Vietnam law has general regulations on bidding. Let’s find out this issue with Lawyer X through the following situation: “Dear Lawyer! I want to ask what are regulations on ensuring competitiveness in bidding in Vietnam? What are conditions for issuing the Bidding Documents, Request for Proposals? Thanks for answering my questions!”
Legal grounds
- 2013 Vietnam Law on Bidding
Regulations on Ensuring competitiveness in bidding
– Bidders submitting EOI responses, Applications must be legally and financially independent with consulting bidders for making EOI requests, Prequalification Documents; assessment of EOI responses, Applications; appraisal for results of invitation for interest, results of prequalification.
– Bidders making a bid must be legally and financially independent with the following parties:
+ Investor, Procuring Entity;
+ The consulting bidders for the making, verification, and appraisal of dossiers of design and estimate; the making, verification of Bidding Documents, Request for Proposals; assessment of Bids, Proposals; appraisal of results of selecting bidder of such package;
+ Other bidders that participate in same package for limited bidding.
– A consulting bidder who supervises execution of a contract must be legally and financially independent from the bidder who performs the contract, the consulting bidder who verifies such package.
– Investors making a bid must be legally and financially independent with the following parties:
+ The consulting bidders for bidding for investment projects in form of public-private partnership (PPP), investment projects with land use, until day of signing the project contract;
+ The consulting bidder that verifies the investment project in form of public-private partnership (PPP), investment project with land use, until day of signing the project contract;
+ Competent regulatory agencies, and the Procuring Entity.
– The Government shall elaborate this Article.
Conditions for issuing the Bidding Documents, Request for Proposals
– The Bidding Documents, Request for Proposals of a package may be only issued to select bidders when having full the following conditions:
+ The approved plan on selection of bidders;
+ The approved Bidding Documents, Request for Proposals include contents of requirements on procedures for bidding, Bid Data Sheet; criteria for evaluation, forms of bidding, volume table of bid invitation; requirements on progress, techniques, quality; general conditions, particular conditions of contracts, model contracts and other necessary contents;
+ Invitation to Bid, Notice of Proposed Procurement or short list must be published as prescribed by 2013 Vietnam Law on Bidding;
+ Capital sources for package are allocated under the time for performance of package;
+ Content, list of goods, services and estimates already been approved by competent person in case of recurrent procurement and centralized procurement;
+ Ensuring the handing over of construction ground under time for performance of package.
– Bidding Documents, Request for Proposals of a project may be only issued to select investors when having full the following conditions:
+ Project under list of projects announced by Ministries, Ministerial agencies, Governmental agencies, the People’s Committees of provinces or central-affiliated cities as prescribed by law or projects proposed by investors;
+ The approved plan on selection of bidders;
+ The approved Bidding Documents, Request for Proposals;
+ Invitation to Bid, or short list must be published as prescribed by 2013 Vietnam Law on Bidding.
Regulations on Information of bidding
– All information must be published on National E-procurement System, bidding newspapers including:
+ The plan on selection of bidders/investors;
+ Notice of invitation for expression of interest, notice of invitation for prequalification;
+ Notice of Proposed Procurement, Invitation to Bid;
+ Short list;
+ Results of selection of bidders/investors;
+ Results of bid opening for online bidding;
+ Information on handling of violations of law on procurement;
+ Legal documents on bidding;
+ List of investment projects in the form of public-private partnership, projects with land use;
+ The database of bidders/investors, bidding experts, lecturers of bidding, and establishments of training on bidding;
+ Other relevant information.
– The information defined at Clause 1 this Article is encouraged to publish on websites of Ministries, sectors and localities or on other means of mass media.
– The Government shall elaborate this Article.
Regulations on Language of bid
Language to be used in bidding shall be Vietnamese in the case of domestic bidding, and English or Vietnamese and English in the case of international bidding.
Regulations on Currencies of bid
– For domestic bidding, bidders are only allowed to have bid quotation in Vietnam dong.
