Thông tư 03/2009/TT-BKH

CIRCULAR

GUIDING THE SELECTION OF INVESTORS IN LAND-USING PROJECTS

Pursuant to Article 54 of the National Assembly's Investment Law No. 59/2005/QH11 of November 29, 2005;
Pursuant to the Government's Decree No. 116/2008/ND-CP of November 14, 2008, defining the functions, tasks and powers of the Ministry of Planning and Investment;
In performance of the Government-assigned tasks under Clause 3, Article 34 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;

The Ministry of Planning and Investment guides the selection of investors in land-using projects as follows:

Part One

GENERAL PROVISIONS

I. SCOPE OF REGULATION

1. Investment in important projects already identified in branch plannings and associated with the right to use land zones or land funds with geographical-location advantages and high commercial value and with two or more interested investors:

2. Investment in projects using land zones or land funds with geographical-location advantages and high commercial value within local detailed construction plannings of a 1:2,000 scale;

3. Investment in projects which require the selection of investors to build and operate commercial houses and real estate associated with land use rights under the laws on housing, real estate business and land;

4. Investment in projects using land zones or land funds under the management or use right of state agencies, localities or state enterprises, for which auction is not organized for land use rights and the selection of investors is organized in accordance with this Circular;

5. This Circular does not apply to investment projects in the forms of BOT, BT and BTO; the selection of investors for socialization projects or programs: and the selection of investors for projects under which land use levies are not collected.

II. SUBJECTS OF APPLICATION

1. State organizations, agencies and enterprises having projects governed by this Circular:

2. Domestic and foreign investors participating in the selection of investors for projects governed by this Circular.

III. INTERPRETATION OF TERMS

In this Circular, the terms below are construed as follows:

1. Investor selection means the process of bidding or contractor appointment to identify investors for implementing land-using projects that satisfy capability and experience requirements indicated in bidding dossiers or requirement dossiers and put forward the most technically and financially feasible and efficient proposals:

2. Land fund or land zone covers land areas under the management or use right of ministries, branches, localities or state enterprises; tangible land areas within local detailed construction plannings which are managed or used by one or several entities, including households, enterprises and state agencies;

3. Competent person means a person empowered to approve lists of projects, investor selection results, bidding dossiers or requirement dossiers. For projects of national importance, the competent person is the Prime Minister; for other projects, competent persons are ministers, heads of ministerial-level agencies or government-attached agencies, presidents of provincial-level People's Committees, presidents of district-level People's Committees when decentralized, or boards of directors or directors of state enterprises;

4. Bid solicitor means an agency or organization assigned by a competent person to organize the selection of investors: for localities, bid solicitors are provincial-level specialized Services or district-level People's Committees as assigned by presidents of provincial-level People's Committees or district-level specialized sections in case competent persons are presidents of district-level People's Committees;

5. Team of bidding experts is composed of capable and experienced individuals who arc knowledgeable about relevant contents of a project, which is established or selected by the bid solicitor under regulations to assess bid dossiers or proposal dossiers:

6. Floor price means the total investment projected by the bid solicitor based on the average price indicated in the bidding dossier or requirement dossier and approved by a competent person or authorized person as a basis for the selection of investors:

7. Bidding dossier means all documents used for bidding, including requirements for a project as a legal ground for investors to prepare bid dossiers and for the team of bidding experts to assess and select investors, and as a basis for contract negotiation and signing;

8. Requirement dossier means all documents used for contractor appointment, including requirements for a project as a legal ground for the prospected investor to prepare the proposal dossier and for the team of bidding experts to assess the proposal dossier in order to prove the investor's satisfaction of capability and experience requirements set in the requirement dossier, and his/her/its technical and financial proposals, and as a basis for contract negotiation and signing.

9. Bid dossier and proposal dossier means all documents prepared and submitted by the investor to the bid solicitor, proposing the investment in a project as required in the bidding dossier or requirement dossier.

IV. PUBLICATION OF LISTS OF PROJECTS SUBJECT TO INVESTOR SELECTION

1. Within the scope of their management and pursuant to current laws, presidents of provincial-level People's Committees shall, at the proposal of provincial-level specialized Services or concerned district-level People's Committees, issue decisions approving lists of land-using projects subject to investor selection within local detailed construction plannings after these lists are approved by provincial-level People's Councils.

2. Ministers, heads of ministerial-level agencies, government-attached agencies and other central agencies; and boards of directors or directors of state enterprises having land zones or land funds under their management or use which were previously allocated or approved by the State as locations of competent state agencies under the land law, if incapable of making investment by themselves, shall approve lists of projects subject to investor selection.

3. Right after the issuance of a decision approving the list of land-using projects subject to investor selection, the bid solicitor shall publish this list on the Bidding newspaper for 3 consecutive issues (in Vietnamese, for domestic bidding; or in Vietnamese and English, for international bidding). In addition, the bid solicitor may also publish this list on other mass media to facilitate information access by interested organizations and individuals. To-be-published information must comply with the laws on land, housing, real estate business and investment, and include a general plan on compensation, support and resettlement upon land recovery by the State, which is made by the local land fund development organization or compensation, support and resettlement council.

