What is handling of situations of disputes in procurement under the CPTPP pact in Vietnam?

What is handling of situations of disputes in procurement under the CPTPP pact in Vietnam?

In Article 97 of Decree 95/2020/ND-CP, the provisions are amended by Article 1 of Decree 09/2022/ND-CP regulating the handling of situations, according to which:

1. In case there is a reason to adjust the bid package price or bidding package content, the contractor selection plan must be adjusted according to the provisions of law before the time of bid opening, except for the case specified in Clause 2 and Clause 2 of this Article. Clause 7 of this Article.

2. In case the approved estimate of a bidding package is higher or lower than the price of the bidding package stated in the approved contractor selection plan, that estimate will replace the bid package price in the contractor selection plan according to the principle of The following:

a) If the approved cost estimate is higher than the bid package price in the contractor selection plan, but the higher value is guaranteed not to exceed the total investment of the project, the approved procurement estimate is not required to be adjusted. contractor selection plan. In case that higher value exceeds the total investment of the approved project or cost estimate, the contractor selection plan must be adjusted; if the form of contractor selection in the approved contractor selection plan is no longer appropriate, the form of contractor selection must be adjusted;

b) In case the approved cost estimate is lower than the bid package price in the contractor selection plan without changing the contractor selection form in the approved contractor selection plan, no adjustment to the contractor selection plan is required. contractor; in case it is necessary to adjust the form of contractor selection to suit the new value of the bidding package according to the approved estimate, the contractor selection plan must be adjusted and adjusted.

3. In case, after selecting a short list, there are only less than 03 contractors satisfying the requirements, based on the specific conditions of the bidding package, it shall be handled in one of the following two ways:

a) Conduct selection of additional contractors to the short list;

b) Allow immediate issuance of bidding documents to short-listed contractors.

4. If at the time of bid closing for a bidding package applying the open bidding form, there are less than 03 contractors submitting their bids, pre-qualification participation dossiers, and dossiers of expression of interest, they must be considered and resolved. within 04 hours from the time of bid closing in one of the following two ways:

a) Allow extension of bid closing time in order to increase the number of contractors submitting bids, dossiers of pre-qualification, and dossiers of expression of interest. In this case, it is necessary to clearly specify the new bid closing time and corresponding deadlines so that the bidders have enough time to amend or supplement their submitted bids, pre-qualification applications, and dossiers of expression of interest. new bridge;

b) Allow immediate bid opening for evaluation.

5. In case the bidding package is divided into several parts, the following provisions shall apply:

a) In the bidding documents, the dossier of requirements should clearly state the bidding conditions, measures and bid security value for each part or parts and the evaluation method for each part or many parts so that the bidders can make the bid. the contractor calculates the bidding plan according to his/her ability;

b) The evaluation of bids, dossiers of proposals and consideration for winning bids will be carried out on the basis of ensuring that the total proposed winning price of the bidding package is the lowest (for bidding packages applying the bid price method). the shortest); the total evaluated price of the bidding package is the lowest (for the bidding package applying the evaluated price method); the total highest aggregate score (for a bid package applying the combined method of technique and price) and the proposed winning price of the whole bidding package must not exceed the price of the approved bidding package without comparing it with the cost estimate of the contractor. partial;

c) In case there is a part or parts of a bidding package without a contractor participating in the bidding or without a contractor satisfying the requirements stated in the bidding dossier or dossier of requirements, the investor shall report to the competent person. the right to adjust the contractor selection plan of the bidding package in the direction of separating those parts into separate bidding packages with the bid package price being the total estimated cost of the parts; the selection of contractors for the parts where the contractor participates and is evaluated as meeting the technical requirements must still ensure the evaluation principles specified at Point b of this Clause;

d) In case 01 contractor wins the bid for all parts, the bidding package includes 01 contract. In case many contractors win the bid for different parts, the bidding package has many contracts.

6. In case the bids and proposals have unusually low unit prices, affecting the quality of the bidding packages, the bid solicitor shall request the contractors to explain and clarify in writing the feasibility of the unit prices. that's unusual. If the bidder's explanation is not clear enough and is not convincing, the bid unit price will not be accepted, and at the same time, it will be considered as a deviation and adjust the deviation according to regulations as for the incomplete offer. of bidding dossiers, dossiers of proposals compared with requirements of bidding dossiers and dossiers of requirements as prescribed in Article 41 of this Decree. The deviation correction is for the purpose of comparing bids only.

