DECREE

AMENDING AND SUPPLEMENTING A NUMBER OF ARTICLES OF THE BIDDING REGULATION PROMULGATED TOGETHER WITH THE GOVERNMENT'S DECREE No. 88/1999/ND-CP OF SEPTEMBER 1, 1999 AND DECREE No. 14/2000/ND-CP OF MAY 5, 2000

THE GOVERNMENT

Pursuant to the December 25, 2001 Law on Organization of the Government;
At the proposal of the Minister of Planning and Investment,

DECREES:

Article 1.- To amend and supplement a number of articles of the Bidding Regulation promulgated together with the Government's Decree No. 88/1999/ND-CP of September 1, 1999 and Decree No. 14/2000/ND-CP of May 5, 2000 (hereinafter referred to as Decree No. 88/CP and Decree No. 14/CP for short) as follows:

1. Point c, Clause 2, Article 2 of Decree No. 88/CP is amended and supplemented as follows:

"c/ Projects using the sources of aid capital provided by international organizations or foreign countries, which are implemented on the basis of the written agreements signed by the two parties (the donor and the Vietnamese party). Where a draft written agreement contains bidding provisions different from this Bidding Regulation, the agency tasked to negotiate and sign the agreement shall have to submit it to the Prime Minister for consideration and decision before signing the agreement. Where the signed written agreements contain bidding provisions different from Vietnam's Bidding Regulation, the provisions of the signed written agreements shall apply. Particularly for the procedures for submission, evaluation and approval of bidding plans and bidding results, they shall be carried out in accordance with Vietnam's Bidding Regulation."

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"10. Contractors are domestic or foreign organizations or individuals having civil legal capacity and, for individuals, also civil act capacity to enter into and perform contracts. Civil legal capacity and civil act capacity of domestic contractors shall be considered according to Vietnamese laws and civil legal capacity and civil act capacity of foreign bidders shall be considered according to the laws of the countries which the concerned contractors bear the nationality of. Contractors must guarantee their financial independence.

Contractors are constructors in installation and construction bidding, suppliers in goods procurement bidding, consultants (possibly a single individual) in bidding for selection of consultants; and investors in bidding for selection of investment partners.

Contractors may participate in bidding either independently (called independent contractors) or in partnership with other contractors (called partnership contractors). In case of partnership, there must be written agreements between the partnership members on the joint and separate responsibilities for jobs in the bidding packages and there must be a partnership leader.

30. Contracting price means the price agreed upon by the bid solicitor and the bid-winning contractor after negotiating on the finalization of the contract and compatible with the bid-winning price, the bidding dossiers and the bid dossiers. The contracting price together with the specific payment provisions in the contract shall serve as a basis for capital payment for the bidding package.

35. Project owner means an organization assigned the responsibility to directly manage and implement the project specified in Clause 5, Article 3 of Decree No. 88/CP. For an investment project, the project owner is the investor."

3. Clauses 1 and 2, Article 4 of Decree No. 88/CP are amended and supplemented as follows:

"1. Unrestricted bidding

Unrestricted bidding is a form of bidding in which the number of participating contractors is unlimited. The bid solicitor shall have to publicly announce the conditions and time for bidding participation on the mass media or on the bidding bulletins and websites of the State, the ministries, branches and localities at least 10 days before issuing the bidding dossiers. Unrestricted bidding is the principal form to be applied in bidding.

Other forms of selecting contractors shall be applied only when their application is adequately justified and approved by competent persons in the bidding plans.

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Restricted bidding is a form of bidding in which the bid solicitor invites the participation of a number of capable and experienced contractors (at least five). Where the number of contractors in reality is under five, the bid solicitor must report such to the project owner for submission to a competent person for consideration and decision. The project owner shall decide on the list of participating contractors on the basis of the assessment by the bid solicitor of the contractors experiences and capabilities but must ensure impartiality, equality and right subjects. This form shall be considered for application only when there exists one of the following conditions:

a/ Only a limited number of contractors are capable of meeting the requirements of the bidding package;

b/ The sources of capital to be used require restricted bidding;

c/ The characteristics of the bidding package make restricted bidding more advantageous."

4. Points b, c and d, Clause 2, Article 1 of Decree No. 14/CP are amended and supplemented as follows:

"b/ Bidding packages of experimental research character or involving State secrets, as decided by competent persons.

c/ Bidding packages valued at under VND 1 billion for goods procurement or construction and installation; and at under VND 500 million for consultancy.

For bidding packages entitled to contractor designation under important national projects which the National Assembly has adopted the undertakings on the investment therein and the Prime Minister has decided on the investment therein, the Prime Minister may decentralize to the project owners the competence to decide on the designation of contractors in strict accordance with the Bidding Regulation.

When designating contractors for bidding packages mentioned in Clause 2, Article 1 of Decree No. 14/CP, the persons who have decided on the designation of contractors shall take responsibility before law for their decisions.

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The Finance Ministry shall specify the designation of contractors for regular supply of utensils, supplies, equipment and working facilities of the State agencies; utensils, supplies, equipment and common working facilities of the armed forces.

d/ Other bidding packages of particular nature, as requested by the funding bodies, for their technical and technological complexity or the unexpected requirements of the projects. The designation of contractors shall be considered and decided by competent persons on the basis of the evaluation reports of the concerned evaluating agencies, written opinions of the donors and other concerned agencies."

