Chương III Thông tư 08/2022/TT-BKHĐT: Quy định về lựa chọn nhà thầu qua mạng

Chapter III

REGULATIONS ON E-SELECTION OF CONTRACTORS

Article 25. Preparation, submission, validation, approval for E-HSMQT, E-HSMST, E-HSMT

1. The procuring entity shall prepare E-HSMQT, E-HSMST, E-HSMT on the System. After preparation for E-HSMQT, E-HSMST, E-HSMT, the procuring entity shall submit to the investor for validation, approval for E-HSMQT, E-HSMST, E-HSMT. The approval for E-HSMQT, E-HSMST, E-HSMT shall be done offline.

2. The E-HSMT shall include all necessary information to serve as a basis for preparation for E-HSDT of the bidder. In case the investor or the procuring entity publishes E-HSMT with incomplete information (lack of design, drawings...) or unclear information causing difficulties for the bidder in preparation for E-HSDT, the E-HSMT is invalid. The investor or the procuring entity shall amend and supplement the E-HSMT accordingly and re-publish the E-HSMT.

3. In case of a contract package of procurement of goods, works and non-consulting service, the bid data sheet, criteria for evaluation of legitimacy, requirements for qualification in E-HSMST, E-HSMT shall be digitized as a webform on the System. The investor or the procuring entity shall not attach other required files on data sheets, criteria for evaluation of legitimacy, requirements for qualifications in E-HSMST, E-HSMT. The data sheets, criteria for evaluation of legitimacy, requirements for qualifications that are not digitized as a webform shall not be considered as a part of the E-HSMST, E-HSMT and the bidders do not must meet these requirements.

4. Contract package used for prequalification: If there is any change to the bidder’s qualification between the E-HSDT and the application for prequalification, the bidder must update his/her qualification.

5. In case the E-HSMT contains contents that restrict the bidders from participation; create advantages for one or multiple bidders leading unfair competition or violate regulations of Clause 2, Article 12 of the Decree No. 63/2014/ND-CP stated in Appendix 9 issued with this Circular, the procuring entity, expert group shall not reject E-HSDT that fails to satisfy these contents.

6. In case the consultants are hired to perform the roles of the procuring entity, expert group that are publishing of information, preparation for the E-HSMQT, E-HSMST, E-HSMT and evaluation of the E-HSQT, E-HSDST and E-HSDT, the hiring unit shall follow the User Manual.

Article 26. Responsibilities of bidders throughout the process of making of bid

1. The bidder shall be responsible for the accuracy of information declared on the webform and the attached documents throughout the process of making of bid. The bidder shall enter information according to requests of E-HSMQT, E-HSMST, E-HSMT and attach documents in order to create a set of E-HSQT, E-HSDST and E-HSDT as follows:

a) Information about the legitimacy of E-HSDT:

- Bid security: the bidder shall declare the information and attach a scanned copy of the bid security;

- Other contents: the bidder shall only declare the information on webform and not attach scanned copies of relevant documents;

b) Information about qualifications:

- Similar contract, capacity for production: the bidder shall declare and attach relevant documents to prove the declared information;

- Requirement for financial resource: the bidder shall declare information. In case the bidder uses the commitment to provide credit in order to prove financial resource, in addition to compulsory declaration of information, the bidder shall attach a scanned copy of commitment to provide credit;

- Annual revenue, net asset value: from 2021 onwards, the System shall automatically extract the figures on financial statement the National Enterprise Registration Information System, the Electronic Tax System to the file of the bidder's qualification;

- Other contents: the bidder shall only declare the information on webform and not attach scanned copies of relevant documents;

Figures on financial statement from 2021 onwards: in case the bidder discovers that the figures have not yet been updated on the System to be consistent with those on the Electronic Tax System from 2021 onwards, the bidder shall modify the figures in conformity with the figures reported to the tax authority. In case, the figures updated or modified by the bidder on the System are not consistent with the figures on the Electronic Tax System leading to the misleading results of contractor selection, it shall be considered fraud as prescribed in Clause 4, Article 89 of the Law on Procurement.