– For international bidding:
+ Bidding Documents, Request for Proposals must state the currency for bidding in Bids, Proposals but not exceeding three currencies; for a specific work item, only give bid quotation in a currency kind;
+ In case where Bidding Documents, Request for Proposals stipulate that bidders may have bid quotation in two or three currencies when assessing Bids, Proposals, quotation must be converted into a currency kind; if having Vietnam dong used in such currencies, quotation must be converted into Vietnam dong. Bidding Documents, Request for Proposals must stipulate the convertible currency, time and bases to determine the exchange rate for converting;
+ For domestic costs involving performance of package, bidders must have a bid quotation in Vietnam dong;
+ For overseas costs involving performance of package, bidders may have a bid quotation in foreign currency.
Regulations on Bid Security
– Bid Security shall apply in the following cases:
+ Competitive bidding, limited bidding, and Shopping Method for procurement of non-consulting service provision, goods procurement, works, and mixed package;
+ Competitive bidding and Direct Contracting for selection of investor.
– Bidders and investors must conduct measures for Bid Security before deadline for submission of bids for Bids, Proposals; case of applying method of two-stage bidding, bidders must provide a Bid Security during stage two.
– Value of Bid Security is stipulated as follows:
+ For selection of bidder, value of Bid Security is stipulated in Bidding Documents, Request for Proposals under a defined amount of between 1% and 3% of package price basing on the scale and nature of each particular package;
+ For selection of investor, value of Bid Security is stipulated in Bidding Documents, Request for Proposals under a defined amount of between 0.5% and -5% of total investment basing on the scale and nature of each particular project.
– The validity period of Bid Security is stipulated in Bid, Request for Proposals equal to the validity period of the Bids, Proposals plus thirty (30) days.
– In case of extending the period of validity of Bids, Proposals after deadline for submission of bids, and the Procuring Entity must require bidders/investors to extend the period of validity of their Bid Security for an equivalent term. In such a case, bidders/investors must extend the period of validity of their Bid Security and not be permitted to change the contents of their submitted Bids, Proposals. If any bidder or investor refuses to extend the period of validity, his Bid, Proposal will be no valid longer and be rejected, the party calling for tenders shall return or release the biding guarantee to the bidder/investor within 20 days, since the Procuring Entity receives a written refusal for extension.
– If a joint venture makes a bid, every JV’s Party may perform separate Bid Security or make agreement in which one member will be responsible for implementation of its Bid Security or for Bid Security of JV’s Parties. Total value of Bid Security is not lower than the value required in Bidding Documents, Request for Proposals. If any JV’s Party violates Clause 8 of this Article, Bid Security of all JV’s Parties will not be returned.
– The Procuring Entity shall return or release Bid Security to bidders or investors who are not selected under the duration specified in Bid, Request for Proposals but not exceeding 20 days, after the day of approving result of selection of bidder/ investor. For the selected bidder/investor, his Bid Security will be returned or released after he provides a Performance Security as prescribed in Article 66 and Article 72 of 2013 Vietnam Law on Bidding.
– A Bid Security shall not be returned in the following cases:
+ The bidder or investor withdraws Bid, Proposal after deadline for submission of bids when the Bid, Proposal still remains valid;
+ The bidder or investor violates law on procurement which leads to be cancelled bid as prescribed at Clause 4 Article 17 of 2013 Vietnam Law on Bidding;
+ The bidder or investor fails to provide a Performance Security as prescribed at Article 66 and Article 72 of 2013 Vietnam Law on Bidding;
+ The bidder fails or refuses to negotiate and finalize the contract, within a period of twenty (20) days from the date of receipt of notification of winning bid from the Procuring Entity or has negotiated and finalized the contract but refuses to sign the contract except for force majeure cases;
+ The investor fails or refuses to negotiate and finalize the contract, within a period of thirty (30) days from the date of receipt of notification of winning bid from the Procuring Entity or has negotiated and finalized the contract but refuses to sign the contract except for force majeure cases.
