Circular No. 23/2021/TT-BGTVT guiding the establishment, approval, and publication of the list of projects; methods and standards for evaluating tender documents and bidding to select investors for air transport service infrastructure projects at airports.

CIRCULAR

Guidelines on the establishment, approval, and publication of project lists; methods and standards for evaluating tender documents and bidding to select investors for specialized aviation service works at airports.

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Pursuant to the Civil Aviation Law of Vietnam No. 66/2006/QH11 dated June 29, 2006, and the Law Amending and Supplementing Certain Provisions of the Civil Aviation Law of Vietnam dated November 21, 2014;

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

Pursuant to the Land Law No. 45/2013/QH13 November 29, 2013;

Pursuant to the Investment Law No. 61/2020/QH14 dated December 17, 2020;

Pursuant to Decree No. 12/2017/NĐ-CP dated February 10, 2017 of the Government on the functions, tasks, powers, and organizational structure of the Ministry of Transport;

Pursuant to Decree No. 25/2020/NĐ-CP dated February 28, 2020 of the Government detailing the implementation of certain provisions of the Bidding Law regarding the selection of investors; concerning the selection of investors;

Pursuant to Decree No. 148/2020/NĐ-CP dated December 18, 2020 of the Government amending and supplementing some Decrees detailing the implementation of the Land Law;

Pursuant to Decree No. 05/2021/NĐ-CP dated January 25, 2021 of the Government on the management and operation of civil airports;

Pursuant to Decree No. 31/2021/NĐ-CP dated March 26, 2021 of the Government detailing and guiding the implementation of certain provisions of the Investment Law;

At the proposal of the Director of the Infrastructure Department under the Ministry of Transport and the Director General of the Civil Aviation Administration of Vietnam;

Article 1. Amending and supplementing some articles of Circular No. 21/2023/TT-BTTTT dated December 31, 2023 of the Ministry of Information and Communications on functions and technical features of the Administrative Procedure Handling Information System at the ministerial and provincial levels (hereinafter referred to as Circular No. 21/2023/TT-BTTTT) as follows: The Ministry of Transport issues this Circular providing guidelines on the establishment, approval, and publication of project lists; methods and standards for evaluating tender documents and bidding to select investors for specialized aviation service works at airports. This Circular provides guidelines on the establishment, approval, and publication of project lists; methods and standards for evaluating tender documents and bidding to select investors for specialized aviation service works at airports, including: a) Ground technical service works;

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation

b) Aircraft maintenance and repair works;

c) Air transport equipment maintenance and repair works;

d) Air transport technical works;

e) Air transport catering works;

f) Air transport fuel works;

g) Non-air transport service works.

This Circular does not apply to airports invested in and constructed through public-private partnership models.

This Circular applies to organizations and individuals participating in activities to select investors for specialized aviation service works at airports.

Article 3. Forms of selecting investors

Article 2. Applicability

1. International open bidding shall be applied to projects meeting all of the following conditions:

a) Having a preliminary total cost of implementing the project approved (excluding compensation, support, resettlement costs, and land rental fees) of VND 800 billion or more.

b) Having two or more investors meeting the initial requirements of capacity and experience as stipulated in Point a Clause 1 Article 9 of this Circular, including at least one foreign investor.

c) Not falling under the cases specified in Points a and c Clause 2 of this Article.

2. Domestic open bidding shall be applied in the following cases:

a) Projects belonging to industries or sectors that have not been opened to foreign investors according to investment laws.

b) Projects having two or more investors meeting the initial requirements of capacity and experience, including no foreign investors participating in registration to implement the project or meeting the initial requirements of capacity and experience as stipulated in Point a Clause 1 Article 9 of this Circular.

c) Projects requiring national defense and security guarantees decided by the Prime Minister based on the proposal of competent state agencies and the consensus of the Ministry of National Defense regarding national defense requirements; and the consensus of the Ministry of Public Security regarding security requirements.

b) The project has two or more investors meeting the initial requirements for capacity and experience, including cases where there is no foreign investor participating in registering to implement the project, or meeting the initial requirements for capacity and experience as prescribed in Point a Clause 1 Article 9 of this Circular.

c) The project has requirements for national defense and security as decided by the Prime Minister based on the proposal of the competent state agency and the consensus opinion of the Ministry of National Defense regarding the national defense requirements; and the consensus opinion of the Ministry of Public Security regarding the security requirements.

Article 4. General provisions on bidding to select investors

1. Ensuring competition in bidding: Implemented in accordance with the provisions of Article 2 of Decree No. 25/2020/NĐ-CP dated February 28, 2020 of the Government detailing the implementation of certain articles of the Bidding Law regarding the selection of investors.

2. Publishing bidding information: Implemented in accordance with the provisions of Article 4 of Decree No. 25/2020/NĐ-CP dated February 28, 2020 of the Government detailing the implementation of certain articles of the Bidding Law regarding the selection of investors.

3. Duration for publishing bidding information: Implemented in accordance with the provisions of Article 5 of Decree No. 25/2020/NĐ-CP dated February 28, 2020 of the Government detailing the implementation of certain articles of the Bidding Law regarding the selection of investors.

4. Timeframe during the investor selection process: Implemented in accordance with the provisions of Article 6 of Decree No. 25/2020/NĐ-CP dated February 28, 2020 of the Government detailing the implementation of certain articles of the Bidding Law regarding the selection of investors.

5. Costs in selecting investors: Implemented in accordance with the provisions of Article 7 of Decree No. 25/2020/NĐ-CP dated February 28, 2020 of the Government detailing the implementation of certain articles of the Bidding Law regarding the selection of investors.