2. The bidder shall be responsible for research on E-HSMQT, E-HSMST, E-HSMT for the contract packages for which the bidder has submitted expression of interest (EOI) to prepare E-HSQT, E-HSDST, E-HSDT in conformity with the requirements of E-HSMQT, E-HSMST, E-HSMT. In case it is discovered that the E-HSMT, E-HSMST and E-HSMT contain unclear contents causing difficulties for the bidder in preparation for the E-HSQT, E-HSDST and E-HSDT, the bidder shall request the procuring entity to clarify the E-HSMQT, E-HSMST and E-HSMT for the investor and the procuring entity to amend and supplement these documents accordingly.

3. The bidder shall be responsible for monitoring and updating information on the System for the contractor packages for which the bidder has submitted their bids or expression of interest (EOI). In case of any errors arising due to failure to monitor and update information on the System leading to disadvantages for bidder throughout the process of making of bid, including: change or modification of E-HSMQT, E-HSMST, E-HSMT, time of submission of E-HSQT, E-HSDST, E-HSDT, time of clarification of E-HSQT, E-HSDST, E-HSDT, time of negotiation of contract and other contents, the bidder shall take responsibility and suffer from disadvantage throughout the process of making of bid .

4. In case the legal representative of the bidder authorizes the branch director, the director of dependent subsidiary company, the director of the factory… to perform the tasks throughout the process of making of bid, the participation account of the bidder shall be used to make the bid. The participation account of the branch, the dependent subsidiary company and the factory shall not be used to make the bid in this case. If the participation account of the branch or the dependent subsidiary company is used to make the bid, the bidder shall be considered as ineligibility as prescribed in Clause 1, Article 5 of the Law on Procurement.

Article 27. Licence to sell goods and samples

1. Licence to sell goods:

a) With regard to normal, common and available-at-market goods and those which have been standardized and for which warrants are issued in accordance with manufacturer’s regulations, the E-HSMT shall not lay down requirements to which bidders are obliged to submit the manufacturer’s license to sell goods or the partnership certificate or other equivalent.

b) With regard to particular and complex goods of which the contract for procurement binds manufacturers to furnish after-sale services such as warranty, maintenance, repair and provision of components or spare parts, technical support services as well as other relevant services, the E-HSMT shall lay down requirements to which bidders are obliged to provide the manufacturer’s license to sell goods

In case the E-HSMT lays down specific requirements for the licence to sell goods (manufacturer's license to sell goods or commitment to technical support or warranty...) the bidder shall only show one of the following documents before signing the contract including: a license to sell goods of the manufacturer or the dealer authorized to sell goods; a partnership certificate; a manufacturer's commitment to technical support or warranty or other equivalent;

c) The failure to attach one of the documents specified at point b of this clause is not the reason for the rejection of the bidder. The bidder shall be reviewed, evaluated and considered for success in bid. In case of winning the bid, the contractor shall show one of these documents before signing the contract.

2. Samples:

E-HSMT must not include requests for supplying samples; in case a request for supplying samples serving technical evaluation is involved, the investor must send a proposal to a competent person for consideration and decision. In the proposal, reasons for the request for supplying samples shall be clarified. The investor and the procuring entity shall ensure that the request for samples does not increase the cost of the package, limit participation of bidders or give advantages to one or multiple bidders, causing unfair competition. In case E-HSMT include a request for supplying samples, the bidder may supply additional samples within 05 working days after the deadline for submission of bids.

Article 28. Certificate of capacity for construction of works

In case of contract package of works, the bidder can attach the certificate of capacity for construction of works or not attach this certificate in the E-HSDT, even if the E-HSMT lays down requirements for certificate of capacity for construction of works. The failure to attach the certificate of capacity for construction of works is not a reason for the rejection of the bidder. E-HSDT of the bidder shall be reviewed, evaluated and considered for success in bid. In case of winning the bid, the contractor shall show the certificate of capacity for construction of works before signing the contract.

Article 29. Regulations on commitments, principle contracts

In case the E-HSMT lays down requirements for commitment, principle contract for rental of equipment, provision of main materials, warranty, repair and maintenance that fail to be attached to E-HSDT, the procuring entity shall request the bidder to clarify the E-HSDT, supplement documents within the suitable time that is no less than 03 working days to serve as the basis for evaluation of the E-HSDT.

