Thông tư 11/2016/TT-BKHDT

THE MINISTRY OF PLANNING AND INVESTMENT
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THE SOCIALIST REPUBLIC OF VIETNAM
Independence– Freedom – Happiness
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No.  11/2016/TT-BKHDT

Hanoi, July 26, 2016

MINISTER




Nguyen Chi Dung

                    STEPS

        ENTITY IN CHARGE

BIDDING DOCUMENTS

Procurement number: _______________

Package’s name: _______________

Project: _______________

[insert the procurement number, package’s name and the project’s name according to the plan for Bidder selection]

Issued on: _______________

[insert date of issuing invitation for bids for Bidders]

Issued together with Decision: _______________

[insert number and date of the Decision on approval for the invitation for bids]

Consulting by
(if any)
[full name and seal]

Employer 
[full name and seal]

EPC

Engineering-Procurement of goods-Construction

ITB

Instructions to Bidders

BDS

Bid Data Sheet

GCC

General Conditions of Contract

SCC

Special Conditions of Contract

Law on bidding

Law on bidding No. 43/2013/QH13 dated November 26, 2013 of the National Assembly

Decree 63/CP

Government’s Decree No. 63/2014/ND-CP dated June 26, 2014 on guidelines for the Law on Investment in terms of selection of contractors

VND

Vietnamese dong

USD

US Dollar

EUR

Euro

Content

Page

Chapter I. Instructions to Bidders

Section 1. Scope of Bid

Section 2. Sources of Funds

Section 3. Fraud and Corrupt Practices

Section 4. Eligible Bidders and Eligible Materials, Equipment and Services

Section 5. Contents of Bidding Document

Section 6. Clarification of Bidding Document, Site Visit, Pre-Bid Meeting

Section 7. Amendment of Bidding Document

Section 8. Cost of Bidding

Section 9. Language of Bid

Section 10. Documents Comprising the Bid

Section 11. Letter of Bid and Schedules

Section 12. Documents Establishing the Eligibility and Qualifications of the Bidder

Section 13. Technical Proposal

Section 14. Bid Prices and Discounts

Section 15. Alternative Bids

Section 16. Currencies of Bid and Payment

Section 17. Period of Validity of Bids

Section 18. Bid Security

Section 19. Format and Signing of Bid

Section 20. Sealing and Marking of Bids

Section 21. Deadline for Submission of Bids

Section 22. Late Bids

Section 23. Withdrawal, Substitution, and Modification of Bids

Section 24. Confidentiality

Section 25. Clarification of Bids

Section 26. Deviations, Reservations and Omissions

Section 27. Responsiveness of Bids

Section 28. Nonmaterial Nonconformities

Section 29. Subcontractors

Section 30. Incentives in Selection of Bidders

Section 31. Technical Proposal Opening

Section 32. Technical Proposal Opening

Section 33. Financial Proposal Opening

Section 34. Financial Proposal Evaluation and Ranking of Bidders

Section 35. Negotiation of Contract

Section 36. Conditions for Successful Bidder

Section 37. Publishing results of bidder selection

Section 38. Letter of Acceptance and Award of Contract

Section 39. Bidding Cancellation

Section 40. Conditions for Signing of Contract

Section 41. Performance Security

Section 42. Handling Complaints in Bidding

Section 43. Monitoring Bidder Selection Progress

Chapter II. Bid Data Sheet (BDS)

Chapter III. Evaluation and Qualification Criteria

Section 1. Evaluation of Validity of Technical Proposal

Section 2. Qualification Criteria

Section 3. Technical Evaluation Criteria

Section 4. Evaluation of Validity of the Financial Proposal

Section 5. Financial Evaluation Criteria

Section 6. Alternative Bid (if any)

Chapter IV. Bidding Forms

A. Letter of Technical Bid

Form No. 01. Letter of Bid

Form No. 02. Power of Attorney

Form No. 03. Joint Venture Agreement

Form No. 04. Bid Security

Form No. 05a. Bidder’s Information Sheet

Form No. 05b. JV’s Information Sheet

Form No. 06. List of companies in charge of package work

Form No. 07. Previous Contract Non-Fulfillment Records

Form No. 08. Pending Litigation

Form No. 09. Historical Financial Situation of Bidder

Form No. 10. Average Annual Turnover from consultancy, procurement of goods and construction

Form No. 11. Financial Resources

Form No. 12. Monthly financial resources for contracts being executed

Form No. 13. Similar contracts

Form No. 14. Proposed Personnel for Key Positions

Form No. 15. Resume of Personnel for Key Positions

Form No. 16. Working Experience

Form No. 17. Equipment

Form No. 18(a). Proposed Subcontractors

Form No.18 (b). Proposed Special Subcontractors

B. Letter of Financial Bid 

Form No. 19(a). Letter of Bid (without discount offer in the Letter of Bid or with discount offer submitted in a separate Letter of Discount)

Form No.19 (b). Letter of Bid (with discount offer in the Letter of Bid)

Form No. 20. Grand Summary

Form No. 21. Schedules of Payment Currencies

Form No. 22. Bill of Quantities

Form No. 23. Daywork Schedule

Form No. 24. Summary of Specified Provisional Sums

Form No. 25. Schedule of Adjustment Data

Form 25’. Declarations of domestically-produced costs of Goods eligible for incentives

Chapter V. Project and Package

1. Project

2. Package

Chapter VI. Time Schedule

1. Time Schedule of Project

2. Time Schedule of Package and Milestones

Chapter VII. Technical Specifications

1. Technical Specifications

2. Functional Guarantees

Chapter VIII. Drawings

Chapter IX. General Conditions Of Contract

Chapter X. Special Conditions of Contract

Appendix 1. Examples of special conditions of contract

Appendix 1.1. Insurance requirements

Appendix 1.2. Terms and Procedures of Payment

Appendix 1.3. Management of Taxes, Fees, and Charges

Appendix 1.4. Functional Guarantees

Chapter XI. Contract Forms

Form No. 26. Letter of Acceptance and Notification of Award

Form No. 27. Contract Agreement

Form No. 28. Performance Security

Form No. 29. Bank Guarantee for Advance payment

Form No. 30. Taking Over Certificate

Form No. 31. Completion Certificate

Form No. 32. Change Order Procedures and Forms

Form No. 33. Request for Change Proposal Form

Form No. 34. Change Proposal Form

Form No. 35. Estimate for Change Proposal Form

Form No. 36. Acceptance of Estimate Form

Form No. 37. Change Order Form

Form No. 38. Contract Appendix on Change

Form No. 39. Specific Time Schedule

Form No. 40. List of Documents for Approval or Review by Investor

Form No. 41. List of Subcontractors

Appendix 2. Examples and Guidelines for Bidding Documents.

Example 1. Technical Evaluation Criteria using Weighted Scoring Method

Example 2. Technically Criteria Evaluation using Pass/Fail Criteria

Example 3. Calculation of Value of Efficiency or Loss Penalties of Thermal Power Projects

Example 4: Notes of Preparing Bill of Quantities (Hydropower Projects)

Example 5: Technical Specifications and Package Requirements

__ [location],__________[date]
INVESTOR'S REPRESENTATIVE
(Full name, position, signature and seal)

1. Scope of Bid

1.1. The Employer indicated in the BDS, issues these Bidding Documents for the EPC package as specified in  Part 2 – Employer’s Requirements.

1.2. The name and number of package prescribed in the BDS.

1.3. Contract duration shall comply with the BDS.

2. Sources of Funds

Sources of Funds (or capital-raising methods) to be used for the package are specified in the BDS.

3. Fraud and Corruption

3.1. Corrupt practice.

3.2. Take advantage of positions, powers aiming to interfere illegally in a bidding process.

3.3. Collusive practice, including the following acts:

a) Agreeing on bidding withdrawal or withdrawal of Letter of Bid already been submitted so that one party or parties in agreement win bid;

b) Agreeing that one party or parties jointly prepare(s) Bidding Documents so that one party may win bid;

c) Agreeing on refusal for supply of Goods, refusal for concluding  contracts with subcontractors, or causing of other difficulties to parties which refuse to participate in agreement.

3.4. Fraudulent practice, including the following acts:

a) Providing a wrong presentation intentionally or falsifying information, documents of a Bidder with the aim to obtain financial benefits or other benefits or with the aim to avoid any obligation;

b) Individuals who directly assess the Bidding Documents and results of Bidder selection provide wrong reports or untrue information falsifying the results of Bidder selection;

c) Bidders intentionally provide dishonest information in the Bidding Documents falsifying the result of Bidder selection.

3.5. Interference practice, including the following acts:

a) Destroying, cheating, changing, hiding proof or reporting contrary to the truth; threatening, disturbing or suggesting with any Bidder with the aim to prevent the clarification of corrupt, fraudulent or conclusive practice with authorities in charge of supervisions, inspections and audit;

b) Impeding Bidders, authorities in charge of supervision, inspection and audit.

