CIRCULAR

DETAILED REGULATIONS ON USE OF STATE FUNDING FOR MAKING PURCHASES FOR THE PURPOSE OF MAINTAINING REGULAR OPERATIONS OF STATE AGENCIES, UNITS AFFILIATED TO PEOPLE'S ARMED FORCE, PUBLIC SERVICE PROVIDERS, POLITICAL ORGANIZATIONS, SOCIO-POLITICAL ORGANIZATIONS, SOCIAL-POLITICAL-PROFESSIONAL ORGANIZATIONS, SOCIAL ORGANIZATIONS, SOCIO-PROFESSIONAL ORGANIZATIONS

Pursuant to the Law on state budget No. 01/2002/QH11 dated December 16, 2002;

Pursuant to the Law on Bidding No. 43/2013/QH13 dated November 26, 2013;

Pursuant to the Government’s Decree No. 63/2014/ND-CP dated June 26, 2014 detailing the implementation of several provisions of the Law on bidding regarding the contractor selection;

Pursuant to the Government’s Decree No. 215/2013/ND-CP dated December 23, 2013 defining functions, tasks, powers and organizational structure of the Ministry of Finance;

At the request of the Director General of the Department of Public Expenditure;

Minister of Finance promulgates this Circular providing for the use of state funding for making purchases for the purpose of maintaining regular operations of state agencies, units affiliated to people's armed force, public service providers, political organizations, socio-political organizations, social-political-professional organizations, social organizations, socio-professional organizations.

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GENERAL PROVISIONS

Article 1. Regulated entities

State agencies, political organizations, socio-political organizations, social-political-professional organizations, socio-professional organizations, social organizations, units affiliated to people's armed force, public service providers, public scientific and technological organizations (hereinafter referred to as agencies) that use state funding as prescribed in Clause 2 Article 2 of this Circular to purchase assets, goods and services for the purpose of maintaining their regular operations.

Article 2. Scope

1. Purchasing contents:

a) Purchases of working equipment under regulations by Prime Minister on standards and limits on working equipment of agencies, and officials and public employees;

b) Purchases of machinery and equipment serving professional operation, assurance of occupational safety, fire fighting and prevention;

c) Purchases of means of transport: cars, bikes, ships, boats, and other means of transport (if any);

d) Purchases of raw materials, fuels, gasoline, oil, chemicals, herbal ingredients, in-vitro diagnostic reagents, materials, consumables, tools and devices for ensuring regular operations;

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e) Purchases of IT products: machines, equipment, accessories, software, and other IT products and services, including installation, test run, warranty (if any) of IT projects funded by government budget according to government’s regulations on management of IT applications with non-business capital in compliance with the Government’s regulations on management of investment in application of information technology with funds from state budget;

g) Printing products, documents, forms, publications, regulated records, stamps; cultural articles, books, videos, and products and services for propagating, popularizing and serving professional tasks;

h) Non-consultant services consist of: Lease of services of maintaining and repairing machines, equipment, working facilities, means of transport; regular repairing of houses or construction works which are not in investment projects on basic infrastructure construction; services of leasing office building, shelters, official vehicles and industrial hygiene vehicles; waste treatment services; ornamental plants and flower garden care services; transmission line leasing services; insurance services; price appraisal services (if any); power, water and fixed telephone services; services of training and organizing seminars and conferences, other non-consultant services;

i) Consulting services consist of: Technology consulting services, consulting services for preparing, analyzing and appraising bids and other consulting services employed during the purchase for the purpose of maintaining regular operations of agencies;

k) Industrial property rights, intellectual property rights (if any);

l) Other assets, goods, consulting services and non-consulting services purchased for the purpose of maintaining regular operations of agencies.

The above-prescribed assets, goods, consulting services and non-consulting services are hereinafter referred to as assets, goods and services.

2. Funding for the purchase:

a) Funding from state budget on recurrent expenditures as regulated in the Law on state budget which is given by competent authorities under annual state budget expenditure estimates of relevant agencies (including annual additional funding);

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c) Loan capital guaranteed by the government and other sources of funding managed by the government (if any);

d) Official Development Assistance (ODA): Non-refundable loans and grants that are balanced in recurrent expenditure from state budget; aids and finances from foreign non-governmental organizations, and those from domestic and foreign entities which are government revenues (except for the cases where international treaties on ODA and concessional loans of which Socialist Republic of Vietnam is a member shall apply);

dd) Revenues from the collection of fees and charges which are used in conformity with the law on fees and charges;

e) Revenues from non-business operations, non-business operation development funds, award funds, welfare funds and other lawful funds of public service providers;

g) Funding from the Health Insurance Fund;

h) Other lawful sources of revenue as regulated (if any).

