Circular No. 06/2020/TT-BKHĐT guiding the implementation of Decree No. 25/2020/NĐ-CP dated February 28, 2020 of the Government detailing certain provisions of the Law on Bidding regarding the selection of investors

CIRCULAR

Guidelines for Implementing Decree No. 25/2020/NĐ-CP dated February 28, 2020 of the Government detailing the implementation of certain provisions of the Bidding Law on selecting investors

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

Decree No. Pursuant to Decree No. 63/2018/NĐ-CP dated May 4, 2018 of the Government on public-private partnership investment;

Pursuant to Decree No. 25/2020/NĐ-CP dated February 28, 2020 of the Government detailing and guiding the implementation of certain provisions of the Law on Bidding regarding the selection of investors;

Decree No. Decree No. 86/2017/NĐ-CP dated November 25, 7 Pursuant to Decree No. 39/2019/ND-CP dated May 10, 2019 of the Government on the organization and operation of the Small and Medium Enterprise Development Fund;

Article 1. Scope of Application

The Minister of Planning and Investment issues this Circular guiding the implementation of Decree No. 25/2020/NĐ-CP dated February 28, 2020 of the Government detailing the implementation of certain provisions of the Bidding Law on selecting investors.

Article 1. Scope of Regulation

This Circular guides the implementation of certain contents as prescribed in Decree No. 25/2020/NĐ-CP dated February 28, 2020 of the Government detailing the implementation of certain provisions of the Bidding Law on selecting investors (hereinafter referred to as Decree No. 25/2020/NĐ-CP), including:

1. Prequalification documents, bidding documents, request for proposal documents for public-private partnership investment projects (hereinafter referred to as PPP projects); preliminary requirements regarding capacity, experience, bidding documents, request for proposal documents for investment projects using land.

2. Contents related to the implementation of investment projects using land, including:

a) Determination of investment projects using land as prescribed in Clause 1, Article 12 of Decree No. 25/2020/NĐ-CP;

b) Preliminary assessment of capacity and experience of investors as prescribed in Article 13 of Decree No. 25/2020/NĐ-CP;

c) Organization of review of contents in bidding as prescribed in Articles 75, 76, and 79 of Decree No. 25/2020/NĐ-CP;

d) Procedures and formalities for granting land use rights and leasing land to winning bidders.

3. Publishing information and selecting investors on the National Public Procurement System (hereinafter referred to as the System).

Article 2. Applicability

This Circular applies to agencies, organizations, and individuals participating in or related to the activity of selecting investors to implement projects as prescribed in Clause 1, Article 1 of Decree No. 25/2020/NĐ-CP.

Article 3. Preparation of prequalification documents, bidding documents, request for proposal documents for PPP projects

1. Prequalification documents shall be prepared according to the model prescribed in Appendix I attached hereto.

2. Bidding documents shall be prepared according to the model prescribed in Appendix II attached hereto.

3. In cases where prequalification is not applied as prescribed in Clause 3, Article 18 and Clause 2, Article 80 of Decree No. 25/2020/NĐ-CP, bidding documents shall be prepared based on amendments to the model documents prescribed in Appendix II attached hereto; including supplementary content on assessing the capacity and experience of investors as prescribed in Appendix I attached hereto, and regulations on issuing, amending, and clarifying bidding documents shall be carried out through the System.

4. In cases where direct award is applied as prescribed in point a, Clause 3, Article 9 of Decree No. 25/2020/NĐ-CP, request for proposal documents shall be prepared based on amendments to the model documents prescribed in Appendix II attached hereto; excluding content on comparing and ranking investors.

5. In cases where direct award is applied as prescribed in points b and c, Clause 3, Article 9 of Decree No. 25/2020/NĐ-CP, request for proposal documents shall be prepared based on amendments to the model documents prescribed in Appendix II attached hereto; including supplementary content on assessing the capacity and experience of investors as prescribed in Appendix I attached hereto, and excluding content on comparing and ranking investors.

Article 4. Establishing preliminary requirements regarding capacity, experience, tender invitation documents, and project investment request documents involving land use

1. The notice of interest and preliminary requirements regarding capacity and experience shall be established according to the model prescribed in Appendix III issued together with this Circular.

