Nghị định 58/2008/ND-CP

DECREE

ON TENDERING MAKING DETAILED PROVISIONS FOR IMPLEMENTATION OF THE LAW ON TENDERING AND FOR SELECTION OF CONSTRUCTION CONTRACTORS PURSUANT TO THE LAW ON CONSTRUCTION

THE GOVERNMENT

Pursuant to the Law on Organization of the Government dated 25 December 2001;
Pursuant to the Law on Tendering No. 61/2008/QH11 dated 29 November 2005 and the Law on Construction No. 16/2003/QH11 dated 26 November 2003 of the National Assembly;
Having considered the proposal of the Minister of Planning and Investment and the Minister of Construction;

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1. Governing scope

1. This Decree provides detailed guidelines for implementation of the Law on Tendering dated 29 November 2005 and on selection of construction contractors pursuant to the Law on Construction dated 26 November 2003, both passed by the National Assembly.

2. The selection of contractors for tender packages funded by Official Development Aid (ODA) shall be implemented in accordance with article 3.1 of the Law on Tendering. The procedures and authority for approval of contents of the tendering plan and results of selection of a contractor for ODA projects shall be implemented in accordance with this Decree.

Article 2. Interpretation of terms

In this Decree, the following terms shall be construed as follows:

1. Financed by the State as defined in article 1.1 of the Law on Tendering includes payment of expenses by way of purchase, lease or hire-purchase. A determination of whether or not the State finances a total of thirty (30) per cent or more of the total investment amount or total investment capital of an approved project shall be made for each project, and shall not be determined in accordance with the percentage State capital portion of the total registered capital of the enterprise.

2. Set of requirements means all of the documents used for the forms of direct appointment of contractor, competitive quotation, direct procurement, and selection of a contractor in special cases, and shall include and set out the requirements for any one tender package providing the legal basis for tenderers to prepare their sets of proposals and for the party calling for tenders to assess the sets of proposals, aimed at selection of a contractor who satisfies the requirements set out in the set of requirements; and also providing the basis for negotiation, finalization and signing of a contract. The investor shall be responsible for deciding the contents of the set of requirements.

3. Set of proposals means all of the documents prepared by a tenderer in accordance with the requirements set out in the set of requirements and submitted to the party calling for tenders in accordance with the provisions stipulated in such set of requirements.

4. Results of selection of contractor means the results of tendering when using open tendering or limited tendering or the results of selection when using other forms of selection.

5. Breach of the law on tendering means any act of non-compliance with or failure to fully comply with the law on tendering.

6. Participation in tendering means a tenderer takes part in open tendering or limited tendering.

7. Tender package for selection of a general construction contractor comprises selection of a general contractor for an engineering package (E); for a construction package (C); for a design and construction package (EC); for a design, supply of equipment and materials, and construction and installation package (EPC); and for a project preparation, design, supply of equipment and materials, and construction package (turnkey contract).

Article 3. Ensuring competitiveness in tendering

Items ensuring competitiveness and the schedule for implementing them shall be regulated as follows:

1. The requirements on competitiveness stipulated in article 11.1(a) of the Law on Tendering shall be implemented as follows:

(a) The contractor who prepared the feasibility report (for an investment project) shall be permitted to participate in tendering for preparation of technical design, design of drawings for execution of the works, and design of technology [for the same project] prior to 1 April 2009. In this case, the party calling for tenders must supply tender invitation documents containing complete relevant information and data including the feasibility study report (for the investment project) and must allow sufficient time so that all tenderers have the same conditions to prepare their tenders, ensuring fairness during the tendering.

(b) The contractor/s who prepared the technical design, design of drawings for execution of the works [and/or] design of technology for a tender package shall not be permitted to participate in tendering for construction and installation or for procurement of goods for such tender package as from the date on which this Decree takes affect, except for an EPC tender package. However any contractor/s who prepared the technical design, design of drawings for execution of the works [and/or] design of technology for a tender package shall be permitted to participate in tendering for consultancy for preparation of tender invitation documents, assessment of tenders [and/or] for contract supervision applicable to such tender package.

2. Any tenderer participating in tendering and the consultancy tenderer who prepared the tender invitation documents [and/or] assessed tenders; and the tenderer performing the contract and the consultancy tenderer for supervision of implementation of the contract shall be deemed to be organizationally independent of each other, not under the control of the same managing body, and financially independent as stipulated in sub-clauses (b) and (c) of article 11 of the Law on Tendering when they satisfy both the following conditions:

(a) They do not both belong to the same State body or unit of the people's armed forces which issued their decision on establishment, except for tenderers being enterprises which have converted to operate pursuant to the 2005 Law on Enterprises;

(b) They do not have shareholding or capital contribution in each other above 30%. This provision shall be implemented as from 1 April 2009.

3. Investors and tenderers participating in tendering for tender packages belonging to the same project shall be deemed to be independent of each other, not under the control of the same managing body, and financially independent as stipulated in clause 1(d) of article 11 of the Law on Tendering when they satisfy both the following conditions:

(a) They do not have shareholding or capital contribution in each other above 50%.

(b) A tenderer being an organization operates pursuant to the 2005 Law on Enterprises. This provision shall be implemented as from 1 April 2009.

Article 4. Preferential treatment in international tendering

1. Preferential treatment in international tendering pursuant to article 14 on the Law on Tendering shall be regulated as follows:

(a) In the case of tender packages for consultancy services, seven point five (7.5) per cent of the total points of a tenderer eligible for preference shall be added to the tender of such tenderer; and in the case of tender packages for consultancy services with high technical requirements, seven point five (7.5) per cent of the technical points of a tenderer eligible for preference shall be added to the technical points of such tenderer.

(b) In the case of tender packages for construction and installation, the assessment price of the tender of any tenderer ineligible for preference shall be increased by a sum equal to seven point five (7.5) per cent of the tender price after errors have been rectified and discrepancies have been adjusted for such tenderer.

(c) In the case of tender packages for the procurement of goods, the assessment price of the tender of any tenderer ineligible for preference shall be increased by a sum equal to the stipulated import duties and import related fees and charges but such [additional] sum shall not exceed fifteen (15) per cent of the price of the goods.

Preferential treatment shall not apply to goods for which payment of import duties and import related fees and charges is required pursuant to regulations.

(d) In the case of tender packages for the selection of a general design contractor, preferences shall be implemented as stipulated in sub-clause (a) above. In the case of tender packages for the selection of other general construction contractors, preferences shall be implemented in accordance with sub-clause (b) above.

2. Where tenders of foreign tenderers are ranked equally, preference shall be granted to the tenderer proposing the higher level of domestic costs. Where tenders of a domestic tenderer and a foreign tenderer are ranked equally after implementing preferences in accordance with clause 1 of this article, preference shall be granted to the domestic tenderer.

Article 5. Professional training on tendering

1. Applicable entities

(a) Individuals directly participating in tendering activities must possess a certificate of having attended a course on professional training on tendering, except for tenderers;

(b) Other individuals who request to attend training courses.

2. Administration of training activities

The Ministry of Planning and Investment shall be responsible to organize training activities in accordance with article 68.5 of the Law on Tendering, specifically as follows:

(a) To provide an overall report on the status of training conducted by training establishments via the annual reports on tendering activities provided by ministries, branches and localities;

(b) To establish an information database on training establishments on the basis of the information supplied by such establishments.

