Decree No. 66/2003/ND-CP Amending and Supplementing Certain Provisions of the Tender Regulation issued together with Decree No. 88/1999/ND-CP dated September 1, 1999 and Decree No. 14/2000/ND-CP dated May 5, 2000 of the Government.

DECREE

Regarding the amendment and supplementation of some articles of the Bidding Regulation issued together with

Decree No. 88/1999/ND-CP dated September 1, 1999 and Decree No. 14/2000/ND-CP dated May 5, 2000 of the Government

Amendment and supplementation of some articles of the Bidding Regulation issued together with Decree No. 88/1999/ND-CP dated September 1, 1999 and Decree No. 14/2000/ND-CP dated May 5, 2000 of the Government (hereinafter referred to as Decree No. 88/CP and Decree No. 14/CP) as follows:

_________________

 

THE GOVERNMENT

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

The Prime Minister issues this Decision on principles, criteria, and allocation standards for state budget investment capital development phase 2016-2020.

DECREE:

Article 1. 1. Point c Clause 2 Article 2 of Decree No. 88/CP shall be amended and supplemented as follows:

"c) Projects using funds from international organizations or foreign sources shall be implemented based on the content of the agreement signed by both parties (the financier and Vietnam). In cases where the content related to bidding regulations in the draft agreement differs from this Bidding Regulation, the agency responsible for negotiating and signing the agreement must submit it for consideration and decision by the Prime Minister before signing. If the signed agreement contains content related to bidding regulations that differ from Vietnam's Bidding Regulation, the signed agreement shall apply. However, the procedures for approval, review, and determination of the bidding plan and the results of selecting contractors shall be carried out according to Vietnam's Bidding Regulation."

2. Article 3 of Decree No. 88/CP shall amend Clause 10, Clause 30 and supplement Clause 35 as follows:

"10. Contractor is an organization or individual within or outside Vietnam having civil legal capacity, and for individuals, they must also have civil conduct capacity to enter into and perform contracts. Civil legal capacity and civil conduct capacity of domestic contractors are assessed according to Vietnamese law, while those of foreign contractors are assessed according to the law of the country where the contractor holds citizenship. The contractor must ensure their financial independence.

The contractor is a construction company in construction bidding; a supplier in goods procurement bidding; a consultant (which may be an individual) in consultant selection bidding; an investor in investment partner selection bidding.

The contractor may participate in bidding independently (referred to as an independent contractor) or form a consortium with other contractors (referred to as a consortium contractor). In the case of a consortium, there must be an agreement among the consortium members regarding their common and individual responsibilities for the work under the tender package, and there must be a head of the consortium.

30. Contract price is the price agreed upon between the tenderer and the successful bidder after completing the contract negotiations, which must be consistent with the bid price, tender documents, and bid submission documents. The contract price along with specific terms on payment recorded in the contract serve as the basis for funding the tender package.

35. Project proponent is the organization entrusted with the direct management and implementation of the project as stipulated in Clause 5 of Article 3 of Decree No. 88/CP. For investment projects, the project proponent is the investor."

3. Clause 1 and Clause 2 of Article 4 of Decree No. 88/CP shall be amended and supplemented as follows:

"1. Open bidding

Open bidding is a form of bidding without limiting the number of contractors participating. The tenderer must publicly announce the conditions and time for bidding through mass media or on the bidding information sheet and the state bidding website and the websites of ministries and local departments at least ten days before issuing the tender documents. Open bidding is the main form applied in bidding.

Other forms of contractor selection can only be applied when there are sufficient grounds and are approved by the competent authority in the bidding plan.

2. Restricted bidding

Restricted bidding is a form of bidding where the tenderer invites a certain number of contractors (at least five) who have sufficient experience and capacity to participate. In cases where fewer than five contractors are invited, the tenderer must report to the project proponent for examination and decision by the competent authority. The project proponent decides the list of contractors to participate based on the evaluation by the tenderer of the experience and capacity of the contractors, but must ensure objectivity, fairness, and compliance with the criteria. This form can only be considered for application if one of the following conditions exists:

a) Only a few contractors are capable of meeting the requirements of the tender package;

b) Due to the source of funds, restricted bidding must be conducted;

c) Due to the specific circumstances of the tender package, restricted bidding has advantages."

4. Point b, point c and point d Clause 2 Article 1 of Decree No. 14/CP shall be amended and supplemented as follows:

"b) Tender packages with research and experimental nature, national confidentiality, decided by the competent authority.

c) Tender packages valued below one billion VND for goods procurement and construction; below five hundred million VND for consultancy.

For tender packages designated for bidding as provided in this point belonging to national key projects decided on investment policy by the National Assembly and investment decisions by the Prime Minister, the Prime Minister delegates responsibility for deciding to the project proponent but must comply with the Bidding Regulation.

When designating tender packages as provided in Clause 2 Article 1 of Decree No. 14/CP, the person making the designation shall bear legal responsibility for their decision.

If deemed unnecessary to designate tendering, bidding shall be conducted as prescribed. Strictly prohibited is the arbitrary division of projects into smaller packages for designation.

The Ministry of Finance shall specify the detailed rules for designated procurement of regular supplies, equipment, and working tools for government agencies; regular supplies, equipment, and working tools for armed forces.

d) Tender packages with special characteristics due to the requirements of the financing agency, technical and technological complexity, or urgent project requirements. Designation of such tender packages will be decided by the competent authority based on the assessment report of the relevant assessment agency, written opinions of the financing agency, and other relevant agencies."