4. The minimum time limit for investors to register their participation is 30 days from the date of first publication of the list of projects is published. Interested investors may register their participation under the current laws on investment, housing, land and real estate business. The bid solicitor may neither refuse any investor nor impose any condition in contravention of regulations to restrict the participation of investors.

5. Past the time limit specified in Clause 4 of this Section, the bid solicitor shall publish the list of participation-registering investors on the Bidding newspaper and solicit bids under Clause 4. Section III, Part Three of this Circular.

V. CONDITIONS FOR ORGANIZING THE SELECTION OF INVESTORS

The bid solicitor may organize the selection of investors for a land-using project only when the following conditions are fully met:

1. An approved detailed construction planning of a 1:2,000 scale is available;

2. The project is on the published list under Section IV, Part One of this Circular;

3. There is a general plan on compensation, support and resettlement for the land zone or land fund for which investors will be selected for the project;

4. An approved investor selection plan is available;

5. An approved bidding dossier or requirement dossier is available.

VI. CONDITIONS ON INVESTORS TO PARTICIPATE IN BIDDING

When wishing to invest in a project on the published list, an investor must fully meet the following conditions:

1. Having the legal entity status, for institutional investors, or the civil act capacity under law, for individual investors;

2. Earmarking a capital amount under his/her/ its ownership for investment in the project not lower than 15% of the total investment, for projects using land area of below 20 ha. or not lower than 20% of the total investment, for projects using land area of 20 ha or more;

3. Proposing the project's total investment in the bid dossier or proposal dossier not lower than the floor price indicated in the bidding dossier or requirement dossier. In case of partnership, own capital shall be calculated based on the total capital committed in the written partnership agreement by partnership investors;

4. Ensuring the capacity to mobilize capital and resources for project implementation through the bank's or credit or financial institution's loan provision commitment;

5. The investor may participate in bidding in only one bid application as an independent bidder or in partnership with other investors. In case of partnership, investors shall agree in writing on the head of the partnership, and joint and separate responsibilities of partners;

6. If the planning on the use of a land zone or land fund is adjusted by increasing the land use coefficient or the use area of a construction work, the selected investor shall pay to the State an additional sum of money equivalent to the added value as a result of planning adjustment.

Part Two

PROVISIONS ON INVESTOR SELECTION

I. FORMS OF INVESTOR SELECTION AND BIDDING METHOD

1. Forms of investor selection

a/ Bidding is applicable to all projects involving 2 or more interested investors, specifically:

- International bidding is applicable to investment in all projects not banned or restricted from investment under specialized laws;

- Domestic bidding is applicable to investment in projects not subject to international bidding or when lists of projects have been published but there is no interested foreign investor.

b/ Contractor appointment is applicable in the following cases:

- During the period of publishing lists of projects under Section IV. Part One of this Circular, only one investor registers to participate;

- Urgent projects as decided by the Prime Minister at the proposal of ministries, branches localities or state enterprises and based on evaluation reports of the Ministry of Planning and Investment.

2. Bidding method

To apply the single-phase bidding method with two dossiers, including a technical proposal dossier (covering also investors' capability and experience) and a financial proposal dossier. The technical proposal dossier shall be opened at the first bid-opening ceremony according to the time of bidding closure in order to be assessed first. Only investors that are assessed to have satisfied capability, experience and technical requirements may have their financial proposal dossiers opened at the second bid-opening ceremony in order to be financially assessed.

II. BID GUARANTEE

1. Bid guarantee means the investor's application of one of the measures of deposit, collateral or submission of a letter of guarantee as required in the bidding dossier or requirement dossier in order to guarantee his/her/its bid in a given period as required in the bidding dossier or requirement dossier.

2. Bid guarantee is applicable to both bidding and contractor appointment. The bid guarantee value shall be specified in the bidding dossier and requirement dossier equal to 1-3% of the floor price indicated in the bidding dossier or requirement dossier.

3. The validity duration of a bid guarantee is 30 days longer than the validity duration of a bid dossier or proposal dossier. When necessary to extend the validity duration of a bid dossier or proposal dossier, the bid solicitor shall request the investor to extend the validity duration of bid guarantee accordingly.

4. The bid solicitor shall return bid guarantee to unselected investors within 30 days from the date of notifying investor selection results. Bid guarantee will be returned to the selected investor within 10 days after the bid solicitor receives the investor's guarantee to invest in a project.

