Laws of Vietnam

INTER-MINISTERIAL CIRCULAR No.02/TTLB OF FEBRUARY 25, 1997 GUIDING THE IMPLEMENTATION OF THE REGULATION ON BIDDING (Issued together with Decree No.43-CP of July 16, 1996 of the Government)

The Regulation on Bidding was issued together with Decree No.43-CP of July 16, 1996 of the Government with a view to ensuring the objectivity, fairness and uniformity of bidding activities nationwide in such fields as selection of consultants, procurement of materials and equipment and construction and installation carried out on the territory of the Socialist Republic of Vietnam.

In furtherance of Article 3 of Decree No.43-CP and Article 46 of the Regulation on Bidding, the Ministry of Planning and Investment, the Ministry of Construction and the Ministry of Trade hereunder jointly provide guidance concerning a number of main contents of the Regulation on Bidding for the uniform execution by the ministries, branches, localities and establishments.

Part I

GENERAL PROVISIONS

1. Scope of regulation

The Regulation on Bidding shall apply to objects defined in Article 2 of the Regulation. The following concrete guidances are provided for its implementation:

(a) Investment projects ratified by the agency competent to decide the investment in accordance with the Regulation on the Management of Investment and Construction issued together with Decree No.42-CP are projects with State allocated capital, projects belonging to State enterprises and projects using capital from ODA sources as provided for in Decree No. 20-CP of March 15, 1994 of the Government.

(b) Joint venture investment projects in which the contributions of Vietnamese enterprises represent at least 30% of the prescribed capital are projects which have been granted investment licenses by competent agencies in accordance with current regulations.

(c) With regard to bidding for the selection of partners for joint venture and business cooperation projects, wholly foreign-invested projects, BOT projects or BT projects, separate regulations shall apply.

(d) For projects other than the above-mentioned projects, the application of the Regulation on Bidding is encouraged, though not compulsory.

2. Forms of bidder selection

(a) Unrestricted bidding: This form of bidding is encouraged so as to achieve high competitiveness through participation of many bidders. However, its application depends on each specific project to be carried out within a locality, region, an inter-region or on national or international scale.

(b) Restricted bidding: This form of bidding shall be applied in the following cases:

- Where only a number of bidders meet the tendering dossier’s requirements, but there must be at least 3 potential participants in the bid.

- Where the sources of capital require restricted bidding.

- Where it is so required by the tempo of the project execution as approved by the person(s) competent to decide the investment.

(c) Appointed bidding: This form shall have to comply with Article 30 of the Regulation on the Management of Investment and Construction issued together with Decree No.42-CP of July 16, 1996 of the Government.

3. Prequalification of bidders

(a) The prequalification of bidders shall apply to construction and installation bidding packages valued at 100 billion VND and more; bidding packages for the procurement of materials and equipment valued at more than 200 billion VND or with complicated technologies. For bidding packages of lesser value than the above-prescribed levels, the tenderer may conduct prequalification, if necessary. Prequalification steps taken by the tenderer shall comply with Article 26 and Part A (Appendix III) of the Regulation on Bidding.

With regard to construction and installation bidding packages opened for international bids, foreign bidders must make a written commitment to have at least one Vietnamese bidder in partnership.

The prequalification dossier may be elaborated by the tenderer(s) or by the hired agencies specialized in bidding and bidding packages or consultancy organizations which have business permits or operating licenses. The tenderer shall have to submit the prequalification dossier to the person(s) competent to decide the investment or the authorized level(s) for ratification before announcing the prequalification.

(b) With regard to bidding packages of lesser value than the above-prescribed levels, though prequalification is not required, the tenderer must request the bidders to submit all documents on bidding conditions as stipulated in Article 6, Item 2 of the Regulation on Bidding and to declare their capabilities and experiences based on forms No. 2, 3, 4, 5, 6, 7, and 8, 9 (if any) in Appendix III (Part A) attached to the Regulation on Bidding which shall serve as basis for considering the bids administratively and juridically as well as the bidders’ capability to perform the contract before the evaluation and classification of the bids. Regarding form No. 3, it shall be readjusted according to Section VII, Clause 2.4, Point (d) of this Circular so as to conform with the current accounting regime.

4. Privileges for domestic bidders

Domestic bidders who participate in an international bid organized in Vietnam and win the bid shall be entitled to privileges in accordance with special provisions of the State.

5. Price for bid consideration

With regard to bidding for construction and installation, the tenderer shall have to use the price for bid consideration as basis for the evaluation of the bids. This bidding price must be decided by the person(s) competent to decide the investment or the authorized level(s) after the deadline for the bid submission and before the bid opening. With regard to bidding for procurement of materials and equipment or for selection of consultants, the tenderer may use a price for bid consideration depending on the concrete conditions of each project.

The price for bid consideration shall be determined on the following bases:

- Requirements and instructions stated in the tendering dossier.

- The total cost estimate or the ratified cost estimate.

- The total investment capital of the project, if the total cost estimate or the ratified cost estimate is not available.

The price for bid consideration must be included in the total cost estimate or the ratified cost estimate and must not exceed the ratified total investment capital of the project.

The winning bidding price must not exceed the price for bid consideration already ratified.

6. Head of the competent agency

The Head of the competent agency is the person of the level stipulated in Article 7 of the Regulation on the Management of Investment and Construction issued together with Decree No.42-CP of July 16, 1996 of the Government, who shall have the responsibilities and powers defined in Point 4, Article 42 of the Regulation on Bidding.

Part II

BIDDING ORDER

I. Preparation for the bid

Contents of preparation for the bid include:

- The bidding plan.

- Personnel.

- Tendering dossier.

- Criteria for the evaluation of the bids

1. Bidding plan

The overall contents of the bidding plan stipulated in Article 5 of the Regulation on Bidding shall comply with the following detailed guidances:

1.1. Division of bidding packages

- Bidding packages shall serve as basis for the organization and consideration of the bids. The division of a project into bidding packages must be reasonable and must, first of all, be based on technology, characteristics or performance process of the project. Bidding packages must have reasonable sizes and ensure the uniformity of the project. The project owner must not divide the project into too small bidding packages (except for some special cases) so as not to diminish the rationality of the project and increase cost of the bid.

- The estimated value of each bidding package must not exceed the cost estimate (if the bidding package is part of the project) and the total value of bidding packages must not exceed the total investment or the total cost estimate (if any) which has already been ratified.

