Circular No. 11/2015/TT-BKHĐT detailing the preparation of tender request documents for direct award and competitive negotiation procurement

CIRCULAR

Detailed regulations on the preparation of tender request files for direct award and competitive bidding

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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 issues this Circular detailing the procedures for preparing tender request files for direct award and competitive bidding.

Article 1. Scope of Regulation

This Circular details the preparation of tender request files for tenders falling within the scope of Article 1 of the Law on Bidding No. 43/2013/QH13 as follows:

1. Template for the tender request file applicable to domestic direct award construction works tenders conducted through the standard procedure (Template No. 01 - Request for Proposal for Direct Award Construction Works);

2. Template for the tender request file applicable to domestic direct award goods procurement tenders conducted through the standard procedure (Template No. 02 - Request for Proposal for Direct Award Goods Procurement);

3. Template for the tender request file applicable to domestic competitive bidding construction works tenders conducted through the standard procedure (Template No. 03 - Request for Proposal for Domestic Competitive Bidding Construction Works);

4. Template for the tender request file applicable to domestic competitive bidding goods procurement tenders conducted through the standard procedure (Template No. 04 - Request for Proposal for Domestic Competitive Bidding Goods Procurement);

5. Template for the request for quotation applicable to domestic competitive bidding construction works and goods procurement tenders conducted through the expedited procedure (Template No. 05 - Request for Quotation);

6. Draft contract template applicable to construction works and goods procurement tenders within the direct award threshold (Template No. 06 - Draft Contract for Expedited Direct Award).

Article 2. Applicability

This Circular applies to organizations and individuals participating in or related to the selection of contractors for tenders as specified in Article 1 of this Circular.

Article 3. Application of Direct Award, Competitive Bidding, and Tender Request Templates, Request for Quotation, and Draft Contract Templates

1. The standard procedure direct award method shall be applied to tenders falling under the direct award cases stipulated in points b, c, d, đ of Clause 1, Article 22 of the Law on Bidding No. 43/2013/QH13, and tenders that must be implemented to ensure state secrecy as stipulated in point a of Clause 1, Article 22 of the Law on Bidding No. 43/2013/QH13, while also meeting the conditions set forth in Clause 2, Article 22 of the Law on Bidding No. 43/2013/QH13.

The expedited procedure direct award method shall be applied to tenders stipulated in point a of Clause 1, Article 22 of the Law on Bidding No. 43/2013/QH13 (excluding tenders that must be implemented to ensure state secrecy) and tenders with a tender value within the direct award threshold as stipulated in Article 54 of Decree No. 63/2014/NĐ-CP. For tenders with a tender value within the direct award threshold, organizations and individuals shall apply Template No. 06 issued together with this Circular; for tenders stipulated in point a of Clause 1, Article 22 of the Law on Bidding No. 43/2013/QH13 but with a tender value not within the direct award threshold, they shall apply the corresponding contract templates from Template Nos. 01 and 02 issued together with this Circular.

2. The standard procedure competitive bidding method shall be applied to tenders stipulated in Article 23 of the Law on Bidding No. 43/2013/QH13 and Clause 1, Article 57 of Decree No. 63/2014/NĐ-CP.

The expedited procedure competitive bidding method shall be applied to tenders stipulated in Article 23 of the Law on Bidding No. 43/2013/QH13 and Clause 2, Article 57 of Decree No. 63/2014/NĐ-CP.

3. When preparing, reviewing, and approving tender request files for domestic direct award construction works and goods procurement tenders conducted through the standard procedure, organizations and individuals must apply the corresponding Template No. 01 or Template No. 02 issued together with this Circular and base their requirements on the specific scale and nature of each tender to ensure transparency, fairness, and economic efficiency.

When preparing, reviewing, and approving tender request files for competitive bidding or request for quotations, organizations and individuals must apply the corresponding Template No. 03, Template No. 04, or Template No. 05 issued together with this Circular and base their requirements on the specific scale and nature of each tender to ensure competition, fairness, transparency, and economic efficiency; they may not impose conditions that limit contractor participation or create advantages for certain contractors, thereby causing unfair competition.

4. In cases where there are amendments to the provisions in the tender request templates, request for quotation templates, and draft contract templates, the organizations and individuals responsible for preparing, reviewing, and approving these documents must ensure that such amendments are appropriate, scientific, rigorous, and not contrary to the legal provisions on bidding. In the proposal for approval of the tender request file or request for quotation, the amended contents and reasons for the amendments must be clearly stated for the project owner's consideration and decision.

5. For non-advisory service tenders when applying the direct award or competitive bidding methods, the preparation of tender request files, request for quotations, and draft contracts shall be based on the application of the corresponding templates issued together with this Circular.

6. For tenders falling within the scope of Article 1 of this Circular when implementing international direct awards or competitive bidding, the project owner or tenderer shall adjust the provisions regarding language, currency, time, and other relevant matters in accordance with the scale and nature of the tender, in compliance with the Law on Bidding No. 43/2013/QH13 and Decree No. 63/2014/NĐ-CP.

7. For tenders under projects utilizing official development assistance funds or preferential loans arising from international treaties or agreements between Vietnam and the donor, if approved by the donor, the tender request templates, request for quotation templates, and draft contract templates issued together with this Circular shall be applied.

Article 4. Requirements for trademarks and origin of goods

1. For tender packages applying the direct award method, specific trademarks and origins of goods may be mentioned in the request for proposal.

2. For tender packages applying the competitive bidding method, when setting requirements for goods, technical characteristics, production standards, manufacturing standards, and technology must be neutral, not specifying unique technical characteristics or standards that are not essential product features to limit the participation of bidders and create unfair competition.

In cases where it is impossible to describe goods in detail according to technical characteristics, technological design, and technological standards in the request for proposal or request for quotation, it is permissible to mention a specific product's trademark and catalog for reference and illustration of the technical requirements of the goods, but the phrase "or equivalent" must be noted after the trademark and catalog, while clearly defining the technical characteristics, usage features, technological standards, and other contents (if any) of the equivalent goods without specifying equivalence regarding origin. Bidders participating in competitive bidding may offer goods according to the specific trademark mentioned in the request for proposal or request for quotation or another trademark, but they must prove the equivalence or superiority of their offered goods compared to those with the mentioned trademark.

State-owned enterprises that have been assigned by the Ministry of Agriculture and Rural Development to conduct offshore wind power project surveys before the effective date of this Circular shall continue to implement according to the assigned documents; any new matters arising after the effective date of this Circular shall be implemented in accordance with the provisions of this Circular.

1. This Circular takes effect from December 22, 2015. This Circular replaces Circular No. 04/2010/TT-BKH dated February 1, 2010 of the Ministry of Planning and Investment detailing the preparation of request for proposals for direct award construction tenders, and Circular No. 11/2010/TT-BKH dated May 27, 2010 of the Ministry of Planning and Investment detailing competitive bidding procedures.

2. Ministries, ministerial-level agencies, agencies under the Government, central-level agencies, People's Committees at all levels, and related organizations and individuals are responsible for implementing this Circular. During implementation, if there are any difficulties, the relevant ministries, ministerial-level agencies, agencies under the Government, 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.