Circular No. 05/2020/TT-BKHĐT amends and supplements certain provisions of Circular No. 04/2017/TT-BKHĐT dated November 15, 2017 of the Ministry of Planning and Investment detailing the selection of contractors through the National Public Procurement System.

CIRCULAR

Amending and supplementing some articles of Circular No. 04/2017/TT-BKHĐT

dated November 15, 2017 of the Ministry of Planning and Investment detailing the selection of contractors through

the National Public Procurement System Network

Pursuant to the Law onPublic Procurement dated November 26, 2013;

Pursuant to the Law on Electronic Transactions dated November 29, 2005;

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

Pursuant to Decree No. 86/2017/NĐ-CP dated July 25, 2017 of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Planning and Investment;

Pursuant to Circular No. 04/2017/TT-BKHĐT dated November 15, 2017 of the Ministry of Planning and Investment detailing the selection of contractors through the National Public Procurement System Network;

Article 1. Amending and supplementing certain provisions of Circular No. 02/2024/TT-BKHĐT

prescribing the model tender documents for selecting investors to implement PPP investment projects and business investment projects; providing, publishing information on Amending and supplementing some articles of Circular No. 04/2017/TT-BKHĐT dated November 15, 2017 of the Ministry of Planning and Investment detailing the selection of contractors through the National Public Procurement System Network.

Article 1. Amending and supplementing certain contents of Circular No. 04/2017/TT-BKHĐT dated November 15, 2017 of the Ministry of Planning and Investment detailing the selection of contractors through the National Public Procurement System Network as follows:

1. Supplement Clause 8 of Article 4 as follows:

"Form No. 08: Form of tender invitation document applicable to service contracts other than consultancy services conducted through open public procurement via the network using a two-envelope system." Form No. 08 is attached as an appendix to this Circular.

2. Clause 8 of Article 15 shall be amended and supplemented as follows:

"For process 01 prescribed in point a Clause 6 of Article 15 of this Circular, the evaluation team shall use Form No. 01A issued together with Circular No. 05/2018/TT-BKHĐT dated December 10, 2018 of the Ministry of Planning and Investment to prepare the report on the evaluation of electronic tender submission. For process 02 prescribed in point b Clause 6 of Article 15 of this Circular, the evaluation team shall use Form No. 01B issued together with Circular No. 05/2018/TT-BKHĐT dated December 10, 2018 of the Ministry of Planning and Investment to prepare the report on the evaluation of electronic tender submission."

3. Supplement Clause 9 of Article 15 as follows:

"For construction works contracts, the contractor may attach the certificate of construction business capability or not attach such certificate in the electronic tender submission, even if the electronic tender invitation document requires the contractor to have such certificate. The absence of the certificate of construction business capability from the electronic tender submission shall not be grounds for disqualification of the contractor. The contractor shall still be considered, evaluated, and eligible for award. In case the contractor wins the bid, the contractor must present the certificate of construction business capability before signing the contract."

4. Article 16 shall be amended and supplemented as follows:

"For process 01 prescribed in point a Clause 6 of Article 15 of this Circular, based on the results of the evaluation of electronic tender submissions by the evaluation team, the tenderer shall submit to the project owner for approval the ranking list of contractors according to Appendix No. 2A issued together with Circular No. 05/2018/TT-BKHĐT dated December 10, 2018 of the Ministry of Planning and Investment."

5. Clause 2 of Article 29 shall be amended and supplemented as follows:

"a) For service contracts other than consultancy services, procurement of goods, and construction works, the evaluation team shall use Part I of Form No. 02 issued together with Circular No. 05/2018/TT-BKHĐT dated December 10, 2018 of the Ministry of Planning and Investment to prepare the report on the evaluation of electronic prequalification submissions.

b) For consultancy service contracts, the evaluation team shall use Part I of Form No. 03 issued together with Circular No. 05/2018/TT-BKHĐT dated December 10, 2018 of the Ministry of Planning and Investment to prepare the report on the evaluation of electronic prequalification submissions.

c) Based on the report on the evaluation of electronic prequalification submissions by the evaluation team, the tenderer shall submit to the project owner for review and approval the list of contractors meeting technical requirements according to the forms specified in Appendices No. 1A and 1B issued together with Circular No. 05/2018/TT-BKHĐT dated December 10, 2018 of the Ministry of Planning and Investment."