- With regard to the selection of consultants, the estimated value of each bidding package shall be determined on the basis of the estimated level, compared with the total investment already ratified.

1.2. Mode of contract performance

The selection of a mode for contract performance must be based on the characteristics, size and duration of the performance of each bidding package.

(a) Package contract (with package price):

For bidding packages which allow exact determination of the quality, volume and price at the moment of bidding, the mode of package contract shall apply. In the process of the contract performance, the price already agreed upon in the contract must not be changed. For any changes not initiated by the bidder, they must be approved in writing by the person(s) competent to decide the investment or the authorized level.

(b) Contract with price readjustment :

- Bidding packages that cover jobs or parts of the project which have no conditions to determine or cannot determine the volume or quantity exactly at the time of the bidding.

- Bidding packages which shall be executed for at least 12 months and which suffer from fluctuations of prices in major elements, namely materials and raw materials, equipment and labor.

- The tenderer can only apply the mode of contract with price readjustment to bidding packages which have been ratified in the bidding plan or approved by the person(s) competent to decide the investment.

- This mode shall apply only to the changes in quantity or volume (increase or decrease) not caused by the bidder, certified by the related parties and permitted by the person(s) competent to decide the investment. Any quantity or volume change due to the bidder’s fault shall not be considered.

- The readjusted value of the contract must not exceed the total cost estimate or the ratified cost estimate. The readjusted value of the whole project must not exceed the total investment amount already ratified.

The tendering dossier must clearly specify the conditions for the price readjustment, parts of the work or parts of the project eligible for price readjustment, the limit and formula thereof.

(c) Turn-key contracts: With regard to projects the whole of which is offered for bidding, if the project owner cannot manage it, the mode of turn-key contract shall apply, provided that it is allowed by the person(s) competent to decide the investment. Depending on concrete conditions and characteristics of each project, the project owner may apply the mode of package contract or contract with price readjustment in accordance with the stipulations in Points (a) and (b) above.

1.3. The time frame of the bidding plan

Besides the overall bidding plan for the whole project, with regard to projects for which the bidding must be conducted within at least 24 months (2 years), detailed bidding plans for each year or for every two years at most should be determined one by one to serve as basis for the submission and approval.

1.4. Submission and ratification of the bidding plan

The bidding plan elaborated by the tenderer must be ratified by the person(s) competent to decide the investment:

+ For projects using State capital: The person competent to decide the investment is stipulated in Item 1, Article 7 of the Regulation on the Management of Investment and Construction. As for bidding packages of Group A projects, the stipulations in Article 42 of the Regulation on Bidding shall apply.

+ For joint venture projects (to which a Vietnamese enterprise contributes at least 30% of the prescribed capital): The bidding plan shall be ratified by the Managing Board of the joint venture enterprise on the basis of a written agreement of the Ministry of Planning and Investment.

2. Personnel

2.1. Person(s) competent to decide the investment

The responsibilities and powers of the person(s) competent to decide the investment are stipulated in Article 42 of the Regulation on Bidding.

2.2. Tenderer

The tenderer may be the project owner or his/her lawful representative who is responsible for bidding activities. The responsibilities and powers of the tenderer are stipulated in Article 40 of the Regulation on Bidding.

2.3. Group of specialists or consultants assisting the tenderer

For projects without bidding for the selection of consultants, only a group of specialists or consultants shall assist the tenderer.

In cases where there is a requirement to hire consultants (instead of appointing a group of assisting specialists) for the performance of the work mentioned in Point 1, Article 40 of the Regulation on Bidding, if the cost is 500 million VND or more, the tenderer shall have to organize a bid in accordance with the provisions of the Regulation on Bidding and provisions on the selection of consultants in this Circular.

2.3.1. Appointing a group of specialists or hiring consultants

The group of specialists or consultants assisting the tenderer shall be established or hired and have the tasks stipulated in Item 1, Article 40 and responsibilities and powers stipulated in Article 41 of the Regulation on Bidding with the following detailed guidance:

(a) With regard to bidding packages belonging to projects of groups A and B in which tenderers are project managing boards or organizations specialized in the management of investment and construction, the tenderer shall have to appoint a group of specialists or hire consultants to assist the bidding.

The specialists invited by the person(s) competent to decide the investment to provide consultancy on the evaluation of the bidding results (the evaluation of results shall be submitted by the tenderer) shall have to comply with the stipulations in Article 41 of the Regulation on Bidding.

(b) With regard to bidding packages belonging to projects of group C and a number of small-size bidding packages valued at less than 10 billion VND belonging to projects of groups A and B, in which tenderers are non-business or administrative agencies or organizations having little experience in the management of investment and construction, the agency competent to decide the investment shall have to guide the tenderer to set up a group of bid-assisting specialists (including specialists invited by the authority competent to decide the investment) to assist the organization of bidding, the evaluation and classification of bidders.

2.3.2. Structure of the group of specialists or consultants

- A member (or group of members) in charge of the technical and technological matters.

- A member (or group of members) in charge of the economic-financial matters.

- A member (or group of members) in charge of the juridical and other issues (if necessary).

The tenderer shall have to appoint a head to manage the activities of the group, sum up the situation and prepare reports of evaluation ...

2.3.3. Criteria for the selection of specialists

- Having professional qualifications related to the bidding package.

- Having a firm grasp of the contents of the bidding package.

- Experienced in practical management or research.

- Understanding the order and process of evaluation and selection of the bidding results.

- Members of the group of specialists or consultants shall not be entitled to participate in the evaluation of the bidding results.

2.3.4. Responsibilities of members of the group of specialists or consultants (In addition to the stipulations in Article 41 of the Regulation on Bidding)

- To respect the specific contents and requirements defined in the tendering dossier as well as the criteria for the evaluation of the bids which have been ratified by the person(s) competent to decide the investment or the authorized level.

- Absolutely not to disclose information related to the process of bidding and bid evaluation in any form.

- The evaluation and ranking of bidders must be conducted objectively. The ranking shall be based on the general evaluation of standards with sound analysis of each index in each criterion unanimously approved by all the specialists. If in the process of evaluating and ranking bidders, the specialists’ opinions vary with regard to a number of important contents, the person(s) competent to decide the investment shall have to organize the assessment and inspection to clarify the matter.

- Not to cooperate with the bidders in any form.

