DECISION

PROMULGATING THE REGULATION ON NATIONAL RESERVE GOODS PURCHASE AND SALE BIDDINGS

THE FINANCE MINISTER

Pursuant to the Government's Decree No. 77/2003/ND-CP of July 1, 2003 defining the functions, tasks, powers and organizational structure of the Finance Ministry;
Pursuant to the Government's Decree No. 88/1999/ND-CP of September 1, 1999 promulgating the Bidding Regulation;
Pursuant to the Government's Decree No. 14/2000/ND-CP of May 5, 2000 amending and supplementing a number of articles of the Bidding Regulation promulgated together with the Government's Decree No. 88/1999/ND-CP of September 1, 1999;
Pursuant to the Government's Decree No. 66/2003/ND-CP of June 12, 2003 amending and supplementing a number of articles of the Bidding Regulation promulgated together with the Government's Decree No. 88/1999/ND-CP of September 1, 1999 and Decree No. 14/2000/ND-CP of May 5, 2000;
Pursuant to the Prime Minister's Decision No. 270/2003/QD-TTg of December 24, 2003 defining the functions, tasks, powers and organizational structure of the National Reserve Department under the Finance Ministry;
At the proposal of the director of the National Reserve Department,

DECIDES:

Article 1.- To promulgate together with this Decision the Regulation on national reserve goods purchase and sale biddings.

Article 2.- This Decision takes effect 15 days after its publication in the Official Gazette. To annul the National Reserve Department's Document No. 533/DTQG-KH-PC of May 21, 2001 guiding the bidding for purchase and sale of national reserve supplies and goods.

Article 3.- The director of the National Reserve Department, the heads of the concerned agencies and units of the Finance Ministry shall have to implement this Decision.

...

...

...

FOR THE FINANCE MINISTER
VICE MINISTER
Nguyen Ngoc Tuan

REGULATION

ON NATIONAL RESERVE GOODS PURCHASE AND SALE BIDDINGS

(Promulgated together with the Finance Minister's Decision No. 31/2004/QD-BTC of April 6, 2004)

Chapter I

GENERAL PROVISIONS

Article 1.- Scope and objects of application

...

...

...

2. Organizations and individuals involved in the performance of national reserve goods purchase or sale biddings must observe the provisions of this Regulation and other law provisions on biddings.

Article 2.- Bidding form and mode

1. Bidding form: The form of public bidding shall be applied to select bid-winning contractors.

In cases where less than three bidders submit their bids, the bid solicitor must report thereon to the competent authorities for consideration and decision.

2. Bidding mode: The bidding mode of one dossier bag shall apply. When participating in the biddings, the contractors must submit their bids at one time. Such dossier bags must contain the tendering price tickets strictly according to the requirements of the bidding notices.

Article 3.- Bidding principles

1. Organizations and individuals involved in organizing the biddings and bid evaluation and selection shall have to absolutely keep secret the relevant information of the bidding-participating units and the internal information of the Bidding Councils throughout the process of organizing the biddings.

2. Biddings are organized publicly and equally in rights and obligations among bidders.

3. The bid solicitors and the bid winners shall have to strictly observe the commitments on purchase, sale, delivery, reception and payment according to the bid-winning results.

...

...

...

The bidding currency shall be Vietnam dong (VND)

For export and import goods: In the course of evaluating, comparing bids, the exchange rates between VND and the foreign currencies, determined according to the average exchange rates on the inter-bank foreign currency market, announced by Vietnam State Bank at the time of opening bids.

Article 5.- Quality standards of national reserve import goods

The quality standards of national reserve import goods must strictly comply with the State's regulations. For participation in the biddings, the bidders are encouraged to offer goods samples for the bid solicitors to remark and evaluate. Before putting goods into national reserve warehouses, the reserve units must check all goods lots supplied by the contractors; only if they meet the quality standards prescribed in the bidding dossiers can the goods be warehoused.

