What are the new highlights of the Law on Bidding 2023 compared to the current Law on Bidding in Vietnam?
- The Law on Bidding 2023: To amend the scope of regulation?
- Vietnam: Should the priority be given to micro and small businesses to bid for construction and installation packages that cost up to VND 5 billion?
- To amend and supplement regulations on investor selection in Vietnam?
- To supplement regulations on prohibited acts in bidding activities in Vietnam?
- To supplement the bid security in the bidding documents in Vietnam?
The Law on Bidding 2023 is one of eight laws appoved at the 5th Session of the XV National Assembly. Here are some notable contents in the Law on Bidding 2023.
The Law on Bidding 2023: To amend the scope of regulation?
In Articles 1 and 2 of the Law on Bidding 2023, the scope of adjustment compared to the Law on Bidding 2013 has been expanded in the direction of supplementing the selection of investors to implement business investment projects.
Specifics include:
- Investment projects that use land in the case of having to organize bidding according to the provisions of the law on land;
- Investment projects in the case of having to organize bidding to select investors in accordance with the law on management of sectors and fields.
The inclusion of the law on bidding will serve as a basis for localities to more conveniently organize the implementation and select investors with good capacity to carry out business investment projects.
A notable new point is that the Law on Bidding 2023 clearly distinguishes the capital sources that are regulated by the Law, including:
- State budget capital according to the provisions of the Law on State Budget,
- Capital from lawful revenue sources of state agencies and public non-business units to implement investment projects or estimate specific procurement of bidding packages under investment projects of state-owned enterprises according to regulations of the Law on Enterprises and enterprises in which 100% charter capital is held by state-owned enterprises.
What are the new highlights of the Law on Bidding 2023 compared to the current Law on Bidding in Vietnam? To supplement the bid security in the bidding documents in Vietnam?
Vietnam: Should the priority be given to micro and small businesses to bid for construction and installation packages that cost up to VND 5 billion?
Clause 1, Article 10 of the Law on Bidding 2023 specifically stipulates eight subjects entitled to incentives in contractor selection, including:
- Goods originating in Vietnam.
- Environmentally friendly products and services in accordance with the law on environmental protection.
- Domestic contractors producing goods of Vietnamese origin in accordance with the bidding documents.
- Foreign contractors enter into partnerships with domestic contractors in which the domestic contractor undertakes 25% or more of the work value of the bidding package.
- Domestic contractors participate in bidding independently or in partnership with other domestic contractors when participating in international bidding.
- Contractors being micro-enterprises, small-enterprises in accordance with the law on supporting small and medium-sized enterprises.
- Contractors being innovative start-up enterprises in accordance with the law.
- Contractors employing 25% or more female employees; the number of employees being war invalids or disabled people is 25% or more; the number of employees who are ethnic minorities is 25% or more.
In addition, based on Clause 2, Article 10 of the Law on Bidding 2023, it is stipulated as follows:
Incentives in selecting contractors and investors
...
2. Incentives in contractor selection include:
a) Giving higher ratings to the contractor eligible for incentives in case the contractor eligible for incentives and the contractor not eligible for incentives are equally evaluated;
b) Adding points to the evaluation score of contractors eligible for incentives in case of applying the fixed price method, based on techniques, combining techniques and prices for comparison and ranking;
c) Adding an amount to the bid price or to the evaluated price of the contractor who is not eligible for incentives in the case of applying the lowest price method or the evaluated price method for comparison and ranking;
d) Being given priority in the assessment of capacity, experience and other criteria during the evaluation of bids;
dd) Construction and installation bidding packages with the bidding package price not exceeding VND 05 billion shall be reserved for micro-enterprises and small enterprises participating in the bidding. In case the bidding has been organized, if there are no micro enterprises or small enterprises that satisfy the requirements, they are allowed to organize the bidding again and allow other enterprises to participate in the bidding.
Accordingly, the new regulations give priority to micro enterprises, small enterprises participating in bidding with package price not exceeding 05 billion VND.
In case the bidding has been organized, if there are no micro enterprises or small enterprises that satisfy the requirements, they are allowed to organize the bidding again and allow other enterprises to participate in the bidding.
To amend and supplement regulations on investor selection in Vietnam?
(1) Amendment of investor selection process
Compared with the process in Article 56 of the Law on Bidding 2013, Article 46 of the Law on Bidding 2023 has omitted the preliminary assessment of the capacity and experience investors are interested in in the investor selection process. Instead, directly organize the bidding.
Accordingly, the steps in the investor selection process under the new law include:
- Announce business investment projects;
- Prepare for investor selection bidding, including: making, appraising and approving bidding documents;
- Organize bidding to select investors;
- Evaluate bids;
- Submit, appraise, approve and publicize the investor selection results, explain the reasons why the investor did not win the bid at the investor's request (if any);
- Negotiate, finalize and sign contracts.