3.6. Inequality and intransparency, including the following acts:

a) The Employer makes a Bid as a Bidder or performs tasks of a Bidder for its own Invitation for bids.

b) Formulating and engaging in evaluation of the Bidding Documents of the same package;

c) Engaging in evaluation of the Bidding Documents and assessing the results of Bidder selection of the same package;

d) Any individual of the Employer, Investor directly participates in the Bidder selection process, or participates in an expert group or evaluation group for results of Bidder selection, or a Head of the Employer has packages of which his or her natural parent, parent-in-law, spouse, natural child, adopted child, son or daughter-in-law or sibling is a Bidder or a legal representative of the Employer;

dd) The Employer make a bid for the EPC package for which it provided consultancy services;

e) Any individual makes a bid in his/her name for the package of a project whose Employer or Investor is his/her workplace within 12 months, from the date on which he/she quits his/her job from such workplace;

g) Applying a method of Bidder selection other than National Competitive Bidding upon the unsatisfaction of requirements prescribed in the Law on bidding;

h) Specifying detailed requirements pertaining to trademarks and origin of Goods in the Invitation for Bids;

i) Dividing a project into packages contrary to the provisions in the Law on Bidding with the aim to apply Direct contracting or Bidder limitations.

3.7. Disclosing or receiving the following documents in terms of the Bidder selection process, other than the cases prescribed in Point b Clause 7 of Article 73, Clause 12 of Article 74, Point i Clause 1 of Article 75, Clause 7 of Article 76, Clause 7 of Article 78, Point d Clause 2 of Article 92 of the Law on Bidding:

a) Contents of the Bidding Documents before the issuing time as prescribed;

b) Contents of Bid, notebooks and minutes of bid consideration meetings, comments and evaluation regarding each Bid prior to the announcement of the results of Bidder selection;

c) Contents of Requests for Clarification of Bids made by the Employer and responses of the Bidder during the process of evaluation of Bids prior to announcement of the results of Bidder selection;

d) Reports of the Employer and expert group, evaluation reports, reports of consulting Bidder, reports of relevant specialized agencies during the Bidder selection process prior to announcement of the results of Bidder selection;

dd) Results of Bidder selection prior to the stipulated time for announcement;

e) Other documents during the Bidder selection process which are stamped "confidential" as prescribed by law.

3.8. Contract transfer, including the following acts:

a) Any Bidder transfers to another Bidder a part of work under package at value of 10% or more or under 10% but greater than  VND 50 billion (after deducting part of work under responsibilities of subcontractors) calculated on the Contract Price;

b) The investment owner or the supervision consultant permits the Bidder to transfer work under their duties, except for the part of work under duties of sub-contractors as stated in contract.

3.9. Holding selection of Bidder when the Sources of Funds for the package has not yet been determined, resulting in insolvency of the Bidder.

4. Eligible Bidders and Eligible Supply, Equipment and Services

4.1. An eligible Bidder must:

a) Have been granted an enterprise registration certificate, a establishment decision or equivalent issued by a competent authority of the country in which the Bidder is operating;

b) Keep independent accounting records;

c) Be not undergoing dissolution process, is not thrown into bankruptcy, and does not incur bad debts as prescribed by law;

d) Ensure the competitiveness in bidding as prescribed in the BDS;

dd) Be not banned from bidding as prescribed in law on bidding;

e) Have registered on national bidding network;

g) Have Parties in the joint venture or subcontractors being Vietnamese Bidder as prescribed in BDS.”

4.2. Eligible Materials, Equipment and Related Services:

a) All the Materials, Equipment and Related Services to be supplied under the Contract may be considered eligible if they have clear and lawful origin. The Bidder must specify symbols, trademarks (if any) and origin of primary major supply and equipment. The Employer may request the Bidder to provide supporting documents for origin of the supply and equipment. Regarding other types of supply and equipment, the Bidder must specify their origin during the execution of the Contract.

b) The term “origin” means the country or territory where a product is wholly obtained or produced completely; or the place where the last substantial transformation took place for a product which has been produced in more than one country;

c) Documents proving the origin of supply and equipment, and eligibility of Related Services may consist of: Certificate of origin, certificate of quality, bill of lading, deliverables related to supply and equipment; and documents proving the eligibility of Services provided for the package.

5. Contents of Bidding Documents

5.1. The Bidding Documents consists of Notice of Updates of Bidding Documents  (if any) and Parts 1, 2, and 3 in conjunctions with any Addendum issued in accordance with ITB Section 8. (if any).

5.2. The Employer is not responsible for the accuracy and completeness of the Bidding Documents and their addenda, minutes of pre-bid meeting (if any) or documents on amendments to Bidding Documents as specified in ITB Section 7 if they were not obtained directly from the Employer. If documents received by the Bidder and documents issued by the Employer are different, the later shall apply.

5.3. The Bidder shall to examine all instructions, forms, terms, and specifications in terms of the Employer’s requirements and financial requirements and other requirements in the Bidding Documents to furnish all information or documentation required by the Bidding Documents.

6. Clarification of Bidding Documents, Site Visit, Pre-Bid Meeting

6.1. A prospective Bidder requiring any clarification of the Bidding Documents shall contact the Employer in writing or ask questions in the pre-bid meeting (if any) as specified in ITB Section 6.4. The Employer will respond in writing to any request for clarification, provided that such request is received no later than a given days prior to the deadline for submission of Bid as specified in BDS. The Employer shall forward copies of its response to all those who have acquired the Bidding Documents directly from it, including a description of the inquiry but without identifying its source.   Should the Employer deem it necessary to amend the Bidding Documents as a result of a clarification, it shall do so following the procedure under ITB Section 7 and ITB Section 21.2.

6.2. The Bidder is advised to visit and examine the site and its surroundings and obtain for itself on its own responsibility all information that may necessary for preparing the Bid and entering into a Contract. The costs of visiting the site shall be at the Bidder’s own expenses.

6.3. The Bidder and any of its personnel or agents will be granted permission by the Employer to enter upon its premises and lands for the purpose of such visit, but only upon the express condition that the Bidder, its personnel, and agents will release and indemnify the Employer and its personnel and agents from and against all liability in respect thereof. The Bidder, its personnel, and agents will be responsible for accidents, loss or damage to property, and any other loss, damage, costs, and expenses incurred as a result of the inspection.  In exceptional circumstances, the Employer shall provide the Bidder with guidelines for Site Visit as specified in BDS.

6.4. The Employer shall hold a Pre-Bid Meeting if provided for in the BDS. The purpose of the meeting will be to clarify issues and to answer questions on any matter that may be raised in connection with the Bidding Documents. The Bidder is requested, as far as possible, to submit any question in writing, to reach the Employer before the pre-bid meeting.

Minutes of the pre-bid meeting shall include: the text of the questions raised (without identifying the source), and the responses given by the Employer. The minutes of the pre-bid meeting will be transmitted to all Bidders who have acquired the Bidding Documents from the Employer. Should the Employer deem it necessary to amend the Bidding Documents as a result of a pre-bid meeting, it shall do so following the procedure under ITB Section 7, the minutes of the pre-bid meeting is different from the addendum of Bidding Documents. Absence from the pre-bid meeting is not a reason for disqualifying a Bidder.

7. Amendment of Bidding Documents

7.1. At any time prior to the deadline for submission of Bid, the Employer may amend the Bidding Documents by issuing addendum.

7.2. Any addendum issued shall be part of the Bidding Documents and shall be communicated in writing to all who have obtained the Bidding Documents directly from the Employer.

7.3. Each addendum shall be sent to all Bidders who have obtained the Bidding Documents directly from the Employers within a given time as specified in the BDS. To give prospective Bidders reasonable time in which to take an addendum into account in preparing their bids, the Employer may extend the deadline for submission of Bid, pursuant to ITB Section 21.2. The Bidder must notify the Employer of the receipt of the addendum in wiring, by post, via fax or email.

8. Cost of Bidding

The Bidder shall bear all costs associated with the preparation and submission of its bid. The Employer shall not be responsible or liable for those costs.

9. Language of Bid

The Bid, as well as all correspondence and documents relating to the Bid exchanged by the Bidder and the Employer, shall be written in the language prescribed in the BDS.

10. Documents comprising the Bid

The Bid includes Technical Proposal and Financial Proposal, which comprise the following:

10.1. Technical Proposal includes administrative documents, legal documents, qualification documents, technical proposals of the Bidder as required by Bidding Documents. In particular:

a) Letter of Technical Bid in accordance with ITB Section 11 ;

b) Joint venture agreement (for any Bidder in a joint venture) using form 03 Chapter IV - Bidding Forms;

c) Bid Security, in accordance with ITB Section 18;

d) Written confirmation of eligible Bidder, in accordance with ITB Section 4.1;

dd) Written confirmation of origin of supply and equipment and eligibility of services in accordance with ITB Section 4.2

e) Written confirmation authorizing the signatory of the Bid to commit the Bidder, in accordance with ITB Section 19.3;

g) Documentary evidence in accordance with ITB Section 12 establishing the Bidder’s qualifications; 

h) Technical Proposal in accordance with ITB Section 13.

10.2. Financial Proposal shall include the following:

a) Letter of Financial Bid in accordance with ITB Section 11;

b) Financial Proposal and Schedules, in accordance with ITB Section 11 and Section 14.

10.3. Alternative Bids, in accordance with ITB Section 15; in conjunction with Financial Proposal related to the Alternative Bids (if any);

10.4. Any other document specified in the BDS.

11. Letter of Bid and Schedules

The Bidder shall submit the Letter of Technical Bid and Letter of Financial Bid, and equivalent Schedules using the forms furnished in Chapter IV - Bidding Forms.

12. Documents Establishing the Qualifications of the Bidder

The Bidder shall fill essential information in the forms mentioned in Chapter IV – Bidding Forms to establish the Bidder’s qualifications to perform the contract in accordance with Chapter III - Evaluation and Qualification Criteria. The Bidder shall prepare original documents for verification at the request of the Employer. In case of application of the prequalification, if there is any change to the information about the Bidder’s qualification between the Bid and the application for prequalification, the new information shall be updated; if not, the Bidder shall issue a commitment to satisfy all the package’s criteria.