3. The following cases shall not be governed by this Circular:

a) Purchase of materials and equipment for investment projects;

b) Purchase of specialized equipments and facilities for national defense and security;

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d) If the purchase of assets, goods and services prescribed in Clause 1 of this Article belongs to the national concentrated purchase list and the concentrated purchase list of ministries, regulatory bodies and local governments, regulations of the Law on bidding, the Government's Decree No. 63/2014/ND-CP dated June 26, 2014 and their instructional documents shall apply.

Article 3. Methods of contractor selection

1. Methods of contractor selection consist of: competitive bidding, selective bidding, direct contracting, direct procurement, competitive offering, self-supply and contractor selection in special cases.

2. The head of purchasing agency shall, on the basis of annual state budget expenditure estimates and additional estimates given by the competent authority during the year, and Decision on purchase of assets made by the competent authority as prescribed in Clause 1 Article 5 of this Circular, apply an appropriate method of contractor selection to its purchase of goods and services as regulated.

3. For the cases where requirements have been satisfied to conduct the procurement of assets, goods and services without the bidding, if the purchasing agency believes that the bidding should be carried out in order to ensure managerial objectives and use funding from the state budget in an effective manner, the purchasing agency shall apply the competitive bidding as regulated and report the competent authority of results of the purchase of assets, goods and services.

Article 4. Collection and payment for contractor selection

1. Expenditures for contractor selection consist of:

a) Expenditure for preparing bidding documents, requests for proposals and organizing the bidding;

b) Expenditure for publishing bid invitation (if any);

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d) Expenditure for operations of group of experts;

dd) Expenditure for the advisory board in charge of settling contractor’s proposals (if any);

e) Other expenditures for the contractor selection.

2. Expenditure levels:

a) Expenditure for appraisal: According to the level defined in the signed contract on the basis of contents and scope of service, implementation period, capacity and experience of experts and other elements; Expenditure for publishing bid information and participating in the national bidding network: Comply with guidelines by Ministry of Planning and Investment;

b) Expenditure for meetings of experts, meetings for appraising contractor selection plan, appraising bidding documents, request for proposals, and appraising contractor selection result, and meetings of advisory board: Apply the expenditure level for similar meetings prescribed in the Joint Circular No. 55/2015/TTLT-BTC-BKHCN dated April 22, 2015 of Ministry of Finance and Ministry of Science & Technology providing guidance on construction quotas, allocation of estimates and finalization of expenditures for performing scientific and technological tasks with funding from state budget;

c) With regard to contents of expenditures where specific expenditure levels are not regulated by the competent authorities, the procuring agency may decide the expenditure levels according to actually incurred amounts provided that such expenditures must be proper and lawful on the basis of compliance with regulations on invoices and documents, and the procuring agency shall bear responsibility for their expenditures;

d) Officials and public employees who work overtime for fulfilling contractor selection tasks shall get overtime pay as regulated in the Joint Circular No. 08/2005/TTLT-BNV-BTC dated January 05, 2005 of Ministry of Finance and Ministry of Home Affairs providing guidance on pay for night work and overtime pay of officials and public employees.

3. Collection contents:

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b) If the contractor makes complaint about contractor selection result, the procuring agency shall require such contractor to make payment for covering expenditure for settling such complaint. The collection rate is equal to 0.02% of the bid of the contractor who files the complaint provided that it must be from VND 1,000,000 (one million dongs) to VND 50,000,000 (fifty million dongs).

c) Revenues from bid security as prescribed in Article 11 of the Law on bidding, and revenues from contract performance security as prescribed in Article 66 of the Law on bidding.

4. Receipt: Using the receipt (Form No. C38-BB) stated in the Decision No. 19/2006/QD-BTC dated March 30, 2006 of Ministry of Finance providing policies on accounting applicable to administrative units.