In case the law on land, the law on management of sectors and fields requires bidding to select investors when there are 2 or more investors interested, in addition to the steps in the above process, the agency has the authority to compile dossiers of invitation for expression of interest, notices of invitation for expression of interest, organize the evaluation of dossiers of registration for implementation of the project and approve the results of invitation for expression of interest before carrying out the preparation for bidding to select investors. .
(2) Method of evaluation of bids:
Regarding the method of evaluation of bids, Article 62 of the Law on Bidding 2023 stipulates the method of assessing social benefits and state benefits applied to evaluate the investor's capacity and experience and the effectiveness of the method. business investment projects proposed by investors, including land use efficiency, investment efficiency in development of industries, fields and localities.
In addition, the evaluation of investors' bids is carried out on the basis of the following criteria:
- Assess the investor's financial capacity, ability to arrange capital, and experience in implementing similar investment and business projects;
- Assess the investor's business investment plan, which includes technical, social and environmental standards;
- Assess the efficiency of land use, investment efficiency in development of sectors, fields and localities.
For business investment projects with special requirements on conditions for business investment, management and development of industries and fields according to the provisions of law on investment and management of sectors and fields, the invitation dossier The contractor determines the fixed criteria among the above criteria.
To supplement regulations on prohibited acts in bidding activities in Vietnam?
Article 16 of the Law on Bidding 2023 has amended and supplemented prohibited acts in bidding activities, including:
- Giving, receiving, brokering bribes.
- Abuse of positions and powers to illegally influence or interfere in bidding activities in any form.
- Tendering includes the following acts:
+ Arranging, agreeing, forcing one or the parties to prepare a bid or withdrawing the bid so that one party wins the bid...
+ Arranging, agreeing to refuse to provide goods or services, failing to sign subcontracts or performing other forms of agreement to limit competition so that one party wins the contract.
+ Qualified and experienced bidders and investors have participated in the bidding and met the requirements of the bidding documents but intentionally failed to provide documents to prove their capacity and experience when requested by the bid solicitor when required to compare documents in order to facilitate a bid winning party.
- Fraud includes the following acts:
+ Forging or falsifying information, dossiers and documents in bidding…
Deliberately providing untruthful and unobjective information and documents in order to falsify the results of contractor and investor selection.
- Obstruction includes the following acts:
+ Destructing, decepting, alterating, concealing of evidence or false reporting...
+ Obstructing competent persons, investors, bid solicitors, contractors and investors in selecting contractors and investors.
+ Obstructing competent agencies to supervise, examine, inspect and audit bidding activities.
Deliberately making false complaints, denunciations or recommendations to obstruct bidding activities.
+ Violating the law on network safety and security in order to interfere or obstruct online bidding.
- Failing to guarantee fairness and transparency.
- Disclosure of documents and information about the contractor and investor selection process:
+ Contents of dossiers of invitation for expression of interest, dossiers of invitation for pre-qualification, bidding dossiers and dossiers of requirements before the time of issuance according to regulations.
+ Contents of dossiers of expression of interest, dossiers of pre-qualification, dossiers of registration for implementation of business investment projects, bidding dossiers, dossiers of proposals...
+ Result of contractor and investor selection before being made public according to regulations.
+ Other documents in the process of selecting contractors and investors are determined to contain state secret content as prescribed by law.
- Transfer of tenders in the following cases:
+ The contractor transfers to another contractor the part of the work in the bidding package in addition to the maximum value for subcontractors and the workload for special subcontractors stated in the contract.
+ The contractor transfers to another contractor the part of the work in the bidding package that has not yet exceeded the maximum value of the work for the subcontractor stated in the contract but is outside the scope of work for the subcontractor proposed in the bids and proposals without the approval of the investor or the supervision consultant.
+ The investor, the supervision consultant approves the contractor to transfer the job.
+ The investor or the supervision consultant approves the contractor to transfer the work specified at point b of this clause that exceeds the maximum value of the work for the subcontractor stated in the contract.
- Organize contractor selection when the capital source has not been determined as prescribed in Clause 3, Article 39 of the Law on Bidding 2023.
To supplement the bid security in the bidding documents in Vietnam?
Compared with the provisions of Article 11 of the Law on Bidding 2013, based on the scale and nature of each project, business investment project, specific bidding package, the bid security level in the bidding documents is modified according to the provisions of Article 11 of the Bidding Law. Article 14 of the Law on Bidding 2023 is as follows:
- From 1% to 1.5% of the bid package price, applicable to construction and installation bidding packages, mixed bidding packages with package prices not exceeding VND 20 billion, bidding packages for procurement of goods and non-consulting services with bidding package prices of no more than 10 billion.
- From 1.5% - 3% of the bid package price, applicable to bidding packages not falling into the above case.
- From 0.5% - 1.5% of the total investment capital of a business investment project, applicable to investor selection.
The Law on Bidding 2023 takes effect from January 1, 2024 and replaces the Law on Bidding 2013.
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