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Part II THE LAW ON TENDERING 129 Table of conlents TABLE OF CONTENTS THE LAW ON TENDERING C h a p ter I G E N E R A L P R O V IS IO N S 139 Article Governing scope 139 Article Applicable entities 141 Article Application of the Law on Tendering, related laws international treaties and international agreements 141 Article Interpretation of terms 142 Article Iníormation on lendering 150 Article Tendering plans 151 Article Eligibility of tenderers being organizations 153 Article Eligibility of tenderers being individuals 154 A rtid e Requirements applicable to a party calling for tenders and to an expert tenđering group 154 Article 10 Conditions for participation in tenđering for any one tender package 156 131 KEY ISSUES IN THE LAW ON TENDERING Article 11 Ensuring competitiveness in tendering 157 Article 12 Prohibited conducts in tendering 159 Article 13 International tendehng 163 Article 14 Preíerential treatment in international tendering 164 Artìcle 15 Currency to be used in tendering 165 Article 16 Language to be used in tendering 165 Artỉcle 17 Expenses for tendering 166 C h a p ter I I S E L E C T IO N F C O N T R A C T O R S 166 Section FORMS 0F SELECTION 0F CONTRACTORS 166 Article 18 open tendering 166 Article 19 Limited tendering 167 Article 20 Direct appointment of contractor 168 Article 21 Direct procurement 170 Article 2Z OxTipetitive quotation in procxirement of goods 171 Article 23 SelMmplementation 172 Article 24 Selection of contractor in specia! cases 172 132 Table of contents Section GENERAL PROVISIONS ON TENDERING 173 Article 25 Conditions for issuance of tender invitation documents 173 Artỉcle 26 Methods of tendering 173 Article 27 Tenđer guarantee 175 Article 28 Principles for assessment of tenders 177 Article 29 Method of assessment of tenders 178 Article 30 Tendering Via the Internet 180 Article 31 Regulations on time-limíts applicable during tendering 181 Section SEQUENCE FOR IMPLEMENTATION 0F TENDERING 183 Article 32 Preparation for tendering 183 Artìcle 33 Organization of tendering 186 Artícle 34 Claritication of tender invitation documents 187 Article 35 Sequence of assessment of tenders 188 Article 36 Clariíìcation of tenders 189 Artícle 37 Consideration for recommendation as the 133 KEY ISSUES IN THE LAW ON TENDERING vvinning tenderer in the case of tendering for provision of consultancy services 190 Article 38 Consideration for recommendation as the vvinning tenderer in the case of tendering for procurement of goods, for construction and Installation and for EPC 190 Artícle 39 Submission for approval and evaluation of the results of tendering 191 Articte 40 Approval of the results of tendering 192 Articte 41 Notification of the results of tendering 193 Artícte 42 Negotiation, finalization and signing of the contract 193 Section CANCELƯVTION 0F TENDERING AND REJECTION 0F TENDERS 194 Artícle 43 Cancellation of tendering 194 Article 44 Pinandal liabilíties when tendering is cancelled 195 Artícle 45 Rejection of tenders 196 C h a p te r III CONTRACTS Artícte 46 Pnnciples for íormulatíon of contracts 134 197 197 Table of contents Article 47 Contents of contracts 197 Article 48 Forms of contract 198 Artícle 49 Lump-sum contract 198 Article 50 Form of unit price contract 199 Artỉcle 51 Form of time based contract 199 Article 52 Form of percentage based contract 200 Artỉcle 53 Multiple contractual forms within the one 200 contract Article 54 Signing of contract 201 Article 55 Contracỉ pertormance guarantee 201 Article 56 VVarranty 202 Artỉcle 57 Adjustment to contracts 203 Article 58 Contract payment 205 Article 59 Supervision of implementation of contract check and acceptance of, and liquidation of the contract 205 C h a p ter IV RIGHTS AND OBLIGATIONS OF PARTIES IN TENDERING Article 60 Responsibilities of the authorized person 207 207 135 KEY ISSUES IN THE ư^w ON TENDERING Article 61 Rights and obligations of Investors 208 Article 62 Rights and obligations of parties calling for tenders 209 Article 63 Rights and obligations of expert tendering groups 210 Article 64 Rights and obligations of tenderers 211 Article 65 Rights and obligations of evaluating bodies or organi2 ations 212 C h a p ter V ADMINISTRATION F T E N D E R IN G A C T IV IT IE S Article 66 Contents of State administration of tendering 213 213 Article 67 Responsibílities and powers of the Government and of the Prime Minister of the Government 214 Article 68 Responsibỉlities and povvers of the Mỉnistry of Planning and Investment 215 Article 69 Responsibilities and powers of ministríes ministerỉal equívalent bodỉes, and all level peopJe's committees Article 70 Dealing with situations in tendering 136 216 217 Table of contents Article 71 Tendering Inspectorate 219 Article 72 Resolution of protests regarding tendering 219 Article 73 Procedures for resolution of protests regarding tendering 220 Article 74 Complaints and denunciations about tendering 224 Artícle 75 Dealing with breaches of the laws on tendering 224 C h a p t e r VI IMPLEMENTING P R O V IS IO N S 225 Article 76 Implementation guidances 225 Artỉcle 77 Implementation effects 