Decision No. 24/BXD-VKT Issuing the Tendering Regulations for Construction

Pursuant to …;

OF THE MINISTER OF CONSTRUCTION

Issuing the Tendering Rules for Construction

THE MINISTER OF CONSTRUCTION

Based on Decree No. 59/HĐBT dated April 14, 1998 of the Council of Ministers stipulating the functions, tasks, and organizational structure of the Ministry of Construction.

Based on Decree No. 196/HĐBT dated December 11, 1989 of the Council of Ministers stipulating the tasks, authorities, and state management responsibilities of the Ministries.

Pursuant to …;

Article 1. Attached to this Decision is the Tendering Rules for Construction, replacing Circular No. 03/BXD-VKT dated January 10, 1989 guiding tendering in construction.

Article 2. These Rules shall take effect nationwide from the date of issuance.

Article 3. Ministries, State Management Committees, agencies directly under the Council of Ministers, and People's Committees of provinces, cities, and centrally-administered municipalities shall guide, disseminate, and organize the implementation of tendering in construction according to these Rules.

TENDERING RULES FOR CONSTRUCTION

(Attached to the Decision of the Minister of Construction
No. 24/BXD-VKT dated February 12, 1990)

These Rules prescribe the contents and procedures for tendering in construction applicable to all projects funded by state budget and non-state budget sources (development funds of grassroots units, loans...) of state organizations (state-owned enterprises, administrative and service agencies, mass organizations...). For private enterprises (including organizations with similar production and business characteristics such as joint ventures, joint-stock companies, private conglomerates...) and cooperatives, tendering construction shall also be implemented according to these Rules.

I. PROVISIONS

Article 1: Object and extent of tendering.

1. Object of tendering

In general, all construction projects (except those involving national secrets) that meet the conditions specified in Article 2 must organize tendering. The project management agency has the responsibility to direct, guide, and examine the preparation of conditions to expand tendering for projects of investors.

- Specifically, for national key projects with large scale, complex technology, and long construction time, the State assigns the specialized construction management ministry to select the general contractor. The general contractor may subcontract or apply tendering for some project components or types of work depending on the specific conditions of each project.

- Projects that have not yet prepared sufficient conditions to organize tendering according to these Rules, the project management agency (or the immediate superior management agency) must inspect, examine, and reach consensus with relevant ministries (departments) managing specialized construction (of these projects) to select construction units.

2. Extent of tendering:

Depending on the scale, nature, type of project, and specific conditions of the tenderer, the following levels of tendering can be selected:

- Tendering separately for individual stages such as survey, technical design, installation...

- Tendering for some stages of the construction process (survey and design, or design and installation...).

- Tendering for the entire project or component project.

- In addition to the above levels of tendering, depending on specific conditions, tendering for all stages of the construction process (from economic-technical feasibility study, survey, design... to installation) can be conducted.

Article 2: Conditions for organizing tendering

A. CONDITIONS FOR THE INVITING PARTY (INVESTOR):

1) All projects put up for tendering must ensure sufficient funds to pay according to the contract.

- If the project is funded by the state budget, it must be included in the state's basic construction plan and confirmed by the financial authority guaranteeing sufficient funding for the project (or sufficient funding for the construction volume in the year).

- If the project is funded by grassroots unit development funds and loans..., there must be confirmation of capital from the Bank (confirming the current capital and loan capacity of the Bank where the investor has an account).

2) When tendering for design, there must be an economic feasibility study report, or a scientific and technical report (for projects without an economic feasibility study) approved and related technical parameters together with the current status map, survey documents, underground facility diagrams...

3) When tendering for installation, there must be approved design documents, estimates, and the construction site must be cleared and ensure all basic construction procedures according to current state regulations.

4) When tendering from the stage of preparing economic-technical feasibility studies to installation, timely and full payment capital must be ensured from the investment preparation phase to the implementation phase according to point 1, Article 2 mentioned above and technical parameters about the operation and use of the project.

