Circular No. 12/2022/TT-BKHĐT provides detailed regulations on preparing tender documents for procurement of goods under the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), the Free Trade Agreement between the Socialist Republic of Vietnam and the European Union (EVFTA), and the Free Trade Agreement between Vietnam and the United Kingdom and Northern Ireland (UKVFTA).

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 (CPTPP)
and the Free Trade Agreement between Vietnam and the United Kingdom and Northern Ireland
, THE FREE TRADE AGREEMENT BETWEEN VIETNAM AND THE UNITED KINGDOM AND IRELAND
Pursuant to 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;

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

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;

The Minister of Planning and Investment issues this Circular detailing the preparation of tender documents for procurement of goods for tenders within the scope of application of 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

This Circular details the preparation of tender documents for procurement of goods for tenders within the scope of application of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (hereinafter referred to as the CPTPP), the Free Trade Agreement between the Socialist Republic of Vietnam and the European Union (hereinafter referred to as the EVFTA), and the Free Trade Agreement between Vietnam and the United Kingdom and Northern Ireland (hereinafter referred to as the UKVFTA) conducted through open tendering with one-stage one-envelope or two-stage two-envelope procedures.

Article 1. Scope of Regulation

This Circular applies to organizations and individuals participating in or related to the selection of contractors for tenders for the procurement of goods within the scope of application as stipulated in Article 1 of this Circular.

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.

1. The preparation, review, and approval of tender documents for tenders for the procurement of goods must meet the following requirements:

Article 4. Preparation of Tender Documents

b) Based on the actual needs for using the goods, technical requirements must be set forth to ensure functionality, suitability with actual needs, and market conditions;

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;

c) No conditions shall be imposed that limit the participation of contractors or create advantages for one or several contractors causing unequal competition (such as specifying brand names, origins of goods, including mentioning specific countries, groups of countries, regions leading to discrimination, except in cases of intra-bloc tendering as provided for in Article 15 of Decree No. 95/2020/NĐ-CP); nor shall there be requirements that contractors have previously signed and implemented one or more contracts with procurement agencies of specific countries or regions or that contractors must have experience providing goods or services in the territory of such countries or regions as criteria for disqualification. In cases where detailed descriptions of goods according to technical characteristics, technological design, technological standards cannot be provided, the brand name or catalog of a specific product can be mentioned for reference and illustration of technical requirements, but it must be accompanied by the phrase "or equivalent," and the technical characteristics, usage features, technological standards, and other contents (if any) of the equivalent goods must be clearly defined without specifying equivalence regarding origin;

d) If modifications are made to the provisions stated in the Tender Document Model, the organizations or individuals responsible for preparing, reviewing, and approving the tender documents must ensure that these modifications are more appropriate and stringent than those specified in the Tender Document Model and not contrary to the provisions of the CPTPP, EVFTA, and UKVFTA. In the proposal for approval of the tender documents, the modified contents and reasons for modification must be clearly stated for the investor's consideration and decision.

2. Sales Permit

a) In cases where the goods of the tender are common, widely available on the market, standardized, and covered by manufacturer warranties, the tender documents shall not require contractors to submit sales permits from manufacturers or partnership certificates or other documents of equivalent value;

b) In cases where the goods of the tender are special and complex requiring the responsibility of the manufacturer for post-sales services such as warranty, maintenance, repair, provision of spare parts, replacement materials, technical support services, and other related services, the tender documents may require participating contractors to provide sales permits from manufacturers. If the tender documents specify particular requirements for sales permits from manufacturers or technical support and warranty commitments from manufacturers or other documents of equivalent value, contractors only need to present one of these documents before signing the contract: sales permit from the manufacturer or authorized distributor, partnership certificate, technical support and warranty commitment from the manufacturer, or other documents of equivalent value.

b) In cases where the goods of the tender are specialized and complex products that require the manufacturer's responsibility for providing post-sale services such as warranty, maintenance, repair, provision of spare parts, replacement materials, technical support services, and other related services, the tender documentation may require bidders to provide the manufacturer’s sales permit. If the tender documentation specifically requires the manufacturer’s sales permit or a technical support and warranty commitment letter from the manufacturer or other equivalent documents, the bidder only needs to present one of the following documents before signing the contract: the manufacturer’s sales permit, the sales permit of an authorized distributor, a partnership certification, a technical support and warranty commitment letter from the manufacturer, or other equivalent documents.

c) The bidder's failure to attach any of these documents shall not be grounds for disqualification. The bidder may still be considered, evaluated, and awarded the contract. In case of award, the bidder must present one of these documents before signing the contract.

3. Sample goods The tender document shall not require sample goods. If it is necessary to request sample goods for technical evaluation, the investor must submit this request to the competent authority for review and decision during the approval process of the tender document. The submission must clearly state the reasons for requesting sample goods and provide detailed criteria for evaluating the technical aspects of the sample goods. The investor and the tenderer must ensure that the requirement for providing sample goods does not increase the cost of the tender package, limit the participation of bidders, or create an unfair competitive advantage for one or several bidders. If the tender document requires the provision of sample goods, the bidder may submit additional samples within five working days after the tender closing date.