5. Point b Clause 2 Article 6 of Decree No. 88/CP shall be amended and supplemented as follows:

Point b Clause 2 Article 6 Decree 88/CP shall be amended and supplemented as follows:

"b) A turnkey contract is a contract that includes all design work, provision of equipment and materials, and construction of a tender package carried out through a single contractor (abbreviated in English as EPC).

The selection of contractors for the execution of EPC tender packages through EPC contracts must comply with the provisions of Article 4 of Decree 88/CP and based on approved tender plans. Tender documents must include all three parts: design (E), provision of equipment and materials (P), and construction (C). Evaluation criteria for EPC tender packages must also fully cover these three works, including specifying the minimum technical score requirements for each work. Contractors with tender documents meeting high technical standards according to approved evaluation criteria (not less than 90% of the total technical points) and having the lowest evaluated price will be considered for award.

The Ministry of Planning and Investment guides the bidding procedures for selecting contractors to execute EPC tender packages.

The contents of EPC contracts shall follow the guidelines of the Ministry of Construction as stipulated in Clause 21 of Article 1 of Decree No. 07/2003/NĐ-CP dated January 30, 2003 issued by the Government.

The project owner is responsible for supervising the implementation process and final acceptance when the contractor completes the entire project according to the signed contract.

6. Point a of Clause 2, Article 7 of Decree 88/CP is amended and supplemented as follows:

"a) When there are quantities arising from changes in design: If the arising quantities fall within the scope of the approved tender documents, the value of the additional quantities shall be calculated based on the original contract unit prices. If they do not fall within the scope of the tender documents, they shall be calculated based on the unit prices prescribed by the state at the time of approval."

7. Clause 2 of Article 9 of Decree 88/CP is amended and supplemented as follows:

"2. Contractors participating in bidding or other forms of contractor selection as provided for in Article 4 of Decree 88/CP must meet the following conditions:

a) Financial independence, legal capacity under civil law, and for individuals, the capacity to enter into and perform contracts under civil law. In cases of purchasing complex equipment, the contractor must have a sales permit from the manufacturer;

b) May only participate in one bid for a tender package, whether as an independent participant or as part of a consortium;

c) Must be listed in the database of contractor information."

8. Clause 2 and Clause 8 of Article 10 of Decree 88/CP are amended and supplemented as follows:

"2. Foreign contractors participating in international tenders in Vietnam for construction and supply of goods must form a consortium with a Vietnamese contractor or commit to using Vietnamese subcontractors, clearly stating the division of work, volume, and corresponding value between the parties. For consultancy tender packages in projects funded by state budget, state-guaranteed credit, or state investment development credit where foreign consultancy is required, foreign organizations and experts participating in the selection process must form a consortium with domestic consultants to implement (except in cases where the Prime Minister permits non-consortium participation).

8. Preferences for domestic contractors and domestically produced goods in international tenders organized in Vietnam as specified in Clause 2 of Article 2 of Decree 88/CP are as follows:

a) Eligible recipients of preference

- Domestic contractors meeting the conditions to participate in tenders, including:

+ Enterprises operating under the Enterprise Law, State Enterprise Law, or cooperatives operating under the Cooperative Law;

+ Joint ventures operating under the Law on Foreign Investment in Vietnam with a Vietnamese share capital contribution of over 50%;

Construction or consultancy tender packages where the work undertaken by domestic contractors has a value exceeding 50%.

Supply tender packages where the cost of domestic production accounts for more than 30% of the factory price.

b) Content of preference

When evaluating tender documents that include domestic contractors or domestically produced goods, the preferential assessment is conducted as follows:

For consultancy tender packages, when evaluating tender documents, if domestic contractors eligible for preference achieve the minimum technical score, their overall evaluation score will be increased by 7.5%;

For construction tender packages, when determining the evaluated price, the preference is implemented by adding 7.5% to the tender price (after correcting mathematical errors and adjusting discrepancies) of non-preference contractors to serve as the basis for comparing and ranking tender documents;

For procurement tender packages, when determining the evaluated price of tender documents containing goods not eligible for preference, an amount equivalent to import taxes and fees as prescribed by law that the importing contractor cannot be exempted from paying for goods in the tender package, or 15% of the price of the goods, including transportation and insurance costs to Vietnamese seaports or river ports (CIF price) or to the designated location (CIP price) of the goods, if the aforementioned taxes and fees exceed 15% (excluding goods subject to import duties) must be added to the evaluated price;

In cases where the overall scores are equal for consultancy tender packages, or the evaluated prices are equal for construction or procurement tender packages, domestic contractors will be ranked higher than foreign contractors."

9. Clause 1 and point b of Clause 2 of Article 13 of Decree 88/CP are amended and supplemented as follows:

"1. Opening bids:

After receiving tender documents (properly sealed, submitted in accordance with the requirements of the tender documents, and managed under the confidential file management system), the bid opening shall be conducted publicly immediately after the bid closing time, date, and location specified in the tender documents. Key information stated in the tender documents of each contractor must be publicly announced during the bid opening session and recorded in the bid opening minutes.

The bid opening minutes should include the following main contents:

a) Name of the package;

b) Date, time, and location of the bid opening;

c) Names and addresses of the contractors;

d) Bid prices, bid guarantees for procurement or construction, and implementation schedules;

e) Other related contents."

