THE NATIONAL ASSEMBLYof the Socialist Republic of Vietnam

Legislature XI, 8th Session

Law on Procurement

TABLE OF CONTENTS

Chapter I............................................................................................................1GENERAL PROVISIONS................................................................................1

Article 1. Scope of application...........................................1Article 2. Applicable entities..............................................2Article 3. Application of the Law on Procurement, related legislations, international treaties, and other international agreements.......................................................................2Article 4. Interpretation of Terms......................................2Article 5. Procurement information...................................5Article 6. Procurement plan...............................................5Article 7. Eligibility of organisation as bidder....................6Article 8. Eligibility of individual as bidder........................6Article 9. Requirements for the Procuring Entity and Procurement Specialist Team............................................6Article 10. Conditions for participation in a bidding..........7Article 11. Ensuring competition in procurement..............7Article 12. Prohibited acts in procurement........................8Article 13. International bidding........................................9Article 14. Preferences in international bidding..............10Article 15. Currencies of bids..........................................10Article 16. Language of bids............................................10Article 17. Costs of bidding.............................................10

Chapter II.........................................................................................................10Bidder selection...............................................................................................10

Section 1............................................................................10Methods of bidder selection...............................................10

Article 18. Open bidding..................................................10Article 19. Limited bidding..............................................11Article 20. Direct appointment........................................11Article 21. Repeat order..................................................12

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Article 22. Shopping in procurement of goods................12Article 23. Force account.................................................12Article 24. Bidder selection in special cases....................12

Section 2............................................................................12General regulations on bidding..........................................12

Article 25. Conditions for issuing bidding documents......12Article 26. Procedures of bidding....................................13Article 27. Bid security....................................................13Article 28. Principles for bid evaluation..........................14Article 29. Methods of bid evaluation..............................14Article 30. E-procurement...............................................15Article 31. Regulations on time-limits in procurement....15

Section 3............................................................................15Bidding process..................................................................15

Article 32. Preparation for bidding..................................15Article 33. Organising the bidding...................................16Article 34. Clarifications to the bidding documents.........17Article 35. Bid evaluation process...................................17Article 36. Clarifications to bids.......................................17Article 37. Considerations for the successful bidder in consulting services package...........................................18Article 38. Considerations for the successful bidders in goods, civil works or EPC package..................................18Article 39. Submission and appraisal of the bidder selection result................................................................18Article 40. Approval of the bidder selection results.........18Article 41. Notification of the bidder selection results.....19Article 42. Finalisation and signature of the contract......19

Section 4............................................................................19Cancellation of bidding and rejection of bids.....................19

Article 43. Cancellation of bidding..................................19Article 44. Financial responsibilities when a bidding is cancelled.........................................................................20Article 45. Rejection of bids.............................................20

Chapter III.......................................................................................................20The Contract....................................................................................................20

Article 46. Principles for preparation of contract.............20Article 47. Contents of contract......................................20Article 48. Forms of contract...........................................21Article 49. Lump-sum contract form................................21Article 50. Unit price contract form.................................21Article 51. Time-based contract form..............................21Article 52. Percentage-based contract form....................21

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Article 53. Multiple forms of contract in a single contract........................................................................................22Article 54. Signing the contract.......................................22Article 55. Performance security.....................................22Article 56. Warranty........................................................22Article 57. Adjustments to the contract...........................22Article 58. Contract payment..........................................23Article 59. Supervision of performance, acceptance and close-out of contract.......................................................23

Chapter IV.......................................................................................................24Rights and duties of the parties in procurement..............................................24

Article 60. Responsibilities of Competent Person............24Article 61. Rights and duties of the Investment Owner...24Article 62. Rights and duties of the Procuring Entity.......25Article 63. Rights and duties of the Procurement Specialist Team...............................................................................25Article 64. Rights and duties of bidders..........................25Article 65. Rights and duties of the appraisal body, organisation....................................................................26

Chapter V........................................................................................................26Administration of procurement activities........................................................26

Article 66. Contents of state administration of procurement...................................................................26Article 67. Responsibilities and powers of the Government and the Prime Minister....................................................26Article 68. Responsibilities and powers of the Ministry of Planning and Investment.................................................27Article 69. Responsibilities and powers of Ministries, Ministerial-level agencies and People’s Committees at different levels................................................................27Article 70. Settling exceptional procurement cases........28Article 71. Inspection in procurement.............................28Article 72. Settlement of procurement complaints..........28Article 73. Process of settlement of procurement complaints.......................................................................29Article 74. Petitions and denunciations in procurement..29Article 75. Dealing with violations of the Law on Procurement....................................................................30

Chapter VI.......................................................................................................30Implementing Provisions.................................................................................30

Article 76. Guidelines for implementation.......................30Article 77. Effectiveness..................................................30

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National Assembly

Law No.61 /2005/QH11

Socialist Republic of VietnamIndependence - Freedom - Happiness

THE NATIONAL ASSEMBLYof the Socialist Republic of Vietnam

Legislature XI, 8th Session

Law on Procurement

Pursuant to the 1992 Constitution of the Socialist Republic of Vietnam as amended by Resolution 51/2001/QH10 passed by Legislature X of the National Assembly at its 10 th

session on 25 December 2001;

This Law regulates procurement.

Chapter IGENERAL PROVISIONS

Article 1. Scope of application

This Law regulates procurement activities to select bidders for the provision of consulting services, goods, and civil works for packages of the following projects:

1. Projects using State funds of 30% or more, for the purposes of development investment, comprising:

a) Investment projects for new construction, upgrading or expansion of already invested projects;

b) Investment projects for the procurement of tangible assets including equipment and machines without installation;

c) Planning projects for regional development, economic-branch development, and urban and rural construction;

d) Projects for scientific research, technology development, and technical assistance projects;

dd) Others for purposes of development investment.

2. Projects using State funds for procurements to maintain the regular operations of State agencies, political organisations, politico-social organisations, politico-socio-professional organisations, social organisations, socio-professional organisations, or units of the national

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armed forces.

3. Projects using State funds for procurements of assets for the major reconstruction or repair of invested equipment, production lines, civil works, and factories of State-owned enterprises.

Article 2. Applicable entities

1. Domestic and foreign organisations and individuals who participate in procurement activities of packages of the projects designated in Article 1 of this Law.

2. Organisations and individuals that are otherwise involved in procurement activities of packages of the projects designated in Article 1 of this Law.

3. Organisations and individuals administering projects that are outside the scope of application of the Law, who choose to adopt the Law.

Article 3. Application of the Law on Procurement, related legislations, international treaties, and other international agreements

1. Procurement activities shall be in accordance with this Law and other related legislations.

2. When other laws regulate special aspects of procurement, the stipulations of those laws shall apply.

3. For projects using Official Development Assistance (ODA) funds, procurement shall be in accordance with the international treaties to which the Socialist Republic of Vietnam is a party or other international agreements which authorised organisations or agencies of the Socialist Republic of Vietnam have signed.

Article 4. Interpretation of Terms

Terms in this Law shall be construed as follows:

1. State funds includes the State budget, State-guaranteed credit, State credit for development investment, development investment capital of State-owned enterprises, and other funds managed by the State.

2. Procurement is the process of selecting a bidder who is responsive to the Procuring Entity’s requirements to implement packages of the projects designated in Article 1 of this Law on the basis of competition, fairness, transparency, efficiency and economy.

3. Procurement activities include the activities of related parties in the bidder selection process.

4. Bidding process includes preparation for bidding, organisation of bidding, evaluation of bids, appraisal and approval of bidding result, announcement of award, finalisation of contract, and signature of contract.

5. National bidding is the process of selecting bidders who are responsive to the Procuring Entity’s requirements, with participation by domestic bidders only.

6. International bidding is the process of selecting bidders who are responsive to the Procuring Entity’s requirements, with participation by both foreign and domestic bidders.