Article 30. Regulations on key personnel, equipment

1. Requirements for key personnel;

a) Contract package of procurement of goods

- In case of provision of goods, E-HSMT shall not lay down requirements for mobilization of key personnel;

- In case of common and available-at-market goods that do not require highly-qualified personnel to perform relevant services, E-HSMT shall not lay down requirements for key personnel;

- In case of particular and complex services that require the personnel who have qualification, knowledge and experience, E-HSMT may lay down requirements for mobilization of key personnel to perform particular and complex works. In case of requirements for mobilization of key personnel, the written request for approval for E-HSMT shall clearly state the reasons for the investor to consider and decide. The investor and procuring entity shall ensure that the requirements for mobilization of key personnel fail to restrict the bidders from participation; create advantages for one or multiple bidders leading unfair competition.

b) Contract package of works:

According to the scale and nature of the contract package and the Law on Construction, the investor shall lay down appropriate requirements for key personnel in the E-HSMT. E-HSMT shall not lay down requirements for key personnel for positions that the Law on Construction fails to have any requirement for standards; general engineering, engineering workers, manual labor.

c) Contract package of non-consultancy service;

In case of contract package of non-consultancy service that does not require highly-qualified personnel, E-HSMT shall not lay down requirements for key personnel. In case of non-consultancy service with particular and complex elements that requires the personnel who have qualification, knowledge and experience, E-HSMT may lay down requirements for mobilization of key personnel to perform particular and complex works. In case of requirements for mobilization of key personnel, the written request for approval for E-HSMT shall clearly state the reasons for the investor to consider and decide. The investor and procuring entity shall ensure that the requirements for mobilization of key personnel fail to restrict the bidders from participation; create advantages for one or multiple bidders leading unfair competition. E-HSMT shall not lay down requirements for engineering workers, manual labor.

d) Contract package mentioned at Points a, b and c of this Clause with requirements for key personnel: in case the key personnel who are declared by the bidder in the E-HSDT do not meet the requirements of the E-HSMT, the procuring entity shall let the bidder clarify, change and supplement key personnel to meet the requirements of the E-HSMT within the suitable time that is no less than 03 working days. In case of each personnel who does not meet requirements, the bidder shall be allowed to replace the personnel once. In case the bidder does not have personnel to replace according to the requirements of the E-HSMT, the E-HSDT will be rejected.

2. Requirements for main equipment (contract package of non-consultancy service (if any), or works);

a) According to the scale and nature of the contractor package, the procuring entity shall lay down appropriate requirements for the main equipment (quantity, type, function, capacity...);

b) In case the equipment declared by the bidder in the E-HSDT does not meet the requirements of the E-HSMT, the procuring entity shall let the bidder clarify, change or supplement the equipment to meet the requirements of the E-HSMT within the suitable time that is no less than 03 working days. In case of each equipment that does not meet requirements, the bidder shall be allowed to replace the equipment once. In case the bidder does not have equipment to replace according to the requirements of the E-HSMT, the bidder will be rejected.

3. In case of winning the bid and signing the contract, the contractor shall be obliged to mobilize personnel and equipment according to the original proposal or proposal for change under the regulations of Point d Clause 1 and Point b Clause 2 of this Article. In case of failure to mobilize personnel, equipment, the contractor shall be subject to penalties according to the contract and assessed on its reputation when participating in other contractor packages.

4. In all cases, if the bidder declares personnel and equipment in an untruthful manner, the bidder must not replace other personnel and equipment as prescribed at Point d Clause 1 and Point b Clause 2 of this Article. The E-HSDT of the bidder shall be rejected. It shall be considered as fraud according to the regulations of Clause 4, Article 89 of the Law on Procurement. The bidder shall be sanctioned according to the provisions of Clause 1, Article 122 of Decree No. 63/2014/ND-CP.

Article 31. Bid opening via e-selection of contractors

1. Contract packages under single-stage and one-envelope bidding procedure:

The procuring entity must open the bid and publicize the bid opening record on the System within 2 hours from the deadline for submission of bids.