5. Point b, Clause 2, Article 6 of Decree No. 88/CP is amended and supplemented as follows:

"b/ The turn-key contract is a contract that covers all the jobs of engineering, provision of equipment and supplies, construction and installation of a bidding package, and is performed by a single contractor (abbreviated to EPC).

The selection of contractors to perform EPC bidding packages under EPC contracts must comply with the provisions of Article 4 of Decree No. 88/CP and the approved bidding plans. The bidding dossiers must comprise all three parts of engineering (E), provision of equipment and supplies (P), and construction and installation (C). The criteria for evaluation of EPC bidding packages must also include criteria for these three jobs, setting forth the minimum technical score required for each job. The contractors with bid dossiers meeting high technical requirements according to the approved evaluation criteria (not lower than 90% of the total technical score) and having the lowest evaluated price shall be considered for winning the bids.

The Ministry of Planning and Investment shall provide guidance on the bidding process to select contractors to implement the EPC bidding packages.

The contents of EPC contracts shall comply with the guidance of the Ministry of Construction as prescribed in Clause 21, Article 1 of the Government's Decree No. 07/2003/ND-CP of January 30, 2003.

The project owners shall have to supervise the performance, pre-acceptance test and hand-over of the works after they are entirely completed by the contractors under the signed contracts."

6. Point a, Clause 2, Article 7 of Decree No. 88/CP is amended and supplemented as follows:

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7. Clause 2, Article 9 of Decree No. 88/CP is amended and supplemented as follows:

"2. The contractors participating in bidding or the other forms for selecting contractors specified in Article 4 of Decree No. 88/CP must satisfy all the following conditions:

a/ Being financially independent, having civil legal capacity and, for individuals, also civil act capacity, to enter into and perform contracts. In case of procurement of complex equipment, the contractors must have manufacturer's sale permits;

b/ Only participating in a bidding application in a bidding package, either independently or in partnership;

c/ Being named in the database on contractors."

8. Clauses 2 and 8 of Article 10 of Decree No. 88/CP are amended and supplemented as follows:

"2. Foreign contractors, when participating in international bidding in Vietnam for construction and installation or goods provision, shall have to either enter into partnership with Vietnamese contractors or pledge to use Vietnamese sub-contractors, and clearly state the division of work between the parties in terms of scope, volume and corresponding value. For consultancy bidding packages of the projects using the State budget capital, the State-guaranteed credit capital or the State development investment credit capital, which require foreign consultancy, foreign organizations and specialists must enter into partnership with domestic consultants in order to participate in the selection process (except for cases where partnership is not required as permitted by the Prime Minister).

8. Preferential treatment for domestic contractors and home-made goods in international biddings organized in Vietnam under the projects specified in Clause 2, Article 2 of Decree No. 88/CP is prescribed as follows:

a/ Preferential treatment subjects

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+ Enterprises operating under the Enterprise Law, the State Enterprise Law or cooperatives operating under the Cooperative Law;

+ Joint-venture enterprises operating under the Law on Foreign Investment in Vietnam and having over 50% of their legal capital contributed by the Vietnamese parties;

- Construction and installation or consultancy bidding packages where over 50% of their value will be performed by domestic contractors.

- Goods supply bidding packages where domestic production costs will account for over 30% of the ex-workshop price.

b/ Preferences

When evaluating the bid dossiers involving domestic contractors or home-made goods, the consideration of preferences shall be effected as follows:

- For bidding packages to select consultants, when evaluating the bid dossiers, if the domestic contractors eligible for preferences get at least the minimum technical score, the aggregate evaluation score shall be added with 7.5%;

- For construction and installation bidding packages, when determining the evaluated prices, the preference shall be granted by adding 7.5% of the bid prices (after correction of arithmetical errors and adjustment of discrepancies) to the evaluated prices of the contractors who are ineligible for preferences, in order to have a basis for comparison and rating of bid dossiers;

- For goods procurement bidding packages, when determining the evaluated prices of the bid dossiers involving those kinds of goods not eligible for preferences, the evaluated prices must be added up with a sum of money equivalent to assorted import duties and charges which the importing contractors ineligible for tax exemption are required by law to pay for the goods of the bidding packages or with 15% of the goods prices inclusive of freight and insurance to a seaport or riverport of Vietnam (CIF prices) or the goods prices inclusive of carriage and insurance paid to the named ports of destination (CIP) of such goods, if the above-mentioned import duties and charges exceed 15% (except for goods liable to import duties).

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9. Clause 1 and Point b, Clause 2, Article 13 of Decree No. 88/CP are amended and supplemented as follows:

"1. Bid opening:

Following the receipt of the bid dossiers (which have been properly sealed up, submitted according to the requirements set forth in the bidding dossiers, and managed according to the regime of management of "Secret" documents), the bid opening shall be publicly conducted as soon as the bid closes according to the date, hour and location inscribed in the bidding dossiers. The principal information stated in the bid dossiers of each contractor must be publicly announced at the bid-opening session and recorded in the bid-opening minutes.

The bid opening minutes should contain the following principal details:

a/ The name of the bidding package;

b/ The date, hour and location for opening bids;

c/ The names and addresses of contractors;

d/ The bid prices, bid securities for goods procurement or construction and installation, and the implementation progress;

e/ Other relevant details.

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The originals of bid dossiers, after being opened, must be signed for certification by the bid solicitor on each page before they are evaluated and managed according to the regime of management of " Secret" documents.