7. Project means a set of proposals for implementing part or the whole of work to achieve a particular objective or requirement in a pre-defined period of time, based on specified

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sources of fund.

8. Competent Person is a person who is authorized to make decisions on project in accordance with applicable legislations. For those projects financed by State funds of State-owned enterprises of 30% or more, except for 100% State-funded projects, the Competent Person is the Board of Directors or the authorised representatives of the stakeholders.

9. Investment Owner is the owner of the funds, or who is authorised to represent the funds owner, or a borrower who directly manages and administers the projects designated in paragraph 7 of this Article.

10. Procuring Entity means the Investment Owner or a professional organisation with sufficient capacity and experience to be used by the Investment Owner to organize a procurement in accordance with the legislations on procurement.

11. Bidder is an organisation or individual eligible in accordance with Article 7 or Article 8 of this Law.

12. Principal bidder is a bidder who takes responsibility for participating in a procurement, signing the bid, and signing and performing the contract if selected (hereinafter referred to as the bidder participating in the procurement). A bidder that bids by itself is referred to as an independent bidder. A bidder who associates with one or more other bidders to submit one bid procurement is referred to as a joint venture.

13. Consultant bidder is a bidder who participates in the procurement of products of consulting services that meet the knowledge and professional experience requirements set forth in paragraph 34 of this Article.

14. Supplier bidder is a bidder who participates in the procurement of goods as defined in paragraph 35 of this Article.

15. Contractor bidder is a bidder who participates in the procurement of civil works as defined in paragraph 36 of this Article.

16. EPC bidder is a bidder who participates in the procurement of an EPC package as defined in paragraph 21 of this Article.

17. Subcontractor is a bidder who performs part of a procurement package under an agreement or contract signed with a principal bidder. A subcontractor is not responsible for participating in the procurement.

18. Domestic bidder is a bidder which is established and operates in accordance with Vietnamese laws.

19. Foreign bidder is a bidder which is established and operates in accordance with the laws of the country of its foreign nationality.

20. Procurement package is a part of a project, or in special cases the entire project; it may include procurement of similar items for different projects or one-time procurement quantity of items using recurrent expenditures.

21. EPC package is a procurement package that covers all tasks of engineering, procurement of equipment, materials and civil works.

22. Prequalification documents are all the documents that prescribe qualification and experience requirements for bidders, providing the legal basis for the Procuring Entity to select the list of bidders to be invited to bid.

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23. Prequalification application is the set of documents prepared by a bidder in accordance with the requirements of the prequalification documents.

24. Bidding documents are all the documents used for open bidding or limited bidding, including the requirements applicable to the procurement package. They serve as the legal basis for bidders to prepare their bids and for the Procuring Entity to evaluate bids; they also provide the basis for finalising and signing contracts.

25. Bid is the set of documents prepared by a bidder in accordance with requirements of the bidding documents and submitted to Procuring Entity in accordance with provisions of the bidding documents.

26. Estimated price is the value of a procurement package as specified in the procurement plan, calculated on the basis of the approved total investment, total cost estimate, or cost estimate in accordance with current legislations.

27. Bid price is the price offered by the bidder in the bid form included within its bid. In case the bidder offers letter of discount, bid price is the price after deduction of such discount.

28. Proposed winning price is the price proposed by the Procuring Entity based on the bid price submitted by the selected successful bidder after the correction of errors and adjustment of deviations from the requirements of the bidding documents.

29. Bid winning price is the price approved in the bidder selection result that forms the basis for finalising and signing the contract.

30. Cost on the same ground is the bid price offered by the bidder to implement the procurement package after the correction of errors and adjustment of deviations, plus the necessary fees of operation, maintenance, and other fees relating to the schedule, quality and origin of the goods or civil works during the whole in-use period. The cost on the same ground is used to compare and rank the bids, and is referred to as the evaluated price.

31. Contract is a document signed between the Investment Owner and the selected bidder based on agreement reached between the parties, in accordance with the decision on approval of the bidder selection result.

32. Bid security is a deposit or letter of guarantee provided by a bidder to ensure that the bidder will honour its bid within the defined period in accordance with the bidding documents.

33. Performance security is a deposit or letter of guarantee provided by a bidder to ensure that the successful bidder will perform the contract within the defined period in accordance with the bidding documents.

34. Consulting services include:

a) Consultancies for project preparation, including preparation, appraisal of planning reports, general development outlines, architectural designs, pre-feasibility studies, and feasibility studies;

b) Consultancies for project implementation, including surveying, designing, building total cost estimate, detailed estimates, preparing bidding documents, evaluating bids, supervising the construction and equipment installation; and

c) Consultancies for project management, financial arrangements, training, technology transfer, and other consulting services.

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35. Goods means machinery, equipment, fuels, materials, commodities and non-consulting services.

36. Civil works means the works related to the process of construction and installation of equipment for projects and their components, as well as major reconstruction and repairs.

37. Procurement complaint is a request by a participating bidder for review of the bidder selection results and related issues in the bidding process which the bidder believes have damaged its rights and interests.

38. National Procurement Network is a network established and administered by the State administrative body in charge of procurement, applying information technology to uniformly govern procurement information to serve procurement activities.

39. Procurement appraisal is an examination and evaluation on procurement plans, bidding documents, and bidder selection results by appraisal body, organisation. It serves as the basis for the Competent Person to consider and decide in accordance with this Law. The appraisal of bidder selection results is not a re-evaluation of the bids.

Article 5. Procurement information

1. The following procurement information shall be published in the procurement newspaper and on the procurement website managed by the State administrative body in charge of procurement.

a) Procurement plans;

b) Announcements for prequalification and the results thereof;

c) Bid announcements for open bidding;

d) Lists of bidders invited to participate;

dd) Bidder selection results;

e) Information on the treatment of violations of current procurement legislation;

g) Current legislations on procurement; and

h) Other related information.

2. Information stipulated in paragraph 1 of this Article, after posting in the procurement newspaper and on the procurement website, may also be published in other mass media to facilitate the access of interested organisations and individuals.

The Government will provide detailed guidelines on procurement information.

Article 6. Procurement plan

1. Procurement plan shall be approved in writing by a Competent Person following the investment decision, or concurrently with the investment decision when conditions are suitable, to serve as the legal basis for the Investment Owner to select bidders, with the exception of procurement packages that must precede the investment decision. The Competent Person is responsible for his/her decision before the law.

2. A procurement plan shall cover the entire project; in cases in which a procurement plan for an entire project is not yet possible and extremely necessary, a procurement plan may be prepared for a number of packages that have to be done first.

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3. A procurement plan shall specify the number and contents of the procurement packages. Content of each procurement package includes:

(a) name of the procurement package;

(b) estimated price;

(c) funding sources;

(d) method and procedure of procurement;

(dd) period of time for bidder selection;

(e) form of contract; and

(g) period of time for contract performance.

4. Procurement packaging shall be based on the technical nature and strict sequencing of the project, and should ensure appropriate size, compatibility and uniformity. For each package, there shall be a single set of bidding documents and one-time bidding process. Each package shall be awarded as a single contract unless it is composed of separate parts that can be implemented through a number of contracts.

Article 7. Eligibility of organisation as bidder

An organisational bidder is eligible if it meets in full the following conditions:

1. Possesses, in the case of a domestic bidder, a certificate of business registration, a certificate of investment in accordance with applicable laws or, for organisation without the certificate of business registration, a decision on establishment, or, in the case of a foreign bidder, registration to operate issued by an authority of the country of the bidder’s nationality;

2. Manages its finances independently; and

3. Is not subject to a competent body’s formal determination of non-transparent financial status, bankruptcy, or insolvency, and not being in the process of dissolution.

