Decision No. 06/2005/QD-BGTVT On the issuance of "Certain regulations on tendering for construction works of investment projects funded by domestic sources under the management of the Ministry of Transport"

DECISION OF THE MINISTER OF TRANSPORT

Regarding the issuance of "Certain Provisions on Tendering for Construction Works in Investment Projects Funded by Domestic Capital under the Management of the Ministry of Transport"

constructed using domestic funds managed by the Ministry of Transport"

THE MINISTER OF TRANSPORTATION

 

Pursuant to the Construction Law adopted by the National Assembly on November 26, 2003;

Pursuant to Decree No. 34/2003/ND-CP dated April 4, 2003 of the Government on the functions, tasks, powers, and organizational structure of the Ministry of Transport;

Pursuant to the Investment and Construction Management Regulations issued pursuant to Decree No. 52/1999/NĐ-CP dated July 8, 1999, amended and supplemented by Decrees No. 12/2000/NĐ-CP dated May 5, 2000 and No. 07/2003/NĐ-CP dated January 30, 2003 of the Government;

Pursuant to the Tendering Regulations issued together with Decree No. 88/1999/NĐ-CP dated September 1, 1999, and amended and supplemented by Decrees No. 14/2000/NĐ-CP dated May 5, 2000 and No. 66/2003/NĐ-CP dated June 12, 2003 of the Government;

Pursuant to Circular No. 04/2000/TT-BKH dated May 26, 2000 and Circular No. 01/2004/TT-BKH dated February 2, 2004 of the Ministry of Planning and Investment guiding the implementation of the Tendering Regulations;

Considering the actual situation regarding tendering activities in investment projects and construction works in the transport sector;

To improve the quality of tendering to ensure the effectiveness of investment projects;

At the proposal of the Director of the Department of Inspection and Quality Control;

 

DECISION:

Article 1. Issued herewith "Certain Provisions on Tendering for Construction Works in Investment Projects Funded by Domestic Capital under the Management of the Ministry of Transport".

Article 2. The Standard Measurement Quality Control Department shall be responsible for organizing and guiding the implementation of the Regulations adopted herein.

This Decision replaces Decisions No. 1626/1999/QĐ-BGTVT dated July 6, 1999 and No. 316/QĐ-BGTVT dated January 30, 2003 of the Ministry of Transport.

Any previous regulations of the transport sector that conflict with this Decision shall be abolished.

Article 3. The Heads of the Ministry's Office, Heads of Departments under the Ministry, Directors of Departments under the Ministry, and Heads of units within the transport sector are responsible for implementing this Decision.

 

CERTAIN PROVISIONS ON TENDERING FOR CONSTRUCTION WORKS

 

IN INVESTMENT PROJECTS FUNDED BY DOMESTIC CAPITAL

UNDER THE MANAGEMENT OF THE MINISTRY OF TRANSPORT

(issued together with Decision No. 06/2005/QĐ-BGTVT dated January 4, 2005)

of the Ministry of Transport)

Article 1. Application Provisions

In the process of preparing, reviewing, and approving procedures related to tendering and organizing tenders for investors or their representatives (collectively referred to as investors) using domestic capital under the management of the Ministry of Transport and relevant agencies, in addition to ensuring compliance with current tendering regulations, circulars guiding tendering issued by the Ministry of Planning and Investment, and laws and regulations on tendering and construction investment, they must also comply with the provisions set forth herein.

Article 2. Conditions for Implementing Tenders

1. The conditions for implementing tenders are stipulated in Article 9 of the Tendering Regulations issued pursuant to Decree No. 88/1999/NĐ-CP and amended and supplemented by Clause 7 of Article 1 of Decree No. 66/2003/NĐ-CP and Circular No. 01/2004/TT-BKH dated February 2, 2004 of the Ministry of Planning and Investment guiding the implementation of Decree No. 66/2003/NĐ-CP.

2. The organization of tender announcement (or sending tender invitation letters) can only be carried out after the tender documents have been approved and the capital plan or financial resources have been determined.

3. For the form of selecting contractors through limited tenders for packages of works in investment construction projects, it must comply with Article 100 of the Construction Law: "It is not allowed for two or more enterprises belonging to the same holding company, holding company with subsidiary companies, parent company and subsidiary, joint venture enterprises with one party contributing capital in the joint venture to participate in bidding in one package."

Article 3. On the preparation and approval of tender plans for projects

1. General provisions:

The tender plans for projects in Groups A and B and important national projects must comply with Article 8 of the Tendering Regulations issued together with Decree No. 88/1999/NĐ-CP and Part II of Circular No. 04/2000/TT-BKH dated May 26, 2000 of the Ministry of Planning and Investment guiding the implementation of the tendering regulations.

As for projects in Group C, the tender plan is prepared and approved simultaneously with the feasibility study report or investment report as prescribed in the Investment and Construction Management Regulations, but the content of the tender plan must comply with the Tendering Regulations and guidance from the Ministry of Planning and Investment.