Representatives of the Tender Inviter and invited contractors present must sign the bid opening record.

The original tender documents after opening must be signed and confirmed by each page by the Tender Inviter to ensure their original state before proceeding with evaluation and management under the "Confidential" file management regime.

2.b) Apply the evaluated price method for procurement packages of goods or construction/installation works in two steps as follows:

- Step 1: Evaluate on a technical basis according to the evaluation criteria specified in the tender invitation to select a shortlist (a list of contractors meeting the technical requirements according to the evaluation criteria).

Tender documents that achieve a total score from the minimum score onwards as stipulated in the evaluation criteria but, in principle, shall not be set lower than 70% of the total technical score, for procurement packages with high technical requirements, the minimum score shall not be set lower than 90% of the total technical score (for the scoring method) or those meeting the requirements according to the "pass" or "fail" criteria are considered to meet the technical requirements.

- Step 2: Determine the evaluated price for tender documents in the shortlist to rank them.

10. Article 15 of Decree 88/CP is amended and supplemented as follows:

"Article 15. Responsibilities of the authorized person, project owner, and Tender Inviter.

1. The authorized person is responsible for:

a) Approving the bidding plan of the project, approving or authorizing the approval of the tender invitation, and approving the selection results of contractors for all procurement packages within the project based on the report of the appraisal agency;

b) Directing and inspecting the project owner and Tender Inviter to implement the Bidding Regulations.

2. The project owner is responsible for:

a) Submitting to the authorized person for approval of the bidding plan, tender invitation, and contractor selection results for all procurement packages within the project;

b) Being responsible for the contractor selection process in accordance with the Bidding Regulations and being legally accountable for their decisions. In cases where the project owner has sufficient capacity, they may act as the Tender Inviter to organize the bidding process themselves, if not, they are permitted to use a qualified and capable specialized organization to act as the Tender Inviter, but the project owner still bears responsibility for the contractor selection process in accordance with the Bidding Regulations and directly signs contracts with the winning contractors.

c) Deciding on the contents of the bidding process, including:

Preliminary tender invitation documents, preliminary evaluation criteria, and preliminary selection results;

List of limited bidding contractors;

List of selected consulting service contractors;

List of contractors meeting technical requirements and ranking lists of contractors based on the comprehensive technical and financial evaluation scores for consulting services procurement packages;

List of contractors meeting technical requirements and ranking lists of contractors based on the evaluated price for goods procurement or construction/installation procurement packages;

Negotiating with designated contractors and being responsible for the contents of the designation;

Deciding on the designation of procurement packages as stipulated in point c and point e, Clause 2, Article 1 of Decree 14/CP;

Contract contents.

In cases where the project owner is simultaneously the authorized decision-maker for the project or the Tender Inviter, they must fulfill all tasks prescribed in Clause 1 or Clause 3 of this Article.

3. The Tender Inviter is responsible for:

a) Organizing and implementing the selection of contractors, bearing legal responsibility for the contractor selection process in accordance with the Law on Bidding;

b) Preparing and submitting for approval the bidding plan of the project as prescribed in Article 8 of Decree 88/CP;

c) Implementing the approved bidding plan according to the bidding organization procedures prescribed in Articles 20, 22, 33, 45, and 47 of Decree 88/CP, including:

Establishing a specialist team or hiring bidding consultants based on the project owner's decision;

Summarizing the contractor selection process and reporting the selection results to the project owner;

Announcing the winning bid, negotiating to complete the contract;

Submitting the contract contents for the project owner's decision so that the project owner can sign the contract."

11. Clause 1 and Clause 2 of Article 16 of Decree 88/CP are amended and supplemented as follows:

"1. Composition of the Specialist Team:

Depending on the nature and complexity of the procurement package, the composition of the Specialist Team should include experts in:

a) Technology and engineering;

b) Finance and commerce;

c) Legal issues and other matters (if necessary).

The list of the Specialist Team is decided by the project owner.

The head of the Specialist Team is responsible for managing the work, compiling, and preparing reports on the evaluation of tender documents or related materials.

2. Criteria for members of the Specialist Team:

a) Understanding the law on bidding;

b) Having relevant expertise related to the tender package;

c) Understanding the specific contents of the procurement package;

d) Having practical experience in management or research."

12. Article 29 of Decree 88/CP is amended and supplemented as follows:

"Article 29. Evaluation Criteria for Tender Documents

The evaluation criteria for tender documents must be fully stated in the tender invitation, including:

1. Criteria regarding the contractor's capacity and experience:

a) Production and business capacity, technical facilities, professional staff qualifications;

b) Financial capacity (revenue, profit, and other indicators);

c) Experience in executing similar contracts in Vietnam and abroad; in some special cases to facilitate the development of domestic contractors, the requirement for experience may only be minimal but must be reviewed and decided by the authorized person in the tender invitation.

The contents prescribed in this clause are evaluated according to the "pass" or "fail" criteria. A contractor must pass all three items a, b, and c of this clause to be considered to have sufficient capacity and experience to participate in the bidding.

2. Technical criteria:

a) Ability to meet the quantity, quality, and technical performance requirements of goods specified in the tender invitation;

b) Economic and technical characteristics of goods, production standards, and other contents (the tender invitation shall not require specific brand or origin of goods);

c) Rationality and economic efficiency of technical solutions and organizational measures for supplying goods;

d) Installation capability and technical staff capacity;

đ) Geographic adaptability;

e) Environmental impact and measures to address it;

g) Financial provision capability (if required);

h) Other contents regarding commercial and financial conditions, implementation time, technology transfer training (if applicable).