Article 8. Eligibility of individual as bidder

An individual bidder is eligible if it meets in full the following conditions:

1. Has adequate civil conduct ability in accordance with the law of the country of the bidder’s nationality;

2. Possesses lawful registration to operate or a professional certificate issued by the competent agency; and

3. Is not currently subject to criminal proceedings.

Article 9. Requirements for the Procuring Entity and Procurement Specialist Team

1. An individual of the Procuring Entity shall meet the following requirements:

a) Is knowledgeable regarding the legislations on procurement;

b) Is knowledgeable in project management;

c) Possesses appropriate expertise matching the requirements of the procurement package such as technology, finance, commerce, administration, and law; and

d) Is sufficiently fluent in foreign language skills to meet the requirements of packages involving the selection of bidders through international bidding and packages funded by

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ODA.

2. The nature and complexity of a procurement package shall determine the composition of the procurement specialist team, which shall include experts in technology, finance, commerce, administration, law, and other fields. Members of the procurement specialist team shall meet the following conditions:

a) Certificate of attendance at a procurement training course;

b) Professional expertise relating to the package;

c) Good knowledge of the corresponding specific contents of the package; and

d) At least 3 years of working experience in the fields relating to the package’s economic and technical issues.

Member of procurement specialist team is not necessarily individual of the Procuring Entity and vice versa.

3. If the Investment Owner has the necessary human resources to meet the conditions listed in paragraph 1 of this Article, it shall act as the Procuring Entity. If not, or if its human resources do not meet such conditions, the Investment Owner may select an appropriate consulting organisation or a professional procuring agency, in accordance with this Law, which has sufficient capacity and experience to act as Procuring Entity on its behalf. In all cases the Investment Owner remains responsible for the bidder selection process and signs the contract with the selected bidder after finalisation.

Article 10. Conditions for participation in a bidding

A bidder participating in bidding for a package shall meet the following conditions:

1. Be eligible in accordance with Article 7 or 8 of this Law;

2. Submit only one bid per procurement package as either an independent bidder or a joint venture. In the case of a joint venture, there shall be a written agreement among the parties clearly stating the leader of that joint-venture, the common responsibilities and individual responsibilities of each party for the tasks under the package;

3. Comply with the requirements in the Procuring Entity’s invitation for bids or letter of invitation for bids; and

4. Ensure competition as stipulated in Article 11 of this Law.

Article 11. Ensuring competition in procurement

1. A bidder who participates in bidding for procurement packages of the projects designated in Article 1 of this Law shall comply with the following requirements relating to competition:

a) A consultant bidder who prepares a feasibility study shall not participate in the bidding for consulting services to prepare technical design of the project, a consultant bidder who has participated in the project’s technical design shall not be allowed to participate in subsequent stages; with the exception of EPC packages;

b) A bidder who participates in bidding shall be institutionally, financially independent and not subject to the same managing body with the consultant preparing the bidding documents and evaluating bids;

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c) A consultant bidder supervising the performance of the contract shall be institutionally, financial independent and not subject to the same managing body with the bidder implementing the contract; and

d) Bidders participating in bidding of procurement packages of a project shall be institutionally, financially independent and not subject to the same managing body with the project’s Investment Owner.

2. The requirements in paragraph 1 of this Article shall be implemented no later than 3 years after this Law comes into effect, based on the plan set out by the Government.

The Government will provide detailed guidelines on ensuring competition in procurement.

Article 12. Prohibited acts in procurement

1. Giving, offering, receiving, or requesting any object of value by an individual or organisation involved in the process of bidder selection or contract implementation, which results in dishonest or non-impartial behaviour in making a decision about the successful bidder, in signing or implementing a contract;

2. Exertion of personal influence to affect or intervene in or intentionally make wrong or dishonest report, and thereby distort the bidder selection result or the signing or implementing of the contract;

3. Collusion between the Procuring Entity and bidders, or among the state administrative body, the Procuring Entity, and the bidders, to alter the bids, collude with the appraisal body or the Inspectorate, thereby affecting the collective or national interest;

4. Participation by an organisation or individual in the evaluation of bids and the appraisal of the bidder selection results for the same procurement package;

5. Designation of a specific brand name or origin of supplies in bidding documents for goods, civil works, or EPC packages;

6. Participation by a Procuring Entity as a bidder in its own procurement package;

7. Splitting of a project into procurement packages contrary to the requirements of paragraph 4 of Article 6 of this Law;

8. Participation by a bidder in goods or civil works packages other than EPC packages for which it has provided consulting services;

9. Leakage of the following types of procurement details and information:

a) Contents of the bidding documents prior to the stipulated issuance date;

b) Contents of the bids, handbooks, minutes of bid evaluation sessions, or expert opinions and comments on the bids provided by consultants prior to publication of the bidder selection results;

c) Requests for clarification of bids made by the Procuring Entity and the responses thereto made by bidders during the bid evaluation process prior to publication of the bidder selection results;

d) Reports by the Procurement Specialist Team, the Procuring Entity, consultant, or professional agencies related to the process of bidding, bid evaluation, and appraisal prior to publication of the bidder selection results;

dd) Bidder selection results prior to the required time for publication; and

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e) Other bidding-related documents marked as ‘Confidential’ pursuant to the legislations on confidentiality;

10. Arranging a situation in which an individual’s natural father, mother, father or mother in law, or spouse, natural child or children, adopted child or children, son or daughter in law, or natural brother(s) or sister(s) participate in a procurement where the individual himself/herself serves as the Procuring Entity or a member of the Procurement Specialist Team, the appraisal team for the bidder selection result, or a person who has the right to approve the bidder selection result;

11. Contravening the regulations on funds management or impeding disbursement, payment, or settlement in accordance with the signed contract between the Investment Owner and bidder;

12. Arrangement or collusion between two or more bidders so that one may win an award; between a bidder performing a contract and the consultant supervising its performance; or between a bidder performing a contract and an organisation or agency assigned to take over the result of contract performance;

13. Service by an individual as the authorised representative of a bidder participating in a procurement package of a project administered by an agency or organisation that the individual previously worked for, as long as the interval since the individual’s departure from such agency or organisation is less than 1 year;

14. Permission by a bidder for other bidders to use its legal status to participate in a procurement or transfer contract performance by a bidder, after winning a contract, to other bidders;

15. Abuse by a bidder of a bidding complaint to impede the bidding process or contract signing, or to restrict the participation of other bidders;

16. Application of a bidder selection method other than open bidding when conditions are not suitable pursuant to Articles 19 - 24 of this Law; or

17. Organisation of bidding when no funding source for the procurement package has been specified, leading to the insolvency of the bidders.

Article 13. International bidding

1. International bidding shall be carried out in the following cases:

a) A procurement package under an ODA-funded project when specifically required by the donor;

b) A procurement package for goods that have yet been produced domestically; or

c) A procurement package for which domestic bidders are incapable of meeting the requirements of the bidding documents or for which national bidding has been conducted with no successful bidder.

2. A successful foreign bidder who fails to implement the volume and value committed for Vietnamese joint venture members or subcontractors (if any) stated in its bid shall be rejected.

3. A foreign bidder who is successfully selected to implement a procurement package in Vietnam shall comply with the regulations on managing foreign contractors stipulated by the Vietnamese Government.

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Article 14. Preferences in international bidding

Subjects eligible for preferences in international bidding include:

1. A bidder who is established and operates in Vietnam in accordance with the Law on Enterprises and the Law on Investment;

2. A joint venture a member of which is a bidder as described in paragraph 1 of this Article and assumes responsibility for work valued at over 50% of a procurement package for consulting services, civil works, or EPC; or

3. A bidder who participates in a procurement package for goods which the domestic production represents 30% of the cost or more.

The Government will provide detailed guidelines on preferences in international bidding.

Article 15. Currencies of bids

1. The currency for bidding shall be specified in the bidding documents in accordance with the principle of one currency for one concrete volume.

2. In the process of bid evaluation, conversion to a common currency for comparison shall be effected using the exchange rates of Vietnamese dong and foreign currency as regulated in the bidding documents.