13. Technical Proposal

The Bidder shall furnish a Technical Proposal including a statement of work methods, equipment, personnel, schedule and any other information as stipulated in Chapter IV - Bidding Forms, in sufficient detail to demonstrate the adequacy of the Bidder’s proposal to meet the work requirements and the completion time.

14. Bid Prices and Discounts

14.1. Bid price means the price to be quoted in the Letter of Financial Bid, including the total price of the bid (excluding any discounts offered) to perform the package, in accordance with Part 2 – Employer’s requirements.

14.2. The Bidder shall submit the Bid with all lots and items specified in ITB Section 1.1 and the Bid unit price and amount of all lots and items shall be stated in columns "Description" in the Grand Summary and Bill of Quantities for each item or component prescribed in Forms No. 20, 21, 22, 23, 24 Chapter IV - Bidding Forms. In case the Bidder insert no value or insert “0” in the columns “Unit Price” and “Total Price”, the Bidder shall be considered allocating the price of this work item to another work item of the package, the Bidder shall be responsible for performing these work items in conformity with the Bidding Documents’ requirements without any payment from the Investor during the contract performance, except for total price quoted by item or component.

14.3. Discount offered by the Bidder shall be written directly on the Letter of Financial Bid or on a separate Letter of Discount. The Bidder shall specify the discounting method and discounted items mentioned in Columns “List of Goods” and “Description”. If discounting method is not specified, it will be understood all items mentioned in the columns “Description” receive equal discounts. The Letter of Discount may be submitted separately or together with the Financial Proposal as long as it is received by the Employer before the deadline for submission of Bid. Any Letter of Discount separately submitted shall comply with ITB Sections 20.2 and 20.3. The Letter of Discount shall be preserved as part of the Financial Proposal and opened together with the Bid.

14.4. The Bidder shall be held accountable for their unit price to perform task as required by the Bid, if the Bid Price is not unusual, the Employer may request the Bidder to clarify the proportion of unit price in accordance with ITB Section 25.

The Bid Price quoted by the Bidder shall include all taxes, fees and charges (if any) determined at 28 days prior the deadline for submission of Bid. In case the Bid Price is not inclusive of taxes, fees and charges (if any), the Bid of the Bidder shall be rejected.

14.5. Bid Price of the Bidder is fixed. If price adjustment is permitted during the contract execution time as specified in Conditions of Contract, the Bidder must propose the price adjustment using the Form No. 25 of Chapter IV – Bidding Forms according to Escalation Formula prescribed in Chapter X – Special Conditions of Contract.

15. Alternative Bids

15.1. Unless otherwise indicated in the BDS, alternative bids shall not be considered.

15.2. The Alternative Bids shall only be considered if it satisfies requirements and the Bidder is ranked the first. In this event, the Bidder must provide all essential information about: description, drawings, technical specifications, delivery schedule and other relevant information. The evaluation of Alternative Bids shall comply with Section 6 Chapter III – Evaluation and Qualification Criteria.

16. Bid currency and Payment currency payment

The Bid currency and Payment currency are prescribed in BDS.

17. Period of Validity of Bids

17.1. The Bid including Technical Proposal and Financial Proposal shall remain valid for the period which is not shorter than the period specified in the BDS. The Technical Proposal or Financial Proposal valid for a shorter period shall be rejected by the Employer as non responsive.

17.2. In exceptional circumstances, prior to the expiration of the bid validity period, the Employer may request bidders to extend the period of validity of their bids (including the period of validity of Technical Proposal and Financial Proposal). If a Bid Security is requested, it shall also be extended for a corresponding period (equivalent to the extended validity period plus 30 days).  If the Bidder refuse the request, its Bid shall not be kept considering and the Bid Security shall be returned. The Bidder accepting the request may not change any content of the Bid.  The request and the responses shall be made in writing.

18. Bid Security

18.1. When submitting a bid, the Bidder shall furnish a Bid Security before the deadline for submission of Bid in the form of either a letter of credit or a bank guarantee from a bank a credit institution lawfully operating in Vietnam using Form No. 04 Chapter IV – Bidding Forms or in another form provided that it contains essential contents. In the event that the validity period of the bid is extended as prescribed in ITB Section 17.2, the Bid Security is also extended with the same validity period.

If a joint venture make a bid, it may perform the Bid Security following one of two methods below:

a) Every JV’s Party may perform separate Bid Security provided that total value of the Bid Security is not lower than that mentioned in ITB Section 18.2; if the Bid Security is not valid, the Bid of the joint venture shall be rejected as non-responsive. If any JV’s Party violates law on bidding leading its Bid Security is not returned as prescribed in ITB Section 18.5, and the Bid Security shall not be returned.

b) If all JV’s Parties conclude an agreement in which one Party will be responsible for its Bid Security or for Bid Security of other Parties in the joint venture. The Bid Security shall be in the name of the joint venture or the JV’s Party in charge provided that the total value is not lower than that mentioned in ITB Section 18.2. If any JV’s Party violates law on bidding leading its Bid Security is not returned as prescribed in ITB Section 18.5, and the Bid Security shall not be returned.

18.2. Value, currency and validity period of the Bid Security shall be specified in the BDS.

18.3. A Bid Security shall be not considered valid in one of the following cases: it has lower value, shorter validity period as required in ITB Section 18.2, inaccurate the Employer’s name (beneficiary), non-original paper and invalid signature and accompanying of disadvantaged conditions to the Employer.

18.4. The unsuccessful Bidder shall be either returned or released the Bid Security within the period as prescribed in the BDS, from the date on which the notification of the Bidder selection is sent.

With regard to the successful Bidder, the Bid Security shall be returned or released after the Bidder performs Performance Security.

18.5. The Bid Security shall not be returned in one of the following cases:

a) The Bidder withdraws its Bid (including Technical Proposal or Financial Proposal) after the deadline for submission of Bid and during the period of bid validity;

b) The Bidder violates law on bidding which leads to be cancelled bid as prescribed in ITB Section 39.1;

c) The Bidder fails to furnish the Performance Security as prescribed in ITB Section 41;

d) The Bidder fails to or refuses to negotiate finalize the contract, within a period of 05 days from the date of receipt of notification of contract negotiation except for force majeure cases;

dd) The Bidder fails or refuses to finalize and sign the contract, within a period as mentioned in the notification of contract award sent by the Employer except for force majeure cases.

19. Format and Signing of Bid

19.1. The Bidder shall prepare the documents comprising the Bid consisting of: 1 original copy of Technical Proposal and 1 original copy of Financial Proposal as described in ITB Section 10 and a number of photocopies of the Technical Proposal, Financial Proposal as prescribed in the BDS. The cover of the documents comprising the Bid shall be clearly marked “TECHNICAL PROPOSAL ORIGINAL”, “FINANCIAL PROPOSAL ORIGINAL”, “TECHNICAL PROPOSAL PHOTOCOPY”, “FINANCIAL PROPOSAL PHOTOCOPY”.

If there any amendments to or replacement for Technical Proposal or Financial Proposal, the Bidder shall prepare one original and a number of photocopies of the Bid as prescribed in the BDS. The cover of documents shall be clearly marked “MODIFIED TECHNICAL PROPOSAL ORIGINAL”, “MODIFIED TECHNICAL PROPOSAL PHOTOCOPY”, “MODIFIED FINANCIAL PROPOSAL ORIGINAL”, “MODIFIED FINANCIAL PROPOSAL PHOTOCOPY”, “SUBSTITUED TECHNICAL PROPOSAL ORIGINAL”, “SUBSTITUEDSUBSTITUTE TECHNICAL PROPOSAL PHOTOCOPY”, “SUBSTITUEDSUBSTITUTE FINANCIAL PROPOSAL ORIGINAL”, “SUBSTITUEDSUBSTITUTE FINANCIAL PROPOSAL PHOTOCOPY”.

If there is an Alternative Bid as prescribed in ITB Section 15, the Bidder shall prepare one original and a number of photocopies of documents as prescribed in the BDS. The cover of documents shall be clearly marked “ORIGINAL OF ALTERNATIVE BID”, “PHOTOCOPY OF ALTERNATIVE BID”.

19.2. The Bidder shall be responsible for the discrepancy between the original and the copies. In the event of any discrepancy between the original and the copies does not lead to any change to the rank of the Bidder, the original shall prevail. In the event of any discrepancy between the original and the copies leading change to the rank of the Bidder, the Bid shall be rejected.

19.3. The original of Technical Proposal and Financial Proposal shall be typed or written in indelible ink and have page numbers. Letter of Bid, Letter of Discount (if any), additional documents, clarifying documents, Price Schedule and other forms prescribed in Chapter IV  - Bidding Forms must bear the signature and seal of the Bidder’s legal representative or authorized representative  (if any). The authorized representative must obtain a Power of Attorney using form 02 of Chapter IV – Bidding Forms or a copy of the Company Charter, a certified Decision on Establishment of branch or other documents proving the competence of the authorized representative, and it shall be submitted together with the Bid.

19.4. If the Bidder is a joint venture, the Bid must bear the signatures of legal representatives or all JV’s Parties or the Party that represents the joint venture according to the joint venture agreement. In order to ensure that all JV’s Parties are legally bound, the joint venture agreement must bear the signatures of legal representatives of all JV’s Parties.

