Circular No. 07/BKH-VPXT guiding additional contents for the implementation of the Bidding Regulations for foreign-invested enterprises

CIRCULAR

Supplementary Guidance on Certain Aspects of the Tendering Regulation

for Foreign-Invested Enterprises

Based on the Tendering Regulation issued with Decree No. 43/CP dated July 16, 1996 of the Government and the Joint Circular guiding the implementation of the Tendering Regulation No. 02/TTLB dated February 25, 1997 of the Ministry of Planning and Investment - Ministry of Construction - Ministry of Trade, and to facilitate the implementation of the Tendering Regulation for joint ventures and business cooperation contracts carried out by foreign-invested enterprises under the Law on Foreign Investment in Vietnam (hereinafter referred to collectively as foreign-invested enterprises), the Ministry of Planning and Investment provides supplementary guidance on certain aspects of the Tendering Regulation for foreign-invested enterprises as follows:

I. SCOPE OF APPLICATION:

1. For projects of foreign-invested enterprises where the statutory capital contribution of Vietnamese state-owned enterprises is 30% or more as stipulated in the Tendering Regulation.

2. The entity issuing the investment permit shall issue the agreement on the tender plan and tender results.

Foreign-invested enterprises that are granted investment permits by the Ministry of Planning and Investment shall have their tender plans and tender results agreed upon by the Ministry of Planning and Investment.

Foreign-invested enterprises that are granted investment permits by provincial People's Committees or Industrial Park Management Boards shall have their tender plans and tender results agreed upon by these authorities.

II. CONTENTS TO BE AGREED UPON BY THE MINISTRY OF PLANNING AND INVESTMENT

1. Tender Plan:

After obtaining the investment permit, to implement the project, before organizing the tender, foreign-invested enterprises must develop a tender plan for the entire project.

The tender plan must clearly specify all consultancy, construction, and procurement activities subject to tendering and those not subject to tendering.

The contents of the tender plan are specified in Article 5 of the Tendering Regulation and Section I (1) of Part Two of Joint Circular No. 02/TTLB dated February 25, 1997, which includes four main points that need clarification:

Dividing the project into packages. Estimating the value of each package.

Tendering method.

Contract execution method.

The division of the project into packages must be reasonable, primarily based on the nature of the technology or the time required for the project. Packages should not be too large to create opportunities for bidders to participate (especially Vietnamese contractors).

The total estimated value of the packages plus the remaining items not subject to tendering must not exceed the total investment capital specified in the investment permit.

International tendering methods should only be applied when tendering for consultancy, construction, or procurement of specialized equipment for projects with unique technical requirements that Vietnamese contractors cannot meet.

The investment permit serves as the legal basis for agreeing on the tender plan. If the tender plan does not comply with the investment permit, such as exceeding the investment capital or changing the tendering method, foreign-invested enterprises must first go through the procedures to adjust or supplement the investment permit according to Circular No. 03/BKH-QLDA dated March 15, 1997 of the Ministry of Planning and Investment.

2. Tender Results:

After the tender plan has been agreed upon, foreign-invested enterprises may proceed with the tender. The organization of the tender must follow the agreed-upon tender plan. The agreement on tender results is made on a package-by-package basis.

Some tasks during the tender process, such as appointing a specialized team or hiring consulting assistance, the content of the tender invitation, evaluation criteria, etc., are decided by the Board of Directors of the joint venture (or authorized representatives of the joint venture parties).

After reviewing, evaluating, and ranking the tender submissions, the Board of Directors of the joint venture (or authorized representatives of the joint venture parties) approves the tender results.

The report on the tender process should focus on key issues such as the performance of the specialized team or consulting assistance, the content of the tender invitation, evaluation criteria (scoring scale), evaluation results of participating contractors (capacity, experience, technical expertise, bid price, score...), the winning contractor, and the proposed winning bid price.

III. NECESSARY DOCUMENTS WHEN REQUESTING AGREEMENT

1. For the tender plan:

Request for agreement on the tender plan from foreign-invested enterprises.

Report explaining the basis for establishing the tender plan: including the division of the project into packages, estimated package values, tendering methods, contract execution methods...

Copy of the investment permit and any amended permits.

Feasibility study report (F/S) and any amendments or supplements.

The time limit for agreeing on the tender plan is no more than 20 days from the date of receipt of complete documents (including the time for seeking opinions from relevant ministries for complex projects).

2. For tender results:

Request for agreement on tender results from foreign-invested enterprises specifying the winning contractor and the proposed winning bid price.

Report on the tender process, evaluation, and ranking of contractors.

Recommendations of the Board of Directors of the joint venture (or authorized representatives of the joint venture parties) regarding the tender results.

Copy of the tender submission of the proposed winning contractor.

The time limit for agreeing on tender results is no more than 20 days from the date of receipt of complete documents (including the time for seeking opinions from relevant ministries for complex projects).

All documents above (except copies of tender submissions) must be written in Vietnamese.

IV. COSTS FOR REVIEWING TENDER RESULTS:

Costs for reviewing tender results for packages proposed by foreign-invested enterprises are implemented based on Joint Circular No. 02/TTLB (Point 3 of Part Three) dated February 25, 1997, and are specifically guided as follows:

This applies only to consultancy tender packages with a value of 10 billion VND or more and procurement tender packages for materials, equipment, or construction/installation works with a value of 50 billion VND or more.

The rate of collection is 50% of the amount specified in Circular Joint No. 02/TTLB dated February 25, 1997.

The Ministry of Planning and Investment hereby informs foreign-invested enterprises of this information for implementation, aiming to facilitate the review process and expedite the issuance of agreement documents./.