Thông tư 22/2021/TT-BGTVT

CIRCULAR

METHODS AND QUALITY OF ASSESSING BIDDING DOCUMENTS FOR SELECTING INVESTORS FOR DREDGING PROJECTS IN COMBINATION WITH DREDGED MATERIAL COLLECTION IN SEAPORT WATERS AND INLAND WATERS

Pursuant to Vietnam Maritime Code dated November 25, 2015;

Pursuant to Law on Inland Waterway Transport dated June 15, 2004; Law on amendments to Law on Inland Waterway Transport dated June 15, 2014;

Pursuant to Decree No. 12/2017/ND-CP dated February 10, 2017 of Government on functions, tasks, powers, and organizational structure of Ministry of Transport;

Pursuant to Decree No. 58/2017/ND-CP dated May 10, 2017 of Government on elaborating to a number of Articles of Vietnam Maritime Code providing for maritime activity management;

Pursuant to Decree No. 08/2021/ND-CP dated January 28, 2021 of the Government managing inland waterway activities;

Pursuant to Decree No. 159/2018/ND-CP dated November 28, 2018 of Government on dredging in seaport waters and inland waterways;

Pursuant to Decree No. 40/2020/ND-CP dated April 6, 2020 of the Government on elaborating to Law on Public Investment regarding selecting investors;

Pursuant to Decree No. 31/2021/ND-CP dated March 26, 2021 of the Government on elaborating to Law on Investment;

At request of Director of Traffic Infrastructure Department, Director of Vietnam Maritime Administration, and Director of Vietnam Inland Waterways Administration;

Minister of Transport promulgates Circular on methods and quality of assessing bidding documents for selecting investors for dredging projects in combination with dredged material collection in seaport waters and inland waters.

Chapter I

GENERAL PROVISIONS

Article 1. Scope

This Circular prescribes procedures, methods, and standards for assessing bidding documents and written recommendations of investors for dredging projects in seaports and inland waters under joint management of Ministry of Transport and People’s Committees of provinces in combination with dredged material collection.

Article 2. Regulated entities

This Circular applies to agencies, organizations, and individuals participating in or related to selection of investors for dredging projects in seaport waters, inland waters in combination of dredged material collection.

Article 3. Publicizing lists of projects with approved feasibility reports and conducting preliminary assessment of registration for project execution

1. Within 7 working days from the date on which feasibility reports of projects are approved, agencies that approve feasibility reports of projects shall upload lists of projects and publicize project information on the National bidding network to serve as the basis for identifying number of investors concerning, registering for project execution.

2. Project information publicized includes

a) Name of project; investment goal, investment scale; basic requirements of the project; execution deadline and progress; execution location;

b) Decision approving feasibility report of the project, decision approving revision of feasibility report of the project (if any);

c) Basic requirements for capacity and experience of investors according to Annex attached hereto;

d) Deadline for submission of registration for project execution;

dd) Location for submission of registration for project execution: Submit in person at agency approving feasibility report of the project (name of agency, address, and phone number for contact when necessary); in case the National bidding network allows online registration, submit registration on the National bidding network;

e) Other information (if necessary).

3. Investors are responsible for preparing and submitting registration for project execution according to Clause 2 of this Article.

4. Registration for project execution of investors consists of:

a) Written registration for project execution;

b) Documents on legitimacy, capacity, and experience of investors;

c) Other relevant documents (if any).

5. Once deadline for submission of registration expires, agencies approving feasibility reports of project shall assess registration for project execution by judging details under Clause 2 of this Article and basic capacity, experience of investors. Investors satisfying these regulations are eligible for participating in selection process under Article 4 hereof.

6. Based on assessment results under Clause 2 of this Article, agencies approving feasibility reports shall decide to organize investor selection according to Clause 1 Article 33 of Decree No. 159/2018/ND-CP dated November 28, 2018 and Article 16 of Decree No. 25/2020/ND-CP dated February 28, 2020 of the Government (with amendment thereto under Clause 7 Article 108 of Decree No. 31/2021/ND-CP dated March 26, 2021).

Article 4. Selecting investors for project execution

1. In case 2 or more investors satisfying basic requirements for capacity and experience, bidding for selecting investors shall be conducted in form of open bidding, including:

a) Prepare to select investors;

b) Organize investor selection;

c) Assess written recommendations in terms of technical matters; appraise and approve lists of investors satisfying technical requirements;

d) Open and assess written recommendations in terms of financial - commercial matters;

dd) Request, appraise, approve, and publicize investor selection results;

e) Negotiate, finalize, and sign contracts.