3. Conditions for establishments to hold training activities

(a) Having a business registration certificate, or a decision on establishment in the case of establishments without a business registration certificate;

(b) Having lecturers qualified to provide training on tendering.

4. Conditions for issuing certificates on tendering

(a) Certificates shall be issued to trainees who attended the whole of a training course on tendering and who passed the exam;

(b) Training courses on tendering must be held for a minimum of three (3) days to satisfy the condition for issuance of a certificate on tendering.

5. Responsibilities and obligations of establishments providing training on tendering

(a) To be responsible for the quality of training; and to provide information on the training establishment for the database stipulated in clause 2(b) of this article;

(b) To hold training courses and to issue certificates to attendees in accordance with the regulations;

(c) To provide annual reports to the Ministry of Planning and Investment and to ministries, branches or localities in order for the latter to monitor and summarize such reports.

Article 6. Fees for tendering

1. An investor shall decide the selling price (tax inclusive) of tender invitation documents depending on the scale and nature of the tender package but the price shall not exceed one million (1,000,000) Dong for domestic tendering. The selling price in the case of international tendering shall be         in accordance with international practice for international tendering.

2. The costs for evaluation of results of selection of a contractor, including a case where no tenderer is selected, shall be point zero one (0.01) per cent of the tender package price but shall be a minimum of five hundred thousand (500,000) and a maximum of thirty million (30,000,000) dong.

3. The costs of the Consulting Council for Resolution of Protests when resolving the protest of a tenderer about the results of selection of contractor shall be point zero one (0.01) per cent of the tender price of the protesting tenderer but shall be a minimum of two million (2,000,000) and a maximum of thirty million (30,000,000) dong.

Management and use of the costs stipulated in clauses 1 and 2 of this article shall be implemented in accordance with current regulations.

Article 7. Tendering Newsletter and the tendering website

1. The publication of information on tendering as stipulated in article 5 of the Law on Tendering shall be implemented free of charge for bodies and organizations supplying such information for publication.

2. Entities and bodies responsible to publish and manage the Tendering Newsletter and the tendering website shall be revenue-receiving professional entities.

3. The Tendering Newsletter shall be published daily.

4. Supply of information on tendering

(a) Responsibility to supply information

- Ministries, ministerial equivalent bodies and other central level bodies and all level people's committees shall be responsible to supply the information stipulated in subclauses (g) and (h) of clause 1 of article 5 of the Law on Tendering.

- Investors and parties calling for tenders shall be responsible to supply the information stipulated in sub-clauses (a) to (e) inclusive and in sub-clause (h) of clause 1 of article 5 of the Law on Tendering.

(b) Time-limit for supply of information

The time-limit for supply of information shall be at least five days prior to the proposed date of publishing the information, applicable to notices inviting pre- qualification applications, notices inviting tenders, notices inviting expressions of interest and notices inviting competitive quotations. With respect to the remaining information stipulated in article 5.1 of the Law on Tendering, the time-limit for supply of information shall be no later than ten (10) days from the date of signing the document.

The supply of information and the schedule for publishing it in the Tendering Newsletter and on the

tendering website shall be implemented in accordance with guidelines of the Ministry of Planning and Investment.

Article 8. Provision on the various time-limits applicable during tendering

1. The various time-limits applicable during tendering as stipulated in article 31 of the Law on Tendering shall be specifically regulated as follows:

(a) The investor, or the person delegated with authority by the investor, shall be responsible to approve the tender invitation documents within a maximum of ten (10) days from the date of receipt of the submission requesting approval from the party calling for tenders or from the date of receipt of the report evaluating the tender invitation documents (if there is any such report).

(b) The person making the investment decision, or the person delegated with authority to make the investment decision, shall be responsible to approve the tender invitation documents within a maximum of ten (10) days from the date of receipt of the evaluation report from the evaluating body or organization; and to approve, or to provide an opinion on dealing with, results of selection of contractor for tender packages within a maximum of fifteen (15) days from the date of receipt of the evaluation report from the evaluating body or organization.

Time- limits shall be as stipulated in working rules of the Government for tender packages for which the Prime Minister of the Government provides approval.

(c) The period of validity of a tender must be specifically stipulated in the tender invitation documents, and must be a maximum of one hundred and eighty (180) days as from the tender closing date. In necessary cases a tenderer may request, on one or more occasions, extension of the period of validity of his tender, but total extensions shall not exceed thirty (30) days as stipulated in article 31.4 of the Law on Tendering.

2. During the process of conducting tendering, the following items may be conducted simultaneously: pre-qualification of tenderers and preparation of the tender invitation documents; approval of the tender invitation documents and the notice calling for tenders; announcement of results of tendering, and negotiation and finalization of the contract.

Chapter II

TENDERING PLANS

Article 9. Bases for formulation of tendering plans

1. The bases for formulation of a tendering plan shall be the investment decision and the documents which served as the bases for the investment decision, the business registration certificate and the investment certificate. In the case of work being project preparation, the basis shall be the decision of the head of the body preparing the project.

2. In the case of projects funded by ODA the bases shall be international treaties or international agreements.

3. Approved design, and approved budget (if any).

4. Financing source for the project.

5. Other relevant legal documents (if any).

Article 10. Contents of each tender package set out in a tendering plan

Division of a project into different tender packages shall be implemented in accordance with article 6.4 of the Law on Tendering, ensuring that the scale of each tender package is not so small or large that it restricts the participation of tenderers. The contents of each tender package shall comprise:

1. Name of the tender package

The name of a tender package must express the nature, contents and scope of the work involved in the tender package, and must be consistent with the project contents. In a case where there are adequate conditions and grounds being the particular nature of the project, then the tender package may include items of work being preparation of the pre- feasibility study report, preparation of the feasibility study report and technical design. If a tender package contains a number of distinct [separate] sections (a number of lots), then the name of the tender package in the tendering plan must set out the name of each such section.

2. Tender package price

The tender package price (including contingencies) shall be based on the approved total level invested capital, total invested capital [and/or] estimated budget (if any) and current regulations. The tender package price of packages for consultancy services for preparation of the pre-feasibility study report [and/or] feasibility study report shall be fixed on the basis of the following information, namely the average price according to statistics on relevant projects already implemented in the same industry within a certain fixed period; the estimated total invested capital pursuant to the fixed investment rates of projects in each sector of the specialized branch; and the preliminary total invested capital.

3. Financing source

Each tender package must specify the financing source or the plan for arranging finance in order to make payment to contractors. ODA financed projects must specify the name of the donor and the financing structure (foreign or domestic).

4. Form of selection of contractor and form of tendering

Each tender package must specify the form of selection of contractor (domestic tendering or international tendering, and pre-qualification if any) in accordance with articles 18 to 24 inclusive of the Law on Tendering and article 97 of the Law on Construction, and must specify the form of tendering in accordance with article 26 of the Law on Tendering. The person making the investment decision must stipulate the following eventualities in the tendering plan: if it is necessary to apply prequalification of tenderers for tender packages other than those prescribed in article 32.1 of the Law on Tendering; if it is necessary to apply procedures for selection of a list of tenderers in order to invite their participation in tendering for consultants; and if it is necessary to select a consultant being an individual.

5. Time-limit for selection of contractor

The time-limit for holding selection of the contractor to implement the tender package must be specified in order to ensure the time schedule for implementation of the tender package.