6. Archiving bidding information: Implemented in accordance with the provisions of Article 14 of Decree No. 25/2020/NĐ-CP dated February 28, 2020 of the Government detailing the implementation of certain articles of the Bidding Law regarding the selection of investors.

7. Expert team: Implemented in accordance with the provisions of Article 15 of Decree No. 25/2020/NĐ-CP dated February 28, 2020 of the Government detailing the implementation of certain articles of the Bidding Law regarding the selection of investors.

Chapter II

ESTABLISHMENT, APPROVAL AND PUBLICATION OF PROJECT LISTS

Article 5. Basis for compiling the project list

1. Decision of the competent authority approving the master plan for airports.

2. Decision of the Minister of Transport approving the investment development, renovation, and expansion plans for airports.

Article 6. Documents for submitting the project list

1. The Civil Aviation Authority of Vietnam compiles the project list and submits it to the Ministry of Transport for review and approval.

2. The documents for submitting the project list include the following contents:

a) A proposal requesting examination and approval of the project list;

b) The content of the project list includes: project name; investment objectives; scale of investment; preliminary total cost of implementing the project (m₁); capital mobilization plan; investment period and schedule; operation time after completion of the investment work; information on current land use at the project site, anticipated land requirements; basic requirements regarding the capacity and experience of the investor as stipulated in Appendix II attached to this Circular;

c) Related documents (if any).

3. Within thirty days from the date of receiving complete and valid documents, the Ministry of Transport shall organize the review and approve the project list (including basic requirements regarding the capacity and experience of the investor).

Article 7. Announcing the project list

1. The Civil Aviation Authority of Vietnam publishes the project list (including basic requirements regarding the capacity and experience of the investor) on the National Bidding System Network and the Bidding Newspaper in accordance with points i and l of Clause 1, Article 8 of the Bidding Law as the basis for determining the number of investors interested, submitting registration documents to implement the project.

2. The content of announcing the project list includes:

a) Project name; investment objectives and scale; preliminary total cost of implementing the project; summary of basic requirements of the project; investment period and schedule; operation time after completion of the investment work; project location; area of land; current status of the land; approved planning indicators;

b) Preliminary requirements regarding the investor's capacity and experience;

c) Deadline for investors to submit registration documents to implement the project;

d) Address, telephone number, fax number of the Civil Aviation Authority of Vietnam;

đ) Other information (if necessary).

Article 8. Preparation and Submission of Project Registration Documents

1. The investor shall be responsible for preparing and submitting project registration documents on the National Public Procurement System based on the information published according to Clause 2, Article 7 of this Circular. The investor's project registration documents include: the project registration document; documents regarding the legal status, capacity, and experience of the investor; other relevant documents (if any).

2. Upon expiration of the project registration period, the Civil Aviation Authority of Vietnam shall organize an initial assessment of the capacity and experience of investors who have submitted project registration documents on the National Public Procurement System.

Article 9. Initial Assessment of Investor Capacity and Experience

1. Based on the results of the initial assessment of the investor's capacity and experience, the Civil Aviation Authority of Vietnam shall report to the Ministry of Transport to decide on organizing the selection of investors according to one of the following two cases:

a) In the case where there are two or more investors meeting the initial requirements for capacity and experience, the Ministry of Transport shall issue a decision to apply the open tendering method as stipulated in Clause 1 or Clause 2, Article 3 of this Circular, and assign the Civil Aviation Authority of Vietnam as the tender inviter.

b) In the case where only one investor registers and meets the initial requirements for capacity and experience, or where multiple investors register but only one meets these requirements, the procedures for approving the investor shall be carried out according to Article 10 of this Circular.

2. The Civil Aviation Authority of Vietnam shall publish the list of investors meeting the initial requirements for capacity and experience on the National Public Procurement System, or announce the end of the procedure for announcing the project list in the case where no investors meet the initial requirements for capacity and experience.

Article 10. Approval of Investors

1. The Civil Aviation Authority of Vietnam shall organize the establishment and approval of the investor approval request document according to the model prescribed in Appendix III issued together with this Circular, including the determination of compensation costs, support, and resettlement for projects that have not yet completed land clearance (m), and the minimum state budget revenue contribution price (m) as stipulated in Articles 15 and 16 of this Circular.₂), the minimum floor price to be submitted to the State budget (m₃) as prescribed in Article 15, 16 of this Circular.

2. The investor approval request document shall be issued to investors meeting the initial requirements for capacity and experience. Investors shall prepare and submit the investor approval proposal document according to the contents of the investor approval request document.

3. The Civil Aviation Authority of Vietnam shall organize the evaluation of the investor approval proposal document according to the evaluation criteria specified in the investor approval request document. During the evaluation process, the Civil Aviation Authority of Vietnam may invite investors to clarify or amend and supplement necessary information in the investor approval proposal document.

4. An investor shall be approved if they satisfy all the contents of the investor approval request dossier.

5. The Civil Aviation Authority of Vietnam shall submit the results of the approved investor meeting the provisions at points b, c, d, đ, Clause 4, Article 33 of the Investment Law for review and approval by the Ministry of Transport.

Chapter III

PLAN FOR SELECTING INVESTORS

Article 11. Establishment of Investor Selection Plan

1. Basis for establishing the plan for selecting investors:

a) Decision of the Minister of Transport approving the project list;

b) Decision of the Minister of Transport approving the application of the open tendering method.

