Chương XII Nghị định 63/2014/NĐ-CP: Xử lý tình huống và giải quyết kiến nghị trong đấu thầu

Chapter XII

HANDLING OF BIDDING CASES AND CONSIDERATION OF BIDDING PETITIONS

Section 1: HANDLING OF BIDDING CASES

Article 117: Handling of bidding cases

1. If the value or contents of a contract need adjusting, the plan to select the contractor must be adjusted under the regulations of the law before the bid opening (other than the cases prescribed in Clause 2 and Clause 8 this Article).

2. If the approved contract estimate is different from the contract value in the approved plan to select the contractor, such contract estimate shall replace such contract value as follows:

a) If the approved estimate is higher than the contract value in the plan to select the contractor but such estimate is lower than the total investment of the project and the approved budget estimate, the plan to select the contractor shall not be adjusted. If the approved estimate is higher than the total investment of the project and the approved budget estimate, the plan to select the contractor shall be adjusted; if the method for selecting the contractor in such plan is no longer conformable, such method shall be adjusted;

b) If the approved estimate is lower than the contract value in the plan to select the contractor but the method for selecting the contractor in such plan is not changed, the plan shall not be adjusted; if the method for selecting the contractor needs adjusting to be conformable with the new value of the contract according to the approved estimate, the plan shall be adjusted.

3. If there are fewer eligible short-listed bidders, depending on each contract, such case shall be handled by:

a) Adding more bidders to the short-list;

b) Allowing the invitation for bid to be sent to the short-listed bidders.

4. After the deadline for submitting bids regarding the opening bidding, limited bidding or competitive bidding, there are fewer bidders submitting the bid-envelopes and proposals, such case shall be handled within 04 hours from such deadline by either:

a) extending the deadline in order to attract more bidders to submit the bid-envelopes and proposals. In this case, the new deadline for submitting bids and corresponding deadline must be specified so that the bidders can adjust the submitted bid-envelopes and proposals according to the new requirements;

b) Immediately opening bid-envelopes to carry out evaluation.

5. In case of a contract containing several items:

a) The invitation for bid, request for proposals must prescribed the conditions for submitting bids, measures and value of tender guarantee for each item or various items and method of evaluation of each item or some items so that the bidders can make appropriate bids;

b) The evaluation of bid-envelopes, proposals and consideration for contract award must ensure that the total successful bid for the contract is the lowest bid (if the contract is awarded according to the lowest bid); total evaluated price is the lowest (if the contract is awarded according to the evaluation); overall score is the highest (if the contract is awarded according to the application of combined technical and price-based method) and the successful bid for the contract is lower than the approved price for the contract without compared with the estimated cost of each item of the contract;

c) In case there is an item of some items of a contract which no bidders are interest in or no bidders satisfy the requirements prescribed in the invitation for bid and request for proposals, the investor shall send a report to the competent persons to adjust the plan to select the contractor by making the item(s) into an independent contract whose value is the total estimated cost of such item(s); the selection of contractors meeting the technical requirements with regard to the items to which bidders submitting bid-envelopes must ensure the evaluation principles prescribed in Point b this Clause;

d) There will be one contract if a contractor wins all of the contract items. There will be several contracts if several contractors win different contract items.

6. If the unit prices in the bid-envelope and proposals are remarkably low, which seriously affects the contract, the procuring entity shall request the bidder to make a written explanation for the feasibility of such unit prices. If the explanation of the bidder is not clear and persuasive, such unit prices shall not be accepted. Such case shall be considered deviation and such deviation shall be adjusted under the regulations similar to the regulations on the deficient quoted value and proposals compared with the requirements in the invitation for bid and request for proposals in accordance with the regulations in Article 17 of this Decree.

7. If the bid by the bidder ranked first exceeds the contract value (after error correction, adjustment of deviation, and deduction of discount) and the by one ranked bidder is lower than the contract value (after error correction, adjustment of deviation and deduction of discount), the bidder ranked first shall be invited to the price negotiation provided that the negotiated price shall not exceed the approved contract value. If such negotiation collapses, the bidder ranked next shall be invited.