6. Form of contract

Each tender package must specify the form of contract applicable, which shall depend on the nature of the package in accordance with articles 49 to 53 inclusive of the Law on Tendering and article 107 of the Law on Construction.

7. Scheduled time-limit for contractual performance

The scheduled time-limit for contractual performance must ensure that the tender package will be implemented in conformity with the schedule for the implementation of the project.

Article 11. Submission of the tendering plan for approval

1. Responsibility to submit the tendering plan for approval

The investor shall submit the tendering plan to the person who made the investment decision or the person delegated with authority to make such investment decision for his consideration and approval, and at the same time shall send it to the evaluating body or organization; in a case where thetendering plan must be submitted to the Prime Minister of the Government, the investor must alsosend it to the ministry managing the industry for the latter to provide its written opinion to the Prime Minister of the Government for his consideration and approval.

In the case of tender packages for consultancy services to be provided before there is an investment decision, the investor or the entity which is assigned the task of preparing the project must submit the tendering plan to the person heading such entity (i.e. the person who assigned the task) for his consideration and approval. In such case, the person heading the relevant entity must appoint a subsidiary unit to organize evaluation of the tendering plan before such person approves it.

2. Application file for approval

(a) A submission for approval of a tendering plan shall comprise the following documents:

- Works already performed including work relating to project preparation, specifying the value of the items completed and the legal basis for their implementation.

- Items of work for which it is not possible to apply one of the forms of selection stipulated in articles 18 to 24 inclusive of the Law on Tendering and in article 97 of the Law on Construction.

- Items of work in the tendering plan comprising work forming tender packages to be implemented by one of the forms of selection of contractor stipulated in articles 18 to 24 inclusive of the Law on Tendering and in article 97 of the Law on Construction, including bomb and mine sweeping, construction of resettlement zones, construction insurance and training.

The basis for dividing the project into tender packages must be specified. Each tender package must include all the contents stipulated in article 10 of this Decree.

If open tendering is not to be applied, the reasons for same must be specified.

The total value of the items of work already implemented and of items of work for which forms of selection of contractor are inapplicable, and items of work belonging to the tendering plan must not exceed the total invested capital of the project.

The contents stipulated in this clause must also be included in the submission for approval of a tendering plan for one or more tender packages to be implemented in advance as referred to in article 6.2 of the Law on Tendering.

(b) Documents to accompany the submission for approval of the tendering plan

The investor must also submit copies of the documents which served as the basis for formulating the tendering plan as stipulated in article 9 of this Decree.

Article 12. Evaluation and approval of the tendering plan

1. Evaluation of the tendering plan

(a) Evaluation of the tendering plan means conducting a review and assessing contents in accordance with articles 9 to 11 inclusive of this Decree.

(b) Evaluating bodies and organizations shall prepare a report on the results of their evaluation of the tendering plan in compliance with article 65 of the Law on Tendering and submit such report for approval to the person making the investment decision.

2. Approval of the tendering plan

The person making the investment decision or the person delegated with authority to make such investment decision shall approve the tendering plan within a time-limit not to exceed ten (10) days from the date of receipt of the report from the evaluating body or organization. For any tendering plan within the approval authority of the Prime Minister of the Government, this process shall be implemented in accordance with the working rules of the Government.

Chapter III

PRE-QUALIFICATION OF TENDERERS

Article 13. Application of pre-qualification

1. Pre-qualification of tenderers shall be conducted in accordance with clause 1(a) of article 32 of the Law on Tendering.

2. In cases requiring application of pre-qualification of tenderers for tender packages other than those covered by clause 1 of this article, the person making the investment decision shall include his decision to hold pre-qualification in the tendering plan.

Article 14. Sequence for holding pre-qualification of tenderers

1. Preparation of pre-qualification invitation documents

The party calling for tenders shall prepare the pre-qualification invitation documents and submit them to the investor for approval. Pre-qualification invitation documents shall comprise instructions for the tender package and the following requirements applicable to tenderers:

(a) Requirements on technical capability;

(b) Requirements on financial capability;

(c) Requirements on experience.

The criterion for assessment of pre-qualification applications shall be the criterion of pass or fail which must be set out in the pre-qualification invitation documents and which must include criteria applicable to each requirement on technical capability, financial capability and experience.

For construction and installation packages and packages for selection of a general construction contractor (but not a general design contractor), the criteria for assessment of pre-qualification applications must also comply with the requirements on capability applicable to each type and level of construction works as stipulated in the Law on Construction.

2. Notice inviting pre-qualification applications

A notice inviting pre-qualification applications shall be in the standard form issued by the Ministry of Planning and Investment and must be published in three (3) consecutive editions of the Tendering Newsletter and on the tendering website; in the case of international tendering, the notice must also be published in an English newspaper which is widely circulated. After the afore-mentioned publications have been completed, a notice may also be published on other mass media. Prequalification application documents shall be provided free of charge to tenderers after ten (10) days have expired from the date of the first publication of the notice inviting pre-qualification applications and up until the deadline for submission of pre-qualification applications (pre- qualification closure).

3. Receipt and management of pre-qualification applications

The time-limit of seven (7) days shall apply for preparation of pre-qualification applications during domestic tendering and fifteen (15) days during international domestic tendering, as from the first day of issuance of the notice inviting pre- qualification applications. The party calling for tenders shall receive pre-qualification applications from tenderers and shall manage the applications in accordance with the regime for management of confidential files. Prequalification applications lodged correctly in accordance with the requirements set out in the notice inviting pre- qualification applications shall be opened publicly after the deadline for submission of such applications. Pre-qualification applications lodged after the deadline for submission shall not be opened and shall be returned unopened to tenderers by the party calling for tenders.

4. Assessment of pre-qualification applications

The party calling for tenders shall carry out an assessment of pre-qualification applications in accordance with the assessment criteria set out in the pre-qualification invitation documents.

5. Submission and approval of results of pre-qualification

The party calling for tenders shall make a submission to the investor to approve the pre- qualification results.

6. Notification of pre-qualification results

After the investor has approved the pre-qualification results, the party calling for tenders shall provide written notice of pre-qualification results to the participating tenderers in order to invite qualified tenderers to participate in tendering.

Chapter IV

OPEN TENDERING AND LIMITED TENDERING APPLICABLE TO TENDER PACKAGES FOR CONSULTANCY SERVICES

Section 1. PROVISIONS APPLICABLE TO TENDERERS WHICH ARE ORGANIZATIONS

Article 15. Preparation for tendering

1. Selection of the list of tenderers to invite to participate in tendering

Depending on the nature and specific conditions of each tender package, an investor conducting open tendering may immediately put out his notice inviting submission of tenders as stipulated in Clause 4 of this article or apply the procedures for selection of a list of consultants to invite to participate in the tendering, but the person making the investment decision must approve such items in the tendering plan. The procedures for selecting a list of consultants to invite to participate in tendering shall be conducted as follows:

(a) Applicable to open tendering

- The investor shall approve the request for expressions of interest with the following contents, namely requirements on capability and number of experts; requirements on financial capability, and requirements on experience.

- The criteria for assessment of expressions of interest shall be formulated on the basis of the criterion of pass or fail which must be set out in the request for expressions of interest, and shall include criteria applicable to the requirements on expertise and number of experts, and criteria on experience.

