CIRCULAR

PRESCRIBING PREPARATION OF BIDDING DOCUMENTS FOR PROCUREMENT OF CONSTRUCTION SERVICES UNDER THE FRAMEWORK OF THE COMPREHENSIVE AND PROGRESSIVE AGREEMENT FOR TRANS-PACIFIC PARTNERSHIP, THE EU-VIETNAM FREE TRADE AGREEMENT AND THE UK-VIETNAM FREE TRADE AGREEMENT

Pursuant to the Law on Bidding dated November 26, 2013;

Pursuant to the Government’s Decree No. 95/2020/ND-CP dated August 24, 2020 providing guidelines on bidding process in procurement under the Comprehensive and Progressive Agreement for Trans-Pacific Partnership;

Pursuant to the Government’s Decree No. 09/2022/ND-CP dated January 12, 2022 providing amendments to the Government’s Decree No. 95/2020/ND-CP dated August 24, 2020 providing guidelines on bidding process in procurement under the Comprehensive and Progressive Agreement for Trans-Pacific Partnership as the basis for bidding for procurement under the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, the EU-Vietnam Free Trade Agreement and the UK-Vietnam Free Trade Agreement;

Pursuant to the Government’s Decree No. 86/2017/ND-CP dated July 25, 2017 defining the functions, tasks, powers and organizational structure of the Ministry of Planning and Investment of Vietnam;

At the request of the Director General of the Public Procurement Agency;

The Minister of Planning and Investment of Vietnam promulgates a Circular prescribing preparation of bidding documents for procurement of construction services under the framework of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, the EU-Vietnam Free Trade Agreement and the UK-Vietnam Free Trade Agreement.

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This Circular provides detailed regulations on preparation of bidding documents for procurement of construction services under the framework of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (hereinafter referred to as “CPTPP Agreement”), the EU-Vietnam Free Trade Agreement (hereinafter referred to as “EVFTA Agreement”) and the UK-Vietnam Free Trade Agreement (hereinafter referred to as “UKVFTA Agreement”) used in competitive bidding process which is implemented adopting the single stage-one envelope bidding procedure or single stage-two envelope bidding procedure.

Article 2. Regulated entities

This Circular applies to organizations and individuals that participate in or are involved in the selection of contractors of construction service contract packages within the scope specified in Article 1 of this Circular.

Article 3. Forms of bidding documents for construction services

1. Use of forms of bidding documents:

a) Form No. 01 of bidding documents for construction services shall be used in the competitive bidding process adopting the single stage-one envelope bidding procedure;

b) Form No. 02 of bidding documents for construction services shall be used in the competitive bidding process adopting the single stage-two envelope bidding procedure.

2. In case of direct contracting, Request for Proposals (RFP) documents may be prepared in accordance with the provisions of this Circular provided that they shall not be contrary to the provisions of CPTPP, EVFTA and UKVFTA Agreements.

Article 4. Preparation of bidding documents

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a) Depending on the scale and nature of each contract package, the procuring entity may impose reasonable requirements that must ensure competitiveness, fairness, transparency and economic efficiency; Bidding documents must contain adequate information necessary for bidders’ preparation of their bids. If the procuring entity publishes bidding documents containing inadequate or misleading information which causes difficulties to bidders in preparing their bids, the published bidding documents will be considered invalid; the procuring entity shall be required to modify and publish the modified bidding documents;

b) The procuring entity may not impose any requirement aimed at limiting participation of bidders or giving advantage to one or some bidders, thereby causing unfair competition; and any requirement that, in order for a bidder to participate in a procurement, the bidder has previously been awarded one or more contracts by a procuring entity of a given country or territory or that the bidder has prior work experience in that country or territory;

c) Provisions of the forms of bidding documents may be modified provided that all such modifications will make the bidding documents stricter, and not be contrary to the provisions of CPTPP, EVFTA and UKVFTA Agreements. Such modifications and reasons thereof must be clearly specified in the request for approval of bidding documents submitted to the investor.