- Any member of the group of specialists or assisting consultants who violates the above-said regulations shall be handled in accordance with Article 45 of the Regulation on Bidding.

3. Preparation of the tendering dossier

(a) The contents of the tendering dossier have been provided for in the Regulation on Bidding and guided in details in the attached Appendice. More concretely:

- Consultancy selection: Article 16 of the Regulation on Bidding and Part B of Appendix I attached to the Regulation on Bidding.

- Procurement of materials and equipment: Article 19 of the Regulation on Bidding, Appendix II attached to the Regulation on Bidding.

- Construction and installation: Article 27 of the Regulation on Bidding, Part B of Appendix III attached to the Regulation on Bidding.

With regard to bidding for construction and installation, special attention should be paid to the following: the designing dossier and the cost estimate must be determined from the technical design for construction (in case of one-step designing) or the blueprint for construction (in case of two-step designing); all technical instructions must be extremely specific and clear. For large-size projects which have no blueprint at the moment of bidding, the cost estimate may be determined on the basis of the technical design. With regard to other cases, if it is allowed by the person(s) competent to decide the investment, the tenderer shall have to make a uniform cost estimate to serve as basis for bidding. With regard to projects designed by foreign parties, the designing dossier must enable the determination of the construction volume of the project.

(b) Costs of making tendering dossier and evaluating bids:

- In cases where the bid is conducted by the specialized agencies or domestic consultancy organizations, all costs of making tendering dossier and evaluating bids shall comply with Decision No.501/BXD-VKT of September 18, 1996 of the Ministry of Construction.

- In cases where the bid is conducted by a foreign consultancy organization, the costs of foreign consultancy shall comply with Item 1, Article 17 of the Regulation on Bidding.

4. Evaluation criteria

4.1. Bidding for the selection of consultants

The evaluation of consultancy bids shall be conducted in two steps:

(1) Evaluation of the technical solutions dossier,

(2) Evaluation of the dossier of financial solutions and contract negotiation.

The evaluation of the technical solutions dossier shall be conducted on the basis of the three following criteria:

- Experiences.

- Solutions and methodology.

- Personnel.

The personnel proposed for the performance of consultancy services is considered the most important factor. They must have a clear working record and experience suitable to the requirements of bidding packages. The chief consultant (head of the group of consultants) must have enough years of service in branches conforming to the bidding package. All members must make a commitment (with their signatures) that they will have enough time for the execution of bidding package according to schedule. In case of an international bid, the foreign consultancy company must make a written commitment to have a Vietnamese consultancy company in partnership; priority shall be given to proposals on using a large number of domestic consultants. All the above-said commitments must be written in the contract.

Guidance is provided for the detailed contents in Section IV, Appendix I of the Regulation on Bidding.

4.2. Bidding for the procurement of materials and equipment

a/ Criteria for the evaluation of prequalification dossiers

With regard to bidding packages listed in Section 3, Part I of this Circular, to select eligible and capable bidders to participate in the bid, the tenderer shall have to conduct the same prequalification as for bidding for construction and installation stipulated in Item 4.3 below.

b/ Criteria for bid evaluation

1. Capabilities and experiences.

2. Techniques.

3. Finance and prices.

4. Duration of performance.

5. Technology transfer.

6. Training.

7. Other criteria (if any)

A scale of rating (up to100 or 1000 marks) should be set up to make the detailed evaluation of each criterion, of which the 3 main criteria are: (1) capabilities and experiences, (2) techniques and (3) finance and prices. They must account for at least 65% of the total of marks. With regard to the bids having already passed the prequalification, the bid evaluation according to converted prices on the same plane is encouraged.

In case of an international bid, in addition to the above-said requirements, foreign bidders shall have to make a written commitment to join Vietnamese bidders or to use suitable materials and equipment which can be manufactured and processed in Vietnam so as to meet the requirements of the tendering dossier (regarding quality and prices). All the above-said commitments must be written in the contract.

4.3. Bidding for construction and installation

(a) Prequalification of bidders

To select eligible and capable bidders to participate in the bid, the tenderer shall evaluate prequalification bidding dossiers for bidding packages stipulated in Item 3, Part I of this Circular, according to three following factors:

1. Technical capability.

2. Financial capability.

3. Experiences.

A scale of rating should be set up to evaluate the three above factors, and depending on the characteristics of each bidding package, to determine the proportion of each factor. Only those bidders who obtain at least 60% of the total of standardized technical marks shall be selected for participation in the bid.

(b) Criteria for bid evaluation

1. Technical and quality criteria.

2. Criteria on the bidder’s experiences.

3. Financial and price criteria.

4. Criteria on the construction tempo.

A scale of rating (up to 100 or 1000 marks) should be set up to make the detailed evaluation of each criterion, of which the main three are: (1) experiences, (2) techniques and (3) finance and price. The latter criterion must account for at least 65% of the total of marks.

With regard to the bids having already passed prequalification, the bid evaluation according to the converted prices on the same plane is encouraged.

In case of an international bid, in addition to the above-said requirements, foreign bidders must have a written commitment to have at least one Vietnamese bidder in partnership. Such a commitment shall include: the commitment to use domestic sub-contractors for construction and installation; the commitment to use suitable materials and equipment which can be manufactured and processed in Vietnam to meet the requirements of the tendering dossier (regarding quality and prices); the determination of percentages of the work volume and prices to be assigned to the Vietnamese bidder(s). All the above commitments must be written in the contract.

II. Invitation for bidding

1. Bid announcement

The bid announcement shall apply to the unrestricted bidding. The contents of the bid announcement must be widely publicized so as to provide initial information for the bidders to prepare for the participation in the bid. With regard to bidding packages with prequalification, before the official bid, the tenderer shall have to announce the prequalification. The form of the prequalification announcement and the bid announcement are provided for in details in Appendice attached to the Regulation on Bidding.

The announcement must be made by the tenderer at least for three consecutive times on the mass media (daily newspapers, audio-visual means...), depending on the sizes and characteristics of bidding packages. In case of an international bid, in addition to the above requirements, the tenderer shall also have to announce the bid on at least one English newspaper with a wide circulation in Vietnam.

2. Sending the letter of invitation

With regard to restricted bidding, the tenderer shall have to send a letter of invitation for the bid directly to each of the bidders in the already approved list of bidders. The form of the invitation letter for each concrete field is provided for in Appendice attached to the Regulation on Bidding.