2. The tender invitation documents shall be established according to the model prescribed in Appendix IV issued together with this Circular; wherein, the minimum floor price for state budget submission (m) shall be determined in accordance with point k, Clause 2, Article 47 of Decree No. 25/2020/NĐ-CP. During implementation, the authorized person and the tender inviter shall independently determine the input parameters for calculating the value of m or follow the guidance provided in Appendix V issued together with this Circular, ensuring fairness, transparency, objectivity, scientific accuracy, feasibility, not causing disadvantage to participating parties, and effectively utilizing land while avoiding state budget loss.₃shall be determined in accordance with point k, Clause 2, Article 47 of Decree No. 25/2020/NĐ-CP. During the implementation process, the competent authority or the tender inviter shall determine the input parameters for calculation of the value or follow the guidance provided in Appendix V attached to this Circular; ensuring fairness, transparency, objectivity, scientific accuracy, feasibility, not causing disadvantage to any participating parties, and effectively utilizing land while avoiding loss of state budget funds.₃or implement in accordance with the guidelines set out in Appendix V attached hereto; ensuring fairness, transparency, objectivity, scientific basis, feasibility, not to the disadvantage of the parties involved, and effectively utilizing land, preventing loss of state budget revenue.

3. For projects applying the direct award method as stipulated in Clause 3, Article 10 of Decree No. 25/2020/NĐ-CP, the request documents shall be established based on amending the content of the prescribed form in Appendix IV issued together with this Circular; wherein, there shall be no comparison or ranking of investors' content. The determination of the value of m shall be carried out in accordance with the provisions of Clause 2 of this Article.₃shall be implemented in accordance with Clause 2 of this Article.

Article 5. Principles for Applying and Amending Model Documents

1. In Appendices I, II, III, and IV issued together with this Circular, italicized text represents guiding and illustrative content that must be concretized based on the scale, nature, field, and specific conditions (if any) of each project.italicized are illustrative contents that are concretized based on the scale, nature, field, and specific particular conditions (if any) of each project.

2. Any amendments to the model documents as stipulated in Clause 3, Clause 4, Clause 5 of Article 3 and Clause 3 of Article 4 of this Circular must comply with the provisions of the Bidding Law, Decree No. 63/2018/NĐ-CP dated May 4, 2018 of the Government on Public-Private Partnership Investment, Decree No. 25/2020/NĐ-CP, and other relevant laws concerning the implementation of projects.

3. In addition to the criteria for evaluating the capacity and experience of investors as prescribed in Appendices I, II, III, and IV issued together with this Circular, the authorized person, Department of Planning and Investment, and the tender inviter may supplement other evaluation criteria based on the following principles:

a) Suitability with the scale, nature, field, and specific conditions (if any) of each project;

b) Compliance with legal regulations; not limiting investor participation or creating advantages for one or some investors leading to unfair competition.

In cases where additional criteria for evaluating capacity and experience are supplemented, the proposal for approval of the preliminary tender invitation documents, preliminary requirements regarding capacity and experience, tender invitation documents, and request documents must include detailed explanations of the supplementary contents and reasons for the proposal for the authorized person to consider and decide.

Article 6. Contents Related to the Implementation of Projects Involving Land Use

1. Determination of projects involving land use as prescribed in Clause 1, Article 12 of Decree No. 25/2020/NĐ-CP

Projects involving land use for constructing commercial housing; commercial and service works; multifunctional works and complexes for business purposes and meeting all conditions specified in Article 11 of Decree No. 25/2020/NĐ-CP (excluding projects under the provisions of Article 26 of the Bidding Law or Clause 3 of this Article) shall be compiled into the list of projects involving land use, including:

a)Commercial Housing shall be defined in accordance with Clause 4, Article 3 of the Law on Housing No. 65/2014/QH13 dated November 25, 2014;

b)Commercial and Service Works shall be defined in accordance with point e, Section 1.2 of Appendix I (Classification of Construction Works) issued together with Decree No. 46/2015/NĐ-CP dated May 12, 2015 of the Government on Quality Management and Maintenance of Construction Works;

c)Multifunctional Works and Complexes are multifunctional works within commercial and service works as prescribed in point b of this clause, shall be defined in accordance with Clause 1, Article 1 of Circular No. 07/2019/TT-BXD dated November 7, 2019 of the Minister of Construction amending, supplementing, and replacing certain provisions in Circular No. 03/2016/TT-BXD dated March 10, 2016 of the Minister of Construction on Classification of Construction Works and Guidance on Application in Investment Construction Management Activities.

