Thông tư 04/2017/TT-BKHĐT quy định lựa chọn nhà thầu qua Hệ thống mạng đấu thầu Quốc gia

CIRCULAR

ON GUIDELINES FOR SELECTION OF BIDDERS THROUGH NATIONAL BIDDING NETWORK SYSTEM

Pursuant to the Law on Bidding No. 43/2013/QH13 dated November 26, 2013 of the National Assembly;

Pursuant to the Law on Electronic Transactions No. 51/2005/QH11 dated November 29, 2013 of the National Assembly;

Pursuant to the Government's Decree No. 63/2014/ND-CP dated June 26, 2014 on guidelines for the Law on Bidding in terms of selection of bidders;

Pursuant to the Government's Decree No. 86/2017/ND-CP dated July 25, 2017 on functions, tasks, powers and organizational structure of the Ministry of Planning and Investment;

The Minister of Planning and Investment promulgates a Circular on guidelines for selection of bidders through National bidding network system.

Chapter I

GENERAL PROVISIONS

Article 1. Scope

1. This Circular provides specific provisions for selection of preferred bidders through National bidding network system (hereinafter referred to as “e-selection of preferred bidders”) in procurement of consulting services, non-consulting services, procurement of goods, construction under scope of regulation of the Law on Bidding in the form of competitive bidding or domestic shopping method under single-stage and one-envelope bidding procedure or single-stage and two-envelope bidding procedure.

2. This Circular does not apply to procurements divided into smaller packages. If e-selection of preferred bidders needs to be applied to procurement divided into smaller packages, each package shall have separate selection of preferred bidders.

Article 2. Regulated entities

1. Entities relating to e-selection of preferred bidders subject to scope of regulation prescribed in Article 1 hereof.

2. Entities engaging in bidding not subject to scope of regulation prescribed in Article 1 hereof but choose to apply this Circular.

Article 3. Abbreviations

1. E-ITB means Invitation to Bid or Notice of Proposed Procurement of procurement applying e-selection of preferred bidders.

2. E-Bidding Document means Bidding Document, Request for Proposals, and Request for Quotation of procurement applying e-selection of preferred bidders.

3. E-Bid means Bid, Proposal, and Quotation of procurement applying e-selection of preferred bidders.

4. E-Technical Proposal means Technical Proposal of procurement applying e-selection of preferred bidders under single-stage and two-envelope bidding procedure.

5. E-Financial Proposal means Financial Proposal of procurement applying e-selection of preferred bidders under single-stage and two-envelope bidding procedure.

Article 4. Application of forms

1. Form 01 issued herewith applies to small-scale construction procurements in the form of competitive bidding, or e-shopping method under single-stage and one-envelope bidding procedure.

2. Form 02 issued herewith applies to small-scale procurement of goods in the form of competitive bidding, or e-shopping method under single-stage and one-envelope bidding procedure.

3. Form 03 issued herewith applies to small-scale procurement of non-consulting services in the form of competitive bidding, or e-shopping method under single-stage and one-envelope bidding procedure.

4. Form 04 issued herewith applies to construction procurements in the form of competitive bidding, or e-competitive bidding under single-stage and two-envelope bidding procedure.

5. Form 05 issued herewith applies to procurement of goods in the form of competitive bidding, or e-competitive bidding under single-stage and two-envelope bidding procedure.

6. Form 06 issued herewith applies to procurement of consulting services in the form of e-competitive bidding.

7. Form 07 issued herewith applies to procurements in the form of simplified shopping method.

Article 5. Bid Security

1. When submitting an e-Bid, the bidder shall furnish a Bid Security before the deadline for submission of bids in the form of bank guarantee from a bank or credit institution lawfully operating in Vietnam. The bidder may furnish an e-Bid Security directly to a bank or credit institution that has connected to national bidding network system (hereinafter referred to as the System). With regard to a bank or credit institution that has not connected to the System, the bidder shall scan the bank guarantee and enclose it to the e-Bid. In this case, the bidder must undertake to submit the original copy of Bid Security as prescribed in Clause 3 of this Article.

2. The original copy of Bid Security must be submitted to Procuring Entity in the following cases:

a) The bidder is invited to enter into negotiation;

b) The bidder violates laws and regulations on bidding so serious that it is not returned the Bid Security as prescribed in Clause 8 Article 11 of the Law on Bidding.

3. Within 5 working days from the date on which a Procuring Entity’s request is received, if the bidder refuses to submit the original copy of Bid Security, the bidder shall be sanctioned in conformity with its undertakings in the Letter of Bid.

Article 6. Format and size of files enclosed posted in the System

1. A file posted in the System must meet the following conditions:

a) It is in the format of MS Word, MS Excel, PDF, CAD, or image with texts in a Unicode font. Large-size files must be posted in the System in the *.zip or *.rar format;

b) It is not infected, broken or damaged and no password is established.

2. If a file enclosed in the e-Bid is not made in the given format prescribed in Clause 1 of this Article leading to the fact that Procuring Entity cannot open and read this file, it will not be evaluated anymore.

Article 7. Technical handling in case of system failure beyond control

In case of a system failure leads to suspension of service, procurements of which bid closing time or bid opening time falls to the failure duration are extended as follows:

1. If the failure is remedied and the System resumes operation in the period from 0h00’ to 12h00’, the new bid closing or opening time is 15h00’ on the same date, except for the case prescribed in Clause 3 of this Article.

2. If the failure is remedied and the System resumes operation in the period from 12h00’ to 24h00’, the new bid closing or opening time is 9h00’ on the next date, except for the case prescribed in Clause 3 of this Article.

3. If the failure is remedied and the System resumes operation in Saturday, Sunday, or a holiday, the new bid closing or opening time is 9h00' on the first working date after holidays.

4. If the bid closing or opening time must be extended as prescribed in Clauses 1, 2 and 3 of this Article, the evaluation of e-Bid must be carried out according to the bid closing or opening time specified in the e-Bidding Document that has been posted in the System.

Chapter II

E-SELECTION OF PREFERRED BIDDERS UNDER SINGLE-STAGE AND ONE-ENVELOPE BIDDING PROCEDURE

Section 1. ORDINARY PROCEDURES FOR SELECTION OF PREFERRED BIDDERS FOR PROCUREMENTS OF NON-CONSULTING SERVICES, PROCUREMENT OF GOODS, CONSTRUCTION PROCUREMENT IN THE FORM OF COMPETITIVE BIDDING OR SHOPPING METHOD

Article 8. Detailed procedures

1. Prepare the selection:

a) Make e-Bidding Document;

b) Evaluate and approve e-Bidding Document.

2. Hold the selection:

a) Post e-ITB and issue e-Bidding Document;

b) Amend and clarify e-Bidding Document;

c) Submit e-Bid;

d) Open bids.

3. Evaluate e-Bids and rank bidders.

4. Enter into negotiation; present, evaluate, approve and publish contract award.

5. Finalize and enter into contract.

Article 9. Composition and format of e-Bidding Document

1. Composition of e-Bidding Document:

a) e-ITB;

b) Chapter I: Instructions to Bidders;

c) Chapter II: Bid Data Sheet;

d) Chapter III: Evaluation and Qualification Criteria;

dd) Chapter IV: Forms of Bidding Document and Bids;

e) Chapter V: Technical Specifications;

g) Chapter VI: General Conditions of Contract;

h) Chapter VII: Special Conditions of Contract;

i) Chapter VIII: Contract Forms.

2. Contents of Chapters I and VI are included in PDF files and posted in the System for consistent application for all kinds of procurements. The Employer shall not be required to evaluate these two Chapters when evaluating e-Bidding Document for approval.

3. Chapter II, Chapter III (including Evaluation and Qualification Criteria), Chapter IV, Chapter VII are digitized as webforms in the System.

4. Chapter III (excluding Evaluation and Qualification Criteria), Chapter V, Chapter VIII are included in MS Word, MS Excel, PDF, CAD files, or in image, compressed files, or other formats in conformity with procurement, which are enclosed and posted in the System by the Procuring Entity.

Article 10. Making, evaluating and approving e-Bidding Document

1. The Procuring Entity signs in the System, and then select corresponding item “goods”, “construction”, or “non-consulting services” to make an e-ITB and other contents of e-Bidding Document.

