Thông tư 05/2015/TT-BKHDT

CIRCULAR

PROVIDING SPECIFIC PROVISIONS ON PREPARING THE INVITATION FOR BID ON PROCUREMENT OF GOODS

Pursuant to the Law on Bidding No. 43/2013/QH13 dated November 26, 2013;

Pursuant to the Government�s Decree No. 63/2014/ND-CP dated June 26, 2014 on providing specific provisions on implementation of several articles enshrined in the Law on Bidding in terms of the contractor selection procedure;

Pursuant to the Government's Decree No. 116/2008/ND-CP dated November 14, 2008 on defining the functions, tasks, powers and organizational structure of the Ministry of Planning and Investment;

The Minister of Planning and Investment hereby promulgates the Circular on providing specific provisions on preparing the invitation for bid on the procurement of goods.

Article 1. Scope of application

1. This Circular provides specific provisions on preparing the invitation for bid on procurement of goods in the contract governed by Article 1 of the Law on Bidding No. 43/2013/QH13, except for the contract for drug procurement stipulated in Point g Clause 1 Article 1 of the Law on Bidding No. 43/2013/QH13. Details shall be provided as follows:

a) Form of the invitation for bid on procurement of goods No. 01 (Form No.01) applying to national competitive and limited bids by following the single-stage one-envelop bidding procedure;

b) Form of the invitation for bid on procurement of goods No. 02 (Form No.02) applying to national competitive and limited bids by following the single-stage two-envelop bidding procedure.

2. With regard to bids on procurement of goods specified as projects financed by official development assistance from Asian Development Bank (ADB) and World Bank (WB) under the national competitive bidding process, the form of the invitation for national competitive bid written in Vietnamese by ADB and WB shall apply.

Article 2. Applicable entities

This Circular shall apply to organizations or individuals participating or involved in the procedure for selection of contractors for procurement of goods within the scope of application stipulated in Article 1 hereof.

Article 3. Application of Forms of invitation for bid on procurement of goods

1. Forms of invitation for bid on procurement of goods issued together with this Circular shall be created on the basis of regulations laid down in the Vietnam�s bidding law, and simultaneously consult bidding regulations adopted by ADB and WB in order to facilitate contracting parties� involvements in contractor selection and improve the competitiveness, equality, transparency and economic efficiency in the bidding process.

2. With regard to the bid for procurement of goods financed by ODA, if contributors agree, the Form No. 01 or Form No. 02 issued together with this Circular shall apply, or contents provided in bidding regulations enshrined in the International Treaties and Agreements between Vietnam and these contributors may be amended and modified.

3. With regard to the international bidding, based on the size and characteristics of the bid, organizations or individuals charged with preparing the invitation for bid shall be obliged to modify regulations on the offer price, language, currency type, incentive and schedule in the bidding process and other relevant contents in conformity with regulations enshrined in the Law on Bidding No. 43/2013/QH13, and the Decree No. 63/2014/ND-CP

4. With regard to the bid for small-scale procurement of goods, based on the characteristics of this bid, if stakeholders find that it is necessary to employ the method for single-stage two-envelop contractor selection, they are required to submit the plan for contractor selection to competent authorities for approval and use the Form No. 02 issued herein to prepare their invitation for bid.

5. Upon formulating, verifying and accrediting the invitation for bid on procurement of goods, organizations or individuals are required to:

a) Use the Form of invitation for bid on procurement of goods enclosed herein, and based on the size and characteristics of specific bids, set out relevant requirements in principle that the competitiveness, equality, transparency and economic efficiency are guaranteed;

b) Based on the demands for consumption of goods, set out technical requirements (technical features and specifications, etc.) to ensure that standards of operational functions are met, correspond to the actual consumption demands and business capability as well as market conditions;

c) Avoid setting out requirements aimed at constraining certain bidders, or showing favor to a single or several bidder(s) which leads to the competitive imbalance such as displaying information about trademarks, origins of goods, names of countries, country groups or territories, for instance, as a discriminatory practice; in case it is impossible to give the detailed description of technical features, technological design and standards, trademarks and catalogues of specific products should be shown as a reference or illustration of technical requirements of these products, but the remark "or equivalents� should be printed at the back side of these trademarks and catalogues, and contents of technical features, operational functions, technological standards equivalent to those of these products as well as other information (if any) should be clearly stated, except for information about origin of goods.

d) Avoid revising regulations on bidders' instructions and general contractual terms and conditions laid down in the Form of invitation for bid; as regards other contents, they are allowed to do so to make these regulations appropriate for the size and characteristics of the bid. In case there is any amendment to regulations laid down in the form of invitation for bid, organizations or individuals charged with formulating, evaluating and accrediting the invitation for bid must undertake that such amendments are more appropriate, scientific and stringent against regulations specified in the Form of invitation for bid, and are not in breach of legal regulations on bidding. The written request for approval of the invitation for bid must clarify contents that have been modified against regulations specified in the Form of invitation for bid and clearly state reasons for such modification for stakeholders' consideration and decision.

