CIRCULAR

DETAILING THE MAKING OF CONSULTANCY SERVICE BIDDING DOSSIERS

THE GOVERNMENT

Pursuant to November 29, 2005 Bidding Law No. 61/2005/QH11;

Pursuant to the June 19, 2009 Law Amending and Supplementing a Number of Articles of Laws Concerning Capital Construction Investment;

Pursuant to the Government's Decree No. 85/ 2009/ND-CP of October 15, 2009, guiding the implementation of the Bidding Law and the selection of construction contractors under the Construction Law;

Pursuant to the Government's Decree No. 116/2008/ND-CP of November 14,2008, defining the functions, tasks, powers and organizational structure of the Ministry of Planning and Investment;

The Ministry of Planning and Investment details the making of consultancy service bidding dossiers as follows:

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1. This Circular applies to organizations and individuals in charge of making bidding dossiers for consultancy service bid packages under projects regulated by the Bidding Law when applying the form of domestic or international open bidding and restricted bidding to select institutional consultancy contractors.

2. For consultancy service bid packages under ODA-funded projects, if donors agree, the model bidding dossier issued together with this Circular may be applied with modifications in accordance with bidding regulations in treaties to which the Socialist Republic of Vietnam is a contracting party or international agreements which have been signed by competent agencies or organizations of the Socialist Republic of Vietnam.

Article 2. Model consultancy service bidding dossier

The model consultancy service bidding dossier issued together with this Decision has the following principal contents:

Part One. Instructions for contractors

Chapter I. Requirements on bidding procedures

Chapter II. Bid data sheet

Chapter III. Evaluation criteria

Part Two. Technical proposal template

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Part Four. Terms of reference

Part Five. Contractual requirements

Chapter IV. General contractual terms Chapter V. Specific contractual terms Chapter VI. Model contract

When applying this model dossier, organizations and individuals that make bidding dossiers shall base themselves on the sizes and characteristics of bid packages to set requirements on the principles of fair competition, equality, transparency and economic efficiency; refrain from imposing conditions to restrict the participation of contractors or create advantages for one or several contractors, thus causing unfair competition.

In this model dossier, contents in italic are for instructive and illustrative purposes which may be specified by makers of bidding dossiers based on the size and characteristics of each bid package. If it is necessary to make changes or additions to contents printed in regular font, makers of bidding dossiers shall give written explanations and ensure compliance with the bidding law; investors shall take responsibility before law for those changes and additions.

Article 3. Organization of implementation

1. This Circular takes effect on May 1, 2010, and replaces the Planning and Investment Ministry's Decision No. 1048/2008/QH-BKH of August 11, 2008, providing the model consultancy service bidding dossier.

2. Ministries, ministerial-level agencies, government-attached agencies, other central agencies, People's Committees at all levels and concerned organizations and individuals shall implement this Circular.

Ministries, ministerial-level agencies, government-attached agencies, other central agencies and provincial-level People's Committees shall, within the scope of their management, guide in detail some contents of this Circular (when necessary) while ensuring compliance with this Circular.

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MINISTER OF PLANNING AND INVESTMENT




Vo Hong Phuc

Form 8

CURRICULUM VITAE OF CONSULTANT

The tentative position: _______________________________________________

Name of consultancy contractor: ______________________________________________________________

Full name: ________________________________________________________

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Date of birth: ______________________________________________________

Number of the working years at the Company: ____________________ Nationality ____________________

Participating in professional organizations:  _____________________________________________________

_________________________________________________________________

Describing in details the assigned tentative tasks: _________________________

_________________________________________________________________

Capability:

[Describing in details experiences and the training courses already participated to satisfy the assigned work scope. Describing in details the assigned tasks in the performed projects, duration and location of implementation]

___________________________________________________________________

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[Clearly stating the related diplomas, organizations issuing diplomas, training duration and type of diplomas]

___________________________________________________________________

Experiences in work:

[Describing the undertaken positions, the employing units, the working duration at each position.   In part of describing experiences, it should clearly state the assigned tasks specifically in each project and name/address of investor/ the bidding party]

___________________________________________________________________

Foreign languages:

[Clearly state the qualification of foreign languages]

____________________________________________________________________

Confirm:

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____, date____  ___ ____
Declarant
[Signature, position and full name]

Note:

- Each consultant in list stated at the Form 7A, Form 7B must declare in this Form.