2. On the basis of the grounds stipulated in Clause 1 of this Article, the Civil Aviation Authority of Vietnam shall establish the investor selection plan for review and approval by the Ministry of Transport.

3. The documents for reviewing the investor selection plan include:

a) The submission document, which summarizes the implementation process and contents of the investor selection plan as stipulated in Article 12 of this Circular;

b) A progress tracking table of activities during the investor selection process according to the model prescribed in Appendix I issued together with this Circular;

c) The documents stipulated in Clause 1 of this Article.

Article 12. Contents of the investor selection plan

1. Project name.

2. Preliminary total cost of implementing the project (m)₁).

3. Form and method of selecting investors.

4. Time to start organizing the selection of investors.

The time to start organizing the selection of investors is calculated from the issuance of tender documents or request for proposal, clearly stated in months or quarters of the year.

5. Type of contract.

6. Contract implementation period.

The contract implementation period is the number of years or months from the date the contract becomes effective until all parties fulfill their obligations as stipulated in the contract.

Article 13. Review and Approval of the Investor Selection Plan

1. The unit entrusted with reviewing the investor selection plan shall examine and evaluate the contents prescribed in Article 12 of this Circular and prepare a review report to submit to the Ministry of Transport for approval.

2. Based on the review report, the Ministry of Transport issues a decision to approve the investor selection plan and a progress tracking table for activities during the investor selection process as a basis for conducting the investor selection.

Chapter IV

OPEN BIDDING SELECTION OF INVESTORS

Section 1. DETAILED PROCEDURE

Article 14. Detailed Procedures

The detailed bidding procedure for selecting investors is similar to the bidding procedure for selecting investors to implement investment projects using land as prescribed in Article 46 of Decree No. 25/2020/NĐ-CP of the Government detailing certain provisions of the Law on Bidding regarding the selection of investors.

Section 2. PREPARATION FOR SELECTING INVESTORS

Article 15. Preliminary Determination of Compensation, Support, and Resettlement Costs for Projects Without Land Acquisition (m2)

1. The Civil Aviation Port Authority where the project is implemented shall be responsible for working with the competent People's Committee to preliminarily determine compensation, support, and resettlement costs (m₂) for projects without land acquisition according to the laws on land.

2. The preliminary compensation, support, and resettlement costs for the area of land to be acquired (m₂) shall be determined based on point i, Clause 2, Article 47 of Decree No. 25/2020/NĐ-CP dated February 28, 2020 of the Government detailing certain provisions of the Law on Bidding regarding the selection of investors.

Article 16. Establishing the Minimum Revenue Submitted to the State Budget (m₃)

1. The Civil Aviation Port Authority where the project is implemented shall be responsible for working with the competent People's Committee to establish the minimum revenue submitted to the state budget (m₃).

2. The minimum revenue submitted to the state budget (m₃) shall be determined according to the following formula:

t s₃ = n x (m : 49)

Where:

- n: the operation period of the project after completion of the investment work as prescribed in point a, Clause 2, Article 7 of this Circular.

- m: the minimum revenue submitted to the state budget for projects with a 49-year land lease term, calculated according to the formula prescribed in point k, Clause 2, Article 47 of Decree No. 25/2020/NĐ-CP dated February 28, 2020 of the Government detailing certain provisions of the Law on Bidding regarding the selection of investors and Appendix V of Circular No. 06/2020/TT-BKHĐT dated September 18, 2020 of the Ministry of Planning and Investment guiding the implementation of Decree No. 25/2020/NĐ-CP dated February 28, 2020 of the Government detailing certain provisions of the Law on Bidding regarding the selection of investors.

This value is determined relatively and serves as the basis for investors to propose submission to the state budget and is independent of the land lease payment required by the laws on land.

Article 17. Preparation of tender invitation documents

1. Basis for preparing tender invitation documents:

a) The list of projects that have been published in accordance with regulations;

b) Decision approving the investment selection plan;

c) Current laws on aviation, land, investment, construction, and other relevant laws.

2. The Civil Aviation Authority of Vietnam shall organize the preparation, review, and approval of tender invitation documents.

3. Tender invitation documents shall be prepared according to the model prescribed in Appendix IV attached to this Circular. Tender invitation documents shall not include any conditions that limit the participation of investors or create advantages for one or several investors, thereby causing unfair competition. The tender invitation documents must contain all necessary information for investors to prepare tender submission documents, including the following main contents:

a) General information about the project including: project name; objectives, scale of investment; preliminary total cost of implementing the project; summary of basic requirements of the project; time limit, investment progress; operation period of the project after completion of investment work; location of implementation; area of land; current status of the land; approved planning indicators;

b) Guidelines for investors: including bidding procedures and bidding data sheets;

c) Requirements for implementation and operation of the project: requirements for implementation and operation of the project in accordance with approved planning; quality assurance requirements for construction works in accordance with laws on investment and construction and other relevant regulations; technical requirements to meet investment objectives; scale of investment; requirement to allocate sufficient capital to implement the project; requirement for project implementation progress (including contents related to construction time and operation period of the project after completion of investment work); requirements to meet business and service operation conditions at airports in accordance with laws on aviation; requirements for operation, management, maintenance, and repair of project works; environmental requirements in accordance with environmental laws; infrastructure connection requirements at airports; security and safety requirements at airports; requirements for coordination responsibilities with aviation authorities and airport operators during the provision of specialized aviation services by investors; other requirements related to the industry and specific conditions of the project;

d) Criteria for evaluating tender submissions including criteria for assessing the capacity and experience of investors; technical, financial-commercial evaluation criteria, and evaluation methods;

đ) Bidding forms including bid proposal, technical proposals, financial-commercial proposals, bid guarantees, commitments from financial organizations (if any), and other forms;

e) Land lease term;

g) Operation period of the project after completion of investment work;

h) Preliminary total cost of implementing the project (m₁) approved in the project list;

i) Preliminary compensation and support costs for resettlement in projects where land clearance has not yet been completed (m₂);

k) Minimum revenue to be paid to the state budget (m₃);

l) Draft contract including requirements for project implementation; requirements for operation and commercialization of aviation services; duration of the project contract, land lease term, operation period of the project after completion of investment work; land area; applicable provisions; contract incentives and penalties; force majeure; review of the contract during project operation and other contents.

