Decision No. 50/2012/QD-TTg on the application of direct award procurement method for tenders falling under special cases examined and decided by the Prime Minister

Pursuant to …;

Regarding the application of direct award procurement method for tender packages

belonging to special cases examined and decided by the Prime Minister

________________________

Pursuant to the Law on Organization of the Government dated December 25, 2001;

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

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

Pursuant to Decree No. 68/2012/NĐ-CP dated September 12, 2012 amending and supplementing certain provisions of Decree No. 85/2009/NĐ-CP dated October 15, 2009 of the Government guiding the implementation of the Law on Bidding and the selection of construction contractors under the Construction Law;

Pursuant to Decree No. 68/2012/ND-CP dated September 12, 2012 of the Government amending and supplementing certain articles of Decree No. 85/2009/ND-CP dated October 15, 2009 of the Government guiding the implementation of the Law on Bidding and the selection of contractors under the Construction Law;

At the proposal of the Minister of Planning and Investment;

The Prime Minister issues this Decision on the application of the direct award procurement method for tender packages belonging to special cases examined and decided by the Prime Minister,

Article 1. Scope of Regulation and Applicability

Ministries, ministerial-level agencies, agencies under the Government, central-level agencies, People's Committees at all levels, state-owned economic groups, state-owned corporations, and organizations and individuals related to the implementation of tender packages of projects within the scope regulated by the Law on Bidding and meeting the conditions stipulated in Article 2 and Article 3 of this Decision.

Article 2. Special cases applying direct award procurement method

Special cases examined and decided by the Prime Minister are specified in Point k Clause 2 Article 40 of Decree No. 85/2009/ND-CP, including:

1. Tender packages for urgent events of national importance that have been approved.

2. Tender packages for urgent work aimed at protecting national sovereignty, border territories, and islands.

3. Tender packages for urgent project preparation needed to be implemented immediately to ensure the attraction and mobilization of foreign sponsors' capital.

4. Tender packages for urgent work directly serving project preparation and initial infrastructure construction to meet the established schedule requirements for national energy development projects.

5. Tender packages for urgently supplying mechanical products manufactured and produced by domestic enterprises directly serving national energy development projects.

6. Tender packages for urgent traffic congestion relief to ensure traffic safety in centrally governed cities.

7. Tender packages considered urgent by the authority, which cannot organize bidding and must apply direct award procurement method to achieve higher efficiency than organizing bidding.

Article 3. Conditions for applying direct award procurement method

Tender packages stipulated in Article 2 of this Decision shall be subject to examination and approval of the direct award procurement method in the bidding plan when they fully satisfy the following conditions:

1. There is an approved investment decision, except for tender packages for consultancy services for project preparation.

2. The funding source for the tender package has been clearly identified and ensured to be adequately arranged according to the implementation schedule requirement; in case of using state budget funds, government bonds, compliance with Directive No. 1792/CT-TTg dated October 15, 2011 of

3. Ensuring the completion time of the direct award procurement procedure does not exceed 45 days, for large and complex tender packages not exceeding 90 days from the date of approving the request documentation to the signing of the contract.

4. Having an appraisal report from the agency or organization conducting the appraisal as stipulated in Article 4 of this Decision. Specifically, for tender packages stipulated in Clause 2 Article 2 of this Decision, there must be an approval opinion from the competent defense and security agency.

Article 4. Submission, Review, and Approval of Tendering Plan for Bids Subject to Direct Assignment

1. Based on the tendering plan approval dossier submitted by the project owner as stipulated in Clause 2 of this Article, the reviewing agency or organization shall prepare a review report according to the procedures and formalities prescribed in Article 11, Clause 1 of Article 12 of Decree No. 85/2009/ND-CP and within the time limit for review as prescribed in Clause 6 of Article 31 of the Law on Bidding to submit for consideration and decision by the authorized person.