Use a scoring system (100 or 1000 points) or criteria "pass" and "fail" to determine the contents specified in this clause. In the evaluation standards, the minimum technical requirements must be set but not lower than 70% of the total technical score (for tenders with high technical requirements, the minimum score must not be lower than 90% of the total technical score). If the evaluation standard uses the criteria "pass" and "fail," the minimum technical requirements must also be clearly defined.

A tender document that achieves or exceeds the minimum score when using the scoring method or meets the requirements when using the "pass" and "fail" criteria shall be considered to meet the technical requirements.

3. Criteria to establish a common basis for determining the evaluation price, including:

a) Service life;

b) Design capacity;

c) Product quality standards;

d) Origin of goods stated in the tender document;

đ) Operating, maintenance, and repair costs;

e) Commercial and financial conditions;

g) Supply and installation schedule.

4. Apart from the evaluation criteria specified in the tender invitation, no omission, addition, or change of any content of the evaluation criteria shall be made during the bid evaluation process.

13. Point a, Clause 2, Article 30 of Decree 88/CP is amended and supplemented as follows:

"a) Step 1: Technical evaluation to select a shortlist

The technical evaluation is based on the evaluation criteria stipulated in the tender invitation to select a shortlist. During the evaluation process, the tenderer has the right to request bidders to explain unclear or unreasonable contents in their tender documents such as quantity and unit price."

14. Clause 6, Article 35 of Decree 88/CP is amended and supplemented as follows:

"6. Technical design documents accompanied by cost estimates and technical instructions.

Technical design documents must ensure quality as prescribed. Cost estimates derived from the design must be complete and accurate to serve as a legal basis for bidders to prepare tender prices. Requirements for construction materials and equipment quality must be clearly stated in the tender invitation to serve as a basis for calculating and preparing tender prices, analyzing key items' tender prices according to the tender invitation's requirements. It is strictly prohibited to specify brand or origin requirements for construction materials in the tender invitation."

15. Article 40 of Decree 88/CP is amended and supplemented as follows:

"Article 40. Evaluation criteria for tender documents

The evaluation criteria for tender documents must be fully stated in the tender invitation, including:

1. Criteria regarding the bidder's experience and capacity:

a) Experience in implementing projects with similar technical requirements in comparable geographic regions and sites;

b) Number and level of technical staff directly involved in the project;

c) Financial capacity (revenue, profit, and other indicators).

The contents specified in this clause are evaluated based on the criteria "pass" and "fail." The bidder must achieve all three contents a, b, and c of this clause to be considered qualified in terms of experience and capacity to participate in the tender.

2. Technical criteria:

a) Degree of compliance with technical and material quality requirements specified in the technical design documents;

b) Reasonableness and feasibility of technical solutions and construction organization methods;

c) Ensuring environmental hygiene conditions and other conditions such as fire prevention and labor safety;

d) Degree of compliance of construction equipment (quantity, type, quality, and mobilization schedule), construction workforce;

đ) Quality assurance measures;

e) Financial provision capability (if required);

g) Contents related to construction progress, consortium and joint venture conditions, and other requirements specified in the tender invitation.

Use a scoring system (100 or 1,000 points) or criteria "pass" and "fail" to determine the contents specified in this clause. When using a scoring system to evaluate tender documents, the evaluation criteria must set a minimum technical score but not lower than 70% of the total technical score (for tenders with high technical requirements, the minimum score must not be lower than 90% of the total technical score). If the evaluation standard uses the criteria "pass" and "fail," the minimum technical requirements must also be clearly defined.

A tender document that achieves or exceeds the minimum score for the scoring method or meets the requirements under the "pass" and "fail" criteria shall be considered to meet the technical requirements.

3. Criteria to establish a common basis for determining the evaluation price, including:

a) Quality of materials used for construction and installation;

b) Operating, maintenance, and repair costs of the project;

c) Other incidental costs that the project owner must pay outside the construction contract (if applicable);

d) Contract conditions (especially payment and settlement schedule);

đ) Financial conditions (such as loan period, interest rate...);

e) Contract execution time.

4. Apart from the evaluation criteria specified in the tender invitation, no omission, addition, or change of any content of the evaluation criteria shall be made during the bid evaluation process."

16. Clause 2, Article 41 of Decree 88/CP is amended and supplemented as follows:

"2. Detailed evaluation:

The detailed evaluation of tender documents includes the following two steps:

a) Step 1: Technical evaluation to select a shortlist.

The technical evaluation is based on the evaluation criteria stipulated in the tender invitation to select a shortlist. During the evaluation process, the tenderer has the right to request bidders to explain unclear or unreasonable contents in their tender documents such as quantity and unit price.

b) Step 2: Financial and commercial evaluation.

Conduct a financial and commercial evaluation of bidders in the shortlist on a common basis according to the approved evaluation criteria.

The financial and commercial evaluation aims to determine the evaluation price, including the following contents:

Correct errors;

Adjust discrepancies;

Convert tender prices to a common currency;

Establish a common basis for comparison;

Determine the evaluation price of tender documents.

During the evaluation process, the Tender Inviter has the right to request bidders to clarify unreasonable unit prices, and if the explanatory document provided by the bidder is not sufficiently clear, it shall be considered as deviation and included in the bid evaluation price of that bidder.