2.b/ The evaluation method shall be applicable to bidding packages for goods procurement or construction and installation in the two following steps:

- Step 1: Evaluating technical matters according to the evaluation criteria stated in the bidding dossiers to select a short list (namely the list of contractors who are technically qualified according to the evaluation criteria).

The bid dossiers which get the aggregate scores equal to the minimum score prescribed in the evaluation criteria or higher, which, in principle, must not be lower than 70% of the total technical score or not lower than 90% of the total technical score for bidding packages with high technical requirements (for the scoring method) or which meet the "satisfactory" and "unsatisfactory" criteria shall all be considered being technically qualified.

- Step 2: Determining the evaluated prices for the short-listed bid dossiers for rating."

10. Article 15 of Decree No. 88/CP is amended and supplemented as follows:

"Article 15.- Responsibilities of competent persons, project owners and bid solicitors

1. Competent persons have the following responsibilities:

a/ To approve the bidding plans of the projects, approve, or authorize the approval of, bid dossiers, approve the bidding results for all bidding packages of the projects on the basis of the evaluation reports of the evaluating agencies;

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2. The project owners have the following responsibilities:

a/ To submit to the competent persons for approval the bidding plans, bidding dossiers and the bidding results for all bidding packages of their projects;

b/ To take responsibility for the contractor selection process as prescribed in the Bidding Regulation and before law for their decisions. If they are capable, they can act as bid solicitors in order to organize bidding; if not, they may employ a qualified and capable specialized organization to act as bid solicitor on their behalf but, in this case, they must still take responsibility for the contractor selection process as prescribed by the Bidding Regulation and directly sign contracts with the bid-winning contractors.

c/ To decide on the contents of the bidding process, including:

- Dossiers of invitation for pre-qualification, criteria for pre-qualification and pre-qualification results;

- The list of contractors participating in the restricted bidding;

- The list of contractors participating in the bidding to select consultants;

- The list of technically qualified contractors and the list of contractors rated on the basis of the total technical and financial scores for consultancy bidding packages;

- The list of technically qualified contractors and the list of contractors rated on the basis of the evaluated prices, for goods procurement or construction and installation bidding packages;

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- To decide on the designation of contractors for bidding packages specified at Points c and f, Clause 2, Article 1 of Decree No. 14/CP;

- The contractual contents.

Where the project owners are concurrently the persons competent to decide on the projects or concurrently the bid solicitors, they must perform fully the tasks specified in Clause 1 or Clause 3 of this Article.

3. The bid solicitors shall have the following responsibilities:

a/ To organize and conduct the selection of contractors, take responsibility before law for the contractor selection process according to the bidding legislation.

b/ To draw up and submit the bidding plans of the projects specified in Article 8 of Decree No. 88/CP.

c/ To organize the implementation of the approved bidding plans according to the procedures for organizing bidding prescribed in Articles 20, 22, 33, 45 and 47 of Decree No. 88/CP, including:

- Setting up the experts' group or hiring consultants to assist in the bidding under the decisions of the project owners;

- Summing up the contractor selection process and reporting results of the selection of contractors to the project owners;

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- Submitting the contractual contents to the project owner for decision and signing of the contract."

11. Clauses 1 and 2, Article 16 of Decree No. 88/CP are amended and supplemented as follows:

"1. Composition of the experts' group:

Depending on the nature and complexity of each bidding package, the experts group should be composed of experts in:

a/ Technique, technology;

b/ Finance, commerce;

c/ Legal and other matters ( if necessary).

The list of member experts shall be decided by the project owners.

The head of the experts' group shall have to run the group's affairs, synthesize and prepare reports on the evaluation of bid dossiers, or other relevant documents.

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a/ Being knowledgeable of the bidding legislation;

b/ Possessing professional qualifications related to bidding packages;

c/ Being knowledgeable of the specific contents of the bidding package;

d/ Having practical experiences in the management or research work."

12. Article 29 of Decree No. 88/CP is amended and supplemented as follows:

"Article 29.- Criteria for evaluation of bid dossiers

The criteria for evaluation of bid dossiers must be fully stated in the bidding dossiers, including:

1. Criteria on contractors' capabilities and experiences:

a/ Production and business capabilities, material and technical foundations, qualifications of professional personnel;

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c/ Experiences in the performance of similar contracts in Vietnam and foreign countries; in some special cases, in order to create conditions for the development of domestic contractors, the requirement on experience may be minimal, which must, however, be considered and decided in the bidding dossiers.

The contents stated in this Clause shall be evaluated according to the "satisfactory" and "unsatisfactory" criteria. Only contractors who satisfy all the three contents, a, b and c, of this Clause shall be considered as having adequate capabilities and experiences for participating in the bidding.

2. Technical criteria:

a/ The capability to satisfy the requirements on quantity, quality and technical properties of goods as stated in the bidding dossiers;

b/ Economic and technical characteristics of the goods, production criteria and other contents (bidding dossiers must not impose the requirement on a specific trade mark or specific origin of goods);

c/ The rationality and economic efficiency of technical solutions and measures to organize the goods supply;

d/ The capability for installing equipment and qualifications of technical personnel;

e/ The geographical adaptability;

f/ Environmental impacts and remedies thereto;

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h/ Other contents on the commercial and financial conditions, implementation schedule, training for technology transfer (if any).

