Chương IV Thông tư 06/2021/TT-BKHĐT : Trách nhiệm của các bên

CIRCULAR

ON ELABORATION OF COLLECTION, PAYMENT, MANAGEMENT, AND USE OF SERVICE CHARGES FOR REGISTRATION, POSTING INFORMATION, SELECTION OF PREFERRED BIDDERS, INVESTORS ON THE NATIONAL E-PROCUREMENT SYSTEM, THE VIETNAM PUBLIC PROCUREMENT REVIEW JOURNAL

Pursuant to the Law on Procurement dated November 26, 2013;

Pursuant to the Law on Public-Private Partnership Investment dated June 18, 2020;

Pursuant to the Law on Electronic Transactions dated November 29, 2015;

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 preferred 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;

Pursuant to the Government's Decree No. 25/2020/ND-CP dated February 28, 2020 on elaboration of the Law on Bidding in terms of selection of preferred investors;

Pursuant to the Government's Decree No. 120/2020/ND-CP dated October 7, 2020 on establishment, reorganization, and dissolution of public sector entities;

Pursuant to the Government’s Decree No. 35/2021/ND-CP dated March 29, 2021 on elaboration of and guidelines for the Law on Public-Private Partnership Investment;

At the proposal of the Director of Public Procurement Agency,

The Minister of Planning and Investment promulgates a Circular on elaboration of collection, payment, management, and use of service charges for registration, posting information, selection of preferred bidders, investors on the National E-Procurement System, the Vietnam Public Procurement Review Journal.

Chapter I.

GENERAL PROVISIONS

Article 1. Scope

1. This Circular sets out:

a) Collection, payment, management, and use of services charges associated with contract packages and projects under the scope of regulation in Article 1 of the Procurement Law;

b) Collection, payment, management, and use of services charges mentioned in clause 6 Article 32 of the Government’s Decree No. 35/2021/ND-CP dated March 29, 2021 on elaboration of and guidelines for the Law on Public-Private Partnership Investment (hereinafter referred to as Decree No. 35/2021/ND-CP).

2. The collection, payment, management, and use of service charges specified in Clauses 1, 2, 3, 4 and 5, Article 32 of Decree No. 35/2021/ND-CP shall comply with the guidance of the Ministry of Finance.

Article 2. Regulated entities

1. This Circular applies to:

a) Organizations and individuals that register, post information, select preferred bidders and investors according to Clause 1, Article 1 of this Circular;

b) Organizations and individuals involved in the management and operation of the National E-procurement System.

2. Organizations and individuals that are not regulated in Clause 1, Article 1 of this Circular may choose to apply the provisions of this Circular for registration, information posting, and selection of preferred bidders and investors on the National E-procurement System.

Article 3. Interpretation of terms

1. "The National E-procurement System“ (hereinafter referred to as the System) means an information technology system which is set up and managed by the Ministry of Planning and Investment in accordance with Clause 26, Article 4 of the Procurement Law.

2. Vietnam National E-Procurement Center affiliated to Public Procurement Agency, the Ministry of Planning, and Investment is the operator of the System as prescribed in Article 75 of the Procurement Law.

3. ”e-GP project” means a project of “Application of e-commerce in Government procurement” in the form of Public-Private Partnerships (PPP), approved by Decision No. 1546/QD-BKHDT dated October 30th, 2014 of the Minister of Planning and Investment, and Decision No. 2032/QD-BKHDT dated December 23, 2019 of the Minister of Planning and Investment and other amendments (if any).

4. "BOT contract of e-GP project” means a written agreement and contract addenda (if any) signed between the Ministry of Planning and Investment and the investor selected to execute the e-GP project (Contractor), e-GP Project Enterprise on the State's concession to the Contractor, the e-GP Project Enterprise to invest, design, build, operate, maintain, upgrade and transfer the National E-procurement System in the form of public-private partnership (PPP).

5. “e-GP Project Enterprise” means an enterprise established by the Contractor of e-GP project in accordance with the law with the sole purpose of performing the BOT contract of the e-GP project.