2. After completing the e-Bidding Document, Procuring Entity shall print and submit it to the Employer for evaluation and approval. Procuring Entity shall take responsibility for consistency between the e-Bidding Document in the System and e-Bidding Document approved by the Employer.

3. Once in need of revise the e-ITB, the Procuring Entity must sign in its account and make any revision online upon receipt of the Employer’s consent.

4. In the event of any inconsistency between the e-Bidding Document enclosed in the System by Procuring Entity and the webform, the contents in the webform shall prevail for preparation and evaluation of e-Bids.

Article 11. Post e-ITB and issue e-Bidding Document;

1. The posting of e-ITBs and issuance of e-Bidding Documents shall be applied in accordance with guidelines in the System.

2. E-Bidding Document will be delivered free of charge after it is posted in the System. The minimum period for preparation of e-Bids is 10 working days in case of procurement in form of competitive bidding and 5 working days in case of procurement in form of shopping method under normal procedures from the first date on which the e-ITB is posted in the System.

Article 12. Amendments to and clarification of e-Bidding Document

1. The procuring entity must post the decision on approval of amendment e-Bidding Document (including amendment contents) and an updated version of e-Bidding Document which has already been revised (webform and enclosed files). Amendment must be completed within at least 03 working days prior to the bid closing time provided that bidders have enough time to prepare a complete e-Bid; if not, the closing time must be extended.

2. A bidder requiring any clarification of the e-Bidding Document shall send a request to Procuring Entity through the System at least 3 working days before the bid closing time for consideration. The clarification of e-Bidding Document shall be posted in the System by Procuring Entity. Should the amendment to the e-Bidding Document be deemed necessary as a result of a clarification, procedure prescribed in Clause 1 of this Article shall apply.

3. The system must send a notification of amendment to e-Bidding Document and clarification of e-Bidding Document to the bidder who has clicked “theo dõi” ("follow") on the e-ITB page, a subsidiary page of this online System via email.  It is noted that bidders are advised to frequently keep themselves updated with any correction made on the System in order to prepare correct e-Bid and meet e-Bidding Document requirements.

Article 13. Submission of e-Bid

1. Each bidder only submits a set of e-Bid in response to an e-ITB when participating in e-selection of preferred bidders. In case of joint venture, the leading JV's Party (or JV’s Party representative) or the JV’s Party member as assigned in the joint venture agreement shall submit the e-Bid.

2. Procedures for submission:

a) The bidder chooses the number of e-ITB;

b) The bidder inserts information as required by e-Bidding Document and encloses files to form a set of e-Bid. With respect to the content relating to the bidder’s qualifications, the bidder will declare it in a given webform without enclosing scans of relevant documents.

c) The bidder checks the information in e-Bid, and then click the button “cam kết” (“commit") on the letter of bid page, and submit e-Bid to the system.

3. The System notifies the bidder of whether the submission of e-Bid is successful or unsuccessful. The System will record the following information on the bidder’s submission of e-Bid: sender, recipient, sending time, sending status, number of enclosed files in the System as the basis for further settlement of motion or dispute (if any).

4. Withdrawal of e-Bid:

The bidder is entitled to withdraw e-Bid before the deadline for submission of bids. The System notifies the bidder of whether the withdrawal of e-Bid is successful or unsuccessful. The System will record the withdrawal time.

5. Re-submission of e-Bid:

After withdrawing the e-Bid as prescribed in Clause 4 of this Article, the bidder is entitled to re-submit the e-Bid in accordance with procedures prescribed in Clause 2 of this Article. If the bidder has submitted e-Bid before the Procuring Entity amends e-Bidding Document as prescribed in Article 12 of this Circular, the bidder must submit a new e-Bid in accordance with the amended e-Bidding Document.

Article 14. Bid opening

1. Upon the bid opening time, Procuring Entity shall sign in the System and choose the procurement to be opened according to number of e-ITB. Procuring Entity shall thereafter decode e-Bids of bidders.

2. The bid opening record must be published in the System, at least containing:

a) Procurement's details:

- Number of e-ITB;

- Procurement’s name;

- Procuring Entity’s name;

- Method of selection of preferred bidders;

- Type of contract;

- Bid opening completion time;

- Total participating bidders.

b) Participating bidder’s details:

- Bidder’s name;

- Bid price;

- Value and validity of Bid Security;

- Contract duration;

- Others (if any).

3. The bid opening must be completed within 2 hours from the bid closing time.

4. If there are less than 3 bidders submitting e-Bid, Procuring Entity will open bids immediately without following regulations prescribed in Clause 4 Article 117 of Decree No. 63/2014/ND-CP.

Article 15. Evaluation of e-Bid

1. Procuring Entity signs in the System and downloads e-Bids for evaluation. The evaluation of e-Bids shall be done in accordance with the Law on Bidding, Decree No. 63/2014/ND-CP and evaluation criteria mentioned in the e-Bidding Document.

2. e-Bidding Document, bid opening record, e-Bids, and clarifications of e-Bidding Document, e-Bids will serve as legal basis for evaluation of e-Bids.

3. In the event of any inconsistency between Bid Security, joint venture agreement declared in the System by the bidder and scans of bank guarantee, joint venture agreement, the texts in scans will prevail.

4. In the event of any inconsistency between files enclosed to e-Bid submitted to the System by the bidder and the webform, the contents in the webform shall prevail for evaluation of e-Bids, except for the case prescribed in Clause 3 of this Article.

5. Regarding contents of qualifications, the e-Bid will be evaluated according to bidder’s declaration in the e-Bid without requiring the bidder to enclose any file as evidence. If any untruthful information provided by the bidder is detected, the bidder will be considered committing fraud acts as prescribed in Clause 4 Article 89 of the Law on Bidding and be liable for ban from bidding for a period of 3 to 5 years as prescribed in Clause 1 Article 122 of Decree No. 63/2014/ND-CP. A bidder to be invited to enter into negotiation must submit documents justifying its qualifications and technical capacity to Procuring Entity for comparison with its corresponding declaration in the e-Bid.

6. Process of evaluation of e-Bids:

According to e-Bids submitted in the System and method of evaluation specified in e-Bidding Document, Procuring Entity will choose one of two process below:

a) Process 01: to be applied in case of “cost-based selection” and lowest-evaluated selection”

- Step 1: Evaluate if e-Bid is eligible

- Step 2: Evaluate qualifications.

- Step 3: Evaluate technical aspects.

- Step 4: Rank bidders.

b) Process 2: to be applied in case of procurement under single-stage and one-envelope bidding procedure, in which e-Bid is evaluated according to “lowest-evaluated selection” and e-Bids have no incentives:

- Step 1: Rank bidder according to the lowest bid price (without approving the list of ranked bidders prescribed in Article 16 hereof);

- Step 2: Evaluate if e-Bid of the first-ranked bidder is eligible;

- Step 3: Evaluate qualifications of the first-ranked bidder;

- Step 4: Evaluate technical aspects of the first-ranked bidder.

If the first-ranked bidder is considered unresponsive, the second-ranked will thereafter be evaluated using the above steps.

7. Clarification of e-Bid: Procuring Entity and bidders will ask for and make clarifications of e-Bid directly in the System.

8. Expert group will employ the form of evaluation report (form 1) issued together with Circular No. 23/2015/TT-BKHDT dated December 21, 2015 of the Ministry of Planning and Investment to make a report on evaluation of e-Bid.

Article 16. Approving the list of ranked bidders

With regard to the process 01 prescribed in Point a Clause 6 Article 15 of this Circular, Procuring Entity shall, according to report on evaluation of e-Bid sent by the expert group, submit the list of ranked bidders using form in Appendix 5A issued together with Circular No. 23/2015/TT-BKHDT for Employer’s approval.

Article 17. Entering into negotiation, presenting, evaluating and approving contract award

1. The negotiation of contract shall be done in accordance with Article 19 of Decree No. 63/2014/ND-CP.

2. The presentation, evaluation and approval for contract award shall be done in accordance with Article 20 of Decree No. 63/2014/ND-CP.

Article 18. Publication of the contract award, finalization and conclusion of contract

1. After the contract award is approved, Procuring Entity must publish it in the System, at least containing:

a) Procurement's details:

- Number of e-ITB;

- Procurement’s name;

- Procurement price or approved estimate (if any);

- Procuring Entity’s name;

- Method of selection of preferred bidders;

- Contract award posting completion time.

b) Information on the successful bidder:

- Bidder’s name;

- Bid price;

- Successful bid;

- Contract duration.

c) In case of procurement of goods, Procuring Entity shall publish information on every type of goods and equipment in the procurement of goods:

- Good’s name;

- Capacity;

- Functions, specifications;

- Origin;

- Unit of successful bid.

d) Decision on approval for contract award.