5. An investor will have his/her/its bid guarantee confiscated and bid dossier and proposal dossier eliminated in the following cases:

a/ After the bidding closure and within the validity duration of his/her/its bid dossier or proposal dossier, the investor declares to withdraw the dossier or abandons the responsibility to participate in the bidding:

b/ The investor fails to negotiate a contract with the bid solicitor within the time limit indicated in the bidding dossier or requirement dossier or the time limit agreed by the investor and bid solicitor;

c/ After completing contract negotiation, the investor fails to sign the contract or to guarantee investment in a project within the time limit indicated in the signed contract:

d/ The investor commits a violation in the course of bidding under the bidding law.

Bid guarantees confiscated from investors shall be managed and used under the current law on state budget management.

III. PROJECT INVESTMENT GUARANTEE

1. Project investment guarantee means an investor's compulsory application of one of the measures of deposit, collateral or submission of a letter of guarantee as required in the bidding dossier or requirement dossier in order to guarantee the investor's investment in a project under the signed contract.

2. Project investment guarantee is applicable to both bidding and contractor appointment, which must be provided by an investor before a contract comes into force. The value of project investment guarantee shall be specified in the bidding dossier or requirement dossier equal to 5-10% of the selected investor's total investment. If a project has different investment phases, the project investment guarantee will depend on the investment level in each phase.

3. The validity duration of project investment guarantee lasts from the time the contract comes into force to the time the investor completes project construction for commercial operation.

4. An investor will have his/her/its project investment guarantee confiscated and investment certificate revoked in the following cases:

a/ Failing to formulate and implement a project according to the signed contract:

b/ Transferring the project when construction is not yet completed under the contract:

c/ In the course of project investment, failing to pay the sum of money to the State as committed in the bid dossier or proposal dossier or to pay to the State an additional sum of money equivalent to the added value as a result of planning adjustment by increasing the land use coefficient or the use area of a construction work as approved by a competent state agency.

Project investment guarantee sums confiscated from investors shall be managed and used under the current law on state budget management.

IV. LANGUAGES USED IN AND EXPENSES FOR BIDDING

1. Languages used in bidding

For domestic bidding, Vietnamese is used in bidding, bidding dossiers or bid dossiers (in case of bidding) or requirement dossiers or proposal dossiers (in case of contractor appointment) and documents exchanged between bid solicitors and bidding investors. For international bidding, bidding dossiers and requirement dossiers may be prepared in English or in both Vietnamese and English. If English is used in bidding dossiers or requirement dossiers, bid dossiers and proposal dossiers must also be in English. If bidding dossiers or requirement dossiers are in both Vietnamese and English, it should be stipulated that investors may prepare bid dossiers and proposal dossiers in either Vietnamese or English.

2. Expenses for investor selection

a/ Expenses for investor selection include the expense for making bidding dossiers and requirement dossiers, organizing the selection of investors, assessing bid dossiers and proposal dossiers and conducting evaluation. Investor selection expenses come from the proceeds from the sale of bidding dossiers and requirement dossiers under current regulations. If these proceeds are insufficient to cover the above expenses, the bid solicitor shall report such to a competent person to arrange funds from budgets or other financial sources of ministries, branches or localities. The bid solicitor shall manage, use and settle such expenses under the state budget law.

b/ Bidding dossiers and requirement dossiers shall be sold to interested investors at the price to be decided by the bid solicitor based on the size and nature of a project, which must no: exceed VND 30 million, for domestic bidding, or USD 5,000, for international bidding.

V. DECENTRALIZATION OF APPROVAL AND EVALUATION IN INVESTOR SELECTION

1. For projects of national importance under which investor selection results are approved by the Prime Minister, decentralization is effected as follows:

a/ Bid solicitors are ministries, ministerial-level agencies, government-attached agencies, other central agencies, state enterprises or localities with projects. Heads of bid solicitors may approve bidding dossiers and requirement dossiers on the basis of written evaluations of agencies or organizations under their management. Bid solicitors shall sign contracts with selected investors.

b/ The Ministry of Planning and Investment may evaluate investor selection results and shall submit them to the Prime Minister for consideration and approval.

2. For locally based projects, depending on the size and nature of each project, the provincial-level or district-level People's Committee president (if decentralized) may decide on investor selection results:

a/ For projects falling within the competence of provincial-level People's Committee presidents:

- Provincial-level People's Committees may directly approve bidding dossiers and requirement dossiers or authorize heads of bid solicitors (provincial-level specialized Services) to approve them;

- Provincial-level People's Committees may approve investor selection results;

- Provincial-level Planning and Investment Services may evaluate investor selection results, bidding dossiers and requirement dossiers in case provincial-level People's Committee presidents are decentralized to personally examine and approve them.

b/ For projects falling within the competence of district-level People's Committee presidents:

- Bid solicitors are district-level specialized units as assigned;

- District-level People's Committee presidents may approve bidding dossiers, requirement dossiers and investor selection results;

- District-level Planning-Finance Sections may evaluate contents related to bidding dossiers, requirement dossiers and investor selection results as a basis for district-level People’s Committee presidents to examine and approve them.