6. “Service charges” means the charges specified in Clause 3, Article 13 of the Procurement Law, Clause 9 Article 9 and Article 86 of Decree No. 63/2014/ND-CP dated June 26, 2014 of the Government on elaboration of the Procurement Law on selection of preferred bidders, Clause 6, Article 32 of Decree No. 35/2021/ND-CP.7. “e-Contract” means a contract formed electronically that is created, sent, received, digitally signed, and stored on the System and has legal validity in accordance with the law on electronic transactions.

Chapter II

PRINCIPLES OF RECEIPTS AND PAYMENTS FROM SERVICE CHARGES, AMOUNTS OF SERVICE CHARGES, COLLECTION, AND PAYMENT OF SERVICE CHARGES

Article 4. Principles of receipts and payments from service charges

1. Vietnam National E-Procurement Center, the Vietnam Public Procurement Review Journal, e-GP Project Enterprise shall collect, manage, and use the service charges in accordance with this Circular and the BOT contract of e-GP project to render services on the System and the Vietnam Public Procurement Review Journal.

2. The receipts from service charges shall be used to perform the following tasks:

a) Manage, maintain, operate, and develop the System;

b) Post information on procurement, selection of preferred investors on the System, the Vietnam Public Procurement Review Journal;

b) Select preferred bidders and investors on the System;

c) Other obligatory current expenditures and investment expenditures related to the management, maintenance, operation, and development of the System of Vietnam National E-Procurement Center and the Vietnam Public Procurement Review Journal.

3. The receipts from service charges on the System and the Vietnam Public Procurement Review Journal are used to serve the operation of the Vietnam National E-Procurement Center and the Vietnam Public Procurement Review Journal under the financial autonomy mechanism for a public sector entity.

4. Do not use state budget sources to perform the tasks specified in Clause 2 of this Article.  The difference between receipts and payments shall be included in the funds in accordance with applicable law and only used for the tasks specified in Clause 2 of this Article.

Article 5. Service charge amounts

1. Service charges for selection of preferred bidders and investors on the System include:

a) System registration charge (a lump-sum payment upon registration only) is VND 550,000 (VAT included);

b) Maintenance charge for names and qualification documents of bidders and investors on the System is VND 550,000 per year (VAT included). The bidders and investors will pay this charge from the second year onwards after the year of registration to the System;

c) Charge for submission of a bid is VND 330,000 VND for one (1) contract package (VAT included); charge for submission of a proposal is VND 220,000 for one (1) contract package (VAT included);

d) Charge for the successful bidder is 0.022 per cent of the successful bid but not exceeding VND 2,200,000 (VAT included). For a contract package split into several parts or separate lots, the cost of the successful bidder shall be calculated according to the winning value of each separate part or lot;

dd) Charge for using e-Contract is 0.022 per cent of the successful bid but not exceeding VND 2,200,000 (VAT included).

2. Charge for posting procurement information on the System, the Vietnam Public Procurement Review Journal:

a) Charge for posting an invitation for bids, invitation for expression of interest, invitation for pre-qualification applications is VND 330,000 for one (1) contract package or one (1) project in one (1) language (VAT included);

b) Charge for posting a notice of proposed procurement, shortlist is VND 165,000 for one (1) contract package in one (1) language (VAT included);

Article 6. Collection and payment of service charges

1. Collection of service charges:

a) Vietnam National E-Procurement Center shall collect service charges mentioned in points a, b clause 1 Article 5 hereof. The account used for collection of these service charges is an account in Vietnamese dong of Vietnam National E-Procurement Center opened at a commercial bank;

b) The Vietnam Public Procurement Review Journal shall collect the service charges mentioned in clause 2 Article 5 hereof. The account used for collection of these service charges is an account in Vietnamese dong of the Vietnam Public Procurement Review Journal opened at a commercial bank.

The receipts from charges for posting procurement information shall be partially transferred by the Vietnam Public Procurement Review Journal to Vietnam National E-Procurement Center under the Decision of Minister of Planning and Investment to manage, supervise the upgrade, operation, and development of the System, ensure the continuous and stable operation in posting procurement information on the System, the rest shall be used to perform the function of posting procurement information on the System and the Vietnam Public Procurement Review Journal;

c) The e-GP Project Enterprise shall, based on the BOT contract of e-GP project, collect service charges specified at Points c, d, and dd, Clause 1, Article 5 of this Circular.  The starting time of collection is specified in Clauses 3 and 4, Article 11 of this Circular.  The account used for collection of these service charges is an account in Vietnamese dong of the e-GP Project Enterprise opened at a commercial bank.