2. The finalization and conclusion of contract shall be done in accordance with the Law on Bidding, Decree No. 63/2014/ND-CP and relevant law provisions.

Section 2. SIMPLIFIED SHOPPING METHOD

Article 19. Composition and format of e-Bidding Document

1. Composition of e-Bidding Document:

a) Chapter I – Request for quotations;

b) Chapter II - Forms of Bidding Document and Bids;

c) Chapter III - Contract Forms.

2. Chapter I applies to procurements (procurement of goods, construction works, non-consulting services) consistently, with unchanged contents, in the form of PDF and to be posted in the System. The Employer shall not be required to approve this Chapter when considering e-Bidding Document for approval.

3. Chapter II includes forms of bidding documents and bids which are digitized as webforms in the System.

4. Chapter III includes MS Word files enclosed by Procuring Entity in the System.

Article 20. Preparation and approval for e-Bidding Document

The preparation and approval for e-Bidding Document shall be done in accordance with Article 10 hereof. The Employer shall not be required to evaluate this Chapter when evaluating e-Bidding Document for approval.

Article 21. Notification and issuance of e-Bidding Document

Notification and issuance of e-Bidding Document shall be done in accordance with Article 11 hereof. The preparation of e-Bid is within 3 working days from the first date on which e-ITB is posted in the System.

Article 22. Amendments to and clarification of e-Bidding Document, submission of e-Bid and bid opening

1. The amendments to and clarification of e-Bidding Document shall be done in accordance with Article 12 hereof.

2. The submission of e-Bid and bid opening shall be done in accordance with Article 13 and Article 14 hereof.

Article 23. Evaluating e-Bid, entering into negotiation, evaluating and approving contract award, finalizing and concluding contract

The evaluation of e-Bid, negotiation of contract, evaluation and approval for contract award shall be done in accordance with Article 59 of Decree No. 63/2014/ND-CP.

Chapter III

PROCEDURES FOR E-SELECTION OF PREFERRED BIDDERS FOR PROCUREMENTS OF CONSULTING SERVICES, NON-CONSULTING SERVICES, PROCUREMENT OF GOODS, CONSTRUCTION PROCUREMENT IN THE FORM OF COMPETITIVE BIDDING UNDER SINGLE-STAGE AND TWO-ENVELOPE BIDDING PROCEDURE

Article 24. Detailed procedures

1. Prepare the selection:

a) Make e-Bidding Document;

b) Evaluate and approve e-Bidding Document.

2. Hold the selection:

a) Invite to bid and issue e-Bidding Document;

b) Amend and clarify e-Bidding Document;

c) Submit e-Bid;

d) Open e-Technical Proposal.

3. Evaluate e-Technical Proposal, present, evaluate and approve the list of technically-responsive bidders.

4. Open e-Financial Proposal.

5. Evaluate e-Financial Proposal and rank bidders.

6. Enter into negotiation; present, evaluate, approve and publish contract award.

7. Finalize and enter into contract.

Article 25. Making, evaluating and approving e-Bidding Document

The preparation, evaluation and approval for e-Bidding Document shall be done in accordance with Article 10 hereof.

Article 26. Notification and issuance of e-Bidding Document

Notification and issuance of e-Bidding Document shall be done in accordance with Article 11 hereof. The preparation of e-Bid is within 20 working days from the first date on which e-ITB is posted in the System.

Article 27. Amendments to and clarification of e-Bidding Document, submission of e-Bid

The amendments to and clarification of e-Bidding Document and submission of e-Bid shall be done in accordance with Article 12 and Article 13 hereof.

Article 28. Opening e-Technical Proposal

1. Upon the bid opening time, Procuring Entity shall sign in the System and choose the procurement to be opened according to number of e-ITB. Procuring Entity shall thereafter decode e-Technical Proposals of bidders.

2. The e-Technical Proposal opening record must be published in the System, at least containing:

a) Procurement's details:

- Number of e-ITB;

- Procurement’s name;

- Procuring Entity’s name;

- Method of selection of preferred bidders;

- Type of contract;

- Bid opening completion time;

- Total participating bidders.

b) Participating bidder’s details:

- Bidder’s name;

- Contract duration;

- Value and validity of Bid Security (not applied to procurement of consultancy services);

- Others (if any).

3. The e-Technical Proposal opening must be completed within 2 hours from the bid closing time.

Article 29. Evaluation of e-Technical Proposal

1. The evaluation of e-Technical Proposal shall be done in accordance with Clauses 1, 2, 3, 4, and 5 Article 15 hereof.

2. Expert group will employ the form of evaluation report (form 2) issued together with Circular No. 23/2015/TT-BKHDT to make a report on evaluation of e-Technical Proposal. According to the report on evaluation of e-Technical Proposal issued by the expert group, Procuring Entity shall submit the list of technically-responsive bidders in accordance with Appendixes 3A, 3B issued together with Circular No. 23/2015/TT-BKHDT for Employer's approval.

3. Clarification of e-Bid: Procuring Entity and bidders will ask for and make clarifications of e-Bid directly in the System.

Article 30. Publishing the list of technically-responsive bidders

Upon the decision on approval for the list of technically-responsive bidders, Procuring Entity must publish this list in the System according to the following orders:

1. Procuring Entity shall sign in the System and choose the procurement to be posted according to number of e-ITB.

2. Choose the list of technically-responsive bidders to insert information and enclose scans of the responsive approval, and then publish it in the System. Upon the successful post, the System will send notifications to technically-responsive bidders named in the list.

Article 31. Opening e-Financial Proposal

1. Procuring Entity shall sign in the System and choose the procurement to be opened according to number of e-ITB. Procuring Entity decodes e-Financial Proposal of bidders named in the list of technically-responsive bidders.

2. The e-Financial Proposal opening record must be published in the System, at least containing:

a) Procurement's details:

- Number of e-ITB;

- Procurement’s name;

- Procuring Entity’s name;

- Method of selection of preferred bidders;

- Type of contract;

- Bid opening completion time.

b) Information of bidders whose Financial Proposal are opened:

- Bidder’s name;

- Bid price.

Article 32. Evaluation of Financial Proposal and approval for the list of ranked bidders

1. The evaluation of e-Financial Proposal and ranking of bidders shall be done directly and in accordance with the Law on Bidding and Decree No. 63/2014/ND-CP.

2. Expert group will employ the form of evaluation report (form 2) issued together with Circular No. 23/2015/TT-BKHDT t to make a report on evaluation of e-Financial Proposal. The Employer considers approving the list of ranked bidder using the Appendix 5B issued together with Circular No. 23/2015/TT-BKHDT.

Article 33. Entering into negotiation; presenting, evaluating and approving contract award

The negotiation of contract, presentation, evaluation and approval for contract award, finalization and conclusion of contract, publication of the contract award shall be done in accordance with Articles 17 and 18 hereof.

Chapter IV

IMPLEMENTATION

Article 34. Entry in force

1. This Circular comes into force as of March 1, 2018. This Circular supersedes Circular No. 07/2016/TT-BKHDT dated June 28, 2016 of the Ministry of Planning and Investment and supersedes Chapter III of Joint Circular No. 07/2015/TTLT-BKHDT-BTC dated September 8, 2015 of the Ministry of Planning and Investment, the Ministry of Finance.

2. According to actual situation, Public Procurement Agency and the Ministry of Planning and Investment may modify forms as webforms in the System to enable parties to participate in e-selection of preferred bidders, simplify administrative procedures, and enhance the competitiveness, equality, transparency and economic efficiency in bidding, and effective management of bidding.

3. Ministries, ministerial-level agencies, governmental agencies, other agencies of central government, People’s Committees at all levels and relevant units shall implement this Circular. Difficulties that arise during the implementation of this Circular should be reported to the Ministry of Planning and Investment for guidelines./.

