Chương I Thông tư 08/2022/TT-BKHĐT: Quy định chung

Chapter I

GENERAL PROVISIONS

Article 1. Scope

1. This Circular hereby details:

a) Contractor selection on Vietnam National E-Procurement System for contract packages of consultancy service, non-consultancy service, commodity, works and drugs under the scope of regulation the Law of Procurement in form of open and limited bidding and national shopping under single-stage and one-envelope, single-stage and two-envelope bidding procedure;

b) Provision and publishing of information on selection of contractors on Vietnam National E-Procurement System, Vietnam Public Procurement Review Journal according to regulations of the Law on Procurement;

c) Management and use of non-returnable bid security and performance security.

2. Online shortlisting and online selection of contractors are currently not applied packages that hold international bidding, mixed packages and packages under two-stage one-envelope, two-stage and two-envelope bidding procedure. International bidding, preparation for bidding documents can apply regulations of this Circular and Circulars on guidelines for bidding for public procurement under the Free Trade Agreements that the Socialist Republic of Vietnam is a member; or carried out under agreements that do not contradict the Law on Procurement and Decree No. 63/2014/ND-CP.

3. Bidding information related to contract packages of projects funded by official development assistance (ODA), concessional loans arising out of international treaties, international agreements between Vietnam and grant funding bodies are recommended to be published in Vietnam Public Procurement Review Journal and item “vốn khác” (other funds) on Vietnam National E-Procurement System.

4. Regarding projects/contract packages containing information of state secrets as per the Law on protection of state secrets, such information shall not be provided or published as per this Circular. The information of state secrets shall be managed as per the law on protection of state secrets.

Article 2. Regulated entities

1. Organizations or individuals relevant to selection of contractors that fall within the scope of application stipulated in Article 1 hereof.

2. Organizations or individuals engaged in selection of contractors that fall outside of the scope of the Article 1 of this Circular but choose to apply regulations of this Circular. In this case, the procedure for implementation shall follow the User Manual on Vietnam National E-Procurement System.

Article 3. Definitions

1. Vietnam National E-Procurement System (hereinafter referred to as “the System”) refers to the information technology system developed, administered and operated by the Ministry of Planning and Investment at the address http://muasamcong.mpi.gov.vn in accordance with regulations laid down in Clause 26 Article 4 of the Law on Procurement of Vietnam.

2. National Enterprise Registration Information System refers to the system of dedicated information about enterprise registration specified in Clause 2 Article 3 of Decree No. 01/2021/ND-CP.

3. ”Vietnam National E-Procurement Center” (hereinafter referred to as “Center”) affiliated to Public Procurement Agency of the Ministry of Planning and Investment refers to an operating unit of the System as prescribed in Article 85 of the Law on Procurement.

4. Abbreviations in this Circular and on the System include:

a) Decree No. 63/2014/ND-CP: a Government's Decree dated June 26, 2014 detailing the implementation of several provisions of the Law on bidding regarding the selection of contractors;

b) Circular No. 04/2017/TT-BKHDT: a Circular of the Minister of Planning and Investment of Vietnam dated November 15, 2017 on guidelines for selection of bidders through national bidding network system.

c) Circular No. 05/2017/TT-BKHDT: a Circular of the Minister of Planning and Investment of Vietnam dated June 30, 2020 on amendments to certain articles of Circular No. 04/2017/TT-BKHDT dated November 15, 2017 of the Ministry of Planning and Investment on guidelines for selection of bidders through national bidding network system.

d) Circular No. 15/2019/TT-BYT: a Circular of the Minister of Health of Vietnam dated July 11, 2019 on bidding for provision of drugs for public health facilities

dd) Circular No. 06/2021/TT-BKHDT: a Circular of the Minister of Planning and Investment of Vietnam dated September 30, 2021 detailing collection, payment, management and use of fees for registration, publishing of information, selection of contractors, investors on Vietnam National E-Procurement System, Vietnam Public Procurement Review Journal;

e) E-TBMST: online invitation for prequalification applications;

g) E-TBMQT: online invitation to submit statement of interest;

h) E- TBMT: online invitation to bid, online notice of proposed procurement;

i) E-HSMQT: online EOI request (EOI: expression of interest);

k) E-HSQT: online expression of interest;

l) E-HSMST: online document on prequalification;

m) E-HSDST: online application for prequalification;

n) E-HSMT: bidding documents used in e-competitive bidding, e-limited bidding, request for proposals of e-shopping according to the standard process, request for quotation of e-shopping according to simplified method

o) E-HSDT: bid package used in e-competitive bidding, e-limited bidding, request for proposals of e-shopping according to the standard process, request for quotation of e-shopping according to simplified method

p) E-HSDXKT: e-technical proposal;

q) E-HSDXTC: e-financial proposal;

