LAW

ON BIDDING

Pursuant to the Constitution of the Socialist Republic of Vietnam;

National Assembly promulgates the Law on bidding.

Chapter 1.

GENERAL PROVISIONS

Article 1. Scope of regulation

This Law provides for state management on bidding; responsibilities of concerned parties and activities of bidding, including:

1. Selection of tenderers to supply the advisory services, non-advisory services, goods, construction and installation for:

a) Projects on development investment financed by state of state agencies, political organizations, socio-political organizations, professional-socio-political organizations, socio-professional organizations, social organizations, units of People’s armed forces, and public non-business units;

b) Projects on development investment of state-owned enterprises;

c) Projects on development investment other than cases defined at point a and point b of this Clause which are financed by state, state-owned enterprises with level equal to 30% or more or less than 30% but more than 500 billion VND in total invested capital of project.

d) Procurement financed by state aiming to maintain regular activities of State bodies, political organizations, socio-political organizations, socio-political-occupational organizations, social organizations, socio-occupational organizations and units of the People’s armed forces, and public non-business units;

dd) Procurement financed by state aiming to supply products and services in serve of public purpose;

e) Purchase of national reserve goods financed by state;

g) Purchase of drugs, medical supplies financed state; medical insurance fund, revenues from services of medical examination and treatment and other lawful revenues of public medical establishments;

2. Selection of tenderers to supply the advisory services, non-advisory services, goods on Vietnam’s territory for implementation of overseas direct-investment projects of Vietnamese enterprises which are financed by state with level equal to 30% or more or less than 30% but more than 500 billion VND in total invested capital of project.

3. Selection of investors to perform the investment projects in form of public-private partnership (PPP), investment projects with land use;

4. Selection of tenderers in petroleum field, except for selection of tenderers to supply petroleum services related directly to activities of search, exploration and development of mines and petroleum exploitation as prescribed by law on petroleum.

Article 2. Subjects of application

1. Organizations and individuals that participate in or related to activities of bidding defined in Article 1 of this Law.

2. Organizations and individuals that have activities of bidding not within the governing scope of this Law may choose to apply this Law. In case of choosing to apply, organizations and individuals must observe the concerned provisions of this law and ensure fairness, transparency and economic efficiency.

Article 3. Application of Law on bidding, International treaties and international agreements

1. Bidding activities must comply with the provisions of this Law and other related laws.

2. Case of selecting by bidding for provision of raw materials, fuel, materials, supplies, advisory services, non-advisory services in order to ensure the continuity for production and business and procurement with the aim to maintain regular activities of state-owned enterprises; implementation of bidding packages of investment projects in the form of public-private partnership, investment projects with land use of the selected investors, enterprises must promulgate regulations on choosing tenderers for unified application in enterprises on the basis of ensuring objective of fairness, transparency, and economic efficiency.

3. For selection of tenderers, investors of projects financed by official development assistance (ODA) capital, concessional loans arising from International treaties, international agreements between Vietnam and donors, international treaties, international agreements shall be applied.

4. If International treaties to which the Socialist Republic of Vietnam is a contracting party have provisions on selection of tenderers and investors different from this Law, such International treaties shall prevail.

Article 4. Interpretation of terms

In this Law, the following terms are construed as follows:

1. Bidding guarantee means the tenderer or investor provides security by one of the security methods of paying a deposit, escrow or providing a letter of guarantee of credit institutions or foreign banks’ branches which are established under Vietnamese law in order to secure the liability in the bid participation of tenderer or investor for a definite term as stipulated in the bid invitation documents, dossier of requirements.

2. Contract performance guarantee means the tenderer or investor provides security by one of the security methods of paying a deposit, escrow or providing a letter of guarantee of credit institutions or foreign banks’ branches which are established under Vietnamese law in order to secure the liability of the Contract performance by tenderer or investor.

3. Bid solicitor means a professional agency or organization with sufficient capability to perform bidding activities, including:

a) Investor or organization which is decided for establishment or selected by the investor;

b) Estimation unit directly using capital source for regular procurement;

c) The unit of concentrated procurement:

d) Competent state agencies or the affiliated organizations which are selected by the competent state agencies.

4. Investor means the entity owning the financing capital or the entity assigned responsibility to represent such owner, or the borrower directly managing and implementing project.

5. Digital certificate means electronic certificate granted by providers of digital signature certificate service in order to perform bidding via network on the national bidding network system.

6. Competent state agencies mean agencies signing contracts with investors.

7. Short list means list of tenderers, investors winning pre-qualification for open bidding with pre-qualification; list of tenderers invited for bid participation for limited bidding; list of tenderers with dossiers of expression of interest meeting requirements of dossiers of invitation for expression of interest.

8. Advisory service means one or a number of activities including: Preparation, assessment of the planning report, overall development diagram, architecture; survey and making of pre-feasibility study report, feasibility study report, environmental impact assessment report; survey and making of engineering, estimate; preparation of dossiers of invitation for expression of interest, dossier of invitation for pre-qualification, bid dossiers, dossiers of requirements; assessment of dossiers of expression of interest, dossiers of prequalification participation, bid dossiers, dossiers of proposals; verification, appraisal; supervision; management of project; arranging finance; audit, training, transfer of technologies; other advisory services.

9. Non-advisory service means one or a number of activities including: Logistics, insurance, advertisement, installation not belong to Clause 45 of this Article, pre-acceptance test and operation run, holding of training, maintenance, drawing maps and other activities not being advisory services defined at clause 8 of this article.

10. Project management enterprise means enterprise which is established by investor for performance of investment project in form of private-public partnership or investment project with land use.