3. For projects falling within the competence of ministers, heads of ministerial-level agencies, government-attached agencies or other central agencies, boards of directors or directors of state enterprises: These ministers, heads, boards of directors or directors shall decide on the identification of attached units or organizations to act as bid solicitors and agencies or organizations to evaluate bidding dossiers, requirement dossiers and investor selection results.

VI. TIME LIMIT FOR ORGANIZING SELECTION OF INVESTORS

1. The time limit for issuing bidding dossiers is at least 10 days counting from the first date of publication of a bid invitation notice on the Bidding newspaper; the time limit for issuing a requirement dossier is at least 5 days from the first date of sending bid invitation letters.

2. The period for an investor to prepare a bid dossier or proposal dossier is at least 30 days, for domestic bidding, or 45 days, for international bidding, from the first date of issuing a bidding dossier or requirement dossier to the time of bidding closure. If wishing to modify the issued bidding dossier or requirement dossier, the bid solicitor shall notify in writing the investor that has received the dossier at least 15 days before the bidding closure, for domestic bidding, or 30 days, for international bidding.

3. The validity duration of a bid dossier or proposal dossier shall be specified in the bidding dossier or requirement dossier, which must not exceed 210 days from the time of bidding closure. When necessary, the bid solicitor may request the investor to extend once or more than once the validity duration of his/her/its bid dossier or proposal dossier provided that the total of these extensions must not exceed 30 days.

4. The maximum period for assessing a bid dossier or proposal dossier is 60 days, for domestic bidding, or 90 days, for international bidding, from the time of bidding closure to the time the bid solicitor completes and sends a report on investor selection results to a competent person for consideration and decision.

5. The maximum period for evaluating each content related to the bidding dossier or requirement dossier and investor selection results is 30 days; the maximum period for evaluating contents subject to the Prime Minister's approval is 45 days.

6. The maximum period for considering and approving each content related to the bidding dossier or requirement dossier and investor selection results is 20 days from the date of receipt of an evaluation report of the evaluating agency or unit.

Part Three

INVESTOR SELECTION

I. GENERAL PROCESS OF INVESTOR SELECTION

The investor selection process is applicable to bidding and contractor appointment, covering:

1. Investor selection planning;

2. Investor selection preparation;

3. Investor selection organization;

4. Receipt, opening and evaluation of bid dossiers or proposal dossiers;

5. Evaluation and approval of investor selection results;

6. Notification of investor selection results.

II. INVESTOR SELECTION PLANNING

Based on the published list of projects under Section IV, Part One of this Circular and the number of registering investors, the bid solicitor shall work out an investor selection plan and submit it to a competent person for approval as a basis for its implementation. Such a plan must indicate the name of the project, form of investor selection, bidding method, time of organizing investor selection, and other details, when necessary.

III. PREPARATIONS FOR SELECTION

1. Establishing a team of bidding experts:

a/ The bid solicitor shall decide to establish a team of bidding experts if having adequate qualified experts, otherwise, it may select a number of individual consultants to join the team of bidding experts. When necessary, the bid solicitor may select a consultancy organization to perform all the tasks of a team of bidding experts.

b/ Tasks of the team of bidding experts: To make a bidding dossier or requirement dossier: organize investor selection; assess, and report on the assessment of, bid dossiers or proposal dossiers; work out a detailed negotiation plan, negotiate a contract and report on contract negotiation results and other relevant jobs in the course of organizing investor selection.

2. Making a bidding dossier or requirement dossier

2.1. Bases for making a bidding dossier or requirement dossier:

- List of projects published under regulations:

- Investor selection plan approved by a competent person;

- Construction planning of a 1:2.000-scale and requirements for a 1:500-scale planning. The planning must comply with laws on construction plannings, land use plannings and relevant plannings on the use of natural resources and minerals, making the best use of land and space in order to bring about the greatest benefits for the State;

- Current laws on bidding, land, housing, real estate business, investment and construction;

- Other relevant contents.

2.2. Details of a bidding dossier or requirement dossier

A bidding dossier or requirement dossier shall be made under the guidance provided in the Appendix to this Circular (not printed herein). Such a dossier must indicate the information below as a basis for the investor to prepare a bid dossier or proposal dossier:

- Land allocation or lease duration;

- Grounds for determining the land use levy amount to be remitted by the investor into the state budget in the land allocation or lease duration;

- The handling of the investor's assets on land upon the expiration of the land allocation or lease duration by transferring the whole right to own and use assets on land to a concerned state agency.

2.3. Formulation of assessment criteria

a/ Criteria for assessing an investor's capability and experience

- Capability criteria, including financial capacity requirements (total assets, investor's own capital, capital raising capacity, turnover) and management, operation and business capacity requirements (number and types of projects already invested in and commercially operated by the investor, years of operation experience, total staff, management technologies).

- Experience criteria, including years of experience in investing in or managing and administering projects of similar nature or size. In case of partnership, an investor's experience shall be determined as experience of all partnership members or partners committing to invest in the project through in-principle agreements with the investor.