2. The content of the tender plan approval must ensure sufficient legal bases and necessary information for review and examination in accordance with Circular No. 04/2000/TT-BKH dated May 26, 2000 of the Ministry of Planning and Investment, specifically as follows:

2.1. The document for approving the tender plan for the project includes the following contents:

a) Report on the legal basis for preparing and approving the tender plan for the project:

- Documents deciding on the investment project, allocating capital plans, or allowing the organization of tendering for the project, and other related documents to the project;

- Summary of the scale of the project accompanied by the approved feasibility study report.

b) Report on the progress of the project, which must include the following contents:

- Completed and ongoing work:

+ During the investment preparation phase, including costs for preparing the investment construction project.

+ During the investment implementation preparation phase, including survey and design costs, costs for land acquisition and clearance, etc.

For each completed and ongoing work mentioned above, the permit document for execution, the name of the executing unit, value, and time of execution must be clearly stated.

- Non-tendered work: Project management costs, land clearance costs (excluding resettlement area construction and mine clearance costs), various fees, audit fees, contingency costs, etc.

- Work to be tendered:

Including remaining works of the project that need to be tendered: construction, supply and installation of equipment, mine clearance, resettlement area construction (if any), etc.

2.2. The content of the tender plan must comply with the current Tendering Regulations and circulars guiding the Ministry of Planning and Investment, and must provide detailed explanations:

a) Package division and basis for calculating the value of the package.

b) Package price and financial sources.

c) Form of contractor selection and tendering method:

- Form of contractor selection:

+ Primarily apply open tendering.

+ In cases where designated tendering or limited tendering is necessary, it must comply with the current Tendering Regulations.

- Regarding the bidding method to be carried out in accordance with the provisions of the Bidding Regulation and the circulars guiding the Ministry of Planning and Investment.

d) The time for organizing the bidding.

đ) Type of contract: Depending on the nature and duration of the tender package, propose a suitable type of contract.

e) The contract implementation period must be proposed to ensure compatibility with the project schedule approved, the feasibility of implementing each tender package, and the completion time of the project's tender packages should not differ significantly.

2.3. Documents accompanying the submission for approval (Petition):

When submitting the bidding plan for approval, the project sponsor must submit the following legal documents:

a) Investment decision, accompanied by a feasibility study report (preliminary design, basic design, total investment structure), design and budget approved (if any).

b) Documents and materials regarding the ability to provide capital and the actual situation of the project.

c) Other related documents if any:

Decisions already approved concerning technical design, budget, and total budget (if any), decisions on awarding contracts, direct awarding of contracts for project consulting, design consulting...

3. Tender Package Division:

The division of projects into tender packages must be based on technology, technical characteristics, or the sequence of project implementation, with reasonable scale, ensuring that after completing each tender package, it can be effectively utilized without generating additional costs due to the sequence of implementing tender packages. Avoid dividing tender packages too small or too large.

For construction projects of transportation roads (excluding medium and large bridges, traffic tunnels, and other special cases), the division of construction tender packages must ensure the value of each tender package within the following range:

a) Group C Projects: For projects with a total investment exceeding 15 billion VND, the construction portion is divided into 1 to 2 tender packages; for projects under 15 billion VND, the construction portion is divided into 1 tender package.

b) Group B Projects: Construction tender packages have values ranging from 30 to 50 billion VND depending on the scale and total investment value.

For projects in this group where the construction value is less than 30 billion VND, the entire construction portion is defined as 1 tender package.

c) Group A Projects: Construction tender packages have a minimum value of approximately 70 billion VND.

Encourage the division of construction tender packages with values greater than 100 billion VND.

In cases not covered by the above regulations, the project sponsor must submit a report explaining the reasons for the People with Approval Authority to consider and decide.

Article 4. Preparing the Tender Invitation Document

1. Basis for preparing, submitting, and approving the tender invitation document:

The basis for preparing the tender invitation document is implemented according to the provisions of Section II Chapter I Part III of Circular No. 04/2000/TT-BKH dated May 26, 2000, issued by the Ministry of Planning and Investment.

2. Contents of the Tender Invitation Document:

2.1. General Provisions:

a) The tender invitation document must include all parts as prescribed by the Bidding Regulation and the circulars guiding the Ministry of Planning and Investment, and the contents of the tender invitation document must ensure consistency.

The project sponsor and their representative are responsible before the authority deciding on investment for the quality of the tender invitation document and its suitability with the approved design and budget.

If the number of bidders registering to participate in the bidding exceeds the number of design documents that the design consultant must submit according to regulations, the Inviting Party must make additional copies of the design documents to sell to all registered bidders. In this case, the Inviting Party must stamp confirmation on these copies and take responsibility for the accuracy of the copy compared to the original.

b) In addition to the contents as prescribed by the Bidding Regulation and the circulars guiding the Ministry of Planning and Investment, the tender invitation document must also include the following contents:

- The contractor's implementation plan for the tender package, which must clearly specify the completion deadlines for major works.

- For road improvement and upgrade tender packages, under conditions of construction while operating, the contractor must prepare a traffic organization and safety plan, and measures to ensure environmental hygiene.