- The consultancy contractor may enclose copies of labor contracts; copies of graduation diplomas, professional practicing certificates of the stated-above consultants (if necessary).

Part 5.

CONTRACT REQUIREMENTS

Chapter 4.

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Article 1. Interpretation of terms

In this contract, the terms below are construed as follows:

1. “Contract” means the written agreement between the investor and the contractor, including appendices and enclosed documents.

2. “Contractual price” means the total amount of money agreed between the investor and the contractor under the contract.

3. “Investor” means the organization defined in the Specific terms.

4. “Advisory contractor” means the organization that provides advisory services for the investor under this contract and is defined in the Specific terms.

5. “Sub-contractor” means any contractor that concludes an agreement or a contract with the main contractor to perform part of the intended works in the bid package.

6. "Effective date of the contract” is the date specified in Specific terms.

7. “Days” are continuous calendar days, including weekends and holidays.

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Article 2. Applied laws and language

The contract is regulated by Vietnamese law. The language used in this contract is Vietnamese, unless otherwise prescribed by Specific terms.

Article 3. Use of documents and information related to the contract

1. The advisory contractor must not reveal the contents of this contract, which is signed with the investor or the investor’s representative, to any persons other than those related to the performance of this contract without the investor’s prior written consent. Information shall be provided by advisory contractor for the persons related to the performance of this contract in accordance with the confidentiality practice and to an extent sufficient to perform the contract.

2. The advisory contractor must not use any of the information and documents mentioned in Clause 1 of this Article for any purposes other than the performance of this contract without the investor’s written consent.

3. The documents mentioned in Clause 1 of this Article are under the investor’s ownership. At the investor’s request, the advisory contractor must return such documents to the investor (including the photocopies) after their contractual obligations have been fulfilled.

Article 4. Copyright

The advisory contractor is totally responsible for any damage caused by a third party’s complaint against violation of intellectual property rights related to the advisory services provided for the investor by the advisory contractor.

Article 5. Type of contract

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Article 6. Payment

The investor shall pay the advisory contractor in accordance with Specific terms.

Article 7. Contractual price

The contractual price is agreed between the advisory contractor and the investor during the negotiation of this contract according to the successful bid, and is specified in the contract.

Article 8. Amendments to the contract

1. If amendments to this contract are necessary during its performance, the party that receives the request must consider giving specific requirements for such contracts by the deadline stipulated in Specific terms so that both parties can negotiate and adopt amendments to the contract. Such amendments may cause the contractual price to increase or reduce, or change the contract duration. Therefore, the corresponding contents of the contract must also be adjusted to these amendments.

2. The amendments to the contract must be conformable with the type of contract and the conditions in Article 5 of Specific terms.

Article 9. Personnel[1]

The contractor must mobilize all experts to carry out the works put forward in the bid package, unless otherwise agreed with the investor. If a change in the personnel is necessary according to Section 28 of Chapter I, the advisory contractor must appoint equivalent or better persons in a timely manner.

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Article 10. Sub-contractor

1. The contractor may sign contracts with the sub-contractors enumerated in the list of sub-contracts in Specific terms to perform part of the works mentioned in the bid package. The employment of sub-contractors does not change the contractor's obligations. The contractor is responsible to the investor for the volume, quality, progress of the works carried out by subcontractors, and the fulfillment of their other obligations.

The replacement or addition of sub-contractors beyond the list of contractors mentioned in Specific terms is subject to the investor’s approval.

2. The value of the works carried out by the sub-contractors mentioned in Clause 1 of this Article must not exceed the proportion (%) of contractual price stipulated in Specific terms.

3. The contractor must not employ sub-contractors to perform the works other than those to be carried out by sub-contractors in the bid package.