8. If the bids by the bidders meeting the technical requirements and included in the ranked list exceed the approved contract value (after error correction, adjustment of deviation, and deduction of discount), such case shall be handled by either:

a) allowing such bidders to submit new bids if the contract value includes the constituents of the contractual cost;

b) allowing such bidders to summit new bids and the procuring entity to request the investor to reconsider the approved contract value and invitation for bid, if necessary.

If the bidders are allowed to submit new bids, the deadline for the preparation and submission of new bids must be specified. The bidders shall submit new bids within 10 days from the day on which the procuring entity send the written request for the submission of new bids. The opening of bid-envelopes submitting new bids shall be specified according to the procedures for bid opening prescribed in Article 29 of this Decree. If the contract value in the approved plan to select the contractor needs adjusting, the competent persons shall give a decision on such adjustment within 10 days from the receipt of such adjustment and before the deadline for the submission of new bids;

c) allowing the bidder ranked first to enter into the price negotiation provided that the negotiated price shall not exceed the bid (after error correction, adjustment of deviation, and deduction of the lowest discount). If the contract value in the approved plan to select the contractor needs adjusting, the competent persons shall give a decision on such adjustment within 10 days from the receipt of the request for such adjustment. If such negotiation collapses, the bidder ranked next shall be invited. This method shall apply on only the open bidding contracts and the investors shall be responsible for the competitiveness, impartiality, transparency and economic effectiveness of the contracts.

9. If a successful bid is lower than 50% of the approved contract value, an interdisciplinary assessing group shall be established to request the contractor to clarify constituents of the contractual cost and to consider relevant evidences such as:

a) the factors related to the execution of work, manufacturing process or provision of cervices;

b) the applied economic solutions or the considerable advantages of the contractor leading to the advantages in prices;

c) the origin of the goods, services and personnel provided for the contract provides that the regulations of the law must be complied with;

If all requirements prescribed in Points a, b and c this Clause are satisfied, the bid-envelope and proposal of the bidder are accepted to win the contract. The investor can set the value of tender guarantee higher than 10% but less than 30% of the successful bid which must approved by the competent persons. Such approval must be recorded in writing. In case of any bidder supported by any entity, which leads to unhealthy competition, the bid-envelope and proposal of such bidder shall be invalidated.

10. If the invitation for bid allow the bidders to propose construction methods other than the construction methods prescribed in the invitation for bid, the difference between the workload according to the construction methods in the invitation for bid and the workload according to the construction methods proposed by the bidders shall not be adjusted in accordance with the regulations in Article 17 of this Decree. Such difference shall not be considered negative deviation.

11. If the contractor violates the contract or is ineligible to continue executing the contract, which seriously affects the progress, quality and effectiveness of the contract, the investor shall request the competent persons consider approving the cancellation of the contract with such contractor. The remaining work shall be applied the no-bid contract of methods of selection of another contractor provided that the quality and progress of the contract is ensured. The value of the remaining work given to the new contractor is calculated by subtracting the value of the completed work from the contract value. In case of no-bidding contract awarding, the competent persons must ensure that the contractor must be qualified enough to carry out the remaining work. If the contractor is not responsible for the delay in conducting the contract, the contract signed with such contractor shall not be cancelled. In case the contract signed with the delinquent contractor must be ended, the investor must send a report to the Ministry of Planning and Investment for consideration and announcement of such delinquent contractor on the national bidding system and the Vietnam Public Procurement Review Journal within 05 working days from the issuance of Decision on the contract cancellation; such report must specify the reasons for the contract cancellation, method of selection of new contractor and appointed contractor in case of no-bidding contract awarding.

12. In case any bidder is separated or merged during the bidding, such bidder shall be allowed to continue participating in the bidding.

13. When signing the contract, if the contractor does not satisfy the requirements for technical and financial competence prescribed in Clause 2 Article 64 of the Law on Bidding, the bidder ranked next shall be invited to the contract negotiation. In this case, such bidder must revalidate their bid-envelope and tender guarantee if the bid-envelope is invalid and the tender guarantee is refunded or cleared.