7. In case the bid price after error correction, deviation adjustment, minus the discount value (if any) of all bidders that meet the technical requirements and are on the ranked list, all exceed the package price. If the contractor has been approved, it will be considered and handled in one of the following ways:

a) Allow these contractors to re-offer bid prices if the package price includes all elements constituting the cost of implementing the bidding package;

b) Allowing concurrently with bidders' re-offering of bid prices, the bid solicitor shall report to the investor for reconsideration of the bid package price and approved bidding documents, if necessary.

In case bidders are allowed to re-offer their bids, it is necessary to clearly specify the time for preparing and submitting the re-offering documents but not exceeding 10 days from the date the bid solicitor sends the request for re-offering. bid prices as well as specifying the opening of bid re-offers according to the bid opening process specified in Article 52 of this Decree. In case it is necessary to adjust the bid package price in the approved contractor selection plan, the competent person is responsible for approving the adjustment before the date of opening the bid re-offer, but within 10 days from the date of receipt. may be requested for adjustment, but must ensure that before the deadline for submission of bid re-offering documents.

8. In case the proposed winning bid price is less than 50% of the approved bid package price, it is allowed to set up an interdisciplinary appraisal team to request the contractor to clarify the elements constituting the bidding cost and consider the evidences. related to the following:

a) Economic factors related to construction methods, production processes or service provision;

b) The applied economic solution or special advantages of the contractor lead to a price advantage;

c) Origin of goods, services and personnel provided for the bidding package, which must comply with the provisions of law;

In case the conditions specified at Points a, b and c of this clause are satisfied, the tenderer's bid and proposal will still be accepted as the winning bidder. In case of risk prevention, the investor may stipulate that the contract performance security value is greater than 10% but not more than 30% of the winning bid price and must be approved in writing by a competent person. If a contractor receives a subsidy from any organization or individual, which leads to unfair competition, the contractor's bid or proposal will be disqualified.

9. In case the bid invitation documents stipulate that the contractor may propose a construction method different from the construction method stated in the bidding dossier, the difference between the workload according to the construction method stated in the dossier Bidding invitation and work volume according to the construction method proposed by the contractor will not be adjusted for deviation as prescribed in Article 41 of this Decree. This difference is not counted as a missing deviation.

10. In case the contractor performing the bidding package violates the contract and is no longer capable to continue the contract performance, seriously affecting the progress, quality and effectiveness of the bidding package, the investor shall consider it. , report to the person competent to decide to allow the termination of the contract with that contractor, the portion of the uncompleted workload may apply the form of appointment of a contractor with the value of the uncompleted workload assigned to the contractor. New contractor is calculated by the value stated in the contract minus the value of the volume of work performed previously. The competent person must ensure that the appointed contractor has the capacity and experience to meet the requirements for performing the remaining work of the bidding package. In case the form of contractor appointment is not applied, a new bidding package shall be formed to organize the selection of contractors. In case the contract performance is delayed due to no fault of the contractor, it is not allowed to terminate the contract to replace another contractor. In case the contract with the violating contractor must be terminated to replace the new contractor, within 05 working days from the date of issuing the decision to terminate the contract with the violating contractor, the investor must send a notice to the Ministry of Planning and Investment to review and post information about violating contractors on the national bidding network system; The notice must clearly state the reason for the contractor's violation leading to the contract termination, the form of selection of an alternative contractor, and the name of the nominated contractor in case the form of contractor appointment is applied. From the date of issuing the decision to terminate the contract with the violating contractor, the investor must send a notice to the Ministry of Planning and Investment for consideration and posting information about the violating contractor on the international bidding network system. family; The notice must clearly state the reason for the contractor's violation leading to the contract termination, the form of selection of an alternative contractor, and the name of the nominated contractor in case the form of contractor appointment is applied. From the date of issuing the decision to terminate the contract with the violating contractor, the investor must send a notice to the Ministry of Planning and Investment for consideration and posting information about the violating contractor on the international bidding network system. family; The notice must clearly state the reason for the contractor's violation leading to the contract termination, the form of selection of an alternative contractor, and the name of the nominated contractor in case the form of contractor appointment is applied.

11. In case a contractor is in the process of participating in bidding and performing the contract but is merged or splits, it shall be considered and decided to allow the merged or divided contractor to continue to participate in the auction. contractor, contract performance.

12. If at the time of contract signing, the winning contractor fails to satisfy the conditions on technical and financial capacity specified in Clause 2, Article 82 of this Decree, then invite the next-ranked contractor to enter the trade union. contract drafting. In this case, the contractor invited to negotiate the contract must restore the validity of the bid and bid security in case the bid is invalid and the contractor's bid security has been approved. refund or release.

