Other notes (if any).

5. In case of the bid cancellation as prescribed in Clause 1 Article 17 of the Bidding Law, documents on approving the result of contractor selection or deciding the bid cancellation must clarify reasons for this cancellation and responsibility for concerned parties.

6. On receipt of the decision on approving the result of contractor selection, procuring entities must disseminate the information about the result of contractor selection according to Point d Clause 1 Article 7 and Point c Clause 1 or Point b Clause 2 Article 8 of this Decree; send a written notification about the result of contractor selection to the bidding contractors within the required period as regulated in Point n Clause 1 Article 12 of the Bidding Law. The notification must specify the following contents:

a) Information specified in Point a, b, c and d Clause 4 of this Article;

b) List of unselected bidders and a summary of reasons for elimination;

c) Plan for completing and signing the contract with selected bidders.

Section 2: SINGLE-STAGE ONE-ENVELOPE BIDDING PROCESS

Article 21. Specific process

1. Pre-selection of contactors must include:

a) Short-listing (when necessary);

b) Composing the bidding documents;

c) Verify and approve bidding documents.

2. Selection of contactors must include:

a) Inviting bidding contractors;

b) Issuing, revising and clarifying bidding solicitation;

c) Preparing, submitting, receiving, managing, adjusting and withdrawing bid packages;

d) Opening technical proposals.

3. Evaluation of technical proposals must include:

a) Examining and evaluating the validation of technical proposals;

b) Specifically evaluating technical proposals;

c) Approving list of bidders who satisfy the technical requirements.

4. Opening and evaluation of financial proposals must include:

a) Opening financial proposals formulated by bidding contractors in the approved list;

d) Examining and evaluating the validation of financial proposals;

c) Specifically evaluating financial proposals;

d) Ranking bidding contractors.

5. Negotiating the contract.

6. Reporting, verifying, approving, and announcing the result of contractor selection.

7. Completing and signing the contract.

Article 22. Short-listing

Based on the size and nature of a contract, short-listing process can be performed to select the qualified contractors who have proper competence and experience for the contract execution to send out the Invitation for Bids. The application of short-listing process shall be decided by competent entities and must be clarified in the plan for the contractor selection.

1. In terms of open bidding:

a) Composing application for the prequalification:

- Application for prequalification must include the following contents: Summary of project or contract information; instructions on preparing and applying for the prequalification; standards in the competence and experience of the bidding contractors;

- Pass/fail system shall be used to set standards in the evaluation of application for prequalification. In the criteria for evaluating applications for prequalification, the minimum requirement must stipulate that all specific contents of bidder’s competence and experience must receive "pass" score;

b) Approving the applications for prequalification must be performed in writing and based on the statements on approving and reporting verification of the request for prequalification;

c) Request for prequalification must observe regulations stated in Point d Clause 1 Article 7 and Point b Clause 1 or Point a Clause 2 Article 8 of this Decree;

d) Releasing the requests for prequalification:

Requests for prequalification shall be released free of charge to bidders prior to the deadline for bid submission;

dd) Receiving and managing the applications for prequalification:

Procuring entities must receive and manage the prequalification applications according to regulations on the management of confidential documents till the announcement of the prequalification result;

e) Opening and evaluating applications for prequalification:

- Applications for prequalification that have been submitted at the venue and time as regulated in the request for prequalification shall be opened right after the deadline for bid submission. The opening of application for prequalification shall be documented and records on the bid opening shall be sent to participating contractors. Any application for prequalification after the deadline for bid submission is not eligible to be opened and is considered invalid or eliminated;

- Evaluation of applications for prequalification shall be implemented as prescribed in the request for prequalification; Contractors whose applications for prequalification are given "pass" score in terms of all contents regarding contractors' competence and experience shall be short-listed.

g) Reporting, verifying and approving the prequalification result:

- On the basis of the report on the result of the evaluation of prequalification applications, procuring entities must seek the approval of prequalification result in which expert group’s opinions on the evaluation result must be clarified;

- Prequalification result must be verified as prescribed in Clause 1 and Clause 2 Article 106 of this Decree prior to approval;

- The approval of prequalification result must be conducted in writing with reference to the statements on approving and reporting the verification of prequalification result.

- In case short-listed bidders have been selected, the document on approving the prequalification result must include selected bidder's name and other notes (if any). In case short-listed bidders have not been selected, the document on approving the prequalification result must determine the reasons why they are not short-listed.

h) Announcement of the short-list: The short-list must be publicized as prescribed in Point d Clause 1 Article 7 and Point c Clause 1 or Point b Clause 2 Article 8 of this Decree and contractors who apply for the prequalification shall be notified as well.

