DECREE

AMENDING AND SUPPLEMENTING A NUMBER OF ARTICLES OF THE BIDDING REGULATION ISSUED TOGETHER WITH THE GOVERNMENT’S DECREE No.88/1999/ND-CP OF SEPTEMBER 1ST, 1999

THE GOVERNMENT

Pursuant to the Law on Organization of the Government of September 30, 1992;
At the proposals of the Minister of Planning and Investment, the Minister of Construction and the Minister of Finance,

DECREES:

Article 1.- To amend and supplement a number of articles of the Bidding Regulation issued together with the Government’s Decree No.88/1999/ND-CP of September 1st, 1999 as follows:

1. Clause 1 of Article 2 is amended and supplemented as follows:

1. The Regulation on Bidding shall apply in order to select bidders for investment projects in Vietnam, which must be opened to bidding and implemented in Vietnam.

2. Clause 3 of Article 4 is amended and supplemented as follows:

3. Appointed bidding:

Appointed bidding is the form of directly selecting bidders that satisfy the requirements of bidding packages for negotiation on the contracts.

This form shall apply only in the following special cases:

a/ Force majeure circumstances such as natural calamities, enemy sabotage or incidents which must be immediately remedied, where the investors (that are authorized by the competent persons to manage and execute the projects) shall be entitled to immediately appoint the capable units to promptly carry out the work. Within 10 days after deciding the appointment of bidders, the investors shall have to report the contents of appointed bidding to the competent persons or competent authorities, that, if finding such appointed bidding contrary to law, shall have to promptly handle it.

b/ Bidding packages of probing and experimental character, State secrets, security secrets or defense secrets, which shall be decided by the Prime Minister.

c/ Bidding packages valued at under 1 billion VND for the procurement of goods or construction and installation; and under 500 million VND for consultancy.

Bidding packages entitled to appointed bidding under group-A projects shall be decided by the ministers, heads of the ministerial-level agencies, agencies attached to the Government, Managing Boards of State corporations set up by the Prime Minister (corporations 91) and presidents of the People’s Committees of the provinces and centrally-run cities having projects, according to their respective responsibilities assigned by the Prime Minister.

When appointing bidders for bidding packages mentioned in Clause 2, Article 1 of this Decree, the persons competent to appoint bidders shall take responsibility before law for their decisions.

Where it is deemed unnecessary to appoint bidders, biddings shall be organized as prescribed. It is strictly prohibited to arbitrarily divide a project into many small bidding packages in order to appoint bidders.

The Finance Ministry shall specify the appointed bidding for procurement of utensils, supplies, equipment and regular working facilities of the State agencies, mass organizations and State enterprises; as well as utensils, supplies, equipment and common working facilities of the armed forces.

d/ For other bidding packages of particular characteristics due to the requirements of the capital-providing bodies, the technical and technological complexities or the unexpected requirements of the projects, the persons competent to decide the investment shall decide the appointment of bidders on the basis of evaluation reports of the Ministry of Planning and Investment as well as the written comments of the capital-providing bodies and relevant agencies.

e/ For the State budget capital reserved for projects of non-business units to perform tasks of studying the economic development planning, branch development planning or urban and rural construction master plans, which have been assigned for implementation by the competent State agencies, the bidding is not required but specific contracts must be made and the works must be handed over as prescribed.

f/ For consultancy bidding packages for elaboration of pre-feasibility study and feasibility study reports of investment projects, bidding is not required but investors shall have to select consultants meeting the requirements of the projects.

Where bidders are appointed according to the contents prescribed at Points a, b, c and d of this Clause, the three following contents must be clearly determined:

- The reasons for appointing bidders;

- The technical and financial experiences and capabilities of the bidders recommended for appointment;

- The value and volume already approved by the competent persons or competent authorities to serve as basis for the appointment of bidders (particularly for construction and installation bidding packages, the approved designs and cost estimates are required as prescribed).

Where it is necessary to immediately overcome the consequences of natural calamities, enemy sabotage or incidents, investors shall temporarily calculate the volume and value, then compile the full dossier and make the cost estimates which shall be submitted for approval as prescribed to serve as basis for account settlement and final settlement.

3. Clause 2 of Article 10 is amended and supplemented as follows:

2. Foreign contractors, when participating in international biddings in Vietnam for construction and installation, shall have to either enter into partnership with Vietnamese contractors or commit themselves to use Vietnamese subcontractors, clearly stating the division of work scope and volume between parties as well as the corresponding unit prices.

4. Point a, Clause 2 of Article 44 is amended and supplemented as follows:

a/ Enterprises of different economic sectors having head-offices or branches in the provinces or cities may participate in biddings for investment projects in such localities. For a restricted bidding, it is necessary to invite only 3 bidders; if the number of participating local bidders is smaller than 3, bidders outside the locality must be invited to participate therein.

Local bidders shall be given priority to win bids if their bids are evaluated as equal to bids of other bidders.

5. Point c, Clause 3 of Article 52 is amended and supplemented as follows:

c/ Approval of basic contents of bidding process:

- For bidding packages of group-A projects and the like stipulated at Points b, c, d, e, f and g, Clause 1, Article 51 of the Bidding Regulation issued together with the Government’s Decree No.88/1999/ND-CP of September 1st , 1999 (hereinafter referred to as Bidding Regulation).

- For bidding packages of group- B and -C projects and the like, except for projects of dependent enterprises which are entitled to decide investment according to provisions of Points a, b, c, d, e, f and g, Clause 1, Article 51 of the Bidding Regulation.

6. Article 53 is amended and supplemented as follows:

To add the division of responsibilities for approval and evaluation of group- B and -C projects and the like, persons competent to decide investment in group- B and -C projects and the like of State enterprises to Table 1 of Article 53:

7. Article 56 is added with the following Clause 5:

5. In the course of bid consideration, from the moment of bids opening till the moment of announcing the bidding results, the information stipulated in Clause 2, Article 56 of the Bidding Regulation must not be carried on the mass media.

8. To annul Clause 4 of Article 61; Clause 2 of this Article is amended and supplemented as follows:

2. The Ministry of Finance shall assume the prime responsibility and coordinate with the concerned ministries and branches in guiding and inspecting the implementation of bidding for the procurement of supplies, goods and working facilities of the State management agencies, mass organizations and State enterprises; as well as supplies, goods and common working facilities of the armed forces with the State budget capital.

Article 2.- This Decree takes effect 15 days after its signing.

Article 3.- The Ministry of Planning and Investment shall assume the prime responsibility and coordinate with the ministries, ministerial-level agencies and agencies attached to the Government in guiding and inspecting the implementation of this Decree.

Article 4.- The ministers, the heads of the ministerial-level agencies and agencies attached to the Government, the presidents of the People’s Committees of the provinces and centrally-run cities, the Managing Boards of the State corporations and relevant organizations shall have to implement this Decree.