III. Bid submission

1. General principles

All bids must be sealed and submitted directly or sent by mail to the address and at the time prescribed in the tendering dossier.

2. Sealing

- The bidder shall have to seal all the documents of his/her bid which must clearly state the original and copies of bidding documents.

- The names of the bidding package, the project, the bidder, the name and address of the tenderer must be stated clearly on the dossier bag, and with the inscription: not to be opened before...(date and time of the bid opening)

The tenderer shall not take responsibility for any breach of the above-said regulations.

3. Late submission

Any bid which is sent to the tenderer after the deadline of the bid submission already prescribed in the tendering dossier shall be invalid and sent back in its original state to the bidder. In case of force majeure, the tenderer may consider the delayed bids on a case-by-case basis, according to the post stamp on the envelope with the date of receiving and sending.

4. Amendment and withdrawal of bids

- The bidder may amend or withdraw the already submitted bid, provided that he/she notifies in writing such amendment or withdrawal and the tenderer must receive such notification before the deadline of the bid submission prescribed in the tendering dossier.

- The document on the withdrawal of the bid may be sent directly to the tenderer, by telex, fax or registered mail.

5. Bid security (except for consultancy selection)

- The bidder must submit together with his/her bid a bid security equivalent to 1%-3% of the total estimated value of the bidding price or an amount of money for security set for all bidders and prescribed in the tendering dossier.

- The bid security currency may be the one which is used in the bid or any other convertible currency accepted by the tenderer in one of the following forms:

a/ Bank security or irrevocable letters of credit issued by a bank located in the tenderer’s country or in a foreign country which is accepted by the tenderer in compliance with the form provided for in Appendice of the Regulation on Bidding and which shall be effective within 30 days after the expiry of the bid.

b/ Cash or check.

- If the bidder fails to pay the bid security as prescribed in the tendering dossier, the bid shall be eliminated.

- Bid security shall not apply to appointed bidding.

6. Contract performance security (except for the selection of consultants)

Provisions on contract performance security are prescribed in Article 25 of the Regulation on Bidding and guided in details as follows:

- With regard to bidding for the procurement of materials and equipment: The performance security shall be valued at from 10% to 15% of the total value of the contract.

- With regard to the bidding for construction and installation: The value of performance security shall be 10% of the total value of the contract for domestic bidders and from 10% to 15% for foreign bidders.

With regard to construction and installation contracts to be carried out by domestic bidders, the value of performance security shall be effective till the project is handed over according to the contract and shifts to the stage of maintenance of the construction and installation project.

IV. Bid opening

The bid opening shall be conducted in accordance with Article 10 of the Regulation on Bidding. In special cases (if the project is a security and defense project), the tenderer shall invite only a limited number of bidders’ representatives to participate in the bid opening. The bid opening is encouraged to be conducted right after the closure of the bid but must not exceed 48 hours (excluding holidays stipulated by the State) after the bid submission deadline. In cases where the bid is opened after the said time limit, it must be accepted by the person(s) competent to decide the investment or the authorized level.

1. Preparation for bid opening

The tenderer shall have to prepare the following:

(1) Inviting representatives to witness the bid opening, including:

- Representative(s) of the agency that manages the concerned branch.

- Representative(s) of the local administration (with regard to important bidding packages to be carried out in the locality).

- Representative(s) of the capital supplying agency (if any).

- Representatives of the bidders (if any).

(2) Preparing the suitable means to fully and accurately announce the data in the bids.

(3) Preparing the bids to be opened according to the order prescribed by the tenderer.

2. Order in the opening of the bid

1. Announcement of participants.

2. Announcement of the number and names of the bidders who have already submitted their bids.

3. Inspection of the sealing of the bids.

4. Opening envelopes of the bids one by one in the prescribed order, reading and recording the following major information:

- The names of the bidders.

- The number of originals and copies.

- The total of bidding prices (if any).

- The rate of price reduction and conditions for price reduction.

- Bid security and its value (if any).

- Other matters.

5. Signing for the certification of the bids (as prescribed in details by the tenderer).

6. Approval of the report on the bid opening.

7. Representatives of the tenderer and the bidders (if any) and a number of other representatives (representatives of the managing agencies and the State administrative agencies) shall sign the certification of the report on the bid opening.

8. The tenderer shall have to organize the management of the bids in accordance with the State regulations on keeping secrets.

V. Evaluation of bids for consultancy selection

The evaluation of bids for the selection of consultants shall be conducted through the mode of two-dossier bag bidding: The dossier bag with technical solutions shall be evaluated first for classification on the basis of the tendering dossier’s requirements and the ratified criteria.

The dossier bag with financial solutions of the bidder who is ranked first for the technical solutions shall be opened for the negotiation on the contract.

1. Considering the administrative and legal suitability of each bid to the requirements of the tendering dossier.

2. Clarifying bids: In order to facilitate the process of inspection, evaluation and comparison of the bids, the tenderer may request the bidders to clarify their submitted bids. A request for clarification must be made in writing and sent to the bidders. The clarification of the bids must not change their main contents.

3. Evaluating in details each of the bids regarding technical solutions on the basis of the criteria already ratified by the competent authority before the time of the bid opening, mainly the 3 following criteria:

- Experiences of the bidder.

- Solutions and methodology.

- Personnel.

3.1. Criterion on experiences: includes 3 following contents:

(1) Experiences in carrying out similar projects:

The dossier with technical solutions must report on projects already carried out by the bidder with contents similar to those of the project offered in the tendering dossier.

Depending on the offered project, the maximum number of marks for content (1) shall be determined correspondingly to the number of similar projects already carried out by the bidder.

(2) Experiences in carrying out projects with similar conditions:

In addition to the requirements mentioned in Point (1), in some cases it is necessary to consider the bidder’s experiences in carrying out projects with similar conditions, regarding not only natural factors, but also other factors, such as population, conditions for economic development... Depending on the offered project, the maximum number of marks for content (2) shall be determined correspondingly to the certain number of projects already carried out in similar conditions.

(3) Other factors:

- Capability: The bidder’s capability to meet the quantitative demand for personnel being involved and to be involved in the work.

- Managerial experiences: to evaluate the suitability of the bidder’s managerial skills to the requirements of the projects.

- Other activities...

The ratio of marks for contents (1), (2) and (3) shall depend on the characteristics of the offered project.

