When to Apply Direct Contracting for Procurement under the CPTPP Agreement?

When to apply contractor appointment for procurement bidding under the CPTPP Agreement? (Illustrative image)

Decree 95/2020/ND-CP stipulates that contractor appointment is a form in which the procurement agency issues requests for proposals to one or several contractors or sends a draft contract to a contractor with sufficient capacity and experience to execute the bidding package. Contractor appointment for procurement bidding under the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) is applied in the following cases:

1. Goods or services of the bidding package can only be supplied by one contractor and no suitable alternative goods or services exist for any of the following reasons:

- Requirement for an artwork;- Protection of patent rights, copyright protection, or other forms of exclusive protection;- Lack of competition due to the technical nature of the bidding package;

2. Supplementary provision of goods or services from the contractor who has won the bid or their authorized agents where the supplementary goods or services are not within the original bidding package scope and changing to another contractor is not feasible due to significantly increased costs for the procurement agency and must meet one or more of the following requirements:

- Requirements for synchronization and compatibility with existing equipment, software, and services;- Requirements of installation services purchased in the previous bidding package;- Based on the warranty conditions of the original contractor;

3. Goods purchased on a commodity exchange;

4. Purchase of a prototype or a first good or service intended for limited testing or produced upon the procurement agency's request under a specific contract for research, testing, or original development. The original development of a prototype or a first good or service may include limited production or supply to incorporate test results and demonstrate that the prototype, good, or first service meets the requirements for large-scale production or supply to acceptable quality standards. However, such production or supply does not include manufacturing or supplying for commercial purposes or to offset the costs of research and development. Subsequent bidding packages for the procurement of these newly produced goods or services will be subject to this Decree;

5. Bidding packages executed under particularly favorable conditions that occur for a very short period, such as procurement from non-regular liquidation activities, distress sales, bankruptcy, or extraordinary acquisition, and contractor appointment is not applied for regular procurement from familiar contractors;

6. Consulting service packages for feasibility study report preparation and construction design appointed to the architect of the winning architectural design when the selection process is widely organized, ensuring the goals of publicity, transparency, and the architect meets the legal capacity requirements;

7. Emergency due to unforeseen events that prevent the procurement agency from promptly executing the bidding package if open bidding is applied;

8. Bidding packages for bomb, mine, and explosive ordnance clearance to free up ground;

9. Bidding packages that have advertised bid invitations, expressions of interest invitations, prequalification invitations but faced one of the following situations: No contractors submit bidding documents, expressions of interest, or prequalification dossiers; All submitted dossiers do not meet the basic requirements of the bid invitation documents; All contractors do not meet the capacity and experience requirements; There is collusion among the contractors submitting bids.

Note: In these cases, the procurement agency may apply contractor appointment but must ensure that the request documents remain essentially unchanged for the basic requirements stated in the initial bid invitation documents.

For details, see Decree 95/2020/ND-CP effective August 24, 2020.

Ty Na

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