FORM OF E-BIDDING DOCUMENTS ON E-PROCUREMENT OF CONSULTING SERVICES

(Issued together with Circular No. 04/2017/TT-BKHDT dated November 15, 2017 of the Ministry of Planning and Investment)

E-BIDDING DOCUMENTS

CONTENTS

Summary

Abbreviations

Part 1. BIDDING PROCEDURES

Chapter I. Instructions to Bidders (E-ITB)

Chapter II. E-Bid Data Sheet (E-BDS)

Chapter III. Evaluation and Qualification Criteria

Chapter IV. Bidding Documents and Bid Forms

Part 2. Terms of Reference

Chapter V. Terms of Reference

Part 3. CONDITIONS OF CONTRACT AND CONTRACT FORMS

Chapter VI. General Conditions of Contract

Chapter VII. Special Conditions of Contract

Chapter VIII. Contract Forms

SUMMARY

Part 1. BIDDING PROCEDURES

Chapter I. Instructions to Bidders (E-ITB)

This Chapter provides information to help Bidders prepare their bids.   Information is also provided on the preparation, submission, opening, and evaluation of bids and on the award of Contracts.   This Chapter contains provisions that are to be used without modification.

This Chapter applies to every e-procurement of consulting services, is made in PDF file and posted on the System.

Chapter II. E-Bid Data Sheet (E-BDS)

This Chapter includes provisions that are specific to each procurement and that supplement Chapter I.

Chapter II includes forms which are digitized as webforms on the System. The Employer shall make entries in e-BDS on the System.

Chapter III. Evaluation and Qualification Criteria

This Chapter specifies the criteria to evaluate the E-Bids.

This Chapter consists of: Section 1 (Evaluation of Eligibility of E-Bid), Section 2 (Technical Evaluation Criteria), Section 3 (Financial Evaluation Criteria), made in PDF/Word and posted on the System.

According to the entries made by the Employer, the System will automatically create bidding forms corresponding to the evaluation criteria.

Chapter IV. Bidding Forms

This Chapter includes the forms which, once completed, will form part of the E-Bid.

In this Chapter, certain forms shall be digitized as webforms and certain forms shall be made in PDF/Word. The Bidder must make entries into the forms and submit the E-Bid on the System.

Part 2. TERMS OF REFERENCE

Chapter V. Terms of Reference

Terms of Reference (TOR) includes introduction about procurement, scope of work, report, time for performance, experience and personnel of the Bidder, responsibilities of the Employer. TOR shall be displayed in PDF/Word, prepared and enclosed by the Employer on the System.

Part 3. CONDITIONS OF CONTRACT AND CONTRACT FORMS

Chapter VI. General Conditions Of Contract

This Chapter includes the general clauses to be applied in all contracts of different procurements. This Chapter contains provisions that are to be used without modification.

This Chapter applies to every e-procurement of consulting services, is made in PDF file and posted on the System.

Chapter VII. Special Conditions of Contract

This Chapter includes contract data and special conditions, containing clauses specific to each contract. The Special Conditions of Contract modify or supplement but not replace General Conditions of Contract.

This Chapter shall be digitized as webform. The Employer shall make entries in Special Conditions of Contract on the System.

Chapter VIII. Contract Forms

This Chapter includes the forms, which, once completed, incorporates to the Contract.

This Chapter includes PDF/Word files prepared by the Employer.

ABBREVIATIONS

Part 1. BIDDING PROCEDURES

Chapter I. INSTRUCTIONS TO BIDDERS

Chapter II. BID DATA SHEET

Chapter III. E-BID EVALUATION CRITERIA

Section 1. Evaluation of the eligibility of the E-Technical Proposal

An E-Technical Proposal is considered eligible when all of the requirements below are satisfied:

1. The Bidder shall not have its name included in multiple Bids as a primary Bidder (an independent Bidder or a JV’s Party) for the same procurement.

2. There is a joint venture agreement which is signed and stamped (if any) by the duly legal representative of each JV’s Party. The joint venture agreement must clarify the detailed tasks and value thereof to be performed by each JV’s Party and responsibility of the representing JV’s Party for using their digital certificate to make a bid;

In the event of any inconsistency between the joint venture agreement declared in the System by the bidder and scan of joint venture agreement, the texts in scan will prevail.

3. The Bidder’s qualifications are satisfied as prescribed in E-ITB Section 5.

4. The Bidder is eligible for performance capacity in compliance with special law (if any).

The Bidder having an eligible E-Bid shall be evaluated further.

Section 2. Technical evaluation criteria

a) The technical evaluation for each Bid shall apply weighted scoring method (on a scale of 100 or 1,000), in specific:

Key personnel specified in the item 3 of this table must have long-term or indefinite-term employment contracts with the Bidder. In case certain key personnel not employed by the Bidder are engaged, the Bidder shall provide explanation.

b) Technical evaluation criteria must meet the following requirements:

- Regarding procurement which applies Least-Cost Selection (LCS), Fixed-Budget Selection (FBS), or Quality- and Cost-Based Selection (QCBS):

+ The minimum score of experience and qualification, solution and methodology, or personnel criterion may not be lower than 60% of the maximum score of that criterion. An E-Bid does not achieve the minimum score of any of experience and qualification, solution and methodology, or personnel criterion shall be declared technically-nonresponsive.

+ The minimum technical score shall be not lower than 70% of the total technical score. An E-Bid achieving a technical score not lower than the minimum score will be considered technically-responsive.

- If the procurement applies Quality-Based Selection (QBS):

+ The minimum score of experience and qualification, solution and methodology, or personnel criterion may not be lower than 70% of the maximum score of that criterion. An E-Bid does not achieve the minimum score of any of experience and qualification, solution and methodology, or personnel criterion shall be declared technically nonresponsive.

+ The minimum technical score shall be not lower than 80% of the total technical score. An E-Bid achieving a technical score not lower than the minimum score will be considered technically-responsive.

Section 3. Financial evaluation criteria

According to the scope and nature of each procurement, one of the two methods below may be applied:

Section 3.1. Least-Cost Selection (LCS)

LCS includes following steps:

Step 1: Determine the bid price, bid price after discounts (if any);

Step 2. Determine incentives (if any) as prescribed in E-ITB Section 25;

Step 3: Rank bidders: E-Bid with the lowest bid price after discounts (if any) shall be ranked first.

Section 3.2. Fixed-Budget Selection (FBS)2

FBS includes following steps:

Step 1: Determine the bid price, bid price after discounts (if any);

Step 2. Determine incentives (if any) as prescribed in E-ITB Section 25;

Step 3: Rank bidders: E-Bid with the highest technical score and the bid price after discounts (if any) not exceeding the fixed budget specified in E-ITB 13.3 shall be ranked first.

Section 3.3. Quality- and Cost-Based Selection (QCBS)3

Use the same scale of 100 or 1,000 with technical evaluation criteria.

The financial score shall be determined as follows:

Step 1: Determine the bid price, bid price after discounts (if any);

Step 2. Determine financial score:

The financial score shall be determined according to the bid price, in specific:

Financial score = [Lowest bid price x (100 or 1,000)]/Bid price

Where:

- Financial score: score of the Financial Proposal;

- Lowest bid price: The lowest bid price after discounts (if any) among the financial proposals being evaluated;

- Bid price: bid price after discounts (if any) of the Financial Proposal.

Step 3. Determine combined score:

The combined score shall be determined according to the following formula:

Combined score = K x Technical score + G x Financial score

Where:

+ Technical price:  score determined at the technical evaluation step;

+ Financial score: score determined at the financial evaluation step;

+ K: weight given to technical proposal mentioned in the combined scale system, accounting for 70% to 80%;

+ G: weight given to financial proposal mentioned in the combined scale system, accounting for 20% to 30%;

+ K + G = 100%.

Step 4. Determine incentives (if any) as prescribed in E-ITB Section 25.

Step 5: Rank bidders: The Bid achieving the highest combined price shall be ranked first.

Chapter IV. BID FORMS

Form No. 01

POWER OF ATTORNEY⁽¹⁾

Today, on _________[date] at__________[location]

I am __________[insert name, ID/passport number, position of bidder’s legal representative], the legal representative of _______ [insert name of bidder] at _____________ [insert address of bidder] hereby authorizes _____________ [insert name, ID/passport number, position of authorized person] to perform the following tasks during the participation in the process of bidding for ____________ [insert name of the procurement] of _____________ [insert name of the project] held by ____________ [insert name of the Employer]:

[Sign the Joint Venture Agreement (if any);

- Sign documents with the Employer during the procurement process, including the request for Clarification of E-Bidding Documents and E-Bids; sign requests for E-Bid withdrawal;

- Participate in contract negotiation and finalization;

- Sign complaint letter (if any);

- Sign contract with the Investor if the Bidder is successful]⁽²⁾.