3.2. Criterion on methodology and the bidder’s performance solutions:

(1) Having the firm grasp of the project’s objectives: The bidder’s general understanding of the project’s objectives and requirements already stated in the "Terms of references" and the organization of visits to the site of construction.

(2) Methodology proposed by the bidder: The methodology proposed by the bidder must be complete, reasonable and meet the requirements of the "Terms of references".

(3) Innovative opinions: Any bidder who proposes reasonable innovative opinions shall be best appreciated.

(4) Program of action: The program of action includes the organizational scheme, working plan and personnel disposition program. The organizational scheme shall be made on the basis of relations between the project owner and the bidder as well as measures for the project management and tasks of each party. The personnel arrangement shall be determined on the basis of reasonable arrangement of work and according to an appropriate timetable.

(5) Wage (monthly-person): The monthly wage for a person shall be proposed by the bidder in conformity with the project’s estimated readjustments.

(6) Training and technology transfer: The bidder should propose the contents of the training and technology transfer which must be clear and suitable to the project’s requirements in the immediate and far future.

(7) Working facilities: All demands for the support in working places, facilities and equipment, personnel, transport means... must be reasonable and practical.

(8) Presentation: The bids shall be considered on the basis of their presentation which must be clear, complete, transparent and easy to understand.

Depending on each project, the tenderer shall determine the contents of evaluation and the maximum marks.

The personnel evaluation shall be conducted according to a saparate form on the basis of the four following contents:

- General experience (10%-20%): educational level, working seniority.

- Experiences related to the project (60%-70%): the number of projects in the same field which have been carried out.

- Other factors (10%-20%): experiences in working abroad, foreign languages...

- Regular staff of specialists belonging to the bidder (5%).

(a) With regard to the chief consultant (the head of group): It is necessary to evaluate experiences of this specialist as a chief consultant in earlier projects. At the same time, to evaluate his capabilities and experiences as a specialist. A specialist as a chief consultant must have at least 5 consecutive years working in the specialized field related to the project.

(b) With regard to specialists in specific fields: To evaluate their educational qualifications and training results related to the requirements of the project. To evaluate the scope of their similar experiences related to the requirements of the project. In the process of evaluation, it is necessary to distinguish regular specialists from contractual specialists working for the bidder.

After the classification, the bidder who is ranked first and get at least 65% of the total of marks shall be invited by the tenderer to attend the opening of the second dossier bag with financial solutions. The negotiation on the contract should be based on reasonable financial and price conditions and other conditions suitable to the tenderer’s requirements. If the negotiation on the contract fails and in case of acceptance by the competent authority, the tenderer shall invite the next bidder who have a number of marks for his/her technical solutions equivalent to at least 65% of the total of marks to attend the opening of the second dossier bag with financial solutions and negotiate the contract.

VI. Evaluation of bids for the procurement of materials and equipment

The evaluation of bids for the supply of materials and equipment must be based on the tendering dossier’s requirements and the criteria already ratified by the competent authority. Depending on the characteristics of each bidding package, the tenderer shall have to conduct the bid evaluation through the four following steps:

- Preliminary evaluation of the bids.

- Detailed evaluation of the bids.

- General evaluation and classification.

1. Preliminary evaluation of the bids

1.1. The compatibility of the bids

(a) First, the tenderer shall have to consider the administrative and legal compatibility of each bid to the requirements of the tendering dossier so as to determine the acceptability of the bid.

(b) To consider the completness of the bids, including necessary information, such as appendice and accompanying documents attached thereto, effective time of bid security, the bidder’s capability to meet the requirements on the validity or criteria on experiences, construction tempo or bid submission...

1.2. Clarification of the bids

To assist the process of inspecting, evaluating and comparing the bids, the tenderer may request the bidders to clarify the submitted bids. The request for clarification must be made in writing and sent to all bidders. The clarification of the bids must not change their major contents and bidding prices, except in cases where the tenderer requests the correction of arithmetic errors.

1.3. Elimination of unqualified bids

(a) Any bid which does not comply with the requirements of the tendering dossier shall be considered invalid and may be eliminated, but it must be reported to the person(s) competent to decide the investment or the authorized level(s) for consideration.

(b) The determination of each bid’s acceptability must be conducted objectively and according to uniform criteria for all bids.

2. Detailed evaluation of the bids

2.1. Consideration of bidding prices for readjustment

The tenderer shall consider the bids to correct arithmetic errors and then readjust the bidding prices.

2.2. Conversion of bidding prices’ currencies to the common currency (applied only to international bids)

(a) When the bids have been checked or its arithmetic errors have been corrected, the tenderer shall have to convert different currencies used in the bids (if any) into a common currency for the evaluation of bids.

(b) The exchange rate for the conversion shall be the rate announced by the State Bank of Vietnam on the day of the bid opening (according to Article 11 of the Regulation on Bidding).

(c) The tenderer shall have to ensure the accuracy of the conversion. If any mistake is found, the tenderer shall have to correct it to ensure the accuracy of the bid evaluation.

2.3. Consideration of the bids’ technical compatibility

(a) The tenderer shall have to consider in details the bids’ compatibility with the tendering dossier’s technical requirements. This includes the consideration of major technical factors such as the size of the project, the prescribed equipment or materials, the tempo of goods delivery or the implementation tempo...

(b) Determination of differences from the set technical criteria for financial readjustment. The technical evaluation must be conducted objectively and fairly for all bidders.

2.4. Readjustment of disparities

In cases where the bid includes non-basic disparities (which do not exceed 10% of the total bidding price), compared with the tendering dossier’s requirements, the tenderer shall have to make additional readjustment of the bidding price to have a readjusted bidding price for the comparison of the bids on the same plane.

2.5. Evaluation according to the ratified criteria

After the correction of mistakes, conversion of bidding prices’ currencies (if any) and readjustment of disparities, the bids shall be evaluated according to each criterion with the following main contents:

(a) The bidder’s capability and experiences: shall be evaluated according to the three following factors:

- Technical capability: To consider the main commercial products (quantity and lines), the number and qualifications of specialized personnel...

- Financial and business capabilities: To consider the turnovers, profits... at the time of bidding and during at least the three latest years.

- Experiences: To consider experiences in performing similar projects during at least the 5 latest years.

(b) Technique: The following contents shall be considered:

- Capability to meet the requirements on technology, quality of materials and equipment and technical properties prescribed in the tendering dossier.

- Economic and technical features, codes of the offered materials and equipment, names of manufacturing firms and countries...