- A notice inviting expressions of interest must be published in three (3) consecutive editions of the Tendering Newsletter and on the tendering website; in the case of international tendering, the notice must also be published in an English newspaper which is widely circulated. After the afore-mentioned publications have been completed, a notice may also be published on other mass media.

- The request for expressions of interest shall be provided free of charge by the party calling for tenders to tenderers wishing to participate, from the date of first publication of the request for expressions of interest until the day before expiry of the deadline for submitting expressions of interest.

- The minimum time-limit for tenderers to prepare expressions of interest shall be fifteen (15) days in the case of domestic tendering and twenty (20) days in the case of international tendering, from the date of the first publication of the notice inviting expressions of interest.

- The party calling for tenders shall evaluate expressions of interest on the basis of the assessment criteria and submit a list of tenderers to be invited to participate in the tendering to the investor for approval.

(b) Applicable to limited tendering

The party calling for tenders shall select a minimum of 5 tenderers deemed to have sufficient capability and experience (in accordance with article 19 of the Law on Tendering) and who wish to participate in the tendering, and submit such list to the investor for his approval before inviting the tenderers to participate. If in fact there are less than 5 tenderers, then the investor shall report to the person making the investment decision or to the person delegated with authority to make the investment decision to decide to either immediately invite the tenderers who are in fact on the list, or to extend the time in order to seek other interested tenderers. If the time is extended but it is still impossible to find other interested tenderers, then the investor shall invite the present tenderers to participate in the tendering.

2. Preparation of tender invitation documents

(a) Bases for formulation of tender invitation documents

- The investment decision and the documents which served as the bases for the investment decision; the business registration certificate, and the investment certificate.

- The approved tendering plan.

- Provisions of the law on tendering and other relevant laws; international treaties or international agreements (if any) in the case of ODA financed projects.

- State policies on tax, wages, and preferences in international tendering or other relevant provisions.

If a tender package requires to be implemented before there is an investment decision, then the organization assigned the task of project preparation shall rely on the relevant documents in order to prepare the tender invitation documents and submit them to the head of the organization preparing the project for his approval.

(b) Contents of tender invitation documents

The tender invitation documents shall contain the items stipulated in article 32.2 of the Law on Tendering and shall be on the standard form issued by the Ministry of Planning and Investment, and must include the important requirements (pre- requisites) in order to eliminate tenders, specifically as follows:

- Any tenderer whose name is not on the list of tenderers who purchased tender invitation documents or who does not satisfy the conditions stipulated in article 17.2 of this Decree.

- Any tenderer who does not satisfy the conditions on eligibility stipulated in articles 7 and 8 of the Law on Tendering.

- Any tenderer who does not satisfy the conditions on capability stipulated in the Law on Construction.

- Any tenderer who does not provide original documents in its tender.

- Any tender submitted on an invalid tender form.

- Any tender in which the period of validity of the tender does not satisfy the requirements stipulated in the tender invitation documents.

- Any tenderer whose name appears in two or more tenders as the principal contractor (either as an independent contractor or as a member of a joint venture).

- Any tenderer who conducts a prohibited act as stipulated in article 12 of the Law on Tendering.

- Other important requirements particular to the tender package.

Any tenderer who breaches one of the pre-requisites set out in the tender invitation documents shall be eliminated and its tender shall not be considered further.

3. Approval of tender invitation documents

The person authorized to make the investment decision shall approve or authorize the investor to approve the tender invitation documents in accordance with article 60 of the Law on Tendering on the basis of the evaluation report from the evaluating body or organization.

4. Invitation to submit tenders

(a) Notice inviting submission of tenders

If the procedures for selecting a list of consultants to invite to participate in tendering are not applied, then the investor shall issue a notice inviting submission of tenders in the standard form issued by the Ministry of Planning and Investment and publish it in three (3) consecutive editions of the Tendering Newsletter and on the tendering website; in the case of international tendering, the notice must also be published in an English newspaper which is widely circulated.

In addition to the afore-mentioned publications, the notice may also be published on other mass media.

(b) Sending a letter inviting tenders

The party calling for tenders shall send a letter inviting submission of tenders to all tenderers on the list of tenderers invited to participate in the tendering as stipulated in clause 1 above.

The contents of the letter inviting submission of tenders shall be in accordance with the standard form set out in Appendix I issued with this Decree. The time- limit from the date of sending the letter inviting submission of tenders until the date of issuance of the tender invitation documents shall be a minimum of five (5) days in the case of domestic tendering and seven (7) days in the case of international tendering.

Article 16. Criteria for assessment of tenders

1. In the case of tender packages for consultancy services including construction consultancy services in accordance with the Law on Construction without high technical requirements:

(a) Assessment criteria of the following technical matters shall be carried out by the method of marking a points score (100 points, 1,000 points or so forth) in order to formulate assessment criteria of the following items:

- Experience and capability of the tenderer. The percentage of this item shall be stipulated as from ten (10) to twenty (20) per cent of the total points.

- Solution and methodology to be applied to the requirements of the tender package. The percentage of this item shall be stipulated as from thirty (30) to forty (40) per cent of the total points.

- Personnel of the tenderer who will perform the tender package. The percentage of this item shall be stipulated as from fifty (50) to sixty (60) per cent of the total points.

Assessment criteria as stipulated in the tender invitation documents must stipulate a level of minimum technical requirements which shall not be less than seventy (70) per cent of the total points. Any tender which scores technical points not less than the minimum required technical points shall be deemed technically responsive.

(b) Assessment criteria of financial matters

Assessment of financial matters shall be carried out by the method of marking a score (100, 1,000, …) in uniformity with the criteria for assessing technical matters. The financial score of each tender shall be determined as follows:

In which:

+ Lowest P means the tender price of all tenderers who have been deemed technically responsive after errors have been rectified and discrepancies have been adjusted.

+ P in question means the tender price of the tender in question after errors have been rectified and discrepancies have been adjusted.

(c) Criteria for overall assessment

- The criteria for an overall assessment shall be stipulated on the basis of the criteria for assessment of technical matters and the criteria for assessment of financial matters, in which the weight of technical points shall be stipulated as not less than seventy (70) per cent of the total points and the weight of financial points shall be stipulated as no higher than thirty (30) per cent of the total points.

- The overall points of any one tender shall be determined in accordance with the following formula:

Overall points = D technical x (K%) x D financial x (G%) In which:

+ K% is the weight of technical points (stipulated in the criteria for the overall assessment);

+ G% is the weight of financial points (stipulated in the criteria for the overall assessment);

+ D technical means the points awarded to the tender and determined at the stage of technical assessment in accordance with sub-clause (a) above;

+ D financial means the points awarded to the tender and determined at the stage of financial assessment in accordance with sub-clause (b) above.

2. For tender packages for consultancy services including tender packages for construction consultancy services in accordance with the Law on Construction with high technical requirements:

The assessment criteria of technical matters shall be stipulated in accordance with clause 1(a) of this article in which the minimum requirement on technical matters shall be stipulated as no lower than eighty (80) per cent of the total technical points.

Article 17. Holding tendering

1. Issuance of tender invitation documents

(a) The party calling for tenders shall sell the tender invitation documents, up until the deadline for [closure of] submission of tenders, to all tenderers who wish to participate in open tendering in a case of not applying procedures to select a list of tenderers to be invited to participate in tendering), or to the tenderers on the list of tenderers invited to participate in either open tendering or limited tendering, at the price stipulated in article 6.1 of this Decree. In the case of a joint venture tender, it shall be acceptable for only one member of the joint venture to purchase the tender invitation documents.