The point scale (100 or 1,000) or the "satisfactory" and "unsatisfactory" criteria shall be used to determine the contents specified in this Clause. Evaluation criteria should set the minimum technical requirement which must, however, not be lower than 70% of the total technical score (or not lower than 90% of the total technical score for bidding packages with high technical requirements). If the evaluation criteria of "satisfactory" and "unsatisfactory" are used, the minimum technical requirement must be also clearly set.

Bid dossiers which get the aggregate scores equal to or higher than the prescribed minimum score when the scoring method is applied or meet the requirements when the evaluation method based on the "satisfactory" and "unsatisfactory" criteria is applied shall be considered being technically qualified.

3. Criteria converted to a single plane for determining evaluated prices, including:

a/ The use duration;

b/ The designed capacity;

c/ Product quality standards;

d/ Goods origin stated in bid dossiers;

e/ Operation, repair and maintenance costs;

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g/ Supply and installation progress.

4. The evaluation criteria prescribed in the bidding dossiers must not be omitted, added or changed in any way in the bid-considering process."

13. Point a, Clause 2, Article 30 of Decree No. 88/CP is amended and supplemented as follows:

"a/ Step 1: Evaluation of technical aspects to select a short list:

Such technical evaluation is conducted on the basis of evaluation criteria prescribed in the bidding dossiers so as to select a short list. In the evaluating process, the bid solicitors may request contractors to explain those contents which remain unclear or unreasonable in their bid dossiers, such as quantities and unit prices."

14. Clause 6, Article 35 of Decree No. 88/CP is amended and supplemented as follows:

"6. Technical design dossiers enclosed with the statement of forecasts and technical instructions.

Technical design dossiers must ensure the required quality. Forecasts extracted from the designs must be complete and precise to serve as a legal basis for the contractors to elaborate the bid prices. Requirements on the quality of supplies for construction and installation must be clearly stated in the bidding dossiers, serving as a basis for the calculation and elaboration of bid unit prices as well as the analysis of bid prices of some major construction items as required in the bidding dossiers. It is strictly forbidden to state the requirement on trade marks or origin of supplies in the bidding dossiers."

15. Article 40 of Decree No. 88/CP is amended and supplemented as follows:

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The criteria for evaluation of bid dossiers must be clearly stated in the bidding dossiers, including:

1. Criteria for the contractors' experiences and capabilities:

a/ Practical experiences in the implementation of projects with similar technical requirements in similar geographical areas and circumstances;

b/ The quantity and qualifications of officials and technicians directly involved in the project implementation;

c/ The financial capability (turnover, profit and other norms).

The contents prescribed in this Clause shall be evaluated according to the "satisfactory" and "unsatisfactory" criteria. To be considered being fully capable and experienced to participate in bidding, contractors must satisfy all three criteria a, b and c of this Clause.

2. Technical criteria:

a/ The extent of satisfaction of the requirements on technical standards and quality of supplies and equipment stated in the design dossiers;

b/ The rationality and feasibility of technical solutions as well as measures to organize construction;

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d/ The extent of satisfaction of construction equipment (their quantity, types, quality and mobilization progress) and construction workforce;

e/ Quality guaranty measures;

f/ The financial provision capability (if so requested);

g/ The contents related to construction tempo, extent of partnership and association and other contents required in the bidding dossiers.

The point scale (100 or 1,000) or the "satisfactory" and "unsatisfactory" criteria shall be used to determine the contents specified in this Clause. Evaluation criteria should set the minimum technical requirement which, must, however, not be lower than 70% of the total technical score (or not lower than 90% of the total technical score for bidding packages with high technical requirements) when the point scale is used for evaluating bid dossiers. Where the evaluation criteria of "satisfactory" and "unsatisfactory" are used, the minimum technical requirement must be also clearly set.

Bid dossiers which get the aggregate scores equal to or higher than the minimum score when the scoring method is applied or meet the requirements of the "satisfactory" and "unsatisfactory" criteria shall be considered being technically qualified.

3. Criteria converted to a single plane for determining evaluated prices, including:

a/ The quality of supplies used for construction and installation;

b/ Costs of operation, repair and maintenance of works;

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d/ Contractual terms (especially the payment and settlement schedule);

e/ Financial conditions (such as borrowing duration, borrowing interest rates');

f/ Contract performance time.

4. The evaluation criteria prescribed in the bidding dossiers must not be omitted, supplemented or changed in any way in the bid-considering process."

16. Clause 2, Article 41 of Decree No. 88/CP is amended and supplemented as follows:

"2. Detailed evaluation:

The detailed evaluation of bid dossiers shall proceed with the following two steps:

a/ Step 1: Technical evaluation to select a short list:

The technical evaluation shall be based the evaluation criteria stated in the bidding dossiers so as to select a short list. In the evaluating process, the bid solicitors may request contractors to explain those contents which remain unclear or unreasonable in their bid dossiers such as volumes and quotations.

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The financial and commercial evaluation of short-listed contractors shall be carried out on the same plane according to the approved evaluation criteria.

The financial and commercial evaluation to determine the evaluated prices shall cover the following contents:

- Correction of errors;

- Adjustment of discrepancies;

- Conversion of bid prices into a common currency;

- Conversion to a single plane for comparison;

- Determining the evaluated prices of bid dossiers.

In the evaluating process, the bid solicitors may request contractors to clearly explain unreasonable quotations and if the contractors' written explanations are not clear enough, such shall be regarded as discrepancy for inclusion in the evaluated prices of such contractors."