Appropriate criteria for capability and experience assessment shall be formulated depending on the nature and size of each project, avoiding imposition of too stringent requirements which no investor can satisfy or too easy requirements which unqualified investors can satisfy.

Capability and experience criteria shall be formulated based on the method of assessment as "satisfactory or unsatisfactory" and must be indicated in bidding dossiers or requirement dossiers.

b/ Criteria for technical assessment

b.1/ Detailed criteria for technical assessment include:

- Conformity of the project's purposes proposed by the investor with the approved 1:2,000-scale detailed construction planning;

- Requirements on description of the project investment idea, such as size of the project, architectural and construction solutions for works under the project, and factors related to environmental impacts;

- Requirements on the project implementation and operation management;

- Requirements on the project's outputs;

- Other criteria as suitable to each project.

b.2/ To apply the method of marking with a 100- or 1.000-point scale or the method of assessment as "satisfactory or unsatisfactory". When formulating criteria for assessment with the marking method, to set the minimum requirement of 50% of maximum points for each of the above general criteria. An investor will be assessed as satisfactory according to the marking method if obtaining at least 70% or more of total points. For large and complicated projects, the minimum requirement is 80% of total points and each general criterion must not be lower than the minimum requirement. An investor will be assessed as satisfactory according to the method of assessment as "satisfactory or unsatisfactory" when all the criteria are assessed as satisfactory or the above general criteria are assessed as satisfactory and not more than 30% of detailed criteria under a general criterion are assessed as acceptable while other detailed criteria are assessed as satisfactory.

c/ Criteria for financial assessment

The formulation of criteria for financial assessment aims to determine benefits to be brought about by investors to the State through their proposals stated in their bid dossiers or proposal dossiers concerning the project's total investment, capital source structure and financial plans. The order of financial assessment is specified as follows:

- Step 1: Determination of an investor's financial capacity:

+ Total investment (A) = Work construction value (M1) + Ground clearance compensation value (M1);

Of which:

+ A ≥ the floor price indicated in the bidding dossier or requirement dossier. The floor price = m1 + m2, of which m1 is the work value projected by the bid solicitor for each project for promoting to the utmost the capacity and use efficiency of the land zone or land fund in terms of land area, land use coefficient and land use space planning based on the approved detailed construction planning: m2 is all expenses for compensation, support and resettlement when the State recovers the project's land zone or land fund according to the land law and land price bracket applicable at the time of paying ground clearance compensation in each locality.

+ M2 ≥ m2 (ground clearance compensation expense) included in the floor price by the bid solicitor. The investor shall offer the ground clearance compensation value (M2) in the bid dossier or proposal dossier so that after being selected, he/she/it shall transfer this value to the local ground clearance compensation council to compensate for the project's land zone or land fund. If the actual compensation value is smaller than M2, the difference shall be remitted into the state budget; if such value is larger than M2, the investor shall make up for the deficit. The investor will have the land compensation, support and resettlement sum in the ground clearance compensation expense deducted from the payable land use levy or land rent, which must not exceed the payable land use levy or land rent. The investor shall bear any excess.

- Step 2: Determination of investment efficiency brought about by the investor for tin: State:

Investment efficiency (B) = M2 + Budge, support value (M3) (calculated in money or work value which the investor commits to unconditionally pay, which is equivalent to monetary value converted at the time of assessment of the bid dossier or proposal dossier)

2.4. Prerequisites stated in a bidding dossier or requirement dossier

a/ Prerequisites stated in a bidding dossier include:

- The investor is not named on the list of purchasers of the bidding dossier:

- The bidding participation application is invalid, e.g., it is not completely filled in according to the form provided in the bidding dossier; or there is no signature of the investor's lawful representative as required in the bidding dossier. For partnership investors, the bidding participation application must be signed by the lawful representative of each partner, unless the written partnership agreement stipulates that partners agree to allow their head to sign the application;

- The investor is ineligible for bidding participation under Section VI, Part One of this Circular:

- There is no bid guarantee or the bid guarantee is invalid, e.g., the bid guarantee value is lower than the prescribed value, the currency and form of guarantee are in contravention of regulations; the validity duration is improper or shorter than the prescribed duration, or the guarantee is not submitted to the address and within the time limit specified in the bidding dossier;

- The original bid dossier is unavailable;

- The bid dossier is invalid according to the bidding dossier;

- The investor is named in 2 or more bid dossiers as an independent bidder or a partnership member;

- Other peculiar prerequisites of the project.

b/ In case of contractor appointment, a requirement dossier may set a number of the above prerequisites suitable to the nature and conditions of each project.

3. Evaluation and approval of bidding dossiers or requirement dossiers

a/ Based on the bidding dossier or requirement dossier proposed by the bid solicitor, the evaluating agency or organization shall make an evaluation report and submit it to a competent person or authorized person for consideration and written approval.

b/ The competent person or authorized person shall, based on the written evaluation of the evaluating agency or organization, approve the bidding dossier or requirement dossier.