3. Costs incurred domestically shall be quoted in Vietnamese dong.

Article 16. Language of bids

The language to be used in the bidding documents, bids and other documents exchanged between the Procuring Entity and the bidders shall be Vietnamese in national bidding and Vietnamese, English in international bidding.

Article 17. Costs of bidding

1. The costs of bid preparation and participation shall be borne by the bidders.

2. Costs pertaining to the selection process shall be included in the total investment or total cost estimate of a project.

3. The bidding documents shall be sold to the bidders.

The Government shall provide detailed regulations on bidding costs.

Chapter IIBidder selection

Section 1Methods of bidder selection

Article 18. Open bidding

1. Bidders to implement procurement packages of the types of projects described in Article 1 of this Law shall be selected by open bidding, except under the special circumstances stated in Articles from 19 to 24 of this Law.

2. Open bidding shall mean that there is no restriction on the number of bidders to participate. Before issuing the bidding documents, the Procuring Entity shall provide bid

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announcement in accordance with Article 5 of this Law so that bidders may obtain information for participation. The Procuring Entity shall provide the bidding documents to bidders who wish to participate. The bidding documents shall contain no conditions that restrict the participation of bidders or favour certain bidder(s) over others, causing unfair competition.

Article 19. Limited bidding

1. Limited bidding shall be applied only in the following cases:

a) At request of the foreign donor whose funds are being used for the procurement package;

b) The highly technical or particularly technical or experimental or research packages that few bidders can satisfy.

2. When conducting limited bidding, at least 5 bidders considered qualified and capable of participating shall be invited; if there are less than 5, the Investment Owner shall report the matter to the Competent Person for consideration and decision whether to continue with limited bidding or switch to another form.

Article 20. Direct appointment

1. Direct appointment shall be applied only in the following cases:

a) Force majeure due to natural calamities and enemy-inflicted destruction, problems that need to be fixed immediately, in which cases the Investment Owner or the agency in charge of the affected construction or asset may appoint a bidder for implementation, provided that no more than 15 days after the appointment, the Investment Owner or agency, as applicable, and the appointed bidder shall follow the required procedures for direct appointment;

b) Procurement packages in accordance with the requirements of the foreign donor;

c) Procurement packages involving national secrets; urgent projects for national interests, energy balance or security, as designated by the Prime Minister when deemed to be necessary;

d) Procurement packages for the procurement of materials and equipment to restore, maintain, or expand the capacity of machinery, production lines of particular techniques previously adopted from a supplier that cannot be switched to other suppliers due to the need for compatibility of the technique or the machinery; or

dd) Procurement package valued at less than VND 500 million for consulting services, VND 1 billion for goods, or civil works relating to investment development projects, or less than VND 100 million for goods packages in connection with projects or cost estimates using recurrent expenditure. Nevertheless, bidding shall be carried out if it is deemed necessary to do so.

2. Direct appointment shall ensure that the capability and experience of the selected bidder are first determined to meet the requirements of the procurement package, and shall follow the direct appointment procedures stipulated by the Government.

3. Before conducting direct appointment in accordance with subparagraphs b, c, d, or dd of paragraph 1 of this Article, a cost estimate for the procurement package must be approved in accordance with applicable legislations.

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Article 21. Repeat order

1. Repeat order shall only be applied when a contract for a similar procurement package was signed within the past 6 months.

2. In repeat order, a bidder who was previously selected through bidding is invited to implement a procurement package of similar content.

3. The unit price for items comprising a procurement package to which repeat order is applied shall not exceed the unit price for corresponding items of the similar package covered by the previously signed contract.

4. Repeat order may be applied for implementation of similar packages belonging to the same project or to other projects.

Article 22. Shopping in procurement of goods

1. Shopping shall be applied in cases meeting both of the following conditions:

a) The estimated price of the procurement package is less than VND 2 billion; and

b) The package is for the procurement of common supplies that are readily available on the market with standardised and equal technical features.

2. When conducting shopping, the request for quotations shall be sent to the bidders. The bidders will send the quotation to the Procuring Entity directly, by fax or post. For each procurement package, there shall be at least 3 quotations from 3 different bidders.

Article 23. Force account

1. Force account shall be applied in cases in which the Investment Owner is sufficiently capable and experienced to implement the package of the project under his/her own management and use.

2. When force account is applied, the estimated cost for the procurement package must have been approved in accordance with applicable legislations. The supervising unit shall be institutionally and financially independent from the Investment Owner.

Article 24. Bidder selection in special cases

In cases in which there are specific requirements that cannot apply the methods of bidder selection stipulated in Articles from 18 to 23 of this Law, the Investment Owner shall prepare a proposal for bidder selection, ensuring competition and efficiency and economy, and shall submit it to the Prime Minister for consideration and approval.

Section 2General regulations on bidding

Article 25. Conditions for issuing bidding documents

Bidding documents shall be issued only if the following conditions are met:

1. The procurement plan has been approved;

2. The bidding documents have been approved; and

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3. The bid announcement or list of bidders invited to participate has been published in accordance with Article 5 of this Law.

Article 26. Procedures of bidding

1. Single-envelope bidding shall be applied in open and limited bidding for the procurement of goods, civil works and EPC packages. The bidder submits a bid that includes the technical and financial proposals in accordance with bidding documents. There is only one opening of bids.

2. Two-envelope bidding is applied in open and limited bidding for the procurement of consulting services. The bidder shall submit the technical and financial proposals separately in accordance with the requirements of the bidding documents. There shall be two separate openings of bids; in which, technical proposals shall be opened first for evaluation, followed by the opening of the financial proposals accompanying all those technical proposals that have been evaluated as satisfactory for combined evaluation. In the case of a procurement package with a high technical level, the financial envelope of the bidder with the highest technical score shall be opened for consideration and negotiation.

3. Two-stage bidding is applied in open and limited bidding for goods, works, or EPC packages with novel, complex, and diversified technical requirements. The sequence is as follows:

a) In stage 1, based on the bidding documents for stage 1, bidders shall submit technical proposal and un-priced financial proposal. Discussions to be held with each bidder shall form the basis for determining the bidding documents for stage 2;

b) In stage 2, based on the bidding documents for stage 2, the bidders who participated in Stage 1 shall be invited to submit bids for stage 2 comprised of a technical proposal and a financial proposal including bid price, along with the bid security.

Article 27. Bid security

1. When participating in goods, civil works, or EPC packages, bidders shall provide a bid security before deadline for bid submission. In two-stage bidding, the bidder shall provide the bid security in Stage 2.

2. The amount of the bid security shall be stated in the bidding documents at a level specified according to the features of each procurement package, but it shall not exceed 3% of the approved estimated price for the package.

3. The validity period of the bid security shall be the validity period of the bid plus 30 days.

4. When it is necessary to extend the validity of bids, the Procuring Entity shall request the bidders to extend the validity period of the bid security correspondingly; in such cases the bidder shall not alter the contents of the submitted bid including the bid price and shall extend the validity period of the bid security correspondingly. If the bidder refuses to extend the validity period of the bid, the Procuring Entity shall return the bid security.

5. The bid security of unsuccessful bidders shall be returned within 30 days after the date of announcement of the bidder selection result. As for successful bidders, the bid security shall be returned following submission of the contract performance security in accordance with Article 55 of this Law.

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6. A bidder’s bid security shall not be returned in the following cases:

a) Withdrawal of the bid after the deadline for bid submission while the bid is still valid;

b) Within 30 days after receiving the notice of award from the Procuring Entity, failure to proceed with or finalise the contract, or refusal to sign the finalised contract without valid reasons; or

c) Failure to provide the performance security as specified under Article 55 of this Law.

Article 28. Principles for bid evaluation

1. Bid evaluation shall be based on the evaluation criteria and other requirements in the bidding documents to ensure selection of an adequately qualified and experienced bidder with a feasible solution for the procurement package.

2. In addition to paragraph 1 of this Article, bid evaluation shall be based on the bid as submitted and clarifications from the bidder.