226 137 KEY ISSUES IN THE LAW ON TENDERING making a decision on dealing with any situation in tendering, and shall be responsible beíore the law for his decision Categories of situations shall comprise: (a) Regarding preparation for and organization of tendering: items adjusting a tendering plan, a tender package price or other contents of a tender package; amendments to tender invitation documents; submission of tenders if tenders are submitted out of time or if too few tenders have been submitted; and amendments to the number of participating tenderers; (b) Regarding assessment of tenders: situations in which tender prices exceed the tender package price, and tender prices made up of unusual unit prices; (c) Regarding recommendation of vvinning tenderer and signing of the contract: situations in which the vvinning tender price is below fifty (50) per cent of the tender package price or the approved estimated budget; situations in which two tenders are both assessed as the best price and are identical, or where the proposed contract sum exceeds the approved winning tendẹr price; (d) Regarding the procedures and sequence for 218 Part II The Law on Tendering implementation of tendering The Government shall provide detailed regulations on dealing with situations in tendering A rticle 71 T en d erín g ỉn s p e c to r a te The Tendering Inspectorate shall be carried out for organizations and individuals who are involved in tendering activities in order to implement a tender package belonging to any of the projects stipulated in Article of this Law The Tendering Inspectorate shall cialÌ ed inspectorate for the tendering organization and operations of the Inspectorate shall be implemented in with the laws on inspections be the spesector The Tendering accordance A rticle 72 R eso ỉu tio n o f p r o te s ts r e g a r d ỉn g ten d erin g Tenderers shall have the right to protest about the results of selection of contractor and about other relevant matters during the tendering process The entities responsible for resolution of a protest made by a tenderer during the tendering process shall be the party calling for tenders, the investor and the authorized person The authorized person shall 219 KEY ISSUES IN THE LAW ON TENDERING resolve any protest made by a tenderer regarding results of selection of contractor on the basis of a Report from the Consulting Council for Resolution of Protests pursuant to Article 73 of this Law With regard to protests about the relevant mat- ters during the tendering process other than the results of selection of contractor, the time-limit for lodging a protest shall be calculated as from the date the event protested about arose until the date of the notiĩication of results of tendering The time-limit for lodging a protest about the results of selection of contractor shall be a maximum of ten (10) days from the date of notification of results of tendering Article 73 Procedures fo r resoỉution o f proteats re g a rd in g ten d erin g The resolution of protests about the relevant matters during the tendering process shall be implemented as follows: (a) The party calling for tenders shall be responsi- ble to resolve a protest regarding tendering made by a tenderer vvithin a time-limit of a maximum of five (5) working days from the date of receipt of the written protest of the tenderer If the party calling for ten220 Part II The Law on Tendering ders is unable to resolve the protest or if the tenderer disagrees with the resolution as made by the party calling for tenders, the tenderer shall have the right to lodge the protest with the investor for the latter s consideration and resolution in accordance with the provisions in sub-clause (b) of this clause; (b) The investor shall be responsible to resolve a protest regarding tendering made by a tenderer within a time-limit of a maximum of seven (7) Nvorking days from the date of receipt of the vvritten protest of the tenderer If the investor is unable to resolve the protest or if the tenderer disagrees with the resolution as made by the investor, the tenderer shall have the right to lodge the protest with the authorized person for the latter s consideration and resolution in accordance with the provisions in sub-clause (c) of this clause; (c) The authorized person shall be responsible to resolve a protest regarding tendering made by a tenderer within a time-limit of a maximum of ten (10) working days from the date of receipt of the vvritten protest of the tenderer If the authorized person is unable to resolve the protest or if the tenderer disagrees with the resolution as made by the authorized 221 KEY ISSUES IN THE LAW ON TENDERING person, the tenderer shall have the right to institute court proceedings The resolution of protests about rpsults of s p I p c tion of contractor shall be implemented as follows: (a) In accordance with the provisions in subclause (a) of clause of this Article; (b) In accordance with the provisions in subclause (b) of clause of this Article If the investor is unable to resolve the protest or if the tenderer disagrees with the resolution as made by the investor, the tenderer