4. Bid invitation

The bid solicitor shall publish the bid invitation notice (in Vietnamese, for domestic bidding, or in both Vietnamese and English, for international bidding) on the Bidding newspaper for investors interested in participating in the bidding. At the same time, the bid solicitor shall send bid invitation letters to investors having registered to participate in the bidding. A bidding dossier or requirement dossier shall be issued at least 10 days (for bidding) or 5 days (for contractor appointment), after the date of first publication of the bid invitation notice or sending the bid invitation letter (for contractor appointment).

IV. ORGANIZATION OF INVESTOR SELECTION

1. Issuance of bidding dossiers and requirements dossiers

a/ The bid solicitor shall sell bidding dossiers or requirement dossiers from the first date of issuing them to the time of bidding closure as indicated in the bidding dossiers or requirement dossiers. For partnership investors, only their representatives are required to come to purchase bidding dossiers or requirement dossiers.

b/ After issuing a bidding dossier or requirement dossier, if wishing to modify or supplement it, the bid solicitor shall issue a modification or supplementation document to the investor that has received the bidding dossier or requirement dossier. Any modifications and supplements to a bidding dossier or requirement dossier must be adopted by the person approving this dossier before the modification or supplementation document is issued to the investor.

2. Clarification of bidding dossiers or requirement dossiers

a/ Organizing meetings to clarify bidding dossiers or requirement dossiers:

After issuing a bidding dossier or requirement dossier, the bid solicitor shall organize a meeting with investors to exchange, explain and clarify contents in the bidding dossier or requirement dossier which remain unclear to the investors. The bid solicitor shall make a written record of the exchange and clarification to be handed over to investors that are present at and absent from the meeting. The written explanation and clarification constitute part of the bidding dossier or requirement dossier for investors to have sufficient grounds for making bid dossiers or proposal dossiers.

b/ Sending written requests for clarification of bidding dossiers or requirement dossiers

In the course of preparing a bid dossier or proposal dossier, an investor may, at any time, request in writing the bid solicitor to explain unclear contents in the bidding dossier or requirement dossier. The bid solicitor's written explanation and clarification must be forwarded to all investors that have received the bidding dossier or requirement dossier as part of the bidding dossier or requirement dossier.

3. Preparation and submission of bid dossiers or proposal dossiers

a/ The investor shall study the bidding dossier or requirement dossier in order to prepare a bid dossier or proposal dossier according to regulations.

b/ The investor shall submit the bid dossier or proposal dossier within the time limit and at the place indicated in the bidding dossier or requirement dossier. Bid dossiers submitted after the time of bidding closure for any reason will be regarded as invalid and will not be opened for assessment. In this case, the bid solicitor shall return the dossier to the investor at the bid solicitor's place of dossier receipt.

c/ The investor may withdraw, modify or replace the submitted bid dossier or proposal dossier provided that such withdrawal, modification or replacement must be expressed in writing and received by the bid solicitor before the time of bidding closure.

V. RECEIPT, OPENING AND ASSESSMENT OF BID DOSSIERS OR PROPOSAL DOSSIERS

1. Receipt and opening of bid dossiers or proposal dossiers:

a/ Bid dossiers or proposal dossiers submitted under regulations shall be received and managed by the bid solicitor as "confidential" documents.

b/ Opening of bid dossiers or proposal dossiers (technical proposal dossiers)

Right after the bidding closure, the bid solicitor shall publicly open the bid dossiers or (technical) proposal dossiers to the witness of participating investors and representatives of concerned agencies.

Bids shall be opened according to the alphabetic order of the names of investors submitting bid dossiers and a written record must be made of such bid opening, which contains the following details:

- Number of investors having registered to participate in the bidding and number of investors that have purchased bidding dossiers or requirement dossiers:

- Names of investors having submitted bid dossiers or proposal dossiers;

- Number of originals and copies of each bid dossier or proposal dossier;

- Validity duration of each bid dossier or proposal dossier:

- Written requests for modification and supplementation of the bid dossiers or proposal dossiers (if any);

- Other details, when necessary.

Bid opening records shall be sent to all investors that have submitted bid dossiers or proposal dossiers, regardless of whether or no: they attend the bid opening ceremony.

2. (Technical) assessment of bid dossiers or proposal dossiers:

The team of bidding experts shall (technically) assess bid dossiers or proposal dossiers based on the assessment criteria indicated in the bidding dossiers or requirements dossiers. In the course of assessment, assessment criteria may not be modified or supplemented. The order of assessment is specified as follows:

a/ Preliminary assessment

Preliminary assessment aims to examine the completeness of bid dossiers or proposal dossiers as required in bidding dossiers or requirement dossiers in order to eliminate bid dossiers or proposal dossiers which are invalid and unlawful and breach prerequisites specified in bidding dossiers or requirement dossiers. The order of assessment is specified as follows:

- Preliminary examination of bid dossiers or proposal dossiers: An investor that breaches any of the prerequisites specified in the bidding dossier or requirement dossier will be eliminated and will not be eligible for consideration and assessment at subsequent steps;

- Assessment of an investor's capability and experience based on the assessment criteria indicated in the bidding dossier or requirement dossier. An investor that is assessed as having satisfied capability and experience requirements will be eligible for detailed technical assessment.

