Chương XIII Nghị định 63/2014/NĐ-CP: Xử lý vi phạm, kiểm tra, giám sát và theo dõi hoạt động đấu thầu

Chapter XIII

IMPOSITION OF PENALTIES FOR VIOLATIONS AND SUPERVISION OF BIDDING

Section 1: IMPOSITION OF PENALTIES FOR VIOLATIONS AGAINST REGULATIONS ON BIDDING

Article 121. Penalties for violations against regulations on bidding

1. Any entity committing any violation against the law on bidding shall be given a warning or a fine under the regulations of the law on imposition of penalties for administrative violations in the field of planning and investment.

2. Any entity committing any violation prescribed in Article 89 of the Law on Bidding and Clause 8 Article 12 of this Decree shall be prohibited from participating in the bidding.

3. Any individual committing any violation against the law on bidding which constitutes crimes under the regulations of the Criminal law shall be liable to criminal prosecution.

4. Any official committing any violation against the law on bidding shall be penalized under the regulation of the law on officials.

Article 122. Prohibition of participation in selection of contractors

Depending on the degree of the violation, an entity shall be:

1. Prohibited from participating in the bidding for 03 year to 05 years when committing any violation against the regulations in Clauses 1, 2, 3, 4 and 5 Article 89 of the Law on Bidding;

2. Prohibited from participating in the bidding for 01 year to 03 years when committing any violation against the regulations in Clauses 8 and 9 Article 89 of the Law on Bidding;

3. Prohibited from participating in the bidding for 06 months to 01 year when committing any violation against the regulations in Clauses 6 and 7 Article 89 of the Law on Bidding;

4. Prohibited from participating in the bidding for 01 year to 05 years when committing any violation against the regulations on use of employees prescribed in Clause 8 Article 12 of this Decree.

Article 123. Bidding cancellation, bidding suspension and invalidation of bidding result

1. The competent persons, investors and procuring entities may cancel the bidding when the bidders commit violations against the regulations of the law on bidding and other law provisions by issuing the Decisions on bidding cancellation in accordance with the regulations in Clause 4 Article 73, Clause 10 Article 74 and Point e Clause 2 Article 75 of the Law on Bidding.

2. The bidding suspension, invalidation of bidding result and decisions of the investors and procuring entities are prescribed as follows:

a) The bidding suspension and invalidation of bidding result shall be applied when there are evidences that the bidders commit violations against the regulations of the law on bidding and other relevant law provisions, which makes the bidding uncompetitive, partial and economically ineffective or falsifies the bidding result;

b) The bidding shall be suspended right after the violations are committed before the bidding result is approved. The bidding result shall be invalidated from the approval for the bidding result to the contract signing; or after the contract signing if necessary;

c) The record on the bidding suspension and invalidation of bidding result must specify the reasons, measures and time to remedy the violations against the regulations of the law on bidding;

d) The competent persons shall invalidate the decisions of the investors and procuring entities if such decisions are unconformable with the regulations of the law on bidding and relevant law provisions.

Article 124. Compensation for damage due to violations against law on bidding

Any wrongdoer committing violations against the law on bidding and causing damage must compensate for such damage under the regulations of the law on compensation for damage and other law provisions.

Section 2: INSPECTION AND SUPERVISION OF BIDDING

Article 125. Inspection of bidding

1. The bidding shall be inspected periodically or irregularly at the request of the Prime Minister, Presidents of the People’s Committees of provinces, competent persons of the inspecting authorities in charge of bidding in accordance with the regulations in Clause 2 this Article. Methods of inspection can be direct inspection or report.

2. The Ministers, Heads of ministerial-level authorities, Governmental authorities, other central authorities, Presidents of the People’s Committees of provinces; Directors of the provincial Departments of Planning and Investment, Heads of Departments under the management of the People’s Committees of provinces; Presidents of the People’s Committees of districts; ; Chiefs of state-owned enterprises shall direct the inspection of bidding of the units under their management and the projects approved by themselves to administer the bidding in order to enhance the progress and effectiveness of the bidding and detect, prevent and deal with the violations against the law on bidding.

