Circular No. 10/2015/TT-BKHĐT detailing the bidding plan selection

CIRCULAR

Regulations on the detailed plan for selecting contractorsu

__________________

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

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

Pursuant to Decree No. 116/2008/ND-CP dated November 14, 2008 of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Planning and Investment;

The Minister of Planning and Investment shall issue a Circular to provide detailed regulations on the plan for selecting contractors.

Article 1. Scope of Regulation

This Circular provides detailed regulations on the establishment, approval, review, and approval of the plan for selecting contractors for tenders and projects within the scope regulated by Law on Bidding No. 43/2013/QH13, except for the tender for purchasing medicines as stipulated at point g, Clause 1, Article 1 of Law on Bidding No. 43/2013/QH13.

Article 2. Applicability

This Circular applies to agencies and organizations participating in the establishment, approval, review, and approval of the plan for selecting contractors for tenders and projects within the scope regulated by Article 1 of this Circular and other related entities.

Article 3. Application of the Circular

1. In cases where international treaties or agreements specify the application of procedures for selecting contractors, such procedures shall be implemented according to the provisions of Clause 3 and Clause 4, Article 3 of Law on Bidding No. 43/2013/QH13. Procedures for approval, review, and approval of the plan for selecting contractors shall be carried out in accordance with this Circular.

2. In cases where international treaties or agreements do not specify the application of procedures for selecting contractors, the establishment, approval, review, and approval of the plan for selecting contractors shall be carried out in accordance with this Circular.

3. For tenders implemented before the project approval decision when applying this Circular, the following modifications need to be made:

a) Where the investor has been identified, replace the term "investor" with "Unit under the investor", replace "person with authority" with "head of the investor", and replace the Decision approving the project with the corresponding Decision of the head of the investor;

b) Where the investor has not yet been identified, replace the term "investor" with "Unit assigned the task of preparing the project", replace "person with authority" with "head of the unit assigned the task of preparing the project", and replace the Decision approving the project with the corresponding Decision of the head of the unit assigned the task of preparing the project.

4. For tenders for procurement using state capital for maintaining regular operations as stipulated at point d, Clause 1, Article 1 of Law on Bidding No. 43/2013/QH13, when establishing, approving, reviewing, and approving the plan for selecting contractors, the contents prescribed in this Circular must be applied, except for the contents already specified in the Circular on the use of state capital for maintaining regular operations issued by the Ministry of Finance. When applying this Circular, replace the term "investor" with "inviting party", and "project" with "procurement budget".

Article 4. Documents for Approval of the Plan for Selecting Contractors

1. The principle of establishing the plan for selecting contractors shall be implemented according to the provisions of Article 33 of Law on Bidding No. 43/2013/QH13.

2. The basis for establishing the plan for selecting contractors shall be implemented according to the provisions of Article 34 of Law on Bidding No. 43/2013/QH13.

3. The document for approval of the plan for selecting contractors shall be established according to Model No. 1 attached to this Circular, including the following contents:

a) Part of work already completed includes content related to project preparation, tenders implemented previously with corresponding values, and legal bases for implementation;

b) Part of work that cannot apply any of the forms of selecting contractors includes: activities of the project management board, organization of compensation and land clearance, payment of interest on loans; works conducted by the investor itself including preparation, review of tender documents, prequalification documents, bidding documents, request for proposal documents; evaluation of tender interest, prequalification submissions, bidding submissions, proposal submissions; review of contractor selection results, and other works that cannot apply forms of selecting contractors with corresponding values;

c) Part of work included in the plan for selecting contractors must clearly record the number of tenders and the content of each tender, including the provisions set forth in Article 5 of this Circular and explanations for those provisions. In this part, the basis for dividing the project into tenders must be clearly stated. Strictly prohibit dividing the project into tenders contrary to the provisions of Law on Bidding No. 43/2013/QH13 with the aim of designating contractors or limiting the participation of contractors. For tenders applying open bidding and lump-sum contracts, there is no need to explain the reasons for application;

d) Part of work that does not meet the conditions for establishing the plan for selecting contractors (if any): if at the time of establishing the plan for selecting contractors, the project has parts of work that do not meet the conditions for establishing the plan for selecting contractors, then the content and value of these parts of work must be clearly stated;

đ) Part summarizing the total value of the works specified in points a, b, c, and d of this Clause. The total value of this part must not exceed the approved total investment cost of the project;

e) Recommendations.