- The rationality and economic efficiency of technical solutions and measures to organize the delivery of materials and equipment to the place of installation.

- Capacity to install equipment and technicians’ qualifications.

- Technical adaptability.

- Geographical adaptability.

- Impacts on the environment and solutions thereto.

(c) Finance and prices: To consider the financial capability, capability and conditions of financial supply (if so requested) and the bidding price. The financial supply capability and conditions must comply with the tendering dossier’s requirements as well as international and domestic practices. The winning bidding price must not exceed the bidding price ratified for the bid evaluation.

(d) Duration of the contract performance: The duration of the contract performance must comply with the tendering dossier and the commitment to finish the contract on time or before schedule .

(e) Technology transfer: To consider the capability of technology transfer for the whole project or parts of the project on the basis of the requirements of the project or of the necessary fields.

(f) Training: To consider the plan for disposition of specialists for the contract performance in combination with technical training for Vietnamese workers and cadres and overseas training.

(g) Other necessary criteria.

3. General evaluation and classification of bidders

When the bids have been checked and recognized to meet the general requirements and the bidding prices have been inspected and readjusted (if any), the tenderer shall conduct a general evaluation and classification of the bids according to the ratified criteria. The general evaluation may be conducted on the basis of the converted prices on the same plane or the ratified scale of rating attached to the evaluation criteria. After the general evaluation of criteria, the bidders shall be classified on the basis of the result of the general evaluation.

VII. Evaluation of bids for construction and installation

The evaluation of bids for construction and installation shall be conducted in three following main steps:

- Preliminary evaluation of the bids.

- Detailed evaluation of the bids.

- General evaluation of the bids.

1. Preliminary evaluation of the bids

1.1. Consideration of the bids’ validity

(a) With regard to bidding packages having passed the prequalification, it is necessary to check the updated information that have been declared by the bidders at the time of the prequalification so as to continue the consideration of the bidders’ capability to meet the financial and technical requirements. Any updated information contrary to the bid shall be checked and examined. The number of bids, the bidders’ signatures and bid security shall be inspected in accordance with the provisions of Points b.3 and b.4 below.

(b) With regard to bidding packages without going through prequalification, it is necessary to examine the bidders’ eligibility and capability:

1. To inspect their business permits or operating licenses.

2. To inspect their technical and financial capabilities and experiences as required by the tendering dossier.

3. To inspect the number of their bids.

4. To inspect the legality of the certifying signatures in the bids and bid securities...

1.2. Consideration of the bid’s capability to meet basic requirement

A bid with basic acceptability is the one that meets the requirements, conditions and the technical properties defined in the tendering dossier; that has no documentary errors or limitations which greatly affect the size, quality or materialization of the project or restrict the powers of the tenderer or the obligations of the bidders.

The determination of a bid’s invalidity or its failure to meet the basic requirements must be conducted in an objective manner and in compliance with the requirements of the tendering dossier.

1.3. Clarification of the bids (if necessary)

The clarification of the bids shall comply with the stipulations of Section VI, Item 1.2 of this Circular.

1.4. Elimination of the bids which are invalid or which fail to meet basic requirements

The elimination of the bids which are invalid or which fail to meet basic requirements shall comply with the stipulations of Section VI, Item 1.3 of this Circular.

2. Detailed evaluation of the bids

2.1 Correction of arithmetic errors

Bids which are considered valid and meeting basic requirements shall be examined by the tenderer for arithmetic errors. The tenderer shall correct arithmetic errors (if any) and promptly inform the bidders thereof. In case of any difference between the value written in figures and that written in words, the latter shall be the legal basis. In case of any difference between the unit price and the total price due to the multiplication of the unit price by the volume, the unit price shall be the legal basis.

The bidding price stated in the bid shall be readjusted by the tenderer in accordance with the above-mentioned procedure. If the bidder disagrees, his/her bid shall be eliminated but the bid security money shall not be returned to him/her.

2.2. Readjustment of disparities

In cases where the bids contain non-basic disparities (which do not exceed 10% of the total bidding price), compared with the requirements of the tendering dossier, the tenderer shall have to make an additional readjustment of the bidding price so as to compare the bids on the same plane.

2.3. Conversion of bidding prices’ currencies into a common currency (applied only to international bids)

(a) After the bids have been checked, their arithmetic errors have been corrected and the disparities readjusted, the tenderer shall have to convert different currencies (if any) used in bidding prices of the bids into a common currency to serve as basis for the bid evaluation and comparison of bids.

(b) The exchange rate applied to the convertible currency shall be the rate announced by the State Bank of Vietnam at the time of the bid opening (according to Article 11 of the Regulation on Bidding).

(c) The tenderer shall have to ensure the accuracy of the currency conversion, thus ensuring the objectivity and fairness for the bidders.

2.4. Evaluation according to the ratified criteria

After the correction of arithmetic errors, determination of disparities and conversion of bidding prices in different currencies into a common currency (if any), the bids shall be evaluated according to each of the set criteria with the following main contents:

(a) Criterion on technique and quality: the following must be considered:

- The bid’s capability to meet technical requirements and requirements on the quality of materials and equipment stated in the designing dossier and technical instructions.

- A diagram of the site (see form 7, Appendix III of the Regulation on Bidding).

- Disposition of personnel at the site (see form 6, Appendix III of the Regulation on Bidding); together with a list of the key cadres, their qualifications, working seniority, tasks to be assigned and their related experiences.

- Possibility of cooperation and joint venture with Vietnamese construction organizations (in case of international bids).

- The rationality and feasibility of technical solutions and measures to organize the construction.

- Measures to ensure conditions on environmental hygiene and other safety requirements, such as prevention of fire and explosion, labor safety...

- The compatibility of construction equipment (regarding quantity, types, capacity and tempo of the mobilization for the construction...according to form 5, Appendix III of the Regulation on Bidding.)

(b) Criterion on the bidder’s experiences shall comply with the contents of form 4, Appendix III of the Regulation on Bidding.

(c) Criterion on the construction tempo:

- To consider the capability of ensuring the general construction timetable defined in the tendering dossier.

- To consider the rationality of the timetable for the completion of construction sections or related parts of the project.

(d) Financial and price criteria (see form 3, Appendix III of the Regulation on Bidding) shall be readjusted as follows:

+ To consider the financial capability in the three latest years regarding the total property, movable property, total debts, current due debt, the owner’s capital sources and capital sources for business.