3. The sequence of bid evaluation shall be followed as stipulated in Article 35 of this Law.

Article 29. Methods of bid evaluation

1. The method of bid evaluation shall be reflected in the evaluation criteria stated in bidding documents. Bid evaluation criteria include criteria relating to qualifications and experience when prequalification is not applied; technical criteria; combined criteria for consulting services packages or contents to determine cost on the same ground of technical, financial and commercial aspects for comparing and ranking bids for goods, civil works and EPC packages.

2. For consulting services packages, the merit point method is used for technical evaluation. When preparing the evaluation criteria, the minimum technical requirements shall be defined but shall not be regulated less than 70% of the total technical points; in the case of high-level technical requirements, minimum technical requirements shall not be regulated less than 80%. The evaluation criteria for comparison and ranking of bids shall be prepared in accordance with the following:

a) For normal consulting services with no high-level technical requirements, the combined merit point score shall be used to rank the bids, following the principle that the technical score shall not be less than 70% of the total combined score. The bid with the highest combined score shall be ranked the first; and

b) For consulting services with high-level technical requirements, the bidder with the highest technical score shall be ranked the first for financial consideration.

3. For goods, civil works or EPC packages: either the merit point method or "pass”, “fail" criteria shall be used for technical evaluation. When preparing the technical evaluation criteria in the merit point system, the minimum technical requirements shall be defined but shall not be regulated less than 70% of the technical points; in the case of high-level technical requirements, the minimum technical requirements shall not be regulated less than 80%. For the bids evaluated technically responsive, then the basis for comparison and ranking will be cost on the same technical, financial, and commercial ground. The bid evaluated the lowest cost on the same ground shall be ranked the first.

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The Government will provide detailed guidelines on bid evaluation method.

Article 30. E-procurement

E-procurement shall be conducted via the Internet. Bid announcement, issuance of bidding documents, bid submission, bid evaluation and notification of the bidder selection results shall be done on the National Procurement Network built and managed by the State administrative body in charge of procurement.

The Government shall provide detailed regulations on application of e-procurement.

Article 31. Regulations on time-limits in procurement

Based on features of each procurement package, Competent Person decides in details on time-limits in procurement in accordance with the followings:

1. The maximum duration allowed for prequalification is 30 days for national bidding and 45 days for international bidding. This period shall be counted from the issuance of pre-qualification documents to the date of approval of the prequalification results.

2. The minimum duration allowed for advertising an invitation for bid shall be 10 days before issuance of the bidding documents.

3. The minimum duration allowed for bid preparation is 15 days for national bidding and 30 days for international bidding. This period shall be counted from the issuance of the bidding documents to the deadline for bid submission.

4. The maximum period of bid validity shall be 180 days from the deadline for bid submission. When necessary, a bidder may be requested to extend bid validity, provided that in no case shall such extension exceed 30 days.

5. The maximum duration allowed for bid evaluation shall be 45 days for national bidding and 60 days for international bidding. This period shall be counted from the bid opening to the submission of the bid evaluation report by the Investment Owner to the Competent Person for consideration and decision.

6. The maximum appraisal duration for each of the following contents is 20 days: the procurement plan, the bidding documents, and the bidder selection result. For procurement packages that require approval by the Prime Minister, the maximum appraisal duration for procurement plan, bidder selection result shall be 30 days.

Section 3Bidding process

Article 32. Preparation for bidding

1. Prequalification

Prequalification shall be implemented in accordance with the following:

a) Prequalification of bidders shall be conducted prior to bidding with a view to selecting capable and experienced bidders in accordance with package’s requirements to participate in the bidding. Prequalification is mandatory for goods and EPC packages of estimated price of VND 300 billion or more, and for civil works packages of estimated price of VND 200 billion or more.

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b) The prequalification process includes preparation of the prequalification documents; announcement for prequalification; receiving and handling prequalification applications; evaluation of prequalification applications; submission and approval of prequalification results; and notification of prequalification results.

c) The criteria for evaluation of the prequalification applications shall be specified in the prequalification documents in accordance with the standard prequalification documents prescribed by the Government, which is comprised of criteria relating to technical capacity, financial capacity, and experience.

2. Preparation of bidding documents

The bidding documents shall be prepared in accordance with the standard bidding documents prescribed by the Government, including:

a) Technical requirements:

For consulting services packages, there shall include requirements regarding the knowledge and professional experience of the expert (terms of reference);

For goods packages, there shall include requirements relating to scope of supply, quantity and quality of the goods to be determined through specifications, technical parameters, technical standards, manufacturing standards, warranty periods, environmental requirements and other necessary requirements; and

For civil works packages, there shall include requirements in accordance with technical designing documents accompanying bills of quantity, technical instructions, and other necessary requirements;

b) Financial and commercial requirements, including the costs for implementing the package, bid price to be offered and price list in details, delivery terms, method and terms of payment, funding sources, bid currency and general and specific conditions of the contract; and

c) Evaluation criteria, important requirements, preferences (if any), taxes, insurance and other requirements.

3. Invitation for bids

Invitation for bids shall be implemented as follows:

a) By an announcement for bids in open bidding; or

b) By a letter of invitation for bids in limited bidding or open bidding with prequalification.

Article 33. Organising the bidding

1. Issuing the bidding documents

The bidding documents shall be issued to the bidders in open bidding, to the listed bidders in the case of limited bidding, or to the pre-qualified bidders.

If the bidding documents need to be amended after issuance, bidders who have received the bidding documents shall be informed at least 10 days prior to the deadline for bid submission.

2. Receiving and handling the bids

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Bids submitted in accordance with the requirements of the bidding documents shall be received and handled as “confidential” documents by the Procuring Entity.

3. Bid opening

Bids shall be opened publicly immediately after the deadline for bid submission for all the bids submitted in accordance with the requirements of the bidding documents.

The key information of each bid shall be announced at the opening, recorded in the minutes and certified by the signature of representatives of the Procuring Entity, bidders and relevant agencies in attendance.

Article 34. Clarifications to the bidding documents

1. A bidder who requires clarification of the bidding documents shall submit a written request to the Procuring Entity for consideration and action.

2. The Procuring Entity shall provide clarifications to bidding document in one or both of the following forms:

a) Send written clarifications to bidders who received the bidding documents; and/or

b) If necessary, organise a pre-bid meeting to discuss the contents of the bidding documents that are unclear to bidders. The issues discussed shall be recorded in writing and sent to the bidders by the Procuring Entity.

3. Written clarifications to the bidding documents pursuant to paragraph 2 of this Article shall form an integral part of the bidding documents.

Article 35. Bid evaluation process

1. A preliminary evaluation shall be conducted in order to reject bids that are invalid, unconformable to important requirements of the bidding documents.

2. A detailed evaluation shall be carried out as follows:

a) A technical evaluation to identify the bids that are substantially responsive to the bidding documents; and

b) For goods, civil works or EPC packages, the cost on the same technical, financial, and commercial ground shall be determined for the comparison and ranking of the bids. For consulting services packages, a combined evaluation shall be conducted for the comparison and ranking of the bids; with respect to consulting services packages of high-level technical requirement, the financial proposal of the bidder with the highest technical ranking shall be considered.

Article 36. Clarifications to bids

1. Bidders shall not be allowed to modify or supplement their bids after the deadline for bid submission.

2. Following the bid opening, bidders shall be responsible for providing clarifications to bids upon request by the Procuring Entity. Clarification shall be communicated either directly or indirectly, but shall not alter substantially the contents of the submitted bid or the bid price. All clarifications shall be in writing and shall be retained by the Procuring Entity as part of the bid.

3. Clarifications to bids shall only be made between the Procuring Entity and the bidder 17

of the bid in question.