19.5. Any interlineations, erasures, or overwriting shall be valid only if they are signed or initialed by the person signing the Bid.

20. Sealing and Marking of Bids

20.1. The Technical Proposal envelope contains the original and the copies and clearly marks it “TECHNICAL PROPOSAL”. The Financial Proposal envelope contains the original and the copies and clearly marks it “FINANCIAL PROPOSAL”.

If there is any revision or replacement of Technical Proposal or Financial Proposal, the modified or alternative documents (including the original and the copies) shall be put into separate envelopes and clearly mark it “MODIFIED TECHNICAL PROPOSAL”, “SUBSTITUTE TECHNICAL PROPOSAL”, “MODIFIED FINANCIAL PROPOSAL”, “SUBSTITUTE FINANCIAL PROPOSAL”.

If the Bidder has an Alternative Bid which concludes Technical Proposal and Financial Proposal, it shall be put into a separate envelope and clearly mark it “ALTERNATIVE TECHINICAL PROPOSAL”.

These envelopes: including Technical Proposal, Financial Proposal, Modified Technical Proposal, Modified Financial Proposal, Substitute Technical Proposal, Substitute Financial Proposal (if any); Alternative Bid (if any), shall be sealed. The sealing of envelopes shall comply with regulations provided by the Bidder.

20.2. The outer envelopes shall:

a) bear the name and address of the Bidder;

b) be addressed to the Employer in accordance with ITB Section 21.1;

c) bear the name of the procurement in accordance with ITB Section 1.2; and

d) bear a warning:  “not to open before the time and date for Technical Proposal opening” regarding envelopes of Technical Proposal, Modified Technical Proposal, or Substitute Technical Proposal (if any); bear a warning “Do not to open before the time and date of Financial Proposal opening” regarding envelopes of Financial Proposal, Modified Financial Proposal, or Substitute Financial Proposal (if any).

20.3. If the envelopes are not sealed or the seals thereof are lost during the process they are transferred to the Employer, or they are not marked as required in ITB Sections 20.1. and 20.2, the Bidder shall be responsible for those violations. The Employer will assume no responsibility for the confidentiality of the bid if the Bidder fails to comply with above regulations.

21. Deadline for the submission of bids

21.1. Bids must be received by the Employer at the address and no later than the deadline for submission of Bid specified in the BDS. The Employer shall receive Bids of all Bidders submitted before the deadline for submission of Bid, including those who have bought or received the Bidding Documents from the Employer. Any Bidder that has not bought the Bidding Documents must pay the Employer an amount equal to the selling price for a set of Bidding Documents before their Bid envelopes are received.

21.2. The Employer may extend the deadline for submission of Bid by amending the Bidding Documents in accordance with ITB Section 7, in which case all rights and obligations of the Employer and Bidders previously subject to the deadline shall thereafter be subject to the deadline as extended.

22. Late Bids

The Employer shall not consider any bid that arrives after the deadline for submission of bids. Any bid received by the Employer after the deadline for submission of bids shall be declared late, rejected and returned unopened to the Bidder.

23. Withdrawal, Substitution, and Modification of Bids

23.1. A Bidder may withdraw, substitute, or modify its Bid after it has been submitted by sending a written notice in accordance with ITB Clause 10, duly signed by a legal representative or an authorized representative, and shall include a copy of the Power of Attorney in accordance with ITB Section 19.3. The corresponding substitution or modification of the bid must accompany the respective written notice. All notices must be:

a) submitted in accordance with ITB Sections 19 and 20, and in addition, the respective envelopes shall be clearly marked “MODIFIED TECHNICAL PROPOSAL” OR “MODIFIED FINANCIAL PROPOSAL” or “SUBSTITUTED TECHNICAL PROPOSAL” or “SUBSTITUED FINANCIAL PROPOSAL”, or “WITHDRAWAL”; and

b) received by the Employer prior to the deadline prescribed for submission of bids, in accordance with ITB Section 21.1.

23.2. Bids requested to be withdrawn in accordance with ITB Section 23.1 shall be returned unopened to the Bidders.

23.3. No bid may be withdrawn, substituted, or modified in the interval between the deadline for submission of bids and the expiration of the period of bid validity specified by the Bidder on the Letter of Bid or any extension thereof.

24. Confidentiality

24.1. Information relating to the evaluation of bids, and recommendation of contract award, shall not be disclosed to bidders or any other persons not officially concerned with such process until publication of the Contract Award. No information mentioned in the bid of the successful Bidder is disclosed to any other bidders, except for information disclosed at the Technical Proposal and Financial Proposal opening.

24.2. Except for case of the bid clarification prescribed in  ITB Section 25 and the negotiation of contract, the Bidder is not permitted to contact to the Employer on any matter related to its bid and the package from the bid opening time until the publication of Contract Award.

25. Clarification of Bids

25.1. After opening Technical Proposal and Financial Proposal, the Bidder is responsible for clarifying Technical Proposal and Financial Proposal at the request of the Employer. Any request for clarification of the Employer and any response of the Bidder shall be in writing. In the event that there is no documentary evidence establishing the Bidder’s qualifications in the Bidding Documents, the Employer shall request the Bidder to clarify and supplement that documentary evidence. Regarding technical and financial proposals mentioned in Technical Proposal and Financial Proposal, the clarification may not change essential information about the Bidder, Bid and Bid price. The Bidder must notify the Employer of the receipt of the addendum in wiring, by post, via fax or email.

25.2. The Clarification of Bids between the Bidder and the Employer shall be in writing.

25.3. During the period prescribed in the BDS, in the event that there is no documentary evidence establishing the Bidder’s qualifications in the Bidding Documents, the Bidder may supplement that documentary evidence. The Employer shall receive the Clarification of Bids sent by the Bidder; documentary evidence establishing the Bidder’s qualifications shall be an integral part of the Bid. The Employer shall notify of receipt of Clarification of Bids in writing in writing, by post, by fax or email.

25.4. The Clarification of Bids shall only be made between the Bidder and the Employer having the bid that needs clarifying. The contents of the Clarification of Bids shall be treated as an integral part of the Bid by the Employer. Regarding clarification in terms of the Bidder’s qualification, technical requirements or financial requirements, if the deadline for clarification expires, but the Bidder fails to send any clarification or the clarification does not satisfy requirements of the Employer, the Employer shall evaluate the Bid sent prior to the deadline for submission of Bid by the Bidder.

25.5. If necessary, the Employer shall request possibly successful Bidders to clarify their Bids. The Clarification of Bids shall be kept record. The Clarification of Bids shall be provided objectively and transparently .

26. Deviations, Reservations, and Omissions

During the evaluation of Bids, the following definitions apply:

26.1. “Deviation” means a departure from the requirements specified in the Bidding Documents;

26.2. “Reservation” means the setting of limiting conditions or withholding from complete acceptance of the requirements specified in the Bidding Documents;

26.3. “Omissions” means the failure to submit part or all of the information or documentation required in the Bidding Documents.

27. Determination of Responsiveness

27.1. The Employer shall determine a bid’s responsiveness as prescribed in ITB Section 11.

27.2. A substantially responsive bid means one that meets all the requirements of the Bidding Documents  without material deviation, reservation, or omission. A material deviation, reservation, or omission is one that:

a) if accepted, would affect in any substantial way the scope, quality, or performance of the work; or limit in any substantial way, inconsistent with the Bidding Documents, the Investor's rights or the Bidder’s obligations under the proposed Contracts; or

b) if rectified, would unfairly affect the competitive position of other Bidders presenting substantially responsive Bids.

28.3. The Employer shall examine all technical aspects of the Bid submitted in accordance with ITB Sections 13, in particular, to confirm that all criteria prescribed in Part 2 – Employer’s requirements, have been met without any material deviation, reservation or omission.

27.4. If a bid is not substantially responsive to the requirements of the Bidding Documents, it shall be rejected and may not subsequently be made responsive by correction of the material deviation, reservation, or omission.

28. Nonmaterial Nonconformities

28.1. Provided that a Bid is substantially responsive, the Employer may waive any nonconformities in the bid that do not constitute a material deviation, reservation or omission.

28.2. Provided that a bid is substantially responsive, the Employer may request that the Bidder submit the necessary information or documentation, within a reasonable period of time, to rectify nonmaterial nonconformities in the bid related to documentation requirements. Requesting information and documentation on such nonconformities shall not be related to any aspect of the price of the Bid. Failure of the Bidder to comply with the request may result in the rejection of its Bid.

28.3. Provided that a Bid is substantially responsive, the Employer shall rectify nonmaterial nonconformities related to the Bid Price. To this effect, the Bid Price shall be adjusted, for comparison purposes only, to reflect the price of a missing or nonconforming item or component.

29. Subcontractor

29.1. The Contractor is entitled to enter into agreements with subcontractors mentioned in the list as prescribed in Form 18(a) of Chapter IV – Bidding Forms. There is no change to the responsibilities of the primary Contractor in spite of employment of any subcontractor. The Contractor shall be responsible for quantity, quality, schedule and other responsibilities performed by the subcontractor. The subcontractor’s qualifications shall be considered during the contractor’s bid evaluation (excluding special subcontractors). The Contractor is required to meet all qualification requirements (not considering qualification of subcontractors).

If the Contractor does not propose any subcontractor for any task, the whole package shall under responsibilities of the Contractor. If any subcontractor is employed during the performance of the contract, the Contractor shall be accused of conducting “Contract transfer” as prescribed in ITB Section 3.

