Circular No. 01/2012/TT-BXD guiding procedures for issuing bidding permits and managing foreign contractors operating in construction in Vietnam

CIRCULAR

Guidelines on the procedures for issuing tender permits and managing foreign contractors operating in construction in Vietnam

nhà đầu tư nước ngoài hoạt động xây dựng tại Việt Nam

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Pursuant to Decree No. 17/2008/NĐ-CP dated February 4, 2008 of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Construction;

Pursuant to Decision No. 87/2004/QĐ-TTg dated May 19, 2004 of the Government promulgating the Regulations on the management of activities of foreign contractors in the construction sector in Vietnam;

Pursuant to Decision No. 03/2012/QĐ-TTg dated January 16, 2012 of the Government amending and supplementing certain articles of the Regulations on the management of activities of foreign contractors in the construction sector in Vietnam issued together with Decision No. 87/2004/QĐ-TTg dated May 19, 2004 of the Government;

The Ministry of Construction provides guidelines on the procedures for issuing tender permits and managing foreign contractors operating in construction in Vietnam as follows:

Article 1. Tender permit application dossier for organizations

Contractors submit directly or through postal service one original set and one copy set (photocopy) at the issuing authority, each set including:

1. A tender permit application form according to Appendix No. 1 of this Circular.

2. A certified true copy of the document regarding the bidding result or the decision to select the contractor or the lawful contract for awarding the tender.

3. A certified true copy of the Business Registration Certificate (or the certificate of business registration of the organization) and the professional practice certificate (if any) issued by the country where the foreign contractor holds citizenship.

4. A report on relevant construction experience related to the work being tendered according to the model in Appendix No. 2 of this Circular and annual audit reports of the last three years (in cases where the contractor undertakes a tender package that is not subject to mandatory application under Vietnamese laws on bidding).

5. Contract or agreement of consortium with Vietnamese contractors in cases where a consortium agreement has been signed when bidding or tendering. Contract with subcontractors in cases where a list of Vietnamese subcontractors has been determined when bidding or tendering.

In cases where subcontractors have not been determined during bidding or selection, there must be a contract or principle agreement with Vietnamese subcontractors accompanied by a consent letter from the project owner.

6. A lawful power of attorney for persons who are not the legal representatives of the contractor according to the model in Appendix No. 3 of this Circular.

The tender permit application form must be in Vietnamese. Foreign business registration certificates or licenses must be legalized by diplomatic channels, except in cases where international treaties to which Vietnam and the relevant countries are parties provide for exemptions from legalization. Documents and materials specified in Clauses 2, 3, 5, and 6 of this Article, if in a foreign language, must be translated into Vietnamese and the translations must be notarized and certified in accordance with Vietnamese law.

For tender permit application dossiers arising in the same year, it is not necessary for the dossiers to include the documents mentioned in Clause 3 and Clause 4 of this Article.

Article 2. Tender permit application dossier for individuals

Contractors submit directly or through postal service one original set and one copy set (photocopy) at the issuing authority, each set including:

1. A tender permit application form according to Appendix No. 4 of this Circular.

2. A certified true copy of the document regarding the bidding result or the decision to select the contractor or the lawful contract for awarding the tender.

3. A certified true copy of the license for operation or professional practice certificate issued by the country where the contractor holds citizenship and a certified true copy of the personal passport.

4. Personal professional history (self-declaration) accompanied by a certified true copy of contracts for related works performed in the last three years.

The tender permit application form must be in Vietnamese. Copies of foreign-issued licenses for operation or professional practice certificates must be legalized by diplomatic channels, except in cases where international treaties to which Vietnam and the relevant countries are parties provide for exemptions from legalization. Documents and materials in a foreign language must be translated into Vietnamese and the translations must be notarized and certified in accordance with Vietnamese law.

For tender permit application dossiers arising in the same year, it is not necessary for the dossiers to include the documents mentioned in Clause 3 and Clause 4 of this Article.

Article 3. Tender Permit Issuance Procedure

1. Within five days from the date of receipt of the application file, the issuing authority shall be responsible for examining the file. In case the file does not comply with the prescribed requirements, the tenderer must be notified and guided once in writing to supplement and complete the file in accordance with the regulations.

2. Within fifteen working days from the date of receipt of a valid application file, the issuing authority shall examine and issue the tender permit to the tenderer. If the file does not meet the conditions prescribed for issuance of the tender permit, the issuing authority must notify the tenderer in writing.