2. Preliminary Assessment of Investor Capacity and Experience as Prescribed in Article 13 of Decree No. 25/2020/NĐ-CP

a) The preliminary assessment of investor capacity and experience shall be based on the preliminary requirements regarding capacity and experience, the project implementation registration documents of the investor, and any additional clarifying documents for the project implementation registration documents (if available).

b) Based on the assessment results, the Department of Planning and Investment shall submit to the Chairman of the Provincial People's Committee for decision on organizing implementation in accordance with Clause 3, Article 13 of Decree No. 25/2020/NĐ-CP.

3. In cases where only one investor meets the preliminary requirements regarding capacity and experience, based on the project progress, investment attraction objectives, and other specific conditions of the project, the Chairman of the Provincial People's Committee shall consider and decide to implement according to one of the two options as follows:

a) Option 1: Announce and guide the investor to submit the investment decision approval documents in accordance with the investment law and other related laws as stipulated in point b, Clause 3, Article 13 of Decree No. 25/2020/NĐ-CP if the organization process has ensured transparency, competition, and the project requires accelerated progress;

b) Option 2: Extend the time for registering to implement the project. The extension period shall be decided by the Chairman of the Provincial People's Committee, ensuring sufficient time for potential investors to access information and submit project implementation registration documents to increase competitiveness. Investors who have already met the requirements do not need to resubmit their project implementation registration documents.

After the extension, if there are additional investors meeting the initial requirements for capacity and experience, the provisions at point a, Clause 3, Article 13 of Decree No. 25/2020/NĐ-CP shall be implemented. If there are no additional investors meeting the initial requirements for capacity and experience, the provisions at point b, Clause 3, Article 13 of Decree No. 25/2020/NĐ-CP shall be implemented.

4. Organize the review of contents in the bidding process according to the provisions at Articles 75, 76, and 79 of Decree No. 25/2020/NĐ-CP.

a) The Department of Planning and Investment shall take the lead in reviewing the tender documents, request documents, list of investors meeting technical requirements, and the results of investor selection when these contents are approved by the Chairman of the Provincial People's Committee.

b) The department with functions related to planning and finance within the specialized agency under the Provincial People's Committee shall take the lead in reviewing the tender documents, request documents, list of investors meeting technical requirements, and the results of investor selection when these contents are approved by the head of the specialized agency authorized by the Chairman of the Provincial People's Committee.

c) The department with functions related to planning and finance within the District People's Committee shall take the lead in reviewing the tender documents, request documents, list of investors meeting technical requirements, and the results of selection when these contents are approved by the Chairman of the District People's Committee authorized by the Chairman of the Provincial People's Committee.

5. For investment projects using land as prescribed in Decree No. 30/2015/NĐ-CP dated March 17, 2015 of the Government detailing certain provisions of the Law on Bidding regarding the selection of investors, from the date Decree No. 25/2020/NĐ-CP takes effect (April 20, 2020), after completing compensation, support, and resettlement according to the laws on land, the transfer of land use rights and lease of land to investors shall be carried out according to the provisions at Clause 2, Article 60 of Decree No. 25/2020/NĐ-CP.

Article 7. Publishing information and issuing preliminary requirements for capacity and experience, prequalification documents, and tender documents on the System.

1. Publishing information on the System.

a) Responsibilities and time for publishing information.

- The Department of Planning and Investment shall publish the list of investment projects using land and the notice inviting expressions of interest on the System within seven working days from the date the project list is approved.