4. Requirements for key personnel

a) For the portion of work involving the supply of goods, the tender document shall not require the mobilization of key personnel;

b) For commonly available goods on the market that do not require high-level personnel to perform related services, there shall be no requirement for key personnel;

c) In cases where related services have special and complex factors necessitating personnel with high qualifications, knowledge, and extensive experience, the tender document may require the mobilization of key personnel to undertake such special and complex tasks. If key personnel mobilization is required, the submission for approval of the tender document must clearly state the reasons for the investor to consider and decide. The investor and the tenderer must ensure that the requirement for key personnel mobilization does not limit the participation of bidders or create an unfair competitive advantage for one or several bidders;

d) For tender packages specified in points a, b, and c of this clause, if the key personnel declared by the bidder in the bid document do not meet the requirements of the tender document, the tenderer may allow the bidder to clarify, change, or supplement the key personnel to meet the requirements of the tender document within a suitable period. For each non-compliant personnel, the bidder may only replace once. If the bidder cannot provide replacement personnel meeting the requirements of the tender document, the bid document will be disqualified;

đ) In case of winning the bid and signing the contract, the bidder has the obligation to mobilize personnel as initially proposed or changed according to the provisions of point d of this clause. If the mobilization of personnel is not possible, the bidder will be penalized under the contract and their credibility will be assessed when participating in other tender packages;

e) In all cases, if the bidder declares untruthful personnel information, they shall not be allowed to replace personnel according to the provisions of point c of this clause; the bid document of the bidder will be disqualified and the bidder will be deemed to have engaged in fraud as stipulated in Clause 4 of Article 89 of the Bidding Law and will be handled according to the provisions of Clause 1 of Article 122 of Decree No. 63/2014/NĐ-CP.

5. Provisions on commitments, preliminary contracts In cases where the tender document requires commitments or preliminary contracts for warranty, maintenance, repair, and service, if the bid document does not attach these documents, the tenderer shall request the bidder to clarify the bid document and supplement the documents within a suitable period to serve as a basis for evaluating the bid document.

6. Contracts

a) The main type of contract applicable to procurement tender packages is the lump-sum contract. In cases where goods have special and complex characteristics, large scale, and a high likelihood of price fluctuations, the adjustable unit price contract may be applied. When applying the adjustable unit price contract, the tender document must clearly specify the price adjustment formula; during the contract execution, if there is a change in the unit price and a need to adjust the contract price, the bidder must prove the factors leading to the change in the unit price;

b) The tender document must include a Contract Template and detail the terms and clauses of the contract for bidders to base their bids on and for the parties to base their negotiation, completion, and signing of the contract. The contract includes General Conditions, Specific Conditions, and Contract Forms. Depending on the scale and nature of each tender package, the investor decides to modify and supplement accordingly;

c) The unilateral termination of the contract mentioned in Section 29.3 of the General Conditions of the Contract in the Tender Document Template issued together with this Circular can only be implemented upon permission from the competent authority with reasonable cause;

d) The contract signed between the investor and the bidder must follow the Contract Template, the contract conditions specified in the tender document, and any amendments and supplements proposed by the bidder and approved by the investor during the negotiation and completion of the contract but must ensure compliance with the bidding laws, the CPTPP Agreement, the EVFTA Agreement, the UKVFTA Agreement, and other relevant legal provisions.

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 August 25, 2022.

2. From the date this Circular takes effect, Circular No. 09/2020/TT-BKHĐT dated November 27, 2020, issued by the Minister of Planning and Investment detailing the preparation of tender documents for procurement of goods subject to the CPTPP Agreement shall cease to be effective.

3. For tender packages subject to the CPTPP Agreement, the EVFTA Agreement, and the UKVFTA Agreement that were opened before the date this Circular takes effect, the evaluation of bid documents and the awarding of the contract shall be carried out according to the provisions in the tender document but must ensure compliance with the CPTPP Agreement, the EVFTA Agreement, and the UKVFTA Agreement.

4. For tender packages within the scope of application of the CPTPP Agreement, the EVFTA Agreement, and the UKVFTA Agreement that have been approved and issued for tender documentation prior to the effective date of this Circular but have a closing date after the effective date of this Circular and before the closing date, if there are contents that are inconsistent or contrary to the guidance provided in the tender documentation templates issued together with this Circular, such contents must be amended accordingly. In case of amending the tender documentation after issuance, the project owner or the tender inviter must provide bidders with a reasonable period of time to prepare their bidding documents adequately.

5. For tender packages within the scope of application of the CPTPP Agreement, the EVFTA Agreement, and the UKVFTA Agreement that have had their tender documentation approved prior to the effective date of this Circular but have not yet been issued, they must be amended according to the tender documentation templates issued together with this Circular.

6. In cases where legal normative documents referred to in this Circular are amended or supplemented, the amended or supplemented documents shall apply.

7. Organizations specified in the annex accompanying Decree No. 09/2022/NĐ-CP and related organizations and individuals are responsible for implementing this Circular. During implementation, any difficulties should be reported to the Ministry of Planning and Investment for timely guidance./.