The estimated tender invitation document must include a traffic assurance item with a value equal to the approved budget estimate. After winning the bid, the contractor signs a contract with the management agency responsible for road maintenance to carry out traffic assurance work along the section within the scope of the tender package. Contractors without traffic assurance measures will be disqualified and eliminated.

For construction projects in areas without a road maintenance management agency, the contractor may be allowed to implement after reporting and obtaining written approval from the project sponsor.

- The bidding documents of contractors must declare the management and operation system and internal quality control system, accompanied by brief resumes of positions assigned to manage to enable the Inviting Party to evaluate and assess the bid and serve as a basis for inspection during contract implementation.

2.2. Regulations on Evaluation Methods and Standards for Bidding Documents:

The evaluation methods and standards for bidding documents of tender packages must be established according to the provisions of the Bidding Regulation and the circulars guiding the Ministry of Planning and Investment.

In the evaluation method, it must clearly stipulate that contractors who have violated quality, progress, or been penalized in previous tender packages or lack financial capacity will be deducted points during evaluation or eliminated during the evaluation process.

For contractors who may be recommended as winners, the project sponsor needs to re-examine and assess the actual financial capability of the contractor to ensure the quality, progress, and contractual conditions of the tender package through reviewing the following contents:

- Checking the contracts that the contractor has and is currently implementing to ensure compliance with quality and progress as stipulated in the contract.

- For contractors who have won multiple tender packages or are implementing multiple tender packages at the same time as the evaluation period, they must explain the organizational measures for implementing the tender package (financial mobilization capabilities, equipment, and personnel to implement the tender package). Based on the contractor's explanation, the project sponsor evaluates and reports to the People with Approval Authority when submitting the bidding results.

2.3. Quantity Invited to Bid:

The quantity invited to bid for construction tender packages is the total quantity in the approved design documents.

The tender volumes include the basic quantities corresponding to the main structural items.

During the preparation of the tender documents, the contractor must base on technical standards, construction procedures, and technical-scientific solutions that are suitable with the project schedule to incorporate other necessary quantities.

2.4. Provisions for the preparation of construction drawings:

For construction procurement packages that require the preparation of construction drawings by the contractor, the tender documents shall specify the following contents:

a) The estimated value of consultancy services for survey and design of construction drawings shall be established, reviewed, and approved according to the State's regulations by a separate decision. This estimated value does not form part of the approved tender price for the construction procurement package.

b) After the award result is announced and the approved estimated value of survey and design of construction drawings is determined, the project owner shall be responsible for supplementing the approved estimated value of survey and design of construction drawings into the contract price. The successful bidder shall be responsible for using this cost to carry out the work (if they have business registration) or hiring specialized consultancy organizations to perform the survey and design of construction drawings as prescribed.

If the successful bidder signs a contract to hire consultancy services for survey and design of construction drawings at a higher price than the approved estimate, the successful bidder shall bear the additional costs themselves.

c) In cases where the bidder lacks the legal status, capacity, and experience to perform the survey and design of construction drawings, they must declare (one or more) consultancy organizations that meet the conditions stipulated by the regulations and which they plan to hire to perform these tasks. Bids from bidders who do not declare their legal status, capacity, and experience in survey and design of construction drawings will be eliminated during the evaluation process.

The successful bidder shall be responsible for implementing the survey and design of construction drawings (including in cases where they need to hire consultancy organizations to perform the work) immediately after receiving the notification of award and must comply with Directive No. 13/2003/CT-BGTVT dated May 29, 2003, issued by the Ministry of Transport to ensure the quality and progress of the project.

d) In addition to the above contents, the project owner shall be responsible for the following:

- Ensuring that the estimated value of construction drawing design accounts for the correct percentage specified relative to the total design costs calculated according to the State's norms (for transportation projects, the estimated value of construction drawing design should account for 30% of the total design costs);

- At the same time, they shall be responsible for checking the quality of the survey work to prepare construction drawings compared to the technical design survey stage. In case of discovering errors in the technical design survey work according to the approved outline, depending on the severity of the violation, the project owner shall report and propose measures to deal with the relevant collectives and individuals and recommend the Competent Authority to decide investment to handle according to Decision No. 4891/2002/QĐ-BGTVT dated December 27, 2002, issued by the Minister of Transport and current regulations.

Article 5. Tendering organization through open tendering:

1. Tender announcement

1.1. Implementing the provisions set forth in Circular No. 7304/BKH-QLĐT dated November 16, 2004, issued by the Ministry of Planning and Investment, starting from April 1, 2005, for construction procurement packages, supply of goods valued at 20 billion VND or more, and consultancy procurement packages valued at 5 billion VND or more, the open tender announcement must be published in the "Bidding Information Bulletin" of the Ministry of Planning and Investment.

Prior to April 1, 2005, the announcement of tenders for packages with such values must be published in at least one central newspaper circulated nationwide (such as People's Newspaper, Labor Newspaper...) or in the "Bidding Information Bulletin" or simultaneously on both types of media mentioned above.