29.2. The Contractor may employ subcontractors to perform works may not exceed the given percentage in the Bid Price as specified in BDS.

29.3. The Contractor may not subcontract other tasks mentioned in the Bid; any subcontractor other than those mentioned in the Bid shall not be replaced or added or subcontractors may not perform tasks with a value greater than the value given in ITB 29.2 without a reasonable and legitimate reasons and the Investor’s consent; if not, the Contractor shall be accused of conducting “Contract transfer”.

29.4. The Investor may permit the Contractor to employ special subcontractor as prescribed in the BDS. The Contractor shall make a list of special subcontractors with qualifications and work experience using form 18(b) of Chapter IV – Bidding Forms. The Bidder shall evaluate the special subcontractor’s qualifications according to the criteria prescribed in Clause 2.3 Section 2 - Qualification Criteria in Chapter III - Evaluation and Qualification Criteria If the subcontractor and the Contractor fail to satisfy the criteria of the Bidding Documents, the bid shall be considered as non responsive.

30. Incentives in bidder selection

30.1. Rules for incentives:

a) After incentives are determined, if prospective Bids are equally ranked, the Bidder has proposed the highest domestic costs or has employed more local labor (over total amount of wages payable prescribed in the Bid) shall be given incentives;

b) If the Bidder is eligible for more than one incentive, only the highest incentive is accepted in accordance with the Bidding Documents;

c) The incentives shall be determined according to all Bidder’s proposals of consultancy, procurement of goods, and construction.

30.2. Entities eligible for incentives and determination of incentives are set out in BDS.

31. Technical Proposal  Opening T

31.1.Except for cases prescribed in ITB Sections 22 and 23, all Technical Proposals received prior to the deadline for submission of Bid shall be opened and read out information prescribed in ITB Section 31.3 the Employer.   The Technical Proposal opening shall be held in public at the address, date and time specified in the BDS in the witness of participants being Bidders’ representatives and relevant agencies and organizations. The Technical Proposal opening shall be conducted regardless of the absence of any Bidder’s representative.

31.2. First, envelopes marked “WITHDRAWAL” shall be opened and read out and the corresponding bid shall not be opened, but returned to the Bidder. No bid withdrawal shall be permitted unless the corresponding withdrawal notice contains a valid authorization to request the withdrawal.

Next, envelopes marked “SUBSTITUTED TECHNICAL PROPOSAL” shall be opened and read out and exchanged with the corresponding Technical Proposal being substituted; the initial Technical Proposal envelope shall not be opened and returned to the Bidder as is. No Technical Proposal Substitution shall be permitted unless the corresponding substitution notice contains a valid authorization to request the substitution and is read out at the bid opening.

Envelopes marked “MODIFIED TECHNICAL PROPOSAL” be opened and read out with the corresponding Technical Proposal. No Modified Technical Proposal shall be permitted unless the corresponding modification notice contains a valid authorization to request the modification and is read out at the bid opening. Only envelopes that are opened and read out at the Technical Proposal opening shall be considered further.

31.3. The bid opening shall be conducted to every Technical Proposal or Alternative Substitute Technical Proposal according to the alphabet order of the Bidders’ names and following procedures:

a) The seals shall be checked and the envelopes marked “TECHNICAL PROPOSAL”, “MODIFIED TECHNICAL PROPOSAL” (if any) or “SUBSTITUTE TECHNICAL PROPOSAL” (if any) shall be opened;

b) All other envelopes, including original, modified or substitute (if any) shall be opened and read out: the name of the Bidder, the validity period of Technical Proposal, the performance period and the value and validity period of the Bid Security and other details as the Employer may consider appropriate.

c) Number of photocopies of Technical Proposal and relevant information, including Alternative Bid (if any) shall be read out;

d) The representative of the Employer shall countersign original copy of Letter of Bid of Technical Proposal, Power of attorney (if any), Joint Venture Agreement (if any), Bid Security. No Bid shall be rejected at Bid opening except for late bids, in accordance with ITB Section 22.

dd) The Employer and bidders shall reach a consensus on sealing how to seal the envelopes marked “FINANCIAL PROPOSAL”, “MODIFIED FINANCIAL PROPOSAL”, “SUBSTITUTE FINANCIAL PROPOSAL”. After sealing, the Employer shall preserve envelopes in conformity with management regime of confidential document until Financial Proposals are opened as prescribed in ITB Section 33.

31.4. The Employer shall prepare a record of the Bid opening that shall include prescribed in ITB Section 31.3. The record of Technical Proposal opening shall be countersigned by the representative of the Bidders participating in the Technical Proposal opening. If any signature of the Bidders is left in the record, it shall be invalid. A copy of the record shall be distributed to all Bidders who participate in the bid opening.

32. Technical Proposal  Evaluation

32.1. The Employer shall apply criteria mentioned in this Section and method for evaluation prescribed in BDS to evaluate the Technical Proposals. Any other criterion or method other than those mentioned above shall not be permitted to apply.

32.2. Inspection and evaluation the validity of the Technical Proposal:

a) The inspection and evaluation of the validity of the Technical Proposal shall comply with Section 1 of Chapter III - Evaluation and Qualification Criteria;

b) The bidders having valid Technical Proposal shall be considered further.

32.3. Qualification evaluation:   

a) The evaluation of Bidder’s qualification shall comply with Section 2 of Chapter III - Evaluation and Qualification Criteria;

b) The bidders satisfying qualification requirements shall be considered further.

32.4. Technical evaluation:

a) The Technical evaluation shall comply with Section 3 of Chapter III - Evaluation and Qualification Criteria;

b) The bidders satisfying technical evaluation shall be considered further as prescribed in Section 4, 5 of Chapter III - Evaluation and Qualification Criteria.

32.5. List of bidders satisfying technical requirements shall be approved in writing. The Employer shall send the List of bidders satisfying technical requirements to all bidders, which contains invitations of bidders satisfying technical requirements to open Financial Proposal, together with time and location of opening Financial Proposal.

33. Financial Proposal Opening

33.1. The Financial Proposal opening shall be held in public at the address, date and time specified in the Notification of List of bidders satisfying technical requirements, in the witness of participants being Bidders’ representatives and relevant agencies and organizations. The Financial Proposal opening shall be conducted regardless of the absence of any Bidder’s representative.

33.2. At the Financial Proposal opening, the Employer shall announce List of bidders satisfying technical requirements and then check seals of the envelopes marked “FINANCIAL PROPOSAL”, “MODIFIED FINANCIAL PROPOSAL”, “SUBSTITUTE FINANCIAL PROPOSAL”.

33.3. First, envelopes marked “SUBSTITUE FINANCIAL PROPOSAL” shall be opened and read out and exchanged with the corresponding Substitute Financial Proposal, and the Substitute Financial Proposal shall not be opened, but returned to the Bidder. No Financial Proposal substitution shall be permitted unless the corresponding substitution notice contains a valid authorization to request the substitution.

Envelopes marked  “MODIFIED FINANCIAL PROPOSAL” shall be opened and read out with the corresponding Financial Proposals. No Financial Proposal modification shall be permitted unless the corresponding modification notice contains a valid authorization to request the modification. Only envelopes that are opened and read out at the Financial Proposal opening shall be considered further.

33.4. The Financial Proposal opening shall be conducted to every Financial Proposal according to the alphabet order of the Bidders’ names and following procedures:

a) All other envelopes, including original, modified or substitute (if any) shall be opened and reading out: the name of the Bidder, validity period of Financial Proposal, Bid Prices of Letter of Financial Bid, the Bid Prices mentioned in the Grand Summary, value of discounts (if any), validity period of Financial Proposal and other details as the Employer may consider appropriate. Only discounts read out at the Financial Proposal opening shall be considered further;

b) Quantity of photocopies of Financial Proposal and other details shall be read out;

c) Representative of the Employer shall countersign original copy of Financial Proposal and Letter of Discount (if any). No Financial Proposal of a bidder whose name mentioned in the List of bidders satisfying technical requirements shall be rejected at Financial Proposal opening.

33.5. The Employer shall prepare a record of the Financial Proposal opening that shall include information prescribed in ITB 33.2, 33.3 and 33.4. The record of Technical Proposal opening shall be countersigned by the representative of the Bidders participating in the Technical Proposal opening. If any signature of the Bidder is left in the record, it shall be invalid. A copy of the record shall be distributed to all Bidders who satisfy technical requirements.

34. Financial Proposal Evaluation and Ranking of bidders

34.1. The Employer shall apply criteria mentioned in this Section and method for evaluation prescribed in BDS to evaluate the Financial Proposals. Any other criterion or method other than those mentioned above shall not be permitted to apply.

34.2. Inspection and evaluation the validity of the Financial Proposals:

a) The inspection and evaluation of the validity of the Financial Proposals shall comply with Section 4 of Chapter III - Evaluation and Qualification Criteria;

b) The bidders having valid Financial Proposals shall be considered further and ranked.

34.3. Detailed evaluation of Financial Proposal and ranking of bidders:

a) Detailed evaluation of Financial Proposals shall comply with Section 5 Chapter III - Evaluation and Qualification Criteria.

b) After carrying out detailed evaluation of Financial Proposal, the Employer shall submit a List of ranking of bidders for the Investor’s approval. The first-ranking bidder shall be invited to enter into negotiation. The ranking of bidders shall comply with the BDS.

35. Negotiation

35.1. According to the decision on approval for the List of ranking of bidders, the Employer shall invite the first-ranking bidder to enter into negotiation.  The contract negotiation is based on:

a) Bid evaluation report;

b) The Bid and Clarification of Bids (if any) submitted by the Bidder;

c) Bidding Documents.