4. Other criteria for sub-contractors in Specific terms.

Article 11. Compensation for breaches of contract

Except for the force majeure events prescribed in Article 15 of this Chapter, if the advisory contractor fails to perform part or all of the contractual works by the agreed deadline, the investor may deduct an amount of compensation from the contractual price, which is proportional to the percentage (%) of the works carried out behind schedule according to the Specific terms, every week or another agreed period of time until the works are completed. The deduction must not exceed the maximum level stipulated in Specific terms. When the deduction reaches the maximum level, the investor may consider terminating the contract according to Article 13 of this Chapter.

Article 12. Deadline extension

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Article 13. Contract termination due to advisory contractor’s fault

1. The investor is entitled to terminate the contract in part or in full by sending a written notification to the advisory contractor if the advisory contractor fails to carry out the works mentioned in Specific terms.

2. The investor may send the notification of contract termination to the advisory contractor when the investor finds that the advisory contractor goes into bankruptcy without incurring any damages. Such termination does not cause the investor to lose their benefits under the contract and the law.

3. When the investor terminates the contract in part or in full according to Clause 1 of this Article, the investor may sign a contract with another contractor to perform the terminated part of the contract. The advisory contractor shall pay compensation to the investor for the extra costs of the performance of the terminated. However, the advisory contractor must keep performing the part that is not terminated.

Article 14. Contract termination due to investor’s fault

The advisory contractor is entitled to terminate the contract in part or in full by sending a written notification to the investor if the investor fails to carry out the works mentioned in Specific terms.

Article 15. Force majeure events

1. In this contract, force majeure events are those beyond the reasonable control and prediction of either party, such as war, riot, strike, blaze, natural disaster, flooding, epidemic, quarantine, or bad weather.

2. When a force majeure event occurs, the affected party must immediately notify the other party of such event and its reasons. A written confirmation of the force majeure event issued by a local competent authority must also be sent to the other party.

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3. Either party that fails to perform their duties due to the force majeure event shall not pay damages, face penalties, or have the contract terminated.

Any dispute between both parties derived from the occurrence or prolongation of the force majeure event shall be settled in accordance with Article 17 of this Chapter.

Article 16. Dispute settlement

1. The advisory contractor and the investor must settle every dispute between them through negotiation in an amicable manner.

2. If the dispute cannot be settled this way by the deadline stipulated in Specific terms, either party may request the settlement of the case using the method stipulated in Specific terms.

Article 17. Notifications

1. Any notification sent by either party to the other must be made in writing and sent to the addresses provided in Specific terms.

2. The notification shall come into force from the day it is received by the other party or on the effective date written on the notification itself, whichever is later.

Chapter 5.

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Article

Clause

Contents

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Investor: ____________________ [Name of the investor]

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Advisory contractor: ________________ [Name of the successful contractor]

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[Depending on the nature of the contract e.g. “This contract comes into force from the day on which it is signed by both parties”, etc.]

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- Applied law: _______________

- Language in the contract: _______________ [The language in the invitation to bid, if it is not Vietnamese]

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Type of contract: _____________________________

[Write the type of contract conformable with approved bidding plan]

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- Method of payment: _______________________

[Depending on the nature and requirements of the contract]

Advisory contractor may be paid in cash, by credit note, or by wire transfer.

If a deposit must be paid to the advisory contractor, the rate, deadline, and method of returning the deposit must be specified. The advisory contractor may be requested to present the deposit guarantee using form 17 in Chapter VI]

- Currency and payment deadline

Currency: _______________ [Consistent with the currency used during the bidding and contract conclusion].

Payment deadline: _____________ [The payment may be made without delay or after a period of time after the advisory contractor present sufficient documents] The documents compulsory for payment must be specified]

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The investor’s or contractor’s request for amendments to the contract is responded after: _______________

[Write the number of days from the receipt of the request for amendments]

2

Amendments to the contract:

The result and contractual price must not be changed if the contract is all-inclusive. If the contract is a fixed-term contract or additional works beyond the invitation to tender are necessary, the scope of regulation must be specified]

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List of sub-contractors: ____________ [In accordance with the list in the bid package]

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2

Value of the works carried out by sub-contractors does not exceed  ______  of the contractual price [Depending on the scale and nature of the contract, provided the sub-contractors do not carry out every work of the contract]

4

Other demands on subcontractors: _______________________ (if any)

11

Deduction rate: __________ % per week (or day, month, etc.)