1.2. For construction procurement packages, supply of goods, and consultancy procurement packages valued less than the threshold specified in point 1.1, the tender announcement must be published in at least one central newspaper circulated nationwide.

1.3. Regarding the number of issues for publishing the tender announcement in the "Bidding Information Bulletin" or the aforementioned mass media, it must ensure publication in at least three consecutive issues.

1.4. The issuance of tender documents shall be carried out at least ten days after the first announcement date (for small-scale packages, it shall be carried out at least five days after the first announcement).

2. Regarding detailed information at the registration and issuance location of tender documents:

To allow contractors to evaluate and consider before deciding to participate in the bidding, the Tenderer must provide detailed information at the registration and issuance locations of tender documents about the following contents:

2.1. Scope and scale of the tender package, information about natural conditions, topography, hydrogeology of the construction area (excluding information about the tender package price and estimated value).

2.2. Conditions and minimum requirements regarding the capacity and experience of contractors participating in the bidding.

2.3. Other necessary information prescribed in the Bidding Regulations, Circular No. 04/2000/TT-BKH dated May 26, 2000, and Circular No. 01/2004/TT-BKH dated February 2, 2004, issued by the Ministry of Planning and Investment, and related contents.

3. Format for registering to bid, selling tender documents, and submitting bid documents:

3.1. Registration to participate in the bidding, purchase-sale of tender documents shall be conducted directly at the tender document sales location during the tender document sales period.

a) The tender document sales period must last at least two working days.

b) Individuals coming to register and purchase tender documents must submit an introduction letter signed by the contractor's leadership, stamped by the contractor, along with a self-declaration form of the person sent to purchase the tender documents. It must clearly state the name, age, position, address, and contact phone number, and commit to being the representative of the enterprise with the introduction letter to purchase the tender documents, and must sign the declaration form. Those who come to purchase the documents without these contents will not be allowed to purchase the tender documents.

During the evaluation process, if false declarations are discovered, the bids will be disqualified.

c) The Tender Inviter shall not impose but must base on the bidding procurement package purchase registration wishes of the contractors to sell the bidding invitation packages. In cases where there are insufficient bidding invitation packages for sale due to a large number of participants, the Tender Inviter must print additional copies to meet the requirements of the contractors within the prescribed time frame. At that time, the Tender Inviter shall stamp the copies of the bidding invitation packages and be responsible for the accuracy of the copied documents.

3.2. Submission of tender documents:

Shall be carried out according to the schedule recorded in the tender invitation notice. If there is a change in the tender schedule, the Tender Inviter must promptly notify all participating contractors. The Tender Inviter shall not accept tender documents from contractors whose names are not listed in the procurement package purchase list.

A contractor who has registered to purchase the bidding invitation package may form a consortium with another contractor to participate in the tender for the registered package. In this case, the consortium must include at least one member whose name appears in the procurement package purchase list.

4. Other provisions:

4.1. The Project Owner shall be fully responsible for the entire process of organizing the tender in accordance with current regulations.

4.2. Contractors participating in the tender shall bear full responsibility for the information declared when purchasing the bidding invitation package and shall protect their right to participate in the tender in accordance with the current Tender Regulations and relevant regulations of the Ministry of Transport concerning tendering work.

4.3. In cases where issues arise beyond the authority or abnormal situations are discovered, the Project Owner shall report promptly to the Authority with jurisdiction or competent authority for examination and resolution.

Article 6. Minimum requirements for the capacity and experience of contractors participating in the tender:

Contractors participating in the tender must comply with the provisions set forth in Point 1, Clause 1, Part 1 of Circular No. 01/2004/TT-BKH dated February 2, 2004 issued by the Ministry of Planning and Investment.

During the tender organization process, if deemed necessary, the Tender Inviter may request contractors to prove the existence and normal operation of their business. In such cases, the contractor shall have the responsibility to explain and submit confirmation letters from the agency issuing the establishment decision, or from its superior agency, or from the agency issuing the business registration certificate regarding the normal operation of the contractor, accompanied by a confirmation letter from the tax authority for the Tender Inviter to review and evaluate. If the contractor fails to meet the Tender Inviter's requirements, they will be disqualified during the evaluation process.

Minimum requirements for the capacity and experience of contractors participating in construction tenders are as follows:

1. Experience period:

1.1. For packages under Group A projects, the contractor must have at least five years of relevant industry activity consistent with the package requirements.

1.2. For packages under Group B projects, the contractor must have at least three years of relevant industry activity consistent with the package requirements.

1.3. For Group C projects, the contractor must have at least two years of relevant industry activity consistent with the package requirements.

2. Industry experience during the period specified in Clause 1 of Article 6:

2.1. The contractor must have completed at least one similar technical contract with a value not less than the package value, or participated and completed between two to three similar technical contracts with a total value greater than the package value.

2.2. In cases where the contractor is a consortium of construction enterprises participating in the tender, in addition to the conditions stipulated for an independent contractor above, the lead unit of the consortium must have completed at least one similar technical construction contract with a value not lower than 60% of the package value.