6. With regard to the bid for non-consulting services to be furnished, based on the size and characteristics of this bid, regulations specified in the Form of invitation for bid mentioned above may be modified to make them more appropriate for implementation.

Article 4. Implementation of regulations on taxes, fees and charges

1. The offer price of bidders must be composed of all expenses necessary to execute the contract, inclusive of taxes, fees and charges (if any). Taxes, fees and charges shall be calculated by reference to statutory tax rates and fee or charge levels at 28 days prior to the bid�s closing date.

2. With regard to the national bidding, when evaluating the bid price, expenses incurred by paying taxes, fees or charges (if any) should be taken into consideration.

3. With regard to the international bidding, when evaluating the bid price, expenses incurred by paying taxes, fees or charges (if any) should not be taken into account to compare and rate bidders. In case a bidder is rated the first, taxes, fees or charges (if any) shall be specifically determined in the contract negotiation process. The offer price at which the bidder is awarded the contract, and the contractual price, must be inclusive of taxes, fees or charges (if any).

Article 5. Contract

1. The common type of contract for the bid on procurement of goods is the lump-sum one. With regard to some particular, complex and large-scale goods and over-18-month validity period of contract execution, the type of price agreement including terms and conditions of price adjustment may be used. If the abovementioned price agreement is used, the invitation for bid must specify the price adjustment formula; in the course of contract execution, if there is any change to the quoted price and there is a need for adjustment to the contractual price, successful contractors must explain factors contributing to that price adjustment.

2. The invitation for bid shall comprise the form of contract and specific provisions on contractual terms and conditions as the basis for bidders' offers and contracting parties� negotiation, contract perfection and conclusion.

3. The contract signed between the investor and bid solicitor must conform to the Form of contract and contractual terms and conditions stipulated in the invitation for bid, and amendments or corrections proposed by the contractor and accepted by the investor during the process of contract negotiation and perfection, but ensure it is not in breach of legislation on bidding and other relevant legal regulations.

Article 6. Manufacturer�s license to sell goods

1. With regard to normal, common and available-at-market goods and those which have been standardized and for which warrants are issued in accordance with manufacturer�s regulations, bidders are not required to submit their license to sell goods or the partnership certificate or other equivalent.

2. With regard to particular and complex goods of which the contract for procurement binds manufacturers to furnish after-sale services such as warranty, maintenance, repair and supply of components or spare parts as well as other relevant services, the invitation for bid should lay down requirements to which bidders are obliged to provide the manufacturer�s license to sell goods or the partnership certificate or other equivalents. If bidders have not enclosed the manufacturer�s license to sell goods or the partnership certificate or other equivalents in their bid package, they shall be responsible for clarification and supplementation during the bid evaluation process. The bid solicitor shall be responsible for receiving bidders� additional documents for this evaluation. The bidder shall be awarded the contract only after they have already submitted the manufacturer�s license to sell goods or the partnership certificate or other equivalents.

3. If the manufacturer�s license to sell goods or the partnership certificate or other equivalent has not met requirements stated in the invitation for bid, the bid solicitor must ask for bidder�s clarification of unmet contents to support the bid evaluation process without having the right to immediately disqualify these bidders.

4. In case manufacturers, dealers or distributors intentionally refuse to issue the manufacturer�s license to sell goods or the partnership certificate or other equivalents without good and sufficient reasons, or do not comply with legal regulations on trade and competition which leads to unfair advantages or monopolies given others, bidders should send a timely report to the Ministry of Planning and Investment and the Ministry of Industry and Trade for possible solutions.

Article 7. Implementation

1. This Circular shall enter into force from August 1, 2015 as a replacement for the Circular No. 05/2010/TT-BKH of the Ministry of Planning and Investment dated February 10, 2010 on specifying preparation of the invitation for bid on procurement of goods.

2. Ministries, Ministry-level agencies, Government agencies, and other central organs, and the People�s Committees at all levels as well as organizations or individuals concerned shall be responsible for implementing this Circular. In the course of implementation, if there is any difficulty that may arise, Ministries, Ministry-level agencies, Government agencies, and other central organs, and the People�s Committees at all levels as well as organizations or individuals concerned shall be requested to send their feedbacks to the Ministry of Planning and Investment for timely instructions./.