2. Contract packages under single-stage and two-envelope bidding procedure:

a) The procuring entity must open E-HSDXKT and publicize the E-HSDXKT opening record on the System within 2 hours from the deadline for submission of bids.

b) After issuance of the decision on approval for the list of bidders who meet the technical requirements, the procuring entity shall publish this list on the System and attach a scanned copy of the document on approval for the list of bidders who meet the technical requirements on the System. After successful publishing, the System shall send a notification to the bidders participating in the contract packages;

c) After publishing the list of bidders who meet the technical requirements, the procuring entity shall open E-HSDXTC of the bidders of the list and publicize the E-HSDXKT opening record on the System

Article 32. Evaluation of E-HSDT

1. Process of evaluation of E-HSDT:

a) Process 01: all contract packages

- Evaluate the legitimacy of E-HSDT;

- Evaluate qualifications;

- Evaluate technical aspects;

- Evaluate finance.

b) Process 02: Contract package of procurement of goods or non-consultancy service under single-stage and one-envelope bidding procedure, in which E-HSDT is evaluated according to “lowest-evaluated selection” and E-HSDTs have no incentives:

- According to the bid opening record, the System shall automatically rank bidder according to the lowest bid price (without approving the list of ranked bidders in this case);

- Evaluate the legitimacy of E-HSDT of the first-ranked bidder;

- Evaluate qualifications of the first-ranked bidder;

- Evaluate technical aspects of the first-ranked bidder;

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

c) In case of contract package under single-stage and one-envelope bidding procedure, according to E-HSDT submitted by the bidders on the System and the method of evaluation of E-HSDT specified in the E-HSMT, the procuring entity may choose one of the two processes specified at Points a and b of this Clause to evaluate the E-HSDT. The E-HSDT shall only be evaluated under the process 02 if all the conditions specified at Point b of this Clause are fully satisfied.

2. Principle of evaluation of E-HSDT:

a) The evaluation of the E-HSDT shall be made according to the criteria for evaluation of the E-HSDT and other requirements in the E-HSMT, E-HSMT clarification documents, submitted E-HSDT, documents on explanation and clarification of E-HSDT of the bidder to ensure that the selected contractor has qualification with feasible solutions to implement the contract package;

b) After selection of shortlist, in case the bidder changes his/her eligibility to participate in bidding, the bidder shall send a written request to the procuring entity for consideration and approval. In case of being approved by the procuring entity, the bidder shall attach documents that prove the bidder’s qualification in the E-HSDT according to the new eligibility to participate in bidding;

c) Contents that are automatically evaluated by the System: If the bidder fails to make declaration or makes an untrue, incomplete, unresponsive declaration compared to the requirements prescribed in E-HSMT, the System will evaluate the bidder as failed as to this item. The expert group shall not change the result of evaluation from "failed" to "passed" when the System has evaluated “failed”. In case the information that the bidder commits and declares in E-HSDT is untrue leading to misleading result of evaluation of E-HSDT of the bidder, the bidder shall be considered as a fraudster and sanctioned according to regulations specified in Clause 1, Article 122 of Decree No. 63/2014/ND-CP;

d) Bid security: in case the information declared on the webform is not consistent with the information in the attached file, the information in the attached file shall be the basis for evaluation;

dd) Similar contract: in case the information about the contract declared on the webform is not consistent with the file proving the information about that contract, the procuring entity shall request the bidder to clarify the E-HSDT;

In case the contracts declared and attached by the bidder in the E-HSMT fail to meet the requirements of the E-HSMT, the procuring entity shall request the bidder to clarify and supplement another contract from the document on the bidder’s qualification on the System in order to meet the requirements of E-HSMT within the suitable time that is no less than 03 working days. In case the bidder does not have contract to meet the requirements of the E-HSMT, the bidder will be rejected.

e) Origin of goods: the information declared on the webform is not consistent with the information in the attached file, the procuring entity shall request the bidder to clarify E-HSDT;

g) Other contents that are not mentioned at Points d, dd and e of this Clause: in case the information declared on the webform is not consistent with the information in the attached file, the information declared on the webform shall be the basis for consideration and evaluation;

h) As for financial evaluation: if the bidder fails to declare information in the form on incentives for domestical goods (contract package of procurement of goods) to serve as a basis for calculation of incentives, the bidder shall not be entitled to incentives;

i) The bidder who is invited to negotiate the contract shall prepare documents to compare and prove the information declared by the bidder in the E-HSDT. In case the contents of legitimacy, previous contract non-fulfillment records due to the bidder’s fault, fulfillment of tax obligations, average annual revenue and net asset value have been automatically evaluated by the System as "passed" according to the information declared and extracted in the E-HSDT, but the expert group re-evaluates as "failed", the expert group shall change the result of evaluation from "passed" to "failed". In this case, the procuring entity shall invite the next ranked bidder to negotiate the contract without re-approving the ranked list. With regard to information on the fulfillment of tax obligations, average annual revenue and net asset value from 2021 onwards, the procuring entity shall only compare if the bidder updates the information without comparison in case the above information is automatically extracted by the System from National Enterprise Registration Information System, the Electronic Tax System.