5. Finalization: Because revenues from the purchase are not considered as government revenues, they are not taken into accounts of state budget; relevant agencies shall record revenues from bidding activities as their other sources of revenues and summarize them in their annual financial statements.

6. Funding for guaranteeing bidding process:

Purchasing agencies shall use sources of funding stated in Point a and Point b Clause 3 of this Article to cover expenses incurred from the bidding process and settling contractor’s complaints. If the said sources of funding cannot cover expenses incurred from the bidding process, purchasing agencies may use their recurrent expenditure for covering. On the contrary, the surplus shall be added to their operational expenditures.

Chapter II

RESPONSIBILITY FOR APPRAISING AND APPROVING CONTRACTOR SELECTION

Article 5. Competence to decide the purchase

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2. People’s councils of provinces shall delegate competent authorities to decide the purchase of government assets for state agencies within their authority.

3. Heads of budget estimate units at all levels shall decide the purchase of assets, goods and services which belong to the list of valuable purchases with funding from state budget within their management as authorized by competent authorities, and decide the purchase of assets, goods and services worth up to VND 100,000,000 within the limit of the budget estimate granted by the competent authorities.

4. Heads of public service providers shall decide the purchase of assets as prescribed in Clause 2 Article 41 of the Government’s Decree No. 52/2009/ND-CP dated June 03, 2009 detailing and guiding the implementation of certain articles of the Law on management and use of government assets.

Article 6. Competent to approve contractor selection plan

Ministers, heads of central government-affiliated agencies, chairpersons of people’s committees at all levels, and heads of agencies that are competent to decide the purchase of assets, goods and services as prescribed in Article 5 of this Circular shall approve contractor selection plans within their authority.

Article 7. Competent to approve bidding documents, request for proposals and contractor selection result

Heads of agencies that directly use the funding sources to purchase assets, goods and services or entities acting as the procuring agencies authorized by competent persons shall give approval for bidding documents, request for proposals and contractor selection result.

Article 8. Responsibility for appraising contractor selection result

1. Appraisal of contractor selection plan:

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b) If the procurement is approved by the head of central government-affiliated agency as regulated, such head shall authorize an entity to conduct the appraisal of contractor selection plan;

c) If the procurement is decided by the head of agency that directly use the purchase estimate as prescribed in Article 5 of this Circular, the head of such agency shall authorize an entity to conduct the appraisal of contractor selection plan.

2. Appraisal of bidding documents, request for proposals and contractor selection result:

The procuring agency shall authorize an entity to conduct the appraisal of bidding documents, request for proposals and contractor selection result.

Chapter III

CONTRACTOR SELECTION PLAN

Article 9. Principle of making contractor selection plan

1. The contractor selection plan shall be made according to the entire funding from state budget allotted by competent authorities at the beginning of the year and additional plan shall be made according to funding additionally allotted during the year.

Failure to make the contractor selection plan for the entire purchase estimate, the contractor selection plan for one or several procurements shall be made first.

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3. The allocation of funding for purchase of assets, goods and services to procurements must be made on the basis of technical specifications and implementation order for ensuring the synchronous purchase and appropriate scale of the procurement. The division of the procurement into smaller parts for making the purchase by employing other purchasing forms without bidding and the application of methods of contractor selection inconsistent with the law are strictly prohibited.

4. The contractor selection plan shall be made after the decision on approving purchase estimate is granted or at the same time when the purchase estimate is made.

Article 10. Grounds for making contractor selection plan for purchasing assets, goods and services

1. Standards and limits on working equipment and facilities agencies, officials and public employees; current working equipment and facilities that need to be replaced by the new ones.

2. Decision on the purchase of assets, goods and services by competent authorities (as regulated in Article 5 of this Circular) or purchase estimate plan or list approved by competent authorities.

3. Scheme for purchasing equipment for the whole sector approved by the Prime Minister (if any).

4. Sources of funding for purchase of assets, goods and services as regulated in Clause 2 Article 2 of this Circular.

5. The regular purchase estimate approved by competent authorities;

6. The price appraisal result provided by the agency in charge of price appraisal or the organization providing price appraisal services or reports provided by relevant suppliers (if any).