2. Payments of service charges:

a) The procuring entity shall pay a charge for posting procurement information as prescribed in Clause 2, Article 5 of this Circular within 14 days from the date on which the information is duly posted by the procuring entity on the System;

b) The bidders shall pay service charges as prescribed in Clause 1, Article 5 of this Circular as follows:

- As for registration charge, the maximum payment time is 14 days from the date of approval for registration on the System;

- As for maintenance charge for names and qualification documents of bidders on the System, the deadline for payment is before April 1 of each year (except for the year of registration on the System); the bidder does not have to pay the maintenance charge for name and qualification documents on the System for a year in which the bidder’s account status is officially announced to be suspended for the whole year (from January 1 to the end of December 31 of that year);

In case the bidder pays maintenance charges for names and qualification documents on the System for many years (up to 5 years), the amount will be deducted accordingly each year; during that time, if the bidder registers to suspend the account on the System for the whole year (from January 1 to the end of December 31 of the year of registration), the remaining prepaid amount will be reserved and automatically deducted from the charges of the following years after the bidder registers to re-activate the account on the System;

- As for the charge for submission of a bid or proposal, the maximum payment time limit is 14 days from the date of bid opening;

- As for the charge for successful bidder, the maximum payment time limit is 14 days from the date of signing the contract;

- As for the charge for using e-Contract, the maximum payment time is 14 days from the date the e-Contract is digitally signed by the parties on the System.  In case the bidder does not choose to use the e-Contract service, this charge is not levied.

c) The investors shall pay the service charges as prescribed in points a, b Clause 1, Article 5 of this Circular as follows:

- As for registration charge, the maximum payment time is 14 days from the date of approval for registration on the System;

- As for maintenance charge for names and qualification documents of investors on the System, the deadline for submission is before April 1 of each year (except for the year of registration on the System); the investor does not have to pay the maintenance charge for name and qualification documents on the System for a year in which the investor’s account status is officially announced to be suspended for the whole year (from January 1 to the end of December 31 of that year);

In case the investor pays maintenance charges for names and qualification documents of bidders and investors on the System for many years (up to 5 years), the amount will be deducted accordingly each year; during that time, if the investor registers to suspend the account on the System for the whole year (from January 1 to the end of December 31 of the year of registration), the remaining prepaid amount will be reserved and automatically deducted from the charges of the following years after the investor registers to re-activate the account on the System.

Chapter III

MANAGEMENT AND USE OF RECEIPTS FROM SERVICE CHARGES

Article 7. Management and use of receipts from service charges by Vietnam National E-Procurement Center

1. Expenses include:

a) Expenses incurred in performance of obligations to the state budget;

b) Expenses incurred in management and supervision of posting information on procurement, selection of investors on the System;

c) Expenses incurred in management, supervision, operation, and development of the System;

d) Expenses incurred in management and supervision of e-GP Project Enterprise;

dd) Expenses incurred in guiding and training users of the System;

e) Expenses incurred in communication and international cooperation on online bidding;

g) Expenses incurred in receipt and processing of applications for participation in the System, application of information technology in bidding, database management;

h) Expenses incurred in investment and use of funds in compliance with regulations on financial autonomy in public sector entities;

i) Other obligatory current expenditures and investment expenditures for the initiation of online bidding.

2. The distribution of financial performance and the setting up of funds shall be carried out according to the financial autonomy mechanism in compliance with applicable laws.

3. Do not use state budget sources to perform the tasks specified in Clause 1 of this Article.  The difference between receipts and payments shall be included in the funds in accordance with applicable law and only used for the tasks specified in Clause 1 of this Article.