- The tenderer shall publish the notice inviting prequalification for PPP projects, the notice inviting bids for PPP projects not applying prequalification, and the notice inviting bids for investment projects using land on the System according to the schedule for selecting investors.

b) When implementing the publication of the information contents prescribed in point a of this clause, the following documents must be published concurrently:

- Decision approving the list of investment projects using land, including preliminary requirements for capacity and experience;

- Decision approving the prequalification documents for PPP projects;

- Decision approving the tender documents for PPP projects not applying prequalification and investment projects using land.

c) The publication of other information during the investor selection process on the System shall be carried out according to the provisions of Circular No. 11/2019/TT-BKHĐT dated December 16, 2019 of the Minister of Planning and Investment detailing the provision of bidding information, the implementation timeline for online tendering, and the management and use of bid security and performance bond (hereinafter referred to as Circular No. 11/2019/TT-BKHĐT).

2. Issuing preliminary requirements for capacity and experience, prequalification documents, and tender documents on the System.

a) The following documents shall be issued on the System simultaneously with the notice inviting expressions of interest, notice inviting prequalification, and notice inviting bids:

- Preliminary requirements for capacity and experience for investors implementing investment projects using land;

- Prequalification documents for PPP projects;

- Tender documents for PPP projects not applying prequalification and investment projects using land.

Investors download the file of the documents on the System as the basis for preparing the registration documents for investment projects using land, prequalification documents, and bid documents.

b) In cases where prequalification documents and tender documents are sold according to the provisions at Clause 1, Article 7 of Decree No. 25/2020/NĐ-CP, investors must pay the tenderer a fee according to the price of the prequalification documents and tender documents when submitting prequalification documents and bid documents.

c) Tender documents for PPP projects applying prequalification shall be directly issued to investors listed in the shortlist. Any amendments and clarifications of tender documents shall be carried out according to the provisions at Article 32 of Decree No. 25/2020/NĐ-CP.

3. Checking information in notices inviting expressions of interest, notices inviting prequalification, and notices inviting bids.

a) The Vietnam Bidding Journal shall be responsible for checking the information in notices inviting expressions of interest, notices inviting prequalification, and notices inviting bids published by the Department of Planning and Investment and the tenderer.

b) In case of discovering invalid information, the Vietnam Bidding Journal shall notify the Department of Planning and Investment and the tenderer within two working days from the date the information is published on the System. Such notifications shall be made through the System, email, mobile applications, or other communication channels.

c) Within three working days from the date of receiving the notification as prescribed in point b of this clause, the Department of Planning and Investment and the tenderer must correct the published content according to the notification of the Vietnam Bidding Journal.

d) If the invalid information has not been corrected within the deadline prescribed in point c of this clause, the System will publicly disclose the invalid information. The entity publishing the information shall bear legal responsibility for the content published.

4. Publishing on the Vietnam Bidding Journal.

a) Notices inviting expressions of interest, notices inviting prequalification, and notices inviting bids prescribed in point a of Clause 1 of this Article shall be extracted and published on the Vietnam Bidding Journal once within two working days from the date such information is published on the System and is valid.

b) The cost of publishing information shall be implemented according to the provisions at Clause 1, Article 24 of Circular No. 11/2019/TT-BKHĐT.

Article 8. Amending and Clarifying Preliminary Requirements on Capacity, Experience, Prequalification Documents, and Tender Invitations Issued on the System

1. Amending and Clarifying Preliminary Requirements on Capacity and Experience for Investment Projects Involving Land Use

a) Amending Preliminary Requirements on Capacity and Experience

In cases where preliminary requirements on capacity and experience are amended, the Department of Planning and Investment must post on the System the decision to amend along with the amended contents at least 10 days before the deadline for submitting project implementation registration applications.

b) Clarifying Preliminary Requirements on Capacity and Experience

- In cases where clarification of preliminary requirements on capacity and experience is necessary, investors must submit a written request for clarification to the Department of Planning and Investment or through the System at least five working days before the deadline for submitting project implementation registration applications for consideration and handling.

- The Department of Planning and Investment shall proceed with clarification based on the investor's request and post the clarification document on the System at least two working days before the deadline for submitting project implementation registration applications.

- The clarified content must not contradict the approved content. If clarification leads to the need to amend preliminary requirements on capacity and experience, it shall be carried out in accordance with the provisions of point a of this clause.

