| THE GOVERNMENT | SOCIALIST REPUBLIC OF VIET NAM |
| No. 58/2008/ND-CP | Hanoi, May 05th, 2008 |
DECREE
ON TENDERING MAKING DETAILED PROVISIONS FOR IMPLEMENTATION OF THE LAW ON TENDERING AND FOR SELECTION OF CONSTRUCTION CONTRACTORS PURSUANT TO THE LAW ON CONSTRUCTION
THE GOVERNMENT
Pursuant to the Law on Organization of the Government dated 25 December 2001;
Pursuant to the Law on Tendering No. 61/2008/QH11 dated 29 November 2005 and the Law on Construction No. 16/2003/QH11 dated 26 November 2003 of the National Assembly;
Having considered the proposal of the Minister of Planning and Investment and the Minister of Construction;
DECREES:
Chapter I
GENERAL PROVISIONS
Article 1. Governing scope
1. This Decree provides detailed guidelines for implementation of the Law on Tendering dated 29 November 2005 and on selection of construction contractors pursuant to the Law on Construction dated 26 November 2003, both passed by the National Assembly.
2. The selection of contractors for tender packages funded by Official Development Aid (ODA) shall be implemented in accordance with article 3.1 of the Law on Tendering. The procedures and authority for approval of contents of the tendering plan and results of selection of a contractor for ODA projects shall be implemented in accordance with this Decree.
Article 2. Interpretation of terms
In this Decree, the following terms shall be construed as follows:
1. Financed by the State as defined in article 1.1 of the Law on Tendering includes payment of expenses by way of purchase, lease or hire-purchase. A determination of whether or not the State finances a total of thirty (30) per cent or more of the total investment amount or total investment capital of an approved project shall be made for each project, and shall not be determined in accordance with the percentage State capital portion of the total registered capital of the enterprise.
2. Set of requirements means all of the documents used for the forms of direct appointment of contractor, competitive quotation, direct procurement, and selection of a contractor in special cases, and shall include and set out the requirements for any one tender package providing the legal basis for tenderers to prepare their sets of proposals and for the party calling for tenders to assess the sets of proposals, aimed at selection of a contractor who satisfies the requirements set out in the set of requirements; and also providing the basis for negotiation, finalization and signing of a contract. The investor shall be responsible for deciding the contents of the set of requirements.
3. Set of proposals means all of the documents prepared by a tenderer in accordance with the requirements set out in the set of requirements and submitted to the party calling for tenders in accordance with the provisions stipulated in such set of requirements.
4. Results of selection of contractor means the results of tendering when using open tendering or limited tendering or the results of selection when using other forms of selection.
5. Breach of the law on tendering means any act of non-compliance with or failure to fully comply with the law on tendering.
6. Participation in tendering means a tenderer takes part in open tendering or limited tendering.
7. Tender package for selection of a general construction contractor comprises selection of a general contractor for an engineering package (E); for a construction package (C); for a design and construction package (EC); for a design, supply of equipment and materials, and construction and installation package (EPC); and for a project preparation, design, supply of equipment and materials, and construction package (turnkey contract).
Article 3. Ensuring competitiveness in tendering
Items ensuring competitiveness and the schedule for implementing them shall be regulated as follows:
1. The requirements on competitiveness stipulated in article 11.1(a) of the Law on Tendering shall be implemented as follows:
(a) The contractor who prepared the feasibility report (for an investment project) shall be permitted to participate in tendering for preparation of technical design, design of drawings for execution of the works, and design of technology [for the same project] prior to 1 April 2009. In this case, the party calling for tenders must supply tender invitation documents containing complete relevant information and data including the feasibility study report (for the investment project) and must allow sufficient time so that all tenderers have the same conditions to prepare their tenders, ensuring fairness during the tendering.
(b) The contractor/s who prepared the technical design, design of drawings for execution of the works [and/or] design of technology for a tender package shall not be permitted to participate in tendering for construction and installation or for procurement of goods for such tender package as from the date on which this Decree takes affect, except for an EPC tender package. However any contractor/s who prepared the technical design, design of drawings for execution of the works [and/or] design of technology for a tender package shall be permitted to participate in tendering for consultancy for preparation of tender invitation documents, assessment of tenders [and/or] for contract supervision applicable to such tender package.