4. Preparation, approval, adjustment, and statement of annual receipts and payments:

a) Vietnam National E-Procurement Center shall prepare receipt and expenditure plans related to the selection of preferred bidders and investors on the System; posting information on procurement, selection of preferred investors according to the items in Appendix I issued with this Circular, and submit them to the Management Council or aggregate it into the estimate of the Public Procurement Agency for further submission to the Ministry of Planning and Investment for approval (if the Management Council has not been established);

b) In case a task arises, the Management Council or the Public Procurement Agency (if the Management Council has not been established) has discretion to adjust receipts and expenditures in Appendix I issued together with this Circular and is liable for the adjustment within the approved annual plan, the adjustment is only made within the planning year;

c) Vietnam National E-Procurement Center shall make a final statement of receipts and expenditures according to the items in Appendix II issued together with this Circular and aggregate them to operational costs of Public Procurement Agency.

Article 8. Management and use of services charge by the Vietnam Public Procurement Review Journal

1. Expenditures include:

a) Expenses incurred in performance of obligations to the state budget;

b) Expenses incurred in printing the Journal;

c) Expenses incurred in delivery and release of the Journal nationwide;

d) Expenses incurred to pay the individuals who are engaged in posting procurement information, including: salaries, allowances, and other expenses paid to employees as per the law;

dd) Expenses incurred in stationery, office supplies, communications, electricity, water, information technology and outsourced services for posting information about procurement;

e) Expenses incurred in procurement, regular maintenance and repairs, major repairs, warranty, maintenance and upgrade of the system of assets, machinery and equipment in service of the posting of procurement information;

g) Expenses incurred in organization and management of posting and publishing information on procurement;

h) Other obligatory recurrent and investment expenditures related to the organization, management, and publication of information on procurement.

2. The distribution of financial performance and the setting up of funds shall be carried out according to the financial autonomy mechanism in compliance with applicable laws.

3. Do not use state budget sources to perform the tasks specified in Clause 1 of this Article.  The difference between receipts and payments shall be included in the funds in accordance with applicable law and only used for the tasks specified in Clause 1 of this Article.

4. Preparation, approval, revision, and statement of annual receipts and payments:

a) The Vietnam Public Procurement Review Journal shall prepare receipt and expenditure plans related to posting procurement information on the Vietnam Public Procurement Review Journal according to items in Appendix I issued herewith, and aggregate them to operational costs of Public Procurement Agency for submission to the Ministry of Planning and Investment for approval;

b) In case a task arises, the Public Procurement Agency has discretion to adjust receipts and expenditures in Appendix I issued together with this Circular and is liable for the adjustment within the approved annual plan.

c) The Vietnam Public Procurement Review Journal shall make a final statement of receipts and expenditures according to the items in Appendix II issued together with this Circular and aggregate them to operational costs of Public Procurement Agency.

Chapter IV

RESPONSIBILITIES OF THE PARTIES

Article 9. Responsibilities of the Management Council of the National Online Procurement Center, the Public Procurement Agency, the National Online Procurement Center, the Vietnam Public Procurement Review Journal, the e-GP Project Enterprise

1. The Management Council of the National Online Procurement Center:

a) Approve the annual receipt and expenditure plan of the National Online Procurement Center according to Point a, Clause 4, Article 7 of this Circular;

b) Adjust the receipt and expenditure plan of the National Online Procurement Center according to Point b, Clause 4, Article 7 of this Circular;

c) Report to the superior management agency on the receipts and expenditures of Vietnam National E-Procurement Center according to regulations.

2. Public Procurement Agency:

a) Monitor, supervise and manage the performance of the BOT contract of the e-GP project;

b) Consolidate the annual receipt and expenditure plans of Vietnam National E-Procurement Center (if a Management Council has not been established), the Vietnam Public Procurement Review Journal, and submit them to the Ministry of Planning and Investment for approval in accordance with Point a, Clause 4, Article 7 and Point a, Clause 4, Article 8 of this Circular;

c) Adjust the annual receipt and expenditure plans of Vietnam National E-Procurement Center (if a Management Council has not been established), the Vietnam Public Procurement Review Journal in accordance with Point b, Clause 4, Article 7 and Point b, Clause 4, Article 8 of this Circular;

d) Finalize receipts and expenditures of Vietnam National E-Procurement Center and the Vietnam Public Procurement Review Journal according to Point c, Clause 4, Article 7 and Point c, Clause 4, Article 8 of this Circular.