Article 5. Scope of Work under the Procurement Plan

The scope of work under the procurement plan includes the content of the work and corresponding values forming tender packages, wherein each tender package includes the contents prescribed in Article 35 of the Law on Bidding No. 43/2013/QH13, specifically as follows:

1. Name of Tender Package:

The name of the tender package must reflect its nature (construction, procurement of goods, consulting services, non-consulting services, mixed), content, and scope of work consistent with the content stated in the project approval decision. In cases where the tender package is divided into several separate parts, the name of each part must reflect the basic content of that part.

2. Value of Tender Package:

The value of the tender package is determined based on the total investment amount of the project. If the budget estimate has been approved before preparing the procurement plan, the estimate will be used to establish the tender package value. The tender package value must accurately cover all costs for implementing the tender package, including contingency costs (costs for price escalation, cost increases due to additional volume, and costs for provisional sums if applicable), fees, charges, and taxes. For tender packages with short contract implementation periods and no risk of price escalation, the contingency costs are calculated as zero. Contingency costs are determined by the project owner according to the nature of each tender package but must not exceed the maximum limit set by specialized laws. The tender package value must be updated within 28 days prior to the bid opening date if necessary.

- For tender packages providing consulting services for preliminary feasibility studies, feasibility studies, the tender package value is determined based on average prices from statistics of completed projects during a specified period; estimated total investment based on unit investment rates; preliminary total investment estimates.

- In cases where the tender package consists of several separate parts, the estimated value of each part must be clearly stated.

3. For each tender package, the source of funds or funding arrangement method and payment time for the contractor must be clearly stated; in cases using ODA funds or preferential loans, the name of the financier and the structure of the funding sources, including grant funds and domestic counterpart funds, must be clearly recorded.

4. Method of Selecting Contractors:

For each tender package, the method of selecting contractors must be clearly stated; whether domestic or international contractors are selected, whether a shortlist procedure is applied or not, and whether online selection is conducted based on compliance with bidding laws. In cases applying open tendering, there is no need to explain the reasons for application; in cases applying international tendering, the reasons for applying international tendering must be explained. Specifically as follows:

a) Open tendering is applied to tender packages within the scope regulated by the Law on Bidding No. 43/2013/QH13, except for the cases stipulated in Points b, c, d, đ, e, g, and h of this Clause.

b) Restricted tendering is applied in cases where the tender package has high technical requirements or technical characteristics that only a few contractors can meet.

c) Direct award is applied in cases prescribed in Clause 1 of Article 22 of the Law on Bidding No. 43/2013/QH13 and Article 54 of Decree No. 63/2014/NĐ-CP; meeting the conditions stipulated in Clause 2 of Article 22 of the Law on Bidding No. 43/2013/QH13.

d) Competitive bidding is applied as prescribed in Article 23 of the Law on Bidding No. 43/2013/QH13 and Article 57 of Decree No. 63/2014/NĐ-CP.

đ) Direct purchase is applied as prescribed in Article 24 of the Law on Bidding No. 43/2013/QH13. When applying the direct purchase method, the project owner must explain the suitability more than when applying other contractor selection methods.

e) Self-execution is applied as prescribed in Article 25 of the Law on Bidding No. 43/2013/QH13. When applying the self-execution method, the project owner must explain the suitability more than when applying other contractor selection methods.

g) Contractor selection in special cases is applied when the tender package encounters unique and specific conditions that cannot apply the contractor selection methods prescribed in Points a, b, c, d, đ, and e of this Clause. When applying the special case contractor selection method, the person authorized to approve the procurement plan must do so after obtaining the Prime Minister's decision on the special case contractor selection method as prescribed in Article 26 of the Law on Bidding No. 43/2013/QH13.

h) Community participation is applied as prescribed in Article 27 of the Law on Bidding No. 43/2013/QH13.

It is strictly prohibited to apply a contractor selection method that is not open tendering without meeting the conditions stipulated by the Law on Bidding No. 43/2013/QH13.