- Bid dossiers or proposal dossiers which are assessed as satisfactory at the preliminary assessment step will be eligible for detailed technical assessment.

b/ Detailed technical assessment

The team of bidding experts shall conduct detailed technical assessment of bid dossiers or proposal dossiers based on the assessment criteria indicated in bidding dossiers or requirement dossiers.

Investors that are assessed as having satisfied technical requirements will be approved by bid solicitors and have their financial proposal dossiers opened for assessment.

3. Opening and assessment of financial proposal dossiers

a/ An investor having a bid dossier which is assessed as having satisfied technical requirements will be financially assessed. After the issuance of the bid solicitor's decision approving the list of investors satisfying technical requirements, financial proposal dossiers shall be publicly opened to the witness of those investors and representatives of concerned agencies. Investors failing to satisfy technical requirements will also be invited to attend the ceremony to open financial proposal dossiers of investors satisfying technical requirements. The bid solicitor shall return financial proposals to investors failing to satisfy technical requirements.

b/ Financial proposal dossiers shall be opened in the alphabetic order of the names of investors having passed technical assessment and a written record must be made of such opening, containing the following details:

- Number of investors whose (technical) bid dossiers or proposal dossiers have been opened and number of investors having satisfied technical requirements;

- Number of originals and copies of each financial proposal dossier;

- Validity duration of each financial proposal dossier;

- Total investment proposed by each investor;

- Letter offering increased prices (if any). This letter is valid only when it is opened simultaneously with the financial proposal dossier;

- Other details, when necessary.

A written record of the opening of a financial proposal dossier must be sent to all investors having passed technical assessment, regardless whether or not they are present at the bid-opening ceremony.

c/ Financial assessment

The team of experts shall conduct financial assessment based on the assessment criteria indicated in bidding dossiers or requirement dossiers.

4. Clarification of bid dossiers or proposal dossiers:

a/ In case of bidding: In the course of assessing bid dossiers, the team of bidding experts may ask the bid solicitor to request in writing investors to clarify, or invite investors to personally come to explain and clarify their bid dossiers. Such explanation and clarification must be noted in a record as part of the bid dossier. In the course of clarification, the bid solicitor may not accept the investor's change of financial proposals (including letter offering increased prices). Investors may not supplement at their own will their submitted bid dossiers, except documents required by the bid solicitor. The clarification should not change the nature of the submitted bid dossier.

b/ In case of contractor appointment: In the course of assessing a proposal dossier, the bid solicitor may request in writing, or invite nominated investors to personally come to explain or clarify the proposal dossier. Investors may supplement documents to complete their proposal dossiers and must ensure the truthfulness of information. Investors that supply untruthful information on their capability or experience shall be handled under the laws on bidding and investment. Investors may neither modify nor supplement their financial proposals but may send letters offering increased prices.

5. Principles of approval of investor selection

An investor will be proposed to be selected if fully meeting the following conditions:

a/ Having a valid bid dossier or proposal dossier;

b/ Being assessed as having satisfied capability and experience requirements;

c/ Being assessed as having satisfied technical requirements;

d/ Having total investment (A) not lower than the floor price approved in the bidding dossier or requirement dossier and having the highest investment efficiency (B). If no investor proposes the payment of monetary support to the budget, an investor that offers the highest total investment (A) which is not lower than the floor price will be proposed to be selected.

VI. EVALUATION AND APPROVAL OF INVESTOR SELECTION RESULTS

1. Based on the bid solicitor's report on investor selection results, the evaluating agency or organization shall evaluate, and make a report on evaluation of, investor selection results, indicating the legal ground, process of implementation organization, assessment results, agreement or disagreement (stating the reasons) with the bid solicitor's proposal. The evaluation does not mean re-assessment of the bid dossier or proposal dossier. Agencies, organizations and individuals directly engaged in the evaluation shall ensure the objectivity and truthfulness of evaluation and may reserve their opinions.

2. Approval of investor selection results

1. Based on the bid solicitor's report and the evaluating agency's or organization's evaluation report, the competent person or authorized person shall approve investor selection results. A written approval must contain the following details:

a/ Name and location of the project;

b/ Name of the selected investor;

c/ Total investment, size and technical criteria of the project and value of ground clearance compensation; value of the sum of money to be paid as support to the budget (if any);

d/ Time of formulating and completing the project;

e/ Time of contract negotiation and name of the agency assigned to sign the project investment contract with the investor after the negotiation finishes;

f/ Time of starting, completing and putting the project into operation or transferring works (if any);

g/ Other details, if any.

