What are the guidelines on application of ensuring competition in contract packages for planning consulting services in Vietnam?
What are the conditions for ensuring competitiveness in the bidding in Vietnam?
Pursuant to Article 2 of Decree 63/2014/ND-CP stipulating as follows:
“Article 2: Ensuring competitiveness in the bidding
1. The bidders submitting their EOI (expression of interest) responses or applications for the prequalification held by the procuring entity must adhere to Clause 1 and Clause 2 Article 6 of the Bidding Law.
2. Bidders who bid for mixed contracts must be legally and financially independent from those who conduct feasibility study reports, technical design proposals and construction drawings for the purpose of the contract award, except for those accepted as a part of mixed contracts.
3. Consulting service suppliers participating in the bidding can provide one or a lot of consulting service(s) for the same project or contract, including the formation of pre-feasibility study reports, feasibility study reports, technical design documents, construction drawing records as well as the provision of consultancy and supervision services.
4. Bidders shall be considered legally and financially independent from other bidders, consulting service providers, investors or procuring entities as regulated in Clause 1, 2 and 3 of Article 6 of the Bidding Law when they meet the following requirements:
a) They must come from different agencies or are not directly managed by the same organization if they are public service providers;
b) Bidders, investors and procuring entities do not hold more than 30% of shares or contributed capital of each other;
c) Bidders do not hold more than 20% shares or contributed capital of each other when all of bidders participate in selective bidding for a contract;
d) Bidders who provide consulting services for that contract are not allowed to hold mutual shares and contributed capital; shares and contributed capital of either bidder or consulting bidder held by other organizations and individuals account for above 20%.
5. In respect of state-owned economic corporations, if products and services specified in the contract are defined as their main production and trading sectors which are considered the outflow of this company and the inflow of the other company affiliated with these corporations, their subsidiaries have the right to participate in the selection of bidders held by each of these subsidiaries. In case products and services are the outflow of this company and concurrently the inflow of the other company as well as are seen as the exclusive ones on the market, the bidding must comply with the Prime Minister’s regulations.
Accordingly, in order to assess the legal and financial independence of the bidder to ensure competition in bidding, it will be based on the conditions specified above.
What are the guidelines on application of ensuring competition in contract packages for planning consulting services in Vietnam? (Image from the internet)
What are the eligibility of bidders/investors in Vietnam?
Pursuant to Article 5 of the Law on Bidding 2013 stipulates as follows:
“Article 5. Eligibility of bidders/investors
1. A bidder or investor being an organization shall be deemed to be eligible when it satisfies the following conditions:
a) Having registration for establishment and operation issued by the competent authority of country where it is operating;
b) Keeping independent accounting records;
c) Not undergoing the dissolution process, are not thrown into bankruptcy, and do not incur bad debts as prescribed by law.
d) Having registered on National E-procurement System;
dd) Ensuring the competitiveness in bidding as prescribed in Article 6 hereof;
e) Not being banned from bidding;
g) Its name is stated in short list for case where the short list has been selected;
h) Being in a joint venture with domestic bidders or employment of domestic subbidders in case of a foreign bidder making an international bidding in Vietnam, unless the domestic bidder cannot acquire the competencies necessary to perform any portion of the package.
2. A bidder or investor being an individual shall be deemed to be eligible when it satisfies the following conditions:
a) Having full legal capacity as per the law of the country of which such individual is a citizen;
b) Having an appropriate professional certificate as prescribed by law;
c) Having lawful registration for operation as prescribed by law;
d) Not facing a criminal prosecution;
d) Not being banned from bidding.
3. Bidders and investors with eligibility as prescribed in Clause 1 and Clause 2 of this Article may make a bid as an independent bidder/investor or in a joint venture; in case of joint venture, it must have written agreement among members, in which clearly stating responsibilities of the leading JV's Party and general responsibilities, particular responsibilities of each JV’s Party.”
Accordingly, if the bidder is an organization or an individual, there will be separate conditions to meet the eligibility. Based on the bidder being an organization or individual to determine eligibility conditions according to the content of the above provisions.
What are the latest instructions on contract packages for planning consulting services in Vietnam?
Pursuant to Official Letter 4454/BKHĐT-QLTĐT in 2022, there are instructions on contract package for planning consulting services as follows:
"1. The Ministry of Planning and Investment has issued Circular No. 08/2022/TT-BKHDT dated May 31, 2022 detailing the provision and posting of information on bidding and bidder selection on the online auction system. national bidder (effective from August 1, 2022), including the Form E-HSMT for the consulting service package (Form 4A). According to the provisions of Section 2 Chapter III Form E-bidding documents, the technical evaluation standard does not require a minimum score for consulting bidders, but only a minimum score for individual experts, accordingly, Bidders will not be disqualified if they do not meet the same contractual requirements.
2. Regarding the requirements for guarantee of competition in bidding, according to the provisions of Clause 4, Article 2 of Decree No. 63/2014/ND-CP, the bidder is a public service provider that is evaluated to be independent in finance and legal personality from the investor, the bid solicitor when "not under the same direct management agency or organization".
Pursuant to the above provisions, the following cases do not violate regulations on guarantee of competition in bidding:
- The investor, the bid solicitor is a unit directly under the Ministry, the Provincial People's Committee (for example, Department A is under the Ministry of X), the bidder is a public service provider under another grade 1 agency (for example, the bidder is Center C under Institute B, Institute B is under Ministry X). Center C participates in the bidding package invested by Department A, the bid solicitor will not violate the guarantee of competition in bidding (Center C can mobilize personnel from Institute B, Center C does not need to have experience in the field of planning to participate in the bid, but the experts proposed by Center C must have the capacity and experience in the field of planning).
- The investor, the bid solicitor is Center C, the bidder participating in the bid is Institute Y directly under the Ministry of X.
In addition, the competent person shall consider and decide to apply the form of appointment of bidders to the planning consultancy contract package as prescribed at Point b, Clause 1, Article 2 of Resolution No. 61/2022/QH13 of the National Assembly.”
Accordingly, the determination of cases that do not violate regulations on ensuring competition in contract package for planning consultancy services shall be determined according to the above guidance of the Ministry of Planning and Investment.
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