Article 18. Standards and methods for evaluating tender documents

The method for evaluating tender documents is reflected through the evaluation criteria in the tender invitation, including:

1. Based on the preliminary requirements regarding capacity and experience approved according to Appendix II issued together with this Circular, the standards and methods for evaluating capacity and experience shall be updated or supplemented (if necessary). In the case of a consortium, the capacity and experience of the investor shall be determined by the total capacity and experience of the consortium members; the leading investor of the consortium must have a minimum ownership stake of 30%, each member of the consortium must have a minimum ownership stake of 15% within the consortium.

2. Criteria and methods for evaluating technical aspects:

a) Technical evaluation criteria: the investor's proposal on the plan and method for implementing the project; the investor's proposal on the organization scheme for operating, managing, and providing specialized aviation services at airports.

The investor's proposal on the plan and method for implementing the project includes the following contents: proof of understanding of the current situation; forecast of production volume growth; project objectives according to the approved planning; project scale, design scheme; technical and technological scheme of the project; implementation plan, progress schedule of the project, construction time; environmental impact mitigation measures; for projects that have not yet completed land clearance, the investor must have a coordination plan with the Civil Aviation Authority where the project is implemented to work with the competent People's Committee to complete land clearance work and for the People's Committee to issue the Land Use Right Certificate for the project site to the Civil Aviation Authority; infrastructure connection plan for traffic and technical facilities (drainage, environment) of the project with the common infrastructure of the airport; preparation of a general layout drawing at a scale of 1/500 within the project boundary using the investor's funds; fire prevention and firefighting plans; security and safety at the airport; solutions, measures, equipment for fire and explosion prevention; organization of the management system for fire and explosion prevention according to regulations; operation time of the project after completion of investment work.

The investor's proposal on the organization scheme for operating, managing, and providing specialized aviation services at airports includes the following contents: ensuring compliance with business and service operation conditions for specialized aviation services at airports as stipulated by aviation laws; the investor's organization scheme for operating, managing, and providing specialized aviation services meeting the goals, strategies, planning, and development plans of the airport; cooperation plan with Civil Aviation Authorities and Port Operators during the provision of specialized aviation services by the investor, ensuring security and safety at the airport; monitoring plan to ensure stable and continuous provision of specialized aviation services, achieving quality standards.

b) Method for evaluating technical aspects:

Using a scoring method based on a 100-point or 1,000-point scale to establish technical evaluation criteria, wherein the minimum and maximum scores for each general and detailed criterion must be specified. When establishing technical evaluation criteria, the minimum score required to meet the requirements must be set but should not be lower than 70% of the total technical points and the points for each content requirement regarding the plan and method for implementing the project; the organization scheme for operating, managing, and providing specialized aviation services at airports should not be lower than 60% of the maximum points for that content depending on the scale and nature of each specific project.

The structure of the point weight corresponding to the contents stipulated in Point a of this Clause must be appropriate for each specific project but must ensure a total point weight of 100%.

3. Financial and commercial evaluation standards and methods:

a) Financial and commercial evaluation standards include: standard for total project implementation costs (M₁); standard for compensation, support, and resettlement value (M₁), for projects that have not yet completed land clearance (M₂); standard for investment efficiency (M₃).

Where:

- M₁ is the total project implementation cost proposed by the investor in the tender document based on content m₁ determined in the tender invitation;

- M₂ is the compensation, support, and resettlement value for projects that have not yet completed land clearance proposed by the investor in the tender document based on content m₂ determined in the tender invitation.

If the compensation, support, and resettlement value according to the approved compensation, support, and resettlement plan is lower than the value M₂ , the difference will be paid into the state budget; if higher than the value M₂ , the investor must make up the shortfall, the value of the shortfall will be included in the project investment capital.

The People's Committee will deduct the compensation, support, and resettlement value according to the approved plan from the land rental fee but not exceeding the amount of land rental fee payable under the current land law. For the remaining compensation and land clearance value according to the approved plan that has not been deducted from the payable land rental fee (if any), it will be included in the project investment capital.

- M₃ is the value paid into the state budget in cash proposed by the investor in the tender document outside the investor's obligations to the state budget under current laws.

b) Methods for financial and commercial evaluation:

Using the social benefit and state benefit method to evaluate financial and commercial aspects. For tender documents that meet the technical requirements, comparisons and rankings will be made based on the proposed investment efficiency. Investment efficiency is evaluated through the criterion of the investor's proposed payment to the state budget in cash, outside the investor's obligations to the state budget under current laws (M₃).

The investor proposes a total project implementation cost (M₁) not lower than m₁ (M₁ ≥ m₁); compensation, support, and resettlement value (M₂) not lower than m₂ ( M₂ ≥ m₂for projects where land clearance has not been completed; the value to be paid to the state budget in addition to the investor's existing obligations to the state budget under current laws (M)₃shall not be lower than the floor price m₃ and the highest bid will be ranked first and considered for awarding the contract.