17. Article 50 of Decree 88/CP is supplemented with Clauses 8, 9, 10, and 11 as follows:

"8. Management of tender information system.

9. Management of tender data information system.

10. Management of foreign contractors in Vietnam.

11. Implementation of inspection and supervision on tendering and contract performance."

18. Article 51 of Decree 88/CP is amended as follows:

"Article 51. Tender Information

1. Means for publishing tender information:

The means for publishing tender information include:

a) Tender information sheets and national government tender websites;

b) Tender information sheets and tender websites of ministries, sectors, and localities;

c) Other mass media such as daily newspapers, central and local radio and television stations.

2. Contents to be published:

The contents to be published include:

a) Tender Plan;

b) Preliminary tender invitation announcement, preliminary tender results;

c) Tender invitation notices;

d) List of restricted tender participants;

đ) List of tender consultant participants;

e) Bid selection results;

g) List of individuals and organizations including contractors violating the Tender Regulations;

h) List of contractors banned from participating in tenders;

i) Information on handling violations of the Tender Regulations;

k) Newly issued legal documents on tendering;

l) Reports summarizing tender activities;

m) Tender activities of the entity;

n) Contractor information data system.

3. Management of tender information sheets and tender websites

a) Managing bodies:

- The Ministry of Planning and Investment is responsible for managing national tender information sheets and websites throughout the country.

- Ministries, sectors, and localities are responsible for managing tender information sheets and websites within their jurisdiction.

b) Content of tender information:

The content of information published by the Ministry of Planning and Investment includes:

The contents specified in points a, b, c, d, đ, e of Clause 2 of this Article for national key projects, group A and B projects (regardless of funding sources) and joint ventures, business cooperation contracts, and shareholding projects.

The remaining contents specified in points g, h, i, k, l, m, and n of Clause 2 of this Article for all projects must be provided by the agencies responsible for providing information as stipulated in point c of this clause.

For ministries, sectors, and localities, they decide on the contents to be published according to Clause 2 of this Article based on project conditions and actual circumstances. Information from projects published by ministries, sectors, and localities must still be sent to the Ministry of Planning and Investment for joint publication.

c) Information providers.

Project owners of national key projects, group A and B projects (regardless of funding sources), joint ventures, business cooperation contracts, and shareholding projects are responsible for providing information to the management body of tender information sheets and websites regarding the contents specified in points a, b, c, d, đ, e, g, and i of Clause 2 of this Article for projects under their management.

Ministries, ministerial-level agencies, government agencies, provincial people's committees, and municipal people's committees directly under the Central Government are responsible for providing the Ministry of Planning and Investment with the contents specified in points g, i, l, and m of Clause 2 of this Article within their jurisdiction.

Contractors provide their own information data as specified in point n of Clause 2 of this Article to the Ministry of Planning and Investment.

4. Other mass media:

Other mass media as specified in point c of Clause 1 of this Article publish tender invitation notices for group C projects and other information."

19. Article 52 of Decree 88/CP is amended and supplemented as follows:

"Article 52. Delegation of Responsibility for Tendering

1. The Prime Minister:

a) Approval of tender plans for national key projects decided on investment policy by the National Assembly and investment decisions by the Prime Minister (regardless of funding sources);

b) Approval of tender results for packages with a package value of VND 100 billion or more for goods procurement or construction/installation, and VND 20 billion or more for consultancy services under projects decided on investment by themselves. For the remaining packages, the Prime Minister delegates approval authority to ministers, heads of ministerial-level agencies, government agencies, chairpersons of provincial people's committees, and municipal people's committees directly under the Central Government, who bear responsibility for the tender results;

c) Approval of proposals for direct designation of contractors, direct procurement, and self-execution for packages specified in Clauses 3, 5, and 6 of Article 4 of Decree 88/CP under projects decided on investment by themselves, except for packages valued at less than VND 1 billion for goods procurement or construction/installation, and less than VND 500 million for consultancy services, which are decided by the project owner.

For the contents specified in points a and b of this Article, the Prime Minister approves based on the review report of the Ministry of Planning and Investment and written opinions of relevant competent authorities. For the contents specified in point c of this Article, the Prime Minister approves based on the review report of the Ministry of Planning and Investment and written opinions of the funding agency and relevant competent authorities.

d) Decision to inspect and handle violations of laws on tendering.

2. The Minister of Planning and Investment is responsible for:

a) Reviewing and submitting to the Prime Minister for consideration and approval on:

Tender plans for projects decided on investment by the Prime Minister;

Tender results for packages within the Prime Minister's approval authority;

Proposals for direct designation of contractors, direct procurement, and self-execution for packages specified in Clauses 3, 5, and 6 of Article 4 of Decree 88/CP within the Prime Minister's approval authority.

b) Issuing and managing national tender information sheets and websites, and managing the contractor information data system.

c) Inspecting and supervising tender activities nationwide.