6. Clause 2 of Article 32 shall be amended and supplemented as follows:

"a) For service contracts other than consultancy services, procurement of goods, and construction works, the evaluation team shall use Part II of Form No. 02 issued together with Circular No. 05/2018/TT-BKHĐT dated December 10, 2018 of the Ministry of Planning and Investment to prepare the report on the evaluation of electronic technical qualification submissions.

b) For consultancy service contracts, the evaluation team shall use Part II of Form No. 03 issued together with Circular No. 05/2018/TT-BKHĐT dated December 10, 2018 of the Ministry of Planning and Investment to prepare the report on the evaluation of electronic technical qualification submissions.

c) The project owner shall approve the ranking list of contractors according to the forms specified in Appendix No. 2B issued together with Circular No. 05/2018/TT-BKHĐT dated December 10, 2018 of the Ministry of Planning and Investment."

7. Repeal Section 2.4 Chapter I of the Forms of tender invitation documents for construction works through a single-stage one-envelope system, Forms of tender invitation documents for procurement of goods through a single-stage one-envelope system, Forms of tender invitation documents for service contracts other than consultancy services through a single-stage one-envelope system, Forms of tender invitation documents for construction works through a single-stage two-envelope system, Forms of tender invitation documents for procurement of goods through a single-stage two-envelope system, and Forms of tender invitation documents for consultancy service contracts issued together with Circular No. 04/2017/TT-BKHĐT.

8. Section 5.5 Chapter I of the Forms of tender invitation documents for construction works through a single-stage one-envelope system, Forms of tender invitation documents for procurement of goods through a single-stage one-envelope system, Forms of tender invitation documents for service contracts other than consultancy services through a single-stage one-envelope system, Forms of tender invitation documents for construction works through a single-stage two-envelope system, Forms of tender invitation documents for procurement of goods through a single-stage two-envelope system, and Forms of tender invitation documents for consultancy service contracts issued together with Circular No. 04/2017/TT-BKHĐT shall be amended and supplemented as follows:

"5.5. Registered on the System and not in a suspended status in accordance with Clause 3 of Article 21 of Circular No. 11/2019/TT-BKHĐT dated December 16, 2019 of the Ministry of Planning and Investment due to non-payment of fees for maintaining the name and capacity dossier of the contractor in accordance with point b Clause 2 of Article 24 of Circular No. 11/2019/TT-BKHĐT dated December 16, 2019 of the Ministry of Planning and Investment.

For joint venture contractors, all members of the joint venture must meet all the above requirements."

9. Section 8 Chapter I of the Forms of tender invitation documents for construction works through a single-stage one-envelope system, Forms of tender invitation documents for procurement of goods through a single-stage one-envelope system, and Forms of tender invitation documents for service contracts other than consultancy services through a single-stage one-envelope system issued together with Circular No. 04/2017/TT-BKHĐT shall be amended and supplemented as follows:

"The E-HSMT shall be issued free of charge on the System immediately after the Inviting Party successfully uploads the E-TBMT on the System. The Bidder shall bear all costs related to preparing the E-HSDT. The cost for submitting the E-HSDT in open tendering is 330,000 VND (inclusive of tax), and in competitive bidding is 220,000 VND (inclusive of tax). In all cases, the Inviting Party shall not be responsible for any costs related to the Bidder's participation in the tender."

10. Section 20.1 Chapter I of the Bidding Documents Model for Construction Procurement through One Stage One Envelope, the Bidding Documents Model for Goods Procurement through One Stage One Envelope, and the Bidding Documents Model for Non-Consulting Services Procurement through One Stage One Envelope issued together with Circular No. 04/2017/TT-BKHĐT shall be amended and supplemented as follows:

"The Inviting Party shall conduct the opening of bids on the System immediately after the bid opening time. If there are fewer than three Bidders submitting the E-HSDT, the Inviting Party shall proceed with the bid opening without having to handle the situation according to Clause 4, Article 117 of Decree No. 63/2014/NĐ-CP. In case no Bidder submits the E-HSDT, the Inviting Party shall report to the Project Owner to consider extending the bid closing time or reorganizing the online procurement process."

