Circular No. 15/2022/TT-BKHĐT provides detailed regulations on preparing tender documents for construction works under the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), the Vietnam-EU Free Trade Agreement (EVFTA), and the Vietnam-UK and Northern Ireland Free Trade Agreement (UKVFTA).

CIRCULAR

Detailed regulations on preparing tender documents for construction works for packages subject to

the Comprehensive and Progressive Agreement for Trans-Pacific Partnership,

the Free Trade Agreement between the Socialist Republic of Vietnam and the European Union,

the Free Trade Agreement between Vietnam and the United Kingdom and Northern Ireland

Pursuant to 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; 

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 procurement under the Comprehensive and Progressive Agreement for Trans-Pacific Partnership to guide the implementation of 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, 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 construction works for packages subject to the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, the Free Trade Agreement between the Socialist Republic of Vietnam and the European Union, 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 construction works for packages subject to 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), the Free Trade Agreement between Vietnam and the United Kingdom and Northern Ireland (hereinafter referred to as the UKVFTA) conducted through open tendering in one-stage one-envelope or 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 construction work packages subject to the provisions set forth in Article 1 of this Circular.

Article 2. Applicability

Article 3. Application of Tender Document Models

a) Model 01 of the Tender Document for Construction Works shall be applied to packages tendered through open tendering in one-stage one-envelope procedure;

1. Áp dụng Mẫu hồ sơ mời thầu:

b) Model 02 of the Tender Document for Construction Works shall be applied to packages tendered through open tendering in one-stage two-envelope procedure.

2. For construction work packages applying the direct award method, the preparation of request documents may apply the provisions of this Circular based on ensuring compliance with the provisions of the CPTPP, EVFTA, and UKVFTA.

a) Based on the scale and nature of each specific package, the tenderer shall propose appropriate requirements based on ensuring principles of competition, fairness, transparency, and economic efficiency. The tender document must include all necessary information to serve as a basis for contractors to prepare their bidding documents. In cases where the tenderer publishes incomplete or unclear tender documents, causing difficulties for contractors in preparing their bidding documents, such tender documents are invalid; the tenderer must amend and supplement the tender documents appropriately and republish them.

Article 4. Preparation of Tender Documents

1. Preparation, review, and approval of tender documents:

b) The tenderer shall not impose conditions that limit the participation of contractors or create advantages for one or several contractors, thereby causing unfair competition; nor shall it require contractors to have previously signed and implemented one or more contracts with procurement agencies of specific countries or regions or to have experience providing services within the territory of those countries or regions as criteria for disqualifying contractors.

c) In cases where provisions in the Tender Document Model are amended, the organizations and individuals responsible for preparing, reviewing, and approving the tender documents must ensure that such amendments are stricter than the provisions in the Tender Document Model and do not contravene the provisions of the CPTPP, EVFTA, and UKVFTA. In the proposal requesting approval of the tender documents, the contents of the amendments compared to the provisions in the Tender Document Model and the reasons for the amendments must be clearly stated for the investor's consideration and decision.

2. Provisions on Key Personnel and Main Construction Equipment

a) Requirements for key personnel: - Based on the scale, nature of the package, and construction laws, the tenderer shall propose requirements for key personnel in the tender document accordingly. The tender document shall not require key personnel for positions for which construction laws do not stipulate standards for such titles or for ordinary technical workers and unskilled laborers; - In cases where the key personnel declared by the contractor in the bidding document do not meet the requirements of the tender document, the tenderer shall allow the contractor to clarify, change, or supplement key personnel to meet the requirements of the tender document within a reasonable period. For each non-compliant personnel, the contractor may only replace once. If the contractor does not have replacement personnel meeting the requirements of the tender document, the contractor will be disqualified.

b) Requirements for main construction equipment: - Based on the scale, nature of the package, the tenderer shall propose requirements for main construction equipment accordingly (quantity, type, function, capacity); - In cases where the equipment declared by the contractor in the bidding document does not meet the requirements of the tender document, the tenderer shall allow the contractor to clarify, change, or supplement equipment to meet the requirements of the tender document within a reasonable period. For each non-compliant equipment, the contractor may only replace once. If the contractor does not have replacement equipment meeting the requirements of the tender document, the contractor will be disqualified.

b) Requirements for main construction equipment: - Based on the scale and nature of the tender package, the tenderer shall set requirements for main construction equipment that are appropriate (quantity, type, features, capacity); - In cases where the equipment declared by the bidder in the tender submission does not meet the requirements of the tender invitation, the tenderer shall allow the bidder to clarify, change, or supplement the equipment to meet the requirements of the tender invitation within a suitable period. For each non-compliant piece of equipment, the bidder may only replace it once. If the bidder does not have replacement equipment that meets the requirements of the tender invitation, the bidder will be disqualified.

c) In case of winning the bid and signing the contract, the contractor shall be obligated to mobilize personnel and equipment as initially proposed or changed according to points a and b of this clause. If the contractor cannot mobilize the required personnel and equipment, the contractor will be penalized under the contract and their credibility will be assessed when participating in other tender packages.

d) In all cases, if the contractor declares untruthfully the personnel and equipment, the contractor shall not be allowed to substitute with other personnel and equipment as stipulated in points a and b of this clause, the bidding dossier of the contractor shall be disqualified, and the contractor will be deemed to have committed fraud according to Clause 4, Article 89 of the Bidding Law and shall be handled according to Clause 1, Article 122 of Decree No. 63/2014/NĐ-CP dated June 26, 2014 detailing certain provisions of the Bidding Law on selecting contractors.

3. Provisions on commitments and framework contracts In case the tender invitation requires commitments or framework contracts for leasing equipment, providing main materials, warranty, maintenance, repair, and service, and the bidding dossier does not attach these documents, the tenderer shall request the contractor to clarify the bidding dossier and supplement the documents within a reasonable time frame for the purpose of evaluating the bidding dossier.

4. Contracts

a) The tender invitation must include the Contract Template and detailed provisions of the contract clauses for the contractor to base their bid on and for both 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 project owner decides to amend and supplement accordingly. If necessary, the project owner may apply the construction contract templates issued by the International Federation of Consulting Engineers (FIDIC), but they must not contravene domestic laws.

b) The contract signed between the project owner and the contractor must follow the Contract Template, contract conditions specified in the tender invitation, and amendments and supplements proposed by the contractor and approved by the project owner during the negotiation and completion of the contract, ensuring compliance with bidding laws, the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), the Vietnam-EU Free Trade Agreement (EVFTA), the United Kingdom-Vietnam Free Trade Agreement (UKVFTA), and other relevant laws.

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. For tender packages within the scope of application of the CPTPP, EVFTA, and UKVFTA that were opened before the effective date of this Circular, the evaluation of bidding dossiers and the approval of bids shall be carried out according to the provisions stated in the tender invitation, but must ensure compliance with the CPTPP, EVFTA, and UKVFTA.

3. For tender packages within the scope of application of the CPTPP, EVFTA, and UKVFTA that were approved and tender documents were issued 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 templates issued along with this Circular, they must be amended accordingly. If the tender invitation is amended after issuance, the project owner and tenderer must provide the contractor with a reasonable period to prepare the bidding dossier.

4. For tender packages within the scope of application of the CPTPP, EVFTA, and UKVFTA that were approved before the effective date of this Circular but have not yet issued the tender invitation, they must be amended according to the tender invitation templates issued along with this Circular.

5. In case the legal normative documents cited in this Circular are amended or supplemented, the amended or supplemented documents shall be applied.

6. 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, if there are difficulties, please send comments to the Ministry of Planning and Investment for timely guidance./.