[the rate depends on the nature and requirements of the contract]

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13

1

Contract termination due to advisory contractor’s fault:

[Enumerate the advisory contractor’s breaches that lead to the contract termination by the investor]

14

Contract termination due to investor’s fault:

[Enumerate the investor’s breaches that lead to the contract termination by the advisory contractor]

16

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Dispute settlement: ______________________

[Specify the time and method of dispute settlement depending on the nature and requirements of the contract, including the time for filing the petition, the dispute settlement body, the budget for dispute settlement, etc. It is recommended that the dispute be settled by arbitration].

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Mailing addresses:

- Investor’s address: ____________

Phone number: _____________________________

Fax: __________________________________

E-mail: ________________________________

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Phone number: _____________________________

Fax: __________________________________

E-mail: ________________________________

Chapter 6.

CONTRACT FORM

The contract is either all-inclusive, partial, or fix-term depending on the nature and requirements of the contract.

In case the contract is consists of multiple sub-contracts, the investor may combine the forms of all-inclusive, partial or fix-term advisory service contracts to draw up a mixed contract.

The General terms must not be changed. The Specific terms must be set according to the italic guidelines].

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ADVISORY SERVICE CONTRACT

(Applied to all-inclusive or partial contract)

[Location and date]

Contract number: ____________

Contract name: ____________________

Project name: ____________________

- Pursuant to 1 ___________ [the Civil Code No. 33/2005/QH11 dated June 14, 2005 of the National Assembly];

- Pursuant to ¹ ___________ [the Law on Bidding No. 61/2005/QH11 dated November 29, 2005 of the National Assembly];

- Pursuant to ¹ __________ [the Law on amendments of the laws on to investment in infrastructural development No. 38/2009/QH12 dated June 19, 2009 of the National Assembly];

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- Pursuant to the Decision No. _____ dated _____________ on approval for bidding result of _________ [name of the contract] No. ______________ dated __________ ;

- Pursuant to the record on contract negotiation and conclusion signed by the investor and the successful contractor on _________________;

We, the undersigned, represent the parties to this contract, including:

Investor

Investor’s name: ____________

Representative: _________________________________________________________

Position: ______________________________________________________________

Address: ______________________________________________________________

Phone number: _________________________________________________________

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E-mail: _______________________________________________________________

Account number: _______________________________________________________

Tax code: _____________________________________________________________

Letter of authorization No. _____________ dated _____________ (if any)

Advisory contractor  

Contractor’s name: ____________________ [successful contractor]

Representative: _________________________________________________________

Position: ______________________________________________________________

Address: ______________________________________________________________

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Fax: __________________________________________________________________

E-mail: _______________________________________________________________

Account number: _______________________________________________________

Tax code: _____________________________________________________________

Letter of authorization No. _____________ dated _____________ (if any)

Both parties agree to enter into an advisory service contract with the following terms and conditions:

Article 1. Subjects of the contract

Subjects of this contract are the services enumerated in Appendix A “Reference terms”

Article 2. Contract components

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1. The contract paper (together with Appendices);

2. Record on contract negotiation and conclusion;

3. Decision on approval for bidding result;

4. Specific terms;

5. Specific terms;

6. Bid package and its written explanations (if any);

7. Invitation to bid and additional documents (if any);

8. Other documents (if any).

Article 3. Responsibilities of advisory contractor  

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2. Mobilize and assign the personnel enumerated in Appendix B “Advisory contractor’s personnel” to perform services;

3. Send reports to the investor in accordance with Appendix C “Advisory contractor’s obligation to report”;

4. Fulfill other responsibilities and obligations mentioned in Specific terms and Specific terms of the contract.

Article 4. Responsibilities of investor

1. The investor must pay the advisory contractor in accordance with Article 5 of this contract, fulfill other responsibilities and obligations mentioned in Specific terms and Specific terms of the contract.