(b) Any amendment to or clarification of the tender invitation documents shall be made in accordance with articles 33.1 and 34 of the Law on Tendering.

2. Preparation of tender invitation documents

Tenderers shall prepare and submit their tenders in accordance with the requirements set out in the tender invitation documents. If any tenderer needs to change its status (name) to participate in the tendering from its name when it purchased the tender invitation documents, such tenderer must provide written notice to the party calling for tenders who shall only consider such notice if:

- Applicable to open tendering, he approves the change of status on receipt of the written notice thereon from the tenderer prior to the closing of tenders;

- Applicable to limited tendering, [if the change is notified] after the stage of selection of a list of tenderers to participate in tendering then depending on the specific case, the party calling for tenders shall consider the proposed change of name and report to the investor to make a decision on accepting or not accepting the change of status of the tenderer prior to closing of tenders, but ensuring competitiveness, fairness and transparency during tendering.

3. Receipt and management of tenders

The party calling for tenders shall receive tenders which have been submitted and shall treat them as confidential. Any tender submitted to the party calling for tenders after the deadline for submission of tenders shall be deemed ineligible and shall be returned to the tenderer unopened. Any document amending or supplementing the tender which is submitted by a tenderer after the deadline for submission of tenders shall be deemed invalid.

4. Amendment or withdrawal of tenders

Any tenderer wishing to amend or withdraw its submitted tender must provide written notice to the party calling for tenders, and the latter shall only accept such notification if it is received prior to the deadline for submission of tenders. Any request for withdrawal of a tender must be submitted separately from the tender.

5. Opening of technical proposals

(a) The opening of technical proposals shall be conducted publicly, immediately after expiry of the deadline for submission of tenders and on the date and time and at the place stipulated in the tender invitation documents, and shall be witnessed by persons present irrespective of the presence or absence of invited tenderers. The party calling for tenders may invite representatives of relevant bodies to the opening.

(b) The party calling for tenders shall open the technical proposal of each tenderer in alphabetical name order and in accordance with the following sequence:

- Check the sealing up of the tender;

- Open the technical proposal and read out and record in minutes the following basic information:

+ Name of the tenderer;

+ Number of originals and copies of the tender;

+ Validity period of the tender;

+ Any written request for amendment of the tender;

+ Other relevant information.

The minutes of opening of tenders shall be signed by representatives of tenderers, the representative of the party calling for tenders, and representatives of relevant bodies which are present.

After opening, the party calling for tenders shall sign each page of the original technical proposal of each tender and shall treat them as confidential. Assessment of technical proposals shall be carried out using copy documents. Tenderers shall be responsible for the accuracy of and consistency between copies and original documents, and also for the sealing up of their tenders.

Article 18. Assessment of tenders

Assessment of tenders for tender packages for consultancy services including tender packages

for construction consultancy services in accordance with the Law on Construction shall be based on the criteria for assessment of tenders and other requirements stipulated in the tender invitation documents and on the principles stipulated in article 28 of the Law on Tendering, and shall be conducted in the sequence stipulated in article 35 of the Law on Tendering as follows:

1. Preliminary assessment

(a) A check that the technical proposals are valid in terms of the requirements set out in the tender invitation documents.

- Validity of tender form: The tender form must be completed in full and bear the signature of the legal representative of the tenderer in accordance with the requirements set out in the tender invitation documents. The tender form of a joint venture tenderer must be signed by the legal representative of each member of the joint venture, or only by the leading member if the joint venture agreement stipulates that all members of the joint venture authorize the leading member to sign tender forms.

- Validity of the joint venture agreement: A joint venture agreement must specify the responsibilities, powers and quantity of work to be implemented by each member of the joint venture and the corresponding value of such work, must specify the leading member of the joint venture and the responsibilities of such member, and the agreement must be signed and sealed (if any) by members of the joint venture.

- There must be one of the following valid documents as required by the tender invitation documents: business registration certificate, investment certificate, decision on establishment; certificate of lawful registration of operation; and appropriate professional [practising] certificates.

- Number of originals and copies of the technical proposal.

- Appendices and documents attached to the tender.

b) Elimination of tenders which fail to satisfy the important requirements ( pre-requisites) set out in the tender invitation documents pursuant to article 15.2(b) of this Decree.

2. Detailed assessment

(a) For tender packages for consultancy services including tender packages for construction consultancy services in accordance with the Law on Construction without high technical requirements:

- Technical assessment

A technical assessment of tenders shall be held in order to confirm which tenders satisfy the requirements of the tender invitation documents. The investor shall approve a list of the tenderers satisfying the technical requirements in order to conduct an assessment of financial matters.

- Financial assessment

There shall be a public opening of the financial proposals of the tenderers who satisfied the technical requirements in the sequence stipulated in article 17.5(b) of this Decree. The minutes of opening of technical proposals shall include the following basic information:

+ Name of the tenderer;

+ Number of originals and copies of the tender;

+ Tender price stipulated in the tender form;

+ Technical points of tenders which satisfied the minimum requirements;

+ Other relevant information.

After opening tenders, the party calling for tenders shall sign each page of the original financial proposal of each tender and shall treat the tenders as confidential. Assessment of financial proposals shall be carried out using copy documents. Tenderers shall be responsible for the accuracy of and consistency between copies and original documents, and also for the sealing up of their financial proposals. Assessment of financial proposals shall be based on the criteria for assessment of financial proposals stipulated in the tender invitation documents.

- Overall assessment

An overall assessment shall be conducted of technical and financial matters in accordance with the criteria for the overall assessment stipulated in the tender invitation documents. The party calling for tenders shall propose to the investor that the tenderer with the highest overall points be ranked first and be invited to negotiate a contract in accordance with article 19 of this Decree.

(b) For tender packages for consultancy services including tender packages for construction consultancy services in accordance with the Law on Construction with high technical requirements:

Assessment of technical matters shall be conducted in accordance with the criteria stipulated in the tender invitation documents and in accordance with clause 2(a) above. Tenders with technical points no lower than the minimum required points shall be assessed as technically responsive and ranked by the party calling for tenders for approval by the investor. The first ranked tenderer shall be invited to witness the opening of the financial proposal and to negotiate a contract as stipulated in article 19 of this Decree.

Article 19. Negotiation of the contract

1. Based on the decision of the investor, the party calling for tenders shall invite the first ranked tenderer to negotiate the contract.

2. Contents of contract negotiation

(a) Tasks of the consultancy contractor and detailed items of work the consultancy contractor is required to implement;

(b) Items on technology transfer and training;

(c) Work plan and allocation of staff;

(d) Schedule;

(dd) Resolution of changes (if any) of staff;

(e) Arrangement of working conditions;

(g) Consultancy fees;

(h) Any other necessary matters.

If negotiation of the contract is unsuccessful, the party calling for tenders shall provide a report to the investor for the investor to consider and decide on inviting the next ranking tenderer to conduct negotiations.

Article 20. Submission for evaluation, approval and notification of the results of tendering

1. Submission for evaluation of the results of tendering for consultancy services packages shall be implemented in accordance with articles 37 and 39 of the Law on Tendering and articles 71 and 72 of this Decree.