B. CONDITIONS FOR THE BIDDERS

Bidders can be state-owned or non-state-owned construction organizations meeting the following conditions:

1) General conditions:

- State-owned organizations must have legal person status for construction practice (if they are units under an organization with legal person status, they must have authorization papers from that organization). Non-state-owned organizations must have a business license for construction and confirmation from the financial authority that they have paid all taxes according to current state regulations. The registration of construction business operations of these organizations is carried out according to Decision No. 250/BXD dated October 14, 1989 and Decision No. 255/BXD dated October 18, 1989 of the Ministry of Construction.

They must have collateral assets registered at the notary office, or confirmed by the financial authority (where the unit reports its annual asset summary) equivalent to 20% of the value of the workload undertaken by the unit in a year or more.

- They must have certificates of professional expertise, technical skills, and capacity (machinery, equipment, technical workers) meeting the requirements set by the tendered project, issued by the specialized construction management agency (according to the model in Appendix No. 3 of these Rules).

2) Additional conditions for the level of tendering:

- When tendering separately for individual stages such as survey, design, installation, the bidding organizations must be units with the corresponding functions and tasks (for state-owned organizations) or in accordance with their business licenses (for non-state-owned organizations).

- If bidding for certain stages or bidding from the stage of preparing economic and technical justification to construction, the main contractor unit participating in the bid must clearly declare the joint venture units undertaking each stage. Joint venture units with the representative unit must also meet the conditions stipulated in Point B, Article 2 of this Regulation. There must be an economic cooperation contract between the joint venture units clearly defining the responsibilities of each unit in each stage. The main contractor unit participating in the bid shall bear full responsibility for the contracted work with the project owner.

3) Bid fees and performance bond.

- All bidding units must pay the bid fee to the tendering unit to cover the costs of organizing the bidding process. The specific amount depends on the actual needs of each bidding project and is clearly stated in the tender invitation notice, but it shall not exceed 50,000 VND per bidding unit for each bidding organization.

- Only the winning bidder (after receiving the official notification from the tendering unit) must submit a performance bond equal to 2.5% of the value of the bid work volume for the year to ensure the successful completion of the bid project. This performance bond will be deposited into the account of the tendering unit and will be refunded by the tendering unit after the project acceptance along with the bank deposit interest as prescribed by the State.

However, depending on the progress of completing major tasks and the reputation of the contracting unit, the tendering unit may refund the performance bond during the contract implementation period. Conversely, if the winning bidder abandons the project midway or commits serious violations that the Ministry (or Department) of Construction does not allow to continue construction, the performance bond will not be refunded, and they must compensate for the losses caused to the tendering unit.

Article 3: Basic criteria for bidding and evaluation.

A. The basis for evaluation is based on the following three basic criteria:

1) Price:

- For state budget funds (including both allocated and borrowed funds), the bid price and evaluation must be established based on the State's regulations on managing construction prices. The tendering unit must calculate the maximum and minimum prices in advance and submit them for approval by the competent authority as the basis for selecting the winning bid price.

- For non-state budget funds of state organizations generally, the tendering unit must base on the State's regulations on managing construction and refer to the standard prices of the locality to prepare the budget for direct review by the superior authority and as the basis for selecting the winning bid price.

2) Technology and quality:

- Bidding for construction and installation must comply with the approved design requirements and current construction procedures and standards, specifying the specifications and quality of major materials (if necessary).

- Bidding for design must be based on the approved economic and technical justification or design assignment (for projects without economic and technical justification).

- Bidding for economic and technical justification, the bidding unit can propose multiple options for the tendering unit to select the optimal option, and each option must achieve the investment objectives set by the tendering unit.

- Project warranty shall be carried out according to the current system (as stipulated in Circular 13/UBXD dated January 17, 1986 of the National Construction Management Committee).

3) Time of completion:

Ensuring the overall construction schedule recorded in the plan or the requirements of the tendering agency.

B. Depending on the scale, nature, and specific requirements of each project, the competent authority at the appropriate level (as specified in Article 4) will provide detailed guidance on how to evaluate these criteria.

Article 4: Bid Evaluation Committee

1) Functions and duties of the Bid Evaluation Committee:

The Bid Evaluation Committee is an advisory body assisting the competent authority in managing the bidding process in accordance with the State's regulations.