2. Any tenderer participating in tendering and the consultancy tenderer who prepared the tender invitation documents [and/or] assessed tenders; and the tenderer performing the contract and the consultancy tenderer for supervision of implementation of the contract shall be deemed to be organizationally independent of each other, not under the control of the same managing body, and financially independent as stipulated in sub-clauses (b) and (c) of article 11 of the Law on Tendering when they satisfy both the following conditions:
(a) They do not both belong to the same State body or unit of the people's armed forces which issued their decision on establishment, except for tenderers being enterprises which have converted to operate pursuant to the 2005 Law on Enterprises;
(b) They do not have shareholding or capital contribution in each other above 30%. This provision shall be implemented as from 1 April 2009.
3. Investors and tenderers participating in tendering for tender packages belonging to the same project shall be deemed to be independent of each other, not under the control of the same managing body, and financially independent as stipulated in clause 1(d) of article 11 of the Law on Tendering when they satisfy both the following conditions:
(a) They do not have shareholding or capital contribution in each other above 50%.
(b) A tenderer being an organization operates pursuant to the 2005 Law on Enterprises. This provision shall be implemented as from 1 April 2009.
Article 4. Preferential treatment in international tendering
1. Preferential treatment in international tendering pursuant to article 14 on the Law on Tendering shall be regulated as follows:
(a) In the case of tender packages for consultancy services, seven point five (7.5) per cent of the total points of a tenderer eligible for preference shall be added to the tender of such tenderer; and in the case of tender packages for consultancy services with high technical requirements, seven point five (7.5) per cent of the technical points of a tenderer eligible for preference shall be added to the technical points of such tenderer.
(b) In the case of tender packages for construction and installation, the assessment price of the tender of any tenderer ineligible for preference shall be increased by a sum equal to seven point five (7.5) per cent of the tender price after errors have been rectified and discrepancies have been adjusted for such tenderer.
(c) In the case of tender packages for the procurement of goods, the assessment price of the tender of any tenderer ineligible for preference shall be increased by a sum equal to the stipulated import duties and import related fees and charges but such [additional] sum shall not exceed fifteen (15) per cent of the price of the goods.
Preferential treatment shall not apply to goods for which payment of import duties and import related fees and charges is required pursuant to regulations.
(d) In the case of tender packages for the selection of a general design contractor, preferences shall be implemented as stipulated in sub-clause (a) above. In the case of tender packages for the selection of other general construction contractors, preferences shall be implemented in accordance with sub-clause (b) above.
2. Where tenders of foreign tenderers are ranked equally, preference shall be granted to the tenderer proposing the higher level of domestic costs. Where tenders of a domestic tenderer and a foreign tenderer are ranked equally after implementing preferences in accordance with clause 1 of this article, preference shall be granted to the domestic tenderer.
Article 5. Professional training on tendering
1. Applicable entities
(a) Individuals directly participating in tendering activities must possess a certificate of having attended a course on professional training on tendering, except for tenderers;
(b) Other individuals who request to attend training courses.
2. Administration of training activities
The Ministry of Planning and Investment shall be responsible to organize training activities in accordance with article 68.5 of the Law on Tendering, specifically as follows:
(a) To provide an overall report on the status of training conducted by training establishments via the annual reports on tendering activities provided by ministries, branches and localities;
(b) To establish an information database on training establishments on the basis of the information supplied by such establishments.
3. Conditions for establishments to hold training activities
(a) Having a business registration certificate, or a decision on establishment in the case of establishments without a business registration certificate;
(b) Having lecturers qualified to provide training on tendering.
4. Conditions for issuing certificates on tendering
(a) Certificates shall be issued to trainees who attended the whole of a training course on tendering and who passed the exam;
(b) Training courses on tendering must be held for a minimum of three (3) days to satisfy the condition for issuance of a certificate on tendering.
5. Responsibilities and obligations of establishments providing training on tendering
(a) To be responsible for the quality of training; and to provide information on the training establishment for the database stipulated in clause 2(b) of this article;
(b) To hold training courses and to issue certificates to attendees in accordance with the regulations;
(c) To provide annual reports to the Ministry of Planning and Investment and to ministries, branches or localities in order for the latter to monitor and summarize such reports.
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