Circular No. 09/2020/TT-BKHĐT detailing the preparation of tender documents for the procurement of goods under the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP)

CIRCULAR

Detailed regulations on preparing tender documents for procurement of goods for tenders within the scope of application of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership

Pursuant to the Law on Bidding dated November 26, 2013;

Pursuant to Resolution No. 72/2018/QH14 dated November 12, 2018 of the National Assembly approving the Comprehensive and Progressive Agreement for Trans-Pacific Partnership and related documents;

Pursuant to Decree No. 09/2022/NĐ-CP dated January 12, 2022 of the Government amending and supplementing certain articles of Decree No. 95/2020/NĐ-CP dated August 24, 2020 of the Government guiding the implementation of public procurement under the Comprehensive and Progressive Agreement for Trans-Pacific Partnership to guide the implementation of public procurement under the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, the Free Trade Agreement between the Socialist Republic of Vietnam and the European Union, and the Free Trade Agreement between Vietnam and the United Kingdom and Northern Ireland;

Article 1. Scope

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

The Minister of Planning and Investment issues this Circular to provide detailed regulations on preparing tender documents for procurement of goods for tenders within the scope of application as specified in Article 1 of Decree No. 95/2020/NĐ-CP dated August 24, 2020 of the Government guiding the implementation of procurement under the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (hereinafter referred to as Decree No. 95/2020/NĐ-CP).

Article 1. Scope of Regulation

This Circular provides detailed regulations on preparing tender documents for procurement of goods for tenders within the scope of application as specified in Article 1 of Decree No. 95/2020/NĐ-CP dated August 24, 2020 of the Government guiding the implementation of procurement under the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (hereinafter referred to as Decree No. 95/2020/NĐ-CP).

Article 2. Applicability

Article 3. Application of Tender Document Models

a) Tender document model number 01 (Model 01) shall be applied to tenders conducted through open tendering with one-stage one-envelope procedure;

1. Áp dụng Mẫu hồ sơ mời thầu:

b) Tender document model number 02 (Model 02) shall be applied to tenders conducted through open tendering with two-stage two-envelope procedure.

2. For tenders for the procurement of goods that apply direct award, the preparation of request documents may utilize the provisions of this Circular based on ensuring compliance with the provisions of the CPTPP, EVFTA, and UKVFTA.

2. When preparing, reviewing, and approving tender documents for goods procurement tenders, organizations and individuals must:

a) Based on the scale and nature of each specific contract to set out appropriate requirements based on ensuring principles of competition, fairness, transparency, and economic efficiency;

b) Base on the needs for using the goods to set technical requirements (characteristics, technical parameters...) ensuring functionality, suitability with actual needs as well as market conditions;

c) In case of intra-block bidding, the tender documents shall clearly state that only bids from goods originating from member countries participating in the bidding are allowed. A member country is a country satisfying the following conditions: - Signed the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (hereinafter referred to as the CPTPP Agreement) on March 8, 2018; - At the time of approving the tender documents of the tender, the CPTPP Agreement is in effect with that country;

d) Shall not set conditions that limit the participation of bidders or create advantages for one or some bidders causing unfair competition such as specifying brand names, specific origins of goods, including mentioning the name of a country, group of countries, territory causing discrimination, except in cases of intra-block bidding as stipulated in Article 4 and Article 15 of Decree No. 95/2020/NĐ-CP and point c of this clause; shall not require bidders to have previously signed and implemented one or more contracts with procurement agencies of a specific country, territory or bidders must have experience in supplying goods or services in the territory of that country, territory as a criterion for excluding bidders. If it is not possible to describe goods in detail according to technical characteristics, technological design, technological standards, then the brand name, catalog of a specific product can be mentioned for reference and illustration of the technical requirements of the goods but must be accompanied by the phrase "or equivalent" after the brand name, catalog while clearly defining the technical characteristics, usage features, technological standards and other contents (if any) of the goods without specifying equivalence regarding origin;

e) In case there are amendments to the provisions stated in the Model Tender Documents, organizations and individuals responsible for preparing, reviewing, and approving tender documents must ensure that these amendments are more appropriate, scientific, and rigorous than the provisions stated in the Model Tender Documents and do not contravene the provisions of the CPTPP Agreement. In the proposal requesting approval of the tender documents, the contents of the amendments compared to the provisions in the Model Tender Documents and the reasons for the amendments must be clearly stated for the investor's consideration and decision;

3. For tenders for goods procurement applying the direct award method, the Model Tender Documents may be referenced and amended for appropriate application.

Article 4. Manufacturer's Sales Permit

1. For common goods that are widely available on the market, standardized, and covered by manufacturer warranties as prescribed, it is not required for contractors to submit a Sales Permit or Manufacturer's Sales Authorization, Distributor's Sales Authorization, Partnership Certification, or other equivalent documents (hereinafter referred to collectively as Sales Permit).