17. Article 50 of Decree No. 88/CP is added with the following Clauses 8, 9, 10, and 11:

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9. To manage the database on contractors.

10. To manage foreign contractors in Vietnam.

11. To supervise and inspect biddings and contract performance."

18. Article 51 of Decree No. 88/CP is amended as follows:

"Article 51.- Information on bidding

1. Means to carry information on bidding:

Means to carry information on bidding comprise:

a/ The State's bidding bulletin and website circulated and accessible nationwide;

b/ The ministries', branches' and localities' bidding bulletins and websites;

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2. Information to be published:

The information to be published covers:

a/ The bidding plans;

b/ Notices of invitation for prequalification and prequalification results;

c/ Bid solicitation notices;

d/ The list of contractors participating in the restricted bidding;

e/ The list of contractors participating in consultancy bidding;

f/ The result of contractor selection;

g/ The list of individuals and organizations, including contractors, that violate the Bidding Regulation;

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i/ Information on the handling of violations of the Bidding Regulation;

j/ Newly promulgated legal documents on bidding;

k/ The sum-up report on the bidding work;

l/ Bidding activities of the units;

m/ The database on contractors.

3. Management of bidding bulletins and websites

a/ The managing agencies:

- The Ministry of Planning and Investment shall be responsible for managing the State's bidding bulletin and website across the country.

- The ministries, branches and localities shall have to manage bidding bulletins and websites under their respective management.

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The information to be published by the Ministry of Planning and Investment covers:

- The contents specified at Points a, b, c, d, e and f, Clause 2 of this Article, for important national projects, Group-A and Group-B projects (regardless of their capital sources), joint-venture projects, business cooperation contracts and joint-stock projects.

- Other contents specified at Points g, h, i, j, k, l and m, Clause 2 of this Article for all projects, shall be supplied by the agencies responsible for supplying information stated at Point c of this Clause.

The ministries, branches and localities shall decide on the published contents specified in Clause 2 of this Article, depending on the practical conditions and situation of the projects. Information on the projects, which is published by the ministries, branches and localities, must still be sent to the Ministry of Planning and Investment for publication.

c/ Information-supplying agencies:

- The owners of important national projects, Group-A and Group-B projects (regardless of their capital sources), joint-venture projects, business cooperation contracts and joint-stock projects shall have to supply the agencies that manage bidding bulletins and websites with the contents specified at Points a, b, c, d, e, f, g, and i, Clause 2 of this Article on the projects under their respective management.

- The ministries, the ministerial-level agencies, the agencies attached to the Government and the People's Committees of the provinces and centrally-run cities shall have to supply the Ministry of Planning and Investment with the contents specified at Points g, i, k and l, Clause 2 of this Article, falling under the scope of their management.

- Contractors shall supply their databases specified at Point m, Clause 2 of this Article to the Ministry of Planning and Investment.

4. Other mass media:

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19. Article 52 of Decree No. 88/CP is amended and supplemented as follows:

"Article 52.- Assignment of responsibility for bidding

1. The Prime Minister:

a/ To approve the bidding plans of important national projects for which the National Assembly has adopted the undertakings in the investment therein and the Prime Minister has decided on the investment therein (regardless of their capital sources);

b/ To approve the bidding results of bidding packages valued at VND 100 billion or more, for goods procurement or construction and installation, at VND 20 billion or more, for consultancy under the projects which the Prime Minister has decided on the investment therein. For other bidding packages, the Prime Minister shall authorize the ministers, the heads of the ministerial-level agencies or agencies attached to the Government, or the presidents of the People's Committees of the provinces or centrally-run cities to approve, and take responsibility for, their bidding results;

c/ To approve the proposals on the designation of contractors, direct procurement, self-performance with regard to the bidding packages prescribed in Clauses 3, 5 and 6, Article 4 of Decree No. 88/CP, under the projects which the Prime Minister has decided on the investment therein, excluding bidding packages valued at under VND 1 billion, for goods procurement or construction and installation, and bidding packages valued at under VND 500 million, for consultancy, which shall be decided by the project owners;

For Points a and b of this Clause, the Prime Minister shall give his/her approval on the basis of the evaluation reports of the Ministry of Planning and Investment and written comments of the concerned competent agencies. For Point c of this Clause, the Prime Minister shall give his/her approval on the basis of the evaluation reports of the Ministry of Planning and Investment and the written comments of the donors and concerned competent agencies.

d/ Decisions on the inspection and handling of violations of the bidding legislation.

2. The Minister of Planning and Investment shall have the responsibility to:

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- The bidding plans for projects in which the investment has been decided by the Prime Minister;

- The bidding results of bidding packages falling under the approving competence of the Prime Minister;

- The proposals on the designation of contractors, direct procurement, self-performance with regard to bidding packages prescribed in Clauses 3, 5 and 6, Article 4 of Decree No. 88/CP, which fall under the approving competence of the Prime Minister.

b/ Publish and manage the State' bidding bulletin and website, manage the database on contractors.

c/ Examine and inspect the bidding work nationwide.