14. That more than one bidder is considered equal after evaluation shall be handled by:

a) Awarding the contract to the bidder that has the highest technical score if the contract is awarded according to the lowest bid;

b) Awarding the contract to the bidder that has the lowest bid if the contract is awarded according to the evaluation or application of combined technical and price-based method.

15. Any case other than the cases prescribed in Clauses 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 of this Article arising shall be considered by the investor provided that the bidding must be competitive, impartial, transparent and economically effective.

Section 2: CONSIDERATION OF BIDDING PETITIONS

Article 118. Requirements for consideration of petition

1. The petition is submitted by the bidder.

2. The petition must bear the sign of the person signing the bid-envelopes or legal representative of the bidder and the stamp (if any).

3. The person in charge of considering the competitiveness receives the competitiveness under the regulations in Article 92 of the Law on Bidding.

4. Such proposal has not taken to court by the bidder.

5. The expenditure on handling of the any petition prescribed in Clause 8 Article 9 of this Decree shall be paid by the bidder submitting such petition to the standing assisting division of the Advisory Council in case of petition against the bidding result handled by the competent persons.

Article 119. Advisory Council

1. President of Advisory Council

a) The President of the Central Advisory Council is the competent representative of the Ministry of Planning and Investment. The Central Advisory Council shall give advice on the consideration of the petitions as required by the Prime Minister;

b) The President of the Advisory Council of Ministries, ministerial-level authorities, Governmental authorities and other central authorities (hereinafter referred to as Ministerial Advisory Council) is the competent representative of the units in charge of administering the bidding of such authorities). b) The Ministerial Advisory Council shall give advice on the consideration of the petitions regarding the contracts of the projects approved and administered by the Ministers, Heads of ministerial-level authorities, Governmental authorities and other central authorities other than the contracts prescribed in Point a this Clause;

c) The President of the provincial Advisory Council is the competent representative of the provincial Departments of Planning and Investment. The provincial Advisory Council shall give advice on the consideration of the competitiveness regarding the contracts of the projects in the provinces including the contracts of the enterprises established and operated in such provinces other than the contracts prescribed in Point a this Clause.

2. Members of Advisory Council:

Members of Advisory Council are the representatives of the competent persons and relevant professional association. Depending on the nature of each contract, in addition to the abovementioned members, the President of the Advisory Council can invite other individuals for the Advisory Council. The members of the Advisory Council must not be the relatives (biological parents, parents in law, biological children, adopted children, in-laws, biological sisters and brothers) of the persons signing the petition, of the persons directly evaluating the bid-envelopes and proposals, of the persons directly assessing the result of the selection of contractors and of the person approving the result of the selection of the contractors.

3. Activities of Advisory Council:

a) The President of the Advisory Council shall make a Decision to form the Advisory Council within 05 working days from the receipt of the petitions of the bidders. The Advisory Council shall be formed depending on each case;

b) The Advisory Council shall work on the principle of collectives, conduct polls based on the majority rule and send Reports to the competent persons for consideration; each member can stick to their opinion and take legal responsibility for it.

4. Standing assisting division of Advisory Council:

a) The standing assisting division shall be in charge of administering the bidding excluding the persons directly assessing the contracts for which the bidders file the petitions;

b) The standing assisting division shall be assigned the administrative tasks by the President of the Advisory Council; receive and manage the cost paid by the bidders submitting the petitions.

Article 120. Handling of petitions for selection of contractors

1. The duration of the consideration of any petition prescribed in Clause 1 and Clause 2 Article 92 of the Law on Bidding counted from the day on which the administrative division of the person in charge of considering such petition receives the petition.

2. The person in charge of considering the competitiveness shall send the bidder a written report that the petition shall not be considered if such petition does not meet the requirements prescribed in Article 118 of this Decree.

3. The bidder can send a written request for the withdrawal of the petition during the consideration of such petition.

4. The conclusion of the petition must be written on the reply to the petition; in case such petition is approved, there must be measures, methods and time to remedy the consequences (if any) and the standing assisting division shall request the relevant entities to reimburse the amount that the bidder submitting the petition pay to the Advisory Council. In case of disapproval, the written reply must specify the reasons.