5. Method of Selecting Contractors:

a) One-stage one-envelope method is applied in the following cases:

- Open tendering and restricted tendering for tender packages providing non-consulting services; small-scale tender packages for procurement of goods, construction, and mixed works; in necessary cases, the "one-stage two-envelope" method may be applied.

- Competitive bidding through standard and simplified procedures for tender packages providing non-consulting services, procurement of goods, and construction.

- Direct award for tender packages providing consulting services, non-consulting services, procurement of goods, construction, and mixed works; in cases where the tender package is applied through a simplified direct award procedure, this content does not need to be recorded.

- Direct purchase for tender packages for procurement of goods.

b) One-stage two-envelope method is applied in cases of open tendering and restricted tendering for tender packages providing consulting services, non-consulting services, procurement of goods, construction, and mixed works.

c) Two-stage one-envelope method is applied in cases of open tendering and restricted tendering for large and complex tender packages for procurement of goods, construction, and mixed works.

d) Two-stage two-envelope method is applied in cases of open tendering and restricted tendering for tender packages for procurement of goods, construction, and mixed works with new technology, complexity, and special characteristics.

6. Time to Start Organizing Contractor Selection:

The time for organizing the selection of contractors starts from the issuance of the tender documents, request documents. In the case of open bidding with the application of the shortlist procedure, the time for organizing the selection of contractors starts from the issuance of the notice of interest documents, prequalification documents.

7. Types of contracts:

For each specific tender package, based on the scale and nature of the tender package, the investor shall specify the type of contract to be applied appropriately as the basis for preparing the prequalification documents, notice of interest documents, tender documents, request documents; signing contracts. A tender package may be implemented under one or more contracts; within a contract, one or more types of contracts specified in this clause may be applied. In cases where multiple types of contracts are applied, it must clearly define the type of contract corresponding to each specific work content. In cases where the tender package applies a lump-sum contract, the investor does not need to explain the reasons for its application in the submission report.

a) Lump-sum contract is the basic type of contract. For tender packages providing consulting services, simple non-consulting services; construction and mixed tender packages with small scale must apply a lump-sum contract.

For tender packages purchasing goods, the main type of contract applied is the lump-sum contract.

b) Fixed unit price contract is applied to tender packages whose unit prices do not change throughout the contract period for all work contents of the tender package.

c) Adjustable unit price contract is applied to tender packages that do not have sufficient conditions to accurately determine quantities or volumes and unit prices may fluctuate during the contract implementation period.

In cases where goods have special characteristics, complexity, large scale, and the contract implementation period exceeds 18 months, an adjustable unit price contract may be applied to tender packages purchasing goods.

d) Time-based contract is applied to tender packages providing consulting services.

8. Contract implementation period:

The contract implementation period is calculated from the date the contract becomes effective until the parties complete their obligations as stipulated in the contract, excluding the warranty period (if applicable). The contract implementation period should be consistent with the project's progress schedule. In cases where a tender package includes several separate parts, the contract implementation period for each part should be specifically defined.

Article 6. Review and Audit of Tender Selection Plan

1. The investor submits the tender selection plan to the authorized person for review and approval.

2. The authorized person assigns an auditing organization to conduct the audit of the tender selection plan.

3. Auditing the tender selection plan involves checking, evaluating, and issuing comments based on the provisions of the law on bidding and related laws regarding the following contents:

a) Dividing the project into tender packages:

The division of the project into tender packages is based on technical characteristics, implementation sequence, project integration, and reasonable scale of the tender packages.

b) Legal basis for establishing the tender selection plan:

Regarding the legal basis for establishing the tender selection plan and necessary considerations (if any).

c) Contents of the submitted tender selection plan:

- Regarding the contents stipulated in Clause 3, Article 4 of this Circular and compliance or conformity with the bidding law regulations, other relevant laws, project requirements, and other necessary considerations (if any) concerning the work included in the tender selection plan as specified in Article 5 of this Circular;

- The appropriateness of the total value of completed works, works that cannot be selected through any form of tender, works included in the tender selection plan, and works that do not meet the conditions for establishing the tender selection plan (if any) compared to the approved total investment of the project.

d) Supervision and monitoring of bidding activities:

If there is a need for supervision and monitoring of bidding activities, propose that the authorized person appoint individuals or units specified in Clause 2, Article 7 of this Circular to participate in supervising and monitoring bidding activities.