2. Mr./Ms. ___________ is appointed by the investor to coordinate the activities under this contract.

Article 5. Contractual price, payment deadline and payment method

1. Contractual price: ________________________ [Write the amount in number, in words, and currency. The contractual price is expressed as a percent of construction or work if the contract is a partial contract. If multiple currencies are used, the value must be written both in numbers and in words e.g. 1 million USD + 3 billion VND (one million US dollars and three billion Vietnam dong)]. This amount is inclusive of all costs, interest, and taxes payable by the advisory contractor.

2. Payment deadline:

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___________ [Write the value/percentage and currency] when the investor receives and accepts the draft report made by the advisory contractor.

___________ [Write the value/percentage and currency] when the investor receives and accepts the official report.

Total amount payable _______________ [Write the value and currency]

[The payment deadline may be adjusted to the reports specified to Appendix C].

3. Method of payment:

The method of payment is specified in Article 6 Specific terms

Article 6. Type of contract

[Write the type of contract in accordance with Article 5 of Specific terms: all-inclusive or partial contract]

Article 7. Contract duration

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Article 8. Effect

1. This contract takes effect from ___________ [Write the effective date of the contract in accordance with Clause 6 Article 1 of Specific terms].

2. This contract expires after it is finalized by both parties.

This contract is made into _______ copies. The investor keeps ____ copy(ies), the advisory contractor keeps ____ copy(ies) with equal value.

Legal representative of advisory contractor
[full name, position, signature, seal]

Legal representative of investor
[full name, position, signature, seal]

APPENDIX

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Appendix B: Advisory contractor’s personnel

Appendix C: Advisory contractor’s obligation to report

Form 16

ADVISORY SERVICE CONTRACT

(applied to fixed-term contract)

[Location and date]

Contract number: ____________

Contract name: ____________________

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- Pursuant to ¹ ___________ [the Civil Code No. 33/2005/QH11 dated June 14, 2005 of the National Assembly];

- Pursuant to ¹ ___________ [the Law on Bidding No. 61/2005/QH11 dated November 29, 2005 of the National Assembly];

- Pursuant to ¹ __________ [the Law on amendments of the laws on to investment in infrastructural development No. 38/2009/QH12 dated June 19, 2009 of the National Assembly];

- Pursuant to ¹ ____________ [the Government's Decree No. 85/2009/NĐ-CP dated October 15, 2009 on guidelines for the Law on Investment and selection of building contractors under the Law on Construction];

- Pursuant to the Decision No. _____ dated _____________ on approval for bidding result of _________ [name of the contract] No. ______________ dated __________ ;

- Pursuant to the record on contract negotiation and conclusion signed by the investor and the successful contractor on _________________;

We, the undersigned, represent the parties to this contract, including:

Investor

Investor’s name: ____________

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Position: ______________________________________________________________

Address: ______________________________________________________________

Phone number: ________________________________________________________

Fax: _________________________________________________________________

E-mail: _______________________________________________________________

Account number: _______________________________________________________

Tax code: _____________________________________________________________

Letter of authorization No. _____________ dated _____________ (if any)

Advisory contractor  

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Representative: _________________________________________________________

Position: ______________________________________________________________

Address: ______________________________________________________________

Phone number: _________________________________________________________

Fax: __________________________________________________________________

E-mail: ________________________________________________________________

Account number: _______________________________________________________

Tax code: _____________________________________________________________

Letter of authorization No. _____________ dated _____________ (if any)

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Article 1. Subjects of the contract

Subjects of this contract are the services enumerated in Appendix A “Reference terms”

Article 2. Contract contests

The contract consists of the below parts enumerated in descending order of priority when a dispute arises:

1. The contract paper (together with Appendices);

2. Record on contract negotiation and conclusion;

3. Decision on approval for bidding result;

4. Specific terms;

5. General terms;

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7. Invitation to bid and additional documents (if any);

8. Other documents (if any).

Article 3. Responsibilities of advisory contractor  

1. Perform the duties mentioned in Article 1 of this contract;

2. Send reports to the investor in accordance with Appendix B “Advisory contractor’s obligation to report”;

3. Assign the personnel and allocate budget in accordance with Appendix C “Budget estimate and advisory contractor’s personnel” to perform services;

4. Fulfill other responsibilities and obligations mentioned in general terms and specific terms of the contract.

Article 4. Responsibilities of investor

1. The investor must pay the advisory contractor in accordance with Article 5 of this contract, fulfill other responsibilities and obligations mentioned in general terms and specific terms of the contract.

