Thông tư 02/2009/TT-BKH

CIRCULAR

GUIDING THE MAKING OF BIDDING PLANS

Pursuant to Bidding Law No. 61/2005/QH1I of November 29, 2005;
Pursuant to Clause 1, Article 67 of the Government's Decree No. 58/2008/ND-CP of May 5, 2008, guiding the implementation of the Bidding Law and the selection of construction contractors under the Construction Law;
Pursuant to the Government's Decree No. 116/2008/ND-CP of November 14, 2008, defining the functions, tasks, powers and organizational structure of the Ministry of Planning and Investment;
The Ministry of Planning and Investment guides the making of bidding plans as follows:

I. SUBJECTS OF APPLICATION

Subjects of application include agencies and organizations responsible for submitting for approval bidding plans (below referred to as investors) for approved projects governed by the Bidding Law.

In making bidding plans for consultancy service packages implemented prior to issuance of project approval decisions, this Circular may be referred to.

II. GENERAL PROVISIONS

1. The making of bidding plans must abide by the principles defined in Article 6 of the Bidding Law and Article 10 of the Government's Decree No. 58/2008/ND-CP of May 5, 2008, specifically:

a/ Bidding plans must be approved in writing by competent persons after or at the same time with approving investment decisions in case they serve as a legal ground for investors to organize contractor selection.

b/ Bidding plans must be made for the whole projects. In urgent cases and when there are insufficient conditions for making a bidding plan for the whole project, bidding plans can be made for some bidding packages for implementation first.

c/ A bidding plan must clearly state the number of bidding packages and the details of each. The details of each bidding package include title and price of the bidding package, funding source, form of contractor selection and bidding method, time of contractor selection, form of contract and time of contract performance.

d/ The division of a project into different bidding packages must be based on its technical nature and implementation process to ensure the project's synchronous implementation and the reasonable size of each package (suitable to the practical conditions and circumstances of the project, current contractor's capability and domestic market development). A bidding package must have only one bidding dossier and shall be put up for bidding once. A bidding package shall be implemented under one contract. A bidding package consisting of independent components may be implemented under one or more than one contract.

2. When making a bidding plan, the investor should use the form provided in Part III of this Circular.

3. Submission for approval of bidding plans

The investor shall submit a bidding plan to the investment decider or a person authorized to decide on investment (below collectively referred to as investment decider) for consideration and approval, and concurrently to the appraisal agency or organization. If a bidding plan needs to be submitted to the Prime Minister, the investor shall also send it to the line ministry concerned for written opinion on submission of the bidding plan to the Prime Minister for consideration and approval.

A document on submission for approval of a bidding plan should state the jobs of the project, such as performed jobs, jobs not subject to contractor selection, bidding plan, and jobs which lack conditions for making a bidding plan. The total value of these jobs must not exceed the project's total investment.

A document on submission for approval of a bidding plan must be presented in the form of report on submission for approval of a bidding plan as provided in Part III of this Circular.

4. Appraisal and approval of bidding plans

On the basis of the investor's document on submission for approval of a bidding plan, the agency or organization in charge of appraisal shall appraise the bidding plan and make an appraisal report to the investment decider for approval within 20 days (or 30 days for bidding packages subject to approval by the Prime Minister).

The investment decider shall approve a bidding plan within 10 days after receiving the report of the appraisal agency or organization. The approval of a bidding plan under the Prime Minister's responsibility complies with the Government's working regulation.

III. FORM OF BIDDING PLAN

The form of bidding plan issued together with this Circular contains the following details:

A. Form of report on submission for approval of the bidding plan

I. BRIEF DESCRIPTION OF THE PROJECT

II. PERFORMED JOBS

III. JOBS NOT SUBJECT TO CONTRACTOR SELECTION

IV. BIDDING PLAN

1. Bidding plan table

2. Explanations on the bidding plan

V. JOBS WHICH LACK CONDITIONS FOR MAKING A BIDDING PLAN (IF ANY)

VI. RECOMMENDATIONS

B. Annexes

Annex 1. Legal documents enclosed with the document on submission for approval of a bidding plan

Annex 2. Tables and other documents enclosed with the document on submission for approval of the bidding plan (if any)

Annex 3. Example of the report on submission for approval of the bidding plan

IV. EFFECT

1. This Circular takes effect 45 days from the date of its signing.

2. Any problems arising in the course of implementation should be reported by ministries, ministerial-level agencies, government-attached agencies, other central agencies. People's Committees at all levels and concerned organizations and individuals to the Ministry of Planning and Investment for timely study and revision.