2. In terms of limited bidding:

a) Defining and approving the short-list: the short-list must include minimum 03 bidders who prove their proper competence and experience to satisfy the requirements of the contract and wish to be awarded the bids;

b) Announcement of the short-list: After approval, the short-list must be publicized as prescribed in Point d Clause 1 Article 7 and Point c Clause 1 or Point b Clause 2 Article 8 of this Decree.

3. Short-listed bidders are not allowed to enter into a joint venture when participating in the same bidding.

Article 23. Composition of the bidding solicitation

1. Bases of the composition of bid solicitation shall adhere to regulations mentioned in Clause 1 Article 12 of this Decree.

2. The evaluation criteria of the bid packages must include contractor's competence and experience; technical capability; identification of lowest price (in case of the application of the lowest bid price method); identification of evaluated price (in case of the application of evaluated price method); identification of pricing score and general evaluation standards (in case of the application of combined technical and price-based method). As for the contract that has undergone the prequalification, it is not necessary to regulate the evaluation standards of contractor’s competence and experience but bidder's information about their competence must be updated. The bidding documents are not allowed to mention any terms and conditions that aim to restrict the participation of bidders or give priority to one or several bidder(s), which can cause unfair competition among bidders.

3. Criteria for evaluating bidder’s competence, experience and technical credentials shall adhere to regulations stated in Point a, Point b Clause 3 and Point a, Point b Clause 4 Article 12 of this Decree.

4. Determination of lowest bid price (in case of the application of lowest bid price method) shall adhere to the regulations mentioned in Point c Clause 3 Article 12 of this Decree.

5. Criteria for identifying evaluated price (in case of the application of evaluated price method) shall comply with regulations mentioned in Point d Clause 3 and Point d Clause 4 Article 12 of this Decree.

6. Criteria of the general evaluation (in case of the application of technical and price-base method) shall comply with regulations stated in Article 24 of this Decree.

7. Brand and origin of goods must comply with regulations set out in Clause 7 Article 12 of this Decree.

8. The recruitment and hire of employee must comply with regulations stated in Clause 8 Article 12 of this Decree.

9. In terms of non-consulting service supply and mixed contracts:

Based on the size and nature of the contract as well as regulations stated in Clause 2, 3, 4, 5, 6, 7 and 8 of this Article, the evaluation criteria of contractor's competence and experience; technical capability; identification of lowest price (in case of the application of the lowest bid price method); identification of evaluated price (in case of the application of evaluated price method); identification of pricing score and general evaluation standards (in case of the application of combined technical and price-based method) shall be properly set.

Article 24. General evaluation criteria

The general evaluation criteria set out for the application of combined technical and price-based method shall be specified as follows:

1. Identifying the pricing score:

100 or 1,000 – point system is made identical to technical point scales to identify the pricing score. Pricing score is calculated by the formula:

Where:

- Pricing score_{under consideration}: the pricing score of technical proposal in consideration;

- G_min: the lowest quoted bid after error correction, deviation adjustment and discount deduction (if any) out of the quoted bids whose financial proposals are evaluated;

- G_{in consideration}: the bid after error correction, deviation adjustment and discount deduction (if any) specified in the financial proposal that has been taken into account.

2. General evaluation criteria:

General evaluation criteria are set on the basis of the combined technical and price-based method. Depending on the size and nature of each contract, the proportion of technical and price-based scores must be identified to ensure that both are added together to equal 100%, which is specified as follows:

a) In respect of the construction contract: Proportion of technical score (K) ranging from 10% to 15% and proportion of price-base score ranging from 85% to 90%;

b) In respect of the goods procurement contract: Proportion of technical score (K) ranging from 10% to 30% and proportion of price-base score ranging from 70% to 90%;

c) In respect of the medicine purchase contract: Proportion of technical score (K) ranging from 20% to 30% and proportion of price-base score ranging from 70% to 80%;

d) Identifying the overall score:

Overall score _{under consideration} = K x Technical score _{under consideration} + G x Price-based score _{under consideration}

Where:

- Technical score _{under consideration} is identified at the technical evaluation step;

- Price-based score _{under consideration} is identified at the price-based evaluation step;

- K: Proportion of technical scores regulated in the overall scoring scale;

- G: Proportion of price-based score regulated in the overall scoring scale;

- K + G = 100%. Proportion of technical score (K) and price-based score (G) must be specifically identified in the bid solicitation.

Article 25. Verifying and approving the bidding documents

1. Bidding documents must be verified as prescribed in Article 105 of this Decree prior to obtaining the approval.

2. The approval of bidding documents must be granted in writing with reference to the statements on approving and reporting the verification of bidding documents.