5. Electronic document refers to document or information that is successfully sent, received or stored on the System, including:

a) Information about the project;

b) Plan for selection of contractors;

c) E-TBMQT, E-TBMST, E-TBMT, invitation to bid, invitation for prequalification applications, invitation to submit statement of interest;

d) Shortlist;

dd) E-HSMQT, E-HSQT, E-HSMST, E-HSDST, E-HSMT, E-HSDT, EOI request, prequalification document, bidding document; contents that clarify E-HSMST, E-HSMQT, E-HSQT, E-HSDST, E-HSMT, E-HSDT, E-HSDXKT, E-HSDXTC, EOI request, prequalification document, bidding document;

e) Joint venture or consortium agreement;

g) Record on the bid opening, records on the opening to E-HSDXKT, E-HSDXTC;

h) Reports on evaluation of E-HSQT, E-HSDST, E-HSDT;

i) Result of selection of contractors;

k) Proposal for result of selection of contractors and problems regarding the process of e-selection of contractors;

l) Other electronic document in the System;

6. Improper information refers to information published on the System by entities specified in Article 2 of this Circular that fails to comply with regulations of the Law on Procurement and other relevant laws.

7. Public digital certificate in the System at the address http://muasamcong.mpi.gov.vn refers to a digital certificate granted by a public certification authority.

8. Use manual refers to electronic documents published on the System to instruct users to perform transactions on the System.

9. Organization participating in the System (hereinafter referred to as “participation organization”) refers to agencies and organizations that register participation in the System with one or several roles as follows:

a) Investor;

b) Procuring entities;

c) Bidders;

d) Regulatory unit;

dd) Training centers for bidding.

10. Account of the participation organization (hereinafter referred to as “participation account”) refers to an account granted by the Center to the Organization participating in the System to perform one or several roles specified in Clause 9 of this Article.

11. Task - specific account refers to an account created by participation account to perform a specific task on the System.

12. E-GP project management enterprise is an Investment and Development of National E Procurement System Company Limited established by the Investor in accordance with regulations of the BOT contract of the e-GP project.

13. BOT contract of the e-GP project refers to a contract signed between the Ministry of Planning and Investment and the Investor (FPT Information System Co., Ltd) for investment, design, construction, operation and maintenance, upgrading and transfer of the System in the form of public-private partnership.

Article 4. Application of forms and Appendices

1. Contract package of works:

a) Form No. 1A used to make E-HSMT applying the form of competitive, limited bidding or shopping method under single-stage and one-envelope bidding procedure.

b) Form No. 1B used to make E-HSMT applying the form of competitive or limited bidding under single-stage and two-envelope bidding procedure;

c) Form No. 1C used to make E-HSMST.

2. Contract package of procurement of goods (including bulk purchasing):

a) Form No. 2A used to make E-HSMT applying the form of competitive, limited bidding or shopping method under single-stage and one-envelope bidding procedure.

b) Form No. 2B used to make E-HSMT applying the form of competitive or limited bidding under single-stage and two-envelope bidding procedure;

c) Form No. 2C used to make E-HSMST.

3. Contract package of non-consultancy service;

a) Form No. 3A used to make E-HSMT applying the form of competitive, limited bidding or shopping method under single-stage and one-envelope bidding procedure;

b) Form No. 3B used to make E-HSMT applying the form of competitive or limited bidding under single-stage and two-envelope bidding procedure;

c) Form No. 3C used to make E-HSMST.

4. Contract package of consultancy service;

a) Form No. 4A used to make E-HSMT applying the form of competitive or limited bidding under single-stage and two-envelope bidding procedure;

b) Form No. 4B used to make E-HSMQT.