The authorized person only performs the tasks within the area of competence of a legal representative of __________ [insert name of bidder]. ____________ [insert name of bidder’s legal representative] is totally responsible for the tasks performed by ___________ [insert name of authorized person] within the authorization scope.

The Power of Attorney is effective from __________ [date] to _________ [date] ⁽³⁾ and is made into _______ copies with equal value. _____ copies are kept by the principal, _______ copies are kept by the authorized person, _____ copies are kept by the Employer.

Notes:

(1) In case of authorization, a scan of original power of attorney enclosed with the E-Bid is required. The original of power of attorney must be typed or written in indelible ink, with pages numbered in sequence, and signed and sealed by the legal representative of the Bidder. The Bidder’s legal representative may authorize their deputies, subordinates, directors of branches, and heads of representative offices of the Bidder to perform the tasks on behalf of the Bidder. The authorized person may use the seal of the Bidder or their seal. The authorized person may not authorize another person.

(2) Area of authorization includes one or multiple tasks above.

(3) Insert the effective date and expiration date of the Power of Attorney in conformity with the bidding process.

Form No. 02

JOINT VENTURE AGREEMENT⁽¹⁾

[Location and date]_______________

Procurement: ______[insert name of the procurement]

Under Project:______________[insert name of project]

Pursuant to(2) ____[the Law on Public Procurement No. 43/2013/QH13 dated November 26, 2013];

Pursuant to(2)____ [the Government's Decree No. 63/2014/NĐ-CP dated June 26, 2014 on implementation of some Articles on contractor selection of the Law on Public Procurement];

Pursuant to the E-Bidding Documents _______[insert name of procurement] dated_______[insert the date on the Bidding Documents];

Representatives of signatories to the joint venture agreement include:

Name of JV’s Party ____[insert name of each JV’s Party]

Mr./Ms.                                                                                                                            

Position:                                                                                                                          

Address:                                                                                                                          

Phone number:                                                                                                                 

Fax:                                                                                                                                 

Email:                                                                                                                              

Account:                                                                                                                          

TIN:                                                                                                                                 

Power of Attorney No. ___________ dated ___________ (in case of authorization).

The Parties have reached a consensus on entering into a Joint Venture Agreement with the following contents:

Article 1. General rules

1. Members voluntarily establish this joint venture to participate in the process of bidding for __________ [insert name of procurement] of _______________ [insert name of project].

2. Official name of the joint venture used in every transaction related to the procurement: ______________ [insert the agreed name of the joint venture].

3. Every Party is committed not to unilaterally participate or establish a joint venture with another Party to participate in this procurement. If awarded the contract, no Party is entitled to refuse to fulfill the duties and obligations prescribed in the contract. Any JV’s Party that refuses to perform their duties as agreed must:

- Pay damages to other parties in the joint venture;

- Pay damages to the Investor as prescribed by the contract;

- Incur other disciplinary actions __________ [specify the action].

Article 2. Assignment of duties

All JV’s Parties unanimously to undertake joint and separate responsibility to execute __________ [insert name of procurement] of _______________ [insert name of project] as follows:

1. Leading JV’s Party:

All parties unanimously authorize ________ [insert name of a party] as the lead member of the joint venture who represents the joint venture to perform the following tasks ⁽³⁾:

[- Sign documents with the Employer during the procurement process, including the request for Clarification of E-Bidding Documents and E-Bids; sign requests for E-Bid withdrawal;

- Participate in contract negotiation and finalization;

- Sign complaint letter (if any);

- Perform other tasks except for contract conclusion: _______________ [specify other tasks (if any)].

2. Party using the digital certificate to make a bid:_____[insert name of Party which is assigned to use the digital certificate].

3. Tasks of JV's Parties with the consent of all parties are specified in the table below⁽⁴⁾:

Article 3. Effect of Joint Venture Agreement

1. The Joint Venture Agreement takes effect from the day on which it is signed.

2. The Joint Venture Agreement expires in the following cases:

- All parties have fulfilled their duties and finalize the contract;

- The agreement is unanimously terminated by all parties;

- The joint venture is not awarded the contract;

- The bidding for ____________ [insert name of the procurement] of ___________ [insert name of the project] is cancelled as notified by the Employer.

The Joint Venture Agreement is made into _______ copies with equal legal value, each party keeps _________ copies.

LEGAL REPRESENTATIVE OF LEADING JV’S PARTY
[insert name, position, signature and seal]

LEGAL REPRESENTATIVE OF JV’S PARTY
[insert name, position, signature and seal]

Notes:

(1) According to the scope and nature of the procurement, this Joint Venture Agreement may be amended.

(2) Update legislative documents in force.

(3) Area of authorization includes one or multiple tasks above.

(4) The Bidder shall specify detailed tasks and estimate equivalent value of tasks performed by every JV's Party, common and private responsibilities of member, including the leading JV's Party.

Form No. 03

 ORGANIZATIONAL STRUCTURE AND EXPERIENCE OF BIDDER

A. Organizational structure of Bidder

 [Brief description of the process of formation and organization of the Bidder (in case of a joint venture, describe the organization of each JV’s Party).  Describe the number of specialized consultants for which the contractor signs a long-term or indefinite employment contract and clearly state the number of years of experience of each expert].

B. Experience of Bidder

Similar consulting services performed by the Bidder within the last ___ [insert number of years]¹ years.

The Bidder must use the following table to declare for each consulting service that the Bidder performed as similar as the service required in this procurement (as an independent contractor or in joint venture with another contractor or subcontractor).

The Bidder must enclose copies of relevant documents.

Form No. 04

COMMENTS (IF ANY) TO COMPLETE THE TERMS OF REFERENCE

[The Bidder presents revisions to complete the Terms of Reference for the performance of the contract]

Proposed revisions of Terms of Reference:

1.

2.

3.

4.

5.

Form No. 05

SOLUTIONS AND GENERAL METHODOLOGY PROPOSED BY THE BIDDER TO PERFORM THE CONSULTING SERVICE

The Bidder prepares a Technical Proposal (including charts), consisting of 3 parts:

1. Solutions and methodology

2. Work plan

3. Organization and personnel

Form No. 06

RESUME OF CONSULTANT

Expected position: ____________________________________________________________

Bidder’s name: ________________________________________________________________  

Expert’s name:________________________________________________________________

Occupation:___________________________________________________________________

Date of birth: _________________________________________________________________

Member of professional body:___________________________________________________

_____________________________________________________________________________

Working process:

The tasks expected to be assigned in the procurement:

Capacities:

[Detailed description of experience and training courses attended to meet assigned scope of work.  The experience description should clearly state the tasks to be assigned specifically in each project and the name/address of the investor/employer.]

Educational level:

[Indicate relevant qualifications, issuer, and length of study and degree type]

_______________________________________________________________________

Foreign language:

[state language proficiency]

_______________________________________________________________________

Contact information:

[Clearly state the name, phone number, e-mail of the contact person]

_{________________________}

I declare to the best of my knowledge that all the above particulars are correct, if false or untrue, I shall take responsibility before the law.

Notes:

- Each individual consultant on the list stated in Form No. 08 must declare this Form.

- The Bidder scans the employment contract; copies of the diplomas and practice certificates of the above consultants attached to the E-Bid.

Form No. 07 (Webform on the System)

ASSIGNMENT OF DUTIES IN JOINT VENTURE AGREEMENT ⁽¹⁾

JV’s name:__________

Notes:

Based on the signed Joint Venture Agreement.

Form No. 08 (Webform on the System)

LIST OF EXPERTS PERFORMING CONSULTING SERVICES

^_________

¹ List work items to be performed in accordance with this Form 9 of this Part.

² This column shows the number of man-months of each employee working at the company (sum of columns (1) + (2) + ... + (n)).

³ This column shows the number of man-months of each employee working at the job site (sum of columns (1) + (2) + ... + (n)).

⁴ Key employees with long-term or indefinite-term employment contracts with the bidder. In case certain key employees not employed by the Bidder are engaged, the Bidder shall declare according to Section II and provide explanation.