2. Requirements regarding key personnel and equipment

a) Key personnel:

- Depending on the scale and nature of each contract package and pursuant to the Law on construction, the procuring entity may establish reasonable requirements regarding key personnel in the bidding documents. Bidding documents shall not include any key personnel requirements with regard to positions of which standards of holders are not required by the Law on construction or holders of common technical positions, technical workers and unskilled workers;

- If the key personnel stated in a bid fails to meet personnel requirements laid down in the bidding documents, the bidder will be allowed a sufficient period of time to provide clarifications, replace or make changes in its key personnel. Replacement of each unqualified person shall be made once only.   The bid shall be disqualified if the bidder fails to have substitute personnel that meets personnel requirements laid down in the bidding documents.

b) Main construction equipment:

- Depending on the scale and nature of each contract package, the procuring entity shall impose appropriate equipment requirements (including quantity, categories, functions and capacity);

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c) The bidder that is successful and awarded the contract shall be obliged to mobilize personnel and equipment as proposed or replaced as prescribed in Point a and Point b of this Clause. The bidder's failure to mobilize personnel and equipment will result in the bidder incurring breach of contract penalties and having its prestige adversely affected when participating in other contract packages.

d) The bidder’s inaccurate statement of personnel and equipment will in any case result in the bidder being disbarred from replacement of personnel and equipment as prescribed in Point a and Point b of this Clause, having its bid disqualified, being considered to have entered into fraudulent practices as prescribed in Clause 4 Article 89 of the Law on Bidding, and thus incurring penalties as prescribed in Clause 1 Article 122 of the Decree No. 63/2014/ND-CP dated June 26, 2014.

3. Requirements regarding commitments and principle contract

If the bidding documents contain requirements regarding commitments or principle contracts for equipment lease, supply of main materials, warranty, maintenance or repair services but the bid is not accompanied by these documents, the procuring entity shall allow a sufficient period of time for the bidder to clarify their bid and provide additional documents as the basis for bid evaluation.

4. Contract

a) Bidding documents must include the contract form, and terms and conditions of the contract as the basis for bidders’ submission of their bids as well as negotiation, completion and conclusion of contract.

The contract shall contain general conditions, particular conditions and contract forms. Depending on the scale and nature of each contract package, the investor shall decide to make reasonable modifications to the contract. Where necessary, the investor may apply construction contract forms developed by the International Federation of Consulting Engineers (FIDIC) provided they are not contrary to the domestic law.

b) The contract signed between the investor and the successful bidder must be made according to the contract form and conditions of the contract provided in bidding documents and modifications and revisions proposed by the bidder and accepted by the investor during the negotiation and completion of the contract provided that they shall not be contrary to the provisions of the Law on bidding, CPTPP, EVFTA or UKVFTA Agreement and relevant laws.

Article 5. Implementation  

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2. Regarding the contract packages governed by the CPTPP, EVFTA or UKVFTA Agreement for which bids have been opened before the effective date of this Circular, the evaluation and acceptance of bids shall be carried out according to the provisions of the issued bidding documents provided that such evaluation and acceptance of bids shall not be contrary to the provisions of the CPTPP, EVFTA and UKVFTA Agreements.

3. Regarding the contract packages governed by the CPTPP, EVFTA or UKVFTA Agreement for which the bid closing date falls after the  effective  date of this Circular, if the bidding documents have been approved and issued before the effective date of this Circular but are found before the bid closing date to contain information unconformable or contrary to the provisions of the forms of bidding documents enclosed herewith, reasonable modifications should be made. If the issued bidding documents are modified, bidders shall be allowed a sufficient period of time to prepare their bids.

4. Regarding the contract packages governed by the CPTPP, EVFTA or UKVFTA Agreement for which bidding documents have been approved before the effective date of this Circular but yet to be issued, such bidding documents shall be modified according to relevant forms of bidding documents enclosed herewith.

5. If any legislative documents referred to in this Circular are amended and supplemented, the new ones shall apply.

6. The organizations mentioned in the Appendix enclosed with the Decree No. 09/2022/ND-CP dated relevant organizations and individuals are responsible for the implementation of this Circular. Difficulties that arise during the implementation of this Circular should be reported to the Ministry of Planning and Investment of Vietnam for consideration./.

MINISTER




Nguyen Chi Dung

Thông tư 15/2022/TT-BKHĐT quy định chi tiết về lập hồ sơ mời thầu xây lắp đối với gói thầu thuộc phạm vi điều chỉnh của Hiệp định Đối tác Toàn diện và Tiến bộ xuyên Thái Bình Dương, Hiệp định Thương mại tự do giữa Việt Nam - Liên minh Châu Âu, Hiệp định Thương mại tự do giữa Việt Nam - Liên hiệp Vương quốc Anh và Bắc Ai-len do Bộ trưởng Bộ Kế hoạch và Đầu tư ban hành