Section 3. ORGANIZING THE SELECTION OF INVESTORS

Article 19. Conditions for issuing tender documents

Tender invitations may only be issued to select investors if they meet all conditions prescribed in Clause 2, Article 7 of the Bidding Law.

Article 20. Tender invitation, issuance, amendment, clarification of tender documents; extension of time for submission of tender documents

1. The tender announcement shall be published in accordance with Clause 2 and 3 of Article 4 of this Circular.

2. Tender documents shall be issued widely to all investors participating in the bidding process. The tenderer shall post free of charge and in full the tender document files on the National Bidding Network System.

3. In case of amending the tender documents after issuance, the decision to amend along with the amended contents of the tender documents shall be posted by the tenderer on the National Bidding Network System.

4. If clarification of the tender documents is required, the investor must send a written request to the tenderer at least seven working days (for domestic bidding) or fifteen days (for international bidding) before the closing date for bids to be considered and addressed. Clarification of tender documents shall be carried out by the tenderer in one or more of the following ways:

a) Posting the clarification document on the National Bidding Network System;

b) In cases deemed necessary, organizing a pre-bid conference to discuss contents in the tender documents that the investor does not understand. The discussion content must be recorded in minutes and compiled into a clarification document; the clarification document must be posted on the National Bidding Network System;

The content of clarifying the tender documents shall not contradict the approved tender documents. If clarification of the tender documents leads to amendments to the tender documents, such amendments shall be made in accordance with Clause 3 of this Article.

5. Decisions to amend and clarification documents of the tender documents are part of the tender documents.

6. Extension of the time for submission of tender documents.

a) The tenderer shall post the extension notice along with the approval decision on the National Bidding Network System;

b) The extension notice shall include reasons for the extension and the new closing date.

Article 21. Preparation, submission, acceptance, management, amendment, replacement, withdrawal of tender documents

1. The investor is responsible for preparing and submitting tender documents in accordance with the requirements of the tender documents.

2. The tenderer shall accept tender documents from all investors submitted before the closing date and manage the submitted tender documents confidentially until the results of the investor selection are publicly disclosed; in all cases, information in the tender documents of one investor shall not be disclosed to another investor, except for information that is publicly disclosed during the opening of tenders.

3. When wishing to amend, replace, or withdraw tender documents already submitted, the investor must submit a written request to the tenderer. The tenderer shall only approve the amendment, replacement, or withdrawal of the tender documents if the request is received before the closing date.

4. Any tender documents or materials sent by the investor to the tenderer after the closing date shall not be opened, shall be invalid, and shall be rejected, except for clarification documents requested by the tenderer or documents clarifying and supplementing to prove the eligibility, capacity, and experience of the investor.

Article 22. Opening of Technical Proposal Files

1. The opening of technical proposal files must be conducted publicly and commence immediately within one hour from the time of tender closing. The tender opening minutes must be sent to all participating investors.

2. Representatives of the tenderer must sign to confirm on the original bid form, power of attorney of the legal representative of the investor (if any); joint venture agreement (if any); bid guarantee; important contents of each technical proposal file.

3. Financial-commercial proposal files of all investors must be sealed in a separate envelope by representatives of the tenderer and participating investors at the technical proposal opening ceremony.

Article 23. Principles for Evaluating Bid Documents

1. The evaluation of bid documents must be based on the bid document evaluation criteria and other requirements in the tender invitation, based on the submitted bid documents, and the explanatory documents provided by the investor to ensure the selection of an investor with sufficient capability and experience, having feasible technical and financial-commercial plans to implement the project.

2. The evaluation shall be carried out on copies, the investor shall bear responsibility for the consistency between the original and the copy. In case there are minor discrepancies between the original and the copy that do not change the ranking order of the investor, the original shall be the basis for evaluation. In case there are significant discrepancies between the original and the copy leading to different evaluation results and changing the ranking order of the investor, the bid document of that investor will be disqualified.

3. When evaluating bid documents, the tenderer must check the technical and financial-commercial contents of the bid documents to determine that the bid documents do not have differences, conditions, or omissions of basic contents, including:

a) Differences are deviations from the requirements stated in the tender invitation;

b) Conditions are when the investor sets conditions that are restrictive or indicate non-acceptance of the requirements stated in the tender invitation;

c) Omissions are when the investor fails to provide part or all of the information or documents required in the tender invitation.

4. Provided that the bid documents basically meet the requirements stated in the tender invitation, the tenderer may accept errors that are not differences, conditions, or omissions of basic contents in the bid documents. Among these, differences, conditions, or omissions of basic contents are those that, if accepted or allowed the investor to amend, supplement, or replace, would:

a) Significantly affect the scope and technical, technological, quality, and infrastructure system requirements;

b) Significantly limit and be inconsistent with the tender invitation regarding the rights of the tenderer, competent authority, or obligations of the investor under the contract;

c) Unfairly affect the competitive position of other investors whose bid documents basically meet the requirements stated in the tender invitation;

5. Bid documents that do not basically meet the requirements stated in the tender invitation will be disqualified; it is not permitted to correct differences, conditions, or omissions of basic contents in the bid documents to make them basically compliant.

Article 24. Principles for Clarifying Bidding Documents

1. After opening the bids, the investor shall be responsible for clarifying the bidding documents when the tender inviter requests it.