Form No. 09 (Webform on the System)

PERFORMANCE SCHEDULE

Notes:

(1) List all work items, state the progress of specific work in each work item.

(2) The timeline for each job is shown in a chart, if necessary, the bidder should note and explain the chart.

Form No. 10 (Webform on the System)

BID SUBMISSION FORM¹
(of E-Technical Proposal)

Date:_____ [exported from the System]

Name of procurement:___[exported from the E-ITB]

To:____[name of Employer exported from E-ITB]

After taking account of E-Bidding Documents, we are:

- Name of Bidder:____[exported from the System];

- Business registration number:____[exported from the System];

Undertake to perform the procurement____[exported from the E-ITB] with the following information:

- Number of E-ITB:____[exported from the E-ITB].

- Submission deadline:_____[exported from the submission deadline in the E-ITB];

Contract duration______[exported from the Bid Submission Form].

Validity of E-Technical Proposal:_____[automatically exported]

We hereby declare that:

1. Only make this E-Bid as a primary contractor or JV’s representative.

2. We are not undergoing dissolution process, are not thrown into bankruptcy, and do not incur bad debts as prescribed by law.

3. We do not commit violations against regulations on assurance of competitiveness in bidding.

4. We are not involved in corrupt, fraudulent or conclusive practice and other violations against law on bidding.

5. Every information provided in E-Bid is truthful to be the best of our knowledge. Notes:

(1) The Bid Submission Form has been signed with digital signature of the legal representative of the Bidder.

Form No. 11A (Webform on the System)

REMUNERATION PAID TO EXPERTS

Notes: (1), (2): inserted by bidder

(3), (4): calculated by the System

Form No. 11B (Webform on the System)

ESTIMATE OF REMUNERATION PAID TO EXPERTS

Currency:      

Notes If the bidder is not required to estimate the remuneration paid to experts, do not use this Form.

__________

Social expenses, general administration expenses include expenses such as social insurance, health insurance, unemployment insurance under the responsibility of the employer in accordance with current law; administration costs of management units, employing experts… The bidder shall list these costs together with supporting documents.

Form No. 12 (Webform on the System)

EXTRAORDINARY COSTS PAID TO EXPERTS

(3): calculated by the System

Form No. 13 (Webform on the System)

GRAND SCHEDULE OF COST

A and B are exported from Form 11a and 12.

Form No. 14

BID SUBMISSION FORM ⁽¹⁾

(of Financial Proposal)

Date:_____ [exported according to the time on the System]

Name of procurement:___[exported from the E-ITB]

To:____[name of Employer exported from E-ITB]

After taking account of E-Bidding Documents, we are:

- Name of Bidder:____[exported from the System];

- Business registration number:____[exported from the System];

Undertake to perform the procurement____[exported from the E-ITB] with the following information:

- Number of E-ITB:____[exported from the E-ITB].

- Submission deadline:_____[exported from the submission deadline in the E-ITB];

in accordance with the requirement stated in the E-Bidding Documents with the total amount of _____ [exported by the System when the Bidder inserts the bid price in the bid forms on the System] together with the Grand Summary.

In addition, we voluntarily reduce the bid price with a discount of _______ [insert discount rate].

The bid price after deducting discount is: ________[calculated by the System].

Contract duration______[exported from the Bid Submission Form].

Validity of E-Financial Proposal: _____ [exported from the E-ITB]

We hereby declare that:

1. Only make this E-Bid as a primary contractor or JV’s representative.

2. We are not undergoing dissolution process, are not thrown into bankruptcy, and do not incur bad debts as prescribed by law.

3. We do not commit violations against regulations on assurance of competitiveness in bidding.

4. We are not involved in corrupt, fraudulent or conclusive practice and other violations against law on bidding.

5. Every information provided in E-Bid is truthful to be the best of our knowledge.

Notes:

(1) The Bid Submission Form has been signed with digital signature of the legal representative of the Bidder.

PART 2. TERMS OF REFERENCE

CHAPTER V. TERMS OF REFERENCE

“Terms of Reference” include the following:

I. Introduction:

General description of project and procurement.

Description of purpose of bidder selection.  

II. Scope of work:

1. Detailed description of scope of work, sources of funds, implementing agency, time for performance, number of months and head counts (if any).

2. Description of specific tasks to be performed by the Bidder during the performance of the consulting service contract.

3. Expected time for experts to provide consulting service (usually no more than 30 days from the date on which the contract is signed).

III. Report and schedule:

Types of report to be submitted and schedule of report:

IV. Experience and personnel of Bidder:

Requirements pertaining to personnel and positions in the procurement.

V. Responsibilities of the Employer:

The Employer will provide working conditions and supporting personnel and relevant documents on duties of the consultant, including existing documents to enable the Bidder to perform their assignment.

PART 3. CONDITIONS OF CONTRACT AND CONTRACT FORMS

Chapter VI. GENERAL CONDITIONS OF CONTRACT

Article 1. Interpretation of terms:

The following words and expressions shall have the meanings hereby assigned to them:

1. “Contract” means the Contract Agreement entered into between the Investor and the Contractor, made in writing, including all attachments, appendices, and all documents incorporated therein.

2. “Contract price” means the gross amount as specified in the Contract as agreed upon between the Investor and the Contractor.

3. “Investor” means the organization specified in the Special Conditions of Contract (E-SCC).

4. “Contractor” means the organization providing consulting service for the Investor in accordance with this Contract and specified in E-SCC.

5. “Subcontractor” means a contractor which enters into a contract with the primary contractor to perform part of tasks as estimated in the E-Bid.

6. “Effective contract date” means the date as prescribed in E-SCC.

7. “Day” means calendar day, counted continuously, including holidays and weekends.

8. “Other costs” are all costs, other than salaries paid to the consultant, incurred during the performance of consulting service.

Article 2. Governing Law and Language

1. The Contract shall be governed by the laws of Vietnam.

2. The language of the Contract shall be Vietnamese.

Article 3. Confidential Information

1. Documents which are products of the Contractor within framework of this Contract are under ownership of the Investor, except as otherwise provided in E-SCC. The Contractor may retain copies of above documents but may not use any document or other information for any other purposes without written prior consent of the Employer.

2. The Contractor shall not, without the written consent of the Employer hereto, divulge to any third party unrelated to the performance of the Contract any content of the Contract. The Contractor may only provide information for persons related to the performance of the Contract in conformity with the confidential regime and necessary scope for the performance of the Contract.

Article 4. Copyright

The Contractor shall totally take responsibility for any damage incurring by complaints of a third party in terms of violations against intellectual property copyright of consulting service provided for the Investor by the Contractor.

Article 5. Type of contract

The type of contract is specified in E-SCC.

Article 6. Payment

1. The Investor shall make payment to the Contractor in terms of the contents prescribed in E-SCC.

2. In the event that the Investor fails to pay the Contractor any payment by its due date as prescribed in Clause 1, the Investor shall pay to the Contractor interest on the such delayed payment according to the benchmark rate quoted by the State bank of Vietnam. The duration shall be determined from the first day of delayed payment to the day on which the Investor actually pays to the Contractor.

Article 7. Contract Price

The Contract price shall be agreed by the Contractor and Investor through contract finalization in conformity with the approved successful bid and specified in the Contract.

Article 8. Contract duration

Contract duration shall comply with the E-SCC.

Article 9. Contract amendment

1. During the performance of the Contract, if it is necessary to amend the contract, within the period specified in E-SCC after receiving the request for contract amendment from the Investor or Contractor, the recipient of the proposal is responsible for reviewing and giving specific requirements for this amendment as a basis for the two parties to negotiate and sign the contract amendment addendum.

2. Adjustment of contract price must be consistent with the type of contract and conditions specified in Article 5 E-SCC.

3. The adjustment of performance schedule may only be done in the following cases:

a) Force majeure, not related to violations or negligence of the Investor and the Contractor;

b) In case of changes to scope of work upon objective requirements that affect the performance schedule.

4. During the performance of the Contract, in case there is a change in the state's tax policy affecting the contract price, the Investor and the Contractor will consider increasing or decreasing the contract price respectively.

5. In the event that the performance schedule is adjusted not resulting in extension of the project schedule, the contracting parties shall agree the adjustment. In the event that the performance schedule is adjusted resulting in extension of the project schedule, the contracting parties may agree the adjustment only after obtaining the consent of the competent authority.