The aforementioned similar contracts must be confirmed in writing by the project owner as having been completed satisfactorily in terms of quality, progress, and demonstrating a sense of responsibility during implementation. In cases where the project owner has been dissolved, a contract termination document or handover record must be submitted.

3. Financial capacity:

3.1. The total post-tax profit of the contractor over the last three consecutive years must not be less than zero.

For a consortium, all members must meet this requirement.

3.2. The average construction revenue of the contractor over the last three consecutive years must be greater than or equal to twice the package value.

For a consortium, the average revenue over the last three years is calculated based on the total revenue of the participating parties. Among them, the lead contractor of the consortium must have an average revenue over the last three years larger than 60% of the specified revenue and not lower than the percentage of the package value that the lead contractor undertakes according to the consortium agreement.

3.3. The contractor participating in the tender must demonstrate actual financial capacity as required by the Project Owner.

Article 7. Regarding the tender price for construction

1. When calculating the tender price, in addition to including all necessary costs constituting the product of the construction project as guided in the tender invitation package, the contractor must also consider the following costs according to the current state regulations:

1.1. Wage policies for workers;

1.2. Depreciation of construction equipment and machinery;

1.3. Various taxes, fees, and levies that must be paid.

2. The tender price of the contractor must include all the aforementioned costs and common expenses, internal quality management system costs...

3. For construction investment projects, it is strictly prohibited for contractors to bid below the construction cost of the project (as stipulated in Clause 7 of Article 10 of the Construction Law).

4. In the tender document of the contractor, along with the tender price table, there must be a detailed analysis of the unit prices constituting the tender unit prices of the construction quantities in the tender forecast invitation and must be clearly defined by the Tender Inviter in the tender document, including the following unit prices:

4.1. All tender unit prices belonging to the tendered product category with a value:

a) Greater than 2% of the total tender price, for packages exceeding 15 billion VND.

b) Greater than 5% of the total tender price, for packages less than 15 billion VND.

4.2. Bid unit prices for items that may arise during construction (for example, dredging, river or sea bottom excavation, weak soil foundation treatment...).

4.3. Some bid unit prices for main product structure items (to be specifically defined in the tender invitation documents based on technical characteristics and requirements of the tender package), including:

- Unit price for excavating foundation soil and rock,

- Unit price for backfilling soil, rock, and sand foundation,

- Unit price for foundation and surface road structure,

- Unit price for various types of foundation piles,

- Unit price for concrete and steel reinforcement for pier and bridge body structures,

- Unit price for producing and installing pipes with diameter D ≥ 1.0 m,

- Unit price for various types of bridge beams,

- Unit price for high-rise building foundation concrete and steel reinforcement,

- Unit price for rough construction of high-rise building body,

- Unit price for high-rise building frame column concrete and steel reinforcement,

- Unit price for floor beam and brace concrete and steel reinforcement in each floor of high-rise buildings,

- And bid unit prices for other major product structure items.

5. During the evaluation process, if the Tenderer discovers unreasonable bid unit prices in tender documents, or unreasonable ratios or structures of prices among parts and items in the bid price list compared to the approved budget estimate ratio and structure according to state regulations, the Tenderer shall request the bidder to provide explanations for review and handling.

The Tenderer must carefully examine to accurately determine unit prices for items requiring significant material costs, structures affecting the safety and durability of the project (beam structures, bridge piers and abutments, pile foundations, subgrade and surface roads, load-bearing frames...). If the bidder proposes low prices for such items, the Tenderer should require the bidder to clarify the reasonableness of these prices. If the bidder's written explanation is not sufficiently clear, these prices will be considered unreasonable during the evaluation process.

Article 8. Method of determining and handling unreasonable bid prices for construction installation

1. Bid prices for construction installation packages:

1.1. Lower than 15% of the approved construction installation budget estimate for bridge, road, port, and land leveling construction packages.

1.2. Lower than 10% of the approved construction installation budget estimate for architectural building construction or electrical and water supply system construction packages.

Bid prices lower than the above levels may contain unreasonable pricing issues, requiring careful examination of the bid unit prices leading to such low bid prices.

2. During the bid price evaluation process, the Tenderer has the right to request and the bidder has the responsibility to explain the bid unit prices, especially those that are unreasonable. If the bidder's written explanation lacks credible grounds, the Tenderer will assess the feasibility of the tender document based on the degree of unreasonableness according to current regulations.

Factors to check and evaluate the degree of unreasonableness of bid unit prices include:

2.1. Labor unit prices not corresponding to the job grade as stipulated by current state regulations.

2.2. Value-added tax (VAT) rates and other taxes not conforming to the current state tax rate table.

2.3. Inadequate cost components corresponding to the proposed technological solutions, construction organization methods, and construction schedule in the bidder's tender document, or insufficient costs for traffic safety measures (for road renovation packages), lack of quality management system costs, site arrangement costs, and environmental protection costs.

2.4. Material unit prices at the construction site, labor consumption rates, and machinery usage rates in detailed bid price components being too low compared to the authorized agency's material price announcements and current state standards.