4. The auditing organization provides general comments on the tender selection plan and agrees or disagrees with the investor's proposal for the tender selection plan. If they agree, they propose that the authorized person approve the tender selection plan; if they disagree, they must provide specific reasons and propose solutions for the authorized person to consider and decide.

5. The organization entrusted with auditing the tender selection plan prepares an audit report according to Form No. 2 attached to this Circular to submit to the authorized person for approval.

6. Individuals participating in the auditing organization must have the appropriate qualifications, experience, language skills, and training certificates in bidding.

7. The maximum audit period is 20 days from the date the auditing organization receives all submitted documents to the date the audit report is sent to the authorized person.

8. For tender packages falling under the direct award provision specified in Point a, Clause 1, Article 22 of Law No. 43/2013/QH13 on Bidding, except for tender packages requiring confidentiality, after the investor or the directly responsible management agency determines and assigns the contractor with the required capacity and experience to immediately undertake the tender package, the investor must complete the procedures to submit the tender selection plan for approval by the authorized person within seven working days from the date of assignment; in this case, it is not mandatory to conduct an audit of the tender selection plan.

Article 7. Approval of the tender selection plan

1. Based on the audit report, the authorized person shall approve the tender selection plan in writing to serve as the basis for organizing the selection of contractors, after the project has been approved or simultaneously with the decision approving the project if the conditions are met.

The decision to approve the tender selection plan shall be prepared according to Model No. 3 attached to this Circular.

2. Supervision and monitoring of tender activities:

a) In cases deemed necessary based on the proposal of the auditing organization, the authorized person decides on the supervision and monitoring of tender activities, particularly for project sponsors often subject to contractor inquiries and complaints; for tenders using direct award procedures; for tenders with high value, special characteristics, and high technical requirements. If there is a requirement for supervision and monitoring of tender activities, such requirements must be clearly specified in the work items section of the approved tender selection plan, including specific tenders requiring supervision and monitoring and the name of the individual or unit responsible for such supervision and monitoring.

b) The authorized person shall appoint individuals or units with management functions over tender activities to participate in supervising and monitoring the implementation by the project sponsor during the tender selection process to ensure compliance with the legal regulations on tendering.

3. The maximum time for approving the tender selection plan is five working days from the date of receipt of the audit report from the auditing organization.

Article 8. Publication of the Tender Selection Plan

1. The tender inviter is responsible for self-publishing the approved tender selection plan on the national bidding network system within seven working days from the date the approval document for the tender selection plan is issued. In cases where the project sponsor has not yet been established or has not selected a tender inviter, the project sponsor must publish the plan according to the regulations.

2. For projects and tenders included in the list of state secrets, information disclosure shall be carried out in accordance with the legal regulations on ensuring state secrecy.

Article 9. Adjustments and Supplements to the Tender Selection Plan

1. In cases where it is necessary to adjust certain contents of the approved tender selection plan, only the adjustment content needs to be established, submitted for approval, audited, and approved, without having to re-establish, submit for approval, audit, and approve other previously approved contents. The adjusted tender selection plan must be published before the tender closing date, except in cases stipulated in Clause 2 and Clause 8 of Article 117 of Decree No. 63/2014/NĐ-CP.

2. For work items that have not yet met the conditions to establish a tender selection plan, when the conditions are met to establish the plan, only the establishment, submission for approval, audit, and approval of these work items need to be conducted, without having to re-establish, submit for approval, audit, and approve other previously approved work items.

Article 10. Transitional Provisions

1. For tender selection plans approved before the effective date of this Circular, they shall be implemented according to the Decision approving the tender selection plan. From the effective date of this Circular, if adjustments or supplements to the content of the previously approved tender selection plan are required, the establishment, submission for approval, audit, and approval of the adjusted and supplemented tender selection plan shall be carried out in accordance with the provisions of this Circular.

2. For tender selection plans currently being established, submitted for approval, and audited but not yet approved by the effective date of this Circular, the establishment, submission for approval, audit, and approval shall be carried out in accordance with the provisions of this Circular.

Article 11. Implementation Provisions

1. This Circular takes effect from December 10, 2015. This Circular replaces Circular No. 02/2009/TT-BKH dated February 17, 2009, of the Ministry of Planning and Investment on guidelines for establishing tender plans.

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