11. Projects on development investment (hereinafter collectively referred to as projects) include: programs or projects on investment in new construction; projects on renovation, upgrading, expansion of projects invested in construction; projects on procurement of assets, including equipment, machinery without installation; projects on repair, upgrading of assets, equipment; projects, schemes on planning; projects, subjects on scientific research, technology development, application of technologies, technical support, basic survey; other programs, projects, or schemes on development investment.

12. Bidding means the process of selecting a tenderer to sign and implement contract of provision of advisory services, non-advisory services, procurement of goods, construction and installation; selecting an investor to sign and implement contract of investment project in form of public-private partnership, investment project with land use on the basis of ensuring competitiveness, fairness, transparency and economic efficiency.

13. Bidding via network means bidding which is performed via use of the national bidding network system.

14. International bidding means bidding in which both foreign and domestic tenderers and investors may participate.

15. Domestic bidding means bidding in which only domestic tenderers and investors may participate.

16. The bidding package price means the value of a bidding package approved in the plan on selecting tenderers.

17. The bidding price means the price stated by a tenderer in application for bid participation, quotation, including all costs for implementation of bidding package as required by dossier of bid invitation, dossier of requirement.

18. The assessment price means the bidding price after the errors have been rectified and discrepancies have been adjusted as required in dossier of bid invitation, minus the value of discount (if any), plus elements to convert on a same ground for whole use life cycle of goods and works. The assessment price is used to rank dossiers of bid participation for bidding packages of procurement of goods, construction and installation and the mixture bidding packages applying form of public bidding or limited bidding.

19. Proposed bid-winning price means the bidding price of the tenderer who are proposed to win bid after the errors have been rectified and discrepancies have been adjusted as required by the bidding invitation documents, dossiers of requirements, minus the value of discount (if any).

20. Winning bid price means the price approved in the results of selection of tenderer.

21. Contractual price means the price stated in written contract as the basis for advance payment, payment, liquidation and finalization of contract.

22. Bidding package means a part of, or entire project, estimate of procurement; a bidding package may comprise items for the procurement of similar goods for a number of projects or a one-off procurement, procurement for a period in recurrent procurement, concentrated procurement of goods.

23. Mixture bidding package means a bidding package comprising of engineering and goods provision (EP); engineering, construction and installation (EC); goods provision and construction and installation (PC); engineering, goods provision, construction and installation (EPC); making project, engineering, goods provision, construction and installation (turnkey).

24. Bidding package with small scale means a bidding package with price in limitation prescribed by the Government.

25. Goods include machinery, equipment, raw materials, fuel, materials, supplies, accessories; consumables; drugs, medical supplies used for medical establishment.

26. The national bidding network system means an information technology system which is set up and managed by the state management agency of bidding activities with the aim to perform unified management of information on bidding and bidding via network.

27. Dossiers of invitation for expression of interest, dossiers of invitation for pre-qualification mean all documents including requirements on capability and experiences of tenderers, investors as the basis for the bid solicitor to select list of tenderers, investors winning pre-qualification, list of tenderers with dossiers of expression of interest meeting requirements of dossiers of invitation for expression of interest.

28. Dossiers of expression of interest, dossiers of pre-qualification participation mean all documents which are made by tenderers, investors and submitted to the bid solicitor at the requirements of dossiers of invitation for expression of interest, dossiers of invitation for pre-qualification.

29. Bid invitation documents mean all of the documents used for open or limited bidding stipulating the requirements for a project, bidding package and providing the legal basis for tenderers, investors to prepare their bid dossiers and for the bid solicitor to assess bid dossiers aimed at selection of a winning tenderer, or investor.

30. Dossier of requirements mean all of the documents used for direct appointment of contractor, direct procurement, competitive quotation including the requirements for a project, bidding package and providing the basis for tenderers, investors to prepare their dossier of proposals and for the bid solicitor to assess dossier of proposals aimed at selection of a winning tenderer, or investor.

31. Bid dossiers, dossiers of proposals mean all documents whichare made by tenderers, investors and submitted to the bid solicitor at the requirements of the bidding dossiers, dossiers of requirements.

32. Contract means the document signed between the investor and the selected contractor in implementation of bidding package under project; between bid solicitor and the selected contractor in regular procurement; between the concentrated-procurement unit or unit with procurement need with the selected contractor in the concentrated procurement; between competent state agency with the selected investor or between the competent state agency and the selected investor and project enterprise in the investor selection.

33. Protest means a request from any tenderer, investor participating in tendering for reconsideration of the results of selection of contractor, results of selection of investor and regarding any other relevant matter during the process or selecting contractor, investor when such tenderer or investor considers his rights and interests have been adversely affected.

34. Competent person means person who decides on the approval of project or person who decides on procurement as prescribed by law. In case of selection of investor, the competent person means the head of competent state agency as prescribed by law.

35. Head contractor means a tenderer liable for its participation in bidding which gives its name to a tender, and which directly signs in and implements a contract if selected. Head contractor may be dependent contractor or member of partnership of contractors.

36. Sub-contractor means a contractor performing part of the work of a tender package on the basis of a contract signed with the head contractor. The special sub-contractor means a sub-contractor performing special works of a tender package proposed by the head contractor in bidding dossier, dossier of proposals on the basis of requirements stated in bidding dossier, dossier of requirements.

37. Foreign contractor means an organization established under foreign law or an individual of foreign nationality participating in bid in Vietnam.

38. Domestic contractor means an organization established under Vietnamese law or individual of Vietnamese nationality participating in bid.

39. Public products and services mean the essential products and services for economic-social life of country, population communities or assurance of national defense and security which the State must organize implementation in the fields: Health, education - training, culture, information, communications, science – technology, natural resources - environment, transport and other fields as prescribed by Government. Public products and services include the public-interest products and services, and services for public career.