2. For specialized and complex goods requiring confirmation from the manufacturer or supplier to ensure feasibility in supplying goods when the contractor wins the bid and necessitating the manufacturer's responsibility for post-sale services such as installation, maintenance, training, and related services, the tender document may require the bidding contractor to provide a Sales Permit. In cases where the bidding document does not include a Sales Permit as required by the tender document, the contractor's bid will still be reviewed and evaluated for potential award. The absence of a Sales Permit as required by the tender document shall not be grounds for disqualification. If the winning bidder cannot present a Sales Permit before signing the contract, the next ranked bidder will be invited to negotiate the contract.

3. Where the contents of the Sales Permit do not fully meet the conditions stipulated in the tender document, the tenderer must request the contractor to clarify these aspects to ensure sufficient information for contract awarding, including allowing the contractor to replace or supplement information regarding the Sales Permit.

4. In cases where manufacturers or distributors within Vietnam intentionally fail to provide the contractor with a Sales Permit without justifiable reasons, thereby violating commercial and competition laws and creating advantages or monopolies for other contractors, the contractor should report this to the Ministry of Industry and Trade for timely resolution.

Article 5. Requirements for Providing Sample Goods

1. For common goods that are widely available on the market and standardized, there is no requirement for contractors to provide sample goods.

2. For specialized and complex goods where the project owner or tenderer cannot specifically determine the shape or design of the goods, requiring individual production, the tenderer may require the contractor to provide sample goods to demonstrate technical specifications. If sample goods are requested, the proposal for approving the tender document must clearly state the reasons for the project owner to consider and decide. The project owner and tenderer must ensure that requesting sample goods does not increase the cost of the package, limit contractor participation, or create an unfair competitive advantage for one or more contractors.

3. If the tender document requires the provision of sample goods, the contractor may submit additional samples after the bid closing date.

Article 6. Requirements for Mobilizing Personnel to Implement the Tender Package

1. For the part of work providing goods, the tender invitation document shall not include requirements for mobilizing key personnel.

2. For commonly available goods on the market that do not require high qualifications from personnel implementing related services, there shall be no requirement for key personnel. In cases where related services have special and complex factors necessitating implementation by personnel with knowledge and extensive experience, requirements for mobilizing key personnel may be set forth to implement such special and complex tasks. When requiring mobilization of key personnel, the justification must be clearly stated in the tender approval report for the investor to consider and decide. The investor and tenderer must ensure that the requirement for mobilizing key personnel does not limit the participation of contractors or create an unfair competitive advantage for one or some contractors.

3. Where the tender invitation document includes requirements for mobilizing key personnel, in the tender submission, the contractor must demonstrate their ability to mobilize the proposed key personnel to participate in implementing the tender package in accordance with the tender invitation document's requirements. Key personnel may be within the contractor's staff or mobilized by the contractor. If the proposed key personnel do not meet the tender invitation document's requirements, the expert team and tenderer should request the contractor to replace other personnel who meet the requirements within a suitable timeframe for continued consideration and evaluation without immediately rejecting the contractor's tender submission. In all cases, the contractor must ensure that the information declared about the key personnel's background and experience is truthful.

Article 7. Contracts

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

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

3. The unilateral termination of the contract mentioned in Section 29.3 Conditions of the Contract Model issued together with this Circular can only be implemented upon permission from the authorized person with a reasonable cause.

4. The contract signed between the investor and the contractor must comply with the Contract Template, the contract conditions specified in the tender invitation document, and any amendments and supplements proposed by the contractor and approved by the investor during the negotiation and completion of the contract but must ensure compliance with the bidding laws, the CPTPP Agreement provisions, and other relevant legal provisions.

Article 8. Implementation organization

1. This Circular takes effect from January 15, 2021.

2. For tender packages within the scope of the CPTPP Agreement that were tendered before the effective date of this Circular, the evaluation of tender submissions and determination of successful bids shall be carried out according to the provisions in the tender invitation document but must ensure compliance with the CPTPP Agreement provisions.

3. For tender packages within the scope of the CPTPP Agreement that were approved and issued tender invitation documents before the effective date of this Circular but have a closing date after the effective date of this Circular and have not yet reached the closing date, if there are contents that are inconsistent or contrary to the guidance provided in the tender invitation document templates issued together with this Circular, they must be revised accordingly. If the tender invitation document is revised after issuance, the investor and tenderer must provide the contractors with a reasonable period of time to prepare their tender submissions.

4. For tender packages within the scope of the CPTPP Agreement that were approved before the effective date of this Circular but have not yet issued tender invitation documents, they must be revised according to the tender invitation document templates issued together with this Circular.

5. Organizations listed in the annex accompanying Decree No. 95/2020/NĐ-CP and related organizations and individuals are responsible for implementing this Circular. During implementation, if there are any difficulties, please send comments to the Ministry of Planning and Investment for timely guidance.