2. Approval of the results of tendering shall be implemented in accordance with article 40 of the Law on Tendering.

3. Notification of the results on tendering shall be implemented in accordance with article 41 of the Law on Tendering and more specifically, immediately after there is a decision approving the results of tendering, the party calling for tenders shall provide written notification of the results of tendering to all participating tenderers, and must also send the plan for negotiation and finalization of the contract to the winning tenderer.

Article 21. Negotiation, finalization and signing of the contract

1. The negotiation, finalization and signing of the contract shall be implemented in accordance with article 42 and Chapter III of the Law on Tendering, and Section II of Chapter IV on the Law of Construction.

2. If negotiation and finalization of the contract is unsuccessful, the investor shall report to the person making the investment decision to rescind the decision approving the results of tendering and to consider and make a decision to select the next ranking tenderer to negotiate a contract in accordance with article 19 of this Decree, and in such case there may be a requirement that the tenderer extend the validity of its tender. The subsequent steps shall be implemented in accordance with articles 20 and 21 of this Decree.

Section 2. PROVISIONS APPLICABLE TO TENDERERS WHO ARE INDIVIDUAL CONSULTANTS

Article 22. Selection of a consultant contractor who is an individual

Depending on the nature, contents and scope of the consultancy work, the investor may consider an individual expert consultant who is able to accept work independently without requiring a number of experts or without requiring expert assistance from some other individual or organization, or where use of an individual consultant would be advantageous, and then the investor shall report to the person making the investment decision to approve such item in the tendering plan. Selection shall be carried out as follows:

1. The party calling for tenders shall formulate draft terms and conditions for reference and a draft contract for the necessary consultancy position and submit same to the investor for his consideration and approval. The draft terms and conditions for reference shall comprise:

(a) A summarized description of the project and of the consultancy work;

(b) Requirements on the scope, quantity and volume of work and time for performing same;

(c) Requirements on capability and expertise of the consultant;

(d) Conditions and location for providing the consultancy work and any other necessary items.

2. The party calling for tenders shall select at least three scientific curriculum vitae of three consultants who would comply with the requirements set out in the draft terms and conditions, and submit them to the investor for his approval; if in fact there are less than three proposed consultants, then this should also be reported to the investor for his decision.

3. The party calling for tenders shall assess the scientific curriculum vitae of the proposed consultants on the basis of the items set out in the draft terms and conditions for reference in order to select an expert who satisfies the requirements and then submit same to the investor for his decision.

4. The party calling for tenders shall conduct negotiations with the consultant proposed to be selected on the basis of the draft contract, the draft terms and conditions for reference, and other relevant information.

5. The investor shall, on the basis of the report received from the party calling for tenders, approve the results of selection and sign a contract with the selected consultant.

Chapter V

OPEN TENDERING AND LIMITED TENDERING APPLICABLE TO TENDER PACKAGES FOR PROCUREMENT OF GOODS, AND FOR CONSTRUCTION AND INSTALLATION

Section I. ONE-PHASE TENDERING

Article 23. Preparation for tendering

1. Pre-qualification shall be implemented in accordance with Chapter III of this Decree.

2. Preparation of tender invitation documents

(a) Bases for formulation of tender invitation documents

- The investment decision and the documents which served as the bases for the investment decision; business registration certificate; investment certificate;

- Approved tendering plan;

- Design data enclosing the approved estimated budget (in the case of a tender package for construction and installation);

- In the case of projects funded by ODA, regulations of the law on tendering and other relevant laws, and international treaties or international agreements (if any);

- Policies of the State on tax, wages, preferences in domestic tendering or other relevant regulations.

(b) Contents of tender information documents

- Tender invitation documents must comprise the items stipulated in article 32.2 on

the Law on Tendering and shall be on the standard form issued by the Ministry of Planning and Investment. In the case of a tender package for which pre- qualification has been conducted, the tender invitation documents need not include criteria for assessment of experience and capability of the tenderer, but must stipulate a requirement that tenderers reconfirm information on their capability and experience which was declared in their prequalification applications.

- Tender invitation documents should not stipulate requirements on brand names and country of origin of goods in accordance with article 12.5 of the Law on Tendering. In special cases where it is necessary to mention the brand name or catalogue of a certain manufacturer or that goods originate from a certain country for purposes of reference and illustration of the technical requirements of the goods, the words "or similar" must be added after the stipulated brand name, catalogue or origin of goods, and the concept of "similar" must be defined so that goods have similar technical specifications and usage as the mentioned goods. In the case of special or complex goods, there shall be a requirement that tenderers submit sales authorizations within the copyright of manufacturers.

- The tender invitation documents must include important requirements (pre- requisites) in order to eliminate tenders on the following specific grounds:

+ Any tenderer whose name does not appear on the list of tenderers purchasing tender invitation documents or who does not satisfy the provisions stipulated in article 28.2 of this Decree.

+ Any tenderer who does not satisfy the eligibility requirements stipulated in articles 7 and 8 of the Law on Tendering.

+ Any tenderer who has not provided a tender guarantee or who has provided an invalid guarantee, for example at a lower value or not in the currency stipulated, or with a shorter period of validity than that stipulated, or where the guarantee was not lodged at the address and within the time-limit stipulated in the tender invitation documents, or where the guarantee is not in the name of the tenderer (in cases referred to article 32 of this Decree), or where the guarantee is not an original document or bears ineligible signatures (in the case of a letter of guarantee from a bank or credit institution).

+ There is no original of the tender.

+ The tender form is invalid.

+ The period of validity of the tender does not satisfy the requirements in the tender invitation documents.

+ The tender fails to include a fixed tender price, or makes offers at different unit prices or with conditional prices which are disadvantageous to the investor.

+ Any tenderer with its name on two or more tenders as the principal tenderer (both as an independent tenderer and as a member of a joint venture).

+ Any tenderer who fails to satisfy the requirements on capability in accordance with article 7 of the Law on Construction.

+ Any tenderer who conducts a prohibited act as stipulated in article 12 of the Law on Tendering.

+ Failure to satisfy other important requirements particular to the tender package.

Any tenderer in breach of one of the pre-requisites stipulated in the tender invitation documents shall be eliminated and its tender shall not be considered further.

3. Approval of tender invitation documents

Approval of tender invitation documents shall be implemented in accordance with article 15.3 of this Decree.

4. Invitation to submit tenders

(a)  Notice inviting submission of tenders

A notice inviting submission of tenders in the case of open tendering without pre- qualification must be published, on the standard form issued by the Ministry of Planning and Investment, in three (3) consecutive editions of the Tendering Newsletter and on the tendering website; in the case of international tendering, the notice must also be published in an English newspaper which is widely circulated.

In addition to the afore-mentioned publications, the notice may also be published on other mass media.

(b) Sending of letters inviting submission of tenders

Applicable to limited tendering and to open tendering for which pre-qualification has been conducted, letters inviting submission of tenders shall be sent on the standard form in Appendix I issued with this Decree to tenderers on the list of

tenderers invited to participate in limited tendering or on the list of tenderers who have pre-qualified. The time-limit from the date of sending letters inviting submission of tenders until the date of issuance of tender invitation documents shall be a minimum of five (5) days in the case of domestic tendering and seven (7) days in the case of international tendering.