2. Amending and Clarifying Prequalification Documents and Tender Invitations

a) Amending Prequalification Documents and Tender Invitations

In cases where prequalification documents or tender invitations are amended, the tenderer must post on the System the decision to amend along with the amended contents at least ten days before the closing date for prequalification, fifteen days for domestic tenders, and twenty-five days for international tenders.

For PPP projects in Group C, the tenderer must post on the System the decision to amend along with the amended prequalification documents and tender invitations at least three working days before the closing date.

b) Clarifying Prequalification Documents and Tender Invitations

- In cases where clarification of prequalification documents or tender invitations is necessary, investors must submit a written request for clarification to the tenderer or through the System at least five working days before the closing date for prequalification, seven working days for domestic tenders, and fifteen days for international tenders for consideration and handling.

- The tenderer shall proceed with clarification based on the investor's request and post the clarification document on the System at least two working days before the closing date.

- The clarified content must not contradict the approved content. If clarification leads to the need to amend prequalification documents or tender invitations, it shall be carried out in accordance with the provisions of point a of this clause.

Article 9. Extending the Time for Submitting Project Implementation Registration Applications for Investment Projects Involving Land Use and Extending the Closing Date for Tenders on the System

In cases where the time for submitting project implementation registration applications for investment projects involving land use or the closing date for tenders is extended on the System, the Department of Planning and Investment and the tenderer must post an extension notice along with the decision on extension on the System, including the following information:

1. Reason for Extension;

2. Deadline for Submitting Project Implementation Registration Applications and Closing Date for Tenders After Extension;

3. Name of Investors Meeting Preliminary Requirements on Capacity and Experience or Winning Prequalification in Accordance with Point b Clause 3 Article 6 of this Circular or Clause 3, Clause 4 Article 23 of Decree No. 25/2020/NĐ-CP.

Article 10. Submission and Clarification of Project Registration Files for Investment Projects Using Land on the System

1. Investors submit project registration files for investment projects using land on the System. Upon expiration of the project registration file submission deadline, the Department of Planning and Investment will access the System and evaluate the submitted project registration files.

2. Any clarification of project registration files (if necessary) shall be conducted between the Department of Planning and Investment and investors on the System.

Article 11. Extension of Time for Submission of Project Registration Files for Investment Projects Using Land in Case of System Malfunction

When the System experiences a malfunction that requires temporary suspension of services, investment projects using land with project registration file submission deadlines falling within the period of the malfunction shall be extended as follows:

1. In cases where the malfunction is resolved and the System resumes operation between 00:00 and 12:00, the new deadline will be 15:00 on the same day, except as provided in Clause 3 of this Article.

2. In cases where the malfunction is resolved and the System resumes operation between 12:00 and 24:00, the new deadline will be 09:00 on the following day, except as provided in Clause 3 of this Article.

3. In cases where the malfunction is resolved and the System resumes operation on Saturdays, Sundays, holidays, or public holidays, the new deadline will be 09:00 on the first working day after the holiday period.

Article 12. Publication of Lists of Projects Required to Be Tendered According to Specialized Laws and Laws on Socialization on the System

1. Lists of projects required to be tendered according to specialized laws and laws on socialization must be published on the System within seven working days from the date the list of projects is approved.

2. The contents to be published include:

a) Information about the project: Project name; investment objectives, scale of investment; basic requirements of the project; time frame and progress of investment; location of the project implementation; other information about the project (if any).

b) Deadline for registering interest in implementing the project;

c) Information for investors to contact and register interest in implementing the project.

3. When publishing the information contents as stipulated in Clause 1 of this Article, the decision approving the list of projects must also be published.

4. The establishment, approval, and publication of lists of projects; tender document templates and other contents (if any) for projects required to be tendered according to specialized laws and laws on socialization shall be carried out in accordance with the guidelines of Ministries, ministerial-level agencies, or government agencies as stipulated in Clause 3 of Article 16 of Decree No. 25/2020/NĐ-CP. During the period when Ministries, ministerial-level agencies, or government agencies have not issued detailed regulations, the tender document contents shall be developed based on amendments to the templates specified in Appendices III and IV attached to this Circular.