Article 37. Considerations for the successful bidder in consulting services package

A consultant bidder shall be considered and proposed as the successful bidder under the following conditions:

1. Has an eligible bid;

2. Has a technical proposal including qualification, experience, methodology and personnel evaluated as meeting the requirements;

3. Has the highest combined technical and financial score, or, in the case of a procurement package of high-level technical requirement, has the highest technical score; and

4. Has a proposed winning price that does not exceed the approved estimated price of the procurement package.

Article 38. Considerations for the successful bidders in goods, civil works or EPC package

A bidder for a goods, civil works or EPC package shall be considered and proposed as the successful bidder under the following conditions:

1. Has an eligible bid;

2. Is evaluated as being responsive in terms of capacity and experience requirements;

3. Has a technical proposal evaluated as meeting the requirements in the merit point system or according to the "pass”, “fail" criteria, as applicable;

4. Has the lowest cost on the same ground; and

5. Has a proposed winning price that does not exceed the approved estimated price of the procurement package.

Article 39. Submission and appraisal of the bidder selection result

1. The Procuring Entity shall prepare a report on the bidder selection results so that the Investment Owner shall submit it to the Competent Person for consideration and decision, and send it to the appraisal body, organisation.

2. The appraisal body, organisation shall prepare an appraisal report based on the Investment Owner’s report and submit it to the Competent Person for consideration and decision.

Article 40. Approval of the bidder selection results

1. The Competent Person shall consider and approve the bidder selection results based on the report on the bidder selection results and the appraisal report on the bidder selection results.

2. If there is successful bidder, the content of the approval document shall include:

a) The name of the successful bidder;

b) The bid winning price;

c) The form of contract;

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d) The contract performance period; and

dd) Other matters that need attention (if any).

3. If there is no successful bidder, the approval document shall contain a clear statement that there is no successful bidder and the bidding is cancelled to start another bidder selection process in accordance with this Law.

Article 41. Notification of the bidder selection results

1. Notification of the bidder selection results shall be provided right after the Competent Person’s decision approving them.

2. The notice of the bidder selection result should not contain an explanation to the unsuccessful bidders.

Article 42. Finalisation and signature of the contract

1. Finalisation of the contract for signature with the successful bidder shall be based on the following:

a) An approved bidder selection result;

b) A form of contract filled in with adequate information regarding the procurement package;

c) The requirements in the bidding documents;

d) The contents of the bids and clarifications thereto (if any) by the successful bidder; and

dd) Any necessary finalisation between the Procuring Entity and the successful bidder.

2. The results of contract finalisation shall form the basis for signature of the contract by the Procuring Entity and the selected bidder.

3. If the finalisation fails, the Investment Owner shall report to the Competent Person for consideration of selection of the next-ranked bidder. If the next-ranked bidder also fails to meet the requirements, this is to be reported to the Competent Person for consideration and decision.

Section 4Cancellation of bidding and rejection of bids

Article 43. Cancellation of bidding

1. Bidding shall be cancelled in any of the following circumstances:

a) A change in the objective, scope of investment stated in the bidding documents;

b) Evidence that the Procuring Entity has been colluding with bidders;

c) Failure by all bids to basically meet the requirements of the bidding documents; or

d) Evidence of collusion among all the bidders, thereby harming the Procuring Entity’s interests.

2. Based on the decision by the Competent Person, the Procuring Entity shall be responsible to inform all the bidders of the cancellation.

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Article 44. Financial responsibilities when a bidding is cancelled

1. If the cancellation occurs through no fault of the bidders, the Procuring Entity shall be liable to compensate the bidders for the costs of bid participation, on the basis of current regulations and cost norms provided by the State, except for cases in which no bidder meets the requirements.

2. If the cancellation is due to changes in the objective, scope of investment, the compensation shall be decided upon by the Competent Person and deducted from the project budget. In case of other reasons caused by the Procuring Entity, the involved individual(s) of the Procuring Entity shall bear the responsibility for payment.

3. In cases in which cancellation is due to the Procuring Entity’s collusion with one or more bidders, the involved individual(s) shall bear the responsibility to compensate the other bidders.

Article 45. Rejection of bids

A bid shall be rejected under the following circumstances:

1. It fails to meet the important requirements stated in the bidding documents;

2. It fails to meet the technical requirements based on the evaluation criteria;

3. It contains arithmetical errors with a total absolute value exceeding 10% of the bid price, except for consulting services packages, or a bidder does not accept correction of arithmetical errors identified by the Procuring Entity; or

4. A bid contains deviations with a total absolute value exceeding 10% of the bid price, except for consulting services packages.

Chapter IIIThe Contract

Article 46. Principles for preparation of contract

1. The contract shall comply with the regulations of this Law and other applicable legislations.

2. In the case of a joint venture, the contract with the Investment Owner shall contain the signatures of all members of the joint venture.

3. The contract price shall not exceed the bid winning price, except for the case stipulated in paragraph 4 of this Article.

4. If a need arises for a quantity of work or goods beyond the scope of the bidding documents, leading to the overrun of contract price compared to winning price, the situation shall be considered and decided upon by the Competent Person.

Article 47. Contents of contract

1. Object of the contract;

2. Quantity and volume of the contract;

3. Specifications, quality and other technical requirements;

4. Contract price;

5. Form of contract;

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6. Performance period and schedule;

7. Methods and terms of payment;

8. Conditions for delivery and acceptance;

9. Warranty for goods, civil works to be procured;

10. Rights and duties of the parties;

11. Responsibilities arising due to breaches of contract;

12. Validity of the contract; and

13. Other obligations in accordance with each form of contract.

Article 48. Forms of contract

1. Lump-sum;

2. Unit price;

3. Time-based; and

4. Percentage-based.

Article 49. Lump-sum contract form

1. The lump-sum form of contract shall be applied to tasks that can be defined clearly with regard to volume and quantity.

2. The contract price is fixed throughout contract performance. The Investment Owner makes payments to the bidder up to the point at which the bidder has completed its obligations under the contract, equal to the contract price.

Article 50. Unit price contract form

1. The unit price form of contract shall be applied to tasks for which the volume and quantity are not in sufficient conditions to be clearly defined.

2. The Investment Owner will make payments to the actual implemented volume and quantity of work based on the unit price stated in the contract or the unit price approved to be adjusted in accordance with Article 57 of this Law.

Article 51. Time-based contract form

1. The time-based form of contract shall be applied to complex research, engineering, construction supervision, training, and capacity building assignments.

2. The Investment Owner will make payments to the actual time worked by the consultants counted in months, weeks, days, or hours based on the rate specified in the contract or the rate approved to be adjusted in accordance with Article 57 of this Law.

Article 52. Percentage-based contract form

1. The percentage-based form of contract shall be applied to ordinary and simple consulting services.

2. The contract price will remain unchanged throughout contract performance. The contract price will be calculated based on the percentage of work or volume of the assignment. The Investment Owner will make payments to the contractor up to the point at

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which the contractor has completed its obligations under the contract, equal to the contract price.

Article 53. Multiple forms of contract in a single contract

If a single contract is comprised of one or more forms of contract stipulated in Articles 49, 50, 51 and 52 of this Law, the principles of payment prescribed for each form shall be applied to the corresponding portion.

Article 54. Signing the contract

1. The signing of the contract shall be based on the following documents:

a) The results of finalisation of the contract;

b) The decision on approval and notification of bidder selection results;

c) The bid of the selected bidder and clarifications thereto; and

d) The bidding documents.

2. Contract signing shall be subject to the following conditions:

a) The bid of the selected bidder must be in its validity; and

b) The financial and technical capacity of the bidder updated at the time of contract signing must be responsive to the requirements of bidding documents.

Article 55. Performance security

1. With the exception of consulting services packages and force account, the successful bidder shall provide a performance security before the contract enters into effect.

2. The amount of the performance security shall be as stated in the bidding documents, not exceeding 10% of the contract price. In cases in which there is a need to prevent high risk, the amount of the performance security shall be higher but shall not exceed 30% of the contract price and the matter must be approved by the Competent Person.

3. The validity period of the performance security shall extend until beginning of warranty obligations (if any).

4. The performance security shall not be returned if the winning bidder refuses to perform a contract that has become effective.