11. Section 20.1 Chapter I of the Bidding Documents Model for Construction Procurement through One Stage Two Envelopes, the Bidding Documents Model for Goods Procurement through One Stage Two Envelopes, and Section 19.1 Chapter I of the Bidding Documents Model for Consulting Services Procurement through One Stage issued together with Circular No. 04/2017/TT-BKHĐT shall be amended and supplemented as follows:

"The Inviting Party shall conduct the opening of the E-HSĐXKT on the System immediately after the bid opening time. If there are fewer than three Bidders submitting the E-HSDT, the Inviting Party shall proceed with the bid opening without having to handle the situation according to Clause 4, Article 117 of Decree No. 63/2014/NĐ-CP. In case no Bidder submits the E-HSDT, the Inviting Party shall report to the Project Owner to consider extending the bid closing time or reorganizing the online procurement process."

12. Section 4.3 Chapter III of the Bidding Documents Model for Goods Procurement through One Stage Two Envelopes issued together with Circular No. 04/2017/TT-BKHĐT shall be amended and supplemented as follows:

From "where the weight of technical points (K) is from 10% to 15%, and the weight of price points (G) is from 85% to 90%" to "where the weight of technical points (K) is from 10% to 30%, and the weight of price points (G) is from 70% to 90%".

13. Point (i) and (ii) of Section 3 of Model No. 03 Chapter III of the Bidding Documents Model for Construction Procurement through One Stage One Envelope, the Bidding Documents Model for Goods Procurement through One Stage One Envelope, the Bidding Documents Model for Non-Consulting Services Procurement through One Stage One Envelope, the Bidding Documents Model for Construction Procurement through One Stage Two Envelopes, and the Bidding Documents Model for Goods Procurement through One Stage Two Envelopes issued together with Circular No. 04/2017/TT-BKHĐT shall be amended and supplemented as follows:

"The number of contracts equals N or differs from N, with at least one contract having a minimum value of V and the total value of all contracts ≥ X. Where X = N x V."

14. Point b Note No. 7 of Model No. 3 (web form on the System) Chapter IV of the Bidding Documents Model for Construction Procurement through One Stage One Envelope, the Bidding Documents Model for Construction Procurement through One Stage Two Envelopes, point b Note No. 6 of Model No. 3 (web form on the System) Chapter IV of the Bidding Documents Model for Non-Consulting Services Procurement through One Stage One Envelope, point b Note No. 8 of Model No. 3 (web form on the System) Chapter IV of the Bidding Documents Model for Goods Procurement through One Stage One Envelope, and the Bidding Documents Model for Goods Procurement through One Stage Two Envelopes issued together with Circular No. 04/2017/TT-BKHĐT shall be amended and supplemented as follows:

From "In the event that the Bidder includes a scanned copy of a credit commitment letter from a legally operating financial institution in the E-HSDT, which commits to providing financing to the Bidder for the package under consideration throughout the contract period with a minimum amount equal to the required value at evaluation criterion 2.3 of Model No. 03 Chapter IV, then the Bidder will be considered to meet the financial resource requirement for the tender package and does not need to declare information as prescribed in Model No. 14 and Model No. 15" to "In the event that the Bidder includes a scanned copy of a credit commitment letter from a legally operating financial institution in the E-HSDT, which commits to providing financing to the Bidder for the package under consideration throughout the contract period with a minimum amount equal to the required value at evaluation criterion 2.3 of Model No. 03 Chapter IV, then the Bidder must declare information as prescribed in Model No. 14 but does not need to declare information as prescribed in Model No. 15 of this Chapter. In the event of discrepancies between the declared information and the accompanying credit commitment letter, the attached credit commitment letter in the E-HSDT will serve as the basis for evaluation."

15. Note No. 8 of Model No. 03 Chapter IV of the Bidding Documents Model for Non-Consulting Services Procurement through One Stage One Envelope issued together with Circular No. 04/2017/TT-BKHĐT shall be amended and supplemented as follows:

"(8) Substantially completed means completing at least 80% of the work volume of the contract. For non-consulting service packages with cyclical nature over multiple years leading to extended contract duration, the determination of substantial completion shall be based on each cycle (each year) and calculated according to the work volume within a cycle (a year) of the contract without considering the total value of the contract over the years."