Article 10. Personnel

1. The Contractor must engage all personnel as proposed in the E-Bid to perform tasks unless otherwise agreed by the Employer. Where appropriate to replace personnel according to Section 26 Chapter I, the Contractor must report and obtain the approval of the Investor.  The alternative personnel must have qualifications equivalent or higher than the proposed personnel.

2. If any expert is lack of legal capacity or fails to perform his/her task properly, the Investor may require an alternative. On receiving the written request for alternative from the Investor, within the given period of time stated in E-SCC, the Contractor shall replace another expert who has equivalent or higher qualifications accepted by the Investor. Unless otherwise agreed, any costs incurred from the replacement shall be borne by the Contractor.

Article 11. Rights and obligations of the Contractor

1. Contractor's rights:

a) Request the Investor to provide information and documents related to the performance of consulting service;

b) Refuse to perform unreasonable tasks beyond the content of the Contract;

c) Ensure copyright in accordance with the law (for consulting service related to copyright);

d) Request the Investor to make payment in due time as prescribed in Article 6 of this Chapter.

2. Contractor's obligations:

a) Take responsibility for the quality of its consulting service;

b) Submit reports and documents to the Investor with the quantity and time required specified in the Contract.  The Contractor fully and promptly communicates all information related to the consulting work that may delay or hinder the completion of scheduled works and propose implementation solutions;

c) Complete the work on schedule and deliver consulting products as prescribed in the Contract. The Contractor is responsible for presenting and defending the views on the contents of the consulting work in the approval meetings of the competent authorities held by the Investor (if any);

d) Undertake that when requested by the Investor, the Contractor or subcontractor will appoint a competent and qualified representative to handle the problematic works at any time at the request of the Investor (including holidays) until the date of acceptance testing of consulting products;

dd) Provide documents intended for meetings, reports, appraisal ... with the quantity requested by the Investor;

e) Collect necessary information intended for consulting work under the Contract.

Article 12. Subcontractor

1. The Contractor is entitled to conclude agreements with subcontractors mentioned in the list of subcontractors as prescribed in E-SCC to perform part of tasks as specified in the E-Bid. The employment of subcontractors shall not change any duty or obligation of the Contractor. The Contractor shall be accountable to the Employer for quantity, quality, schedule and other obligations performed by the subcontractors.

Replacement and addition of subcontractors beyond the list mentioned in E-SCC is subject to permission by the Employer with appropriate reasons.

2. The value of work performed by the subcontractors specified in Clause 1 of this Article must not exceed the percentage according to the contract price stated in E-SCC.

3. The Contractor may not employ the subcontractors for any task other than those tasks performed by the subcontractors as mentioned in the Invitation for E-Bid.

4. Other requirements pertaining to the subcontractors specified in the E-SCC.

Article 13. Compensation for damage caused by breach of contract

1. Except for force majeure events provided under Article 16, if the Contractor fails to perform any or all of tasks within the period specified in the Contract, the Investor may deduct from the contract price, as liquidated damages, a sum equivalent to the percentage specified in the E-SCC of the unperformed service for each week or part thereof of delay until actual performance. The Investor shall deduct up to a maximum deduction of the percentage specified in those E-SCC.  Once the maximum is reached, the Employer may terminate the Contract pursuant to Article 14 of this Chapter.

2. Regarding consulting service procurement to prepare design documents, Bidding Documents, Request for Proposals for procurement of construction with fixed-price contract, the Contractor must be liable for the accuracy of the quantity and amount of the construction work. The Contractor shall compensate for any incorrect calculation of quantity and amount of work as prescribed in E-SCC.

Article 14. Termination of contract due to contractor’s breach

1. The Investor may terminate the performance of part or the whole of the contract by notifying the contractor in writing when the contractor does not perform the work contents as prescribed in E-SCC.

2. The Investor may send a notice of contract termination to the Contractor when it is discovered that the Contractor goes bankrupt without incurring any compensation costs.  All the rights of the Investor prescribed in the Contract and regulations of law shall be reserved regardless of the termination of the Contract.

3. In the event the Investor terminates the Contract in whole or in part, pursuant to Clause 1, the Investor may enter into a contract with another contractor to complete the terminated part of the contract.  The Contractor  shall be liable to the Investor for any additional costs for the terminated part of the contract. However, the Contractor must continue to perform the terminated part of the contract.

Article 15. Termination of contract due to the Investor's breach

The Contractor may terminate the performance of part or the whole of the contract by notifying the Investor in writing when the Investor does not perform the work contents as prescribed in E-SCC.

Article 16. Force majeure events

1. For the purpose of this contract, force majeure is understood as events beyond the control and foreseeable ability of a party, such as:  war, riot, strike, fire, natural disaster, flood, epidemics, quarantine or adverse weather conditions.

2. If a force majeure situation arises, the suffering party shall promptly notify the other in writing of such condition and the cause thereof.   Concurrently, a certification of such force majeure situation issued by a competent agency where the force majeure situation arises shall be sent to the other party.

During the period of failure to perform obligations due to the force majeure event, the Contractor shall, under instructions of the Investor, continue to perform its obligations under the Contract as far as is reasonably practical, and shall seek all reasonable alternative means for performance not prevented by the force majeure event. In this event, the Investor shall consider refunding to the Contractor necessary and reasonable additional fees borne by the Contractor.

3. The suffering party shall not be liable for liquidated damages, or termination for default if the failure to perform its obligations under the Contract is the result of an event of force majeure.

In the event that any dispute between contracting parties due to the occurrence or extent of the force majeure event, the dispute shall be settled as prescribed in Article 17 of this Chapter.

Article 17. Dispute settlement

1. The Contractor and the Investor shall make every effort to resolve by direct informal negotiation or conciliation any disagreement or dispute arising between them.

2. If the disagreement or dispute cannot be settled by direct informal negotiation or conciliation within the time limit prescribed in the E-SCC from the date on which the disagreement  or dispute arise, any party may request the regime for dispute settlement specified in the E-SCC.

Article 18. Notice

1. Any notice given by one party to the other pursuant to the Contract shall be in writing to the address specified in the E-SCC. 

2. A notice shall be effective when received or on the notice’s effective date, whichever is later.

Chapter VII. SPECIAL CONDITIONS OF CONTRACT

Chapter VIII. CONTRACT FORMS

Depending on the nature and requirements of the procurement, consulting service fixed-price contract or time-based contract will be used.

In case the contract has one or more sub-contracts, the Investor will use the forms of consulting service fixed-price contract or time-based contract.

When using it, do not to alter the E-GCC, the terms in the E-SCC should be done as described in the italic note for each term.

Form No. 22

CONSULTING SERVICE CONTRACT
(For fixed-price contract)

[Location and date]_______________

Contract No. __________

Procurement: ______[insert name of the procurement]

Project’s name: _________[insert the project's name]

- - Pursuant to ¹ _____________________________________________ [Civil Code No. 91/2015/QH13 dated June 14, 2005 of the National Assembly];

- - Pursuant to ¹ _____________________________________________ [Law on Public Procurement No. 43/2013 / QH13 dated 26/11/2013 of the National Assembly];

- Pursuant to1_____________[the Government's Decree No. 63/2014/ND-CP dated June 26, 2014 on guidelines for the Law on Public Procurement in terms of selection of bidders];

- Pursuant to Decision No. _____ date _____ month ____ year _____ of ______ on approving the result of preferred bidder selection of procurement ______ [Insert name of procurement] and notification of result of preferred bidder selection number ________ day ____ month _____ year _____ of the Employer;

- Pursuant to the Contract Negotiation Record entered into between Investor and the successful bidder dated_____________;

Representatives for the parties to which contract include:

Investor:

Investor’s nam­e:_____________________________ [insert name of the Investor]

Represented by Mr./Ms. ______________________________________________________

Position: ___________________________________________________________________

Address:  __________________________________________________________________

Phone number: _____________________________________________________________

Fax: _______________________________________________________________________

Email: _____________________________________________________________________

Account: ___________________________________________________________________

TIN: _______________________________________________________________________

Power of Attorney No. ___________ dated ___________ (in case of authorization).

Contractor:

Contractor's name __________ [Insert name of the selected bidder]

Represented by Mr./Ms. ______________________________________________________

Position: ___________________________________________________________________

Address:  __________________________________________________________________

Phone number: _____________________________________________________________

Fax: _______________________________________________________________________

Email: _____________________________________________________________________

Account: ___________________________________________________________________

TIN: _______________________________________________________________________

Power of Attorney No. ___________ dated ___________ (in case of authorization).