2.5. General cost ratios or other cost ratios being too low compared to state regulations.

2.6. For tender documents with significant discrepancies between bid price ratios or structures and approved estimates (as specified in Clause 5, Article 7) or unreasonable and impractical, the Tenderer must carefully review. If the degree of unreasonableness is too large and impractical, the Tenderer and the expert team need to agree to exclude the tender document and clearly state this in the tender evaluation report.

3. Handling method for unreasonable bid unit prices in tender documents with unreasonable prices but not to the extent of exclusion, shall be carried out as follows:

The expert team and the evaluation council of the investor propose handling solutions for unreasonable unit prices. Based on the consensus of members, the Investor Leader will decide on the handling measures for unreasonable unit prices by replacing them with the highest unit price from other tender documents in the shortlist. This will be clearly stated in the tender evaluation report when submitting for approval of the tender results.

Cases mentioned in Point 2.6 and Section 3 above, the consulting review team of the investment decision-making authority will carefully review the investor's tender evaluation to submit for the investment decision-making authority's approval.

Article 9. Joint venture provisions

In cases where joint ventures participate in bidding, they must comply with the following regulations:

1. All joint venture participants must have sufficient civil legal capacity as stipulated by the Bidding Regulations and Circular No. 01/2004/TT-BKH dated February 2, 2004, issued by the Ministry of Planning and Investment. They must also meet the minimum capacity and experience requirements specified in the tender invitation documents, corresponding to the volume of work they undertake in the joint venture.

2. Each bidder can only participate in one tender submission in one package, whether participating independently or in a joint venture.

3. The number of members in a construction installation joint venture tender is regulated as follows:

3.1. Construction installation packages valued at VND 70 billion or more: Not exceeding three members;

3.2. Construction installation packages valued between VND 15 billion and VND 70 billion: Not exceeding two members;

3.3. Ordinary road construction installation packages (packages without specialized construction installation items requiring different business registration) valued under VND 15 billion are only allowed to be bid on by independent enterprises.

In other cases, the project investor proposes when submitting the tender invitation dossier for the competent authority to review and report in the document submitted to the authorized decision-maker.

4. Regarding the nomination of the leading entity in the consortium: The leading bidder of the consortium must be nominated by all members of the consortium and must have sufficient capacity and experience to organize and implement the contract of the tender package, and must undertake at least the value of work volume as prescribed as follows:

4.1. For a consortium of two members, it must be more than or equal to 60% of the contract value.

4.2. For a consortium of three members, it must be more than or equal to 40% of the contract value.

4.3. Other members must undertake not less than 25% of the contract value.

5. The bid proposal and bidding dossier of the consortium must be signed by the Legal Representative of the leading bidder of the consortium and stamped with the seal of the leading bidder of the consortium.

If the Legal Representative of the leading bidder of the consortium cannot sign in the bid proposal due to any reason, then all the Legal Representatives of the participating bidders in the consortium must issue a power of attorney to one person in the leadership board of the leading bidder of the consortium to act as the Legal Representative of the leading bidder of the consortium to sign in the bid proposal of the consortium.

6. The consortium of bidders participating in the tender (referred to as the consortium bidder) must have a consortium agreement or a consortium agreement document (collectively referred to as the consortium agreement) signed between the Legal Representatives of the bidders participating in the consortium to participate in the tender of a specific tender package.

7. The validity of the consortium agreement is stipulated as follows:

7.1. Compliance with the provisions set out in Article 9.

7.2. The agreement (or consortium agreement) must clearly specify the following contents:

a) Name of the consortium;

b) Names of the members participating in the consortium accompanied by addresses, contact phone numbers, etc.;

c) Provisions on the leading member of the consortium;

d) Clearly state the purpose of the consortium to participate in the tender of the tender package... (specify the name, position, route, scope of the tender package, project that the consortium participates in the tender);

đ) Ratio of value, volume, and content of work that each member of the consortium will undertake if winning the bid;

e) Responsibilities and authorities of the leadership of the consortium and each member of the consortium;

f) Duration of the consortium agreement;

g) Other contents.

7.3. There must be a commitment from the leading bidder of the consortium regarding its responsibility to ensure quality and progress according to the requirements of the entire tender package under any circumstances if the consortium wins the bid (including when the members of the consortium no longer have the ability to perform the assigned work).

If the consortium does not fully comply with the provisions of this Article, it will be disqualified during the tender evaluation process.

8. During the implementation of the tender package contract:

- The consortium may not arbitrarily change the ratio and content of work recorded in the consortium agreement when participating in the bid. In case of necessity to change the ratio and content of work already allocated, the consortium bidder must submit a written explanation to the project investor, so that the project investor can submit a written request to the competent authority for approval before the project investor issues a decision to allow changes to these contents.

Article 10. Subcontracting regulations

1. In case subcontractors are used, the main contractor must propose in their bidding dossier and declare according to the form specified in the tender invitation dossier.

2. A valid subcontractor must meet the following requirements:

2.1. Have sufficient civil legal capacity as prescribed.

2.2. Have sufficient capacity and experience corresponding to the assigned work.

2.3. The total value of the work volume undertaken by the subcontractors shall not exceed 40% of the contract value of the tender package.