2. In case an investor registering and satisfying basic requirements for capacity and experience or multiple investors register where only one investor satisfies basic requirements for capacity and experience, adopt procedures for accepting investors according to regulations and law on investment and the followings:

a) Agencies approving feasibility reports of projects shall prepare written recommendation. Written recommendation shall be developed on the basis of revising form under Annex IV attached to 06/2020/TT-BKHDT dated September 18, 2020 of Minister of Planning and Investment guiding implementation of Decree No. 25/2020/ND-CP dated February 28, 2020 of the Government elaborating to Law on Bidding regarding investor selection (hereinafter referred to as “Circular No. 06/2020/TT-BKHDT”) and must include methods and standards for assessing capacity, experience, and financial – commercial matters under this Circular.

b) Investors shall prepare and submit written recommendation as required by the written recommendation;

c) Assess written recommendation of investors. During assessment, agencies approving feasibility reports of projects may invite investors to clarify or revise necessary information of the written recommendation;

d) Investors shall be accepted as soon as they satisfy all following requirements: having legitimate written recommendation; satisfying capacity and experience requirements; satisfying technical requirements; satisfying financial – commercial requirements.

3. Activities under Points a, b, dd, and e Clause 1 of this Article shall conform to regulations and law on bidding. Activities under Points c and d Clause 1 of this Article shall conform to this Circular.

a) Bidding documents shall be developed on the basis of revising form under Annexes III and IV attached to Circular No. 06/2020/TT-BKHDT ;

b) Bidding documents revised on the basis of bidding document form must conform to Law on Bidding, Decree No. 25/2020/ND-CP dated February 28, 2020 of the Government, relevant law provisions, and this Circular.

Article 5. Assessing written recommendation in terms of technical matters

1. Examine and assess legitimacy of written recommendation regarding technical matters: Conform to Article 52 of Decree No. 25/2020/ND-CP dated February 28, 2020 of the Government on elaborating to Law on Bidding regarding investor selection (and amendment thereto under Clause 12 Article 89 of Decree No. 35/2021/ND-CP dated March 29, 2021 of the Government).

2. Assess in terms of capacity and experience

a) Rely on basic requirements for capacity and experience approved according to Point c Clause 2 Article 3 hereof, standards and methods of assessing capacity, experience revised (if necessary);

b) Assessment based on capacity and experience shall conform to standards for assessing capacity and experience in bidding documents.

3. Assess in terms of technical matters

Investors having legitimate written recommendation and satisfying capacity and experience requirements shall be assessed in terms of technical matters. Detail assessment of written recommendations in terms of implementation techniques shall conform to methods and standards for assessing technical matters specified in bidding documents as follows:

a) Assessment methods: Assessment of technical matters shall utilize scoring scale of ___ [100 or 1,000] in which the minimum score is ___% of the total score [no lower than 70%] and score of each criteria (technical matters; project management; progress, implementation period; collection of dredged materials, environment, and safety) of ___% of maximum score of the criteria [no lower than 60%];

b) Assessment standards: rely on scale and characteristics of projects, bid solicitors shall elaborate on standards for assessing technical matters based on assessment methods applicable under Point a Clause 3 of this Article. Bid solicitors shall request investors to provide explanation for plans and methods of project execution in order to assess conformity and feasibility of:

- Technical requirements: requirements regarding technical matters and technology for project execution; requirements for project equipment owned by investors or joint investors to equal at least 20% of total equipment; requirements for personnel for project execution; requirements for construction organization methods.

- Project management requirements: project management methods; project supervision methods; cooperation methods during project execution;

- Progress requirements and project execution period requirements:

- Requirements for collecting dredged materials: solutions for utilizing dredged materials; solutions for disposing non-collectible dredged materials; solutions for gathering dredged materials (if any);

- Environment and safety requirements: conform to regulations and law on environmental protection and solutions for guaranteeing traffic safety during project execution;

- In addition to standards above, during development of assessment criteria for technical matters, bid solicitors may adjust and revise other technical standards on a case-by-case basis.

4. Investors satisfying technical matters shall have their written recommendations assessed in terms of financial – commercial matters. appraisal and approval of lists of investors satisfying technical requirements shall conform to Article 53 of Decree No. 25/2020/ND-CP dated February 28, 2020 of the Government on elaborating to Law on Bidding regarding investor selection (and amendment thereto under Clause 13 Article 89 of Decree No. 35/2021/ND-CP dated March 29, 2021 of the Government).