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Article 5. Contractual price, payment deadline and payment method

1. Contractual price: ________________________ [Write the amount in number, in words, and currency. If multiple currencies are used, the value must be written both in numbers and in words e.g. 2 million USD + 5 billion VND (one million US dollars and three billion Vietnam dong)]. This amount is inclusive of all costs, interest, and taxes payable by the advisory contractor, including:

- Remunerations for experts:

The investor shall pay remunerations to the advisory contractor every month, every day, every hour [select one and delete the rest] as agreed in Appendix C.

- Costs other than remunerations:

The investor shall pay the advisory contractor no more than _________________ [Write the value and currency] for the expenditures on:

+ Business trip (including traveling, allowance and accommodation), stationery, printing, photocopies, and communications. This expenditure shall be covered and must be certified by the investor;

+ Other expenditures approved by the investor.

2. Deadline and method of payment

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Article 6. Timekeeping

During the work, including business trips, the investor must fill the timekeeping table and other forms to monitor the working time of the advisory contractor.

Article 7. Type of contract: Fixed-term contract

Article 8. Contract duration

[Write the contract duration in accordance with Clause 2 Section 1 of the data sheet, bid package, and contract negotiation result]

Article 9. Effect

1. This contract takes effect from ___________ [Write the effective date of the contract in accordance with Clause 6 Article 1 of Specific terms].

2. This contract expires after it is finalized by both parties.

This contract is made into _______ copies. The investor keeps ____ copy(ies), the advisory contractor keeps ____ copy(ies) with equal value.

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Legal representative of advisory contractor
[full name, position, signature, seal]

Legal representative of investor
[full name, position, signature, seal]

APPENDIX

Appendix a: Reference terms

Appendix B: Advisory contractor’s obligation to report

Appendix C: Budget estimate and advisory contractor’s personnel

Form 17

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[location and date]

To:  ____________ [Write the investor’s name]

(hereinafter referred to as investor)

[Write name and number of the contract number]

According to Specific terms, ______________ [Write the advisory contractor’s name and address] (hereinafter referred to as contractor) must submit a bank guarantee to the investor to ensure that the contractor uses the deposit of ________________ [Write the value in numbers, in words, and currency] only for the performance of this contract;

We, ____________ [Write the bank's name] in _________ [Write the country or territory] at _______________ [Write the bank’s address] (hereinafter referred to as bank), at the request of the investor, hereby agrees to unconditionally and irrevocably pay the investor at the investor’s request a maximum amount of ________________ [Write the amount in numbers, in words, and the currency] without the contractor’s prior consideration.

In addition, we also agree that any change or amendment to this contract, or any document related to the contract between the investor and the contractor does not cause any change to our obligations to this Guarantee.

The value of this guarantee will decrease in proportion to the deposit collected by the investor over the period mentioned in Article 6 of this contract after the contractor presents the investor’s certification of the collected amount.

This Guarantee takes effect from the day on which the contractor receives the deposit under the contract until ____________________ 3 or after the investor collects the deposit in full, which ever is sooner.

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Legal representative of the bank
[full name, position, signature, seal]

[1] Tuân thủ quy định tại khoản 3 Mục 12 BDL

1 Cập nhật các văn bản quy phạm pháp luật theo quy định hiện hành.

1 Căn cứ điều kiện cụ thể của gói thầu mà quy định phù hợp với yêu cầu nêu tại Điều 6 ĐKCT (thông thường áp dụng đối với gói thầu đấu thầu quốc tế).

3 Ngày hoàn thành các nghĩa vụ quy định trong hợp đồng. Trong trường hợp cần gia hạn thời gian thực hiện hợp đồng thì yêu cầu gia hạn thời gian có hiệu lực của bảo lãnh tiền tạm ứng.