2. After closing the bids, the tender inviter shall be responsible for receiving additional documents to clarify and supplement documents proving the legitimate status, capacity, and experience of the investor when the investor discovers that their bidding documents lack information or documents about their existing capacity and experience which were not submitted with the bidding documents. These documents shall be considered part of the bidding documents.

3. Clarification regarding the contents concerning legitimate status, capacity, and experience must ensure the principle of not changing the essential nature of the legitimate status, capacity, and experience of the bidding investor. Clarification regarding the technical and financial-commercial proposals stated in the investor's bidding documents must ensure the principle of not altering the fundamental content of the submitted bidding documents.

4. Clarification can only be carried out between the tender inviter and the investor whose bidding documents need clarification. The content of clarifying the bidding documents must be documented in writing and preserved by the tender inviter as part of the bidding documents.

Section 4. EVALUATION OF TECHNICAL PROPOSALS

Article 25. Evaluation of Technical Proposal Documents

1. Checking the validity of the technical proposal documents, including:

a) Checking the number of original and copied technical proposal documents;

b) Checking the components of the technical proposal documents, including: Bid proposal form on technical matters, consortium agreement (if applicable), power of attorney for signing the bid proposal form (if applicable); bid guarantee; documents proving the legitimate status of the person signing the bid proposal form (if applicable); documents proving the legitimate status, capacity, and experience of the investor; technical proposals; other components of the technical proposal documents;

c) Checking the consistency of content between the original and copied documents to serve the detailed evaluation process of the technical proposal documents.

2. Evaluating the validity of the technical proposal documents

An investor’s technical proposal document is deemed valid if it meets all of the following requirements:

a) There is an original technical proposal document;

b) There is a valid bid proposal form on technical matters;

c) The validity period of the technical proposal document complies with the requirements stipulated in the tender invitation document;

d) There is a valid bid guarantee;

đ) The investor is not listed in two or more technical proposal documents as an independent investor or member of a consortium;

e) There is a valid consortium agreement in cases of consortiums;

g) The investor is not currently prohibited from participating in bidding activities according to the laws on bidding;

h) The investor ensures their legitimate status as prescribed in Article 5 of the Bidding Law.

3. Evaluation of Capacity and Experience

The evaluation of capacity and experience is conducted according to the methods and standards for evaluating capacity and experience specified in the tender invitation document.

4. Investors with valid technical proposal documents that meet the requirements for capacity and experience will be subject to detailed technical evaluation.

5. Detailed Evaluation of Technical Proposal Documents

The detailed evaluation of technical proposal documents is carried out according to the methods and standards for evaluating technical matters specified in the tender invitation document.

Article 26. Review and Approve List of Investors Meeting Technical Requirements

1. The tenderer shall review and approve the list of investors meeting technical requirements.

2. The tenderer shall notify the list of investors meeting technical requirements to all participating investors and invite them to open financial-commercial proposal documents, specifying the time and place for opening such documents.

Section 5. OPENING AND EVALUATING FINANCIAL-COMMERCIAL PROPOSAL DOCUMENTS

Article 27. Opening Financial-Commercial Proposal Documents

1. Financial-commercial proposal documents of investors listed in the list of investors meeting technical requirements shall be publicly opened at the time and place specified in the notification of the list of investors meeting technical requirements. The bidding record must be sent to all participating investors.

2. Representatives of the tenderer must sign to confirm on the original bid form, power of attorney of the legal representative of the investor (if any); joint venture agreement (if any); bid guarantee; important contents of each financial-commercial proposal document.

Article 28. Evaluating Financial-Commercial Proposal Documents

1. Checking the validity of financial-commercial proposal documents, including:

a) Checking the number of original copies and photocopies of financial-commercial proposal documents;

b) Checking the components of financial-commercial proposal documents, including: Bid form within the financial-commercial proposal document; other components within the financial-commercial proposal document;

c) Checking the consistency of content between the original and photocopies to serve the detailed evaluation process of financial-commercial proposal documents.

2. Evaluating the validity of financial-commercial proposal documents:

A financial-commercial proposal document of an investor is considered valid when it meets the following contents fully:

a) There is an original financial-commercial proposal document;

b) There is a valid bid form proposing financial-commercial terms;

c) The value stated in the bid form must be specific, fixed in figures and in words, and must be consistent, logical, without proposing different values for the same content or accompanied by conditions detrimental to the competent state authority, the tenderer (including: total project implementation costs proposed by the investor (M₁); compensation, support, resettlement values proposed by the investor (M₂) for projects not yet completed land clearance; proposing the amount of budget revenue paid in cash, in addition to the investor's obligations to the state budget under current laws (M₃); proposing an increase in the amount of budget revenue paid in cash beyond the investor's obligations to the state budget under current laws, if any);

d) The validity period of the financial-commercial proposal document complies with the tender documentation requirements.

3. Investors with valid financial-commercial proposal documents will be evaluated in detail regarding financial-commercial aspects. Detailed evaluation of financial-commercial proposal documents and ranking of investors shall be carried out according to the methods and criteria stipulated in the tender documentation.

4. After evaluating the bid documents, the expert team shall prepare a report for the tenderer to consider and approve. The report must specify the following contents:

a) Ranking list of investors;

b) List of investors not meeting requirements and excluded; reasons for excluding investors;

c) Comments on competition, fairness, transparency, and economic efficiency during the selection process of investors. In cases where competition, fairness, transparency, and economic efficiency are not guaranteed, the reasons must be clearly stated and measures to address the situation proposed.