2. The dossier for approval submission Depending on the urgency of the bid package, the project owner shall establish and submit the tendering plan for the bid package requesting direct assignment under the scope of adjustment of this Decision together with the tendering plans for other bid packages within the project or separately submit the tendering plan for the bid package requiring direct assignment for prior approval. The dossier for approval submission of the tendering plan for the bid package requesting direct assignment includes:

a) A proposal requesting approval of the tendering plan for the bid package applying the direct assignment method in special cases, in which detailed explanations of the following contents are required:

- The necessity to apply the direct assignment method in special cases for the bid package specified in Clause 7 of Article 2 of this Decision must provide additional reasons why it is not possible to organize a bidding process and the direct assignment method is more effective than organizing a bidding process, including the economic and social factors' effectiveness, explaining the key timeframes for preparing and approving the request for proposal, selecting contractors, implementing the contract, and other factors of the bid package to ensure the effectiveness of the direct assignment method compared to the open bidding method;

- Data, arguments, and accompanying documents to prove that the bid package proposed for direct assignment in special cases is consistent with the above explanations and falls under the special cases requiring direct assignment as prescribed in Article 2 of this Decision, while also meeting the conditions for applying direct assignment as prescribed in Article 3 of this Decision.

b) Relevant legal documents:

 - Decision approving the project (except in cases of direct assignment for consultancy services for project preparation);

 - Decision approving technical design and budget estimate (except in cases of direct assignment for technical design and budget estimate consultancy services);

 - Decision allocating and distributing investment capital;

- Other relevant documents.

3. The authorized person shall examine and approve the tendering plan for the bid package applying direct assignment in special cases based on the review report of the reviewing agency or organization as prescribed in Clause 2 of Article 12 of Decree No. 85/2009/ND-CP. The decision approving the tendering plan, the proposal requesting approval of the tendering plan, and the relevant legal documents mentioned in Clause 2 of this Article serve as the basis and grounds for examination during inspections and audits.

State-owned enterprises that have been assigned by the Ministry of Agriculture and Rural Development to conduct offshore wind power project surveys before the effective date of this Circular shall continue to implement according to the assigned documents; any new matters arising after the effective date of this Circular shall be implemented in accordance with the provisions of this Circular.

1. The project owner shall approve the results of direct assignment for the bid package in special cases within the scope of adjustment of this Decision in accordance with Clause 19 of Article 2 of the Law Amending and Supplementing Certain Provisions of Laws Related to Investment in Construction Projects and Article 41 of Decree No. 85/2009/ND-CP.

2. Information about the tendering plan and the results of direct assignment must be sent for publication in the Vietnam Bidding Gazette within a maximum period of 07 (seven) days from the date of signing the document. Specifically, for the bid package as stipulated in Clause 7 of Article 2 of this Decision, the Registration Form for Notifying the Tendering Plan sent to the Vietnam Bidding Gazette for publication must clearly state the necessary reasons for applying the direct assignment method in special cases. If the project owner or the tender inviter does not publish the information about the tendering plan and the results of direct assignment as mentioned above, they will be warned according to Article 75 of the Law on Bidding: When there are three or more violations resulting in warnings, they will be prohibited from participating in bidding activities for six months, and for each additional violation resulting in a warning, the prohibition period will increase by three months but not exceeding three years as prescribed in Clause 4 of Article 65 of Decree No. 85/2009/ND-CP.

3. During the process of selecting contractors, allocating funds, signing and implementing contracts for bid packages subject to direct assignment in special cases without ensuring the urgency, promptness, progress, and quality as stated in the explanatory notes in the project owner's proposal, the review report of the reviewing agency or organization, and the decision of the authorized person, the project owner and the authorized person shall bear legal responsibility for their decisions.

4. The project owner must ensure the selection of contractors and implementation of contracts for bid packages within the scope of adjustment of this Decision in accordance with the provisions of the Law on Bidding, and at the same time bear legal responsibility for their decisions.

Article 6. Effectiveness

1. This Decision takes effect from January 1, 2013.

2. During the implementation process, if there are any difficulties, ministries, sectors, localities, and enterprises should reflect their opinions to the Ministry of Planning and Investment for consolidation and proposal of content requiring supplementation and amendment to be submitted to the Prime Minister for consideration and decision./.