The Bid Evaluation Committee is responsible for organizing the opening of bids and selecting the winning bidder to report to the competent authority (the authority reviewing the economic justification of the bidding project) for decision-making. Subsequent issues (if any) fall under the responsibility of relevant state agencies.

2) Composition of the Committee and the authority to establish it:

The level that approves the economic and technical justification of the project decides to establish the Bid Evaluation Committee for that project.

The composition of the Bid Evaluation Committee is as follows:

- The Chairman of the Committee is the representative of the authority reviewing the economic and technical justification (or economic report) of the bidding project.

- The Vice-Chairman of the Committee is the representative of the Ministry (Department) managing the specialized construction (depending on whether the bidding project is managed centrally or locally).

- The permanent member is the project owner.

- The member representing the financial agency (if the bidding project is funded by the state budget) or the representative of the banking agency (if the bidding project is funded by non-state budget funds).

- The member representing the planning agency.

- The member representing the economic arbitration agency.

In cases where necessary, the Bid Evaluation Committee may invite additional specialized economic and technical experts to serve as consultants.

3) Principles of operation of the Committee:

- The Bid Evaluation Committee operates on the principle of majority voting. In case of a tie vote, the Chairman and Vice-Chairman of the Committee will jointly decide the outcome of the evaluation.

II. FORMS OF BIDDING AND PROCEDURES FOR ORGANIZING BIDDING

Article 5: Forms of bidding

1) Open bidding: Applies to the objects specified in Point 1. The tendering unit publicly announces and clearly states the conditions for bidding units according to Point 2, Article 2 of this Regulation and any additional conditions of the project (if any) so that construction organizations can know and participate in the bidding (if qualified).Aapplies to the objects specified in Point 1). The tender inviter shall widely announce and clearly state the conditions for bidding units as prescribed in Point 2, Article 2 of this Regulation and any additional conditions of the project (if any) so that construction organizations may know and be able to bid (if they meet the requirements).

2) Restricted bidding: This form of restricted bidding applies to projects with complex technical requirements and certain quality, aesthetic... requirements.

The tendering unit only invites specialized construction organizations (of the bidding company) or reputable construction organizations to bid.

3) The selection of an appropriate bidding form for each project is decided by the authority reviewing the economic justification (or economic report) of the project.

Article 6: Registration for organizing bidding.

After preparing all conditions for bidding and selecting an appropriate bidding method, the tenderer shall register the bidding in accordance with the provisions below:

1) For construction projects funded by the central government budget, the tenderer must register with the relevant specialized construction management ministry. Depending on the scale and nature of the project, these ministries may delegate to their specialized construction management departments at the provincial level to oversee the registration of the bidding organization.

For construction projects funded from sources outside the central government budget managed by central agencies, the tenderer shall register the bidding with the specialized construction management departments at the provincial level (of the bidding project).

2) For projects managed by local authorities (including those funded by the central government budget or partially supported by the central government for localities and those funded from sources outside the local government budget), the tenderer must register the bidding with the specialized construction management department at the provincial level (of the bidding project).

3) The content of the bidding organization registration shall be in accordance with the model form attached as Appendix 1 to this Regulation.

4) Authorities responsible for registering bids shall check again the conditions for the tenderer as stipulated in Point A, Article 2 of this Regulation, and participate in the bid evaluation committee (as provided for in Article 4 of this Regulation) to monitor the implementation of regulations and policies on basic construction management.

Article 7: Prepare the bidding project documentation.

Depending on the type and level of the bidding, after registering the bidding, the tenderer must prepare all relevant documents and technical specifications, and clearly state the specific conditions of the bidding project (in accordance with the model form attached as Appendix 2 to this Regulation) so that all bidders understand the economic and technical requirements of the bidding project.

Article 8: Tender announcement.

Depending on the type and level of the bidding, the bidding invitation announcement must be published before the opening date to allow bidders sufficient time to understand the work and prepare their bidding documents (but not less than half a month) and clearly specify the submission deadline and location along with any accompanying documents and certificates.

- In the bidding invitation announcement, in addition to introducing the basic requirements for the bidding project and guiding the understanding of various documents and materials prepared by the tenderer, it must clearly state the conditions for the bidding organizations as stipulated in Point B, Article 2 of this Regulation (The bid evaluation committee will only accept bidding documents that meet the specified conditions).