Article 29. Principles for reviewing the bid award

The investor proposed for selection must meet all of the following conditions:

1. Possess a valid bid proposal.

2. Have the capacity and experience to meet the requirements.

3. Provide technical proposals that meet the requirements.

4. The bid success value including the components must meet the following requirements:

a) Proposing the total actual cost of implementing the project (M);₁) not lower than m₁ approved in the tender invitation documentation;

b) Proposing the compensation value for resettlement and support for projects that have not yet completed land clearance (M);₂) not lower than m₂ determined in the tender invitation;

c) Proposing the value to be paid to the state budget in cash, in addition to the investor's obligations to the state budget under current laws (M),₃not lower than the minimum price m₃ and the maximum price.

Section 6. SUBMISSION, REVIEW, APPROVAL AND PUBLIC ANNOUNCEMENT OF THE SELECTION RESULTS; NEGOTIATION, COMPLETION AND SIGNING OF CONTRACTS

Article 30. Submission, review, approval, and publicizing the results of selecting investors

1. The submission, review, and approval of the selection results shall be carried out as follows:

a) Based on the report on the evaluation of tender documents, the tender inviter submits to the Ministry of Transport for review and approval of the results of selecting investors, including the inviter's opinions on the evaluation contents by the expert team;

b) The selection of investors' results must be approved in writing based on the proposal for approval and the report on reviewing the results of selecting investors.

2. In cases where a successful bidder is selected, the approval document for the selection results shall include the following contents:

a) Project name; project objectives, investment scale;

b) Name of the successful bidder;

c) Project implementation schedule;

d) Project location, area, land lease period;

đ) Project exploitation time after completion of the investment work;

e) Total project implementation costs (excluding compensation, support, resettlement costs, and land rental fees);

g) The total amount proposed to be submitted to the state budget by the investor;

h) Other contents (if any).

3. In cases where bidding is canceled according to Clause 1, Article 17 of the Bidding Law, the decision approving the results of selecting investors or the decision canceling the bidding must clearly state the reasons for canceling the bidding and the responsibilities of the relevant parties when canceling the bidding.

4. After receiving the approval document for the results of selecting investors, the tender inviter must publish information about the results of selecting investors in accordance with Clause 2 and 3, Article 4 of this Circular; send the notification document on the results of selecting investors to participating investors within the time limit specified in Clause 3, Article 4 of this Circular. The content of the notification on the results of selecting investors includes:

a) Information as stipulated in Clause 2 of this Article;

b) List of investors not selected and a summary of the reasons for non-selection of each investor;

c) Negotiation plan, completion, and signing of contracts with the selected investor.

5. After the decision approving the results of selecting investors, the investor decides to establish a project company to implement the project or directly implement the project. The organization, operation, and dissolution of the project company shall be carried out in accordance with the laws on enterprises, investment laws, and the project contract.

Article 31. Negotiation and completion of the contract

1. Based on the results of selecting investors, the tender inviter invites the first-ranked investor to negotiate and complete the contract. If the invited investor does not attend or refuses to negotiate and complete the contract, the investor will not be entitled to reclaim the bid security deposit.

2. The negotiation and completion of the contract must be based on the following grounds:

a) Report on evaluating the tender documents;

b) Tender documents and clarifications, amendments to the tender documents (if any) of the investor;

c) Tender invitation documents.

3. Principles of negotiation and completion of the contract:

a) Negotiation and completion of the contract shall not be conducted for contents that the investor has bid in accordance with the requirements of the tender invitation documents;

b) The negotiation and completion of the contract shall not alter the basic contents of the tender documents.

4. Contents of negotiation and completion of the contract:

a) Negotiating and completing details that are insufficiently detailed, unclear, or unsuitable, ensuring consistency between the tender invitation documentation and the tender submission documentation, and among different sections of the tender submission documentation which may lead to disputes or affect the responsibilities of the parties during the contract implementation process;

b) Negotiate about issues arising during the selection process of the investor (if any) with the aim of completing the detailed contents of the project;

c) Negotiate about the handover schedule of the construction site; the schedule for the investor to transfer compensation, support, and resettlement values for projects without land clearance and the value to be paid to the state budget in cash;

d) Negotiating the plan to meet business conditions and operate air services in accordance with aviation laws;

đ) Negotiating the responsibilities of the parties during the implementation of the project contract and air service operations at airports;

e) Negotiate about other necessary contents.

5. During the negotiation and completion of the contract, the parties involved proceed to finalize the draft contract. The investor may not change, withdraw, or refuse to implement the basic contents proposed in the tender submission documentation that has been evaluated by the tender inviter as meeting the requirements of the tender invitation documentation, except in cases where changes proposed by the investor bring higher benefits to the project.

6. In case negotiations and completion of the contract fail, the tender inviter reports to the Ministry of Transport for consideration and decision to cancel the results of selecting investors and invite the next-ranked investor to negotiate and complete the contract. If negotiations and completion with subsequent investors also fail, the tender inviter reports to the Ministry of Transport for consideration and decision to cancel the bidding according to Clause 1, Article 17 of the Bidding Law.

Article 32. Signing of Contracts and Publicizing of Project Contract Information

1. Principles for signing the contract:

a) The bid price (the amount proposed by the winning bidder to be submitted to the state budget as stated in the bidding documents) shall be the value of the signed contract;

b) The actual project implementation costs; compensation, support, and resettlement costs for projects that have not yet completed land clearance, as proposed by the winning bidder in the bidding documents, shall be recorded in the contract;

c) The land rental fee payable shall be determined according to the provisions of the Law on Land, plus the amount proposed by the winning bidder to be recognized as the market value at the time of land lease in the contract, which is to be submitted to the state budget;

2. The signing of contracts shall be carried out in accordance with the provisions of Articles 69, 70, 71, 72, and 73 of the Bidding Law.