+ To consider the bidder’s credit capability and the addresses of the banks supplying credits for the bidder.

+ Lists and the total value of the contracts which are being carried out; the value of the uncompleted project; date of completion of the remaining parts of the contract.

- Price criterion: Depending on concrete conditions of each bidding package, the winning bidding price must not exceed the price already ratified for the bid evaluation. In the process of evaluation, there should be concrete measures to eliminate price dumping in bidding. The suitability of the bidding price shall be determined on the following basis:

+ The compatibility of the construction and installation price of parts of the project or parts of the bidding package which has already been ratified.

+ The compatibility of a number of unit price of the major construction and installation volume of the bidding package, aimed at ensuring the quality and reasonability of the unit price in comparison with common price plane.

3. General evaluation of criteria and classification of bidders

- Depending on concrete requirements and conditions of each project, the general evaluation of criteria may be conducted according to the method of price conversion on the same plane or in accordance with the scale of ratings already ratified. The standard marks of criteria and the structuring norms of such criteria shall be determined according to the scale of ratings ratified by the level competent to decide the investment or the authorized agency before the bid opening.

- After the general evaluation of criteria through the method of price conversion or according to the scale of ratings as mentioned above, the bids shall be classified for the submission to the person(s) competent to decide the investment for consideration and ratification of the winning bidder.

VIII. Submission for ratification of bidding results

1. Regarding bidding packages belonging to projects of group A

1.1 With regard to consultancy bidding packages valued at 10 billion VND or more, bidding packages for the procurement of materials and equipment or construction and installation bidding packages valued at 50 billion VND or more belonging to projects of group A, the bidding results shall be ratified by the Prime Minister as stipulated in Point 1, Article 43 of the Regulation on Bidding:

a/ The tenderer shall have the responsibility to submit the bidding results to the Prime Minister and at the same time inform the managing agency of the project owner and the related specialized agency thereof.

b/ The Ministry of Planning and Investment shall have to organize the assessment of the bidding results for submission to the Prime Minister.

c/ The time limit for organizing the assessment of the bidding results shall not exceed 30 days from the reception of the full dossier on the bidding results for ratification.

d/ The contents of the bidding result dossier shall include the following (applied to all forms of bidding):

- The decision on project investment, aid agreement (if any).

- The ratified bidding plan of the project.

- The tendering dossier and ratified evaluation criteria.

- The decision on the establishment of the group of specialists or consultants.

- A report made by the managing agency of the project owner.

- Reports on the bidding process and the bidding results made by the tenderer (attached with the evaluation comments of the group of specialists or consultants, results of the evaluation...).

- The bid opening record.

- The draft of the contract (if any).

1.2 With regard to the remaining bidding packages of the Group A projects, the provisions of Point 1, Article 43 of the Regulation on Bidding shall apply:

- The time limit for assessment (if necessary) shall not exceed 20 days from the reception of the full dossier on the bidding results for ratification.

2. With regard to bidding packages belonging to Group B projects, the provisions of Point 2, Article 43 of the Regulation on Bidding shall apply.

2.1. With regard to consultancy bidding packages valued at 10 billion VND or more and bidding packages for the procurement of materials and equipment or for construction and installation valued at 50 billion VND or more:

a/ The tenderer shall have to submit the dossier on the bidding results to the person(s) competent to decide the investment in projects of Group B for ratification. Before ratifying the bid winner, the person(s) competent to decide the investment shall have to submit the bidding results to the Prime Minister for approval.

b/ The time limit for assessment (if any) shall not exceed 30 days from the reception of the bidding results dossier submitted for ratification.

2.2. With regard to bidding packages with a value below the above-mentioned level:

a/ The tenderer shall have to submit the bidding result dossier to the person(s) competent to decide the investment or the authorized agency for ratification.

b/ The time limit for assessment (if any) shall not exceed 20 days from the full reception of the dossier with the bidding results.

3. With regard to bidding packages of Group C

a/ The tenderer shall have to submit the dossier on the bidding result to the person(s) competent to decide the investment for ratification.

b/ The time limit for assessment (if any) shall not exceed 15 days from the full reception of the bidding result dossier.

4. With regard to bidding packages belonging to joint venture projects of State enterprises of Vietnam which contribute 30% and more to the prescribed capital.

The bidding results of all bidding packages belonging to the projects which have been granted investment licenses by the Ministry of Planning and Investment shall be ratified by the Managing Boards of the joint venture enterprises on the basis of a written agreement from the Ministry of Planning and Investment.

The bidding results of all bidding packages belonging to projects which have been granted investment licenses by the People’s Committee of a province or city directly under the Central Government or by the authorized level shall be ratified by the Managing Board of the joint venture enterprise on the basis of the written agreement from the People’s Committee of the province or city directly under the Central Government or the authorized level.

The time limit for agreement shall not exceed 20 days, from the full reception of the bidding result dossier for ratification.

IX. Promulgation of the bidding results, negotiation on completion of the contract

1. General principles

1.1. The tenderer shall announce the bidding results and conduct the negotiation on the contract only after a document is issued ratifying the bid winner from the level competent to decide the investment.

1.2. Before announcing the bid winner and signing an official contract, the tenderer shall have to update all changes in the bidder’s capabilities and other information relating to the bidder. In case any change is detected which affects the performance of the contract, the tenderer shall have to promptly report it to the person(s) competent to decide the investment for consideration and decision.

2. Cases of re-consideration of the bidding results

2.1. Elimination of bids and re-organization of the bidding

The bidding results shall be considered for elimination when:

- For objective reasons, the project’s objective has been changed which makes it different from the initial plan stated in the tendering dossier.

- All the bids have, basically, not met requirements of the tendering dossier.

- There are evidences showing that the bidders have been acting in connivance with one another, thus making the bid uncompetitive.

On the basis of the decision issued by the person(s) competent to decide the investment, the tenderer shall have to notify the cancellation of the bidding results to all bidders.

2.2. Offering new bidding prices and other conditions

With regard to biddings for the procurement of supplies and equipment or for construction and installation, if all the bids meet technical requirements but fail to meet requirements on price and finance, the tenderer shall propose the person(s) competent to decide the investment to allow the bidders to offer new bidding prices. In cases where the bids have failed to fully meet the technical requirements of the project owner, the tenderer should report it to the person(s) competent to decide the investment for consideration and permission to request the bidders to supplement and readjust their bidding dossiers on the same technical plane and then offer new bidding prices. All requirements must be made in writing and sent to all the bidders.