Both parties agree to conclude a Consulting Service Contract with the following contents:

Article 1. Subject matter of contract

Subject matter of the contract means the services detailed in Appendix A "Terms of Reference".

Article 2. Contract documents

Contract documents include:

1. Contract:

2. Contract addendum, including terms of reference, Contractor's personnel, and Contractor’s responsibility for reporting;

3. Contract finalization record;

4. Decision on approval for Bidder selection result;

5. Written agreement of the parties on the contract conditions, including general conditions and special conditions;

6. E-Bid and Clarification of E-Bid of the selected Bidder;

7. E-Bidding Documents and amendments thereto;

8. Relevant documents.

Article 3. Responsibilities of the Contractor

1. Perform the obligations specified in Article 1 of this contract;

2. Employ and arrange personnel listed in Appendix B "Contractor's Personnel" to perform the service;

3. Submit the report to the Investor within the time limit and in the forms specified in Appendix C "Contractor's Reporting Responsibilities";

4. Fulfill other obligations and responsibilities specified in E-GCC and E-SCC of the contract.

Article 4. Responsibilities of the Investor

1. The Investor commits to pay the Contractor according to the contract price and the method specified in Article 5 of this contract as well as fulfills other obligations and responsibilities specified in E-GCC and E-SCC of the contract.

2. The Investor appoints Mr. / Ms. ________ [Full name] as the officer in charge of the Investor to coordinate the activities under this contract.

Article 5. Contract price, period and method of payment

1. The Contract price:_________[insert a value in number, in words, and currency]. This amount includes all costs, interest and any taxes payable by the Contractor.

2. Payment period:       

____________ [Insert value/percentage and currency] when the contract takes effect (in case of advance).

____________ [Insert value/percentage and currency] when the Investor receives and approves the draft report prepared by the Contractor.

____________ [Insert value/percentage and currency] when the Investor receives and approves the final report.

Total payment amount ____________ [Insert value and currency]

[Payment term is subject to change to comply with output reports detailed in Annex C].

3. Method of payment:

Method of payment is specified in Article 6 of E-SCC

Article 6. Type of contract

This contract is a fixed-price contract.

Article 7. Contract duration

[State the contract duration in accordance with Section 1.2 E-BDS, E-Bid and result of contract finalization between the two parties].

Article 8. Effect of contract

1. This Contract comes into force from _______ [insert effective date of the Contract in accordance with Clause 6 Article 1 E-SCC].

2. The contract expires when it is finalized by both parties as prescribed by law.

The contract is made into _____ sets, the Investor keeps ______ sets, the Contractor keeps ________ sets, and these sets have the same legal value.

_____________

¹ Update legislative documents in force.

APPENDIX

Appendix : Terms of Reference

Appendix B: Contractor’s personnel

Appendix C: Contractor’s Reporting Responsibilities.

Form No. 23

CONSULTING SERVICE CONTRACT
(For time-based contract)

[Location and date]_______________

Contract No. ________

Procurement: ______[insert name of the procurement]

Under Project:______________[insert name of project]

- - Pursuant to 1 _____________________________________________ [Civil Code No. 91/2015/QH13 dated June 14, 2005 of the National Assembly];

- Pursuant to¹  _____________________________________________ [Law on Public Procurement No. 43/2013 / QH13 dated 26/11/2013 of the National Assembly];

- Pursuant to¹_____________[the Government's Decree No. 63/2014/ND-CP dated June 26, 2014 on guidelines for the Law on Public Procurement in terms of selection of bidders];

- Pursuant to Decision No. _____ date _____ month ____ year _____ of ______ on approving the result of preferred bidder selection of procurement ______ [Insert name of procurement] and notification of result of preferred bidder selection number ________ day ____ month _____ year _____ of the Employer;

- Pursuant to the Contract Negotiation Record entered into between Investor and the successful bidder dated_____________;

Representatives for the parties to which contract include:

Investor:

Investor’s nam­e:____________ [insert name of the Investor]

Represented by Mr./Ms. ______________________________________________________

Position: ___________________________________________________________________

Address:  __________________________________________________________________

Phone number: _____________________________________________________________

Fax: _______________________________________________________________________

Email: _____________________________________________________________________

Account: ___________________________________________________________________

TIN: _______________________________________________________________________

Power of Attorney No. ___________ dated ___________ (in case of authorization).

Contractor:

Contractor's name __________ [Insert name of the selected bidder]

Represented by Mr./Ms. ______________________________________________________

Position: ___________________________________________________________________

Address:  __________________________________________________________________

Phone number: _____________________________________________________________

Fax: _______________________________________________________________________

Email: _____________________________________________________________________

Account: ___________________________________________________________________

TIN: _______________________________________________________________________

Power of Attorney No. ___________ dated ___________ (in case of authorization).

Both parties agree to conclude a consulting service contract with the following contents:

Article 1. Subject matter of contract

Subject matter of the contract means the services detailed in Annex A "Terms of Reference".

Article 2. Contract documents

Contract documents include:

1. Contract:

2. Contract addendum, including terms of reference, budget estimate, list of Contractor's personnel, and Contractor’s responsibility for reporting;

3. Contract finalization record;

4. Decision on approval for Bidder selection result;

5. Written agreement of the parties on the contract conditions, including general conditions and special conditions;

6. E-Bidding Documents and amendments thereto;

7. Relevant documents.

Article 3. Responsibilities of the Contractor

1. Perform the obligations specified in Article 1 of this contract;

2. Submit the report to the Investor within the time limit and in the forms specified in Appendix B " Budget estimate, list of personnel of Contractor”;

3. Employ and arrange personnel, estimate budget listed in Appendix C "Contractor's Reporting Responsibilities”;

4. Fulfill other obligations and responsibilities specified in E-GCC and E-SCC of the contract.

Article 4. Responsibilities of the Investor

1. The Investor commits to pay the Contractor according to the contract price and the method specified in Article 5 of this contract as well as fulfills other obligations and responsibilities specified in E-GCC and E-SCC of the contract.

2. The Investor appoints Mr. / Ms. ________ [Full name] as the officer in charge of the Investor to coordinate the activities under this contract.

Article 5. Contract price, term and method of payment

1. The Contract price:_________[insert a value in number, in words, and currency]. This amount includes all costs, interest and any taxes payable by the Contractor, in specific:

- Remuneration paid to experts:

The Investor shall pay the Contractor monthly, daily or hourly remuneration (choose any of three options and delete the others) as agreed in Appendix B.

- Extraordinary costs other than remuneration:

The Investor shall pay the Contractor extraordinary costs up to [insert the value and currency] as incurred or with a fixed amount1 as follows:

+ Per diem (including travel allowance, business and accommodation allowance), stationery and photocopy, printing, communication. This allowance will be reimbursed and need to be certified by the Investor;

+ Other costs approved by the Investor.

2. Period and method of payment

Period and method of payment is specified in Article 6 of E-SCC.

Article 6. Time sheet

During the working process, including business trips, the Investor shall keep track of timesheets or other valid documentation to determine the working time of the Contractor.

Article 7. Type of contract

This contract is a time-based contract.

Article 8. Contract duration

[State the contract duration in accordance with Clause 2 Section 1 E-BDS, E-Bid and result of contract finalization between the two parties].

Article 9. Effect of contract

1. This Contract comes into force from _______ [insert effective date of the Contract in accordance with Clause 6 Article 1 E-SCC].

2. The contract expires when it is finalized by both parties as prescribed by law.

The contract is made into _____ sets, the Investor keeps ______ sets, the Contractor keeps ________ sets, and these sets have the same legal value.

APPENDIX

Appendix : Terms of Reference

Appendix B: Budget estimate, list of personnel of Contractor

Appendix C: Contractor’s Reporting Responsibilities

¹ Depending on the nature of the procurement. Example: meet requirements pertaining to materials, machinery and equipment owned or hired by the Contractor to serve the laboratory works…

² Skip this clause in case of LCS, QCBS or QBS.

³ Skip this clause in case of LCS, QCBS or QBS.

¹ Update legislative documents in force.

¹ State which cost is paid as incurred or which cost is paid with fixed amount.

Bài viết liên quan