Circular No. 211/2009/TT-BTC on tendering for purchasing state reserve goods in state reserve management units

CIRCULAR

Regulations on tendering for state-owned reserve goods in state reserve management units

Pursuant to the Law on Bidding No. 61/2005/QH11 dated November 29, 2005 of the National Assembly;

Pursuant to the Law Amending and Supplementing Certain Provisions of Laws Related to Basic Construction Investment No. 38/2009/QH12 dated June 19, 2009 of the National Assembly;

Pursuant to the State Reserve Law No. 17/2004/PL-UBTVQH11 dated April 29, 2004 of the Standing Committee of the National Assembly;

Pursuant to the Price Law No. 40/2002/PL-UBTVQH10 dated April 26, 2002 of the Standing Committee of the National Assembly;

Pursuant to the Decree No. 85/2009/NĐ-CP dated October 15, 2009 of the Government guiding the implementation of the Law on Bidding and the selection of construction contractors under the Construction Law;

Pursuant to the Decree No. 196/2004/NĐ-CP dated December 2, 2004 of the Government detailing the implementation of the State Reserve Law;

Pursuant to the Decree No. 118/2008/NĐ-CP dated November 27, 2008 of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Finance;

The Ministry of Finance stipulates the implementation of tendering for purchasing state-owned reserve goods in state reserve management units as follows:

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation

This Circular specifies the forms of contractor selection, authority, and responsibilities in tendering for purchasing state-owned reserve goods. For the purchase of state-owned food reserves, it shall be carried out according to the decision of the Prime Minister.

Article 2. Applicability

Ministries, sectors managing state-owned reserve goods, units entrusted with the direct management of state-owned reserve goods using state budget funds to purchase state-owned reserve goods in accordance with this Circular and related regulatory legal documents;

Organizations and individuals involved in tendering activities for providing state-owned reserve goods.

Article 3. Project Owner in Purchasing State-Owned Reserve Goods

The project owner in purchasing state-owned reserve goods (hereinafter referred to as the project owner) is the person who owns the capital or acts on behalf of the owner, or the person assigned the task of managing and using state budget capital to purchase state-owned reserve goods. The project owner is determined by the competent authority when assigning the plan for purchasing state-owned reserve goods.

Article 4. Authority in Tendering for Purchasing State-Owned Reserve Goods

Clause 1. Authority to Approve the Tender Plan for Purchasing State-Owned Reserve Goods

The person authorized by law or delegated by the Minister, Head of a ministry equivalent to a ministry, or agency under the Government (hereinafter referred to as the Central Agency Head) assigned by the Government to manage state-owned reserve goods.

Clause 2. Authority to Approve the Tender Documents, Approve the Selection Results, and Handle Situations in Tendering

The project owner approves the tender documents, approves the selection results; handles situations in tendering for purchasing state-owned reserve goods in accordance with Article 70 of Decree No. 85/2009/NĐ-CP dated October 15, 2009 of the Government guiding the implementation of the Law on Bidding and the selection of construction contractors under the Construction Law, and performs other tasks within the responsibility of the project owner.

Article 5. Costs in Tendering

Clause 1. Content of costs in tendering, cost levels, tender document selling prices, and the unit organizing the tender shall implement in accordance with Article 6 of Decree No. 85/2009/NĐ-CP dated October 15, 2009 of the Government guiding the implementation of the Law on Bidding and the selection of construction contractors under the Construction Law.

Clause 2. The source of funds to ensure the use for the tender process of the tenderer shall be taken from the proceeds of selling tender documents. If the income is insufficient to cover expenses, the operating funds of the unit shall be used to make up the difference. Any surplus may be transferred to the next year for continued tendering activities.

Clause 3. The management and use of tender organization costs and evaluation costs shall be implemented in accordance with current laws.

Chapter II

SPECIFIC PROVISIONS

Article 6. Basis for preparing tender plans to purchase state reserve goods

1. The basis for preparing tender plans shall be carried out in accordance with the provisions, specifically as follows:

a) The plan indicators and state budget estimates assigned by competent state agencies to purchase state reserve goods.

b) The decision on assigning tasks to purchase state reserve goods by the competent authority.

c) The list of state reserve goods categories approved by the competent authority.

d) The sources of funds allocated to purchase state reserve goods.

đ) Other relevant legal documents (if any).

2. The tender plan shall be prepared for the entire quantity and volume of state reserve goods purchased in a year or according to each Decision assigning additional tasks to purchase state reserve goods.