- Strictly prohibit disclosing any documents related to the criteria for winning the bid in any form. Those who violate this provision will be dealt with according to the law.

Article 9: Submitting bidding documents.

Upon receiving the bidding invitation announcement, construction organizations self-assess whether they meet the conditions and wish to participate, then refer to the bidding invitation documents at the designated location and time. During the review process, both parties can discuss and exchange to clarify the content and requirements of the work.

After understanding and preparing all necessary documents, the bidding organization shall submit the following documents to the tenderer:

1) A sealed bidding application form (in accordance with the model form attached as Appendix 4 to this Regulation) enclosed in a separate envelope.

2) Certificates of the bidding organization's capacity (in accordance with the model form attached as Appendix 3 to this Regulation).

3) Confirmation of collateral assets from a notary office (or financial authority).

4) A sealed bid price estimate (enclosed in a separate envelope together with the bidding application form).

5) Technical proposals accompanied by designs (if bidding starts from the economic and technical feasibility study phase).

6) Bid security deposit (sent directly to the tenderer).

All bidding documents mentioned above (enclosed in a large envelope) must be submitted to the tenderer within the specified time frame. The tenderer is only responsible for storing the bidding documents and shall not open the envelopes before the opening date.

Article 10: Opening bids and selecting the winning unit:

1) Opening the bids:

On the day and time stated in the bidding invitation announcement. The bid evaluation committee convenes and publicly opens the envelopes containing the bidding documents in the presence of representatives of the bidding organizations to select the winning bidder.

2) Selecting the winning bidder:

- The selection of the winning bidder is divided into two steps and conducted in the same session of the bid evaluation committee.

Step 1: Review the list of organizations meeting the bidding conditions as stipulated in Point B, Article 2 of this Regulation. (Organizations not meeting the conditions will be eliminated at this stage).

Step 2: Select the winning bidder:

- When selecting the winning bidder, the committee must consider all three basic criteria stipulated in Article 3 of this Regulation, not necessarily choosing the lowest bid. The committee needs to comprehensively analyze and evaluate the economic and technical indicators of the bidding proposals and discuss them during the full session of the committee. In necessary cases, the committee may establish scoring tables for the bidding criteria suitable for each specific project based on the guidance of the competent authority as stipulated in Section B, Article 3 of this Regulation.

If the bidding organizations' proposed indicators are not significantly different, additional consideration should be given to the professional expertise, technical capabilities, financial capacity, and reputation of each bidding organization to make the selection.

- In the case of bidding for economic and technical feasibility studies, or bidding starting from the design phase to construction, the technical proposals must first be selected, followed by the evaluation of price and completion time criteria.

- All developments during the bid opening and selection of the winning bidder must be recorded and signed by the committee members. The bidding results must be reported to the competent authority for decision-making to become effective for contract signing. The tenderer is responsible for reporting to the higher authority for decision-making within 7-10 days.

Article 11: Official notification of the winning bid.

Within seven days (including the day the Bidding Committee receives the bid from the winning bidder), the Inviting Party must review and officially notify the winning bidder of the formal bidding result for both parties to proceed with signing the economic contract. In case the Inviting Party does not send a notification within seven days, the winning bidder has the right to withdraw (refuse to accept the bid) and the Inviting Party shall pay a penalty of 0.1% of the value of the awarded work volume to the winning bidder. Conversely, if there is an official notification within that period but the winning bidder withdraws, they must pay a penalty of 0.1% of the value of the awarded work volume to the Inviting Party.

Article 12: Signing the economic contract and implementing the construction according to the bidding results.

1) The economic contract between the Inviting Party and the winning bidder must accurately and fully record all indicators in the minutes of the Bidding Committee that have been approved by the competent authority (including additional conditions of the bidding project recorded in the bidding invitation notices).

2) The content of the economic contract must clearly define the specific responsibilities of each party on various aspects, including:

- Investment capital for the project, provisional advance payment amount from the Inviting Party or the winning bidder providing the entire capital, or part of the capital...