Article 26. Contractor selection

1. 1. Soliciting contractors;

a) Notification of Invitation for Bids shall be applied in the event that the short-listing is not carried out and this shall be performed according to the regulations specified in Point d Clause 1 Article 7 and Point b Clause 1 or Point a Clause 2 Article 8 of this Decree;

b) Send out the Invitation for Bids to short-listed contractors.

2. Releasing, correcting and clarifying the bidding documents:

The release, adjustment and clarification of bidding documents shall comply with regulations specified in Clause 2 Article 14 of this Decree.

3. Preparing, submitting, receiving, managing, adjusting and withdrawing bid packages:

This process shall comply with regulations specified in Clause 3 Article 14 of this Decree.

4. 4. Opening technical proposals:

a) Opening technical proposals must be public and starts within 01 hour from the bid closing. Technical proposals that are submitted prior to the deadline shall be opened as required in the bidding solicitation and witnessed by bidder’s participating representatives without reference to the presence or absence of bidders;

b) The bid opening shall be carried out in the alphabetical order of bidder's name and follow the processes hereunder:

- Check the seal of bid packages;

- Open the bid packages and clearly read the information about bidder’s name; quantity of originals and copies of technical proposals; bid letter contained in technical proposals; validity period of technical proposals; time of contract execution; validity and expiry date of tender guarantee and other relevant information;

c) A record on the bid opening: All information specified in Point b of this Clause must be recorded in the record on the bid opening. The record on the bid opening shall be countersigned by representatives of procuring entities and participating bidders. This record must be sent to participating bidders;

d) Procuring entity’s representatives must be countersigned in the bid letter, authorization of bidder’s legal representatives (if any); agreement on founding the joint venture or consortium (if any); tender guarantee and other significant contents enclosed in each technical proposal;

dd) Financial proposals from all of bidders must be sealed in a separate envelope by the procuring entity and countersigned by representatives of procuring entities and participating bidders.

Article 27. Rules of evaluation and clarification of bid packages as well as error correction and deviation adjustment

1. Rules of evaluation of bid packages shall comply with regulations specified in Article 15 of this Decree.

2. The clarification of bid packages must adhere to regulations specified in Article 16 of this Decree.

3. Error correction and deviation adjustment shall adhere to regulations specified in Article 17 of this Decree.

Article 28. Evaluation of bidder’s technical proposals

1. a) Examining the validation of bidder’s technical proposals must include:

a) Examine the amount of original and duplicate technical proposals of bidders;

b) Check all parts of a technical proposal, including bid letter and agreement on founding the joint venture or consortium (if any), authorization of the signing on the bid letter (if any); tender guarantee; proofs of bidder’s valid status; proofs of bidder’s proper competence and experience; technical proposals and others contained in the technical proposals;

c) Check the consistent contents of originals and copies to serve as the detailed evaluation of technical proposals.

2. Evaluating the validation of technical proposals:

Bidder’s technical proposals shall be considered valid when they can satisfy the following requirements:

a) The original technical proposal is kept available;

b) Their bid letter contained in the technical proposal must be signed and sealed by bidder’s legal representatives (if any) as required in the bid documents; in the bid letter, bidders must specify the progress of contract execution which matches requirements of technical proposal. As for joint venture or consortium bidders, bid letter must be signed and sealed by legal representatives of joint venture or consortium partners (if any) or the heads of joint venture or consortium according to the duties assigned in the agreement on founding joint venture or consortium;

c) The validity of technical proposals is enabled to meet the requirements specified in the bidding documents;

d) The tender guarantee is shown in which the value and validity period must meet requirements specified in the bidding documents. In case the tender guarantee is required in the form of the guarantee letter, this letter must be signed by legal representatives of credit institutions or foreign bank’s branches that have been founded under Vietnam laws, which must determine the value, validity period and beneficiary of the tender guarantee according to requirements specified in the bidding documents;

dd) They are not involved in two or more technical proposals in which they serve as the main contractor (independent contractor or partner of joint venture or consortium);

e) Agreement on founding the joint venture or consortium is signed and sealed by each partner’s legal representatives (if any);

g) Contractors are not affected by any ban on participating in the bidding according to legal regulations on bidding;

h) Contractors must ensure their valid status according to regulations specified in Clause 1 Article 5 of the Bidding Law.

Contractors who have sent their valid technical proposals shall be considered and evaluated to confirm their competence and experience. As for a contract that has passed the prequalification stage, their competence and experience do not need to be evaluated.