Chapter II

ORGANIZATION OF BIDDING

Section 1. NATIONAL RESERVE GOODS PURCHASE BIDDINGS

Article 6.- Bidding-organizing agencies

- The National Reserve Department.

...

...

...

Article 7.- Decentralization of bidding responsi-bilities

1. The Finance Ministry shall approve plans on biddings and results of bidding packages valued at between VND 7 billion and under 50 billion each.

2. The National Reserve Department shall approve plans on biddings and results of bidding packages valued at under VND 7 billion each.

Article 8.- Conditions on bidding implementation

1. Conditions for organization of bidding:

- The national reserve goods purchase bidding plans have been already approved by competent authorities;

- The bidding dossiers have been already approved by competent authorities.

2. Conditions for participation in biddings:

Contractors, when participating in national reserve goods purchase biddings, must fully satisfy the following conditions:

...

...

...

- Having full technical and financial capabilities to satisfy the requirements of bidding packages;

- Having full civil legal capacity and, for individuals, also full civil act capacity to sign and perform contracts if they become bid winners;

- Their bids must strictly comply with the regulations of the bidding dossiers;

- Being permitted to file only one tendering application in a bidding package, regardless of form of participation as independent bidders or partnership bidders;

- Being named in the system of information data on contractors.

The bid solicitors must not participate in biddings in the capacity as contractors for the bidding packages they organize.

Article 9.- Bidding Councils

1. Setting up of Bidding Councils:

- In cases where the bid solicitor is the National Reserve Department, the Bidding Council for national goods purchase and/or sale (called the Bidding Council for short) shall be set up under the Finance Minister's decision. The Bidding Council has a leader of the National Reserve Department as its president and members being representatives of the Administration Accounting, Administration and Non-Business, Price Management Departments of the Finance Ministry; of the Finance-Accounting, Planning-General Affairs, Warehouse Management, Preservation Technique and Technology and Policy Boards and the Office of the National Reserve Department. In case of necessity, the Bidding Council president may decide to set up experts' groups to assist him/her.

...

...

...

2. Working principles of the Bidding Councils:

- The members of the Bidding Councils shall work on a part-time basis.

- The Bidding Councils shall organize biddings strictly according to the Bidding Regulation and the prescribed principles as well as regimes; the guiding documents of the Finance Ministry and the National Reserve Department concerning biddings for national reserve goods purchase and sale.

- When settling matters, the Bidding Councils shall work on the principle of democratic centralism and make decisions by majority. A meeting of the Bidding Council shall be conducted only when it is attended by at least 2/3 of the number of the Council's members. A decision of the Bidding Council must be voted for by more than 50% of the number of the Council's members; where the number of votes for and the number of votes against are equal, the heads of the bidding- organizing agencies shall decide.

3. The Bidding Councils' tasks:

- To draw up bidding plans and submit them to the competent authorities for approval;

- To prepare bidding dossiers including bidding notices, forms of application for bidding participation, instructions to bidders, technical requirements and quality standards of commodities, types of contracts and assorted taxes under law provisions so that contractors acquire bases for bid price calculation;

- To publicize bid invitations once the bidding plans are approved by competent authorities;

- To guide contractors in buying the bidding dossiers and submitting their bids;

...

...

...

- To work out point scales for bid evaluation;

- To advise the bidding-organizing agencies' heads on bid evaluation price;

- To open bids publicly and make records on the bid opening;

- To organize bid evaluation (consideration, detailed evaluation and grading of the opened bids) strictly according to the prescribed procedures);

- To sum up and make reports on evaluation of the bidding results and submit them to competent authorities for approval;

- To announce bid-opening results.

Article 10.- Publishing bid invitations, bid submission and bid-opening time limits and effective time limit of bid dossiers.

1. Publishing bid invitations: The bid solicitors must publish bid invitations on one of the central or local mass media (daily papers, radio, television stations) for three consecutive issues or publish them on the bidding bulletins circulated nationwide by the State and the Finance Ministry's bidding website at least 10 days as from the first publication of the bid invitations before selling the bidding dossiers.