shall have the right to concurrently submit the vvritten protest to the authorized person and to the Chaưman of the Consulting Council for Resolution of Protests for consideration and resolution pursuant to sub-clause (c) of this clause; (c) The Consulting Council for Resolution of Protests (hereinafter reĩerred to as the Consulting Council) shall be responsible to request the tenderer, the investor and other bodies involved in the tender package to provide necessary information, data and opinions in ordcr to formulatc a Rcport on the results of the tendering vvork lf necessary, the Consulting Council may work directly with the parties involved 222 Part II The Law on Tenderỉng in order to clarify issues The time-limit within vvhich the Consulting Council shall provide it’s report shall bữ a maximum of twenty (20) days from the date of receipt of the written protest of the tenderer The Chairman of the Consulting Council shall be a representative of the State administrative body for tendering, and members of the Consulting Council shall include a representative of the authorized person and a representative of the occupational association concerned The authorized person shall be responsible to issue a decision on resolution of the protest of the tenderer within a time-limit of a maximum of five (5) Nvorking days from the date of receipt of the Report on results of the tendering work from the Consulting Council If the tenderer disagrees with the resolution made by the authorized person, the tenderer shall have the right to institute court proceedings A tenderer who wishes to make a protest regarding tendering shall have the right to institute court prcxĩeedings immediately If the tenderer chooses not to institute court proceedings, then the protest shall be resolved in accordance vvith clauses and of this Article 223 KEY ISSUES IN THE LAW ON TENDERING The Government shall provide detailed regulations on resolution of protests and on the operation of the Consulting Council A rticle 74 C om plaints and d en u n cỉa tỉo n s about ten d erin g The making of complaints and denunciations about tendering and the resolution of such complaints and denunciations shall be implemented in accordance with the laws on com plaints and denunciations A rticle 75 D ea lin g ivỉth b rea ch es o f the laws on ten d erin g Any organization or individual who breaches the laws on tendering shall be dealt with by one of the following forms: (a) A warning shall apply to any organization or individual in breach of the provisions of the Law on Tendering other than the breaches stipulated in Article 12 of this Law; A f i n e s h a l l b e i m p o s G d o n any o r g a n Ì a t i o n o r individual who acts in breach of the Law on (b ) Tendering and causes loss and damage to the interests 224 Part II The Law on Tmdering of relatod parties (c) Tho penaliy of prohibition from participation in lendering shall apply to any orgímization or individual who coinniits a breach heing one of the acts stipulated in /\i'ticle 12 of this Law Any individual who commits a breach of the Law on Tendering where such conduct also constitutes a criminal offence shall be dealt with in accordaiice wilh the criminal laws Any breach of the Law on Tendering by an organization or individual shall in addition to being dealt with pursuant to the provisions in clauses and of this Article, be listed in the tendering newsletter and on the tendering vvebsite The Governrr.ent shall provide detailed regulations on dealing with breaches of the laws on tendering C h a p te r VI IM P L E M E N T IN G P R O V IS IO N S A rticle 76 Im plem entation g u id a n ces The Government shall proviíle detailed regula225 KEY ISSUES IN THE LAW ON TENDERING tions and guidelines for implementation of this Law A rticle 77 Im plem entatỉon effects This Law shall be of full force and effects as of April 2006 This Laiv was p assed hy Legislature Xỉ o f the N ation al Assem bly o f the S ocialíst R epuhlic o f Vietnam at its 8^^ Session on 29 November 2005 T H E CHAIRMAN O F TH E NATIONAL A SSEM BLY N guyen Van An 226 MỤC LỤC ■ ■ Lòi giói thiệu Phần thù GIĨI THIỆU LUẬT ĐẤU THẦU I Đò' cục Luật Đấu tháu II NỘI dung Luật Đấu thắu 10 Phần thú hai TOÀN VÃN LUÂT ĐẤU THẦU 23 227 TABLE OF CONTENTS Introduction 107 Partl INTRODUCTION TO THE LAW ON TENDERING 109 I structure of the Law on Tendering 111 II Key issues in the Law on Tendering 112 Partll THE LAW ON TENDERING 228 129 s ổ GHI CHÉP Bổ SUNG 229 s ổ GHI CHÉP BỔ SUNG 230 s ổ GHI CHÉP BỔ SUNG 231 ... denunciations about tendering 22 4 Artícle 75 Dealing with breaches of the laws on tendering 22 4 C h a p t e r VI IMPLEMENTING P R O V IS IO N S 22 5 Article 76 Implementation guidances 22 5 Artỉcle 77 Implementation... Article 20 Direct appointment of contractor 168 Article 21 Direct procurement 170 Article 2Z OxTipetitive quotation in procxirement of goods 171 Article 23 SelMmplementation 1 72 Article 24 Selection... Article 52 Form of percentage based contract 20 0 Artỉcle 53 Multiple contractual forms within the one 20 0 contract Article 54 Signing of contract 20 1 Article 55 Contracỉ pertormance guarantee 20 1