3. The ministers, the heads of the ministerial-level agencies, the agencies attached to the Government, the financial management agencies of the Party Central Committee, the central agencies of socio-political organizations (identified in the State Budget Law) and the presidents of the People's Committees of the provinces and centrally-run cities shall have the responsibility to:

a/ Give written comments on the bidding plans and the results of selection of contractors for the bidding packages under related projects, which are submitted by the project owners and falling under the approving competence of the Prime Minister;

b/ Approve the bidding dossiers of bidding packages falling under the Prime Minister's competence to approve bidding results, approve the bidding dossiers and bidding results of bidding packages authorized by the Prime Minister under the provisions at Point b, Clause 1 of this Article;

c/ Approve the bidding plans, bidding dossiers and the results of selection of contractors for all bidding packages under the projects funded with the State budget capital and falling under their investment-deciding competence. If they authorize their subordinates to make investment decisions on some projects, they shall also authorize the approval of the bidding plans, bidding dossiers and results of selection of contractors for all bidding packages under such projects but still take responsibility for such authorized tasks;

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4. The presidents of the People's Committees of provincial cities, urban districts, rural districts, provincial capitals, district capitals, communes and wards shall have the responsibility to:

a/ Approve the bidding plans of projects funded with the State budget capital, which fall under their investment-deciding competence;

b/ Approve the bidding dossiers and the results of selection of contractors for all bidding packages under the projects falling under their investment-deciding competence.

5. The Managing Boards (or persons authorized by the Managing Boards) of joint-venture enterprises, joint-stock companies, and lawful representatives of the business cooperation contract parties shall have the following responsibilities for projects prescribed at Point b, Clause 2, Article 2 of Decree No. 88/CP:

a/ To approve the bidding plans of the projects on the basis of the written agreements of the owner's representatives as prescribed by law for State enterprise participating in the investment in such projects.

b/ To approve the results of selection of contractors for all bidding packages under the projects. Particularly, for bidding packages valued at VND 1 billion or more, for consultancy, and bidding packages valued at VND 5 billion or more, for goods procurement or construction and installation, (according to the approved bidding plans), the approval shall be effected on the basis of the agreements of the owner's representatives as prescribed by law for State enterprises participating in the investment in such projects;

c/ To approve the bidding dossiers and decide on the contents of the bidding process as prescribed;

6. The enterprises' competent persons shall have the responsibility to approve the bidding plans of projects, bidding dossiers and the results of selection of contractors for all bidding packages under the projects which they have decided on the investment therein and concurrently decide on all the contents of the bidding process as prescribed."

20. Article 53 of Decree No. 88/CP is amended and supplemented as follows:

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Based on the approved bidding package prices in the bidding plans for the projects prescribed at Points a and c, Clause 2, Article 2 of Decree No. 88/CP, the evaluation and approval of the contractor selection results shall be effected as follows:

1. For important national projects which the National Assembly has adopted the undertakings on the investment therein and the Prime Minister has decided on the investment therein:

a/ The Prime Minister shall approve the contractor selection results on the basis of the evaluation reports of the Ministry of Planning and Investment with regard to bidding packages falling under his/her prescribed approving competence.

b/ The ministers, the heads of the ministerial-level agencies or the agencies attached to the Government, and the presidents of the People's Committees of the provinces and centrally-run cities shall approve the bidding dossiers of bidding packages falling under the Prime Minister's competence to approve bidding results, approve the bidding dossiers and bidding results of bidding packages authorized by the Prime Minister according to regulations, on the basis of the evaluations of their concerned assisting units or the provincial/municipal Planning and Investment Services, for localities.

2. For projects using the State budget capital:

a/ The ministers, the heads of the ministerial-level agencies or the agencies attached to the Government, the financial management agencies of the Party Central Committee, the central bodies of socio-political organizations (as determined in the State Budget Law) shall approve the bidding dossiers and the contractor selection results of all bidding packages under the projects in which they have decided on the investment on the basis of the evaluations of the concerned assisting units.

b/ The presidents of the People's Committees of the provinces and centrally-run cities shall approve the bidding dossiers and contractor selection results of all bidding packages under the projects in which they have decided on the investment on the basis of the evaluations of the provincial/municipal Planning and Investment Services.

c/ The presidents of the People's Committees of urban districts, rural districts, provincial capitals or cities, communes, wards and district capitals shall approve the bidding dossiers and contractor selection results of all bidding packages under the projects in which they have decided on the investment on the basis of the evaluations of their concerned assisting sections.

3. For projects in which the enterprises have decided on the investment:

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21. Clauses 5 and 7, Article 55 of Decree No. 88/CP are amended and supplemented as follows:

"5. Bidding cancellation and financial liabilities arising therefrom:

a/ Bidding cancellation shall apply in one of the following circumstances:

- The objectives mentioned in the bidding dossiers have changed;

- There is evidence showing that the bid solicitor has been in connivance with the contractors, thus resulting in unhealthy competition in bidding.

- All bid dossiers have basically not met the stated requirements of the bidding dossiers;

- There is evidence showing that contractors have been in negative connivance, thus resulting in unhealthy competition in bidding and affecting the bid solicitors' interests.

Based on the decisions of competent persons, the bid solicitors shall have to notify all bidders of the cancellation of the bidding or reorganization of the bidding.

b/ Financial liabilities arising from bidding cancellation:

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The compensation levels shall be calculated on the principles of precise and full calculation and compliance with the State-promulgated norms, covering the following amounts:

+ Expenses for purchase of bidding dossiers;

+ Travel expenses (for purchase of bidding dossiers, submission of bid dossiers, field surveys');

+ Expenses for compilation of bid dossiers;

+ Other expenses (stationery, equipment depreciation').