2. Time limit for bid submission: Within 15 days as from the date of selling the bidding dossiers, the contractors must submit their bids to the bid solicitors.

...

...

...

4. The validity duration of bid dossiers is the duration from the time of ending the bid submission time limit to the time of announcing the bid-winning results, which shall not exceed 180 days after the bidding closure.

Article 11.- Bidding plans

A bidding plan shall include the following principal contents:

- The bid invitation notice:

+ The name and address of the bid-inviting agency;

+ The specific list of bidding packages (names, specifications, quantity, weight, quality, packing, goods storing places, goods origins...);

+ Bidding participation conditions;

+ The time of issuing the bidding dossiers, the time of bidding closure, the time of bid opening.

- Estimated prices of bidding packages;

...

...

...

- Determination of the money amounts to guarantee the bidding participation, to guarantee the contract performance;

- Determination of bid-evaluation criteria and point scale;

- Other matters, if any.

Article 12.- Bidding dossiers, bids

1. A bidding dossier shall include:

- The bid invitation notice;

- The bidding participation application form;

- Requirements on types, quantity, quality of goods, packings...;

- Conditions on goods forwarding time table and mode;

...

...

...

- Form of tendering price offer ticket;

- Bidding participation guarantee form;

- Form of contract;

- Form of guarantee for contract performance;

- Other instructions related to bidding.

Forms of bidding dossiers shall comply with the Planning and Investment Ministry's Circular No. 04/2000/TT-BKH of May 26, 2000 guiding the implementation of the Bidding Regulation.

2. A bid shall include:

a/ Administrative and legal contents:

- The valid bidding participation application (signed by a competent person);

...

...

...

- Documents on the contractor's capability and experiences;

- Payment of bidding participation guarantee deposit.

b/ Technical and quality contents:

- The technical properties of goods;

- The technical and technological solutions;

- Origin of goods and manufacturer's certificates. If they are home-made goods, the competent State bodies' (registry offices' or standards and measurement agencies') certification of the quality standards satisfying the requirements of the bidding dossiers;

- Use training and instructions;

- Contract performance timetable;

- Warranty duration.

...

...

...

- Tendering price enclosed with explanation and detailed price table;

- Goods forwarding conditions and schedule;

- Payment conditions.

Article 13.- Management of bids

- The bid solicitors shall have to receive, record in books, seal, manage and keep secret bids according to the "Secret" regime.

- Bids, after being opened, shall not be returned to bidders but be archived according to the dossier and document preservation regulations.

Article 14.- Amending bids

1. Bidders must not amend their bids' contents or withdraw their bids after the bidding closure.

In the course of evaluating and comparing bids, the bid solicitors may request bidders to clarify matters related to their bids. The bid solicitors' requests and the bidders' replies must be made in writing.

...

...

...

Article 15.- Bidding participation guarantee deposits

- The level of bidding participation guarantee deposit shall be specified by the bid solicitors for each bidding package, but must not exceed VND 200 million per bidding package. The bidders must pay this sum in cash, cheque or guarantee certification by banks (where the bidders open their transaction accounts) at the accountancy sections of the bid solicitors before the bid opening is organized and must not earn interests thereon during the guarantee period. In order to create favorable conditions for bidders, the bid solicitors may collect the bidding-participation guarantee deposits on spot before opening bids.

- The bidding-participation guarantee deposits shall be returned to the bid-failers within no more than 30 days after the bid-wining results are announced. For the bid-winners, the bidding-participation guarantee deposits shall be returned after they have paid the contract performance guarantee deposits and the contracts have been already signed.

- Bidders are not allowed to receive back their bidding-participation guarantee deposits in the cases prescribed in Clause 3, Article 28 of the Bidding Regulation issued together with Decree No. 88/1999/ND-CP of September 1, 1999 and in Clause 26, Article 1 of Decree No. 66/2003/ND-CP of June 12, 2003 of the Government. These sums of money shall be remitted into the State budget.