35.2. Contract negotiation contents:

a) Negotiating nonclarification or nonconformities between the Bidding Documents and the Technical Proposal, Financial Proposal, between different contents in the Technical Proposal or Financial Proposal possibly leading dispute or affecting the duties of contracting parties during the performance of the contract;

b) Negotiating amendments or alternative bids if permitted by the Employer;

c) Negotiating personnel:

In the negotiation process, the Bidder may not replace key employees proposed in the Technical Proposal to hold positions of design manager, survey manager, construction site commander, unless Bid evaluation period lasts longer than prescribed period or a force majeure event occurs leading key employees proposed fail to participate in the contract execution. In this event, the Bidder is entitled to replace other personnel provided that be expected personnel satisfies at least qualification requirements acquired by the proposed personnel and the Bid price does not change;

d) Negotiating issues incurring from the bidder selection (if any) to complete the detailed contents of the package;

dd) Negotiating nonmaterial nonconformities prescribed in ITB Section 28;

e) Negotiating other essential contents.

35.3. During the contract negotiations, both parties shall make a draft contract; terms and conditions, and contract appendices, including detailed lists of Scope of Supply, Price Schedule and Performance Schedule.

35.4. If the negotiation is not successful, the Employer shall request the Investor to invite the bidder ranked next to contract negotiation; if the negotiation with the next bidder is not successful, the Employer shall request the Investor to consider canceling the bidding as prescribed in ITB Section 39.1.

36. Conditions for successful bidder

A bidder shall be proposed for contract award when following conditions are satisfied:

36.1. The bidder has a valid Bid;

36.2. The bidder is qualified as required in Section 2 of Chapter III - Evaluation and Qualification Criteria;

36.3. The bidder has a satisfactory technical proposal as prescribed in Section 3 of Chapter III - Evaluation and Qualification Criteria;

36.4. The deviation is not more than 10% of the Bid Price;

36.5. The bidder meets requirements as prescribed in the BDS;

36.6. The successful bid does not exceed the approved package price. If the successful bid exceeds the approved package price, Clause 7, 8 Article 117 of Decree No. 63/CP shall apply.

37.  Publishing of bidder selection result

37.1. Before the deadlines prescribed in the BDS, the Employer shall send notifications of bidder selection result to related bidders by post or fax and post it on national bidding network or the Vietnam Public Procurement Review Journal as prescribed. Contents of the notification of bidder selection result:

a) Name and number of package;

b) Name of the successful bidder;

c) Address of the successful bidder;

d) Successful bid;

dd) Type of contract;

e) Contract duration;

g) List of unsuccessful bidders and brief explanation for each of them.

37.2. Regarding bidding cancellation prescribed in Point a ITB Section 39.1, the explanation for the bidding cancellation shall be provided in the notification of bidder selection result.

37.3. Upon the receipt of notification of the bidder selection result prescribed in ITB Section 37.1, if any unsuccessful bidder requests explanation, the Employer shall, within 05 working days from the date on which the notification of bidder selection result is published, give explanation.

38. Letter of Acceptance and Notification of Award

Together with the notification of bidder selection result, the Employer shall send Letter of Acceptance and Notification of Award, including requirements pertaining to performance security, time for completion and conclusion of contract prescribed in form 26 of Chapter XI – Contract Forms to the successful bidder, provided further that the Bidder is determined to be qualified to perform the Contract satisfactorily.  The Letter of Acceptance and Contract Award shall be an integral of the Contract documents. In the event that the successful bidder fails to complete and conclude the contract or pay Performance Security before the deadline mentioned in the Letter of Acceptance and Contract Award, such bidder shall be rejected without Bid Security return as prescribed in Point dd ITB Section 18.5.

39. Bidding cancellation

39.1. The Employer shall notify the bidding cancellation in the following cases:

a) All Bids fail to meet requirements mentioned in the Bidding Documents;

b) The Employer changes objectives and scope of investment specified in the Bidding Documents;

c) Bidding Documents fail to comply with law on bidding or other regulations of relevant law provisions leading the nonsatisfaction of the successful bidder.

d) There is any evidence for corrupt, fraudulent or conclusive practice, or taking advantage of positions, powers aiming to interfere illegally in a bidding process to falsify results of bidder selection.

39.2. Any organization or individual violating law on bidding leading bidding cancellation (as prescribed in Point c and Point d of ITB Section 39.1) must compensate relevant contracting parties and face penalties as prescribed.

39.3. Regarding bidding cancellation prescribed in ITB Section 39.1, within 5 working days, the Employer shall return or release Bid Security to bidders, excluding bidding cancellation prescribed in Point d of ITB Section 39.1.

40. Conditions for signing of contract

40.1. The Bid of the Bidder shall remain valid at the time of signing of contract.

40.2. At the time of signing of contract, the successful Bidder shall be determined to have technical and financial qualification to perform the contract. In case the Bidder is no longer qualified as prescribed in the Bidding Documents, the Investor shall refuse to conclude the contract with the Bidder. Then, the Investor shall cancel the decision on approval for bidder selection result and send Letter of Acceptance and Contract Award to the next ranked bidder.

40.3. The Investor shall ensure condition related to advance and payment capital, site and other essential conditions to perform the contract on schedule.

41. Performance Security

41.1. Before the effective date of the contract, the successful bidder shall furnish the Performance Security in the form of a Bank Guarantee issued by a bank or a credit institution lawfully operating in Vietnam as prescribed in Chapter X - Special Conditions of Contract. The Bidder shall, if applicable, use the Bank Guarantee form prescribed in form 28 of Chapter VIII - Contract Forms or another form which is approved by the Investor.

41.2. The Bidder shall be not returned the Performance Security in one of the following cases:

a) Refuse to perform the contract on the effective date of the contract.

b) Violate terms and conditions of the contract;

c) Perform the contract behind the schedule and refuse to extend the validity period of the Performance Security.

42. Handling complaints in bidding

Bidders are entitled to file complaints against the bidder selection progress and result to the Investor, competent persons, advisory board at the address prescribed in the BDS when they found their lawful rights and interests are infringed. The complaints in bidding shall be handled as prescribed in Section 1 of Chapter XII of the Law on Bidding and Section No. 2  Chapter XII of Decree No. 63/CP.

43. Monitoring bidder selection progress

When any act or content unaccordant with law on bidding is detected, the Bidder shall notify organizations or individuals of monitoring bidder selection progress as prescribed in the BDS.

ITB 1.1

The Employer is:  [insert complete name].

ITB 1.2

The package’s name: [insert name according to the approved plan for selection of bidder] of [insert project’s name according to the approved decision on investment].

ITB 1.3

Contract duration; _____[insert detail time according to the approved plan for bidder selection].

ITB2

Sources of Funds (or capital-raising methods): _____[insert Sources of Funds or capital-raising methods to pay for the Bidder; if the package is funded by ODA, name of donors and proportion of Sources of Funds (overseas or domestic)].

ITB 4.1 (d)

 Assurance of competitiveness in bidding shall be prescribed as follows:

- The Bidder and ____[insert name and address of the Investor, the Employer]  do not hold more than 30% of shares or stakes of each other,  unless the Investor, the Employer and the Bidder are in the same state-owned economic corporation and the product of the package is the input of the Investor and the Employer and the output of the Bidder and the primary business line of the corporation.

- The Bidder and the solicitation consulting units documents not hold stake of each other; the Bidder and another organization or individual do not hold more than 20% stake of each other. In particular:

+ Consulting unit on making and evaluating feasibility study report, Front End Engineering Design (FEED) for such package: ____[insert complete name and address (if any)];

+ Consulting unit on making and evaluating the Bidding Documents: ____[insert complete name and address of consultancy unit (if any)];

+ Consulting unit on evaluating the Bid; evaluating results of bidder selection: ____[insert complete name and address (if any)];

- The Bidder and ___[insert name and address of the Investor or the Employer] are not in the same supervisory agency or organization; - The Bidder are short-listed and the Bidder and the following bidders do not hold more than 20% of shares or stakes of each other______[insert names and addresses of the bidders included in the short list].

ITB 4.1 (g)

Regarding foreign bidders: ___[if the Employer determines that the package tasks may be performed by domestic bidders, then insert: “If a foreign bidder wishes to make a bid, it is required to enter into a joint venture with a domestic bidder and employ a domestic subcontractor. If the Bidder decides to employ subcontractors, the proposed scope and volume of task with subcontractors' names may be specified in the Bid or only the expected scope and volume of tasks may be specified in the Bid without the subcontractors’ names; the Bidder shall submit a commitment to employ Vietnamese subcontractors in case of successful bidding together with the Bid”. If the Investor/Employer determines that domestic bidders are incapable of performing any task of the package, this regulation shall be annulled].

ITB 6.1

For clarification purposes only, the Employer’s address is:

Attention: [insert complete name].

Recipient: ___[insert complete name (if any)]

Street: ___[insert street, No.]

Floor/Room No.: ___[insert number of floor, room (if any)]

City: ___[insert city’s or town's name]

Post code: ___[insert post code (if any)]

Telephone: ___[insert telephone number, including country and city code]

Fax: ___[insert facsimile number, including country and city code]

Email address: ___[insert email address (if any)]

The Employer shall receive the request for Clarification of Bidding Documents not later than 05 working days before the deadline for submission of Bid.