40. Appraisal in the course of selecting contractor or investor means check and assessment plan on selecting contractors, investors, dossiers of invitation for expression of interest, dossiers of invitation for pre-qualification, bidding dossiers, dossier of requirements and results of invitation for expression of interest, results of pre-qualification, results of selection of contractor, investor as the basis for the authorized person to consider and make a decision on approval in accordance with this Law.

41. Time of bid closure means the expiry time of receiving dossiers of expression of interest, dossiers of pre-qualification participation, bid dossiers, dossier of proposals.

42. The validity duration of bid dossiers, dossier of proposals means number of days stipulated in bidding dossier, dossier of requirements and calculated from the time of bid closure to the end effect day as prescribed in bidding dossiers, dossiers of requirements. From the time of bid closure until ending of 24 hours of day of bid closure is calculated as 01 day.

43. The expert group includes individuals with capability and experiences set up by the bid solicitor or the bid consultancy unit in order to assess dossiers of expression of interest, dossiers of pre-qualification participation, bid dossiers, dossier of proposals and perform other tasks during selection of contractors, investors.

44. Financed by the State means the use of State Budget funds; national bonds, Governmental bonds, bonds of local authorities; official development assistance capital, concessional loans from donors; fund for development of non-business activities; credit facilities for investment and development of the State; credit facilities guaranteed by the Government, loans guaranteed by assets of state; investment and development funds of State-owned enterprises, and value of land-use right.

45. Construction and installation include works of construction and installation of works and work items.

Article 5. Eligibility of tenderers, investors

1. A tenderer or investor being an organization shall be deemed to be eligible when it satisfies the following conditions:

a) Having registration for establishment and operation issued by the competent authority of country where it is operating;

b) It is an independent cost accounting entity;

c) It is not in the process of dissolution; not concluded to fall into the state of bankruptcy or to be insolvent as prescribed by law.

d) It has registered on the national bidding network system;

dd) To ensure competitiveness in bid as prescribed in Article 6 of this Law;

e) It is not in time banned from bid participation;

g) Its name is stated in short list for case where the short list has been selected;

h) It must have a partnership with domestic contractors or use sub-contractors if it is foreign tenderer when participating in international bid in Vietnam, unless domestic contractors have not full capability to participate in any part of bidding package.

2. A tenderer or investor being an individual shall be deemed to be eligible when it satisfies the following conditions:

a) Having full capacity for civil acts pursuant to the law of the country of which such individual is a citizen;

b) Having an appropriate professional certificate as prescribed by law;

c) Having lawful registration for operation as prescribed by law;

d) Such individual is not being examined for penal liability;

d) Such individual is not in time banned from bid participation.

3. Tenderers and investors with eligibility as prescribed in Clause 1 and Clause 2 of this Article may participate in bid with an independent status or partnership; in case of partnership, it must have written agreement among members, in which clearly stating responsibilities of head of partnership and general responsibilities, separate responsibilities of each member in partnership.

Article 6. Ensuring competitiveness in bid

1. Tenderers submitting dossiers of expression of interest, dossiers of pre-qualification participation must be independent legally and independent financial with advisory tenderers for making dossiers of invitation for expression of interest, dossiers of invitation for pre-qualification; assessment of dossiers of expression of interest, dossiers of pre-qualification participation; appraisal for results of invitation for interest, results of pre-qualification.

2. Tenderers participating in bid must be independent legally and independent financial with the following parties:

a) Investment owner, bid solicitor:

b) The advisory tenderers for the making, verification, and appraisal of dossiers of design and estimate; the making, verification of bidding dossiers, dossier of requirements; assessment of bid dossiers, dossier of proposals; appraisal of results of selecting tenderer of such bidding package;

c) Other tenderers that participate in same bidding package for limited bidding.

3. A consultancy tenderer who supervises implementation of a contract must be independent legally, independent financially from the tenderer who performs the contract, the consultancy tenderer who verifies such bidding package.

4. Investors participating in bid must be independent legally and independent financial with the following parties:

a) The consultancy tenderers for bidding for investment projects in form of public-private partnership (PPP), investment projects with land use, until day of signing the project contract;

b) The consultancy tenderer that verifies the investment project in form of public-private partnership (PPP), investment project with land use, until day of signing the project contract;

c) Competent state agencies, and the bid solicitor.

5. The Government shall detail this Article.

Article 7. Conditions for issuing the bidding dossiers, dossier of requirements

1. The bidding dossiers, dossier of requirements of a bidding package may be only issued to select tenderers when having full the following conditions:

a) The approved plan on selection of tenderers;

b) The approved bidding dossiers, dossier of requirements include contents of requirements on procedures for bidding, tables of bidding data; criteria for evaluation, forms of bidding, volume table of bid invitation; requirements on progress, techniques, quality; general conditions, specific conditions of contracts, model contracts and other necessary contents;

c) Notice of bid invitation, notice of quotation invitation or short list must be published as prescribed by this Law;

d) Capital sources for bidding package are allocated under the implementation schedule of bidding package;

dd) Content, list of goods, services and estimates already been approved by competent person in case of regular procurement and concentrated procurement;

e) Ensuring the handing over of construction ground under implementation schedule of bidding package.

2. Bidding dossiers, dossier of requirements of a project may be only issued to select investors when having full the following conditions:

a) Project under list of projects announced by Ministries, Ministerial agencies, Governmental agencies, the provincial/municipal People’s Committees as prescribed by law or projects proposed by investors;

b) The approved plan on selection of tenderers;

c) The approved bidding dossiers, dossier of requirements;

d) Notice of bid invitation, or short list must be published as prescribed by this Law.