A. FORM OF REPORT ON SUBMISSION FOR APPROVAL OF A BIDDING PLAN

REPORT

For approval of a bidding plan
[Title of project or bidding package]

To: [Name of competent person]

Pursuant to the investment decision or project approval decision (specify the number and date of the decision) of (name of investment decider or project approval decider of the project) on the approval of the project (title of the approved project), (name of the investor) would like to submit to (name of competent person) for consideration and approval of the bidding plan on the basis of the following details.

I. BRIEF DESCRIPTION OF PROJECT

This part introduces general information on the project as follows:

- Title of project;

- Total investment or total investment capital;

- Name of investor or project owner;

- Capital sources;

- Project implementation period;

- Project location and scale;

- Other information (if any).

II. PERFORMED JOBS

These jobs include bidding packages or jobs already performed in the project preparation process, such as making a prefeasibility study report (investment report), a feasibility study report (investment project) and some other jobs (if any).

Performed jobs also include bidding packages already performed when a bidding plan for the whole project was not made yet due to insufficient conditions and bidding plans were made for each of these bidding packages only.

For each bidding package or job already performed, specify the name of performing unit, title of job or bidding package; realized value, contractual price or successful bid; form of contract; and duration of contract performance.

Table 1: Jobs performed (1)

Notes:

(1) In case there are many bidding packages or jobs performed before the investment decision is issued, put this table in an annex.

(2) For bidding packages already performed, specify the titles of approval decisions (approving bidding plan and results of contractor selection).

III. JOBS NOT SUBJECT TO CONTRACTOR SELECTION

This part introduces the details and values of jobs for which contractor selection cannot be conducted under the bidding law, such as project management unit expenses, compensation and ground clearance expenses (if any); provisions (not yet allocated to each bidding package) and other expenses (if any).

Table 2: Jobs not subject to contractor selection

IV. BIDDING PLAN

This part introduces jobs that form bidding packages to be performed in one of the seven forms of contractor selection specified in the Bidding Law. Such jobs as mine and explosive sweeping; building resettlement quarters; construction ground preparation; work insurance and training: bidding consulting; survey consulting, construction designing; construction supervision and equipment installment consulting must be clearly described in the bidding plan.

1. Bidding plan table

A bidding plan should state the number of bidding packages and details of each (title, price, capital sources or capital arrangement method, form of contractor selection and bidding method, time of contractor selection, form of contract and time of contract performance). A bidding plan should be presented in the following table:

Table 3: Bidding plan (1)

Notes:

(1) If there are many bidding packages, put this table in an annex. The bidding plans of bidding packages should be arranged by sector, timing and process of job performance.

(2) If the bidding package price includes also a provision, specify the provision value.

The total value of performed jobs, jobs not subject to contractor selection and jobs under the bidding plan must not exceed the project's total investment.

2. Explanations on the bidding plan1

a/ Title of bidding package and bases for division of bidding packages

- Title of bidding package

The title of a bidding package should generalize the nature, details and scope of work of the bidding package and relevant to the jobs of the project.

If a bidding package consists of separate parts (many lots), its title should include the title of each part which should express the basic details of such part.

- Bases for division of bidding packages

The division of a project into bidding packages must be based on the contents of the project, nature of jobs, their timing and the following principles:

+ Ensuring the technical and technological synchronism of the project. The project's jobs should not be divided into too small bidding packages, which can badly affect such synchronism.

+ Ensuring the project implementation schedule.

+ Ensuring a rational size (suitable to the project's conditions and circumstances, capacity of existing contractor and compliance with domestic market development).

+ Each bidding package should have only one bidding dossier or requirement dossier and be put up for bidding only once.

The division of a project into different bidding packages against regulations for the purpose of contractor

1 Explain the details of the bidding plan table. It is not necessary to explain clear details (title of bidding package or public bidding...).

designation or creating opportunity for the participation of few contractors is a violation of the bidding law.

b/ Bidding package price

The price of a bidding package includes all expenses for performing a bidding package (including also provision) determined on the basis of the approved total investment, total cost estimate or cost estimate (if any) and current regulations.

For ODA-funded projects, the price of a bidding package should also be determined on the basis of the international treaty or agreement already signed between a competent agency of the Socialist Republic of Vietnam and the donor.

For a bidding package consisting of different parts, its price in the bidding plan should specify the estimated price of each part.

For a big and complicated bidding package with a long performance period for which, at the time of making a bidding plan, it is impossible to anticipate all jobs and expenses, its price should also include a provision. For a bidding package to procure ordinary goods in the form of package contract, its price is not required to include a provision.

If the price of a bidding package includes a provision, the bidding plan should clearly indicate such. The determination of provisions and jobs which need provisions should comply with relevant regulations. For a construction and installation bidding package, it should comply with the construction law.

When participating in a bidding, contractors calculate their bids based on the bidding package's work volume to be performed. So. if the price of a bidding package includes a provision, the evaluation and determination of successful bids should be based on the price of the bidding package minus the provision.