Article 16.- Contract performance guarantee deposit

- The level of contract performance guarantee deposit shall be specified by the bid solicitors for each bidding package, but must not exceed 10% of the contract value and not exceed VND 300 million for one bidding package. These sums must be paid in cash, cheque or guarantee certification by banks (where the bid-winners open their transaction accounts) by bidders at the accountancy sections of the bid solicitors; these guarantee sums shall not bear interests during the guarantee period and be returned to the bid-winners immediately after the contract liquidation.

- If the bid-winners breach their commitments in the contracts or refuse to perform the contracts, these sums shall be remitted into the State budget and such bid-winners shall be handled for other violations (if any) related to the obligations in contract conclusion and performance.

Article 17.- Bidding package prices, tendering prices

1. The bidding package price is the price for delivery at the doors of the reserve goods storehouses or the price for delivery at other places (inscribed in the bid invitation notices), inclusive of the law- prescribed taxes and other expenses.

...

...

...

- In cases where the National Reserve Department organizes the bidding: Based on the guiding price table of the Finance Ministry and the approved bidding plans, the National Reserve Department shall prescribe the bidding package prices and hand them to the Bidding Council president in the duration from after the time of bidding closure to the time before the bid opening. The bidding package prices shall only be announced when bids are evaluated.

- In cases where the director of the National Reserve Department assigns the directors of the Regional National Reserves to organize biddings: Based on the Finance Ministry's guiding price table and the approved bidding plans, the director of the National Reserve Department shall prescribe the guiding limit prices for the biddings and send them through the registered official dispatch channel or in person to the directors of the Regional National Reserves within the duration from after the time of bidding closure to the time before the bid opening so that the latter prescribe the bidding package prices and hand them to the Bidding Council presidents before the opening of bids. If past the prescribed time limit the price-setting official dispatches of the National Reserve Department fail to arrive on time, the director of the National Reserve Department shall directly inform the prices by telephone to the directors of the Regional National Reserves.

2. Tendering prices:

- They are the prices for delivery at the doors of the reserve storehouses or at other places (inscribed in the bid invitation notices), inclusive of the law-prescribed taxes and other expenses.

- The contractors must inscribe the tendering prices of bidding packages strictly according to the requirements of the bid invitation notices and put them in the bid dossier bags.

Article 18.- Opening of bids

After receiving bids submitted on time and managed under the "Secret" regime, the bid solicitors shall open the bids publicly on the dates, at the hours and places inscribed in the bidding dossiers.

The bid-opening meetings shall be presided over by the Bidding Council presidents and conducted in the following order:

- Announcing the participants;

...

...

...

- Examining the seals of bids;

- Opening bids one by one, reading aloud and recording the following major information:

+ The names and addresses of bidders;

+ The number of originals, copies of a bid;

+ The tendering prices, including discount (if any);

+ Bidding participation guarantee.

- Approving the bid-opening records, which must clearly state the names of the bidding packages; the date, hour and venue of opening bids; the names and addresses of bidders; the tendering prices, bidding participation guarantee; other relevant contents (if any).

The representative of the bid solicitor, the representatives of the bidders and the representatives of the concerned managerial bodies (if present) must sign the bid-opening records for certification.

The originals of bids, after being opened, must be signed page by page for certification by the bid solicitor before they are evaluated and managed under the "Secret" regime. The evaluation shall be made on the copies.

...

...

...

The opened bids shall be evaluated and compared according to technical and quality standards, the financial and professional capability, prices, implementation schedule and other necessary information. The evaluation is conducted by the method of scoring under the point scales prescribed before the opening of bids, covering:

1. Preliminary evaluation:

The preliminary evaluation aims to exclude bids failing to satisfy the requirements of bid invitation notices and is effected as follows:

a/ Examining the validity of bids;

b/ Examining the bids' satisfaction of the requirements of the bidding dossiers (examining the bidding participation conditions).

c/ Clarifying bids (if necessary).