Article 24. General provisions on assessment criteria on technical matters

1. Use of a point score

(a) A maximum point score (100, 1,000 or so forth) shall be formulated as the assessment criteria of technical matters. The contents of the assessment criteria of technical matters in the case of a tender package for procurement of goods or for construction and installation shall be as stipulated in articles 25.2 and 26.2 of this Decree. The minimum points for technical matters shall be stipulated depending on the nature of each tender package but must be not less than seventy (70) per cent of the total points for technical matters, and in the case of tender packages with high technical requirements must be not less than eighty (80) per cent of the total points for technical matters.

In the case of a tender package for the selection of a general construction contractor (but not for selection of a general design contractor) there shall also be a requirement that the minimum points for each item of work shall not be less than seventy (70) per cent of the corresponding total points.

(b) In the case of tender packages for procurement of goods or for construction and installation, tenders shall be deemed technically responsive when they gain points not lower than the minimum required points for technical matters.

In the case of a tender package for the selection of a general construction contractor (but not for selection of a general design contractor) a tender shall be deemed technically responsive when it has been assessed for each item of work at not lower than the corresponding required minimum points and when its overall points for all items are not lower than the required minimum points for technical matters of the whole tender package.

2. Use of the pass and fail criterion

(a) Assessment criteria

The contents of the criterion for assessment of technical matters of tender packages for procurement of goods or for construction and installation shall be as stipulated in articles 25.2 and 26.2 of this Decree. The level of requirement applicable to each content shall depend on the nature of the tender package. Only the criterion of pass and fail may be used for contents deemed to be basic requirements of the tender invitation documents. With respect to items which are not basic requirements, in addition to the pass and fail criterion, it shall be permitted to use the "acceptable" criterion but this may not exceed thirty (30) per cent of the total requirements in the assessment criterion.

(b) A tender shall be evaluated as technically responsive when all basic requirements are assessed as "pass", and the other non-basic requirements are assessed as either "pass" or "acceptable".

Article 25. Assessment criteria of tenders in the case of tender packages for procurement of goods

The criteria for assessing tenders in a tender package for procurement of goods shall comprise assessment criteria of the capability and experience of the tenderer, and assessment criteria of technical matters and the method for determining equal footing prices (assessment prices), specifically as follows:

1. The criteria for assessing the capability and experience of tenderers applicable to tender packages in which pre-qualification is not conducted, comprising:

(a) Experience implementing similar packages in Vietnam and in foreign countries; and experience in activities in the main manufacturing and business sectors;

(b) Capability for manufacture and business, technical infrastructure, and standard of expertise of personnel;

(c) Financial capability being total assets, total payable debts, liquid capital, revenue, profit, value of contracts currently being performed and other criteria.

A determination of the level of the specific requirements of each criterion stipulated in sub-clauses (a), (b) and (c) hereof shall depend on the requirements of each tender package.

The criterion for assessment of the items stipulated in this clause shall be the criterion of pass or fail and a tenderer who achieves a pass for all three (3) items stipulated in sub- clauses (a), (b) and (c) above shall be assessed as responsive in terms of capability and experience.

2. Assessment of technical matters

Assessment criteria of technical matters shall be formulated in accordance with article 24 of this Decree and shall include criteria on ability to satisfy requirements on quantity and quality of the goods set out in the tender invitation documents, specifically:

(a) Special characteristics and technical specifications of the goods, manufacturing standards and other matters;

(b) The rationality and economic efficiency of technical solutions, and of the method organized for supplying the goods;

(c) Capability to install equipment and the qualifications of technical personnel;

(d) Level of responsiveness regarding the warranty requirement;

(dd) Capability to adapt to the geographical location;

(e) Impact on the environment and the method for resolving same;

(g) Capability to provide finance (if so required);

(h) Other factors regarding commercial and financial conditions, time for implementation, and training on technology transfer (if any).

3. Determination of assessment price

Making a determination of the assessment price means making a determination of an equal footing price on the same technical, financial and commercial grounds and other factors in order to compare and rank the tenders. The method for determination of assessment prices must be stipulated in the tender assessment criteria. Making a determination of the assessment price shall be implemented in the following order:

- Determination of tender price;

- Rectification of errors;

- Adjustment of discrepancies.

- Conversion of the tender price (after rectification of errors and adjustment of discrepancies) to a common currency (if any) as a basis for determination of the assessment price;

- Putting costs on an equal footing to determine the assessment price, including:

+ Technical conditions such as implementation schedule; output and efficiency

of machinery and equipment; level of consumption of electricity, fuel and raw materials; costs of operation and maintenance; lifespan of goods and other technical requirements depending on the particular package;

+ Financial and commercial conditions;

+ Preferences in international tendering (if applicable);

+ Other factors.

A determination of the factors constituting the assessment price shall depend on the nature of the particular package. Tenders shall be ranked in order of their assessment prices and the tender with the lowest assessment price shall be ranked first.

Article 26. Assessment criteria of tenders in the case of tender packages for construction and installation

The criteria for assessing tenders in a tender package for construction and installation shall comprise assessment criteria of capability and experience of the tenderer, and assessment criteria of technical matters and the method for determining assessment prices, specifically as follows:

1. The criteria for assessing capability and experience of tenderers applicable to tender packages in which pre-qualification is not conducted, comprising:

(a) Experience implementing similar packages in Vietnam and in areas with similar geographical and site conditions;

(b) Technical capability including the number and qualifications of senior personnel and technicians who will directly perform the work, and the number of items of construction equipment available and the capability to mobilize other construction equipment to carry out the work;

(c) Financial capability being total assets, total payable debts, liquid capital, revenue, profit, value of contracts currently being performed and other criteria.

A determination of the level of the specific requirements of each criterion stipulated in sub-clauses (a), (b) and (c) hereof shall depend on the requirements of each tender package.

The criterion for assessment of the items stipulated in this clause shall be the criterion of pass or fail and a tenderer who achieves a pass for all three items stipulated in sub-clauses (a), (b) and (c) above shall be assessed as responsive in terms of capability and experience.

2. Assessment of technical matters

Assessment criteria of technical matters shall be formulated in accordance with article 24 of this Decree and shall include criteria on ability to satisfy requirements on technical design and accompanying bills of quantity, specifically:

(a) The reasonableness and feasibility of technical solutions and methods for implementing construction consistent with the proposals on the construction schedule.

The tender invitation documents should stipulate if a tenderer is permitted to propose alternative construction execution methods from those stipulated in the tender invitation documents, except in a case where due to the nature of the tender package the tenderers must all strictly comply with the execution method set out in such documents. The tender invitation documents should also stipulate the criteria for assessing the proposals from tenderers on alternative construction execution methods.

(b) Ability to ensure environmental hygiene and other conditions such as fire prevention and fire fighting, and labour safety.

(c) The level of responsiveness to requirements on providing a warranty.

(d) Quality control measures.

(dd) Construction schedule.

(e) Other contents (if any).

Use of either the criterion for assessment of the above-mentioned technical matters being pass or fail, or the method of awarding points, shall depend on the nature and specific conditions of each tender package. If it is desired to allow tenderers to submit replacement or additional methods and to make creative suggestions which may be more effective for the tender package, then this must be specified in the tender invitation documents which must also specify the criteria and methods for assessing such alternative proposals including the tender price.

If it is necessary to speed up the process of assessing tenders for a tender package for construction and installation with simple technical requirements, then the tender invitation documents may specify that assessment shall be conducted by way of simultaneous consideration of technical items, of tender prices of tenderers, and of the schedule for performing the package as proposed by the tenderers.