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Each procurement shall consist of the following contents:

1. Name of the procurement.

2. The procurement value.

At least one of the following documents must be used as the basis for making and determining the procurement value in the contractor selection plan:

a) The quotation of the goods that need to be purchased provided by at least three local suppliers in order to use as the basis for determining the procurement value. If it is unable to get the quotation from three local suppliers, the quotation provided by suppliers in other areas may be referred to obtain at least three quotations for determining the procurement value.

b) The purchase estimate approved by the competent authority (including types of assets, goods and services, quantity and unit price or the entire funding for purchasing one type of assets/ goods/ services during the year);

c) The price appraisal result provided by the competent state agency or the price appraisal enterprise if the price appraisal must be carried out as regulated by the Law on prices;

d) The market price at the purchasing time which is referred to orthodox information provided by relevant suppliers as regulated by the law of Vietnam and obtained through Internet network;

dd) The procurement value of a similar type of goods made over the previous 30 days.

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3. Funding sources.

4. Contractor selection methods and procedures.

5. The time on which the contractor selection plan is performed.

6. The type of contract.

7. Time limit for contract execution.

Article 12. Submission of contractor selection plan for approval

1. Submission of contractor selection plan:

The procuring agency shall submit the contractor selection plan to the person competent to approve the contractor selection plan as regulated in Article 6 of this Circular, and send such contractor selection plan to the agency/ entity in charge of appraisal as regulated in Article 8 of this Circular.

2. A proposal of contractor selection plan shall consist of:

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b) Works to which one of contractor selection methods stated in this Circular cannot apply;

c) Works which are in the contractor selection plan, including working contents and corresponding value of procurements established according to one of contractor selection methods stated in this Circular. In this part, the basis for dividing the purchase estimate to procurements must be specified. Contents of each procurement must comply with regulations in Article 11 of this Circular. The proposal of contractor selection plan must include reasons for employing a contractor selection method other than the competitive bidding method;

d) Works which are not qualified for making the contractor selection plan (if any), in which, working contents and value of this part of works must be specified;

dd) Total value of works stated in Point a, b, c and d of this clause. This amount shall not exceed total funding in the approved purchase estimate.

3. Documents enclosed with the proposal:

When submitting the contractor selection plan for approval, copies of documents used as the basis for making the contractor selection plan as regulated in Article 10 of this Circular must be enclosed.

Article 13. Appraisal of contractor selection plan

1. The appraisal of contractor selection plan is to verify and appraise contents prescribed in Article 9, 10 and 11 of this Circular.

2. The agency/ entity in charge of appraising the contractor selection plan shall make and submit the report on appraisal results to the competent person for approval.

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Heads of agencies prescribed in Article 5 of this Circular shall, after they have received valid contractor selection plans and reports on appraisal results, give written approval for contractor selection plans to use as the basis for selecting contractors after purchase estimates are approved or at the same time the approval for purchase estimates are given in cases where requirements are satisfied.

The contractor selection plan must be approved within 05 working days from the date on which the valid proposal of contractor selection plan and the report on appraisal results are received.

Chapter IV

DIRECT CONTRACTING, COMPETITIVE OFFERING, DIRECT PROCUREMENT, SELF-SUPPLY AND CONTRACTOR SELECTION IN SPECIAL CASES

Section 1. DIRECT CONTRACTING

Article 15. Cases where direct contracting shall be applied

1. Procurements specified in Clause 1 Article 22 of the Law on bidding, including:

a) Procurements which need to be performed to immediately overcome or timely handle consequences caused by force majeure events; procurements which need to be performed to ensure the national secret; procurements which need to be immediately carried out to avoid causing direct damages to life, health and assets of local communities or to prevent adverse affects on adjacent projects; procurements of purchasing chemicals, materials, and health equipment in order to carry out the work of prevention and fighting of epidemics in urgent cases;

b) Urgent procurements which need to be carried out aiming to protect national sovereignty, national borders, and islands;

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d) The procurement of provision of consulting service for making feasibility study report or construction design which is provided to qualified construction designer; procurements of construction of statues, reliefs, monumental paintings, or art works in association with author right from the creation to the construction of the works.

2. The procurement of purchase of asset/ good/ service which are in the regular purchase estimate or plan, and the value of such value shall not exceed VND 100,000,000 (one hundred million dongs).