2.4. Must have complete documentation proving compliance with the above requirements.

3. The main contractor shall bear full responsibility before the project investor and the law for ensuring the quality and progress of implementing the tender package according to the economic contract of award and acceptance signed with the project investor, including for works performed by the subcontractor.

4. During the implementation of the contract, the main contractor may not arbitrarily change or supplement subcontractors not included in the bidding dossier.

In case of necessity to change or supplement subcontractors, the main contractor must submit a written explanation for the project investor to review and report to the authorized investment decision-maker. After the authorized investment decision-maker approves, the project investor will issue a decision to permit changes or additions to subcontractors.

The project investor shall be responsible before the authorized investment decision-maker for the aforementioned decision.

5. A corporation (or parent company) participating in the tender must declare in its bidding dossier a list of subsidiary companies that will implement the tender package if successful, along with the volume and value of work to be assigned to the subsidiary companies. In this case, the anticipated subsidiary companies implementing the tender package are considered as subcontractors of the corporation. During the contract implementation phase, if there is a need to change the subsidiary company to implement the tender package, the corporation must follow the provisions of Clause 4 of this Article.

6. If the project investor finds that the subcontractor is weak during implementation, the project investor will issue a written notice requiring the main contractor to continue to take responsibility for the remaining workload and bear responsibility as stipulated in Clause 3 of this Article.

If it is found that the main contractor also cannot implement the workload mentioned above, the project investor has the right to reduce the workload, replace with another subcontractor according to the provisions of Article 11.

Article 11. Handling violations

1. Regulations on handling contractors violating quality

During the implementation of the contract, if the contractor violates quality, they will be handled according to Decision No. 4391/2002/QĐ-BGTVT dated December 27, 2002, issued by the Minister of Transport.

2. Regulations on handling contractors violating schedule

2.1. Some concepts and regulations:

a) Contract schedule is understood as the schedule in the award and acceptance contract signed between the project investor and the contractor corresponding to the volume in the tender invitation dossier, excluding additional volumes and force majeure reasons (natural disasters, floods, delayed land clearance, etc.).

In cases where there is a generated volume or force majeure reasons, the time for performing these tasks will generally be supplemented to the contract.

b) Delay violation includes violations of schedule at each stage of contract implementation and the completion schedule delay due to the contractor's fault, including extended schedule violations (due to generated volume and force majeure reasons).

c) Stages of contract implementation are determined based on the completion of main items. The end date of the stage serves as a benchmark for assessing the contractor's schedule violation. Based on the project implementation plan and specific requirements of the contract, the investor determines and announces the dates for reviewing the progress implementation mentioned above.

d) In case the schedule is delayed due to objective reasons, the contractor must submit a report in writing to the investor regarding the cause, duration of delay, and proposals.

Within fifteen days from receiving the contractor's report, the investor must review, issue a written response, to serve as the basis for handling the breach of schedule violation responsibility.

2.2. Provisions for Handling Schedule Violations:

During the contract implementation process, if the contractor violates the schedule, depending on the severity, they will be handled as follows:

a) First violation:

Ten days after determining the contractor's schedule violation, the investor issues a notice of criticism to the contractor, while requesting the contractor to commit to rectification measures.

b) Second violation:

Ten days after determining the second schedule violation, the investor issues a written reprimand and requests the contractor to sign a commitment letter with the following contents:

- Commitment that if the contractor does not implement the corrective measures as required by the investor, part of the contract will be transferred to a new supplementary subcontractor chosen by the investor.

- In the event of a workload transfer, if the winning bid price is lower than the state-established unit price at the time of transfer, the unit price for the supplementary subcontractor will be calculated according to the state regulations at the time of contract transfer. In this case, the investor submits the investment decision authority for approval of the budget for the transferred workload calculated at the new unit price as the basis for implementation. All additional costs exceeding the winning bid price shall be borne by the main contractor.

- The investor has the right to directly pay the supplementary subcontractor for the transferred workloads.

- This commitment letter is an annex supplementing the signed tender contract.

c) Schedule violations from the third time onwards:

Ten days after determining the contractor's third or subsequent schedule violations, in addition to continuing to handle the workload transfer of the contractor as stated in section 2.2, the investor needs to assess the actual capacity of the contractor to consider terminating the contract and report to the investment decision authority.

Within fifteen days, the assisting agency must submit a written response to the investor's request to the investment decision authority.

2.3. Provisions for Handling Workload Transfer to Supplementary Contractors or Contract Termination.

a) Handling internal workload transfer within a consortium:

If a member of the consortium violates the schedule, the investor decides to transfer the workload among the members of the consortium after reaching a consensus with the consortium leadership on the workload to be transferred, the receiving member, the unit price of the transferred item, and the implementation schedule. This document is an annex supplementing the signed tender contract.