13. In case, after evaluation, there are many bidders with the best and equal evaluation, the following shall be handled:

a) Award the contract to the contractor with the higher technical score in case the lowest price method is applied to the bidding package;

b) Award the bid to the contractor whose proposed winning price is lower for the bidding package applying the evaluated price method or the method of combining technique and price.

14. In case the estimate is approved after the contractor selection plan is available, this estimate will replace the bid package price in the contractor selection plan as the basis for determining whether the bidding package falls within the scope of this Decree. This

15. Where the maximum estimated value of a bidding package cannot be determined when making a plan for selection of contractors during the entire implementation period, such bidding package shall fall within the scope of this Decree, except for cases where excluded under the provisions of Clause 2, Article 1 of this Decree.

16. In case of changes in the name or the separation of a procuring agency listed in Appendixes I, II, and III enclosed herewith into two or more agencies, the new agency(ies) shall be all added to the procuring agencies listed in these Appendixes.

In case of merger or consolidation of one or more procuring agencies listed in Appendixes I, II, and III enclosed herewith, the procurements of the entities established after the merger or consolidation for the purposes of performing functions and tasks of the former entities shall comply with the provisions of this Decree.

In case an affiliated entity of the procuring agency listed in Appendixes I, II, and III enclosed herewith is transferred to another agency for management, it shall be still considered as one of the procuring agencies listed in these Appendixes.

17. Apart from the cases mentioned in Clauses 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 of this Article, when situations arise, the Procurement agencies consider and decide on the basis of ensuring that the objectives of the bidding are competition, fairness, transparency and economic efficiency.

18. In case the contractor selection methods prescribed in Articles 20 and 21 of this Decree cannot apply to the procurement or the project due to special conditions, contractor selection plans shall be considered and decided by the Prime Minister on the basis of conformity with CPTPP Agreement, EVFTA Agreement, and UKVFTA Agreement. The Ministry of Planning and Investment of Vietnam shall take charge of appraising contractor selection plans in special cases subject to the consideration and decision by the Prime Minister as prescribed in this Clause.

What is handling of violations, settlement of petitions and disputes in bidding under the CPTPP pact in Vietnam?

According to Article 98 of Decree 95/2020/ND-CP stipulating handling of violations, settlement of petitions and disputes in bidding under the CPTPP pact:

The handling of violations, settlement of petitions and disputes in bidding shall comply with the current regulations of law on bidding.

What is management of contractors in procurement under the CPTPP pact in Vietnam? 

Pursuant to Article 99 of Decree 95/2020/ND-CP stipulating management of contractors in procurement under the CPTPP pact, specifically as follows:

1. Management of foreign contractors:

a) After being selected to execute bidding packages in the Vietnamese territory, foreign contractors must comply with the provisions of Vietnamese law on entry and exit; import and export of goods; registration of temporary residence, temporary absence; accounting regime, tax and other relevant provisions of Vietnamese law, unless otherwise provided in an international treaty to which the Socialist Republic of Vietnam is a signatory or an international agreement to which the agency is a member. signed by competent agencies and organizations of the Socialist Republic of Vietnam;

b) Within 15 days from the effective date of the contract signed with the foreign contractor, the project investor is responsible for sending a written report on the information of the winning contractor to the Ministry of Planning and Investment. Investment, sector management ministry and Department of Planning and Investment in the locality where the project is implemented to summarize and monitor;

c) Foreign contractors selected under the provisions of this Decree are not required to apply for a contractor license.

2. Management for sub-contractors:

a) The main contractor may sign contracts with sub-contractors in the list of sub-contractors stated in the bid dossiers, dossiers of proposals. The use of subcontractors will not alter the principal contractor's obligations. The main contractor must be responsible for the volume, quality, schedule and other responsibilities for the work performed by the subcontractor;

b) The main contractor is not allowed to use subcontractors for jobs other than the work declared to use subcontractors mentioned in the bid dossiers, dossiers of proposals; the replacement and addition of sub-contractors other than the list of sub-contractors stated in the bid dossiers and dossiers of proposals shall be carried out only when approved by the investor;

c) The main contractor is responsible for selecting and using capable and experienced subcontractors to meet the requirements for performing the assigned tasks. In case of being an important sub-contractor as required by the bidding documents, the assessment of the sub-contractor's capacity and experience shall comply with the provisions stated in the bidding documents;

d) The main contractor is responsible for paying in full and on schedule to the sub-contractor in accordance with the agreement between the main contractor and the sub-contractor.

3. The Ministry of Planning and Investment is responsible for maintaining the contractor database system; list of contractors violating the law on bidding; aggregate and provide information about contractors to relevant organizations and individuals in order to serve the publicity and transparency of information and fair competition in the contractor selection process.

Best Regards!