Vietnam: What are the prohibited acts in bidding according to the provisions of the Law on Bidding 2023? What are the prohibited acts of inequality and non-transparency in bidding?
What are the prohibited acts in bidding in Vietnam according to the provisions of the Law on Bidding 2023?
Pursuant to Article 16 of the Law on Bidding 2023, prohibited acts in bidding activities include:
- Offering, giving, receiving or taking a bribe.
- Abusing positions or entrusted power to influence or illegally intervene in bidding process in any form.
- Collusive practice
- Fraudulent practice
- Obstructive practice
- Inequality and non-transparency
- Unauthorized disclosure of the following information and documents on the contractor/investor selection, except the cases specified in Point b Clause 8 and Point g Clause 9 Article 77, Clause 11 Article 78, Point h Clause 1 Article 79, Clause 4 Article 80, Clause 4 Article 81, Clause 2 Article 82, Point b Clause 4 Article 93 of Law on Bidding 2023
- Illegal transfer of awarded contract for the cases in Clause 8, Article 16 of the Law on Bidding 2023.
- The contractor selection is conducted before determining funding sources as prescribed in Clause 3, Article 39 of the Law on Bidding 2023.
What are the prohibited acts in bidding in Vietnam according to the provisions of the Law on Bidding 2023? What are the prohibited acts of inequality and non-transparency in bidding?
What are the prohibited acts of inequality and non-transparency in bidding in Vietnam?
Pursuant to Clause 6, Article 16 of the Law on Bidding 2023, inequality and non-transparency, including:
- A bidder or investor of a package or investment project is also the procuring entity or employer or takes charge of performing tasks of the procuring entity or employer of that package or investment project;
- A person or entity concurrently engages in the preparation and appraisal of EOI request, prequalification document, bidding documents, or RFP of the same package or investment project;
- A person or entity concurrently engages in the evaluation of bids or proposals and the appraisal of the contractor or investor selection result of the same package or investment project;
- A person who is working for the procuring entity/employer directly engages in the contractor/investor selection, or acts as a member of the expert team or appraising team in charge of appraising the contractor/investor selection result, or is a competent person or head of the procuring entity/employer, for a package or investment project for which his/her family relative, as defined in the Law on enterprises, directly submits a bid or acts as the legal representative of a bidder or investor;
- A bidder submits a bid for a procurement, construction or non-consulting service package for which the bidder is also acting as a consultant on preparation, verification and appraisal of cost estimate, technical design, building drawings and designs, front-end engineering design (FEED); preparation and appraisal of prequalification document or bidding documents; evaluation of prequalification applications or bids; inspection of goods; appraisal of contractor selection result; supervision of contract execution;
- A person acts as a bidder for a package of a project or investment project of the procuring entity or employer for which he/she worked and held the executive or managerial position within 12 months from the date of his/her resignation therefrom;
- A supervision consultant also acts as the inspection consultant of the same package;
- Failure to meet relevant requirements laid down in this Law when adopting a method other than the competitive bidding to the contractor/investor selection;
- Inclusion of specific brand and/or origin requirements in the bidding documents for a procurement or construction or mixed package under the competitive bidding, limited bidding or shopping method, except the provisions of Point e Clause 3 Article 10, Clause 2 Article 44 and Clause 1 Article 56 of Law on Bidding 2023;
- Bidding documents impose conditions that limit the participation of bidder(s) or investor(s) or give advantage for one or some bidders or investors resulting in unfair competition or violation of the Clause 3 Article 44 and Clause 2 Article 48 of Law on Bidding 2023;
- Slitting a project or procurement cost estimate into a series of packages for the purpose of direct contracting or with the aim of limiting the participation of bidders.
How is the act of bid-rigging under the new Law amended?
Currently, Clause 3, Article 89 of the Law on Bidding 2013 stipulates that collusive practice includes the following acts:
- Agreeing on bidding withdrawal or withdrawal of Letter of Bid already been submitted so that one party or parties in agreement win bid;
- Agreeing to let one or many parties to prepare Bid for parties of bidding so that one party may win bid;
- Agreeing on refusal for goods provision, refusal for signing contract of Subcontractor, or forms which cause other difficulties to parties which refuse to participate in agreement.
In the near future, when the Law on Bidding 2023 officially takes effect on January 1, 2024, the act of bid collusion will be amended in Clause 3, Article 16 of the Law on Bidding 2023 as follows:
Collusive practice, including:
- Reaching, with or without undue influence, an arrangement or agreement which is designed to let one or more parties to prepare bids for all bidders or to withdraw submitted bids so that one of them will win the bid;
- Reaching an arrangement or agreement on refusal to supply goods or services, or subcontract, or reaching other agreements to limit competition so that one party will win the bid;
- A bidder or investor with appropriate qualifications and experience has submitted a bid and meets the requirements laid down in the bidding documents but deliberately refuses to provide additional documents proving their capacity and experience at the procuring entity’s request for clarification of the bid or verification of their submitted documents with the aim of facilitating one party’s winning of the bid.
The Law on Bidding 2023 will take effect from January 1, 2024,
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