3. The Minister, the Head of a ministry-level agency, the Head of a government agency, the financial management agency of the Central Party, the central agency of political-social organizations (as defined in the State Budget Law), the Chairman of the People's Committee of a province or centrally governed city shall be responsible for:

a) Providing comments in writing on the bidding plan and the results of selecting contractors for relevant project packages submitted by the project owner, within the Prime Minister’s approval authority;

b) Approving tender documents for project packages within the Prime Minister’s approval authority for bidding results, and approving tender documents and bidding results for project packages delegated to the Prime Minister’s approval authority as stipulated in point b, Clause 1, Article 3 of this Decree;

c) Approving the bidding plan, tender documents, and the results of selecting contractors for all project packages using state budget funds within their investment decision-making authority. For projects delegated to lower levels for investment decisions, they shall also delegate the approval of the bidding plan, tender documents, and the results of selecting contractors for all project packages within the project, but still bear responsibility for the delegated tasks;

d) Reaching a written agreement with the project owner regarding the bidding plan for the project and the results of selecting contractors for project packages valued at VND 1 billion or more for consultancy services, and VND 5 billion or more for goods procurement or construction works (according to the approved bidding plan) for joint venture projects, business cooperation contracts, or shareholding projects as stipulated in point b, Clause 2, Article 2 of Decree 88/CP, based on the assessment of the bidding support agency, where they represent the state ownership according to the law for state-owned enterprises participating in the project;

4. The Chairman of the People's Committee of a provincial city, district, county, town, commune, ward shall be responsible for:

a) Approving the bidding plan for projects using state budget funds within their investment decision-making authority;

b) Approving tender documents and the results of selecting contractors for all project packages within their investment decision-making authority;

5. The Board of Directors (or the person authorized by the Board of Directors) of joint ventures, joint-stock companies, and the legal representatives of parties involved in business cooperation contracts shall be responsible for the following regarding projects as stipulated in point b, Clause 2, Article 2 of Decree 88/CP:

a) Approving the bidding plan for the project based on the written agreement of the representative of the state owner according to the law for state-owned enterprises participating in the project;

b) Approving the results of selecting contractors for all project packages within the project, specifically for consultancy project packages valued at VND 1 billion or more and construction or goods procurement project packages valued at VND 5 billion or more (according to the approved bidding plan), based on the agreement of the representative of the state owner according to the law for state-owned enterprises participating in the project;

c) Approving tender documents and deciding on all aspects of the bidding process as prescribed;

6. The person with authority in the enterprise shall be responsible for approving the bidding plan for the project, tender documents, and the results of selecting contractors for all project packages within the project decided upon by themselves, while deciding on all aspects of the bidding process as prescribed;

20. Article 53 of Decree 88/CP shall be amended and supplemented as follows:

"Article 53. Delegation of Approval and Review of Tender Documents and Results of Selecting Contractors

Based on the approved package price in the bidding plan for projects as stipulated in points a and c, Clause 2, Article 2 of Decree 88/CP, the review and approval of the results of selecting contractors shall be carried out as follows:

1. For national key projects decided on investment policy by the National Assembly and investment by the Prime Minister:

a) The Prime Minister shall approve the results of selecting contractors based on the review report of the Ministry of Planning and Investment for project packages within his approval authority as prescribed.

b) The Minister, the Head of a ministry-level agency, the Head of a government agency, the Chairman of the People's Committee of a province or centrally governed city shall approve tender documents for project packages within the Prime Minister’s approval authority for bidding results, and approve tender documents and bidding results for project packages delegated to the Prime Minister’s approval authority as prescribed, based on the review of the related supporting unit or the Department of Planning and Investment if it is a local project.

2. For projects using state budget funds:

a) The Minister, the Head of a ministry-level agency, the Head of a government agency, the financial management agency of the Central Party, the central agency of political-social organizations (as defined in the State Budget Law) shall approve tender documents and the results of selecting contractors for all project packages within the project decided upon by themselves based on the review of the related supporting unit.

b) The Chairman of the People's Committee of a province or centrally governed city shall approve tender documents and the results of selecting contractors for all project packages within the project decided upon by themselves based on the review of the Department of Planning and Investment.

c) The Chairman of the People's Committee of a district, county, town, centrally governed city, commune, ward, town shall approve tender documents and the results of selecting contractors for all project packages within the project decided upon by themselves based on the review of the related supporting unit.

3. For projects decided on investment by enterprises:

The person with authority in the enterprise shall be responsible for approving tender documents and the results of selecting contractors for all project packages within the project decided upon by themselves based on the review of the related supporting unit";

21. Clause 5 and Clause 7 of Article 55 of Decree 88/CP shall be amended and supplemented as follows:

"5. Cancellation of Bidding and Financial Responsibility for Cancellation:

a) Cancellation of bidding shall be applied in one of the following cases:

Change in the objectives stated in the tender invitation;

There is evidence that the Inviting Party colludes with the contractor to create an unfair competitive environment in the bidding process;

All tender documents basically fail to meet the requirements of the tender documents;

There is evidence that the contractors have colluded negatively, creating a lack of competition in the bidding process, affecting the interests of the Inviting Party.

Based on the decision of the authorized person, the Inviting Party is responsible for notifying all contractors about the cancellation of the bidding or conducting the bidding again.

b) Financial responsibility when cancelling the bid:

If the cancellation of the bid is not the fault of the contractor, then the Inviting Party must be responsible for compensating the contractors for the costs incurred in participating in the bidding.

The compensation amount is calculated based on the principle of accurate and full calculation according to the state-set standards, including the following items:

Cost of purchasing the bidding invitation documents;

Travel expenses (to purchase the bidding invitation documents, submit the bidding proposal, conduct site surveys...);

Cost of preparing the bidding proposal;

Other costs (office supplies, depreciation of equipment, etc.);

The compensation cost for cancelling the bid due to changes in investment objectives or scope decided by the authorized person shall be paid from the project's budget; if it is due to other reasons caused by the fault of the Inviting Party, then the relevant individuals within the Inviting Party shall be responsible for payment.