3. The Ministry of Planning and Investment shall take charge and inspect the bidding across Vietnam; the Ministers, Heads of ministerial-level authorities, Governmental authorities, other central authorities; the People’s Committees of provinces; the provincial Departments of Planning and Investment and departments under the management of the People’s Committees of provinces and the People's Committees of districts; the state-owned enterprises shall take charge and inspect the bidding as required by the competent persons of the inspecting authorities in charge of bidding. The provincial Departments of Planning and Investment shall assist the People’s Committees of provinces in taking charge and conducting local inspection of bidding.

4. Inspection of bidding including periodic inspection and surprise inspection.

a) A periodic inspection involves:

- Inspecting the issuance of guiding documents on bidding, and division of responsibility for bidding;

- Inspecting the training in bidding;

- Inspecting the issuance of the Training certificates of bidding; practice certificates of bidding;

- Inspecting the formulation of and approval for the plan to select the contractors, EOI request, invitation for prequalification, invitation for bid, request for proposals, result of the selection of the contractors;

- Inspecting the contract and the adherence to the legal grounds for the signing and execution of the contract;

- Inspecting the procedures for and progress of the execution of the contract according to the approved plan to select the contractors;

- Inspecting the report on the bidding;

- Inspecting the inspection and supervision of the bidding.

b) According to each request for surprise inspection, and Decision on inspection, the chief inspector shall regulate the suitable inspection activities.

5. There must be inspection report and conclusion after each inspection ends. The inspecting authorities shall monitor the handling of the problems (if any) mentioned in the inspection conclusion. In case of any violation, it is required to impose the handling measures or send a report to the inspecting authorities for consideration.

6. An inspection conclusion includes:

a) The bidding at the inspected unit;

b) Inspected contents;

c) Comments;

d) Conclusion;

dd) Recommendations.

Article 126: Supervision of bidding

1. The competent persons shall appoint the regulatory individuals or bodies in charge of bidding to supervise the execution of the investors, procuring entities during the selection of the contractors to endure the adherence to the regulations of the law on bidding.

2. The competent persons shall decide and direct the supervision of the bidding regarding the contracts of the projects and budget estimates approved by themselves if necessary; supervise the sole source contracts, high value contracts of which the investors and procuring entities posing questions.

3. The Ministry of Planning and Investment shall take charge and supervise the bidding regarding the projects within the competence of the Prime Minister or at the request of the Prime Minister. The Ministries, ministerial-level authorities, Governmental authorities, other central authorities, units assigned to administer the bidding under the management of such authorities shall take charge and supervise the bidding in case the Ministers, Heads of ministerial-level authorities, Governmental authorities, and other central authorities are the competent persons. The provincial Departments of Planning and Investment shall take charge and supervise the bidding regarding the local projects.

4. A supervision of the compliance of the bidding with the regulations of the law on bidding involves supervising:

a) the compilation of invitation for bid, request for proposals (when preparing for the selection the contractor);

a) the release of the invitation for bid, request for proposals (when selecting the contractor);

c) the result of the evaluation of the bid-envelope, proposals, negotiation of the contract (when assessing the bid-envelope and proposals);

d) the assessment of and approval for the selection of the contractor;

dd) The process of the completion of the contract, contents of the contract and the adherence to the legal grounds for the signing and execution of the contract (when completing and signing the contract)

5. Methods of supervision of bidding:

a) The competent persons shall send written requests to the investors and procuring entities regarding the contracts needing supervising;

b) The procuring entities shall send the names and addresses of the supervising entities to the contractors having the invitations for bid and the proposals;

c) The procuring entities shall provide the information about the selection of the contractors for the supervising entities on receiving written requests;

d) The supervising entities in charge of bidding shall send written reports on the violations against the law on bidding to the competent persons for consideration to ensure the effectiveness of the selection of the contractors.

6. Responsibilities of every supervising entity in charge of bidding:

a) Stay honest and impartial; do not harass the investors and procuring entities during the supervision;

b) Request the investors and procuring entities to provide relevant information and documents which facilitate the supervision;

c) Receive the reflections of the contractors and other entities related to the selection of contractors on the supervised contracts;

d) Protect the information under the regulations;

dd) Fulfill other obligations under the regulations of the law on bidding and other law provisions.