In this case, the investor has the right to decide, take responsibility before the investment decision authority, and submit a report in writing before implementing the decision.

b) Handling workload transfer to a supplementary contractor not in the consortium:

When contractors in the consortium cannot undertake the workload of the contract according to the specified schedule, up to sixty percent of the workload of the member being transferred may be cut and assigned to another supplementary contractor not in the consortium. In this case, the investor needs to establish a consensus document with the consortium leadership as an annex supplementing the signed contract with similar contents as mentioned in point a above.

In this case, the investor has the right to select a supplementary contractor, make the transfer decision, take responsibility before the investment decision authority, and submit a report in writing before implementing the decision.

c) Handling contract termination for contractors:

Contractors who violate the schedule three times or more, or contractors who are weak in capacity and fail to meet the contract requirements, the investor will proceed with contract termination and liquidation procedures.

- If the remaining workload is not more than fifty percent of the contract value, the investor selects a new contractor with sufficient capacity to undertake the remaining portion of the contract. The unit price for the new contractor will be determined according to the provisions in section 2.2 above. Economic losses in this case, including losses due to changes in the unit price given to the new contractor, shall be borne by the terminated contractor.

- If the remaining workload exceeds fifty percent of the tender package value, the contract must be liquidated and new tender procedures initiated (including direct assignment).

For the cases mentioned above, the investor must work with the violating contractor, prepare a record of handling, and submit it to the investment decision authority for decision-making and implementation.

2.4. Economic Penalties for Schedule Violations

In addition to handling workload transfers and contract cuts as stated in sections 2.2 and 2.3, contractors who violate the schedule will also face economic penalties as follows:

a) If the contractor's schedule violation causes losses and damages, the investor must report to the decision authority about the violation contents, assess and determine the value of losses and damages caused by the contractor's fault, and recommend penalty measures for the contractor to compensate for those losses and damages.

b) In the contract signed, it must clearly stipulate economic penalties for delays caused by the contractor's fault. The handling of violations shall be based on the principle that the penalty value is calculated as a percentage of the number of days delayed, with the daily fine rate ranging from 0.05% to 0.1% of the contract value for each day of delay. The total amount of fines shall not exceed 12% of the contract value as prescribed by the Construction Law.

2.5. Administrative measures against contractors violating deadlines:

Contractors who violate deadlines in implementing contracts, in addition to being handled according to the measures mentioned above, will also face administrative penalties as follows:

a) Criticism, reprimand, warning:

- First violation of deadline: The project owner issues a strict criticism letter;

- Second violation of deadline: The project owner issues a reprimand letter and reports to the authority responsible for investment decisions.

- Violation of deadline at a level requiring termination of the contract: The project owner issues a report to the Ministry and issues a warning decision.

b) Prohibition from bidding on subsequent projects in the transportation sector:

- Contractors whose contract value reduction exceeds 60% will not be allowed to participate in bidding for transportation sector projects for a period of six months.

- Contractors whose contracts are terminated will not be allowed to participate in bidding for transportation sector projects for a period of one year.

2.6. For contractors violating deadlines and having their contracts terminated and liquidated, their information will be published on the WEB page and the "Bidding Information" newspaper of the Ministry of Planning and Investment. and the termination of contracts will be published on the WEB page and the "Bidding Information" newspaper of the Ministry of Planning and Investment.

3. Handling responsibility of the project owner:

3.1. If the project owner allows the contractor to violate quality standards, they will be handled according to Decision No. 4391/2002/QĐ-BGTVT dated December 27, 2002, issued by the Minister of Transport.

3.2. Handling responsibility of the project owner when there is a contractor violating deadlines:

a) Regarding reporting and monitoring progress:

Monthly, the project owner reviews all contracts under their management, providing a report evaluating the violation of contract deadlines, specifying the name of the contractor, the current implementation status, and assessing the corrective actions taken by contractors who have violated deadlines (according to the attached form). Reports from project owners are sent to the Ministry and the Bureau of Inspection and Quality Control of Road Transport Projects.

b) Handling responsibility of the project owner regarding reporting on progress:

If a contractor violates deadlines and the project owner fails to report promptly or reports inaccurately, the head of the project owner (General Director of Project Management Board, Director of Department...) will be handled as follows:

- In case of delay in reporting up to three months, they will be reprimanded; in case of delay in reporting up to six months or inaccurate reporting, they will be warned.

c) Handling the project owner regarding the selection of contractors:

Due to the project owner's inaccurate assessment of contractor capabilities, leading to the selection of contractors without sufficient capacity resulting in deadline violations, they will be handled as follows:

- In case of three contract violations within one year, the head of the unit acting as the project owner will be reprimanded;

- In case of four or more contract violations within one year, the head of the unit acting as the project owner will be warned;

3.3. Depending on the severity of the project owner's violation, the authority responsible for investment decisions will consider assigning them the role of project owner for subsequent projects.

Article 12. Implementation provisions

1. This regulation shall take effect fifteen days after its publication in the Official Gazette.

2. During the application process, the regulations promulgated together with this Decision will be updated and amended to align with new national regulations concerning related issues.

3. Project owners, representatives of project management boards using domestic funds managed by the Ministry of Transport, and heads of agencies and units in the transport sector are responsible for implementing this regulation./.