3. The following requirements must be satisfied if the direct contracting is applied to one of procurements prescribed in Point b, c and d Clause 1 and Clause 2 of this Article:

a) The approved contractor selection plan is available;

b) The time limit for performing the direct contracting from the approving date of request for proposals to the date of signing contract shall not exceed 45 days or 90 days if the procurement has large and complicated scale;

c) The contractor who is recommended for direct contracting must be named in database on contractors as regulated by Ministry of Planning and Investment (except for the procurement specified in Clause 2 of this Article).

Article 16. Standard procedures for direct contracting

1. Procurements specified in Article 15 of this Circular (except for procurements prescribed in Point a Clause 1 and Clause 2 of this Article) may apply standard procedures for direct contracting.

2. Standard procedures for direct contracting shall comply with Article 55 of the Government's Decree No. 63/2014/ND-CP dated June 26, 2014.

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1. With regard to procurements specified in Point a Clause 1 Article 15, except for procurements which need to be performed to ensure the national secret:

The supervisory agency of the procurement shall determine and appoint experienced and capable contractor to execute the procurement. Within 15 days from the date on which the contract is awarded, the involved parties must complete procedures for direct contracting, including: preparing and sending the draft contract to the contractor, which specifies required tasks, schedule, quality, and corresponding value, then concluding the contract. According to the result of contract negotiation, the supervisory agency of the procurement shall approve the direct contracting result and sign the contract with the selected contractor. Direct contracting result must be disclosed as regulated by the law.

2. With regard to procurements specified in Clause 2 of Article 15:

a) The procuring agency shall, on the basis of objectives and scope of tasks, and approved estimate, prepare and send the draft contract to the experienced and capable contractor who is authorized by the competent person to execute the procurement. The draft contract shall include required tasks, working scope, schedule, quality, corresponding value, and other necessary contents;

b) Based on the draft contract, the procuring agency and the selected contractor shall negotiate and complete the contract in order to use as the basis for approving the contractor selection result and concluding the contract;

c) Contract conclusion: The contract signed by the involved parties must conform to the decision on approving contractor selection result, the written record of contract negotiation, and relevant documents.

3. For the procurements where the shortened procedures for direct contracting regulated in Clause 1 and Clause 2 of this Article are applied, if relevant agencies believe that standard procedures for direct contracting should be adopted for the purpose of ensuring managerial objectives and effective use of funding from state budget, such agencies shall follow standard procedures for direct contracting.

Section 2. COMPETITIVE OFFERING

Article 18. Scope of competitive offering

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a) The procurement of common and uncomplicated non-consulting services;

b) The procurement of purchase of assets/goods which are commonly used (which are used by a lot of people and acquired from stable and guaranteed suppliers), readily available on the market (goods may be provided immediately without waiting for design, processing or manufacturing), are goods whose technical characteristics are standardized (according to Vietnam’s standards, basic standards, international standards or foreign standards) and quality are equivalent (goods may be replaced for each other because they have the same technical characteristics, features and other specifications).

2. The competitive offering shall be applied when all of the conditions below are satisfied:

a) There is a contractor selection plan approved by the competent person;

b) It is required to have a purchase estimate approved by the competent authority.

Article 19. Procedures for competitive offering

1. The procurement of purchase of assets/goods/services whose value is from 200 million VND to 02 billion VND shall adopt standard procedures for competitive offering as regulated in Article 58 of the Government's Decree No. 63/2014/ND-CP dated June 26, 2014 after all of conditions specified in Clause 1 of Article 18 have been satisfied.

2. The procurement of purchase of assets/goods/services whose value does not exceed 200 million VND shall adopt shortened procedures for competitive offering as regulated in Article 59 of the Government's Decree No. 63/2014/ND-CP dated June 26, 2014 after all of conditions specified in Clause 1 of Article 18 have been satisfied.

Section 3. DIRECT PROCUREMENT

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1. Direct procurement shall be applied to the purchase of similar assets and goods which belong to the same purchase estimate or different purchase estimates.

2. The direct procurement shall be applied when all of the conditions below are satisfied:

a) There is a contractor selection plan approved by the competent person;

b) It is required to have a purchase estimate approved by the competent authority;

c) The contractor has won the contract through competitive bidding or selective bidding and has signed a contract earlier;

d) The current procurement includes similar contents and characteristics, and the scale is smaller than 130% of the earlier contract;

dd) Unit prices of tasks of the direct procurement do not exceed those of corresponding tasks in the earlier contract;

e) The period of time from the conclusion date of the earlier contract to the date on which the direct procurement result is approved must not exceed 12 months.