3. Determination of assessment price

Making a determination of the assessment price means making a determination of an equal footing price on the same technical, financial and commercial grounds and other factors in order to compare and rank tenders. The method for determining assessment prices must be stipulated in the assessment criteria. Determination of an assessment price shall be implemented in the following order:

- Determination of tender price;

- Rectification of errors;

- Adjustment of discrepancies.

- Conversion of the tender price (after rectification of errors and adjustment of discrepancies) to a common currency (if any) as a basis for determination of the assessment price;

- Putting costs on an equal footing to determine the assessment price, including:

+ Technical conditions such as implementation schedule; management fees; costs of operation and maintenance; lifespan of goods and other technical requirements depending on the particular package;

+ Financial and commercial conditions;

+ Preferences in international tendering (if applicable);

+ Other factors.

A determination of the factors comprising the assessment price shall depend on the nature of the particular tender package. Tenders shall be ranked in order of their assessment prices and the tender with the lowest assessment price shall be ranked first.

Article 27. Assessment criteria of tenders in the case of tender packages for selection of a general construction contractor (but not for selection of a general design contractor)

The criteria for assessing tenders in the case of a tender package for the selection of a general construction contractor (but not for selection of a general design contractor) shall comprise the criteria for each item of work stipulated in articles 16.1(a), 24, 25 and 26 of this Decree.

Article 28. Holding tendering

1. Issuance of tender invitation documents

(a) The party calling for tenders shall, up until closure of tenders, sell the tender invitation documents to all tenderers on the list of those who have pre-qualified, to all tenderers invited to participate in limited tendering, or to all tenderers who wish to participate in open tendering at the selling price stipulated in article 6.1 of this Decree. In the case of a joint venture tender, it shall be acceptable for only one member of the joint venture to purchase the tender invitation documents.

(b) Any amendment to or clarification of the tender invitation documents shall be implemented in accordance with articles 33.1 and 34 of the Law on Tendering.

2. Preparation and receipt of, and amendment to or withdrawal of tenders These items shall be implemented in accordance with clauses 2, 3 and 4 of article 17 of this Decree.

If any tenderer needs to change its status (name) to participate in the tendering as compared to its name when it purchased the tender invitation documents, such tenderer must provide written notice to the party calling for tenders. The party calling for tenders shall only consider such change if:

- Applicable to open tendering, he approves the change of status on receipt of the written notice thereon from the tenderer prior to the closing of tenders;

- Applicable to limited tendering or to open tendering after pre-qualification, depending on the specific case, the party calling for tenders shall consider the proposed change of name and report to the investor to make a decision on accepting or not accepting the change of status of the tenderer prior to closing of tenders, but ensuring competitiveness, fairness and transparency during tendering.

3. Opening of tenders

(a) The opening of tenders shall be conducted publicly, immediately after expiry of the deadline for submission of tenders and on the date and time and at the place stipulated in the tender invitation documents, and shall be witnessed by persons present irrespective of the presence or absence of invited tenderers. The party calling for tenders may invite representatives of relevant bodies to the opening.

(b) The party calling for tenders shall open, one at a time, the tender of each tenderer whose name appears on the list of tenderers purchasing the tender invitation documents and who submitted a tender prior to the deadline for submission of tenders, in alphabetical name order and in the following sequence:

- Check the sealing up of the tender;

- Open the tender and read out and record in minutes the following basic information;

+ Name of the tenderer;

+ Number of originals and copies of the tender;

+ Validity period of the tender;

+ Tender price recorded on the tender form and any price reductions;

+ Value and validity period of the tender guarantee;

+ Any written request for amendment of the tender;

+ Other relevant information.

The minutes of opening of tenders shall be signed by the representative of the party calling for tenders, representatives of tenderers, and representatives of relevant bodies which are resent.

After opening, the party calling for tenders shall sign each page of the original tender of each tenderer and shall treat the tenders as confidential. Assessment of tenders shall be carried out using copy documents. Tenderers shall be responsible for the accuracy of and consistency between copies and original documents, and also for the sealing up of their tenders.

Article 29. Assessment of tenders

Assessment of tenders shall be conducted on the basis of the criteria stipulated in the tender invitation documents and on the basis of other requirements stipulated in such documents, on the principles for assessment of tenders stipulated in article 28 on the Law on Tendering and in the sequence stipulated in Article 35 on the Law on Tendering, specifically as follows:

1. Preliminary assessment

(a) A check that the tenders are valid

- Validity of tender form: The tender form must be completed in full and bear the signature of the legal representative of the tenderer in accordance with the requirements set out in the tender invitation documents. The tender form of a joint venture tenderer must be signed by the legal representative of each member of the joint venture, or by the leading member if the joint venture agreement stipulates that all members of the joint venture authorize the leading member to sign tender forms.

- Validity of the joint venture agreement: A joint venture agreement must specify the responsibilities, powers and quantity of work to be implemented by each member of the joint venture and the corresponding value of such work, and who is the leading member of the joint venture and the responsibilities of such member, and the agreement must be signed and sealed (if any) by the members of the joint venture.

- There must be one of the following valid documents as required by the tender invitation documents: business registration certificate, investment certificate, decision on establishment or certificate of lawful registration of operation; and sales authorization from manufacturers with copyright (if required).

- Number of originals and copies of the tenders.

- Validity of the tender guarantee.

- Appendices and documents attached to the tender.

(b) Elimination of tenders which fail to satisfy the pre-requisites set out in the tender invitation documents pursuant to article 23.2(b) of this Decree.

(c) An assessment of the capability and experience of tenderers in accordance with the criteria set out in the tender invitation documents, in the case of tender packages in which prequalification is not conducted. Depending on the conditions of each tender package, assessment of the capability and experience of tenderers may be conducted at the stage of preliminary assessment of all tenderers who have submitted a valid tender and who are not in breach of the prerequisites; or else an assessment of the capability and experience may be conducted after determining the assessment prices and if so, must be stipulated in the tender invitation documents. Only the tenders of tenderers who are assessed as having satisfied the requirements on capability and experience as set out in the tender invitation documents shall be considered during the following stages.

2. Detailed assessment of tenders

(a) Assessment of technical matters

The assessment criteria for technical matters must be stipulated in the tender invitation documents. During the process of assessment, the party calling for tenders shall have the right to request a tenderer to explain or clarify unclear or unusual items in its tender. Only those tenders which the investor has approved as satisfying technical requirements shall be eligible for further assessment in accordance with sub-clause (b) below.

During the process of considering and approving the list of tenderers who satisfy the requirements on technical matters, in necessary cases the investor may request the party calling for tenders to re-assess the technical items of tenders which have [only] been awarded with points approximately equal to the minimum required points, but which have a low tender price and which could render the project more efficient.

(b) Determination of assessment prices

Determination of assessment prices shall be implemented in accordance with articles 25.3 and 26.3 of this Decree.

3. Ranking of tenders based on the assessment prices

The tender with the lowest assessment price shall be ranked first. In a case of conducting preliminary assessment or in the case where the capability and experience of tenderers has not yet been assessed at the preliminary stage, then after the investor approves the list ranking all the tenderers in accordance with their assessment prices, the party calling for tenders may assess the ability and capability of the first ranked tenderer. If the capability and experience of the first ranked tenderer does not satisfy the requirements, then such an assessment should be conducted of the next ranked tenderers.