3. When preparing the tender plan, the project owner shall prepare it in accordance with the model specified in Part III of Circular No. 02/2009/TT-BKH dated February 17, 2009, issued by the Ministry of Planning and Investment guiding the preparation of tender plans.

4. The tender plan must be approved in writing by the person authorized under Clause 1, Article 4 of this Circular.

Article 7. Content of each tender package in the tender plan to purchase state reserve goods

The division of tender packages for purchasing state reserve goods must be based on technical characteristics, types of goods, import locations, ensuring the consistency and reasonable scale of the tender package; not too small or too large to limit the participation of contractors and must be approved by the authorized person.

Each tender package has only one tender invitation document and is conducted through one tender process. One tender organization can tender for one or more independent tender packages. The content of each tender package in the tender plan includes:

1. Name of the tender package

The name of the tender package reflects the name of the goods, quantity, volume, type of goods, technical characteristics, unit of measurement, warehouse import location. In cases where the tender package consists of several separate parts (several lots) or the import location is at multiple units, the tender plan must specify the name of each part and the name of each importing unit.

In cases of inviting tenders for special or specialized goods (critical, security, defense) that require specifying the type, code, catalog, brand of goods from a specific country, the list must be approved by the authorized person in accordance with the Law.

2. Tender package price

The price of the tender package for purchasing state reserve goods is the value of the tender package determined by the project owner and approved by the authorized person in the tender plan.

The value of the tender package is determined based on the purchase price per unit of measurement of the goods at the seller's storage facility multiplied by the quantity and volume of the goods.

The tender package price serves as the basis for reviewing and approving the tender results.

3. Source of funds: State budget funds

4. Method of selecting contractors and tendering method

Specify the method of selecting contractors as stipulated from Article 18 to Article 24 of the Bidding Law, Clause 4, Article 2 of the Law Amending and Supplementing Certain Provisions of Laws Related to Basic Construction Investment No. 38/2009/QH12 dated June 19, 2009 of the National Assembly; tendering method as stipulated in Article 26 of the Bidding Law.

5. Time for selecting contractors

Specify the time for organizing the selection of contractors to implement the tender package to ensure the progress of purchasing state reserve goods in accordance with the Bidding Law; the time for selecting contractors is calculated from the date of issuance of the tender invitation document or request document to the date of signing the contract. Among which, the following contents are specified:

- Tender announcement period;

- Tender invitation document issuance period;

- Bid submission deadline;

- Bid opening time;

6. Contract form

Lump sum form; the contract price does not change throughout the contract execution period. Payment to the contractor may be made in one or several installments agreed between the project owner and the contractor, but the total amount paid to the contractor must equal the price recorded in the contract when the contractor fulfills all obligations under the contract signed between the project owner and the contractor.

7. Contract implementation period

The contract implementation period is calculated from the date the contract becomes effective; when the project owner receives the performance bond from the contractor; the contract implementation period must be consistent with the progress of implementing the tender package.

Article 8. Principles for Determining the Bid Package Price in the State Reserve Goods Procurement Tender Plan

1. The project owner shall base the determination of the bid package price in the tender plan on the quality of goods purchased for state reserves; the prevailing market prices at the time of purchase for similar goods on the global, regional, and domestic markets, or reference prices from other agencies' procurement of similar goods (if available), or economic and technical standards of the purchased goods (if available), to be reviewed and decided by the authority specified in Clause 1, Article 4 of this Circular.

2. For types of goods that require price appraisal according to government regulations and related legal documents, there must be a written notification of the price appraisal results from the appraisal organization as stipulated by law.

3. The head of the central agency entrusted by the Government to manage state reserves shall base the determination of the bid package price on the budget allocation; the maximum price determined by the Minister of Finance or the opinion of the Ministry of Finance regarding the principles for determining the price (for the Ministry of Defense, Ministry of Public Security, and Ministry of Home Affairs); reference prices of the bid packages established by the project owner when submitting the tender plan for approval; the quality of purchased goods; market prices at the time of purchase; and the appraisal report from the assigned appraisal unit to review and decide on the bid package price when approving the state reserve goods procurement tender plan.

Article 9. Submission for Approval of the State Reserve Goods Procurement Tender Plan

1. Responsibility for Submission

The project owner is responsible for submitting the tender plan to the authority specified in Clause 1, Article 4 of this Circular for review and approval, while simultaneously sending it to the appraisal agency or organization.

2. Documents for Submission

a) The submission document includes the following contents:

- Contents of tasks related to the bid package and legal basis for establishing the tender plan;

- Contents of the tender plan as prescribed in Article 7 of this Circular.

b) Supporting documents with the submission document

- When submitting the tender plan, the project owner must attach copies of the documents serving as the basis for establishing the tender plan as prescribed in Article 6 of this Circular.