Article 56. Warranty

Contracts that cover the content of goods or civil works shall contain provision for a warranty. Warranty periods and amounts, as well as other terms shall be stated in the contract in accordance with applicable legislations.

The Government will provide detailed guidelines on warranty for goods and civil works in contracts.

Article 57. Adjustments to the contract

1. Adjustments to the contract shall apply solely to unit price or time-based contracts as follows:

a) When changes in the State’s policies on taxation or wages/salaries directly affect the contract price, adjustments shall be made once the policies in question have taken effect.

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b) When the volumes or quantities involved in the contract performance increase or decrease within the margin allowed in the bidding documents, and such changes are not caused by the fault of the bidder, the adjustment shall be calculated on the basis of the contract unit price.

c) When considerable changes in the State-controlled prices of contracted fuel, material, or equipment directly affect contract performance, the situation shall be reported to the Competent Person for consideration and decision.

2. Adjustments to the contract shall only be applied within the performance period of the signed contract and shall be considered and decided upon by the Competent Person. Unless otherwise approved by the Competent Person, the adjusted value of the contract shall not exceed the cost estimate, the total cost estimate, or the estimated price of the procurement package in the approved procurement plan.

3. When a need arises for reasonable additional tasks beyond the scope of the bidding documents, the Investment Owner shall discuss it with the signatory contractor in order to calculate and add the arising tasks to the contract and shall report the matter to the Competent Person for consideration and decision. If the discussion does not result in an agreement, the new task(s) shall be treated as a new procurement package for which a new bidder selection process shall be conducted in accordance with this Law.

Article 58. Contract payment

The Investment Owner shall make payments to a bidder on the basis of the contract price and the contract’s concrete provisions on payment.

Article 59. Supervision of performance, acceptance and close-out of contract

1. Contract performance shall be supervised as follows:

a) The Investment Owner shall be responsible for supervising the bidder’s contract performance.

b) Individuals assigned to supervise contract performance shall be disinterested, honest, objective, capable, experienced, knowledgeable, and qualified for the task, and shall be responsible to the Investment Owner and before the law for performance this task.

c) If a supervising consultant is irresponsible, colludes with a contractor bidder to confirm incorrect quantities or quality of construction, both the consultant and the contractor bidder shall compensate for damages and be dealt with in accordance with Article 75 of this Law and other applicable legislations.

d) Community residents will also participate in supervising procurement activities in accordance with regulations by the Government.

2. Acceptance of the contract shall be effected as follows:

a) The acceptance of the contract in whole or in part shall be conducted in accordance with the contract as signed; and

b) Individuals participating in acceptance shall be disinterested, honest, objective, capable, experienced, knowledgeable, and qualified for the task, and shall be responsible before the law for performance of this task.

3. Close-out of the contract shall be completed within 45 days of the date when the

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Investment Owner and the bidder completed performance of their contractual duties; in the case of complicated procurement packages the period may be extended but in any event shall not exceed 90 days.

Chapter IVRights and duties of the parties in procurement

Article 60. Responsibilities of Competent Person

1. Approving procurement plan;

2. Approving or delegating authority to approve bidding documents;

3. Approving or delegating authority to approve the bidder selection results;

4. Deciding on the handling of exceptional procurement cases;

5. Settling procurement complaints;

6. Dealing with violations of procurement legislation as stipulated in Article 75 of this Law and other applicable legislations; and

7. Being liable for his/her own decisions before the laws.

Article 61. Rights and duties of the Investment Owner

1. Deciding on all of the contents relating to the prequalification of bidders;

2. Approving the list of participating bidders;

3. Forming the Procurement Specialist Team or selecting a consulting organisation or a professional procurement agent in accordance with this Law to act as a procuring agency on behalf of the Investment Owner;

4. Approving the list of bidders who meet the technical requirements, as well as the ranking of bidders;

5. Approving the direct appointment result in the cases specified in subparagraphs a and dd of paragraph 1 of Article 20 of this Law;

6. Being responsible for formulating the requirements in a procurement package involving direct appointment;

7. Being responsible for the contents and signing of the contract with the selected bidder and for fulfilling the obligations in the contract signed with the bidder;

8. Being legally responsible for the bidder selection process according to the provisions of this Law;

9. Compensating damaged parties in accordance with applicable legislations if the damage is caused by his/her fault;

10. Providing information to the procurement newspaper and the procurement website;

11. Settling procurement complaints; and

12. Preserving the confidentiality of procurement-related documents in accordance with this Law.

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Article 62. Rights and duties of the Procuring Entity

1. The Procuring Entity shall have the following rights and duties:

a) Preparing and organising the bidding, and evaluating the bids in accordance with this Law;

b) Seeking bid clarifications from bidders during bid evaluation;

c) Summarising the bidder selection process and reporting to the Investment Owner on the results of prequalification and bidder selection;

d) Finalising contracts on the basis of the approved bidder selection results;

dd) Preparing the contents of the contract for the Investment Owner’s decision and signature;

e) Being honest, objective, and impartial in the bidding process;

g) Compensating damaged parties in accordance with applicable legislations if the damage is caused by his/her fault;

h) Providing information to the procurement newspaper and the procurement website;

i) Settling procurement complaints; and

k) Preserving the confidentiality of procurement-related documents in accordance with this Law.

2. If a Procuring Entity also serves as the Investment Owner, in addition to the rights and duties prescribed in paragraph 1 of this Article, Article 61 shall also apply.

Article 63. Rights and duties of the Procurement Specialist Team

1. Evaluating bids strictly against the requirements of the bidding documents and the evaluation criteria stated therein;

2. Preserving the confidentiality of procurement-related documents in accordance with this Law during the performance of their duties;

3. Reserving their own opinions;

4. Being honest, objective, and impartial in the process of bid evaluation and in reporting the evaluation results;

5. Compensating damaged parties in accordance with applicable legislations if the damage is caused by his/her fault; and

6. Performing other statutory rights and duties.

Article 64. Rights and duties of bidders

1. Participating in bidding as independent bidders or as members of a joint venture;

2. Seeking clarifications to the bidding documents from the Procuring Entity;

3. Fulfilling obligations in accordance with the contract entered into with Investment Owner and subcontractors (if any);

4. Filing procurement complaints, petitions, denunciations;25

5. Complying with the legislation on procurement;

6. Being truthful and accurate in the process of bidding and in filing procurement complaints, petitions, denunciations; and

7. Compensating damaged parties in accordance with applicable legislations if the damage is caused by his or her fault.

Article 65. Rights and duties of the appraisal body, organisation

1. Acting independently, and complying with this Law and other applicable legislations when conducting appraisals;

2. Requesting the Investment Owner and the Procuring Entity to furnish relevant documents adequately;

3. Preserving the confidentiality of procurement-related documents during appraisal;

4. Being honest, objective, and impartial when conducting appraisals;

5. Reserving his or her own ideas and being liable for his/her appraisal report; and

6. Performing other statutory rights and duties.

Chapter VAdministration of procurement activities

Article 66. Contents of state administration of procurement

1. Promulgating, disseminating, directing and organising the implementation of the legislations on procurement;

2. Training and building capacity of procurement personnel;

3. Summarising, assessing and reporting on the status of procurement implementation;

4. Administering the procurement information system nationwide, including: the procurement newspaper, the procurement website and the National Procurement Network;

5. International procurement cooperation; and

6. Overseeing, inspecting, and settling procurement complaints, petitions and denunciations and dealing with violations of the legislation on procurement in accordance with this Law and other applicable legislations.

Article 67. Responsibilities and powers of the Government and the Prime Minister

1. The Government exercises unified administration over procurement nationwide.

2. The Prime Minister exercises the following rights and powers:

a) Directing the inspection and handling of procurement complaints in accordance with this Law and the legislation on inspection;

b) Designating appraisal body, organisation to assist the Competent Person during the process of considering and issuing approval of procurement contents;

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c) Deciding on the procurement contents as stipulated in Article 60 of this Law for the investment projects conducted under National Assembly Resolutions; and

d) Exercising other rights and powers in accordance with this Law and other applicable legislations.