Article 8. Information of bidding

1. All information must be published on the national bidding network system, bidding newspapers including:

a) The plan on selection of tenderers, investors;

b) Notice of invitation for expression of interest, notice of invitation for pre-qualification;

c) Notice of invitation for quotation, notice of bid invitation;

d) Short list;

dd) Results of selection of tenderers, investors;

e) Results of bid opening for bidding via network;

g) Information on handling of violations of law on bidding;

h) Legal documents on bidding;

i) List of investment projects in the form of public-private partnership, projects with land use;

k) The database of tenderers, investors, bidding experts, lecturers of bidding, and establishments of training on bidding;

l) Other relevant information.

2. The information defined at Clause 1 this Article is encouraged to publish on websites of Ministries, sectors and localities or on other means of mass media.

3. The Government shall detail this Article.

Article 9. Language to be used in bidding

Language to be used in tendering shall be Vietnamese in the case of domestic bidding, and English or Vietnamese and English in the case of international bidding.

Article 10. Currency to be used in bidding

1. For domestic bidding, tenderers are only allowed to have bid quotation in Vietnam dong.

2. For international bidding:

a) Bidding dossiers, dossier of requirements must state the currency for bidding in bid dossiers, dossier of proposals but not exceeding three currencies; for a specific work item, only give bid quotation in a currency kind;

b) In case where bidding dossiers, dossier of requirements stipulate that tenderers may have bid quotation in two or three currencies when assessing bid dossiers, dossier of proposals, quotation must be converted into a currency kind; if having Vietnam dong used in such currencies, quotation must be converted into Vietnam dong. Bidding dossiers, dossier of requirements must stipulate the convertible currency, time and bases to determine the exchange rate for converting;

c) For domestic costs involving implementation of bidding, tenderers must have a bid quotation in Vietnam dong;

d) For overseas costs involving implementation of bidding, tenderers may have a bid quotation in foreign currency

Article 11. Bidding guarantee

1. Bidding guarantee shall apply in the following cases:

a) Open bidding, limited bidding, and competitive quotation for bidding package of non-advisory service provision, goods procurement, construction and installation, and mixture bidding package;

b) Open bidding and direct appointment of contractor for selection of investor.

2. Tenderers and investors must conduct measures for bidding guarantee before time of bid closure for bid dossiers, dossiers of proposals; case of applying method of two-phase bidding, tenderers must provide a bidding guarantee during phase two.

3. Value of bidding guarantee is stipulated as follows:

a) For selection of tenderer, value of bidding guarantee is stipulated in bidding dossiers, dossier of requirements under a defined amount of between 1% and 3% of the bidding package price basing on the scale and nature of each particular tender package;

b) For selection of investor, value of bidding guarantee is stipulated in bidding dossiers, dossier of requirements under a defined amount of between 0.5% and 1.5% of total invested capital basing on the scale and nature of each particular project.

4. The validity duration of bidding guarantee is stipulated in bidding dossier, dossier of requirements equal to the term of validity of the bid dossiers, dossier of proposals plus thirty (30) days.

5. Case of extending the period of validity of bid dossiers, dossiers of proposals after time of bid closure, and the bid solicitor must require tenderers, investors to extend the period of validity of their bidding guarantees for an equivalent term. In such a case, tenderers, investors must extend the period of validity of their tender guarantees and not be permitted to change the contents of their submitted bid dossiers, dossiers of proposals. If any tenderer or investor refuses to extend the period of validity, his bid dossier, dossier of proposals will be no valid longer and be rejected, the party calling for tenders shall return or release the biding guarantee to the tenderer, investor within 20 days, since the bid solicitor receives a written refusal for extension.

6. If a partnership participates in bid, every member in partnership may perform separate bidding guarantee or make agreement in which one member will be responsible for implementation of its bidding guarantee or for bidding guarantee of other members in partnership. Total value of bidding guarantee is not lower than the value required in bidding dossiers, dossier of requirements. When having member in partnership violating provision in Clause 8 of this Article, bidding guarantee of all members in partnership will not be returned.

7. The bid solicitor shall return or release bidding guarantee to tenderers or investors who are not selected under the duration specified in bidding dossier, dossier of requirements but not exceeding 20 days, after the day of approving result of selection of tenderer, investor. For the selected tenderer, investor, his bidding guarantee will be returned or released after he provides a contract performance guarantee as prescribed in Article 66 and Article 72 of this Law.

8. A Bidding guarantee shall not be refunded in the following cases:

a) Tenderer or investor withdraws bid dossier, dossier of proposals after time of bid closure when the bid dossier, dossier of proposals still remains valid.

b) Tenderer or investor violates law on bidding which leads to be cancelled bid as prescribed at Clause 4 Article 17 of this Law;

c) Tenderer or investor fails to provide a contract performance guarantee as prescribed at Article 66 and Article 72 of this Law;

d) The tenderer fails or refuses to negotiate and finalize the contract, within a period of twenty (20) days from the date of receipt of notification of winning bid from the bid solicitor or has negotiated and finalized the contract but refuses to sign the contract except for force majeure cases;

dd) The investor fails or refuses to negotiate and finalize the contract, within a period of thirty (30) days from the date of receipt of notification of winning bid from the bid solicitor or has negotiated and finalized the contract but refuses to sign the contract except for force majeure cases.