The provision in the price of a bidding package is used to cover arising jobs and price increases in the course of contract performance and facilitate contract adjustment (if any).

When making a bidding plan, if the detailed designs and cost estimates for construction and installation jobs have been approved, the price of the bidding package should be determined on the basis of the cost estimates for construction and installation jobs corresponding to the bidding package.

Note: The provision not yet allocated mentioned in Part III (total provision of the project minus provisions already allocated in bidding packages) should be used to cover increased expenses when the approved cost estimate is higher than the approved bidding package price.

c/ Capital source:

For each bidding package, specify the capital source or capital arrangement method for payment to contractor.

Specifying the capital source for payment to contractor is a compulsory requirement when making a bidding plan, which aims to avoid the case in which payment cannot be made to contractors that have finished the contracts.

In case of using ODA capital, specify the name of the donor and capital structure (foreign and domestic capital).

d/ Form of contractor selection and bidding method

- Form of contractor selection

Depending on the nature and characteristics of each bidding package, determine the form of contractor selection in accordance with current bidding law. When applying a form other than public bidding, give the reason.

When selecting public or restricted bidding, indicate whether it is domestic or international and requires prequalification selection.

For procurement or EPC bidding packages valued at VND 300 billion or more and installation and construction ones valued at VND 200 billion or more according to regulations, prequalification selection is required. If these bidding packages subject to hi-tech requirements, specific technical requirements or of research and experimental nature, which in reality few contractors can meet, restricted bidding without prequalification selection may be applied.

- Bidding method

The bidding method involving one dossier bag applies to public and restricted bidding for procurement, construction and installation and EPC bidding packages.

The bidding method involving two dossier bags applies to public and restricted bidding for consultancy service provision bidding packages.

The bidding method involving two stages applies to public and restricted bidding for procurement, construction and installation and EPC bidding packages with new. sophisticated and diversified techniques and new technologies which the investors do not clearly understand and are unable to set clear technical requirements.

dd/ Time of contractor selection

The time of contractor selection is a period of time for performing such jobs as selecting contractors at the prequalification stage (if any), preparing bidding dossiers and bid invitation notices, issuing bidding dossier, preparing bid dossiers, evaluating bid dossiers, submitting evaluations and approving contractor selection results, negotiating, finalizing and signing contracts. For performing these jobs, the time of contractor selection must be long enough before the time of contract performance.

e/ Form of contract

Depending on the nature and requirements of jobs of bidding packages, use the form of contract compliant with regulations to prevent the application of unfeasible contracts, resulting in adjustments and supplements in the course of contract performance.

In case a bidding package involves different jobs corresponding to different forms of contract, such bidding package may use different forms of contract.

In case a bidding package involves different jobs with specified volumes and no price fluctuations arising in the course of performance, apply the form of package contract. For construction and installation contracts in the course of performance of which there may arise new volumes and market fluctuations (unanticipated fluctuations in the prices of construction materials and supplies), causing risks to investors and contractors, apply the form of unit price-based contract.

g/ Contract performance period

The contract performance period for each bidding package should be specified in accordance with the implementation schedule of the entire project.

V. JOBS WHICH LACK CONDITIONS FOR MAKING BIDDING PLANS (IF ANY)

If. at the time of making a bidding plan, the project has some jobs which lack conditions for forming bidding packages (the project has not yet allocated investment capital sources), specify the details and value of such jobs in the bidding plan.

VI. RECOMMENDATIONS

On the basis of the above analyses, the (name of investor) proposes the competent person to consider and approve the bidding plan (title of bidding package or project).

When necessary, the investor may request the competent person to consider authorizing the investor to approve some specific matters, such as bidding dossier and results of contractor selection for simple and small bidding packages.

We would like to submit the report to the (name of competent person) for consideration and decision.-

Recipients: REPRESENTATIVE OF INVESTOR

- As mentioned above; (Signature, full name, title and stamp)

- [Name of evaluating agency/organization];

- ;

- Kept at the clerical section.

B. ANNEXES

Annex 1. Legal documents enclosed with the submission report

When submitting a bidding plan for approval, the investor should enclose copies of documents used as grounds for making the bidding plan, including:

- Investment decision and documents on which the investment decision is based.

The feasibility study report or a document of equivalent validity serves as a basis for project approval, presenting all details of the project, such as jobs to be performed, capital sources and calculated benefits. Therefore, the feasibility study report is the first and important document for making a bidding plan.

- Text of the treaty or international agreement, for ODA-funded projects.

- Approved design and cost estimate (if any).

- Capital sources of the project.

- Other related legal documents (if any).

Annex 2. Tables and other documents (if any)

Annex 3. Example of report on submission for approval of the bidding plan.-