5. Form No. 5 used to make E-HSMT applying the form of shopping according to simplified method;

6. Form of report on evaluation:

a) Form No. 6A used to make report on evaluation of E-HSDT according to the process 01 prescribed in Point a Clause 1 Article 32 of this Circular for contract packages of non-consultancy service, commodity, works under single-stage and one-envelope bidding procedure;

b) Form No. 6B used to make report on evaluation of E-HSDT according to the process 02 prescribed in Point b Clause 1 Article 32 of this Circular for contract packages of non-consultancy service, commodity, works under single-stage and one-envelope bidding procedure;

c) Form No. 6C used to make report on evaluation of E-HSDT for contract packages of non-consultancy service, commodity, works under single-stage and two-envelope bidding procedure;

d) Form No. 6D used to make report on evaluation of E-HSDT for contract package of consultancy service under single-stage and two-envelope bidding procedure;

7. Contract package of procurement of drugs:

a) Form No. 7A used to make E-HSMT applying the form of competitive bidding under single-stage and one-envelope bidding procedure;

b) Form No.7B used to make E-HSMT applying the form of competitive bidding under single-stage and two-envelope bidding procedure.

8. Appendices:

a) Appendix 1A: Form of Request for approving result of evaluation of E-HSĐXKT (a package with single-stage and two-envelope bidding procedure)

b) Appendix 1B: Form of Decision on approving list of bidders satisfying technical requirements (a package with single-stage and two-envelope bidding procedure);

c) Appendix 2A: Form of Request for approving the list of Ranking of bidders ( a package with single-stage and one-envelope bidding procedure);

d) Appendix 2B: Form of Request for approving the list of Ranking of bidders (a package with single-stage and two-envelope bidding procedure);

dd) Appendix 3A: Form of Record of Negotiation of Contract (a package of procurement of goods, works, non-consultancy service or mixed package);

e) Appendix 3B: Form of Record of Negotiation of Contract (a package of consultancy service);

g) Appendix 3C: Document collation result form (all contract packages);

h) Appendix 4: Form of Request for approving the result of selection of contractors;

i) Appendix 5: Form of Commitment;

k) Appendix 6: Form of registration of information on legal documents on bidding;

l) Appendix 7: Form of registration of information about foreign contractor who is selected in Vietnam;

m) Appendix 8: Form of registration of information about imposition of penalties for violations against regulations on bidding;

n) Appendix 9: Some regulations of E-HSMT violating Clause 2, Article 12 of Decree No. 63/2014/ND-CP.

9. Contract packages of projects funded by official development assistance (ODA), concessional loans of foreign government, international organizations, intergovernmental or multinational organization, governmental organization authorized by a foreign government to provide to the State or Government of the Socialist Republic of Vietnam: The E-HSMT, E-HSMQT, E-HSMST, report on evaluation of E-HSDT, E-HSQT or E-HSDST shall be made according to the forms specified in Clauses 1, 2, 3, 4, 5 and 6 of this Article if these forms are accepted by the donors.

Article 5. Formats of attachments.

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

a) It is possible to open or read the file by common software including MS Office or Open Office; PDF; AutoCAD, Photoshop; built-in image viewer. The texts shall be in a Unicode font;

b) It is possible to compress, decompress, open the file by software including: ZIP, RAR or 7ZIP. In case of compressed files, the files shall have the format specified in Point a of this Clause after decompression;

c) It is not infected, broken or damaged and no password is required.

2. If it is impossible to open or read the file attached to the EOI request, E-HSMQT, document on prequalification, E-HSMST, bidding documents or E-HSMT since it fails to meet the conditions specified in Clause 1 in this Article or for other reasons, the procuring entity shall republish EOI request, E-HSMQT, document on prequalification, E-HSMST, bidding document, E-HSMT.

3. If the files attached to the E-HSDT, E-HSQT, E-HSDST are not made in the given format prescribed in Clause 1 of this Article leading to the fact that it is impossible to open and read this file, it will not be evaluated anymore.

Article 6. Technical handling in case of system failure beyond control

1. In case of system failure, the deadlines for submission of bids and the deadlines for clarification of E-HSQT, E-HSDST, E-HSDT of packages of e-selection of contractors that occur during the period from the beginning time of system failure to 02 hours after the System is restored shall be automatically deferred to 06 hours after the system restoration time.

2. In case of the new deadline for submission of bids, deadline for clarification of E-HSQT, E-HSDST, E-HSDT according to regulations Clause 1 of this Article 1 after 17h00, the System shall automatically extend them to 9h00 in the next date.

3. If the deadline for submission of bids must be extended as prescribed in Clauses 1, 2 and 3 of this Article, the evaluation of E-HSQT, E-HSDST, E-HSDT must be carried out according to the deadline for submission of bids specified in the E-TBMQT, E-TBMST, E-TBMT before system failure.