Article 12. Time-limits applicable during selection of tenderers, investors

1. Time-limits applicable during selection of tenderers:

a) The maximum time for approval of plan on tenderer selection shall be 05 working days after receiving report on appraisal;

b) Dossiers of invitation for expression of interest, dossiers of invitation for pre-qualification, bidding dossiers, dossier of requirements shall be issued after 03 working days from the first day of publishing notice of invitation for submission of dossiers of expression of interest, notice of pre-qualification invitation, notice of bid invitation, notice of quotation invitation, sending of letters inviting submission of bidding before time of bid closure;

c) Duration for preparing dossiers of expression of interest shall be at least 10 days for domestic bidding and 20 days for international bidding, from the first day when dossiers of invitation for expression of interest are issued until day of bid closure time; Tenderers must submit dossiers of expression of interest before time of bid closure;

d) Duration for preparing dossiers of pre-qualification participation shall be at least 10 days for domestic bidding and 20 days for international bidding, from the first day when dossiers of invitation for pre-qualification are issued until day of bid closure time. Tenderers must submit dossiers of pre-qualification participation before time of bid closure;

d) Duration for preparing dossiers of proposals shall be at least 05 working days, from the first day when dossiers of requirements are issued until day of bid closure time. Tenderers must submit dossiers of proposals before time of bid closure;

e) Duration for preparing the bid dossiers shall be at least 20 days for domestic bidding and 40 days for international bidding, from the first day when bidding dossiers are issued until day of bid closure time. Tenderers must submit the bid dossiers before time of bid closure;

g) The maximum time allowed for assessment of dossiers of expression of interest, dossiers of pre-qualification participation shall be 20 days, for dossier of proposals shall be 30 days, for bid dossiers shall be 45 days in the case of domestic bidding, as from the date of bid closure time until the date the bid solicitor submits to investment owner for approving the results of tenderer selection. The maximum time allowed for assessment of dossiers of expression of interest, dossiers of pre-qualification participation shall be 30 days, for dossier of proposals shall be 40 days, for bid dossiers shall be 60 days in the case of international bidding, as from the date of bid closure time until the date the bid solicitor submits to investment owner for approving the results of tenderer selection. In necessary case, time for assessment of dossiers of bid dossier, dossier of proposals may be prolonged but not exceed 20 days and must ensure implementation schedule of project;

h) The maximum time for appraisal shall be 20 days for each content of appraisal: plan on selection of tenderer, dossiers of invitation for expression of interest, dossiers of invitation for pre-qualification, bidding dossiers, dossier of requirements, result of selection of tenderer after receiving full the submitted documents;

i) The maximum time for approving dossiers of invitation for expression of interest, dossiers of invitation for pre-qualification, dossier of requirements, bidding dossiers shall be 10 days, as from the date of receiving the written request for approving dossiers of invitation for expression of interest, dossiers of invitation for pre-qualification, dossier of requirements, bidding dossiers of the bid solicitor or the appraisal report in case of having appraisal requirement;

k) The maximum time for approving or giving the handling opinion on result of tenderer selection shall be 10 days, as from the date of receiving the written request for approving the result of tenderer selection of the bid solicitor or the appraisal report in case of having appraisal requirement;

l) The maximum period of validity of a bid dossier, dossier of proposals shall be 180 days as from the bid closure; in case of bidding package with bid scale, complex nature, bidding package under two-phase bidding method, the maximum period of validity of a bid dossier shall be 210 days, as from the bid closure. In necessary cases a tenderer may request extension of the period of validity of his bid dossier, dossier of proposals, and must ensure progress of project;

m) Time for sending a document to modify a bidding dossier to tenderers already received bidding dossier shall be 10 days minimally for domestic bidding and 15 days minimally for international bidding before day of bid closure; for modification of dossier of invitation for expression of interest, dossier of invitation for pre-qualification, dossier of requirements, it shall be 03 working days minimally before day of bid closure. If time for sending a document to modify dossiers fail to meet provision at this point, the bid solicitor shall perform extension of bid closure time respectively in order to ensure provision on time for sending a document to modify a dossier of invitation for expression of interest, dossier of pre-qualification invitation, bidding dossier or dossier of requirements;

n) Time-limit for sending notice of tenderer selection result to tenderers bidding via post, facsimile shall be 05 working days, as from the date of approving the result of tenderer selection.

2. The Government shall detail time-limits applicable during selection of tenderer for bidding packages with small scale, bidding packages with participation of community; time-limits applicable during selection of investor; time-limits applicable during selection of tenderer or investor via network.

Article 13. Expenses for bidding

1. Expenses of the process of selection of contractor include:

a) Expenses for preparation of dossiers of expression of interest, dossiers of pre-qualification participation, bid dossiers, dossiers of proposals and participation in bidding shall be borne by tenderers.

b) Expenses of process of tender selection shall be included in total invested capital or estimated budget of procurement;

c) Dossiers of invitation for expression of interest, dossiers of invitation for pre-qualification shall be issued to tenderers free;

d) Bidding dossiers, dossiers of requirements shall be sold or issued free to tenderers;

2. Expenses of the process of selection of investor include:

a) Expenses for preparation of dossiers of pre-qualification participation, bid dossiers, dossiers of proposals and participation in bidding shall be borne by investors;

b) Expenses of process of investor selection shall be financed by state, other lawful capital sources and included in total invested capital;

c) The investor who is selected to perform project must pay expenses of process of investor selection;

d) Dossiers of invitation for pre-qualification, bidding dossiers, dossiers of requirements shall be sold to investors.

3. Expenses of the process of bidding via network include:

a) Expenses for participation in the national bidding network system, expenses for publishing information of bidding and other expenses;

b) Expenses for participation in a bid, organization of bid as prescribed at Clause 1 and Clause 2 of this Article.

4. The Government shall detail this Article.

Article 14. Preferential treatment in selection of tenderers:

1. Tenderers shall be enjoyed preferential treatment when participating in domestic or international bidding to supply goods of which costs for domestic production occupy 25% or more.

2. Entities entitled to preferential treatment in international bidding to supply the advisory services, non-advisory services, construction and installment include:

a) Domestic tenderers bidding with independent or partnership status;

b) Foreign tenderers in partnership with domestic tenderers in which the domestic tenderers take over from 25% or more of work value of bidding package.