3. If the previous contractor is no longer capable of executing the direct procurement contract, another contractor who capacity, experience, technology, and prices satisfy the requirements in the bidding documents and the previous contractor selection result may be selected.

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Procedures for direct procurement shall comply with Article 60 of the Government's Decree No. 63/2014/ND-CP dated June 26, 2014.

Section 4. SELF-SUPPLY

Article 22. Conditions for conducting the self-supply

1. The self-supply shall be applied to the procurement with funding from the estimate for purchase of assets, goods and services if the technical and financial capacity and experience of the agency directly managing and using the procurement may meet requirements of such procurement.

2. The self-supply must be approved in the contractor selection plan on the basis of compliance with regulations in Clause 1 of this Article and the agency in charge of implementing the procurement must satisfy all of conditions specified in Article 61 of the Government's Decree No. 63/2014/ND-CP dated June 26, 2014. To be specific:

a) Functions, tasks, operating fields and business sectors of such agency must be in conformity with requirements of the procurement;

b) The ability to mobilize manpower, machinery and equipment to ensure the implementation progress of the procurement must be proven and specified in the self-supply plan;

c) The agency in charge of implementing the procurement must not transfer any part of the procurement if its value is from 10% of the procurement value or its value is below 10% of the procurement value but more than 50 billion VND, whichever come first.

Article 23. Procedures for self-supply

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Section 5. CONTRACTOR SELECTION IN SPECIAL CASES

Article 24. Conditions for employing this method

In case contractor selection methods prescribed in Articles 20, 21, 22, 23, 24 and 25 of the Law on bidding cannot apply to the procurement or the project due to special conditions, the contractor selection plan shall be considered and decided by the Prime Minister upon reports submitted by the competent person.

Article 25. Procedures for contractor selection in special cases

1. The competent person shall prepare the contractor selection plan in conformity with regulations in Article 9, Article 10 and Article 11 of this Circular, which includes the explanation about special conditions of the procurement which are the basis for proposing the contractor selection plan in special cases, and send it to Ministry of Planning and Investment to conduct the appraisal in compliance with regulations in Point b Clause 1 Article 104 of the Government's Decree No. 63/2014/ND-CP dated June 26, 2014.

2. The competent person shall, on the basis of appraisal results of the Ministry of Planning and Investment, submit the contractor selection plan to the Prime Minister for consideration and decision.

Chapter V

IMPLEMENTATION

Article 26. Guidelines on implementation

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2. Forms of bidding documents and other contents which are not regulated in this Circular shall comply with the Law on bidding No. 43/2013/QH13 dated November 26, 2013 and the Government’s Decree No. 63/2014/ND-CP dated June 26, 2014 detailing the implementation of certain articles of the Law on bidding.

Article 27. Effect

1. This Circular takes effect s as of May 16, 2016 and supersedes the Circular No. 68/2012/TT-BTC dated April 26, 2012 of Ministry of Finance promulgating regulations on bidding for purchasing assets for the purpose of maintaining regular operations of state agencies, units affiliated to people's armed force, public service providers, political organizations, socio-political organizations, social-political-professional organizations, social organizations, socio-professional organizations.

2. In case any legislative documents that are referred to apply to this Circular are amended, supplemented or superseded, the new ones shall apply.

3. Any difficulties arisen during the course of implementation should be promptly submitted to the Ministry of Finance for consideration./.

PP MINISTER
DEPUTY MINISTER




Do Hoang Anh Tuan

Thông tư 58/2016/TT-BTC Quy định chi tiết việc sử dụng vốn nhà nước để mua sắm nhằm duy trì hoạt động thường xuyên của cơ quan nhà nước, đơn vị thuộc lực lượng vũ trang nhân dân, đơn vị sự nghiệp công lập, tổ chức chính trị, tổ chức chính trị - xã hội, tổ chức chính trị xã hội - nghề nghiệp, tổ chức xã hội, tổ chức xã hội - nghề nghiệp do Bộ trưởng Bộ Tài chính ban hành