- The compensation for the bidding cancellation due to changes in the investment objectives or scale decided by competent persons shall be paid from the projects' funding; if the bidding cancellation is caused by the bid solicitor's fault, the bid solicitor's individuals at fault shall have to pay indemnity.

7. The rejection of bid dossiers shall apply in one of the following cases where such bid dossiers:

a/ Fail to meet the preconditions stated in the bidding dossiers;

b/ Fail to satisfy technical requirements;

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d/ Have the aggregate value of all discrepancies exceeding 10% of the bid price (applicable only to good procurement or construction and installation bidding packages);

e/ Contain false information."

22. Article 57a is added to Decree No. 88/CP (after Article 57) as follows:

"Article 57a.- Database on contractors

1. The contents of the database on contractors

The database on contractors shall consist of the list of contractors participating in bidding for projects in Vietnam, including the following details on each contractor:

a/ The name of the contractor;

b/ The founding year;

c/ The fields they participate in bidding, such as consultancy, goods supply or construction and installation;

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e/ Other related details.

2. The agency managing the database on contractors

The agency that manage the national database on contractors is the Ministry of Planning and Investment. The Ministry of Planning and Investment shall have to publish information on contractors in the State's bidding bulletin and website.

3. Responsibility to supply information on contractors

The contractors shall have to supply their information to the Ministry of Planning and Investment according to the contents stated in Clause 1 of this Article. A condition for bidding participation is that contractors must be named in the database on contractors published in the State's bidding bulletin and website."

23. Article 57b is added to Decree No. 88/CP as follows:

"Article 57b.- Management of foreign contractors in Vietnam

1. Foreign contractors wishing to participate in biddings in Vietnam shall have to supply their information to the agency managing the database on contractors specified in Clause 22, Article 1 of this Decree.

2. The Ministry of Construction shall assume the prime responsibility and coordinate with the Ministry of Public Security, the Ministry of Trade and the Ministry of Finance in studying and submitting to the Prime Minister for promulgation the regulation on management of foreign contractors operating in Vietnam and the project owners' responsibility for managing foreign contractors who win bids to perform contracts in Vietnam."

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"1. The examination of the bidding work shall be conducted as follows:

a/ The authorities to decide on the examination

- The Prime Minister shall decide on the examination of the bidding work performed by the ministries, the ministerial-level agencies, the agencies attached to the Government and localities across the country in cases where he/she deems it necessary.

- The Ministry of Planning and Investment shall examine the bidding work nationwide according to its function and in specific cases as decided by the Prime Minister.

- The ministers, the heads of the ministerial-level agencies, the heads of the agencies attached to the Government and the presidents of the People's Committees at all levels shall decide on and organize the examination according to the Bidding Regulation of the bidding work performed by units under their respective management and units carrying out the projects in which they have licensed the investment under the provisions at Point b, Clause 2, Article 2 of Decree No. 88/CP.

b/ Regular examination:

Depending on the situation of the bidding work at the grassroots level, the competent persons shall decide on the examination on a quarterly, biannual or annual basis. Regular examination shall focus on the following principal contents:

- The general situation of the bidding work at the units;

- The situation of the bidding work in some particular projects: The approved bidding plans, the bidding process; legal grounds, reasons for restricted bidding, reasons for the designation of contractors, bidding results, the value of signed contracts and the performance of contracts.

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Unexpected examination shall apply to bidding packages involving too low prices as compared to the prices of the bidding packages, the bidding packages facing problems or at the requests of competent persons. Unexpected examination shall focus on the following principal contents:

- Legal procedures and enclosed documents;

- The bidding process; time for implementation of different stages in the process of selecting contractors;

- The contract selection results;

- Specific problems and complaints (if any) of individuals or organizations of the bid solicitors and contractors;

- Handling measures proposed by the units.

d/ In the examining process, any detected problems shall be reported to competent persons for consideration and settlement, any detected violations of the bidding legislation shall be reported to competent persons for reference to the inspectorate for handling or other law-enforcing agencies for handling according to their competence. The entire examining process shall be reported in writing to competent persons and information thereon shall be sent to the agency managing the State' bidding bulletin and website for publication."

25. Article 59a is added to Decree No. 88/CP (after Article 59) as follows:

"Article 59a.- Bidding inspection

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1. The agencies performing bidding inspection

The agency performing bidding inspection nationwide is the Ministry of Planning and Investment. The ministries, the ministerial-level agencies, the agencies attached to the Government and the localities shall organize inspection of the bidding work in the units under their respective management as well as units having projects which they have licensed the investment therein under the provisions of Point b, Clause 2, Article 2 of Decree No. 88/CP.

2. Inspected objects

Objects subject to bidding inspection are bidding participating activities of organizations and individuals participating in bidding.

3. Organization of inspection

Inspection shall be organized and conducted upon the detection of signs of violation of the bidding legislation, at the requests of the examining agencies stated in Clause 24, Article 1 of this Decree or at the requests of competent persons as to specific bidding cases.

4. Inspection contents

The inspection contents shall be determined on a case-by-case basis. For the inspection of the selection of contractors, the inspection shall focus on the following principal matters:

a/ The contents of legal documents on the implementation of bidding packages, specifically:

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- Bidding dossiers and other legal documents on the contents of the bidding process;

- Decisions approving the contractor selection results.

b/ The process of selecting contractors and bidding milestones.

c/ Complaints and reservations of consultants, the experts' groups and other individuals (if any) reported to the inspecting agencies.