Thereby to detect bids which fail to meet the requirements and exclude them from the lists of bids.

2. Detailed evaluation

The detailed evaluation of bids shall be effected in the following two steps:

...

...

...

The evaluation of bids in terms of technical and quality standards shall be carried out on the basis of the evaluation requirements and criteria prescribed in the bidding dossiers. Bidders who get at least 70% of the total technical and quality points shall be selected for consideration at Step 2.

Step 2: Considering and examining the tendering prices offered by bidders selected through Step 1.

3. Announcement of bidding package prices.

Article 20.- Grading and selection of bidders

1. Based on the results of bid evaluation, the Bidding Councils shall sum up the evaluation and grade bidders.

2. The bid-wining consideration shall be based on the requirements in the bid invitation notices; for tendering tickets with the same conditions compatible with the bidding requirements, the bid-winning ticket shall be the one which offers the lowest price as compared to the bidding package price.

For tickets with different conditions, the Bidding Councils shall examine every specific condition according to the point scale in order to consider the bid-wining results.

3. In cases where bidders get the same points and offer the same tendering price, the bid solicitors shall conduct the second-round bidding among these bidders in order to select the bidder who offers the lowest tendering price. If the second bidding results remain unchanged, the bidding package volume shall be divided to such bidders after their negotiation or the lot-drawing shall be conducted to select the bidder proposed to be the bid-winner.

4. In cases where bidders offer the equal tendering prices but get different points, the bidder with higher points shall be selected.

...

...

...

6. After opening bids, the bidding-organizing agencies must immediately send the reports on the bidding results, enclosed with the bid-opening records, to the competent bodies for approval. Only after the bidding results are approved can the bidding results be legally valid and can the bid solicitors announce them in writing to the involved bidders in order to proceed with the conclusion of economic contracts according to regulations.

Article 21.- National reserve goods purchase contracts

1. After the bidding results are approved by competent authorities, the National Reserve Department shall direct the Regional National Reserves tasked to receive national reserve goods to sign economic contracts for purchase of national reserve goods strictly according to law provisions.

2. The major contents of a national reserve goods purchase contract include:

- The goods name;

- Specifications;

- Quantity;

- Quality;

- Prices;

...

...

...

- Goods forwarding venue, mode, time and schedule;

- Each party's contract performance responsibility;

- Liabilities for contractual breaches.

The above contents must strictly comply with the contents stated in the bidding dossiers.

In addition, the parties may reach agreement on other contractual contents, which are, however, not contrary to law provisions.

Article 22.- Expenses for organization of biddings

The bid solicitors may collect bidding participation charges to cover the expenses for organization of biddings such as printing of documents, information, advertisement... according to law provisions on charges and fees. The collection and spending of bidding charges must be fully evidenced with valid vouchers and reflected on accounting books.

Article 23.- Handling of circumstances in biddings

1. In cases where the tendering prices of all bids exceed the price of the goods purchase bidding package (or are lower than the price of the goods sale bidding package), the bid solicitors must report thereon to the authorities competent to approve the bidding plans and bidding results for considering the permission of bidders with bids basically satisfying the requirements of the bidding dossiers to re-offer their prices or to re-offer their prices simultaneously with reconsidering the bidding package price in the approved bidding plans and the contents of the bidding dossiers (if necessary).

...

...

...

a) Bidding cancellation shall apply to one of the following cases:

- Changing the objectives mentioned in the bidding dossiers;

- Having evidences that the bid solicitor has connived with the bidder, resulting in a lack of competition in the bidding;

- All bids have basically failed to satisfy the requirements of the bid solicitor;

- Having evidences that bidders have colluded with one another, resulting in a lack of competition in the bidding and harming the interests of the bid solicitor.

Based on the competent authorities' decisions, the bid solicitors shall have to inform all bidders of the cancellation of biddings or of re-organization of biddings.

b) Financial liabilities upon cancellation of biddings:

- If the bidding is cancelled due to the fault of one of the bidders, such bidder shall not be entitled to receive back the paid bidding-participation guarantee deposit.

