Circular No. 05/2015/TT-BKHĐT detailing the preparation of tender documents for procurement of goods

CIRCULAR

Detailed regulations on preparing tender documents for procurement of goods

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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 issues this Circular detailing the preparation of tender documents for procurement of goods.

Article 1. Scope of Regulation

1. This Circular details the preparation of tender documents for procurement of goods for packages subject to the provisions of Article 1 of Law on Bidding No. 43/2013/QH13, except for drug procurement packages as stipulated at point g, Clause 1, Article 1 of Law on Bidding No. 43/2013/QH13. Specifically as follows:

a) Model tender document for procurement of goods No. 01 (Model No. 01) applies to open bidding and limited bidding within the country with the one-stage one-envelope method of selecting contractors.

b) Model tender document for procurement of goods No. 02 (Model No. 02) applies to open bidding and limited bidding within the country with the two-stage two-envelope method of selecting contractors.

2. For procurement packages of goods organized for open bidding within the country (NCB) under projects using Official Development Assistance (ODA) funds from the Asian Development Bank (ADB) and the World Bank (WB), the NCB tender document issued by the ADB and WB in Vietnamese shall be applied.

Article 2. Applicability

This Circular applies to organizations and individuals participating in or related to the contractor selection activities for procurement packages of goods subject to the provisions of Article 1 of this Circular.

Article 3. Application of Tender Document Models

1. The tender document models issued together with this Circular are established based on the provisions of Vietnamese bidding laws, while also referring to bidding regulations of the Asian Development Bank (ADB) and the World Bank (WB) to create more favorable conditions for parties involved in contractor selection activities, further enhancing competition, fairness, transparency, and economic efficiency in bidding.

2. For procurement packages of goods using ODA funds, if approved by the donors, they may apply Model No. 01 or Model No. 02 issued together with this Circular or may modify and supplement certain contents according to bidding regulations in international treaties and agreements between Vietnam and the donor.

3. In cases of international bidding, based on the scale and nature of the package, the organization or individual responsible for preparing the tender document must adjust the bidding price requirements, language, currency, preferences, time, and other relevant 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 procurement packages of goods, based on the nature of the package, if the project owner considers it necessary to apply the one-stage two-envelope method of selecting contractors, 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 document.

When preparing, reviewing, and approving tender documents for procurement packages of goods, organizations and individuals must:

a) Apply the tender document models for procurement of goods issued together with this Circular and base their specific requirements on the scale and nature of each package to ensure principles of competition, fairness, transparency, and economic efficiency;

b) Base their technical requirements (characteristics, technical parameters...) on the actual needs for use of the goods to ensure functionality, suitability with actual needs, and business capabilities as well as market conditions;

c) Not impose conditions that limit the participation of contractors or give advantages to one or some contractors causing unfair competition, such as specifying brand names, origins of goods, including naming countries, groups of countries, territories causing discrimination; in cases where detailed descriptions of goods cannot be provided according to technical characteristics, design technology, technological standards, brand names, catalogs of specific products can be mentioned for reference and illustration of technical requirements of goods but must be accompanied by the phrase "or equivalent" after the brand name, catalog, and clearly define the equivalent technical characteristics, usage features, technological standards, and other contents (if any) without specifying equivalence regarding origin.

d) Not modify the provisions stated in the tender document model concerning 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 stated in the tender document model, the organization or individual responsible for preparing, reviewing, and approving the tender document must ensure that these modifications are more appropriate, scientific, and rigorous than those specified in the tender document model and not contrary to the bidding laws. In the proposal for approval of the tender document, the modified contents compared to the provisions in the tender document model and the reasons for modification must be clearly stated for the project owner'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 tender package, including taxes, fees, and charges (if applicable). Taxes, fees, and charges shall be applied at the tax rate, fee level, and charge level specified as of 28 days prior to the tender closing date.

2. For domestic tenders, when evaluating prices, consideration must be given to taxes, fees, and charges (if applicable).

3. For international tenders, when evaluating prices, taxes, fees, and charges (if applicable) shall not be considered or included for comparison and ranking of contractors. In cases where the first-ranked contractor is selected, the taxes, fees, and charges (if applicable) will be specifically determined during the contract negotiation phase. The winning bid price and the contract price must include taxes, fees, and charges (if applicable).

Article 5. Contracts

1. The main type of contract applied to procurement tender packages for goods is a lump-sum contract. For goods with special characteristics, complexity, large scale, and a contract implementation period exceeding 18 months, a unit-price-adjustment contract may be applied. When applying a unit-price-adjustment contract, the tender invitation document must clearly specify the price adjustment formula; during contract execution, if there are changes to the unit price requiring contract price adjustments, the contractor must prove the factors leading to such unit price changes.

2. The tender invitation document must include a Contract Template and detail the terms and clauses of the contract for the contractor to base their bid on and for the parties to base their negotiation, completion, and signing of the contract.

3. The contract signed between the project owner, the tender inviter, and the contractor must comply with the Contract Model, contract conditions stipulated in the tender invitation document, and any amendments and supplements proposed by the contractor and approved by the project owner during the contract negotiation and completion process, while ensuring compliance with tender law regulations and other relevant laws.

Article 6. Manufacturer's Sales Permit

1. For common, widely available goods on the market that have been standardized and are covered by manufacturer warranties, it is not required for the contractor to submit the manufacturer's sales permit, partnership certification, or equivalent documentation.

2. For specialized, complex goods that require the manufacturer's responsibility for post-sales services such as warranty, maintenance, repair, provision of spare parts, replacement materials, and related services, the tender invitation document may require the bidding contractor to provide the manufacturer's sales permit, partnership certification, or equivalent documentation. If the bidding contractor does not attach the manufacturer's sales permit, partnership certification, or equivalent documentation in their tender submission, they must clarify and supplement this information during the tender evaluation process. The tender inviter must accept supplementary documentation provided by the contractor for evaluation purposes. The contractor can only be awarded the contract after submitting the manufacturer's sales permit, partnership certification, or equivalent documentation to the project owner.

3. In cases where the content of the manufacturer's sales permit, partnership certification, or equivalent documentation does not fully meet the requirements set out in the tender invitation document, the tender inviter must request the contractor to clarify these aspects to ensure sufficient information for tender evaluation without immediately disqualifying the contractor's tender submission.

4. In cases where manufacturers, distributors, or agents intentionally fail to provide the contractor with the manufacturer's sales permit, partnership certification, or equivalent documentation without legitimate reasons, thereby violating commercial and competition laws and creating advantages or monopolies for other contractors, the contractor must promptly report this to the Ministry of Planning and Investment and the Ministry of Industry and Trade for timely resolution.

Article 7. Implementation Organization

1. This Circular takes effect from August 1, 2015. This Circular replaces Circular No. 05/2010/TT-BKH dated February 10, 2010, issued by the Ministry of Planning and Investment detailing the preparation of tender invitation documents for procurement tender packages for goods.

2. Ministries, ministerial-level agencies, government agencies, central-level agencies, People's Committees at all levels, and related organizations and individuals are responsible for implementing this Circular. During implementation, if any issues arise, the ministries, ministerial-level agencies, government agencies, central-level agencies, People's Committees at all levels, and related organizations and individuals should send their comments to the Ministry of Planning and Investment for timely guidance./.