Circular No. 03/2015/TT-BKHĐT detailing the preparation of tender documents for construction works

CIRCULAR

Detailed regulations on preparing tender documents for construction works

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Pursuant to the Law on Bidding No. 43/2013/QH13 dated November 26, 2013;

Pursuant to Decree No. 63/2014/NĐ-CP dated June 26, 2014 of the Government detailing certain provisions of the Law on Procurement regarding the selection of contractors;

Pursuant to Decree No. 116/2008/ND-CP dated November 14, 2008 of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Planning and Investment;

The Minister of Planning and Investment shall issue a Circular detailing the procedures for preparing tender documents for construction works.

Article 1. Scope of Regulation

1. This Circular provides detailed regulations on preparing tender documents for construction works for packages subject to the provisions set forth in Article 1 of the Law on Bidding No. 43/2013/QH13 as follows:

a) Model tender document for construction works No. 01 (Model No. 01) applies to open bidding and limited domestic bidding packages with a one-stage one-envelope selection method for contractors.

b) Model tender document for construction works No. 02 (Model No. 02) applies to open bidding and limited domestic bidding packages with a two-stage two-envelope selection method for contractors.

2. For domestic open bidding construction works packages (NCB) under projects using Official Development Assistance (ODA) funds from the Asian Development Bank (ADB) and the World Bank (WB), the Vietnamese version of the NCB tender document issued by the ADB and WB shall be applied.

Article 2. Applicability

Article 3. Application of Tender Document Models

Article 3. Application of Models of Tender Documents for Construction Works

1. The Models of tender documents for construction works issued together with this Circular are established based on the provisions of Vietnamese bidding laws, while also referring to the bidding regulations of the Asian Development Bank (ADB) and the World Bank (WB) to facilitate participation in contractor selection activities, enhance competition, fairness, transparency, and economic efficiency in bidding.

2. For construction works packages using ODA funds, if approved by the sponsors, Model No. 01 or Model No. 02 issued together with this Circular may be applied, or certain contents may be modified or supplemented according to the bidding regulations stipulated in international treaties and agreements between Vietnam and the sponsor.

3. In cases of international bidding, based on the scale and nature of the package, the entity or individual responsible for preparing the tender documents must adjust the language, currency, preferences, time frame in bidding, and other related contents to comply with the provisions of Law on Bidding No. 43/2013/QH13 and Decree No. 63/2014/NĐ-CP.

4. For small-scale construction works packages, based on the nature of the package, if the investor considers it necessary to apply a two-stage two-envelope selection method, they must submit for approval by the competent authority in the contractor selection plan and use Model No. 02 issued together with this Circular to prepare the tender documents.

5. When preparing, reviewing, and approving tender documents for construction works packages, entities or individuals must apply the tender document models issued together with this Circular and base their requirements on the scale and nature of each specific package to ensure principles of competition, fairness, transparency, and economic efficiency; they must not impose conditions that limit the participation of contractors or create advantages for one or several contractors causing unequal competition. They are not allowed to modify the provisions in the tender document model regarding Contractor Instructions and General Conditions of Contract; for other contents, modifications can be made to suit the scale and nature of the package. If there are modifications to the provisions in the tender document model, the entities or individuals responsible for preparing, reviewing, and approving the tender documents must ensure that such modifications are more appropriate, scientific, and rigorous than those specified in the tender document model and do not contravene the bidding laws. In the proposal for approval of the tender documents, the contents of the modifications compared to the provisions in the tender document model and the reasons for the modifications must be clearly stated for the investor's consideration and decision.

6. For procurement packages of non-consulting services, based on the scale and nature of the package, the provisions in the above tender document models can be modified for application as appropriate.

Article 4. Application of tax, fee, and charge provisions

1. The bid price of the contractor must include all necessary costs to implement the package, including taxes, fees, and charges (if applicable). Taxes, fees, and charges are levied at the tax rate, fee level, and charge level prescribed 28 days prior to the closing date of the bid.

2. When participating in the bidding, the contractor is responsible for researching, calculating, and quoting all types of taxes, fees, and charges (if applicable) in the bid price. If the bid document does not mention taxes, fees, and charges, the contractor's bid price will be considered to have included all types of taxes, fees, and charges; in this case, if the contractor wins the bid and is awarded the contract, they must bear all responsibilities and fulfill all obligations regarding taxes, fees, and charges (if applicable) to the State. If the bid document states that the bid price does not include taxes, fees, and charges (if applicable), the bid document of the contractor will be disqualified.

Article 5. Construction costs, common project costs, and contingency costs

1. The bid price must include construction costs, common project costs, and contingency costs.

2. Contingency costs include: cost contingency for price escalation, cost contingency for additional quantities, and cost contingency for provisional sums (if any).

The determination of contingency costs shall be carried out in accordance with the provisions of specialized laws on construction cost management and the specific characteristics of the tender package. The investor shall base their decision to use contingency costs on the scale, nature, time, location of construction of the tender package, and other related factors, but must ensure compliance with the provisions of specialized laws on construction cost management.

3. For lump sum contracts, the contractor must calculate and allocate contingency costs into the bid price; the portion of contingency costs allocated in the bid price by the contractor shall not be separated for review and evaluation during the financial and commercial bid evaluation process.

4. For fixed unit price contracts and adjustable unit price contracts, when evaluating the bid regarding financial and commercial aspects, contingency costs will not be reviewed or evaluated for comparison and ranking of contractors. Contingency costs will be reconfirmed during the contract negotiation process. The winning bid price and contract price must include contingency costs; this portion of contingency costs shall be managed by the investor and only used to pay the contractor according to the provisions in the contract upon occurrence of contingencies.

The tender invitation document must clearly specify the content and principles for using contingency costs as a basis for contractors to bid, sign, and implement contracts, including specifying the specific monetary value or percentage (%) of each contingency cost item based on the construction cost of the tender package for the contractor to bid. Contractors must bid on contingency costs in accordance with the requirements of the tender invitation document.

Article 6. Contracts

1. The tender invitation document must include a Contract Template and detailed provisions of contract clauses for contractors to base their bids on and for all parties to base negotiations, completion, and signing of the contract on.

2. The contract signed between the investor, the tenderer, and the contractor must comply with the Contract Template, contract conditions specified in the tender invitation document, and any amendments and supplements proposed by the contractor and approved by the investor during the negotiation and completion of the contract, but must ensure compliance with the bidding laws and other relevant laws.

Article 7. Implementation Organization

1. This Circular takes effect from July 1, 2015. This Circular replaces Circular No. 01/2010/TT-BKH dated January 6, 2010 of the Ministry of Planning and Investment detailing the preparation of tender invitation documents for construction works, and Circular No. 02/2010/TT-BKH dated January 19, 2010 of the Ministry of Planning and Investment detailing the preparation of tender invitation documents for small-scale construction works packages.

2. Ministries, ministerial-level agencies, government-affiliated agencies, central-level agencies, People's Committees at all levels, and organizations and individuals concerned are responsible for implementing this Circular. In the course of implementation, if there are difficulties, the ministries, ministerial-level agencies, government-affiliated agencies, central-level agencies, People's Committees at all levels, and organizations and individuals concerned are requested to send their opinions to the Ministry of Planning and Investment for timely guidance./.