- If the bidding is cancelled not due to the bidders' faults, the bid solicitors shall have to make up for the bidders' expenses for bidding participation at the levels promulgated by the State, including:

...

...

...

+ Expenses for travel to purchase the bidding dossiers and to submit bids.

+ Expenses for compilation of bids.

+ Other expenses (stantionery, equipment amortization...).

- Expenses for compensation upon bidding cancellation due to changes in investment objectives and scope, decided by competent authorities, shall be covered with the fund for organization of biddings. If for other reasons, the bid solicitors are at fault, the concerned individuals shall have to pay the compensations.

3. In cases where two bids are evaluated equally best (in terms of points or evaluation prices), the bidding package shall be considered and given to the bidder with the lower tendering price, after being arithmetically corrected and supplemented or adjusted according to the requirements of the bidding dossier (except for cases prescribed in Clauses 5, 6, 7, Article 10 of the Bidding Regulation issued together with the Government's Decree No. 88/1999/ND-CP of September 1, 1999).

4. The exclusion of bids shall apply to one of the following cases:

- Bids fail to meet the pre-conditions stated in the bidding dossiers.

- Bids fail to meet the technical requirements.

- Bidders refuse to accept the arithmetic errors discovered and requested for correction by the bid solicitors or have made arithmetic errors exceeding 15% of the tendering prices.

...

...

...

- Reportedly having false declarations.

Section 2. NATIONAL RESERVE GOODS SALE BIDDINGS

Article 24.- Organization of biddings

The organization of biddings for sale of national reserve goods shall be the same as for national reserve goods purchase biddings, except for the provisions of Point b, Clause 2, Article 12; Article 19; Clauses 1 and 2 of Article 20; Article 21 of this Regulation.

Article 25.- Bids

- The valid bidding participation application (signed by a competent person);

- The copy of the production or business registration paper (notarized by State Notary Public within 100 days before the bid submission deadline);

- Payment of bidding participation guarantee deposit;

- Tendering price ticket.

...

...

...

- Examining the validity of bids;

- Examining the bids' satisfaction of the requirements of the bidding dossiers (checking the bidding participation conditions);

- Considering and examining the tendering prices of bidders;

- Announcing the bidding package price.

Article 27.- Section of contractors

1. On the basis of examination of bids upon the opening of bids, the Bidding Councils shall sum up and grade contractors. The proposed bid-winning result is the tendering ticket with the highest price as compared to the bidding package price.

2. Where bidders offer equal tendering prices, the bid solicitors shall organize the second-round biddings among these bidders in order to select the contractor with the highest tendering price. If the result of the second bidding remains unchanged, the bidding package volume shall be divided to such bidders after their negotiations or a lot-drawing shall be organized to select the proposed bid-winner.

Article 28.- National reserve goods sale contracts

1. After the bidding results are approved by competent authorities, the director of the National Reserve Department shall direct the Regional National Reserves tasked to deliver the national reserve goods and sign economic contracts on sale of national reserve goods strictly according to law provisions.

...

...

...

- The goods name;

- Specifications;

- Quantity;

- Quality;

- Prices;

- Payment mode: Money is collected first, then goods are delivered according to the goods delivery and reception schedules;

- Goods forwarding venue, mode, time and schedule;

- Each party's responsibility in the contract performance;

- Liabilities for contractual breaches.

...

...

...

Chapter III

IMPLEMENTATION ORGANIZATION

Article 29.- Implementation organization

Based on this Regulation, the National Reserve Department shall have to guide in detail the relevant agencies and units to organize the national reserve goods purchase or sale biddings in a strict, efficient and lawful manner.

If meeting with difficulties or problems in the course of organizing national reserve goods purchase or sale biddings, the National Reserve Department must report them in time to the Finance Ministry for consideration and settlement.