7. The rejection of bidding proposals shall apply in any of the following cases when the bidding proposal:

a) Does not meet the preconditions stated in the bidding invitation documents;

b) Does not meet technical requirements;

c) The contractor does not accept mathematical errors discovered by the Inviting Party and requested to correct, or has mathematical errors exceeding 15% of the bid price (applicable only to procurement packages for goods or construction works);

d) Has a total value of discrepancies exceeding 10% of the bid price (applicable only to procurement packages for goods or construction works);

đ) Contains false declared information.

22. Supplement Article 57a of Decree 88/CP (after Article 57) as follows:

"Article 57a. Contractor Information Database System

1. Content of the Contractor Information Database System.

The Contractor Information Database System includes a list of contractors participating in bidding for projects in Vietnam with specific contents for each contractor as follows:

a) Name of the contractor;

b) Year of establishment;

c) Tendering fields such as consultancy, supply of goods or construction works;

d) Total assets, current working capital;

đ) Other related contents.

2. Management Authority of the Contractor Information Database System.

The national management authority of the Contractor Information Database System is the Ministry of Planning and Investment. The Ministry of Planning and Investment is responsible for publishing contractor information data on the tendering information sheet and the State's tendering website.

3. Responsibility for providing contractor information data.

Contractors are responsible for providing contractor information data to the Ministry of Planning and Investment as stipulated in Clause 1 of this Article. The condition for participating in the bidding is that the contractor must be listed in the Contractor Information Database System published on the tendering information sheet and the State's tendering website."

23. Supplement Article 57b of Decree 88/CP as follows:

"Article 57b. Management of Foreign Contractors in Vietnam

1. Foreign contractors wishing to participate in bidding in Vietnam must provide information data to the management authority of the Contractor Information Database System as stipulated in Clause 22 of Article 1 of this Decree.

2. The Ministry of Construction shall take the lead and coordinate with the Ministry of Public Security, the Ministry of Trade, and the Ministry of Finance to study and propose to the Prime Minister to issue regulations on the management of foreign contractors operating in Vietnam and the responsibilities of the project owner for managing foreign contractors after winning the bid and implementing contracts in Vietnam."

24. Clause 1 of Article 59 of Decree 88/CP is amended and supplemented as follows:

"1. Inspection of the implementation of bidding activities shall be carried out as follows:

a) Issuance of inspection decision and implementation of inspection:

The Prime Minister decides on the inspection of bidding activities of Ministries, agencies at the level of ministries, agencies under the Government, and localities nationwide when necessary.

The Ministry of Planning and Investment shall implement inspections of bidding activities nationwide within its functions and for specific cases upon the decision of the Prime Minister.

The Minister, Head of an agency at the level of a ministry, Head of an agency under the Government, and Chairman of People's Committees at all levels decide and organize the inspection of bidding activities according to the Bidding Regulations for units under their management and units with projects licensed for investment as stipulated in Point b, Clause 2 of Article 2 of Decree 88/CP.

b) Regular inspection:

Depending on the situation of bidding activity implementation at the grassroots level, the authorized person decides on regular inspections quarterly, semi-annually, or annually. The regular inspection focuses on the following main contents:

The overall situation of bidding activity implementation by the unit;

The situation of bidding activity implementation for specific projects: approved bidding plan; bidding procedures, legal bases, reasons for restricted bidding, reasons for direct award, bidding results, contract value, contract implementation status.

c) Spot inspection:

Spot inspections are conducted for bidding packages with winning bids significantly lower than the package price, for bidding packages with issues, or when required by the authorized person. The inspection focuses on the following main issues:

Legal procedures and accompanying documents;

Implementation procedures; time taken for each stage during the contractor selection process;

Selection results;

Specific issues, concerns raised by the Inviting Party, contractors (if any);

- Recommendations for handling by the entity.

d) During the inspection process, if any issues are found, they should be reported to the authorized person for consideration and resolution. If any violations of bidding laws are discovered, they should be reported to the authorized person to transfer the task to the inspectorate for handling or to other legal authorities for handling within their jurisdiction. The entire inspection process shall be reported in writing to the authorized person and sent to the management authority of the tendering information sheet and the State's tendering website for publication of information.

25. Supplement Article 59a of Decree 88/CP (after Article 59) as follows:

"Article 59a. Inspection of Bidding Activities

Tender inspection is the implementation of inspection functions in the field of tendering. Tender inspection is specified as follows:

1. The agency conducting tender inspection.

The agency conducting national tender inspection is the Ministry of Planning and Investment. Ministries, ministerial-level agencies, government agencies, and localities organize inspections of tendering activities within units under their management and projects licensed by them according to point b, clause 2, Article 2 of Decree 88/CP.

2. Inspection subjects.

The subjects of tender inspection are the activities of organizations and individuals participating in tenders.

3. Organization of inspection.

The organization of inspection is carried out when signs of violation of laws on tendering are detected, upon request of the inspection agency mentioned in clause 24, Article 1 of this Decree, or at the request of authorized persons regarding specific tender cases.