3. Within seven working days from the date of signing the project contract, the tenderer shall be responsible for publicizing the project contract information on the National E-Bidding System. The preliminary information to be disclosed includes:

a) Project name; contract number; contract signing date;

b) Name and address of the competent state agency;

c) Name and address of the investor;

d) Project objectives and scale;

đ) Project implementation schedule;

e) Project implementation location, area, and land rental period;

g) Total project implementation costs (excluding compensation, support, resettlement costs, and land rental fees);

h) Project operation period after completion of investment work;

i) Other contents (if any).

Article 33. Implementation of Projects

1. After the contract has been signed between the competent state agency and the winning bidder (or the project enterprise established by the winning bidder to implement the project), the Civil Aviation Port Authority where the project is implemented, the winning bidder (or the project enterprise established by the winning bidder to implement the project) shall cooperate with the local land management authority to submit to the competent People's Committee for decisions on land recovery, approval of compensation, support, and resettlement plans in accordance with the provisions of the Law on Land for projects that have not yet completed land clearance. Based on the agreed schedule in the contract, the winning bidder (or the project enterprise established by the winning bidder to implement the project) shall pay the compensation, support, and resettlement value (M) for projects that have not yet completed land clearance to the local land management authority and the amount to be paid to the state budget in cash (M) proposed in the bidding documents to the Central Treasury. Interest shall not be charged on the costs of compensation, support, and resettlement.₂) for projects that have not yet completed land clearance for local land management authorities and the monetary value to be submitted to the State budget (M³) proposed in the tender submission for the Central Treasury. Interest on loans shall not be included in the costs for compensation, support, and resettlement.

2. Procedures and formalities for land leasing; determination of the land rental fee for the winning bidder (or the project enterprise established by the winning bidder to implement the project):

a) After completing compensation, support, and resettlement in the area implementing the project for projects that have not yet completed land clearance, the land leasing procedures for the winning bidder (or the project enterprise established by the winning bidder to implement the project) shall be carried out according to the procedures and formalities for land allocation and leasing stipulated in Clause 29, Article 1 of Decree No. 148/2020/NĐ-CP dated December 18, 2020, of the Government amending and supplementing certain decrees detailing the implementation of the Law on Land and any subsequent amendments, supplements, or replacements (if any);

b) The Civil Aviation Port Authority where the project is implemented shall cooperate with the local land management authority to submit to the competent People's Committee for approval of the land rental fee that the winning bidder (or the project enterprise established by the winning bidder to implement the project) must pay at the time when the Civil Aviation Port Authority decides to lease the land according to the provisions of the Law on Land.

3. The winning bidder (or the project enterprise established by the winning bidder to implement the project) shall implement the project in accordance with the provisions of the contract, laws on civil aviation, investment, construction, land, planning, and other related laws.

Chapter V

CONTENT OF REVIEW AND REVIEW LEVELS, APPROVAL IN THE SELECTION OF INVESTORS

Article 34. Examination of tender invitation documents

The examination of tender invitation documents shall be carried out similarly to the examination of tender invitation documents for selecting investors to implement investment projects using land as prescribed in Clause 2 of Article 75 of Decree No. 25/2020/NĐ-CP dated February 28, 2020 of the Government detailing certain provisions of the Bidding Law on selecting investors.

Article 35. Examination of the list of investors meeting technical requirements and the results of investor selection

The examination of the list of investors meeting technical requirements and the results of investor selection shall be carried out similarly to the examination of the list of investors meeting technical requirements and the results of selecting investors to implement investment projects using land as prescribed in Clauses 3 and 4 of Article 76 of Decree No. 25/2020/NĐ-CP dated February 28, 2020 of the Government detailing certain provisions of the Bidding Law on selecting investors.

Article 36. Responsibilities of the Civil Aviation Authority of Vietnam and Airports Control Units in the work of selecting investors

1. Civil Aviation Authority of Vietnam:

a) Approves tender invitation documents, the list of investors meeting technical requirements, and the ranking list of investors;

b) Performs tasks within the responsibility of the tender inviter as stipulated in Article 75 of the Bidding Law.

2. Airports Control Units:

a) Work with the People's Committee at the competent level to preliminarily determine compensation, support, and resettlement costs (m₂) for projects that have not yet completed land clearance according to the laws on land;

b) Work with the People's Committee at the competent level to establish the minimum price for state budget revenue (m₃).

Chapter VI

HANDLING SITUATIONS AND RESOLVING COMPLAINTS IN THE SELECTION OF INVESTORS

Article 37. Handling situations in the selection of investors and resolving complaints in the selection of investors

Implementation shall be carried out in accordance with Articles 80, 81, 82, and 83 of Decree No. 25/2020/NĐ-CP dated February 28, 2020 of the Government detailing certain provisions of the Bidding Law on selecting investors.

Chapter VII

IMPLEMENTING PROVISIONS

Article 38. Organization of implementation

The Heads of the Ministry’s Office, the Inspectorate, the Department Directors, the Director of the Construction Quality Management Bureau of Transport Infrastructure Projects, the Director of the Civil Aviation Authority of Vietnam, and the Heads of relevant agencies, organizations, and individuals shall be responsible for implementing this Circular.

Article 39. Effective date

1. This Circular takes effect from December 25, 2021.

2. During the implementation period, if the referenced documents in this Circular are amended, supplemented, or replaced, they shall be implemented in accordance with the new regulations of those documents.