3. The tender permit issued to a tenderer that is an organization shall be in the form set out in Appendix No. 5 and for a tenderer that is an individual in the form set out in Appendix No. 6 of this Circular.

4. The tenderer is responsible for paying the fee when receiving the tender permit and the amended tender permit in accordance with Circular No. 33/2012/TT-BTC dated March 1, 2012 of the Ministry of Finance on the collection, payment, and management of the use of fees in the construction sector.

Article 4. Amendment of Tender Permit

1. After being granted the tender permit, if there are changes in the name, address of the tenderer, changes in partners in a consortium or subcontractor, or other contents already recorded in the granted tender permit, the tenderer must submit directly or through postal service one set of documents to the issuing authority to request amendment of the tender permit.

The amended tender permit shall be in the form set out in Appendix No. 7 of this Circular.

2. The application for amendment includes:

a) Request for amendment of the tender permit in the form set out in Appendix No. 8 of this Circular.

b) Documents proving the contents requested for amendment. These documents must be translated into Vietnamese and certified in accordance with Vietnamese laws.

3. The time for amending the tender permit shall be completed within fifteen working days from the date of receipt of a valid application file.

Article 5. Authority to Issue, Amend, and Revoke Tender Permits

1. The Ministry of Construction shall issue tender permits to foreign organizations tendering packages of projects belonging to Group A and other packages of projects in two provinces or more; amend and revoke tender permits issued by the Ministry; require provincial construction departments to revoke tender permits if the tenderer violates regulations or if the tender permits issued by the provincial departments do not comply with regulations.

2. Provincial construction departments shall issue tender permits to foreign organizations tendering packages of projects belonging to Groups B and C in their localities and to foreign individuals undertaking investment consulting works in localities where the project is located or where the project's investor has registered its headquarters. They shall also amend and revoke tender permits issued by them.

Article 6. Reporting Requirements

1. Annually, on June 20th and December 20th, the tenderer shall be responsible for submitting reports to the issuing authority and the provincial construction department where the project is located, regarding the implementation of contracts in the form set out in Appendix No. 9 of this Circular.

2. Annually, on June 25th and December 25th, the provincial construction department shall report to the Ministry of Construction on the issuance, amendment, revocation of tender permits and the activities of foreign tenderers in their localities in the form set out in Appendix No. 10 of this Circular.

Article 7. Provisions on the Project Management Office

1. After obtaining the bidding permit, the contractor shall establish a Project Management Office (by leasing office space or setting up the Project Management Office at the project location); register the address, phone number, fax number, and email of the Project Management Office with relevant management agencies.

For contracts to prepare construction master plans, investment projects, construction surveys, and building design works, the contractor may establish the Project Management Office at the registered headquarters of the project owner.

For contracts to carry out construction works passing through multiple provinces, the contractor may establish the Project Management Office in one locality where the construction passes through for managing the implementation of the work.

2. After completing the registration of the contents of the Project Management Office, the contractor shall notify in writing the Department of Construction where the Project Management Office is established, the Ministry of Construction, and other relevant agencies specified in Article 7 of Decision No. 87/2004/QĐ-TTg and Decision No. 03/2012/QĐ-TTg according to Model 11 of this Circular. In case of changes to the information of the Project Management Office, the contractor must inform these agencies.

Article 8. Cases Not Entitled to Bidding Permit

1. The contractor shall not be considered for issuance of a bidding permit when:

a) It does not use Vietnamese subcontractors as stated in the bidding documents previously approved.

b) It fails to submit reports for three consecutive periods as stipulated in this Circular for works undertaken under previously issued bidding permits.

c) It violates relevant laws, such as labor usage regulations, workplace safety, tax payment, and construction quality, and has been penalized for these violations two times or more.

2. The contractor's ongoing work will be suspended when:

a) It does not use Vietnamese subcontractors as stipulated in the contracts included in the bidding permit application documents and can only continue once it uses Vietnamese subcontractors as agreed in the contract.

b) It fails to comply with relevant laws.

Article 9. Cases Subject to Revocation of Bidding Permit

The contractor's bidding permit will be revoked when:

1. It fails to rectify violations after receiving written requests from relevant state management agencies two times or more.

2. It has been administratively penalized for work under the bidding permit from the third time onwards.

Article 10. Implementation Organization

1. This Circular replaces Circular No. 05/2004/TT-BXD dated September 15, 2004, of the Ministry of Construction and takes effect from June 26, 2012.

2. Relevant agencies, organizations, and individuals are responsible for implementing this Circular. Any issues encountered during implementation should be reported to the Ministry of Construction for resolution./.