In all cases, the selection of investors according to specialized laws and laws on socialization must ensure competitive, fair, transparent, and economically efficient goals; and comply with the provisions of laws on tendering, specialized laws, and laws on socialization.

Article 13. Guidelines for using the System and format of attached files sent to the System

1. The posting of information; issuance, modification, clarification of preliminary requirements regarding capacity, experience, prequalification request documents, tender invitation documents; extension of the time limit for submitting project implementation registration documents, tender closing date on the System shall be carried out in accordance with the User Guide published on the System.

2. Files uploaded to the System must ensure:

a) Having formats such as MS Word, MS Excel, PDF, CAD, image formats; font belonging to the Unicode code table. In cases where files have large sizes, they need to be uploaded to the System in compressed file formats *.zip, *.rar;

b) Not being infected with viruses, not having errors or damage, and not setting passwords.

Article 14. Transitional Provisions

1. The list of investment projects using land (including preliminary requirements regarding capacity and experience of investors) announced from the date Decree No. 25/2020/ND-CP takes effect (April 20, 2020) until before the date this Circular takes effect, if consistent with the Law on Bidding and Decree No. 25/2020/ND-CP, there is no need to reissue the announcement of the project list.

2. Prequalification request documents, tender invitation documents, request documents issued from the date Decree No. 25/2020/ND-CP takes effect until before the date this Circular takes effect, if consistent with the Law on Bidding and Decree No. 25/2020/ND-CP, there is no need to adjust and reissue according to the provisions of this Circular. The tenderer is responsible for evaluating prequalification application documents, tender application documents, proposal documents, and awarding bids based on the contents of the prequalification request documents, tender invitation documents, and request documents that have been issued, including the content regarding the submission of state budget funds (m)₃).

3. In case the prequalification request document was issued before the effective date of Decree No. 25/2020/ND-CP, according to Clause 3, Article 90 of Decree No. 25/2020/ND-CP, the selection of investors shall be carried out as follows:

a) In case two or more investors pass the prequalification, the project will apply the open tender method as stipulated in Clause 1 and Clause 2, Article 9 of Decree No. 30/2015/ND-CP. The subsequent investor selection procedures shall be implemented in accordance with Chapters III, IV, and V of Decree No. 30/2015/ND-CP. Tender invitation documents shall be issued to shortlisted investors in accordance with Clause 1, Article 30, Article 49, and Article 61 of Decree No. 30/2015/ND-CP.

b) In case only one investor passes the prequalification, the project will apply the direct award method as stipulated in Point a, Clause 3, Article 9 of Decree No. 30/2015/ND-CP. The subsequent investor selection procedures shall be implemented in accordance with Chapter VI of Decree No. 30/2015/ND-CP.

c) The contents of tender invitation documents and request documents shall be developed based on compliance with the provisions of Decree No. 30/2015/ND-CP, guiding circulars, and relevant laws in effect at the time of approval of the tender invitation documents and request documents.

d) The winning investor shall implement the project in accordance with the contract, laws on investment, construction, land, planning, and other related laws.

Article 15. Implementation Organization

1. During the implementation process, in case the legal normative documents cited in this Circular are amended, supplemented, or replaced, they shall be applied in accordance with the amended, supplemented, or replaced legal normative documents.

2. Ministries, ministerial-level agencies, government-affiliated agencies, central-level agencies, People's Committees at all levels, and related organizations and individuals are responsible for implementing this Circular. During the implementation process, if there are difficulties, the relevant ministries, ministerial-level agencies, government-affiliated agencies, central-level agencies, People's Committees at all levels, and organizations and individuals are requested to report to the Ministry of Planning and Investment for guidance.

Article 16. Effective Date

1. This Circular takes effect from November 5, 2020.

2. This Circular replaces Circular No. 15/2016/TT-BKHĐT dated September 29, 2016, issued by the Minister of Planning and Investment guiding the preparation of prequalification request documents and tender invitation documents for selecting investors to implement PPP projects and Circular No. 16/2016/TT-BKHĐT dated December 16, 2016, issued by the Minister of Planning and Investment guiding the preparation of prequalification request documents and tender invitation documents for selecting investors to implement land-use investment projects, except for the cases provided for in Clause 3, Article 14 of this Circular/.