3. Entities entitled to preferential treatment in domestic bidding to supply the advisory services, non-advisory services, construction and installment include:

a) Tenderers employing female laborers of 25 % or more of laborer quantity;

b) Tenderers employing laborers being invalids, disable people of 25 % or more of laborer quantity;

c) Tenderers being small-size enterprises.

4. Preferential treatment is calculated to apply during assessing the bid dossiers, dossiers of proposals in order to compare, rank the bid dossiers, dossiers of proposals according to one of the following methods:

a) Plus more points into the assessment point of tenderers belonging to entities entitled to preferential treatment;

b) Plus more amount into the bidding price or assessment price of tenderers not belonging to entities entitled to preferential treatment;

5. Entities and content or preferential treatment in selection of tenderer specified in this Article shall not apply in case where International treaties in which the Socialist Republic of Vietnam is a contracting party or international agreements between Vietnam and donors otherwise provides for preferential treatment in selection of tenderer.

6. The Government shall detail this Article.

Article 15. International bidding

1. International bidding shall be held to select tenderer only when it meets one of the following conditions:

a) The donor of bidding package requests for holding international bidding;

b) Tender packages for procurement of goods where the goods are not yet able to be manufactured domestically or able to be manufactured but fail to meet technical, quality or price requirements. Cases of common goods, already been imported and offered for sale in Vietnam, do not organize international bidding;

c) Bidding packages of providing advisory service, non-advisory service, construction and installation, mixture provision which domestic tenderers are not able to satisfy requirements of bidding package performance.

2. Investment projects in form of public-private partnership (PPP), investment projects with land use, except for cases limited investment as prescribed by law on investment.

3. The Government shall detail this Article.

Article 16. Conditions for individuals to participate in bidding activities

1. Individuals participating in bidding activities must possess certificate of training on bidding and have professional expertise, capability, experiences, language appropriate to the requirements of the bidding package, project, except for individuals belonging to tenderers, investors.

2. Individuals who directly participate in making dossiers of invitation for expression of interest, dossiers of invitation for pre-qualification, bidding dossiers, dossiers of requirements; assessment of dossiers of expression of interest, dossiers of pre-qualification participation, bid dossiers, dossier of proposals of professional bidding organizations, enterprises, units operating in advisory for bidding, professional management board of projects must have certificate of practicing on bidding operation.

Article 17. Cases of bidding cancellation

1. All bid dossiers, dossiers of proposals failed to satisfy the requirements of the bid invitation documents, dossier of requirements.

2. Alteration of the objectives or scope of the investment stated in the bid invitation documents, dossier of requirements.

3. The bid invitation documents, dossier of requirements failed to comply with legislation on bidding or other relevant legislation that lead to the failure of the selected tenderer or investor to meet requirements to perform bidding package, project.

4. There is evidence showing the handing, taking, brokerage of bribes, conclusion with each other in bidding, fraud, taking advantage of positions, powers aiming to interfere illegally in bidding activities that lead to the falsified result of selecting the tenderer, investor.

Article 18. Responsibilities upon bidding cancellation

Organizations and individuals infringing law on bidding that lead to bidding cancellation as prescribed in Clause 3 and Clause 4 Article 17 of this Law must compensate expenses for related parties and be handled as prescribed by law.

Article 19. Training and capacity building on bidding

1. Facilities are entitled to hold activities of training and capacity building on bidding for individuals specified in Article 16 of this Law upon satisfying the following conditions:

a) Be established and operate as prescribed by law;

b) Have material facilities, documents for teaching which meet standards as prescribed by state management agencies on bidding activities;

c) Have contingent of lecturers on bidding possessing certificate of practicing in bidding operation;

d) Have name in list of facilities of bidding training on the national bidding network system.

2. Facilities of bidding training have the following responsibilities:

a) Ensure quality of training and capacity building; supply information on their training facilities to the state management agencies on bidding operation;

b) Perform activities of training and capacity building on the basis of framework programs on training in bidding and grant the certificates of bidding for learners in accordance with regulations;

c) Store all dossiers of courses of training and capacity building in bidding which are held by them in accordance with regulations;

d) Conduct annual reports and reports at the request of state management agencies of bidding operation about situation of training and capacity building in bidding.

3. The Government shall detail this Article.

Chapter 2.

FORMS AND METHODS OF SELECTION OF CONTRACTORS, INVESTORS AND PROFESSIONAL BIDDING ORGANIZATIONS

SECTION 1. FORMS OF SELECTION OF CONTRACTORS, INVESTORS

Article 20. Open bidding

1. Open bidding is form of selection of contractors, investors in which the number of participating tenders, investors shall be unrestricted.

2. Open bidding is applied to bidding packages, projects under Scope of regulation of this Law, except for cases specified in Articles 21, 22, 23, 24, 25, 26 and 27 of this Law.

Article 21. Limited bidding

Limited bidding shall apply in case where a bidding package has highly technical requirements or technical peculiarities for which only a limited number of tenderers are capable of satisfying the requirements of the bidding package.