3. Evaluating bidder’s competence and experience:

a) Evaluation of bidder’s competence and experience shall adhere to regulations specified in the bidding documents;

b) Contractors who have proved their proper competence and experience shall be considered and evaluated to confirm their technical credentials.

c) Bidders that have passed the prequalification stage, shown their valid technical proposals and had their current competence meet the requirements of contracts shall be considered and evaluated to confirm their technical capability.

4. Evaluation of technical capability:

a) Evaluation of bidder’s technical capability shall adhere to the evaluation standards set out in the bidding documents;

b) Contractors who have proved their proper technical capability shall be considered and evaluated to confirm their financial credentials.

5. List of bidders who can meet technical requirements must be approved in writing and referred to the statement on approving and reporting the verification of technical evaluation result. Procuring entity must announce the list of bidders who meet technical requirements to all of participating bidders, in which those who meet the technical requirements shall be invited to open their financial proposals.

Article 29. Opening the financial proposal

1. Examining the sealed envelope containing financial proposals.

2. Opening the financial proposal:

a) Only financial proposal that meets the technical requirements shall be opened in the witness of participating bidders who attend the opening of financial proposal without reference to the presence or absence of bidders;

b) The representative of bidders who participate in the opening of financial proposals shall be requested to certify that their discount letters attached to their financial proposals are available or not;

c) The opening of financial proposals shall be done in the alphabetical order of bidders who meet the technical proposal and follow the processes hereunder:

- Examining the unbroken seal of proposal envelope;

- Opening and reading aloud the information about bidder’s names; quantity of originals and copies of financial proposals; bid letter contained in the financial proposal; effective date of financial proposal; quoted bids specified in the bid letter; discount value (if any); technical scores of the bid packages that meet the technical requirements and other relevant information.

3. The record on the opening of financial proposal:

a) All information specified Clause 1 and Clause 2 must be recorded in the record on the opening of financial proposals. The record on the opening of financial proposals must be countersigned by representatives of procuring entity and participating bidders. This record must be sent to bidders who meet the technical requirements;

b) Representatives of procuring entity must append their signature on all pages of the original financial proposals.

Article 30. Evaluating the financial proposal

1. Examining the validation of bidder’s financial proposals must include:

a) Examine the amount of original and duplicate financial proposals;

b) Examine all parts of the financial proposal, including the bid letter contained in the financial proposal; overall and detailed price list; analysis of unit price (if any) and other parts contained in the financial proposal;

c) Examine the consistency of originals and duplicates to serve for the purpose of performing the specific evaluation of financial proposals.

2. Evaluating the validation of financial proposals:

Financial proposals of bidders shall be considered valid when satisfying the following requirements:

a) The original of financial proposal is kept available;

b) Their bid letter contained in the financial proposal must be signed and sealed by bidder’s legal representatives (if any) as required in the bidding documents; in the bid letter, the quoted bid must be specified and fixed in numbers or words and must correspond to total bid specified in the overall price list as well as is not allowed to make different quotations or provide terms and conditions that cause disadvantages to investors or procuring entities. As for joint venture or consortium bidders, financial proposal must be signed and sealed by legal representatives of joint venture or consortium partners (if any) or the heads of joint venture or consortium according to the duties assigned in the agreement on founding joint venture or consortium;

c) Validity of financial proposals must meet the requirements specified in the bidding documents;

Those who keep valid financial proposals shall be qualified for the detailed evaluation.

3. Detailed evaluation of financial proposals and rating of bidders:

a) Detailed evaluation of financial proposals and rating of bidders shall comply with the evaluation standards regulated in the bidding documents;

b) After finalizing the rating of bidders, expert group shall compile the report to procuring entities for consideration. The report must specify the following contents:

- List of bidders who are put under consideration, ranked as well as bidder's ranks;

- List of bidders who fail to meet the requirements and are eliminated; reasons for this elimination;

- Remarks on the competitiveness, equality, transparency and economic efficiency of the selection of contractors. In case of a lack of competitiveness, equality, transparency and economic efficiency, reasons and handling measures should be clarified and suggested;

- Any content that fails to conform to legal regulations on the bidding, possibly results to ambiguity or controversies during the implementation or create certain deviations of the contractor selection result (if any); any recommendation and handling measures.

Article 31. Negotiating the contract; submitting, verifying, approving and publicly announcing the result of contractor selection.

1. The bidder who is ranked at the first position shall be invited to negotiate the contract with procuring entities.

2. The contract negotiation shall comply with the regulations specified in Article 19 of this Decree.

3. Submitting, verifying, approving and publicly announcing the result of contractor selection shall adhere to regulations specified in Article 20 of this Decree.