Article 10. Approval of the Tender Plan

The authority specified in Clause 1, Article 4 of this Circular shall review and approve the tender plan within ten days from the date of receiving the complete submission documents from the project owner and the appraisal report from the appraisal agency or organization.

Article 11. Direct Award

1. Direct award may be applied in the following cases:

a) Purchasing state reserve goods in cases prescribed in points a to d, Clause 1, Article 20 of the Bidding Law and Clause 4, Article 2 of the Law Amending and Supplementing Certain Provisions of Laws Related to Construction Investment No. 38/2009/QH12 dated June 19, 2009 of the National Assembly; as prescribed in Clause 1 and Clause 2, Article 40 of Decree No. 85/2009/NĐ-CP dated October 15, 2009 of the Government.

b) Purchasing state reserve fuel for national defense, security, and confidential purposes;

c) Purchasing state reserve goods immediately (urgently) to replenish those sold to stabilize the market, meet emergency rescue, relief, aid, and disaster recovery needs;

d) State reserve goods with special characteristics, seasonal requirements, and specific storage conditions including salt, crop seeds, pharmaceuticals, veterinary drugs, and plant protection chemicals;

đ) List of state reserve goods approved by the Prime Minister for direct award;

2. The application of the direct award method must be approved by the authorized person in the tender plan; the bid package price must comply with legal provisions.

For cases of direct award prescribed in points a to đ, Clause 1 of this Article (excluding point a, Clause 1 of Article 20 of the Bidding Law), the project owner must submit to the authority specified in Clause 1, Article 4 of this Circular for review and decision; for the case prescribed in point đ, the direct award must be more effective than bidding.

3. Conditions for Direct Award: When implementing direct award, all conditions prescribed in Clause 3, Article 40 of Decree No. 85/2009/NĐ-CP dated October 15, 2009 of the Government must be met.

4. When implementing direct award, a contractor must be selected who is confirmed to have sufficient capacity and experience to meet the requirements of the bid package and must comply with the provisions of Article 41 of the Direct Award Procedure of Decree No. 85/2009/NĐ-CP dated October 15, 2009 of the Government.

Article 12. Payment and Contract Termination

1. The payment dossier shall be stipulated in the contract and includes:

Depending on the nature of the goods, the payment dossier in the signed contract shall be specified appropriately such as the seller's sales invoice, list of goods, transport documents, insurance certificates, quality inspection certification documents, acceptance records and warehouse receipts of the unit assigned to receive the goods, certificate of origin (for export and import goods), and other relevant documents.

2. The investor must base the payment on the contract price and specific payment terms stated in the contract for payment to the contractor, but must ensure the following conditions:

- Payment shall be made when state reserve goods have been warehoused according to quality standards and progress of warehousing, with complete invoices and documents as prescribed.

- In cases where state reserve goods require importation, payment to the contractor must be consistent with the payment conditions stipulated in the import contract.

3. Contract termination must be completed within 45 days from the date when the investor and the contractor fulfill their obligations under the contract; in case of particularly complex tender packages, the contract termination period may be extended up to 90 days.

Article 13. Tender Inspection

1. Tender inspections shall be conducted regularly according to plans or at random (when there are issues, recommendations, or deemed necessary) based on the decision of the authorized person.

2. The Ministry of Finance (State Reserve General Department) shall take the lead in coordinating with ministries and sectors managing state reserve goods and related units to organize tender inspections for units purchasing state reserve goods within their jurisdiction.

3. The content of tender inspections shall be regulated as stipulated in Clause 3 of Article 74 of Decree No. 85/2009/ND-CP dated October 15, 2009 of the Government.

Chapter III

IMPLEMENTATION

1. The Minister, Heads of Ministries equivalent to ministries, Heads of government agencies, Chairmen of provincial People's Committees under the central government, and related agencies, units, and individuals are responsible for implementing this Circular.

1. Heads of ministries and sectors entrusted by the Government to manage state reserve goods shall, based on the situation and special characteristics of their respective ministries and sectors, be responsible for guiding detailed implementation; directing, inspecting, and supervising subordinate units to implement in accordance with the Bidding Law, Decree No. 85/2009/ND-CP dated October 15, 2009 of the Government, and this Circular.

2. Units and individuals involved in bidding activities for purchasing state reserve goods shall be responsible for implementing this Circular.

Article 15. Effective Date

This Circular shall take effect 45 days from the date of issuance. Any difficulties encountered during implementation shall be reported to the Ministry of Finance for consideration and resolution./.