Article 68. Responsibilities and powers of the Ministry of Planning and Investment

1. Assuming responsibility before the Government for the state administration of procurement;

2. Appraising the procurement plans and bidder selection results of procurement packages under projects within the Prime Minister’s approval power pursuant to subparagraph c of paragraph 2 Article 67 of this Law;

3. Establishing and administering the procurement newspaper, the procurement website, and the National Procurement Network;

4. Serving as the focal point assisting the Government and the Prime Minister in international cooperation in procurement;

5. Organising training and capacity building activities for procurement personnel;

6. Summarising, assessing and reporting on procurement implementation;

7. Settling procurement complaints within the scope of its responsibilities and powers;

8. Leading and coordinating with concerned agencies in conducting oversight and inspection in connection with procurement nationwide; and

9. Carrying out other duties as assigned by the Government.

Article 69. Responsibilities and powers of Ministries, Ministerial-level agencies and People’s Committees at different levels

Within the scope of their powers and responsibilities, Ministries, Ministerial-level agencies, and People’s Committees at different levels exercise the following responsibilities and powers:

1. Exercising procurement administration;

2. Organising training and capacity building activities for procurement personnel;

3. Summarising and assessing procurement implementation;

4. Reporting on procurement activities in accordance with Government regulations;

5. Settling procurement complaint in accordance with this Law;

6. Overseeing inspecting procurement activities;

7. Dealing with violations of legislation on procurement by organisations and individuals involved in procurement activities; and

8. In cases in which a Minister, Head of a Ministerial agency, or the Chair of a People’s Committee at different levels serves as the Competent Person, he or she shall have to exercise the responsibilities stipulated in Article 60 of this Law.

Article 70. Settling exceptional procurement cases

1. The following principles shall apply to the settlement of exceptional procurement cases:

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a) Ensuring competition, fairness, transparency, efficiency and economy;

b) Taking the approved procurement plan, bidding documents and submitted bids as the basis; and

c) Decisions on the settlement of exceptional procurement cases shall be made by the Competent Person, who shall be responsible for such decisions before the law.

2. Categories of exceptional procurement cases:

a) Preparation and organisation of procurement: including adjustments to a procurement plan with respect to estimated price or other contents of the procurement package; the bidding documents; bid submission when there are late bids or too few bids; or the number of participating bidders;

b) Bid evaluation: including cases in which the bid prices exceed the estimated price, or the unit prices are abnormal;

c) Successful bidder’s proposal and contract signing: cases in which the winning price is less than 50% of the approved estimated price or estimated cost; there are two equal best evaluated bids; or the proposed contracting price exceeds the approved winning price; or

d) On the procurement procedures or process.

The Government will provide detailed guidelines on the settlement of exceptional procurement cases.

Article 71. Inspection in procurement

1. Procurement inspection shall be carried out with regard to organisations and individuals relating to procurement activities of packages under the projects designated in Article 1 of this Law.

2. Procurement inspection is a professional inspection branch in procurement. Organisation and operation of procurement inspection are conducted in accordance with the legislation on inspection.

Article 72. Settlement of procurement complaints

1. A bidder who is participating in the bidding process shall have the right to file a complaint on the bidder selection results and other issues relating to the bidding process.

2. The parties responsible for settling procurement complaints are the Procuring Entity, the Investment Owner and the Competent Person. The Competent Person shall settle bidders’ complaints regarding the bidder selection results on the basis of the report by the Consulting Council on Complaint Settlement as set forth in Article 73 of this Law.

3. The deadline for a complaint on issues relating to the bidding process other than the bidder selection results shall be counted from the occurrence of such action to the time prior to the announcement of the bidding results. The deadline for filing complaints regarding the bidder selection results is 10 days from the date of announcement of the results.

Article 73. Process of settlement of procurement complaints

1. Complaints on issues relating to bidding process shall be settled as follows:

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a) The Procuring Entity shall be responsible to settle a bidder’s procurement complaint within 5 working days of receipt of the complaint. If the Procuring Entity is unable to settle or the settlement is unsatisfactory to the bidder, the bidder shall have the right to file the complaint with the Investment Owner for consideration and settlement as stipulated in subparagraph b of this paragraph;

b) The Investment Owner shall be responsible to settle a bidder’s procurement complaint within 7 working days of receipt of the bidder’s complaint. If the Investment Owner is unable to settle or the settlement is unsatisfactory to the bidder, the bidder shall have the right to file the complaint with the Competent Person for consideration and settlement as stipulated in subparagraph c of this paragraph; and

c) The Competent Person shall be responsible to settle a bidder’s procurement complaint within 15 working days from receipt of the bidder’s complaint. If the Competent Person is unable to settle or the settlement is unsatisfactory to the bidder, the bidder shall have the right to sue in court.

2. Procurement complaints relating to the bidder selection results shall be settled as follows:

a) In accordance with subparagraph a of paragraph 1 of this Article.

b) In accordance with subparagraph b of paragraph 1 of this Article. However, if the Investment Owner is unable to settle or the settlement is unsatisfactory to the bidder, the bidder shall have the right to file the complaint with the Competent Person and Chair of the Consulting Council on Complaint Settlement as set forth in subparagraph c of this paragraph.

c) The Consulting Council on Complaint Settlement (hereinafter referred to as Consulting Council) is responsible for requesting the bidder, the Investment Owner, and other agencies involved in the procurement to provide the information, documents, and comments necessary to produce a report on the results of the review. The Consulting Council may work directly with the involved individuals as necessary to clarify the issues. The maximum duration for the Consulting Council to do its work and issue its report is 20 days from receipt of the procurement complaint. The representative of the State procurement administrative body shall be the Chair of the Consulting Council, and its members shall include representatives of the Competent Person and the relevant professional association. No later than 5 days after receipt of the Consulting Council’s report, the Competent Person shall issue a decision on the settlement of the bidder’s complaint. If the settlement is not satisfactory to the bidder, the bidder shall have the right to sue in court.

3. Bidders have the right to sue in court when they have a procurement complaint. If choosing not to go to court, then the bidder should proceed in accordance with paragraph 1 or 2 of this Article, as applicable.

The Government shall provide detailed regulations on the settlement of procurement complaints and the operation of the Consulting Council.

Article 74. Petitions and denunciations in procurement

Petitions, denunciations and the settlement to petitions, denunciations in procurement shall be implemented in accordance with the legislation on petitions and denunciations.

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Article 75. Dealing with violations of the Law on Procurement

1. Organisations and individuals who violate the legislations on procurement shall be dealt with according to one or more of the following ways:

a) Organisations or individuals who violate the Law on Procurement, but whose violations are not among the acts specifically listed under Article 12 of this Law, shall receive a warning;

b) Organisations or individuals who violate the Law on Procurement and thereby damage the interests of related parties shall be subject to monetary fines; and

c) Organisations or individuals who are involved in the acts specifically listed in Article 12 of this Law shall be debarred.

2. Individuals whose acts in violation of the Law on Procurement constitute crimes shall be dealt with in accordance with the Criminal legislation.

3. In addition to the sanctions listed in paragraphs 1 and 2 of this Article, organisations and individuals who violate the Law on Procurement shall be listed in the procurement newspaper and on the procurement website.

The Government shall provide detailed regulations on dealing with violations of the legislation on procurement.

Chapter VIImplementing Provisions

Article 76. Guidelines for implementation

The Government shall provide detailed provisions and guidelines as to enforcement of this Law.

Article 77. Effectiveness

This Law shall take effect on 1st April 2006.

This Law was ratified by the National Assembly of the Socialist Republic of Vietnam, Legislature XI, Session 8, on 29th November, 2005.

Chair of the National AssemblySigned

Nguyen Van An

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