ITB 6.3

The Employer [insert “will” or “will not"] conduct a site visit

[If the Employer instructs the Bidder to a site visit, time and place shall be specified].

ITB 6.4

A Pre-Bid meeting [insert “will” or “will not”] take place. [If yes, date, time, and place shall be specified].

ITB 7.3

The Employer shall send Amendment of Bidding Documents to all bidders received the Bidding Documents from the Employer before the deadline for submission of Bid at least _____ days (insert specific number of days, provided that there is enough time for the Bidder to complete the Bid and not sooner than 15 working days].

In case the time for sending Amendment of Bidding Documents does not comply with above regulations, the Employer shall extend the corresponding deadline for the submission of bids.

ITB9

The Bid, as well as all correspondence and documents related to the Bid exchanged by the Bidder and the Employer shall be written in: ____[insert a specific language]

[if the Bidding Documents are in English then insert “English”; if the Bidding Documents are in both English and Vietnamese, then insert “the Bidder may chose either English or Vietnamese to prepare a Bid”]. Supporting documents and printed literature that are part of the Bid may be in another language provided they are accompanied by an accurate translation of the relevant passages into _____[Vietnamese (if both English and Vietnamese are permitted as specified Bidding Documents) or English (if only English is permitted in Bidding as specified in Bidding Documents)]. In case of absence of the translation, the Employer may request the Bidder to supplement when necessary.

ITB 10.4

The Bidder shall submit the following documents in conjunction with the Bid: ___[insert other documents in conjunction with the Bid other than regulations in ITB Sections 10.1, 10.2, 10,3 as required by the scope and nature of the package without any restriction on participation of the Bidder. If there is no requirement, clearly mark it “no requirement”].

ITB 15.1

Alternative Bid ______[insert “shall be” or “shall not be”] considered.

ITB 16

- The currency(ies) of the bid shall be: _________

[the Bidder may, subject to Employer’s requirements, indicate in its Bid up to three foreign currencies of their choice in accordance with conditions for use, for example:   VND, USD, EUR. If foreign currencies are allowed in the Bid, the Bidder must demonstrate the works using foreign currencies attached to schedule of work items and equivalent foreign currency portion, provided that each work item is quoted in only one currency, domestic costs shall be quoted in VND, costs incurred outside the Employer’s country related to the package shall be quoted in foreign currency(ies)].

- Currency of payment of a work item must correspond to the Currency of Bid of such work item. Domestic costs are only paid in VND.

If two or three currencies are allowed, the following regulations shall be added:

- The single currency to which different currencies of all bid prices are converted (target currency) for the purposes of evaluation and comparison of Bidding Documents is: ___[insert the currency, VND shall be given the priority) according to the selling rate of a reputable commercial bank ___[commercial bank’s name] and the exchange rate announced by such bank for conversion] published on ___[date].

- Intermediary currency: _________________[insert the intermediary currency which offset position is taken on target currency with other currencies if there is no direct exchange rate between those currencies and the target currency. In this case, a formula to determine the exchange rate through an intermediary currency (selling rate, buying rate, etc.) must be set out

ITB 17.1

The bid validity period (Technical Proposal and Financial Proposal) shall be: ≥ ____days [insert number of days which is not later than 180 days], from the deadline for submission of Bid.

ITB 18.2

Contents of the Bid Security:

- Value and currency of the Bid Security: ______[insert amount and currency The Bid Security shall be between 1% and 3% of the price of the package according to the package requirements];

- The validity period of the Bid Security: ≥____days [insert number of days, which equals the validity period of the Bid prescribed in ITB Section 17.1 plus 30 days], from the deadline for submission of Bid.

ITB 18.4

The unsuccessful bidders may be either returned or released their Bid Security within ____ days [insert number of days, which is not later than 20 days], from the date on which the results of bidder selection are announced.

ITB 19.1

The number of copies of the Bid is: ____[insert number]. The number of copies of the Bid and the number of copies of modified or substitute Bid are the same.

ITB 21.1

For bid submission purposes, the Employer’s address is:

Attention: [insert complete name].

Recipient: ___[insert complete name (if any)]

Street: ___[insert street’s name, house number]

Floor/Room No.: ___[insert number of floor, room (if any)]

City: ___[insert city’s or town's name]

Post code: ___[insert post code (if any)]

Telephone: ___[insert telephone number, including country and city code]

Fax: ___[insert fax number, including country and city code]

Email address: ___[insert email address (if any)]

The deadline for submission of Bid is: ________[time, insert hour and minute],____________[date, insert day, month, and year

[the deadline for submission of Bid shall be specified according to the scope and nature of the package provided that period of time from the first day on which the Bidding Documents are issued to the deadline is at least 40 days and the deadline shall not fall to the early hour of a working day which may restrict the submission of bids by bidders].

ITB 25.3

The Bidder may send request for Clarification of Bids to the Employer within: ____days, from the deadline for submission of Bid.

[the period of time for sending request shall be specified by the Employer to ensure the successful bidder is qualified and experienced, and has feasible solutions for the package].

ITB 29.2

Maximum value for subcontractor: ___of bid price of the Bidder [depending on scope and nature of package, the Employer shall insert the appropriate percentage].

ITB 29.4

Special subcontractor: ____[insert “permitted” or “ not permitted” according to the scope and nature of the package. If permitted, the Employer shall list the works and items performed by the subcontractor].

ITB 30.2

a) Entities eligible for incentives are local bidders, foreign bidders in joint venture with local bidders and at least 25% amount of works is performed by the local bidder, in which such amount only includes domestic costs, excluding expenditures on imported equipment and other outward expenditures, and bidders that propose at least 25% amount of domestic costs (consultancy, procurement, and construction costs) according to the amount of works.

b) Determining incentives:

- If the Evaluated price method is applied: “the Bidder not eligible for incentives shall be added 7.5% of the Bid Price after error correction and adjustment of deviation, minus the discount from (if any) the evaluated price of the Bidder for the purposes of comparison and ranking; the Good not eligible for incentives shall be added 7.5% of Bid Price after error correction and adjustment of deviation, and minus the discount (if any) of such Good from the evaluated price of the Bidder for the purpose of comparison and ranking";

- If the Tech- and Cost-based selection is applied, then insert:  “the Bidder eligible for incentives shall be added 7.5% to the collective score for the purpose of comparison and ranking”

ITB 31.1

The Technical Proposal opening shall take place at: ____[time, insert hour, minute],___[date, insert day, month, year], at___:

[insert date, time and place of Technical Proposal opening, provided that the Technical Proposal is opened within 01 hour from the deadline for submission of Bid].

ITB 32.1

Method for evaluating Technical Proposal:

a) Qualification evaluation: pass/fail;

b) Technical evaluation: ___[insert detailed technical-based evaluation methods]. The Employer shall, according to scope and nature of the package, apply evaluation method either using Pass/Fail Criteria or Weighted Scoring Method that is  conformable with evaluation criteria as prescribed in Section 3 of Chapter III - Evaluation and Qualification Criteria];

ITB 34.1

Financial evaluation: ___[insert detailed financial valuation method]. The Employer shall, according to scope and nature of the package, apply Evaluated price method or Tech- and Cost-based selection that is conformable with evaluation criteria as prescribed in Section 5 of Chapter III - Evaluation and Qualification Criteria].

ITB 34.3

b) Ranking of bidders:

[- If the Evaluated price method is applied, then insert: “the Bidder having the lowest evaluated price shall be ranked first”;

- If the Tech- and Cost-based selection is applied, then insert:  “the Bidder having the highest collective price shall be ranked first”].

ITB 36.5

[- If the Evaluated price method is applied, then insert: “the Bidder having the lowest evaluated Bid price”;

- If the Tech- and Cost-based selection is applied, then insert:  “the Bidder having the highest collective price”].

ITB 37.1

Time limit for sending notification of results of bidder selection is _________working days, from the date on which the bidder selection result is approved by the Investor___[insert number of days not later than 05 working days].

ITB 42

- Mailing address of the Investor:

____[insert complete name, address, telephone number, fax];

- Mailing address of the competent person: ____[insert complete name, address, telephone number, fax];

- Mailing address of the Advisory board: ____[insert complete name, address, telephone number, fax].

ITB 43

Address of the organization or individual in charge of the monitoring task: [insert complete name, address, telephone number, fax of the organization or individual in charge of monitoring the bidder selection progress which is assigned by the competent person (if any)].

Criteria

Compliance requirements

Required document

No.

Description

Requirement

Single entity

Joint Venture

All Parties combined

Each JV's Party

At least one JV's Party

1

Previous Contract Non-fulfillment Records

From January 1, ___⁽¹⁾ [year] to the deadline for submission of Bid, the Bidder did not fail to perform any contract⁽²⁾.

Must meet requirement

Not applicable

Must meet requirement

Not applicable

Form No. 07

2

Pending litigation⁽³⁾

All pending litigation shall be treated as resolved against the Bidder and so shall in total not represent more than ___% ⁽⁴⁾ of the Bidder’s net worth.

(Net asset value = Total assets – Liabilities).

Must meet requirement

Not applicable

Must meet requirement

Not applicable

Form No. 08

3

Financial requirements

3.1

Historical Financial Performance

Submission of financial statements from ___to ____⁽⁵⁾ [year] to demonstrate the current soundness of the Bidder’s financial position.

The net asset value of the Bidder in the latest year shall be positive.