- Payment methods corresponding to the forms of capital provision.

- Responsibility for supplying materials and equipment...

- Payment responsibility: If the Inviting Party delays payment, they must pay additional interest equivalent to the bank deposit rate on the delayed payment amount to the winning bidder. If the delay is due to the bank, the bank will be responsible.

3) The winning bidder is responsible for completing the construction according to the signed contract, while the Inviting Party does not directly intervene in the construction management process but focuses on technical supervision and quality control of the project at different stages or parts, in accordance with current state regulations.

Article 13: Handling cases of changing bidding indicators.

In principle, during the execution of the contract, the bidding indicators (price, duration, and quality) may not be changed.

In case the price changes or additional volumes arise due to objective reasons (natural disasters, fires, design changes...), the Inviting Party must report to the relevant superior authorities and specialized construction management agencies (Ministry or Department, depending on the classification of the project) to establish a Review Board (with participation from planning, finance, and banking agencies).

- For projects funded from sources outside the budget, the Review Board members include the specialized construction management agency, the direct superior agency of the Inviting Party, and the bank.

Only when there is a formal written decision from the Review Board can the bidding indicators be changed.

Article 14: Payment and settlement methods for projects.

- Projects organized through bidding are paid monthly based on progress. The monthly payment amount is calculated at 90% of the value of the monthly progress volume and other specific terms recorded in the economic contract (if applicable).

- After the final acceptance and handover of the project, the Inviting Party settles the remaining 10%.

Article 15: Handling cases where bidding does not yield results.

- After issuing the bidding invitation notice, if there are no or only one bidder on the opening day, the bidding process must be reorganized, and the Inviting Party should reconsider the conditions and requirements set in the bidding process to ensure they are appropriate and feasible regarding time, cost, and special technical requirements (if any).

- In cases where the bidding process is conducted in accordance with regulations but no bidder offers prices within the maximum price limit decided by the competent authority or no bidder meets all the conditions regarding time, technology, quality, and cost..., the Bidding Committee may announce standard prices and require bidders to immediately present their bidding indicators at the opening meeting to select the winning bidder.

III. INCENTIVES - PENALTIES - INSPECTION AND AUDIT OF BIDDING PROCESSES

Article 16: Penalties.

- If the winning bidder extends the construction time beyond the agreed period in the economic contract, they must compensate the Inviting Party for losses caused by the delay in putting the project into operation.

- Any acts of collusion, bribery, or other actions aimed at depressing or inflating prices, or favoritism among parties leading to violations of fairness, transparency, and legality in the bidding process are considered actions causing economic damage and will be handled according to the law.

Article 17: Inspection and audit of bidding processes.

1) Specialized construction management ministries are responsible for regular and spot inspections of bidding projects funded by central government budgets. The Ministry of Construction (or Provincial Construction Departments) as the unified state management body for basic construction (at the central and local levels) is responsible for inspecting the organization of bidding for some projects of sectors and localities (when necessary).

2) Local specialized construction management departments are responsible for auditing and inspecting bidding projects managed by local authorities.

3) Content of inspection and audit: Depending on the specific situation of each bidding project, it may involve a full audit of the bidding files or audits of individual phases or issues.

4) The inspection and audit bodies are responsible for recommending the competent authority (the agency deciding to establish the Bidding Committee) to recognize or cancel the bidding results. Parties involved have the right to appeal before the law if they consider the decisions of the inspection and audit bodies unfair.

IV. FINAL PROVISIONS

Article 18: This regulation takes effect from February 12, 1990, and is uniformly applied throughout the country, with previous regulations on bidding in construction that contradict this regulation being abolished.

Article 19: Ministries, State Committees, other agencies under the Council of Ministers, provincial and municipal people's committees, and centrally administered special cities shall guide, disseminate, and organize the implementation of this regulation.

ANNEX 1:

(Attached to the Bidding Regulation in Construction)

MODEL FOR REGISTERING THE ORGANIZATION OF BIDDING

SOCIALIST REPUBLIC OF VIETNAM

Independence - Freedom - Happiness

Respectfully submitted to: Specialized construction management ministry,

Provincial specialized construction management department (depending on whether the bidding project is managed by the central or local level)

Respectfully submitted to: The Ministry of Construction (for projects funded by the central government budget) or the Department of Construction (for projects managed by local authorities).