Time limits applicable during selection of bidders/investors
– Time limits applicable during selection of bidders:
+ The maximum time for approval of plan on bidder selection shall be 05 working days after receiving report on appraisal;
+ EOI requests, Prequalification Documents, Bidding Documents, Request for Proposals shall be issued after 03 working days from the first day of publishing notice of invitation for submission of EOI responses, notice of prequalification invitation, Invitation to Bid, Notice of Proposed Procurement, sending of Invitation to Bid before deadline for submission of bids;
+ Duration for preparing EOI responses shall be at least 10 days for domestic bidding and 20 days for international bidding, from the first day when EOI requests are issued until deadline for submission of bids; Bidders must submit EOI responses before deadline for submission of bids;
+ Duration for preparing Applications shall be at least 10 days for domestic bidding and 20 days for international bidding, from the first day when Prequalification Documents are issued until deadline for submission of bids. Bidders must submit Applications before deadline for submission of bids;
+ Duration for preparing Proposals shall be at least 05 working days, from the first day when Requests for Proposals are issued until deadline for submission of bids. Bidders must submit Proposals before deadline for submission of bids;
+ Duration for preparing the Bids shall be at least 20 days for domestic bidding and 40 days for international bidding, from the first day when Bidding Documents are issued until deadline for submission of bids. Bidders must submit the Bids before deadline for submission of bids;
+ The maximum time allowed for assessment of EOI responses, Applications shall be 20 days, for Proposals shall be 30 days, for Bids shall be 45 days in the case of domestic bidding, as from the deadline for submission of bids until the date the Procuring Entity submits to investor for approving the results of contractor selection. The maximum time allowed for assessment of EOI responses, Applications shall be 30 days, for Proposals shall be 40 days, for Bids shall be 60 days in the case of international bidding, as from the deadline for submission of bids until the date the Procuring Entity submits to investor for approving the results of contractor selection. In necessary case, time for assessment of dossiers of Bid, Proposal may be prolonged but not exceed 20 days and must ensure time for performance of project;
+ The maximum time for appraisal shall be 20 days for each content of appraisal: plan on selection of bidder, EOI requests, Prequalification Documents, Bidding Documents, Request for Proposals, result of selection of bidder after receiving full the submitted documents;
+ The maximum time for approving EOI requests, Prequalification Documents, Request for Proposals, Bidding Documents shall be 10 days, as from the date of receiving the written request for approving EOI requests, Prequalification Documents, Request for Proposals, Bidding Documents of the Procuring Entity or the appraisal report in case of having appraisal requirement;
+ The maximum time for approving or giving the handling opinion on result of bidder selection shall be 10 days, as from the date of receiving the written request for approving the result of bidder selection of the Procuring Entity or the appraisal report in case of having appraisal requirement;
+ The maximum period of validity of a Bid, Proposal shall be 180 days as from the deadline for submisison of bids; in case of package with bid scale, complex nature, package under two-stage bidding method, the maximum period of validity of a Bid shall be 210 days, as from the deadline for submisison of bids. In necessary cases a bidder may request extension of the period of validity of his Bid, Proposals, and must ensure progress of project;
+ Time for sending a document to modify a Bid to bidders already received Bid shall be 10 days minimally for domestic bidding and 15 days minimally for international bidding before day of deadline for submisison of bids; for modification of dossier of invitation for expression of interest, Prequalification Document, Request for Proposals, it shall be 03 working days minimally before day of deadline for submisison of bids. If time for sending a document to modify dossiers fail to meet provision at this point, the Procuring Entity shall perform extension of deadline for submisison of bids time respectively in order to ensure provision on time for sending a document to modify a dossier of invitation for expression of interest, dossier of prequalification invitation, Bid or Request for Proposals;
+ Time-limit for sending notice of contractor selection result to bidders bidding via post, facsimile shall be 05 working days, as from the date of approving the result of bidder selection.
– The Government shall elaborate Time limits applicable during selection of bidder for packages with small scale, packages with participation of community; Time limits applicable during selection of investor; Time limits applicable during selection of bidder or investor via network.
Expenses associated with bidding
– Expenses associated with the process of selection of bidder include:
+ Expenses associated with preparation of EOI responses, Applications, Bids, Proposals and participation in bidding shall be borne by bidders;
+ Expenses associated with process of bidder selection shall be included in total investment or estimated budget of procurement;
+ EOI requests, Prequalification Documents shall be issued to bidders free of charge;
+ Bidding Documents, Requests for Proposals shall be sold or issued free of charge to bidders.
– Expenses associated with the process of selection of investor include:
+ Expenses associated with preparation of Applications, Bids, Proposals and participation in bidding shall be borne by investors;
+ Expenses associated with process of investor selection shall be financed by state, other lawful capital sources and included in total investment;
+ The investor who is selected to perform project must pay expenses associated with process of investor selection;
+ Prequalification Documents, Bidding Documents, Requests for Proposals shall be sold to investors.