4. In case it takes a long time to fix the System, the Ministry of Planning and Investment shall be responsible for notification on the System of the method for organizing selection of contractors throughout the failure duration, including offline selection of contractors.

Article 7. Registration to participate in the System and processing of registration application

1. The procedure for registration of the participation organization shall follow the User Manual.

2. Application shall contain:

a) Application form on the System according to the procedure for registration specified in Clause 1 of this Article. In case the legal representative of the participation organization is authorized to sign the application, this authorization must be attached to the System;

b) In case the participation organization is not listed on the National Enterprise Registration Information System, it shall attach a photocopy of the decision on establishment or certificate of registration of enterprise or certificate of registration of household business (individual business household) or other equivalent documents to the System

3. Supplement to registered information on the System:

a) The supplement to registered information on the System (including addition of roles to the Account) shall follow the User Manual.

b) The System shall automatically update information of the participation organization according to National Enterprise Registration Information System.

4. Termination or suspension from participation in the System:

a) In case the participation organization has a request for suspension from all or some of the roles of the participation account, it shall follow the User Manual;

b) In case the participation organization fails to pay the fees for use of services as prescribed in Article 10 of Circular No. 06/2021/TT-BKHDT, the System shall suspend one or several roles of the participation account until the completion of payment according to regulations;

c) In case the participation organization has dissolved, gone bankrupt or ceased to exist in accordance with the Law, the System shall automatically update the termination status of the participation account according to information from National Enterprise Registration Information System;

d) In case the participation account has been terminated or suspended for the role of a bidder, the participation organization does not ensure its eligibility as prescribed at Point d Clause 1 Article 5 of the Law on Procurement, Section 5, Chapter I of the forms E-HSMQT, E-HSMST and E-HSMT issued together with this Circular.

5. Reinstatement of participation account:

The reinstatement of participation account after termination or suspension according to regulations of points a and c of Clause 4 of this Article shall follow the User Manual.

6. Procedure and deadline for processing registration application:

The Center shall be responsible for processing application specified in Clauses 1, 3, Points a, b, d, Clauses 4 and 5 of this Article within 02 working days from the date of receipt of the request on the System and notify of the result of processing to the participation organization via the notice board on the System, email, application of mobile equipment or other information channels and detailed instructions in User manual.

Article 8. Management of account and use of digital certificate

1. Creation of task - specific account:

The participation account shall create and distribute power to the task - specific account corresponding to the role of the participation organization specified at Points a, b, c and d, Clause 9, Article 3 of this Circular; lock, unlock; reset password, authentication form, login authentication device for task - specific account.

2. Use of digital certificate on the System:

a) The organizations that are issued digital certificates according to regulations of Clause 7 Article 3 of this Circular when participating in the System shall register to use digital certificates according to the User Manual. A digital certificate on the System is the digital certificate issued to the organization;

b) The digital certificate shall be used for creation of digital signature and organization authentication;

c) The registration for the purpose of use, change and destroy information on digital certificate of the participation organization shall be done on the System according to the User Manual;

d) The participation organization shall be responsible for assurance about the accuracy of digital certificate used on the System.

3. If the organization or individual deliberately publishes information specified in Article 8 of the Law on Procurement with false contents, their accounts shall have blocked within 12 months.

Article 9. Sending and receiving e-documents on the System

1. Electronic documents specified in Clause 5, Article 3 of this Circular shall have their legal validity recognized, serve as a basis for comparison and authentication for evaluation, appraisal, supervision, audit and disbursement according to regulations of Clause 5, Article 85 of Decree No. 63/2014/ND-CP.

2. The sending time and receiving time of e-documents shall be determined according to the real time recorded on the System. Electronic documents that are successfully sent shall be stored on the System.

3. In case the user sends an electronic document on the System, the System must respond to the user whether the submission is successful or unsuccessful.

4. The participation organizations that make successfully registration on the System shall be entitled to export the status of their electronic documents and other information on the System. The information on transaction history shall be used for resolving any dispute that may arise from sending and receiving e-documents on the System.

5. The entity in charge of inspection, supervision, audit and disbursement may not require a physical copy if an electronic copy of the same document can be found on and exported from the System, unless the original copy is necessary for confirmation.

Article 10. Information technology infrastructure requirements

The participation organization shall meet the requirements for infrastructure of information technology specified in Clause 1, Article 79 and Clause 1, Article 80 of the Law on Procurement and detailed instructions in the User Manual.