VII. NOTIFICATION OF INVESTOR SELECTION RESULTS

After obtaining the approval decision of the competent person or authorized person, the bid solicitor shall notify investor selection results, specifically as follows:

a/ Sending written notices to participating investors and also detailed plans on contract negotiation to selected investors;

b/ Sending information on investor selection results for publication on the Bidding newspaper within 10 days after the issuance of the approval decision.

Part Four

NEGOTIATION AND SIGNING OF PROJECT INVESTMENT CONTRACTS

I. CONTRACT SIGNING PRINCIPLES

The negotiation of a project investment contract must adhere to the following basic principles:

1. The negotiation must comply with the negotiation time limit indicated in the bidding dossier or requirement dossier. If an investor intentionally extends the prescribed negotiation time limit, the bid solicitor shall report such to the competent person for annulling the approved results in order to select the second-ranked investor or another investor (in case of contractor appointment). In this case, the violating investor will have his/her/its bid guarantee confiscated;

2. In the course of negotiation, the selected investor may not reduce the proposed investment level, the level of ground clearance compensation or the sum of money to be paid as support to the budget (if proposed);

3. It is prohibited to negotiate contents already specified in the bidding dossier or requirement dossier and those offered by the investor in the bid dossier or proposal dossier;

4. A contract must contain a term binding on the investor by the sum of money committed to be paid as support to the State in the bid dossier or proposal dossier or the sum of money to be additionally paid as support to the State, in case of adjustment of a 1:2,000 construction planning by increasing the land use coefficient or use area of a construction work as approved by a competent state agency. The sum of money to be additionally paid as support by the investor as a result of planning adjustment shall be determined based on the ratio of the sum of money initially committed to be paid as support in the bid dossier or proposal dossier and the initial construction area multiplied by the construction area increased as a result of planning adjustment.

II. PROCESS OF CONTRACT NEGOTIATION

1. Negotiation preparation.

2. Negotiation organization.

3. Submission for approval and approval of negotiation results.

4. Signing of a project investment contract.

III. NEGOTIATION PREPARATION

1. The team of bidding experts shall negotiate a contract with the selected investor.

2. Preparation of negotiation plans and contents

a/ Based on requirements set in the bidding dossier or requirement dossier and the bid dossier or proposal dossier of the investor as well as approved investor selection results, the team of bidding experts shall prepare a detailed plan on and contents of negotiation and submit them to the bid solicitor for approval, which shall be sent to the investor for preparation.

b/ When receiving the written notice that he/ she/it has been selected for negotiation and the detailed negotiation plan, the investor shall notify in writing the bid solicitor of the receipt of that notice and agreement to negotiate. Within 30 days, if the investor fails to do so without a plausible reason, the bid solicitor may confiscate his/her/its bid guarantee and report such to the competent person for annulling the above investor selection results.

IV. ORGANIZATION OF NEGOTIATION

1. The team of bidding experts shall invite the investor to negotiate according to the negotiation plan already sent to the investor at the place indicated therein.

2. In the course of negotiation, agreements must be expressed in a written record to be signed for certification by both parties. If there arise disagreements or new issues not indicated in the bidding dossier, requirement dossier, bid dossier or proposal dossier which are beneficial to the State, the team of bidding experts should propose solutions and report them to the bid solicitor for consideration and decision. If those disagreements and issues fall beyond its competence, the bid solicitor shall report them to the competent person for consideration and decision.

V. SUBMISSION FOR APPROVAL AND APPROVAL OF NEGOTIATION RESULTS

After successfully negotiating with the investor, the team of bidding experts shall submit negotiation results to the bid solicitor for approval or further submission for approval under regulations. The time limit for approving negotiation results is 15 days. If negotiation fails, the team of bidding experts shall report such to the bid solicitor in order to propose a competent person to annul investor selection results and approve the selection of the second-ranked investor for negotiation.

VI. SIGNING OF PROJECT INVESTMENT CONTRACTS

Based on negotiation results approved by the competent person, the agency assigned to sign a contract shall invite the investor to come to complete the contract. After reaching agreement, both parties shall sign the contract under regulations.

Part Five

ORGANIZATION OF IMPLEMENTATION

I. IMPLEMENTATION GUIDANCE

1. The handling of problems, petitions and the settlement of petitions and the handling of violations of the handing law comply with current relevant provisions of the bidding law.

2. In the course of implementation of this Circular, ministries, branches, localities and enterprises should report any arising problems to the Ministry of Planning and Investment for timely consideration and settlement. If the bid solicitor sets investor selection principles (including the formula of calculating economic benefits) which are different from those guided in this Circular but help select the best investors in terms of benefits they bring to the State, the bid solicitor may apply those principles. In this case, the bid solicitor should send bidding dossiers or requirement dossiers to the Ministry of Planning and Investment for monitoring and management.

3. After investors are selected under this Circular, investment and construction and other procedures shall be carried out in accordance with the laws on investment and construction and relevant laws.

II. EFFECT

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