Article 22. Direct appointment of contractor

1. Direct appointment of contractor for contractor shall apply in the following cases:

a) Bidding packages need be performed to immediately overcome or timely handle consequences caused by force majeure event; bidding packages need be performed to ensure national secret; bidding packages need be carried out immediately to not cause damages directly to life, health and assets of population communities on geographical areas or to not severely affect to adjacent projects; bidding package of purchasing drugs, chemicals, supplies, and health equipment in order to carry out the work of prevention and fighting of epidemics in urgent cases;

b) Urgent bidding packages need be carried out aiming to protect national sovereignty, national borders, and islands;

c) Bidding packages of provision of advisory services, non-advisory services, procurement of goods which must buy from contractors performed previously due to ensuring the compatibility of technologies, copyright which not able to buy from other contractors; bidding packages with nature of research, test; purchase of intellectual property copyright;

d) Bidding packages provide advisory service for making feasible study reports, construction designs which have been appointed for authors of designs of works architectures who won in selection or are selected when authors have full conditions and capability in accordance with regulations; bidding packages of construction of statues, reliefs, monumental paintings, art works in association with author right from the creation stage to stage of construction of the works;

dd) Bidding packages of relocation of technical infrastructure works managed directly by a specialized unit in order to serve the work of ground clearance; bidding packages of detection and disposal of bombs, mines, explosives in order to prepare construction of works;

e) Bidding packages of providing public products and services, bidding packages with bidding package price in the limitation allowed to apply direct appointment of contractor as prescribed by Government in line with economic-social conditions in each period.

2. Implementation of direct appointment of contractor for bidding packages defined at points b, c, d, dd and e Clause 1 this Article must satisfy all the following conditions:

a) Having an approved decision on investment, except for advisory bidding packages for project preparation;

b) Having an approved plan on selection of tenderers;

c) Having been allocated capital at the request of the implementation schedule of bidding package;

d) Having an approved estimate in accordance with regulation, except for case of EP, EC, EPC bidding packages, turnkey bidding packages;

dd) Having time for implementation of direct appointment of contractor as from the day of approving dossier of requirements to day of signing contract not exceeding 45 days, case of bidding packages with big scale, complex content not exceeding 90 days;

e) Contractor who is suggested for direct appointment of contractor must have name in the database on contractors of state management agencies on bidding operation.

3. For bidding packages under cases of direct appointment of contractor specified at Clause 1 this Article and satisfy conditions for direct appointment of contractor specified at Clause 2 this Article but still able to apply other forms of selection of contractor defined at Articles 20, 21, 23 and 24 of this Law, encouraging to apply other forms of selection of contractor.

4. Direct appointment of contractor for investor shall apply in the following cases:

a) There is only one investor registering implementation;

b) There is only one investor able to perform due to concerning intellectual property, commercial secret, technologies or capital arrangement;

c) Investor proposing project satisfy requirements of implementation project with feasibility and highest efficiency in accordance with regulations of Government.

Article 23. Competitive quotation

1. Competitive quotation shall apply to bidding packages with value in limitation as prescribed by Government and belonging to one of the following cases:

a) Bidding package of non-advisory services which are commonly used and simple;

b) Bidding package of procurement of goods which are commonly used goods, readily available on the market, have standardized technical features and are similar to each other in quality;

c) Bidding package of construction and installation of simple works which have had the approved construction drawing design.

2. Competitive quotation is performed when satisfying all following conditions:

a) Having an approved plan on selection of tenderers;

b) Having an approved estimate in accordance with regulation;

c) Having been allocated capital at the request of the implementation schedule of bidding package.

Article 24. Direct procurement

1. Direct procurement shall apply to bidding packages of procurement of similar goods of a same project, estimated budget of procurement or of other project, estimate of procurement.

2. Direct procurement shall be performed when satisfying all following conditions:

a) The contractor has won bidding through open or limited bidding and has signed performance contract of previous bidding package;

b) Bidding package has similar content, nature, and scale less than 130% of bidding package signed contract previously;

c) The unit price of the items of a bidding package for which the form of direct procurement is applied shall not exceed the unit price of the corresponding items of the previous similar bidding package for which a contract was signed;

d) Time-limit from signing contract of previous bidding package to day of approving result of direct procurement does not exceed 12 months.

3. If contractor performed the previous contract fails to be able to continue implementation of bidding package of direct procurement, form of direct procurement shall be applied to other contractor if such contractor satisfies requirements on capability, experiences, techniques and price according to the previous bidding dossier and result of selection of contractor.

Article 25. Self-implementation

Self-implementation shall apply to bidding packages of projects and estimates of procurement in case organizations directly managing and using such bidding packages have technical and financial capability, and experiences satisfying requirements of bidding packages.

Article 26. Selection of tenderers, investors in special cases

In the case of a bidding package, project with particular requirements for which the forms of selection of contractor, investor stipulated in articles 20, 21, 22, 23, 24 and 25 of this Law cannot be applied, the competent person shall prepare a plan for selection of contractor, investor and submit it to the Prime Minister for consideration and decision.

Article 27. Community’s participation in performance

Population communities, organizations, teams, groups of workers in localities where have bidding packages may be assigned to perform entire or part of such bidding package in the following cases:

1. Bidding packages under the national objective programs, support programs of hunger elimination, poverty reduction for districts, communes in mountainous, deep-lying and remote areas, islands, areas with special difficulty-stricken economic-social conditions;

2. Bidding packages with small scale which population communities, organizations, teams, groups of workers may undertake.

SECTION 2. METHODS OF SELECTION OF CONTRACTORS, INVESTORS

Article 28. The one-phase method with one dossier bag

1. The one-phase method with one dossier bag shall apply in the following cases:

a) Open bidding, limited bidding for bidding package of non-advisory service provision; bidding package of procurement of goods, construction and installation, mixture content with small scale;

b) Competitive quotation for bidding package of non-advisory service provision, goods procurement, construction and installation;

c) Direct appointment of contractor for bidding package of the advisory service provision, non-advisory service provision, goods procurement, construction and installment, mixture content;

d) Direct procurement for bidding package of goods procurement;

dd) Direct appointment of contractor for selection of investor.

2. Tenderers, investors may submit bid dossiers, dossiers of proposals including technical proposals and financial proposals at the request of bidding dossiers, dossiers of requirements.