Must meet requirement

Not applicable

Must meet requirement

Not applicable

Form No. 09 enclosed with supporting documents

3.2

Average Annual Turnover from consultancy, procurement of goods and construction

Minimum average annual turnover from consultancy, procurement of goods, and construction of ___⁽⁶⁾, within the last___⁽⁷⁾years.

The annual turnover shall be calculated as total payments received for contracts of consultancy, procurement of goods, and construction within the year.

Must meet requirement

Must meet requirement

Not applicable (*)

Not applicable

Form No. 10

3.3

Financial Resources

The Bidder must demonstrate access to, or availability of, financial resources such as liquid assets, lines of credit, and other financial means (other than any contractual advance payments) to meet financial resources of ____ [package's value]⁽⁹⁾

Must meet requirement

Must meet requirement

Must meet requirement (equivalent to their tasks performed)

Not applicable

Forms No. 11 and 12

4

Experience in performing EPC package

Minimum number of similar contracts (N) with the value (V) ⁽¹⁰⁾ which are wholly or mainly⁽¹¹⁾ completed by the Bidder as a Contractor (a single entity or a joint venture) or a subcontractor⁽¹²⁾ or management contractor within the last ______⁽¹⁴⁾ years (up to the deadline for submission of Bid)

Must meet requirement

Must meet requirement

Not applicable

Must meet requirement

Form No. 13

No.

Position⁽²⁾

Total Work Experience (at least ___years) ⁽³⁾

Experience in Similar Work (at least ____years) ⁽⁴⁾

1

2

...

No.

Equipment Type and Characteristics

Min. Number required

1

2

3

...

Legal representative of Bidder⁽⁵⁾
[Full name, position, signature and seal⁽⁶⁾]

Authorized person
[Full name, position, signature and seal]

Authorizer
[Full name, position, signature and seal of the legal representative]

No.

Name

Tasks

Proportion of value to bid price)

1

Name of leading JV's Party

-___

-___

-___%

-___%

2

Name of second JV's Party

-___

-___

-___%

-___%

....

....

....

....

Total

All tasks of the package

100%

Legal representative of Ban
[Full name, position, signature and seal]

Bidder’s name: _______________

In case of joint venture, name of each Party: __

Place of business registration and operation:

____[insert province/city where the Bidder registers and operate business]

Year of establishment:

Bidder’s legal address: ____[insert the registered address]

 Bidder’s legal representative information

Name ___________________________________

Address: _________________________________

Phone number/Fax: _________________________

Email address: ____________________________

1. Attached are photocopies of one of the following documents: 4.1. The Bidder has been granted a Certificate of Enterprise registration, a Establishment Decision or equivalent document issued by a competent authority of the country in which the Bidder is operating.

2. Diagram of organizational structure of the Bidder.

Bidder’s name:

JV's Party name:

JV's Party Country of Registration:

JV's Party Year of Establishment:

JV's Party Legal Address in Country of Registration:

 JV's  legal representative information

Name ___________________________________

Address: _________________________________

Phone number/Fax: _________________________

Email address: ____________________________

1. Attached are photocopies of one of the following documents: The Bidder has been granted a Certificate of Enterprise registration, a Establishment Decision or equivalent document issued by a competent authority of the country in which the Bidder is operating.

2. Diagram of organizational structure.

No.

Name of subsidiary company, associate company⁽²⁾

Work performed in the package ⁽³⁾

Proportion of value to bid price⁽⁴⁾

Notes

1

2

3

4

5

...

Previous contract non-fulfillment records prescribed in Section 2.1 of Chapter III - Evaluation and Qualification Criteria

□ No concluded contract without fulfillment from January 1, ___[year] prescribed in criterion 1 in the Financial Qualification Criteria in Section 2.1 of Chapter III - Evaluation and Qualification Criteria.

□ At least one concluded contract without fulfillment from January 1, ___[year] prescribed in criterion 1 in the Financial Qualification Criteria in Section 2.1 of Chapter III - Evaluation and Qualification Criteria.

Year

Unfinished tasks in the contract

Description of contract

Total value of contract (current value, currency unit, exchange rate, equivalent value in VND)

Description of contract

Investor’s name:

Address:

Reasons for contract non-fulfillment:

Pending litigation

Choose one of two information below:

□ No pending litigation.

□ Description of pending litigation in which the Bidder is a litigant (or each JV' Party is a litigant regarding JV).

Year

Matter in Dispute

Value of Pending Claim

Value of Pending Claim as a Percentage of Net Worth

Annual Turnover Data for the Last ___Years⁽²⁾

Year

Amount

Average Annual Turnover⁽³⁾

Financial Resources of Bidder

No.

Source of financing

Amount

1

2

3

4

5

...

Total financial resources of Bidder

No.

Contract’s name

Contact person of the Investor (address, phone number, fax)

Finish date of contract

Number of remaining months of contract (A) )⁽²⁾

Unpaid contract value, including taxes (B) ⁽³⁾

Monthly financial resources required (B/A)

1

2

3

4

...

Total monthly financial resources required for contracts in progress (DTH)

Similar Contracts

The Contract Agreement No._____dated______

Information:

Date of Award of Contract: _________

Finish date: _________

Total Contract Price

________________

For JV's Party or subcontractor, insert its contribution in total contract price

Value as a percentage of total contract price

Amount:________

Investor’s name:

Address:

Phone number/Fax:

Email:

Description of similar characteristics prescribed in criterion 4 Financial Qualification Criteria Section 2.1 of Chapter III(2) - Evaluation and Qualification Criteria.

Similar characteristics required⁽¹⁾

Similar characteristics of completed contracts⁽²⁾

1

Position: [insert detailed position in charge]

Name [insert the employee’s name for key position]

2

Position: [insert detailed position in charge]

Name [insert the employee’s name for key position]

3

Position:

Name

4

Position:

Name

5

Position:

Name

....

Position:

Name

Position

Personnel information

Name

Date of birth:

Professional qualifications

Present work

Employer’s name

Employer’s address

Phone number:

Contact person (manager/personnel officer)

Fax:

Email:

Job title

Years with present employer

From

To

Company/Project/Position/Relevant technical and management experience

Item of equipment

Equipment information

Name of manufacturer

Model

Capacity

Year of manufacture

Functions

Origin

Current status

Current location

Details of current commitments

Source

Indicate source of the equipment

□ Owned    □ Rented    □ Leased    □ Specially manufactured

Owner

Name of owner

Address of owner

Telephone:

Contact name and title

Fax:

Telex

Agreements

Details of rental/lease/manufacture agreements specific to the project

No.

Subcontractor’s name⁽²⁾

Work items⁽³⁾

Volume⁽⁴⁾

Estimated value⁽⁵⁾

Contract/agreement concluded with subcontractor⁽⁶⁾

1

2

3

4

...

No.

Name of special subcontractor⁽²⁾

Work items⁽³⁾

Volume⁽⁴⁾

Estimated value⁽⁵⁾

Contract/agreement concluded with special subcontractor⁽⁶⁾

1

2

3

4

...

Legal representative of bidder⁽⁵⁾
[Full name, position, signature and seal] ⁽⁶⁾

Legal representative of bidder⁽⁶⁾
[Full name, position, signature and seal] ⁽⁷⁾

General Summary

Technical Criteria, Technical Instructions

Page

Amount

Local currency

Foreign currency

Bill No.1: General Items

Bill No.2: Design Services

Bill No. 3: Imported Supply and Equipment

Bill No. 4: Domestic supply and equipment

Bill No. 5: Construction

Bill No. 6: Contingencies (if any)

.............

Total work value

(A)

Contingency costs (*)

(B)

Bid Price Before Taxes (=Total work value and contingency costs (A+B)

(C)

Equipment import tax

(D)

Corporate income tax (CIT)

(E)

Value Added Tax (VAT)

(G)

Total tax value (D+E+G)

(H)

Bid Price After Taxes (C+H)

(I)

A

B

C

D

Currency’s Name

Amount

Exchange Rate

(to Local Currency)

Local Currency Equivalent

C=A x B

Percentage of Net Bid Price (NBP)

100xC

NBP

Local Currency

1.00

Foreign Currency #1

Foreign Currency #2

Net Bid Price (NBP)

100.00

Provisional Sums Expressed in Local Currency

[to be inserted by the Employer]

[to be inserted by the Employer]

BID PRICE

Name of Currency

Amount

Local Currency: ____________________

Foreign currency #1: _________________

Foreign currency #2: _________________

Item No.

Description

Unit

Quantity

Local Currency

Foreign Currency

Unit Price

Amount

Unit Price

Amount

A101

102

Warranty

103

Insurance of Equipment

104

Third-Party Insurance

105

Allow for maintenance of Works for 12 months after completion

106

... ... ....

112

Provide and equip Engineers' offices

113

Maintain Engineer’s offices

114

... ...

Total for Bill No. 1

(carried forward to Grand Summary, p.___)

Item No.*

Description

Unit*

Quantity*

Local Currency

Foreign Currency

Unit Price

Amount

Unit Price

Amount

... ...

...

... ...

Total for Bill No. 2

(carried forward to Grand Summary, p.___)

Item No.*

Description

Unit*

Quantity*

Local Currency

Foreign currency

Unit Price

Amount

Unit Price

Amount

...

...

...

...

Total for Bill No. 3

(carried forward to Grand Summary, p.___)

Item No.*

Description*

Unit*
(hour/day/month)

Quantity

Local Currency

Foreign Currency

Unit Price

Amount

Unit Price

Amount

D100

Bricklayer

hour

D101

Laborer

hour

D102

... ...

D103

... ....