5. Handling of violations detected through inspection

In the inspecting process, if detecting violations, depending on the nature of the cases of violation, the inspecting agencies or inspectors shall handle them according to their functions prescribed by the legislation on State inspection of administrative violations or propose competent functional agencies to discipline individuals (officials and public employees) under the Ordinance on Public Employees, impose sanctions under the Ordinance against Corruption or examine for penal liability according to law.

6. Reporting on bidding inspection

The inspecting agencies or inspectors performing the inspecting tasks shall have to report on the inspection results to competent persons."

26. Article 60 of Decree No. 88/CP has Clause 2 amended and is supplemented with Clause 5 as follows:

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a/ If contractors commit fraudulent acts such as reporting or supplying false information in the bid dossiers on their financial capability, technical capability, implementation experiences, resumes of consultants, the bid solicitors shall be entitled to reject their bid dossiers and shall not have to return the bid securities (if any) to such contractors. The violating contractors shall have their names published in the State's bidding bulletin and website;

b/ If contractors commit acts of giving bribes to individuals and/or organizations of the bid solicitors and agencies involved in the bidding and bid-considering process, their bid dossiers shall not be considered, their bid securities not be returned and their names be published in the State's bidding bulletin and website. Besides, they shall be also handled according to the provisions of law;

c/ If contractors commit acts of colluding with one another, thus affecting the bid solicitors' interests, they shall forfeit their bid securities and have their names published in the State's bidding bulletin and website;

d/ If consultants make inaccurate construction designs, thus making the construction process be amended, supplemented or re-designed, causing wastefulness, they shall have to compensate the damage and have their names published in the State's bidding bulletin and website;

e/ If construction-supervising consultants show irresponsibility, connive with construction and installation contractors in making false certifications of the work volumes and quality, thereby deteriorating the works' quality, they shall both have to compensate the damage and have their names published in the State's bidding bulletin and website, and for individuals of such contractors, they shall, depending on the seriousness of their violations, be examined for penal liability according to the provisions of law;

f/ If construction and installation contractors fail to perform the work within the scope defined in the contracts, fail to properly realize the agreements between the partnership parties, between principal contractors and sub-contractors as stated in their contracts as well as in their bid dossiers, or re-assign their work to other units not prescribed in the contracts, they shall be forced to perform the contracts properly and concurrently bear all expenses arising from their improper performance. The violating construction and installation contractors and the related consultancy supervising contractors shall have their names published in the States bidding bulletin and website, and concurrently for individuals of such contractors, they shall, depending on the seriousness of their violations, be examined for penal liability according to the provisions of law;

g/ If contractors fail to perform their contracts for non-force majeure reasons or have their contracts canceled due to their contract breaches, they shall have their names published in the States bidding bulletin and website;

h/ Where contractors violate one or many of the provisions at Points from a to g of this Clause and have their names published in the State's bidding bulletin and website, if they have their names published in the State's bidding bulletin and website three times, they shall not be allowed to participate in any bidding for a period of one year. If they commit three violations for the second time, they shall be banned from participating in any bidding for a period of two years. If they commit three violations for the third time, they shall be banned from participating in any bidding for a period of three years. If they still commit violations afterwards, they shall be banned from participating in any bidding for ever.

The agency managing the State's bidding bulletin and website shall have to publish the list of contractors banned from bidding in the bidding bulletin and website and delete their names from the list in the database on contractors.

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a/ If individuals and/or collectives of the bid solicitors (including the experts' groups) commit acts of dishonest reporting in the process of bidding and bid consideration; colluding with contractors or taking bribes, they shall, depending on the seriousness of their violations, be disciplined or examined for penal liability.

b/ If the bid solicitors (including the experts' groups) fail to comply with the order and process of bidding organization, organize bidding without approved bidding plan, fail to supply information on bidding according to regulations, they shall, depending on the seriousness of their violations and the violated objects, be handled by the competent persons who may apply such measures as replacing personnel of the bid solicitors, of the experts' groups, disciplining individual violators (officials or public employees) according to the Ordinance on Public Employees by banning them from participating in any bidding packages under their management, forcing them to compensate the damage (if any), or proposing responsible agencies (such as the inspectorate) to handle administrative violations or other law enforcement agencies to impose punishments according to the provisions of law."

27. Clause 5 of Article 61 of Decree No. 88/CP is removed.

Article 2.- Handling of transitional matters

1. For bidding packages for which the bidding dossiers were issued before the effective date of this Decree, they shall comply with Decree No. 88/CP and Decree No. 14/CP.

2. For bidding packages for which the bidding dossiers are issued after the effective date of this Decree, their implementation shall comply with this Decree.

3. The bid solicitation notification and the use of information on contractors in the States bidding bulletin and website shall comply with the guidance of the Ministry of Planning and Investment.

Article 3.- This Decree takes effect 15 days after its publication in the Official Gazette.

Article 4.- The Ministry of Planning and Investment shall assume the prime responsibility and coordinate with the concerned ministries and branches in studying and issuing the forms of bidding dossiers, guiding the bidding inspection, guiding and supervising the implementation of this Decree.

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ON BEHALF OF THE GOVERNMENT
PRIME MINISTER




Phan Van Khai