4. Content of inspection.

The content of inspection is determined based on specific cases. For inspections related to the selection of contractors, the focus is on the following main issues:

a) Legal documents concerning the implementation of the tender package, specifically:

- Approved tender plans, forms of contractor selection, particularly the bases for applying limited tendering and direct award;

- Tender invitation documents and other legal documents concerning the contents of the tender process;

- Decision approving the results of contractor selection.

b) The procedure for selecting contractors, key timeframes in the tendering process.

c) Comments, reservations from consultants, expert teams, or other individuals (if any) reflecting to the inspection agency.

5. Handling violations during inspection.

During the inspection, if violations are discovered, depending on the nature of the violation, the inspection agency or inspector will impose administrative penalties according to the state's laws on inspection, or recommend disciplinary actions against individuals (if they are civil servants) according to the Civil Servant Ordinance, impose penalties according to the Anti-Corruption Ordinance, or pursue criminal responsibility according to the law.

6. Reporting on tender inspection.

The inspection agency or inspector responsible for conducting the inspection must report the results to the authorized person.

26. Amend Clause 2 and supplement Clause 5 of Article 60 of Decree 88/CP as follows:

"2. Contractors who violate laws on tendering shall be subject to handling according to the degree of violation as stipulated by law, specifically as follows:

a) When a contractor provides false information about financial capacity, technical capability, experience, or consultant resumes in the bidding dossier, the Tender Inviter has the right to reject the bidding dossier of that contractor without refunding the bid bond (if any), and the violator must be listed on the tender information sheet and the state's tender website;

b) If a contractor bribes individuals or organizations associated with the Tender Inviter or relevant authorities during the tendering process, the bidding dossier of that contractor will not be considered, the bid bond will not be refunded, and the name of the contractor will be listed on the tender information sheet and the state's tender website, and will be handled according to the law;

c) Contractors who collude with each other affecting the interests of the Tender Inviter will not have their bid bonds refunded and will be listed on the tender information sheet and the state's tender website;

d) Consulting contractors who provide inaccurate construction design causing construction modifications, supplements, or redesigns leading to waste must compensate for losses and will be listed on the tender information sheet and the state's tender website;

đ) Supervising consulting contractors who are negligent, colluding with construction contractors to certify incorrect quantities and quality of work, reducing project quality, both consulting and construction contractors must compensate for losses and will be listed on the tender information sheet and the state's tender website, and individuals involved may face criminal prosecution according to the law depending on the severity of the violation;

e) Construction contractors who fail to perform the scope of work as stipulated in the contract, fail to comply with agreements between parties in a consortium, or subcontract work not specified in the contract must strictly adhere to the contract and bear all additional costs incurred due to non-compliance. Violating construction contractors and related supervising consultants will be listed on the tender information sheet and the state's tender website, and individuals involved may face criminal prosecution according to the law;

g) Contractors who fail to fulfill contracts for reasons other than force majeure or whose contracts are terminated due to breach will be listed on the tender information sheet and the state's tender website;

h) In cases where a contractor violates one or more provisions from point a to point g of this clause, being listed on the tender information sheet and the state's tender website, if listed three times, they will be barred from participating in any tender for one year. If a contractor violates three times consecutively, they will be barred for two years, and if they violate three times consecutively again, they will be barred for three years, and if they continue to violate after the third consecutive violation, they will be permanently barred from participating in tenders.

The agency managing the tender information sheet and the state's tender website is responsible for publishing the list of contractors barred from participating in tenders on the tender information sheet and the state's tender website, and removing their names from the database of contractors.

5. Individuals and organizations of the Tender Inviter (including the Expert Group) violating laws on public procurement outside those stipulated in Clauses 1, 3, and 4 of Article 60 of Decree 88/CP shall be handled as follows:

a) Individuals and organizations of the Tender Inviter (including the Expert Group) engaging in fraudulent behavior, submitting false reports on the tendering and evaluation process; colluding with contractors; accepting bribes shall be subject to disciplinary action or criminal responsibility depending on the severity of the violation.

b) The Tender Inviter (including the Expert Group) failing to comply with the prescribed procedures and processes for organizing tenders, conducting tenders without approved tender plans, and failing to provide tender information as required shall be subject to handling measures such as changing personnel of the Tender Inviter, of the Expert Group, disciplining offending individuals (if they are civil servants) according to the Civil Servant Ordinance, prohibiting participation in any tender packages under their management, compensating for losses (if any), or referring the case to relevant authorities (such as inspection bodies) for administrative violations or other legal bodies for punishment as prescribed by law, depending on the severity of the violation and the violator.

27. Delete Article 5 of Article 61 of Decree 88/CP.

Article 2. Handling transitional issues

1. For tender packages that have issued tender documents before this Decree takes effect, implement Decree 88/CP and Decree 14/CP.

2. For tender packages that issue tender documents after this Decree takes effect, organize implementation according to this Decree.

3. Regarding the announcement of invitations to tender and the use of contractor information data on tender information sheets and state tender websites, it will be implemented after guidelines from the Ministry of Planning and Investment.

Article 3. This Decree takes effect fifteen days after its publication in the Official Gazette.

Article 4. The Ministry of Planning and Investment shall take the lead and coordinate with relevant ministries and sectors to be responsible for researching and issuing tender document templates, guiding inspections on public procurement, and guiding and supervising the implementation of this Decree.

Article 5. Ministers, heads of ministerial-level agencies, heads of agencies under the Government, Chairpersons of People's Committees of provinces and centrally-run cities, Chairpersons of State-owned Enterprise Management Councils, and related organizations are responsible for implementing this Decree./.