16. Note No. 2 of Model No. 05 Chapter IV of the Bidding Documents Model for Construction Procurement through One Stage One Envelope, the Bidding Documents Model for Goods Procurement through One Stage One Envelope, the Bidding Documents Model for Non-Consulting Services Procurement through One Stage One Envelope, the Bidding Documents Model for Construction Procurement through One Stage Two Envelopes, and the Bidding Documents Model for Goods Procurement through One Stage Two Envelopes, and Note No. 2 of Model No. 01 Chapter IV of the Bidding Documents Model for Consulting Services Procurement through One Stage issued together with Circular No. 04/2017/TT-BKHĐT shall be supplemented as follows:

"The scope of authority includes one or more of the above tasks. In cases where the legal representative of the contractor delegates authority to the branch manager, subsidiary company manager, factory manager..., participation in bidding on the System must be carried out using the contractor's digital certificate and not that of the branch, subsidiary, factory... If the contractor uses the digital certificate of the branch or dependent units, the contractor will be deemed non-compliant with the eligibility requirements as stipulated in Section 5 Chapter I."

17. Note 1 of Form No. 14 (webform on the System) in Chapter IV of the Bidding Documents for Construction Procurement through One Stage One Envelope, Bidding Documents for Goods Procurement through One Stage One Envelope, Bidding Documents for Non-Consulting Services Procurement through One Stage One Envelope, Bidding Documents for Construction Procurement through One Stage Two Envelopes, Bidding Documents for Goods Procurement through One Stage Two Envelopes issued together with Circular No. 04/2017/TT-BKHĐT shall be amended as follows:

From "In the E-HSDT, if the contractor submits a credit commitment letter from a legally operating financial institution in Vietnam, which commits to providing financing to the contractor for the package under consideration with a minimum amount equal to the value required at criterion 2.3 of Form No. 03 in Chapter IV throughout the contract period, then the contractor is considered to meet the financial resource requirement for the tender package and does not need to declare information according to this Form and Form No. 15" to "In the E-HSDT, if the contractor submits a credit commitment letter from a legally operating financial institution in Vietnam, the contractor must declare information according to the provisions of this Form. In case there are discrepancies between the declared information and the attached credit commitment letter, the attached credit commitment letter in the E-HSDT will serve as the basis for evaluation."

Article 2. Effective Date

1. This Circular takes effect from September 1, 2020.

2. For tender packages that have uploaded the E-HSMT onto the National Public Procurement System before the date this Circular takes effect, the selection of contractors shall be conducted according to the E-HSMT already issued.

3. From the date this Circular takes effect, for tender packages that have been approved E-HSMT according to Circular No. 04/2017/TT-BKHĐT dated November 15, 2017 of the Ministry of Planning and Investment but have not yet uploaded the E-HSMT onto the National Public Procurement System, the E-HSMT must be revised to comply with the provisions of this Circular.

4. From the date this Circular takes effect, for non-consulting tender packages in one stage two envelopes within the mandatory online procurement threshold as stipulated in Article 29 of Circular No. 11/2019/TT-BKHĐT dated December 16, 2019 of the Ministry of Planning and Investment, if the procurement plan has been approved without applying online procurement and the bidding documents have not yet been issued, the procurement plan must be adjusted to ensure compliance with the online procurement schedule.

5. Based on actual circumstances, the Department of Tender Management, Ministry of Planning and Investment may amend the forms in webform format on the System to facilitate the participation of parties in online procurement activities, reduce administrative procedures, enhance competition, fairness, transparency, and economic efficiency in procurement, while ensuring the effectiveness of state management in procurement.

6. Ministries, ministerial-level agencies, central-level agencies under the Government, other central-level agencies, People's Committees at all levels, and related organizations and individuals are responsible for implementing this Circular. During implementation, if there are difficulties, the relevant ministries, ministerial-level agencies, central-level agencies under the Government, People's Committees at all levels, and related organizations and individuals are requested to send their opinions to the Ministry of Planning and Investment for timely guidance./.