3. The bid opening shall be conducted once for all bid dossiers, dossier of proposals.

Article 29. The one-phase method with two dossier bags

1. The one-phase method with two dossier bags shall apply in the following cases:

a) Open bidding, limited bidding for bidding package of provision of advisory services, non-advisory services, goods procurement, construction and installation, mixture content;

b) Open bidding for selection of investor.

2. Tenderer or investor may submit concurrently both dossier of technical proposals and dossier of financial proposals in a separate form at the request of bidding dossier.

3. Bid opening shall be conducted twice. Dossiers of technical proposals shall be opened as soon as bid closure. Tenderers or investors satisfying the technical requirements shall be opened dossiers of financial proposals for assessment.

Article 30. The two-phase method with one dossier bag

1. The two-phase method with one dossier bag shall apply in cases of open bidding, limited bidding for bidding package of procurement of goods, construction and installation, mixture content with big scale and complex nature;

2. In the first phase, tenderers may submit technical proposals and financial plans at the request of bidding dossiers but not yet had bidding price. On the basis of exchange with each contractor participating in this phase, dossiers shall be determined for bid invitation in second phase.

3. In second phase, tenderers participated in first phase shall be invited for submission of bid dossiers. Bid dossiers include technical proposals and financial proposals at the request of bidding dossier for second phase, in which included bidding price and bidding guarantee.

Article 31. The two-phase method with two dossier bags

1. The two-phase method with two dossier bags shall apply in cases of open bidding, limited bidding for bidding package of goods procurement, construction and installation, mixture content with new, complex and particular techniques and technologies;

2. In first phase, tenderers shall submit concurrently both dossier of technical proposals and dossier of financial proposals in a separate form at the request of bidding dossier. Dossiers of technical proposals shall be opened as soon as bid closure. On the basis of assessment on technical proposals of tenderers in this phase, to determine contents corrected in techniques in comparison with bidding dossier and list of tenders satisfying requirements and being invited for bidding in second phase. Dossier of financial proposals shall be opened in second phase.

3. In second phase, tenderers satisfying requirements in first phase shall be invited for submission of bid dossiers. Bid dossiers include technical proposals and financial proposals at the request of bidding dossier for second phase corresponding to content corrected in techniques. In this phase, dossiers of financial proposals submitted in first phase shall be opened concurrently with bid dossiers in second phase for assessment.

Section 3. PROFESSIONAL BIDDING ORGANIZATION

Article 32. Professional bidding organization

1. Professional bidding organization includes bidding agents, non-business units which are established with function of performing professional tender.

2. The establishment and operation of bidding agents shall comply with legislations on enterprises.

3. The Government shall detail this Article.

Chapter 3.

THE PLAN AND PROCESS OF TENDERER SELECTION

Article 33. Principles of making the plan on tenderer selection

1. The plan on tenderer selection shall be formulated for the entire project, estimate of procurement. In case where there are inadequate conditions to formulate a plan on tenderer selection for the entire project, estimate of procurement, it shall be permitted to formulate a plan on tenderer selection for one or a number of bidding packages to be implemented in advance. 2. A plan on tenderer selection must set out clearly the number of tender packages and the contents of each tender package.

3. Division of the project, estimate of procurement into different tender packages shall be based on the technical nature and the sequence for its implementation, ensuring unity within the project, estimate of procurement and an appropriate size of bidding package.

Article 34. Formulation of plan on tenderer selection

1. Bases to formulate plan on tenderer selection for project:

a) Decision on approving project or certificate of investment and relevant documents. For bidding packages which must be implemented prior to a decision on approving project, based on decision of head of investment owner or head of unit assigned task of preparation of project, in case the investment owner has not yet been identified;

b) Capital sources for project;

c) International treaties, international agreements for projects used official development assistance capital, concessional loans;

d) Relevant legal documents.

2. Bases to formulate plan on tenderer selection for regular procurement:

a) Standards, norms of equipment, means of working of agencies, organizations, units and cadres, civil servants, public employees; equipment, means of working existing which need be replaced, purchased for supplementation, procured new ones to serve for work;

b) The approved decision on procurement;

c) The approved capital sources and estimate for regular procurement;

d) Scheme on procurement, equipping for entire branch which has been approved by the Prime Minister (if any);

dd) Result of price evaluation of agencies and organizations with function providing service of price or quotation evaluation (if any).

3. Plan on contractor selection may be formulated after decision on approving project, estimate of procurement or concurrently with process of formulating project, estimate of procurement or before decision on approving project for bidding package which need be performed before decision on approving project.

Article 35. Content of plan on tenderer selection for each bidding package

1. Name of bidding package:

Name of bidding package presents nature, content and work scope of bidding package, in line with contents stated in project, estimate of procurement. If bidding package includes many separate parts, plan on tenderer selection should state the name describing basic content of each part.

2. Price of bidding package:

a) Price of bidding package is determined on the basis of total invested capital or estimated budget (if any) for project; estimate of procurement for regular procurement. Price of bidding package is included exactly and fully entire expenses for implementation of bidding package, including reserve expenses, charges, fees and taxes. Price of bidding package may be updated in time limit of 28 days before day of bid opening if necessary;

b) For bidding packages of advisory service provision for formulation of pre-feasible study report, feasible study report, price of bidding package shall be defined on the basis of information on average price according to statistics of projects which have been made in a defined duration; the estimated total invested capital based on investment ratio norms of projects; preliminary total invested capital;

c) If bidding package include many separate parts, to clearly indicate the estimated price for each part in price of bidding package.

3. Capital sources:

For each bidding package, it must clearly state capital sources or methods of capital arrangement, time of capital allocation to pay for tenderer; case of using official development assistance capital, concessional loans, it must clearly state name of donors and structure of capital sources, including the financed capital, domestic reciprocal capital.

4. Forms and methods of selection of contractors:

For each bidding packages, it must clearly state forms and metho