– Expenses associated with the process of online bidding include:
+ Expenses associated with participation in National E-procurement System, expenses associated with publishing information of bidding and other expenses;
+ Expenses associated with submission of a bid, organization of bid as prescribed at Clause 1 and Clause 2 of this Article.
– The Government shall elaborate this Article.
Preferential treatment in selection of bidders
– Bidders shall be enjoyed preferential treatment when participating in domestic or international bidding to supply goods of which costs for domestic production occupy 25% or more.
– Entities entitled to preferential treatment in international bidding to supply the consulting services, non-consulting services, construction include:
+ Domestic bidders with individual status or in a joint venture;
+ Foreign bidders in joint venture with domestic bidders in which the domestic bidders take over from 25% or more of work value of package.
– Entities entitled to preferential treatment in domestic bidding to supply the consulting services, non-consulting services, construction include:
+ Bidders employing female laborers of 25 % or more of laborer quantity;
+ Bidders employing laborers being invalids, disable people of 25 % or more of laborer quantity;
+ Bidders being small-size enterprises.
– Preferential treatment is calculated to apply during assessing the Bids, Proposals in order to compare, rank the Bids, Proposals according to one of the following methods:
+ Plus more points into the assessment point of bidders belonging to entities entitled to preferential treatment;
+ Plus more amount into bid price or assessment price of bidders not belonging to entities entitled to preferential treatment.
– Entities and content or preferential treatment in selection of bidder specified in this Article shall not apply in case where International treaties in which the Socialist Republic of Vietnam is a contracting party or international agreements between Vietnam and donors otherwise provides for preferential treatment in selection of bidder.
– The Government shall elaborate this Article.
Regulations on International bidding
– International bidding shall be held to select bidder only when it meets one of the following conditions:
+ The donor of package requests for holding international bidding;
+ Packages for procurement of goods where the goods are not yet able to be manufactured domestically or able to be manufactured but fail to meet technical, quality or price requirements. In case of common goods, already been imported and offered for sale in Vietnam, do not organize international bidding;
+ Packages of providing consulting service, non-consulting service, works, mixture provision which domestic bidders are not able to satisfy requirements of package performance.
– Investment projects in form of public-private partnership (PPP), investment projects with land use, except for cases limited investment as prescribed by law on investment.
– The Government shall elaborate this Article.
Conditions for individuals to participate in bidding activities
– Individuals participating in bidding activities must possess certificate of training on bidding and have professional expertise, capability, experiences, language appropriate to the requirements of the package, project, except for individuals belonging to bidders/investors.
– Individuals who directly participate in making EOI requests, Prequalification Documents, Bidding Documents, Requests for Proposals; assessment of EOI responses, Applications, Bids, Proposals of professional bidding organizations, enterprises, units operating in consulting for bidding, professional management board of projects must have certificate of practicing on bidding operation.
Regulations on bidding cancellation
– All Bids, Proposals failed to satisfy the requirements of the Bid Documents, Request for Proposals.
– Alteration of the objectives or scope of the investment stated in the Bid Documents, Request for Proposals.
– The Bid Documents, Request for Proposals failed to comply with legislation on bidding or other relevant legislation that lead to the failure of the selected bidder or investor to meet requirements to perform package, project.
– There is evidence showing the handing, taking, brokerage of bribes, conclusion with each other in bidding, fraud, taking advantage of positions, powers aiming to interfere illegally in bidding activities that lead to the falsified result of selecting the bidder/investor.
Please see more:
- Instructions for exclusive registration of company logos in Vietnam
- Service of changing the legal representative of Vietnamese enterprises
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Frequently asked questions
Bidders submitting EOI responses, Applications must be legally and financially independent with consulting bidders for making EOI requests, Prequalification Documents; assessment of EOI responses, Applications; appraisal for results of invitation for interest, results of prequalification.
A consulting bidder who supervises execution of a contract must be legally and financially independent from the bidder who performs the contract, the consulting bidder who verifies such package.
The maximum time for approval of plan on bidder selection shall be 05 working days after receiving report on appraisal;
Conclusion: So the above is General legal regulations on bidding in Vietnam. Hopefully with this article can help you in life, please always follow and read our good articles on the website: lsxlawfirm.com