- Name of the entity (inviting tendering authority):

- Request to register for bidding on the project:

- Description of the characteristics of the tendered project:

+ Approval level for the investment construction plan:

+ Source of investment capital for construction:

+ Level of bidding... (specify according to Article 2, Point 1 of the Regulation).

- Specific conditions prepared by the inviting tenderer to conduct the bidding process... (specify according to Point 1, Article 2 of the Regulation).

We request the Ministry (Department) to review and provide guidance on any missing contents so that the bidding process achieves the desired results. Within five days, if the Ministry (Department) does not provide comments, our agency will proceed with announcing the tender invitation.

MODEL OF SPECIFIC CONDITIONS FOR THE TENDERED PROJECT

Date …Month …Year …

Name of agency

(signature, stamp)

ANNEX 2:

(Attached to the Bidding Regulation in Construction)

1. Name of the tendered project, location of construction:

2. Source of investment capital for the construction project:

3. Form of tendering:

4. Description of the tendered project:

- If tendering for economic and technical feasibility studies, the objectives of the investment, capacity or usage capability, technical parameters, architectural features, initial survey data, and construction location must be stated.

- If tendering for design, the design requirements according to the approved economic and technical feasibility study content, or the design assignment (for projects without an economic and technical feasibility study) and related technical parameters, along with current status diagrams, survey documents, underground works documentation, etc., must be specified.

- If tendering for construction and installation, the specifications, quantities, quality, structure, architecture, etc., according to the approved design must be described.

- Additionally, specific conditions regarding materials and equipment and other special requirements should be clearly stated.

5. Bases for determining the price:

Clearly state the basis and factors forming the price.

6. Completion time for the project:

7. Specific conditions for the bidder's qualifications (as stipulated in Point 2, Article 2 of the Regulation):

8. Conditions regarding payment procedures:

9. Specific conditions regarding rewards and penalties

MODEL OF QUALIFICATION CERTIFICATE FOR THE BIDDER

Date...month...year...

INVITING PARTY

(Signature and seal)

ANNEX 3:

(Attached to the Bidding Regulation in Construction)

- Issued by the specialized construction management department, or the specialized construction management department at the provincial or district level, depending on the management level of the bidding organizations.

SOCIALIST REPUBLIC OF VIETNAM

Independence - Freedom - Happiness

Date ... Month ... Year ...

- Content of the certificate:

+ Name of the entity and decision on establishment or issuance of the business license (date, month, year, issuing authority);

+ Confirmation of the entity's capabilities and main tasks.

+ Capabilities (number of technical staff and construction machinery and equipment).

+ A list of notable projects completed by the entity and the quality of construction.

+ General assessment of the entity's professional and technical expertise and specialty in constructing which types of specialized projects? (if applicable)

- For non-state-owned economic entities, confirmation from the financial authority regarding fixed assets and working capital indicators is required.

Ministry (Department)...

(Accompanying the Tendering Regulation in Construction)

(Signature and stamp)

ANNEX 4:

MODEL OF BID SUBMISSION FORM

My name is ...Director... (name of the construction organization submitting the bid) with account number ...at ...

Respectfully submitted to:...

After thoroughly understanding the construction site and carefully studying the tender documents according to the announcement of the tendering authority on ..., I hereby accept to undertake the work (name of the tendered project) in accordance with the conditions set forth in the tender documents and economic-technical documents (survey data, design, estimate...) at a bid price of ...dong, within a period of ...days, starting from the date the authority issues the commencement order.

Prior to signing the contracting and subcontracting agreements, this bid submission form (upon acceptance by the authority) shall have binding force in the execution of the contract.

In the bid submission form, alternative bidding proposals may be included (if any), requirements for completing the work or completion time, or special terms (if necessary).

I solemnly declare that I will act within the scope and capabilities approved by the Department of Health.

(Signature, stamp)

Note: In the bid proposal, alternative bidding proposals (if any), requirements to complete the work or completion time for the work or other special terms (if necessary) may be included.