3. Vietnam National E-Procurement Center:

a) Publish on the System the process to collect service charges, including methods, options for methods, payers and amounts of service charges;

b) Publish on the System information about the name of the e-GP project, the e-GP Project Enterprise, the time when the e-GP Project Enterprise begins to collect the service usages, phone number to receive feedback;

c) Check and monitor the data of collection of the services charges of the e-GP Project Enterprise on the System, ensure that the services charges are collected in accordance with regulations, promptly report violations and propose actions to be taken. Public Procurement Agency shall request the Ministry of Planning and Investment to take actions against the violations based on the proposal of Vietnam National E-Procurement Center;

d) Collect the service charges as prescribed at Point a, Clause 1, Article 6 of this Circular;

dd) Manage and use receipts from service charges according to Article 7 of this Circular.

4. The Vietnam Public Procurement Review Journal:

a) Collect the service charges as prescribed at Point b, Clause 1, Article 6 of this Circular;

b) Manage and use receipts from service charges according to Article 8 of this Circular.

5. e-GP Project Enterprise:

a) Comply with legislation and fully perform the terms and conditions in the BOT contract of e-GP Project;

b) Ensure the safety and security of the System's database and take legal responsibility if any violations occur;

c) Provide sufficient information, data, figures, and documents at the request of the Ministry of Planning and Investment to serve the supervision, inspection, and examination of issues related to the System.

Article 10. Responsibilities of procuring entities, bidders, investors

1. The procuring entity shall pay the charge for posting procurement information within the time limit specified at Point a, Clause 2, Article 6 of this Circular.  If the procuring entity fails to pay the charge upon expiry of the time limit for payment as prescribed, it is not allowed to post procurement information on the System for subsequent contract packages until the payment is made as per regulations.

2. The bidder shall pay the service charges mentioned in point b clause 2 Article 6 hereof.

If the procuring entity fails to pay the charge upon expiry of the time limit for payment as prescribed, it is not allowed to post procurement information on the System for subsequent contract packages until the payment is made as per regulations.

2. The bidder shall pay the service charges mentioned in point b clause 2 Article 6 hereof. Upon expiry of the time limit for payment, if the bidder does not pay the charge, the bidder’s account on the System will be changed to a suspended status and the bidder is not allowed to conduct related transactions on the System until the payment is made as per regulations.

3. The investor shall pay the service charges mentioned in point c clause 2 Article 6 hereof. Upon expiry of the time limit for payment, if the investor does not pay the charge, the investor’s account on the System will be changed to a suspended status and the investor is not allowed to conduct related transactions on the System until the payment is made as per regulations.

Chapter V

IMPLEMENTATION

Article 11. Entry in force

1. This Circular comes into force from March 1, 2022.

2. Regulations in Chapter III of Circular No. 11/2019/TT-BKHDT dated December 16, 2019 of the Minister of Planning and Investment on elaboration of provision and posting of information on procurement, roadmap for e-selection of preferred bidders, and management and use of non-refundable bid security and performance security value shall expire from the effective date of this Circular.

3. The Minister of Planning and Investment shall issue a Decision on the starting time of collection and items of service charges for e-GP Project Enterprise according to Point c, Clause 1, Article 5 of this Circular.

4. The collection of the charge for successful bidder and use of e-Contract specified at Points d and dd, Clause 1, Article 5 of this Circular shall apply from January 1, 2023 and on the basis of a decision of the Minister of Planning and Investment.

5. Vietnam National E-Procurement Center will continue to collect, manage, and use the service charges specified at Point c, Clause 1, Article 5 of this Circular up to the time when e-GP Project Enterprise starts to collect the service charges according to Clause 3 of this Article.

Article 12. Implementation

1. Ministries, ministerial-level agencies, governmental agencies, People's Committees and agencies involved in registration, information posting and selection of preferred bidders and investors on the National E-procurement System, the Vietnam Public Procurement Review Journal shall, based on the scope of their functions and tasks, organize the implementation of this Circular.

2. Difficulties that arise during the implementation of this Circular should be reported to the Ministry of Planning and Investment of Vietnamfor guidelines./.