Article 6. Assessing in terms of financial – commercial matters

1. Inspect and assess legitimacy of written recommendations in terms of financial – commercial matter according to Article 55 of Decree No. 25/2020/ND-CP dated February 28, 2020 of the Government on elaborating to Law on Bidding regarding investor selection (and amendment thereto under Clause 15 Article 89 of Decree No. 35/2021/ND-CP dated March 29, 2021 of the Government).

2. Assessment methods and standards

a) Employ comparison and ranking solutions based on benefits for society and benefits for the Government;

b) Correct errors and rectify discrepancies: prescribed by bid solicitors in bidding document;

c) According to bidding documents, in case dredging costs of projects are less or equal to value of dredged materials, investors shall be recommended for contracts if the investors propose the highest difference between the dredging costs and value of dredged materials (in addition to obligations of investors for state budget according to relevant law provisions) to be submitted to state budget in cash according to bidding documents and proposed value of dredged materials is no lower than value of dredged materials according to bidding documents;

d) According to bidding documents, in case dredging costs of projects are greater than value of dredged materials, investors shall be recommended for contracts if the investors propose the lowest difference between the dredging costs and value of dredged materials (in addition to obligations of investors for state budget according to relevant law provisions) according to bidding documents and proposed value of dredged materials is no lower than value of dredged materials according to bidding documents;

dd In case after assessing written recommendations for commercial – financial matters, all investors are equally qualified, the investors with the highest technical score shall be proposed with contracts.

Chapter III

ORGANIZATION FOR IMPLEMENTATION

Article 7. Entry into force

1. This Circular comes into force from December 1, 2021.

2. Investors selected before effective date hereof shall not be subject to selection process conforming to this Circular again.

3. In case documents referred to this Circular are amended, the amended version shall prevail.

Article 8. Implementation

Chief of Ministry Office, Chief of Ministry Inspectorate, Directors of Departments affiliated to Ministry of Transport, Director of Vietnam Maritime Administration, Director of Vietnam Inland Waterway Administration, Directors of Departments of Transport of provinces and cities, and relevant agencies, organizations, individuals are responsible for implementation hereof./.

ANNEX

BASIC REQUIREMENTS FOR CAPACITY AND EXPERIENCE OF INVESTORS
(Attached to Circular No. 22/2021/TT-BGTVT dated September 30, 2021 of Minister of Transport)

Note:

(1) Based on scale, nature, and field of the project, bid solicitors may revise or add other financial criteria such as: interest, etc.

In case investors are organizations established within the year, financial capacity of investors shall be assessed on the basis of financial reports audited by independent auditing bodies from the date of establishment to 28 days prior to bid closing date.

(2) Owner’s equity of investors are determined on the basis of financial figures of investors updated within 28 days prior to bid closing date and commitment for mobilizing owner’s equity of investors.

Investors must declare information and provide documents on financial capacity using form prescribed under bidding documents.

Remaining owner’s equity of investors = Total owner’s equity - Costs related to proceeding – owner’s equity guaranteed for active projects and other long-term investment (if any) – owner’s equity to be retained as per the law (owner’s equity for allocation or required by the law for investors; owner’s equity to be retained according to special backup demands for possible cases; other owner’s equity guaranteed to be reimbursed and not used for dividend declaration, etc.).

(3) Investors must provide commitment for mobilizing loan capital using form under bidding documents. Investors shall attach written commitment for providing financial figures of financial institutions or credit institutions for the remaining financial obligations (in addition to owner’s equity) within responsibility for arranging of investors.

(4), (5) Net worth and average annual revenues are determined on the basis of financial reports of investors. Investors must declare information using form prescribed under bidding documents and provide certified true copies of documents regarding financial reports, inspection records of tax finalization, declaration for tax finalization bearing confirmation of tax authority for date of submission of the declaration, audit report (if any).

(6) Investors shall provide their experience using form in bidding documents. Investors shall only excerpt experience in implementing a similar project once.

Methods of converting projects: ______ [Bid solicitors shall prescribe a class 2 project that equals up to 0.5 – 0.7 class 1 project and methods of rounding number when necessary].

(7), (8), (9) For projects where total investment is unidentified in approving documents or project contracts, investors must provide verifying documents to identify the total investment.

(10) Investors must provide records for inspection and acceptance, contract liquidation or confirmation of government authority to prove satisfaction of technical and quality requirements for executed projects/contract packages.

(11) Based on scale, nature, sector, and specific requirements of projects, bid solicitors s hall provide other appropriate criteria while guaranteeing competitiveness, fairness, and transparency.