3. In case there is only 01 bidder participating in bidding or 01 bidder eligible after the technical evaluation, it is not required to determine the evaluated price (with regard to packages applying the evaluated-price method) or combined score (with regard to packages applying the combined technique and price-based method), determine incentives and rank bidders.

4. After evaluation of the E-HSDT, the leader of the expert group shall attach a scanned copy of the E-HSDT evaluation report (signed by all members of the expert group) to the System. The leader of expert group shall be responsible for the consistency of the scanned copy of the E-HSDT evaluation report attached to the System with the written paper of E-HSDT evaluation report signed by the members of the expert group.

5. The list of ranking of bidders shall not be subject to verification prior to approval.

Article 33. Submission, validation, approval for the result of selection of contractors

1. The procuring entity shall make report according to Appendix 4 issued with this Circular and submit the report and the E-HSDT evaluation report to the investor for approval of the result of selection of contractors.

2. The investor shall approve contractor selection results on the basis of the proposal, the E-HSDT evaluation report and the report on appraisal of contractor selection results.

Article 34. The time limit for preparation for E-HSDT in case of e-competitive bidding for contract package under case of direct contracting and contract package of simple consultancy service.

1. Contract package under case of direct contracting according to regulations of Clause 1 Article 22 of the Law on Procurement: if the person competent decides to apply e-competitive bidding, the time limit for preparation for E-HSDT shall be 10 days.

2. In case of contract package of simple consultancy service applying the lump-sum contract, the time limit for preparation for E-HSDT of shall be 10 days.

Article 35. E-bidding for provision of drugs

1. The procuring entity shall prepare E-HSMT with the following contents:

a) The contents of the E-HSMT on the webform shall contain: Data sheet, Letter of bid, joint venture or consortium agreement (if any), Schedule "Bid price and Table of scope of provision, progress in provision and technical requirements of drugs”.

b) The remaining contents of the E-HSMT shall by prepared and attached by procuring entity to the System.

2. E-HSMT shall be prepared according to the webforms mentioned at Point a, Clause 1 of this Article and the regulations of Circular No. 15/2019/TT-BYT. The evaluation of the E-HSDT shall be made according to the criteria for evaluation of the E-HSDT and other requirements in the E-HSMT, submitted E-HSDT, documents on explanation and clarification of E-HSDT of the bidder to ensure that the selected contractor has qualification with feasible solutions to implement the contract package;

3. After preparation for E-HSMT, the procuring entity shall print E-HSMT and submit it to the investor for appraisal and approval. The procuring entity shall be responsible for the consistency between the contents of approved E-HSMT and contents of E-HSMT on the System. In case, there is difference between the contents of approved E-HSMT and contents of E-HSMT on the System, the contents of E-HSMT on the System shall be the basis for preparation and evaluation of the E-HSDT.

4. E-HSMT shall be issued free of charge on the System. The procuring entity shall not issue the physical bidding documents to the bidders. If the procuring entity issues the physical bidding documents to the bidders, these physical documents do not have their legal validity recognized in order to make and evaluate bid package. The bidders shall pay fees according to regulations.

5. In case, it is necessary to revise the E-HSMT, the procuring entity shall log in and directly revise E-HSMT on the System after the contents of E-HSMT have been approved by the investor.

6. In case there is difference between the information in the attached file of E-HSMT issued on the System and the information in the webform, the information in the webform shall be the basis for preparation and evaluation of E-HSDT.

7. The bidder shall make the schedule of bid price according to the webform, commitment to the contents of letter of bid created by the System on the System. In case of joint venture or consortium agreement, it shall be made on the System. The remaining contents of E-HSDT shall be attached by the bidder to the System. In case there is difference between the information on the webform and the information in the attached file of E-HSDT, the information on the webform shall be the basis for evaluation of E-HSDT.

8. In case the regulations of this Article, Form No. 7A, Form No. 7B issued together with this Circular are not consistent with the remaining regulations of this Circular, the regulations of this Article and Form No. 7A, Form No. 7B issued together with this Circular shall be applied.