CIRCULAR

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

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

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

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

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

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

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

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

Article 2. Regulated entities

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

Article 3. Forms of bidding documents for non-consulting services

1. Use of forms of bidding documents:

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

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

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

Article 4. Preparation of bidding documents

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a) Depending on the scale and nature of each contract package, reasonable requirements that ensure competitiveness, fairness, transparency and economic efficiency shall be established;

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

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

2. Requirements regarding key personnel and equipment

a) Key personnel:

- Key personnel requirements shall not be imposed if the non-consulting service contract package does not require highly-skilled personnel. With regard to non-consulting services which have specific and complex factors and must be performed by highly-experienced personnel having appropriate professional knowledge, key personnel requirements may be imposed. Reasons for establishing the key personnel requirement must be specified in the request for approval of bidding documents submitted to the investor. The investor/procuring entity must ensure that the key personnel requirement is not aimed at limiting participation of bidders or giving advantage to one or some bidders, thereby causing unfair competition. The bidding documents shall not include personnel requirements regarding technical workers and unskilled workers;

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

b) Main equipment (if any):

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

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

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

3. Bidding documents must include the contract form, and terms and conditions of the contract as the basis for bidders’ submission of their bids as well as negotiation, completion and conclusion of contract.  The contract shall contain general conditions, particular conditions and contract forms. Depending on the scale and nature of each contract package, the investor shall decide to make reasonable modifications to the contract provided that they shall not be contrary to the provisions of the Law on Bidding, the provisions of CPTPP, EVFTA and UKVFTA Agreements, and other relevant laws.

Article 5. Implementation  

1. This Circular comes into force from November 20, 2022.

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

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

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

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

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7. The Circular No. 11/2015/TT-BKHDT dated October 27, 2015 of the Minister of Planning and Investment of Vietnam shall cease to have effect from the effective date of this Circular. Procuring entities shall, when preparing request for proposals documents in case of direct contracting, apply forms of bidding documents enclosed with the Circular No. 08/2022/TT-BKHDT dated May 31, 2022 of the Minister of Planning and Investment of Vietnam provided that the compliance with the provisions of the Law on Bidding and the Decree No. 63/2014/ND-CP must be ensured.

8. Any difficulties that arise during the implementation of this Circular to the Ministry of Planning and Investment of Vietnam for consideration./.

MINISTER




Nguyen Chi Dung