3. Announcing the bid winner, negotiation and signing the contract

3.1. Announcing the bid winner

After a decision is issued by the competent authority to ratify the bidding results, the tenderer shall send by registered mail, telegraph, telegram or fax to the bid winner the announcement on his/her winning together with a draft contract, with notice on points to be supplemented (if any) so as to meet the requirements of the tenderer.

At the same time, the tenderer shall send the winning bidder a timetable, stating the proposed time for negotiation, the deposit of contract performance security and the signing of the contract.

3.2. Negotiation for the completion of the contract and its signing

Upon receipt of the notification of his/her winning, the bid winner shall send the tenderer a letter accepting the negotiation on the contract. Within 30 days from the date of the notification, if the tenderer does not receive a letter of acceptance or receive a letter of refusal from the bidder, the tenderer shall report to the competent level for consideration and decision. The bid security deposit shall not be refunded.

On the basis of the agreed timetable, the two sides shall conduct the negotiation to complete the contract then sign the official contract. With regard to small and simple contracts the application of the above stipulations is not compulsory. Upon receipt of the notification of his/her winning and the draft contract, the bidder and the project owner may immediately sign a contract for its performance.

The project owner shall refund the bid security (if any) and organize the performance of the contract when receiving the contract performance security from the bid winner within 30 days from the date of the notification of the bid winning.

Part III

ORGANIZATION OF IMPLEMENTATION

1. Issues to be solved after the issue of the Regulation on Bidding

According to the Regulation on Bidding issued together with Decree No.43-CP, the role of the National Bid Evaluation Council, the Bid Evaluation Councils at the project as well as the ministerial, provincial levels shall cease to be legally effective. The tenderer shall have to take responsibility for all activities in the bidding process on the basis of the opinions of the Group of Specialists or Consultants and under the guidance of the related functional agencies.

2. Reporting on the bid

To help the managerial levels have information on the bid, the tenderer shall have to periodically (every 6 months or annually) review the situation and report in writing to the related State managerial agencies.

Basing themselves on the report of the project owner, the ministries, branches and localities shall have to review and periodically (every 6 months or annually) report in writing to the Ministry of Planning and Investment for the review and submission to the Prime Minister.

3. Bidding costs

3.1. Depending on the characteristics and size of each bidding package, the tenderer is entitled to sell the tendering dossier on the principle of ensuring the State’s financial regulations currently in force. Besides, the tenderer shall not be allowed to collect any other fees from the bidders.

3.2. The funds for the tenderer to organize the bidding and bid evaluation shall comply with the Regulation on the Management of Investment and Construction issued together with Decree No.42-CP of July 16, 1996 of the Government and Decision No.501/BXD-VKT of September 18, 1996 of the Ministry of Construction determining costs of assessment and investment and construction consultancy.

3.3. Costs of assessment of biding results for bidding packages, conducted by the Ministry of Planning and Investment are determined as follows:

- The level of expenditure for the assessment of the bidding results shall represent 0.01% of the total value of the bidding package but must not be lower than 3 million VND and not exceed 30 million VND.

- The above expenditure shall be included in the cost accounting according to project’s financial resources.

- The Ministry of Planning and Investment shall take responsibility for the management and use of the above-said financial sources for the right purposes and in accordance with the current State regulations on financial management.

4. Ensuring confidentiality of the dossiers and handling violations

4.1. The tenderer shall take responsibility for ensuring the confidentiality of tendering and bidding dossiers in accordance with the State’s regulations on confidential information. The tenderer shall not be allowed to disclose the tendering dossier and evaluation criteria till the time of the official announcement.

In the process of organizing the bid evaluation and selection, the tenderer and specialists participating in the bidding process shall not be allowed to disclose information related to the bidding. In special cases, the tenderer may take necessary measures with the assistance of the security force.

4.2. All acts of disclosing bidding secrets, whether by groups or individuals, irrespective of their posts and working positions, shall be handled in accordance with Article 45 of the Regulation on Bidding.

In cases where a connivance in any form among bidders is discovered, besides the confiscation of their bid securities (if any), the violating bidders shall not be allowed to participate in biddings for any bidding package for 3 consecutive years. The Ministry of Planning and Investment, the Ministry of Construction and the Ministry of Trade shall jointly determine the above-said cases, then inform the tenderers and the related agencies thereof for implementation.

In cases where the bidding result is canceled by the person(s) competent to decide the investment or the bid must be re-organized due to the tenderer’s violation of the Regulation on Bidding, the tenderer shall not only be subject to administrative sanction in accordance with Article 45 of the Regulation on Bidding, but also have to compensate for the bidders’ costs in the bid. In cases where the bidder is at fault, all costs of the bid preparation shall be borne by the bidder.

5. Inspection of the contract performance

Upon the completion of the bidding process and bid evaluation, the tenderer shall have to organize the regular inspection of the performance of the contract by the bidders so as to promptly provide necessary information to the competent levels for consideration and decision.

To solve all problems arising in the contract performance process in a timely manner, the ministries, branches and localities and the heads of the competent agencies shall have to inspect and supervise the implementation of decisions ratifying the bidding results as well as all clauses stated in the contract and agreed upon by the project owner and the bidder.

6. State management over bidding

To exercise its State management function, the Ministry of Planning and Investment shall assume the main responsibility and coordinate with the Ministry of Construction, the Ministry of Trade and the concerned ministries, branches and localities in assisting the Prime Minister to supervise the implementation of the Regulation on Bidding throughout the country.

The planning and investment services attached to the ministries, branches and localities shall assume the main responsibility and coordinate with the construction and trade managing agencies and other related agencies in assisting the Ministers or the Presidents of the People’s Committees of the provinces and cities directly under the Central Government to supervise and inspect the implementation of the Regulation on Bidding in their branches and localities.

Above are some additional guidances besides the guidances made in Appendice I, II and III of the Regulation on Bidding issued together with Decree No.43-CP of July 16, 1996 of the Government. In the course of implementation, if any problem arises, the ministries, branches and localities and the concerned units should promptly report it to the Ministry of Planning and Investment for review and settlement in consultation with the Ministry of Construction, the Ministry of Trade and the other concerned ministries and branches.

The Minister of Trade

The Minister of Construction

The Minister of Planning

and Investment